14 Part 1200 to End Revised as of January 1, 2002
Aeronautics and Space
Containing a codification of documents of general applicability and future effect
As of January 1, 2002
With Ancillaries
Published by Office of the Federal Register National Archives and Records Administration
A Special Edition of the Federal Register
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For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402–0001
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Page Explanation ...... v
Title 14:
Chapter V—National Aeronautics and Space Administration ...... 3
Chapter VI—Office of Management and Budget ...... 489
Finding Aids:
Table of CFR Titles and Chapters ...... 501
Alphabetical List of Agencies Appearing in the CFR ...... 519
List of CFR Sections Affected ...... 529
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To cite the regulations in this volume use title, part and section num- ber. Thus, 14 CFR 1201.100 refers to title 14, part 1201, section 100.
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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 agen- cies 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 deter- mine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, January 1, 2002), 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 usu- ally 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.
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RAYMOND A. MOSLEY, Director, Office of the Federal Register. January 1, 2002.
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Title 14—AERONAUTICS AND SPACE is composed of five volumes. The parts in these volumes are arranged in the following order: parts 1–59, 60–139, 140–199, 200– 1199, and part 1200–End. The first three volumes containing parts 1–199 are com- prised of chapter I—Federal Aviation Administration, Department of Transpor- tation (DOT). The fourth volume containing parts 200–1199 is comprised of chapter II—Office of the Secretary, DOT (Aviation Proceedings) and chapter III—Com- mercial Space Transportation, Federal Aviation Administration, DOT. The fifth volume containing part 1200–End is comprised of chapter V—National Aero- nautics and Space Administration and chapter VI—Office of Management and Budget. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2002.
Redesignation tables appear in the Finding Aids section of the volume con- taining parts 60–139.
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(This book contains part 1200 to End)
Part
CHAPTER V—National Aeronautics and Space Administra- tion ...... 1201
CHAPTER VI—Office of Management and Budget ...... 1300
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Part Page 1200 [Reserved] 1201 Statement of organization and general information 5 1203 Information Security Program ...... 11 1203a NASA security areas ...... 28 1203b Security programs; arrest authority and use of force by NASA security force personnel ...... 30 1204 Administrative authority and policy ...... 32 1205 [Reserved] 1206 Availability of agency records to members of the public ...... 49 1207 Standards of conduct ...... 67 1208 Uniform relocation assistance and real property acquisition for Federal and federally assisted programs ...... 69 1209 Boards and committees ...... 69 1210 Development work for industry in NASA wind tun- nels ...... 72 1211 [Reserved] 1212 Privacy Act–NASA regulations ...... 76 1213 Release of information to news and information media ...... 88 1214 Space flight ...... 91 1215 Tracking and Data Relay Satellite System (TDRSS) ...... 146 1216 Environmental quality ...... 153 1217 Duty-free entry of space articles ...... 170 1221 The NASA Seal and other devices, and the Con- gressional Space Medal of Honor ...... 173 1230 Protection of human subjects ...... 184 1232 Care and use of animals in the conduct of NASA activities ...... 194 1240 Inventions and contributions ...... 201 1241 [Reserved] 1245 Patents and other intellectual property rights ...... 205
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Part Page 1250 Nondiscrimination in federally-assisted programs of NASA—effectuation of Title VI of the Civil Rights Act of 1964 ...... 218 1251 Nondiscrimination on basis of handicap ...... 229 1252 Nondiscrimination on the basis of age in programs and activities receiving Federal financial assist- ance ...... 244 1253 Nondiscrimination on the basis of sex in education programs or activities receiving Federal finan- cial assistance ...... 250 1259 National Space Grant College and Fellowship Pro- gram ...... 267 1260 Grants and cooperative agreements ...... 273 1261 Processing of monetary claims (general) ...... 332 1262 Equal Access to Justice Act in agency proceedings 363 1263 Demand for information or testimony served on agency employees; procedures ...... 370 1264 Implementation of the Program Fraud Civil Pen- alties Act of 1986 ...... 373 1265 Governmentwide debarment and suspension (non- procurement) and governmentwide requirements for drug–free workplace (grants) ...... 390 1266 Cross–waiver of liability ...... 409 1271 New restrictions on lobbying ...... 413 1273 Uniform administrative requirements for grants and cooperative agreements to state and local governments ...... 425 1274 Cooperative agreements with commercial firms ..... 452 1275–1299[Reserved]
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located in Washington, DC. NASA advisory boards and committees. The Headquarters is comprised of: Office coordinates its program with (1) The Office of the Administrator various government agencies, foreign which includes the Administrator, Dep- interests, and the private sector. Its uty Administrator, Associate Deputy objectives are accomplished through Administrator, Assistant Deputy Ad- research and development in astro- ministrator, and the Executive Officer. physics, life sciences, Earth sciences (2) Four Program Offices which are and applications, solar system explo- responsible for planning, direction, and ration, space physics, communications, management of agencywide research microgravity science and applications, and development programs. Officials- and communications and information in-Charge of these Program Offices re- systems. The Office also utilizes the port directly to the Administrator and space shuttle, expendable launch vehi- they consist of: cles, automated spacecraft, human-oc- (i) The Office of Aeronautics, Explo- cupied spacecraft, sounding rockets, ration and Technology which is respon- balloons, aircraft, and ground-based re- sible for conducting programs to de- search to conduct its programs. velop advanced technology to enable (iii) The Office of Space Flight is re- and enhance an aggressive pursuit of sponsible for advancing the space shut- national objectives in aeronautics, tle, for developing Freedom, a perma- space, and transatmospherics, includ- nently manned space station, and for ing the National Aero-Space Plane Pro- carrying out space transportation and gram; to demonstrate the feasibility of other associated programs, including this advanced technology in ground, the management of the Johnson Space flight, and in-space facilities to ensure Center, Marshall Space Flight Center, its early utilization; and to ensure the Kennedy Space Center, and John C. application of agency capabilities and Stennis Space Center. The Office plans, facilities to programs of other agencies directs, and executes the development, and the United States aerospace indus- acquisition, testing, and operations of try. The Office is the focal point for the all elements of the Space Transpor- Space Exploration Initiative, a long- tation System; plans, directs, and man- term program of robotic and human ex- ages execution of prelaunch, launch, ploration which will include sending flight, landing, postflight operations, humans to the Moon early in the 21st and payload assignments; maintains century to establish a permanent out- and upgrades the design of ground and post, and then conducting human mis- flight systems throughout the oper- sions to the planet Mars. In addition, ational period; procures recurring sys- the Office is responsible for managing tem hardware; manages all U.S. Gov- the Ames, Langley, and Lewis Re- ernment civil launch capabilities and search Centers. spacelab development, procurement, (ii) The Office of Space Science and and operations; develops and imple- Applications is responsible for efforts ments necessary policy with other gov- to understand the origin, evolution, ernment and commercial users of the and structure of the universe, the solar Space Transportation System; and co- system, and the integrated functioning ordinates all research. The Office is of the Earth. The Office conducts space also responsible for managing and di- application activities, such as remote recting all aspects of the Space Station sensing of the Earth, developing and Freedom Program and achieving the understanding microgravity processes, goals established by the President. and developing and testing advanced These goals include developing a per- space communications as well as basic manently manned space station in the and applied science to facilitate life in mid-1990’s and involving other coun- space. The Office also is responsible for tries in the program, and promoting managing the Goddard Space Flight scientific research, technology develop- Center and the Jet Propulsion Labora- ment, and private-sector investment in tory and maintaining contacts with space. The Johnson Space Center, the the Space Science Board of the Na- Marshall Space Flight Center, the God- tional Academy of Sciences, the Space dard Space Flight Center, and the Applications Board, and other science Lewis Research Center are responsible
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for developing major elements of the opment in support of the Nation’s aero- space station. The concept of the Space space program and maintains unique Station Freedom Program is to provide research and test facilities including a manned base, initially accommo- wind tunnels, simulators, supercom- dating a crew of eight people. puters, and flight test ranges. Current (iv) The Office of Space Operations is areas of emphasis include the develop- responsible for an array of functions ment of aerospace vehicle concepts critical to operations of this Nation’s through synergistic application of the space programs. They include space- Center’s complete capabilities, ranging craft operations and control centers; from computation and experimentation ground and space communications; (in wind tunnels and simulators) to data acquisition and processing; flight flight testing; research in support of dynamics and trajectory analyses; human adaptation and productivity in spacecraft tracking; and applied re- the microgravity environment; and re- search and development of new tech- search and development of human/ma- nology. The Space Transportation Sys- chine interfaces and levels of automa- tem, Tracking and Data Relay Sat- tion to optimize the operation of future ellite System, Deep Space Network, aerospace systems, as well as future Spaceflight Tracking and Data Net- hypersonic vehicles and probes. Spe- work, and various other facilities cur- cifically, the Center’s major program rently provide the requirements for responsibilities are concentrated in NASA’s space missions. A global com- computational and experimental fluid munications system links tracking dynamics and aerodynamics; fluid and sites, control centers, and data proc- thermal physics; rotorcraft, powered- essing facilities that provide real-time lift, and high-performance aircraft data processing for mission control, technology; flight simulation and re- orbit, and attitude determination, and search; controls and guidance; aero- routine processing of telemetry data space human factors; automation for space missions. sciences, space and life sciences; air- (3) Thirteen Headquarters Offices borne sciences and applications; space which provide agencywide leadership in biology and medicine; and ground and management and administrative proc- flight projects in support of aero- esses. Officials-in-Charge of these of- nautics and space technology. In addi- fices report to the Administrator. tion to these major program respon- (b) Directors of NASA Field Installa- sibilities, the Center provides support tions and other component installa- for military programs and major agen- tions are responsible for execution of cy projects such as the Space Transpor- NASA’s programs, largely through con- tation System, Space Station, and the tracts with research, development, and National Aero-Space Plane. manufacturing enterprises. A broad (2) Goddard Space Flight Center, Green- range of research and development ac- belt, MD 20771. The Center conducts tivities are conducted at NASA field Earth-orbital spacecraft and experi- installations and other component in- ment development flight operations. It stallations by Government-employed develops and operates tracking and scientists, engineers, and technicians data acquisition systems and conducts to evaluate new concepts and phe- supporting mission operations. It also nomena and to maintain the capability develops and operates spacelab pay- required to manage contracts with pri- loads; space physics research program; vate enterprises. Although these field Earth science and applications pro- installations have a primary program grams; life science programs; informa- responsibility to the program office to tion systems technology; sounding which they report, they also conduct rockets and sounding rocket payloads; work for the other program offices. launch vehicles; balloons and balloon (c) The NASA field installations and experiments; planetary science experi- a brief description of their responsibil- ments; and sensors for environmental ities are as follows: monitoring and ocean dynamics. (1) Ames Research Center, Moffett (3) John F. Kennedy Space Center, Ken- Field, CA 94035. The Center manages a nedy Space Center, FL 32899. The Center diverse program of research and devel- designs, constructs, operates, and
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maintains space vehicle facilities and thermodynamics and aerodynamics; ground support equipment for launch fuel and combustion; aero and space and recovery operations. The Center is propulsion systems; space power; power also responsible for prelaunch oper- transmission; tribology; internal en- ations, launch operations, and payload gine computational fluid dynamics; processing for the space shuttle and ex- materials; structural analysis; instru- pendable launch vehicle programs, and mentation; space communications, in- landing operations for the space shut- cluding design and development of the tle orbiter; also recovery and refurbish- Advanced Communications Technology ment of the reusable solid rocket Satellite (ACTS); the ACTS experi- booster. ments program; design, development, (4) Langley Research Center, Hampton, and fabrication of microgravity space VA 23665. The Center performs research experiments; and the procurement of in long-haul aircraft technology; gen- intermediate and large-class expend- eral aviation commuter aircraft tech- able launch vehicle launch services. nology; military aircraft and missile The Center also plays an important technology; National Aero-Space role in planning the Space Exploration Plane; fundamental aerodynamics; Initiative and in implementing the Ex- computational fluid dynamics; propul- ploration Technology Program. In ad- sion/airframe integration; unsteady dition, the Center provides research aerodynamics and aeroelasticity; and technology support to the Depart- hypersonic propulsion; aerospace ment of Defense and assists the private acoustics; aerospace vehicle structures sector in identifying potential indus- and materials; computational struc- trial applications and commercializa- tural mechanics; space structures and tion of NASA-developed technology. dynamics; controls/structures inter- action; aeroservoelasticity; inter- (6) Lyndon B. Johnson Space Center, disciplinary research; aerothermo- Houston, TX 77058. The Center manages dynamics; aircraft flight management the development and operation of the and operating procedures; advanced space shuttle, a manned space trans- displays; computer science; portation system developed for the electromagnetics; automation and ro- United States by NASA. The shuttle is botics; reliable, fault-tolerant systems designed to reduce the cost of using and software; aircraft flight control space for commercial, scientific, and systems; advanced space vehicle con- defense needs. The Center is respon- figurations; advanced space station de- sible for development, production, de- velopment; technology experiments in livery, and flight operation of the or- space; remote sensor and data acquisi- biter vehicle, that portion of the space tion and communication technology; shuttle that is designed to take crew space electronics and control systems; and experiments into space, place sat- planetary entry technology; non- ellites in orbit, retrieve ailing sat- destructive evaluation and measure- ellites, etc. The shuttle crew (up to ments technology; atmospheric seven people) includes pilots, mission sciences; Earth radiation budget; at- specialists, and payload specialists. mospheric dynamics; space power con- Crew personnel (other than payload version and transmission; space envi- specialists) are recruited, selected, and ronmental effects; and systems anal- trained by the Center. It is also respon- ysis of advanced aerospace vehicles. sible for design, development, and test- (5) Lewis Research Center, Cleveland, ing of spaceflight payloads and associ- OH 44135. The Center manages the de- ated systems for manned flight; for sign and development of the power gen- planning and conducting manned eration, storage, and distribution sys- spaceflight missions; and for directing tem for Space Station Freedom. The medical, engineering, and scientific ex- Center is also responsible for con- periments that are helping us under- ducting research and technology ac- stand and improve the environment. tivities in the following areas: For the space station program, the airbreathing propulsion systems, in- Center provides support in the areas of cluding those needed for the National headquarters level A responsibilities Aero-Space Plane; turbomachinery and project management.
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(7) George C. Marshall Space Flight gress fully and currently informed, by Center, Marshall Space Flight Center, AL reports concerning fraud and other se- 35812. The Center manages, develops, rious problems, abuses, and defi- and tests the External Tank, Solid ciencies related to NASA’s programs Rocket Booster, and main engines, and operations, for recommending cor- which are major portions of the space rective actions, and for reporting on shuttle project; oversees the develop- the progress in implementing such cor- ment of the U.S. Spacelab; manages rective actions. The Inspector General the space telescope; and conducts re- reports to the Administrator, but nei- search in structural systems, materials ther the Administrator nor the Deputy science engineering, electronics, guid- Administrator can prevent or prohibit ance, navigation, and control. the Inspector General from initiating, (8) John C. Stennis Space Center, Sten- carrying out, or completing any audit nis Space Center, MS 39529. The Center or investigation, or from issuing any plans and manages research and devel- subpoena under authority of the In- opment activities in the field of space spector General Act. In carrying out and terrestrial applications; space the responsibilities, the Inspector Gen- flight; research in oceanography, mete- eral shall comply with standards estab- orology, and environmental sciences. lished by the Comptroller General of The Center coordinates research be- the United States for audits of govern- tween the Administration and other mental organizations, programs, ac- government agencies. tivities, and functions. The Inspector (d) The NASA Office of Inspector General reports to Congress on a semi- General is established pursuant to Act annual basis, summarizing the activi- of Congress, Public Law 95–452, as ties of the office. These reports are amended, 5 U.S.C. App. III. The Inspec- available to the public upon request tor General is appointed by the Presi- within 60 days of their transmission to dent, by and with the advice and con- the Congress. Anyone wishing to report sent of the Senate, without regard to instances of fraud, waste, or mis- political affiliation and solely on the management in NASA’s programs and basis of integrity and demonstrated operations can call the Inspector Gen- ability in accounting, auditing, finan- eral Hotline at 755–3402 in the Wash- cial analysis, law, management anal- ington, DC, area or toll free (800) 424– ysis, public administration, or inves- 9183 for all other areas. The office tigations. The Inspector General ap- maintains a 24-hour answering service. points an Assistant Inspector General Identities of complainants can be kept for Auditing, who is responsible for su- confidential. Written complaints can pervising the performance of auditing be sent to the NASA Inspector General, activities relating to NASA’s programs P.O. Box 23089, L’Enfant Plaza Station, and operations, and an Assistant In- Washington, DC 20026. spector General for Investigations, who (e) For more detailed description of is responsible for supervising the per- NASA’s organizational structure, see formance of NASA’s investigative ac- the ‘‘U.S. Government Manual.’’ tivities. It is the duty and responsi- bility of the Inspector General to pro- Subpart 3—Boards and vide policy direction, to conduct, su- Committees pervise and coordinate audits and in- vestigations related to NASA’s pro- § 1201.300 Boards and committees. grams and operations in order to pro- Various boards and committees have mote economy and efficiency, and to been established as part of the perma- prevent and detect fraud and abuse in nent organization structure of NASA. these programs and operations. The In- These include: spector General must report expedi- (a) Board of Contract Appeals. (1) The tiously to the Attorney General when- Board is established in accordance with ever the Inspector General has reason- the Contract Disputes Act of 1978 (41 able grounds to believe there has been U.S.C. 601–613). The function of the a violation of Federal criminal law. Board is to decide appeals from deci- The Inspector General is responsible sions of contracting officers relating to for keeping the Administrator and Con- a contract made by NASA.
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(2) The charter of the Board is set (3) The decisions of the Board on re- forth in subpart 1 of part 1209 of this quests for waiver are available for in- chapter. The Board’s rules of procedure spection at NASA Headquarters, Office are set forth in 14 CFR part 1241. of Inventions and Contributions Board. (3) The texts of decisions of the Board are published by Commerce Clearing House, Inc., in Board of Contract Ap- Subpart 4—General Information peals Decisions, and are hereby incor- § 1201.400 NASA procurement pro- porated by reference. All decisions and gram. orders are available for inspection and for purchase from the Recorder of the (a) The Office of Procurement, head- Board of NASA Headquarters, Wash- ed by the Assistant Administrator for ington, DC. Decisions and orders issued Procurement, serves as a central point after July, 1967, area available for in- of control and contact for NASA pro- spection and for purchase at NASA In- curements. Although the procurements formation Centers. may be made by the field installations, (b) Contract Adjustment Board. (1) The selected contracts and contracts of spe- function of the Board is to consider and cial types are required to be approved dispose of requests by NASA contrac- by the Assistant Administrator for tors for extraordinary contractual ad- Procurement prior to their execution. justments pursuant to Public Law 85– The Office of Procurement is also re- 804 (50 U.S.C. 1431–35) and Executive sponsible for formulation of NASA pro- Order 10789 dated November 14, 1958 (23 curement policies and provides overall FR 8397). assistance and guidance to NASA field (2) The charter of the Board is set forth at subpart 3 of part 1209 of this installations to achieve uniformity in chapter. The Board’s rules of procedure NASA procurement processes. are set forth at 48 CFR part 1850. (b) The NASA procurement program (3) Indexes of and texts of decisions of is carried out principally at the NASA the Board are available for inspection field installations listed in subpart 2 of and for purchase from the Chairperson this part and in the ‘‘U.S. Government of the Board, National Aeronautics and Manual.’’ The Headquarters Acquisi- Space Administration, Washington, DC tion Division is responsible for con- 20546, and from the NASA Information tracts with foreign governments and Centers. foreign commercial organizations, the (c) Inventions and Contributions Board. procurement of materials and services (1) The function of the Board is to con- required by Headquarters offices except sider and recommend to the Adminis- for minor office supplies and services trator the action to be taken with re- procured locally, and the award of spect to: grants and cooperative agreements for (i) Petitions for waiver of rights to Headquarters. The Headquarters Space any invention or class of inventions made during the performance of NASA Station Freedom Procurement Office is contracts; and responsible for managing and directing (ii) Applications for award for sci- the full range of acquisition functions entific and technical contributions de- in support of the Space Station Free- termined to have significant value in dom Program Office. the conduct of aeronautical and space (c) All procurements are made in ac- activities, pursuant to the National cordance with the Federal Acquisition Aeronautics and Space Act of 1958, as Regulation (FAR) (48 CFR chapter 1) amended (42 U.S.C. 2457 (f) and (g), and the NASA Federal Acquisition 2458), and the Government Employees Regulation Supplement (NASA/FAR Incentive Awards Act (5 U.S.C. 2121–23), Supplement) (48 CFR chapter 18). Cop- respectively. ies of these publications are available (2) The charter of the Board is set from the Superintendent of Docu- forth at subpart 4 of part 1209 of this ments, U.S. Government Printing Of- chapter. The Board’s rules of procedure fice, Washington, DC 20402, on an an- are set forth at 14 CFR parts 1240 and nual subscription basis. 1245.
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§ 1201.401 Special document deposi- sity of Pittsburgh, Pittsburgh, PA tories. 15260. NASA provides the National Tech- (5) New England Research Applica- nical Information Service (NTIS), U.S. tion Center (NERAC), One Technology Department of Commerce, 5285 Port Drive, Tolland, CT 06084. Royal Road, Springfield, VA 22161, with (6) North Carolina Science and Tech- copies of NASA and/or NASA-sponsored nology Research Center, P.O. Box 12235, unclassified unlimited documents to Research Triangle Park, NC 27709. provide availability to the public. (7) Technology Application Center These documents may be reproduced by (TAC), University of New Mexico, Albu- NTIS and sold at prices established by querque, NM 87131. NTIS. NASA also uses the regional de- (8) Kerr Industrial Applications Cen- pository libraries established through ter, Southeastern Oklahoma State Uni- the Federal Depository Library Pro- versity, Station A, Box 2584, Durant, gram by chapter 19 of title 44 of the OK 74701. U.S. Code under the Government Print- (9) NASA Industrial Applications ing Office (GPO) to make its technical Center, Research Annex, Room 200, documents and bibliographic tools University of Southern California, 3716 available to the general public. These South Hope Street, Los Angeles, CA depository libraries are responsible for 90007. permanent retention of material, inter- (10) NASA/SU Industrial Applications library loan, and reference services. Center, Southern University, Depart- ment of Computer Science, Baton § 1201.402 NASA Industrial Applica- Rouge, LA 70813–2065. tions Centers. (b) To obtain access to NASA-devel- (a) As part of its Technology Utiliza- oped computer software, contact: Com- tion Program—a program designed to puter Software Management and Infor- transfer new aerospace knowledge and mation Center (COSMIC), University of innovative technology to nonaerospace Georgia, Athens, GA 30602. sectors of the economy—NASA oper- ates a network of Industrial Applica- PART 1203—INFORMATION tions Centers. These centers serve U.S. SECURITY PROGRAM industrial clients on a fee paying basis by providing access to literally mil- Subpart A—Scope lions of scientific and technical docu- ments published by NASA and by other Sec. 1203.100 Legal basis. research and development organiza- 1203.101 Other applicable NASA regulations. tions. Using computers, the NASA In- dustrial Applications Centers conduct Subpart B—NASA Information Security retrospective and current awareness Program searches of available literature in ac- cordance with client interests, and as- 1203.200 Background and discussion. 1203.201 Information security objectives. sist in the interpretation and adaption 1203.202 Responsibilities. of retrieved information to specified 1203.203 Degree of protection. needs. Such services may be obtained by contacting one of the following: Subpart C—Classification Principles and (1) Aerospace Research Applications Considerations Center (ARAC), Indianapolis Center for 1203.300 General. Advanced Research, 611 N. Capital Ave- 1203.301 Identification of information re- nue, Indianapolis, IN 46204. quiring protection. (2) Southern Technology Applica- 1203.302 Combination, interrelation or com- tions Center, Progress Center, Box 24, 1 pilation. Progress Boulevard, Alachua, FL 32615. 1203.303 Dissemination considerations. (3) NASA/UK Technology Applica- 1203.304 Internal effect. tions Program, University of Ken- 1203.305 Restricted data. tucky, 10 Kinkead Hall, Lexington, KY Subpart D—Guides for Original 40506–0057. Classification (4) NASA Industrial Applications Center, 823 William Pitt Union, Univer- 1203.400 Specific classifying guidance.
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1203.401 Effect of open publication. Subpart A—Scope 1203.402 Classifying material other than documentation. § 1203.100 Legal basis. 1203.403 State-of-the-art and intelligence. (a) Executive Order 12958 (hereinafter 1203.404 Handling of unprocessed data. referred to as ‘‘the Order’’). The respon- 1203.405 Proprietary information. sibilities and authority of the Adminis- 1203.406 Additional classification factors. trator of NASA with respect to the 1203.407 Duration of classification. original classification of official infor- 1203.408 Assistance by installation security classification officers. mation or material requiring protec- 1203.409 Exceptional cases. tion against unauthorized disclosure in 1203.410 Limitations. the interest of national defense or for- 1203.411 Restrictions. eign relations of the United States 1203.412 Classification guides. (hereinafter collectively termed ‘‘na- tional security’’), and the standards for Subpart E—Derivative Classification such classification, are established by the ‘‘the Order’’ (E.O. 12958, 3 CFR, 1996 1203.500 Use of derivative classification. Comp., p. 333), as amended (See, Order 1203.501 Applying derivative classification of October 13, 1995, 3 CFR, 1996 Comp., markings. p. 513), and the Information Security Oversight Office Directive No. 1, as Subpart F—Declassification and amended (32 CFR part 2001, ‘‘Classified Downgrading National Security Information’’); 1203.600 Policy. (b) E.O. 10865. Executive Order 10865 1203.601 Responsibilities. (24 FR 1583) requires the Administrator 1203.602 Authorization. to prescribe by regulation such specific 1203.603 Systematic review for declassifica- requirements, restrictions and other tion. safeguards as the Administrator may 1203.604 Mandatory review for declassifica- consider necessary to protect: tion. (1) Releases of classified information to or within United States industry Subpart G—Foreign Government that relate to contracts with NASA; Information and (2) Other releases of classified infor- 1203.700 Identification. mation to industry that NASA has re- 1203.701 Classification. sponsibility for safeguarding. 1203.702 Duration of classification. (c) The National Aeronautics and Space 1203.703 Declassification. Act. (1) Section 304(a) of the National Aeronautics and Space Act of 1958, as Subpart H—Delegation of Authority to amended (42 U.S.C. 2451 et seq.), states Make Determinations in Original Clas- in part: sification Matters The Administrator shall establish such se- curity requirements, restrictions, and safe- 1203.800 Delegations. guards as he deems necessary in the interest 1203.801 Redelegation. of the national security * * * 1203.802 Reporting. (2) Section 303 of the Act states: Information obtained or developed by the Subpart I—NASA Information Security Administrator in the performance of his Program Committee functions under this Act shall be made avail- able for public inspection, except (i) informa- 1203.900 Establishment. tion authorized or required by Federal stat- 1203.901 Responsibilities. ute to be withheld, and (ii) information clas- 1203.902 Membership. sified to protect the national security: Pro- 1203.903 Ad hoc committees. vided, That nothing in this Act shall author- 1203.904 Meetings. ize the withholding of information by the Administrator from the duly authorized AUTHORITY: 42 U.S.C. 2451 et seq. and E.O. committees of the Congress. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333. [44 FR 34913, June 18, 1979, as amended at 48 SOURCE: 44 FR 34913, June 18, 1979, unless FR 5889, Feb. 9, 1983; 64 FR 72535, Dec. 28, otherwise noted. 1999]
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§ 1203.101 Other applicable NASA reg- (5) Classification limitations and re- ulations. strictions as discussed in §§ 1203.410 and (a) Subpart H of this part, ‘‘Delega- 1203.411. tion of Authority to Make Determina- (c) ‘‘The Order’’ requires the timely tions in Original Security Classifica- identification and protection of that tion Matters.’’ NASA information the disclosure of (b) Subpart I of this part, ‘‘NASA In- which would be contrary to the best in- formation Security Program Com- terest of national security. Accord- mittee.’’ ingly, the determination in each case (c) NASA Handbook 1620.3, ‘‘NASA must be based on a judgment as to Physical Security Handbook.’’ whether disclosure of information could reasonably be expected to result in damage to the national security. Subpart B—NASA Information Security Program [44 FR 34913, June 18, 1979, as amended at 48 FR 5889, Feb. 9, 1983] § 1203.200 Background and discussion. § 1203.201 Information security objec- (a) In establishing a civilian space tives. program, the Congress required NASA The objectives of the NASA Informa- to ‘‘provide for the widest practicable tion Security Program are to: and appropriate dissemination of infor- mation concerning its activities and (a) Ensure that information is classi- the results thereof,’’ and for the with- fied only when a sound basis exists for holding from public inspection of that such classification and only for such information that is classified to pro- period as is necessary. tect the national security. (b) Prevent both the unwarranted (b) In recognition of the essential re- classification and the overclassifica- quirement for an informed public con- tion of NASA information. cerning the activities of its Govern- (c) Ensure the greatest practicable ment, as well as the need to protect uniformity within NASA in the classi- certain national security information fication of information. from unauthorized disclosure, ‘‘the (d) Ensure effective coordination and Order’’ was promulgated. It designates reasonable uniformity with other Gov- the National Aeronautics and Space ernment departments and agencies, Administration certain responsibility particularly in areas where there is an for matters pertaining to national se- interchange of information, techniques curity and confers on the Adminis- or hardware. trator of NASA, or such responsible of- (e) Provide a timely and effective ficers or employees as the Adminis- means for downgrading or declassifying trator may designate, the authority for information when the circumstances original classification of official infor- necessitating the original classifica- mation or material which requires pro- tion change or no longer exist. tection in the interest of national secu- rity. It also provides for: § 1203.202 Responsibilities. (1) Basic classification, downgrading (a) The Chairperson, NASA Informa- and declassification guidelines; tion Security Program Committee (2) The issuance of directives pre- (Subpart I of this part), is responsible scribing the procedures to be followed for: in safeguarding classified information (1) Directing the NASA Information or material; Security Program in accordance with (3) A monitoring system to ensure NASA policies and objectives and ap- the effectiveness of the Order; plicable laws and regulations. (4) Appropriate administrative sanc- (2) Ensuring effective compliance tions against officers and employees of with and implementation of ‘‘the the United States Government who are Order’’ and the Information Security found to be in violation of the Order or Oversight Office Directive No. 1 relat- implementing directive; and ing to security classification matters.
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(3) Reviewing, in consultation with tion, any disagreement with classifica- the NASA Information Security Pro- tion determinations made by other gram Committee, questions, sugges- NASA officials. tions, appeals and compliance con- (3) Ensuring that information and cerning the NASA Information Secu- material which no longer requires its rity Program and making determina- present level of protection is promptly tions concerning them. downgraded or declassified in accord- (4) Coordinating NASA security clas- ance with applicable guidelines. sification matters with NASA installa- (d) Other Officials-in-Charge of Head- tions, the Department of Defense, the quarters Offices are responsible for: Department of Energy and other Gov- ernment agencies. (1) Ensuring that classified informa- (5) Issuing Security Classification tion or material prepared within their Guides for NASA programs and respective offices is appropriately projects. marked. (6) Developing, maintaining and rec- (2) Ensuring that material proposed ommending to the Administrator for public release is reviewed to elimi- guidelines for the systematic review nate classified information. covering 30-year-old classified informa- (e) Directors of Field Installations tion under NASA’s jurisdiction. are responsible for: (7) Reviewing and coordinating with (1) Developing proposed Security appropriate offices all appeals of deni- Classification Guides. als of requests for records under sec- (2) Ensuring that classified informa- tions 552 and 552a of Title 5, United tion or material prepared in their re- States Code (Freedom of Information spective installations is appropriately and Privacy Acts) when the denials are marked. based on the records continued classi- (3) Ensuring that material proposed fication. for public release is reviewed to elimi- (8) Recommending to the Adminis- nate classified information. trator appropriate administrative ac- tion to correct abuse or violations of (4) Designating Security Classifica- any provision of the NASA Information tion Officers at their respective instal- Security Program, including notifica- lations, to whom responsibilities listed tions by warning letter, formal rep- in paragraphs (e)(1), (2), and (3) of this rimand and to the extent permitted by section may be reassigned. law, suspension without pay and re- (f) The Senior Security Specialist, moval. NASA Security Office, NASA Head- (b) All NASA employees are respon- quarters, who serves as a member and sible for bringing to the attention of Executive Secretary of the NASA In- the Chairperson of the NASA Informa- formation Security Program Com- tion Security Program Committee any mittee, is responsible for the NASA- information security problems in need wide coordination of security classi- of resolution, any areas of interest fication matters. wherein information security guidance (g) The Director, NASA Security is lacking, and any other matters like- Management Office, is responsible for ly to impede achievement of the objec- establishing procedures for the safe- tives prescribed herein. guarding of classified information or (c) Each NASA official to whom the material (e.g., accountability, control, authority for original classification is access, storage, transmission, and delegated shall be accountable for the propriety of each classification (see marking) and for ensuring that such subpart H) and is responsible for: procedures are systematically re- (1) Ensuring that classification deter- viewed; and those which are duplica- minations are consistent with the pol- tive or unnecessary are eliminated. icy and objectives prescribed above, [44 FR 34913, June 18, 1979, as amended at 45 and other applicable guidelines. FR 3888, Jan. 21, 1980; 48 FR 5890, Feb. 9, 1983; (2) Bringing to the attention of the 53 FR 41318, Oct. 21, 1988; 64 FR 72535, Dec. 28, Chairperson, NASA Information Secu- 1999] rity Program Committee, for resolu-
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§ 1203.203 Degree of protection. entific or technological developments (a) General. Upon determination that relating to national security. information or material must be classi- (3) Confidential. Confidential is the fied, the degree of protection commen- designation applied to that informa- surate with the sensitivity of the infor- tion or material for which the unau- mation must be determined. If there is thorized disclosure could reasonably be reasonable doubt about the need to expected to cause damage to the na- classify information, it shall be safe- tional security. guarded as if it were classified pending [44 FR 34913, June 18, 1979, as amended at 48 a determination by an original classi- FR 5890, Feb. 9, 1983] fication authority, who shall make this determination within 30 days. If there is reasonable doubt about the appro- Subpart C—Classification priate level of classification, it shall be Principles and Considerations safeguarded at the higher level of clas- sification pending a determination by § 1203.300 General. an original classification authority, In general, the types of NASA-gen- who shall make this determination erated information and material re- within 30 days. quiring protection in the interest of (b) Authorized categories of classifica- national security lie in the areas of ap- tion. The three categories of classifica- plied research, technology or oper- tion, as authorized and defined in ‘‘the ations. Order,’’ are set out below. No other re- strictive markings are authorized to be § 1203.301 Identification of informa- placed on NASA classified documents tion requiring protection. or materials except as expressly pro- Classifiers shall identify the level of vided by statute or by NASA Direc- classification of each classified portion tives. of a document (including subject and (1) Top Secret. Top Secret is the des- titles), and those portions that are not ignation applied to information or ma- classified. terial the unauthorized disclosure of which could reasonably be expected to § 1203.302 Combination, interrelation cause exceptionally grave damage to or compilation. the national security. Examples of ex- An interrelationship of individual ceptionally grave damage include armed hostilities against the United items, classified or unclassified, may States or its allies; disruption of for- result in a combined item requiring a eign relations vitally affecting the na- higher classification than that of any tional security; the compromise of of the individual items. Compilations vital national defense plans or complex of unclassified information are consid- cryptologic and communications intel- ered unclassified unless some addi- ligence systems; the revelation of sen- tional significant factor is added in the sitive intelligence operations; and the process of compilation. For example: disclosure of scientific or technological (a) The way unclassified information developments vital to national secu- is compiled may be classified; rity. (b) The fact that the information is (2) Secret. Secret is the designation complete for its intended purpose may applied to information or material the be classified; or unauthorized disclosure of which could (c) The fact the compilation rep- reasonably be expected to cause serious resents an official evaluation may be damage to the national security. Ex- classified. In these cases, the compila- amples of serious damage include dis- tions would be classified. ruption of foreign relations signifi- cantly affecting the national security; § 1203.303 Dissemination consider- significant impairment of a program or ations. policy directly related to the national The degree of intended dissemina- security; revelation of significant mili- tion, use of the information and wheth- tary plans or intelligence operations; er the end purpose to be served renders and compromise of significant sci- effective security control impractical
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are considerations during the classi- (b) Information which, if disclosed, fication process. These factors do not would significantly diminish the tech- necessarily preclude classification, but nological lead of the United States in must be considered in order not to im- any military system, subsystem or pose security controls which are im- component, and would result in dam- practical to enforce. age to such a system, subsystem or component. § 1203.304 Internal effect. (c) Scientific or technological infor- The effect of security protection on mation in an area where an advanced program progess and cost and on other military application that would in functional activities of NASA should itself be classified is foreseen during be considered. Impeditive effects and exploratory development. added costs inherent in a security clas- (d) Information which, if known, sification must be assessed in light of would: the detrimental effects on the national (1) Provide a foreign nation with an security interests which would result insight into the defense application or from failure to classify. the war or defense plans or posture of the United States; § 1203.305 Restricted data. (2) Allow a foreign nation to develop, Restricted Data or Formerly Re- improve or refine a similar item of de- stricted Data is so classified when fense application; originated, as required by the Atomic (3) Provide a foreign nation with a Energy Act of 1954, as amended. Spe- base upon which to develop effective cific guidance for the classification of countermeasures; Restricted Data is provided in ‘‘Classi- (4) Weaken or nullify the effective- fication Guides’’ published by the De- ness of a defense or military plan, oper- partment of Energy. ation, project, weapon system or activ- ity which is vital to the national secu- Subpart D—Guides for Original rity. Classification (e) Information or material which is important to the national security of § 1203.400 Specific classifying guid- the United States in relation to other ance. nations when there is sound reason to Technological and operational infor- believe that those nations are unaware mation and material, and in some ex- that the United States has or is capa- ceptional cases scientific information ble of obtaining the information or ma- falling within any one or more of the terial; i.e., through intelligence activi- following categories, must be classified ties, sources, or methods. if its unauthorized disclosure could (f) Information which if disclosed reasonably be expected to cause dam- could be exploited in a manner preju- age to the national security. In cases dicial to the national security posture where it is believed that a contrary of the United States by discrediting its course of action would better serve the technological power, capability or in- national interests, the matter should tentions. be referred to the Chairperson, NASA (g) Information which reveals an un- Information Security Program Com- usually significant scientific or techno- mittee, for a determination. It is not logical ‘‘breakthrough’’ which there is intended that this list be exclusive; sound reason to believe is not known to original classifiers are responsible for or within the state-of-the-art capa- initially classifying any other type of bility of other nations. If the ‘‘break- information which, in their judgment, through’’ supplies the United States requires protection under ‘‘the Order.’’ with an important advantage of a tech- (a) Information which provides the nological nature, classification also United States, in comparison with would be appropriate if the potential other nations, with a significant sci- application of the information, al- entific, engineering, technical, oper- though not specifically visualized, ational, intelligence, strategic, tactical would afford the United States a sig- or economic advantage related to na- nificant national security advantage in tional security. terms of technological lead time or an
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economic advantage relating to na- sification is indicated. Similar consid- tional security. eration must be given to related items (h) Information of such nature that of information in all programs, an unfriendly government in possession projects, or items incorporating or per- of it would be expected to use it for taining to the compromised items of purposes prejudicial to U.S. national information. In these cases, if a release security and which, if classified, could were made or authorized by an official not be obtained by an unfriendly power Government source, classification of without a considerable expenditure of clearly identified items may no longer resources. be warranted. Questions as to the pro- (i) Information which if disclosed to priety of continued classification a foreign government would enhance should be referred to the Chairperson, its military research and development NASA Information Security Program programs to the detriment of U.S. Committee. counterpart or competitive programs. (j) Operational information per- § 1203.402 Classifying material other taining to the command and control of than documentation. space vehicles, the possession of which would facilitate malicious interference Items of equipment or other physical with any U.S. space mission, that objects may be classified only where might result in damage to the national classified information may be derived security. by visual observation of internal or ex- (k) Information which if disclosed ternal appearance, structure, oper- could jeopardize the foreign relations ation, test, application or use. The or activities of the United States; for overall classification assigned to equip- example, the premature or unauthor- ment or objects shall be at least as ized release of information relating to high as the highest classification of the subject matter of international ne- any of the items of information which gotiations, foreign government infor- may be revealed by the equipment or mation or information regarding the objects, but may be higher if the placement or withdrawal of NASA classifying authority determines that tracking stations on foreign territory. the sum of classified or unclassified in- (l) United States Government pro- formation warrants such higher classi- grams for safeguarding nuclear mate- fication. In every instance where clas- rials or facilities. sification of an item of equipment or (m) Other categories of information object is determined to be warranted, which are related to national security such determination must be based on a and which require protection against finding that there is at least one aspect unauthorized disclosure as may be de- of the item or object which requires termined by the Administrator. The protection. If mere knowledge of the Chairperson, NASA Information Secu- existence of the equipment or object rity Program Committee, will prompt- would compromise or nullify the rea- ly inform the Director, Information Se- son or justification for its classifica- curity Oversight Office, General Serv- tion, the fact of its existence should be ices Administration (GSA) of such de- classified. terminations. § 1203.403 State-of-the-art and intel- [44 FR 34913, June 18, 1979, as amended at 48 ligence. FR 5890, Feb. 9, 1983] A logical approach to classification § 1203.401 Effect of open publication. requires consideration of the extent to Public disclosure, regardless of which the same or similar information source or form, of information cur- available from intelligence sources is rently classified or being considered for known or is available to others. It is classification does not preclude initial also important to consider whether it or continued classification. However, is known publicly, either domestically such disclosure requires an immediate or internationally, that the United reevaluation to determine whether the States has the information or even is information has been compromised to interested in the subject matter. The the extent that downgrading or declas- known state-of-the-art in other nations
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is an additional substantive factor re- tration, Washington, DC 20405, for a de- quiring consideration. termination.
§ 1203.404 Handling of unprocessed § 1203.406 Additional classification fac- data. tors. It is the usual practice to withhold In determining the appropriate clas- the release of raw scientific data re- sification category, the following addi- ceived from spacecraft until it can be tional factors should be considered: calibrated, correlated and properly in- (a) Uniformity within government ac- terpreted by the experimenter under tivities. The effect classification will the monitorship of the cognizant NASA have on technological programs of office. During this process, the data are other Government departments and withheld through administrative meas- agencies should be considered. Classi- ures, and it is not necessary to resort fication of official information must be to security classification to prevent reasonably uniform within the Govern- premature release. However, if at any ment. time during the processing of raw data (b) Applicability of classification direc- it becomes apparent that the results tives of other Government agencies. It is require protection under the criteria necessary to determine whether au- set forth in this subpart D, it is the re- thoritative classification guidance ex- sponsibility of the cognizant NASA of- ists elsewhere for the information fice to obtain the appropriate security under consideration which would make classification. it necessary to assign a higher classi- fication than that indicated by the ap- § 1203.405 Proprietary information. plicable NASA guidance. Generally, the Proprietary information made avail- classification by NASA should not be able to NASA is subject to examination higher than that of equivalent informa- for classification purposes under the tion in other departments or agencies criteria set forth in this subpart D. of the Government. Where the information is in the form of a proposal and accepted by NASA for § 1203.407 Duration of classification. support, it should be categorized in ac- (a) Information shall be classified as cordance with the criteria of § 1203.400. long as required by national security If NASA does not support the proposal considerations. When it can be deter- but believes that security classifica- mined, a specific date or event for de- tion would be appropriate under the classification shall be set by the origi- criteria of § 1203.400 if it were under nal classification authority at the time Government jurisdiction, the con- the information is originally classified. tractor should be advised of the rea- (b) Information classified under pred- sons why safeguarding would be appro- ecessor orders and marked for declas- priate, unless security considerations sification review shall remain classi- preclude release of the explanation to fied until reviewed for declassification the contractor. NASA should identify under the provisions of the ‘‘the the Government department, agency or Order.’’ activity whose national security inter- ests might be involved and the con- [48 FR 5890, Feb. 9, 1983] tractor should be instructed to protect the proposal as though classified pend- § 1203.408 Assistance by installation ing further advisory classification security classification officers. opinion by the Government activity Installation Security Classification whose interests are involved. If such a Officers, as the installation point-of- Government activity cannot be identi- contact, will assist installation per- fied, the contractor should be advised sonnel in: that the proposal is not under NASA (a) Interpreting security classifica- jurisdiction for classification purposes, tion guides and classification assign- and that the information should be ments for the installation. sent, under proper safeguards, to the (b) Answering questions and consid- Director, Information Security Over- ering suggestions concerning security sight Office, General Services Adminis- classification matters.
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(c) Ensuring a continuing review of classified under this part 1203 until and classified information for the purpose unless the Government acquires a pro- of declassifying or downgrading in ac- prietary interest in the product. This cordance with subpart E of this part. part does not affect the provisions of (d) Reviewing and approving, as the the Patent Secrecy Act of 1952 (35 representative of the contracting offi- U.S.C. 181–188). cer, the DD Form 254, Contract Secu- (d) References to classified docu- rity Classification Specification, issued ments that do not disclose classified to contractors by the installation. information may not be classified or used as a basis for classification. § 1203.409 Exceptional cases. (e) Classification may not be used to (a) In those cases where a person not limit dissemination of information authorized to classify information that is not classifiable under the provi- orginates or develops information sions of this part or to prevent or delay which is believed to require classifica- the public release of such information. tion, that person should safeguard the (f) Information may be classified or material as though it were classified reclassified after receipt of a request until it has been evaluated and a deci- for it under the Freedom of Informa- sion made by an appropriate tion Act (5 U.S.C. 552) or the Privacy classifying authority. For NASA em- Act of 1974 (5 U.S.C. 552a), or the man- ployees the classifying authority is datory review provisions of ‘‘the normally the Installation Security Order’’ if such classification meets the Classification Officer. Persons other requirements of ‘‘the Order’’ and is ac- than NASA employees should forward, complished personally on a document- under appropriate safeguards, material by-document basis by an official with in which NASA has primary interest to original Top Secret classification au- the NASA Information Security Pro- thority. gram Committee, Security Division, (g) The Administrator, the Chair- Washington, DC 20546 for a classifica- person, NASA Information Security tion determination. Program Committee, or an official (b) Information in which NASA does with original Top Secret classification not have primary interest shall be re- authority may reclassify information turned promptly, under appropriate previously declassified and disclosed if safeguards, to the sender in accordance it is determined in writing that (1) The with § 1203.405. information requires protection in the (c) Material received from another interest of national security; and (2) agency for a NASA security classifica- the information may reasonably be re- tion determination shall be processed covered. These reclassification actions within 30 days. If a classification can- shall be reported promptly to the Di- not be determined during that period, rector of the Information Security the material shall be sent, under appro- Oversight Office, GSA. priate safeguards, to the Director, In- [44 FR 34913, June 18, 1979, as amended at 48 formation Security Oversight Office, FR 5890, Feb. 9, 1983] GSA, for a determination. § 1203.411 Restrictions. § 1203.410 Limitations. (a) Except as provided by directives (a) Classification may not be used to issued by the President through the conceal violations of law, inefficiency National Security Council, classified of administrative error; to prevent em- information originating in one agency barrassment to a person, organization may not be disseminated outside any or agency; or to restrain competition. other agency to which it has been made (b) Basic scientific research informa- available without the consent of the tion not clearly related to the national originating agency. For purposes of security may not be classified. this section, the Department of De- (c) A product of non-government re- fense shall be considered one agency. search and development that does not (b) Classified information shall not incorporate or reveal classified infor- be disseminated outside the Executive mation to which the producer or devel- Branch except under conditions that oper was given prior access may not be ensure the information will be given
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protection equivalent to that afforded Subpart E—Derivative within the Executive Branch. Classification [48 FR 5890, Feb. 9, 1983] §1203.500 Use of derivative classifica- § 1203.412 Classification guides. tion. (a) General. A classification guide, The application of derivative classi- based upon classification determina- fication markings is a responsibility of tions made by appropriate program and those who incorporate, paraphrase, re- classification authorities, shall be state, or generate in new form informa- issued for each classified system, pro- tion that is already classified, and of gram or project. Classification guides those who apply markings in accord- shall: ance with instructions from an author- (1) Identify the information elements ized original classifier or in accordance to be protected, using categorization with an authorized classification guide. and subcategorization to the extent If a person who applied derivative clas- sification markings believes that the necessary to ensure that the informa- paraphrasing, restating, or summa- tion involved can be readily and uni- rizing of classified information has formly identified. changed the level of or removed the (2) State which of the classification basis for classification, that person designations (i.e., Top Secret, Secret or must consult for a determination with Confidential) apply to the identified in- an appropriate official of the origi- formation elements. nating agency or office of origin who (3) State the duration of each speci- has the authority to upgrade, down- fied classification in terms of a period grade, or declassify the information. of time or future event. Whenever a specific time or future event for declas- [48 FR 5891, Feb. 9, 1983] sification cannot be predetermined, the following notation will be used: DE- §1203.501 Applying derivative classi- fication markings. CLASSIFY ON: Originating Agency’s Determination Required or ‘‘OADR.’’ Persons who apply derivative classi- (4) Indicate specifically that the des- fication markings shall: ignations, time limits, markings and (a) Observe and respect original clas- other requirements of ‘‘the Order’’ are sification decisions: to be applied to information classified (b) Verify the information’s current pursuant to the guide. level of classification so far as prac- (5) Be approved personally and in ticable before applying the markings; writing by an official with original Top and Secret classification authority; the (c) Carry forward to newly created identity of the official will be shown on documents any assigned authorized the guide. Such approval constitutes markings. The declassification date or an original classification decision. Nor- event that provides the longest period mally, all guides will be approved by of classification shall be used for docu- the Chairperson, NASA Information ments classified on the basis of mul- Security Program Committee, whose tiple sources. office will maintain a list of all classi- [44 FR 34913, June 18, 1979, as amended at 48 fication guides in current use. FR 5891, Feb. 9, 1983] (b) Review of classification guides. Classification guides shall be reviewed Subpart F—Declassification and by the originator for currency and ac- Downgrading curacy not less than once every two years. Changes shall be in strict con- §1203.600 Policy. formance with the provisions of this Information shall be declassified or part 1203 and shall be issued promptly. downgraded as soon as national secu- If no changes are made, the originator rity considerations permit. NASA re- shall so annotate the record copy and views of classified information shall be show the date of the review. coordinated with other agencies that [44 FR 34913, June 18, 1979, as amended at 48 have a direct interest in the subject FR 5891, Feb. 9, 1983] matter. Information that continues to
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meet the classification requirements year old U.S. originated information prescribed by §1203.400 despite the pas- and 30-year old foreign information. sage of time will continue to be pro- Such personnel shall: tected in accordance with ‘‘the Order.’’ (i) Provide guidance and assistance to National Archives and Records Serv- [48 FR 5891, Feb. 9, 1983] ice employees in identifying and sepa- § 1203.601 Responsibilities. rating documents and specific cat- egories of information within docu- Officials authorized original classi- ments which are deemed to require fication authority may declassify or continued classification; and downgrade information that is subject (ii) Develop reports of information or to the final classification jurisdiction document categories so separated, with of NASA and shall take such action in recommendations concerning contin- accordance with the provisions of this ued classification. subpart F. (b) Systematic review guidelines. The §1203.602 Authorization. Chairperson, NASA Information Secu- rity Program Committee, shall de- Information shall be declassified or velop, in coordination with NASA orga- downgraded by the official who author- nizational elements, guidelines for the ized the original classification, if that systematic review for declassification official is still serving in the same po- of 30-year old classified information sition, the originator’s successor, a su- under NASA’s jurisdiction. (See sub- pervisory official of either, or officials part G of this part, Foreign Govern- delegated such authority in writing by ment Information.) The guidelines the Administrator or the Chairperson, shall state specific limited categories NASA Information Security Program of information which, because of their Committee. national security sensitivity, should [48 FR 5891, Feb. 9, 1983] not be declassified automatically but should be reviewed item-by-item to de- § 1203.603 Systematic review for de- termine whether continued protection classification. beyond 30 years is needed. These guide- (a) General. (1) Except for foreign gov- lines are authorized for use by the Ar- ernment information as provided in chivist of the United States and, with subpart G of this part, classified infor- the approval of the Administrator, by mation constituting permanently valu- an agency having custody of the infor- able records of the government as de- mation covered by the guidelines. All fined by 44 U.S.C. 2103, and information information, except foreign govern- in the possession and control of the Ad- ment information, cryptologic infor- ministrator of General Services Ad- mation, and information pertaining to ministration pursuant to 44 U.S.C. 2107 intelligence sources or methods, not or 2107 note, shall be reviewed for de- identified in these guidelines as requir- classification as it becomes 30 years ing review and for which a prior auto- old. matic declassification date has not (2) Systematic review for declas- been established shall be declassified sification of classified cryptologic in- automatically at the end of 30 years formation will be coordinated through from the date of original classification. the National Security Agency. These guidelines shall be reviewed at (3) Systematic review for declas- least every 5 years and revised as nec- sification of classified information per- essary unless an earlier review for revi- taining to intelligence activities (in- sion is requested by the Archivist of cluding special activities) or intel- the United States. Copies of the declas- ligence sources or methods will be co- sification guidelines promulgated by ordinated through the Central Intel- NASA will be provided to the Informa- ligence Agency. tion Security Oversight Office, GSA. (4) The Chairperson, NASA Informa- (c) Systematic review procedures. (1) All tion Security Program Committee, security classified records 30 years old shall designate experienced personnel or older, whether held in storage areas to assist the Archivist of the United under installation control or in Federal States in the systematic review of 30- Records Centers, will be surveyed to
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identify those that require scheduling The Archivist of the United States will for future disposition. be notified in writing of this decision. (2) All NASA information or material (d) Declassification by the Director of in the custody of the National Archives the Information Security Oversight Office, and Records Service that is perma- GSA. If the Director of the Information nently valuable and more than 30 years Security Oversight Office, GSA, deter- old is to be systematically reviewed for mines that NASA information is classi- declassification by the Archivist of the fied in violation of ‘‘the Order,’’ the Di- United States with the assistance of rector may require the information to the personnel designated for the pur- be declassified. Any such decision by pose pursuant to paragraph (a)(4)(i) of the Director may be appealed through this section. The Archivist shall refer the NASA Information Security Pro- to NASA that information or material gram Committee to the National Secu- which NASA has indicated requires fur- rity Council. The information shall re- ther review. In the case of 30-year old main classified pending a prompt deci- information or material in the custody sion on the appeal. of NASA installations, such review will [48 FR 5891, Feb. 9, 1983] be accomplished by the custodians of the information or material. The in- § 1203.604 Mandatory review for de- stallation having primary jurisdication classification. over the information or material re- (a) Information covered. All informa- ceived from the Archivist or in its cus- tion classified under ‘‘the Order’’ or tody, shall proceed as follows: predecessor orders, except as provided (i) Classified information or material at § 1203.604(b) shall be subject to a re- over which NASA exercises exclusive view for declassification by the origi- or final original classification author- nating agency, if: ity and which is to be declassified in (1) The request is made by a United accordance with the systematic review States citizen or permanent resident guidelines developed under paragraph alien, a Federal agency, or a State or (b) of this section shall be so marked. local government; and (2) The request describes the docu- (ii) Classified information or mate- ment or material containing the infor- rial over which NASA exercises exclu- mation with sufficient specificity to sive or final original classification au- enable the agency to locate it with a thority and which, in accordance with reasonable amount of effort. After re- the systematic review guidelines devel- view, the information or any reason- oped under paragraph (b) of this sec- able segregable portion thereof that no tion, is to be kept protected, shall be longer requires protection shall be de- listed by category by the responsible classified and released unless with- custodian and referred to the Chair- holding is otherwise warranted under person, NASA Information Security applicable law. Program Committee. This listing shall: (b) Presidential papers. (1) Information (A) Identify the information or mate- originated by a President, the White rial involved. House Staff, by committees, commis- (B) Recommend classification beyond sions, or boards appointed by the Presi- 30 years to a specific event scheduled dent, or others specifically providing to happen or a specific period of time advice and counsel to a President or or, the alternative, recommend: DE- acting on behalf of a President is ex- CLASSIFY ON: Originating Agency’s empted from the provisions of Determination Required or ‘‘OADR.’’ § 1203.604(a). (iii) The Administrator shall consider (2) The Archivist of the United States and determine which category shall be shall have the authority to review, kept classified and the dates or event downgrade and declassify information for declassification. Whenever a spe- under the control of the Administrator cific time or future event for declas- of General Services Administration or sification cannot be predetermined, the the Archivist pursuant to sections 2107, following notation will be applied: DE- 2107 note, or 2203 of Title 44, U.S. Code. CLASSIFY ON: Originating Agency’s Review procedures developed by the Determination Required or ‘‘OADR.’’ Archivist shall provide for consultation
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with NASA in matters of primary sub- (1) NASA installation action upon ject interest to NASA. the initial request shall be completed (c) Submission of requests for review. within 60 days. Requests for mandatory review of clas- (2) Receipt of the request shall be ac- sified information shall be submitted knowledged promptly. The NASA in- in accordance with the following: stallation shall determine whether, (1) Requests originating within under the declassification provisions of NASA shall, in all cases, be submitted this part 1203, the requested informa- directly to the NASA installation tion may be declassified and, if so, which originated the information. shall make such information available (2) For most expeditious action, re- to the requestor, unless withholding is quests from other Governmental agen- otherwise warranted under applicable cies or from members of the public law. If the information may not be re- should be submitted directly to NASA leased in whole or in part, the re- installations which originated the ma- questor shall be given a brief state- terial, or, if the originating component ment of the reasons for denial, a notice is not known, the requestor may sub- of the right to appeal the determina- mit the request to: tion to the Chairperson, NASA Infor- (i) The Chairperson, NASA Informa- mation Security Program Committee, tion Security Program Committee; or National Aeronautics and Space Ad- the head of the NASA organization ministration, Washington, DC 20546, most concerned with the subject mat- and a notice that such an appeal must ter of the material requested; or be filed within 60 days in order to be (ii) The office designated to receive considered. requests for records specifically citing (3) All appeals of denials of requests the Freedom of Information Act pursu- for declassification shall be acted upon ant to part 1206 of this chapter. and determined finally within 30 days (d) Requirement for processing. (1) Re- after receipt and the requestor shall be quests which are submitted under the advised that the appeal determination Freedom of Information Act shall be is final. If continued classification is processed in accordance with part 1206 of this chapter. required under the provisions of this part 1203, the requestor shall be noti- (2) Other requests for declassification fied of the reasons thereof. review and release of information shall be processed in accordance with the (4) The declassification and release of provisions of this section, subject to foreign government information that is the following conditions: subjected to mandatory review under (i) The request is in writing and rea- this section shall be determined only in sonably describes the information accordance with § 1203.703. sought with sufficient particularity to (5) When a NASA installation re- enable the installation to identify it. ceives any request for declassification (ii) The requestor shall be asked to of information in documents in its cus- correct a request that does not comply tody that was classified by another with paragraph (d)(2)(i) of this section, NASA installation or Government to provide additional information or to agency, it shall refer copies of the re- narrow the scope of the request and quest and the requested documents to shall be notified that no action will be the originating installation or agency taken until the requestor complies. for processing, and may, after con- (iii) If the request requires the ren- sultation with the originating installa- dering of services for which fees may tion or agency, inform the requester of not be charged under part 1206, but the referral. In cases in which the orig- may be charged under 31 U.S.C. 483a inating NASA installation determines (1976), the rates prescribed in § 1206.700 in writing that a response under shall be used, if appropriate. § 1203.604(f) is indicated, such cases will (e) Processing of requests. Requests be promptly forwarded to the Chair- that meet the requirements of para- person, NASA Information Security graph (d)(2) of this section will be proc- Program Committee, for final resolu- essed as follows: tion and appropriate response.
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(f) Neutral response. In response to a mination shall be indicated on each request for information under the Free- document by appropriate markings. dom of Information Act, the Privacy (ii) Classified information transferred Act of 1974, or the mandatory review to the General Services Administration provisions of ‘‘the Order,’’ NASA shall for accession into the Archives of the refuse to confirm or deny the existence United States shall be downgraded or or non-existence of requested informa- declassified by the Archivist of the tion whenever the fact of its existence United States in accordance with ‘‘the or non-existence is itself classifiable Order,’’ the directives of the Informa- under ‘‘the Order.’’ tion Security Oversight Office, GSA, (g) Declassification of transferred docu- and NASA guidelines. ments or material—(1) Material officially (h) Downgrading and declassification transferred. In the case of classified in- actions—(1) Notification of changes in formation or material transferred by or classification or declassification. When pursuant to statute or Executive Order classified material has been marked to NASA in conjunction with a transfer with specific dates or events for down- of functions (not merely for storage grading or declassification, it is not purposes) for NASA’s use and as part of necessary to issue notices of such ac- its official files or property, as distin- tions to any holders. However, when guished from transfers merely for pur- such actions are taken earlier than poses of storage, NASA shall be deemed originally scheduled, or the duration of to be the original classifying authority classification is shortened, the author- over such material for purposes of ity making such changes shall, to the downgrading and declassification. extent practicable, ensure prompt noti- (2) Material not officially transferred. fication to all addressees to whom the When any NASA installation has in its information or material was originally possession classified information or transmitted. The notification shall material originated by an agency specify the marking action to be taken, which has since ceased to exist and the authority therefor, and the effec- that information has not been offi- tive date. Upon receipt of notification, cially transferred to another depart- recipients shall effect the proper ment or agency, or when it is impos- changes and shall notify addressees to sible for the possessing NASA installa- whom they have transmitted the clas- tion to identify the originating agency, sified information or material. and a review of the material indicates (2) Posted notice. If prompt remarking that it should be downgraded or declas- of large quantities would be unduly sified, the possessing NASA installa- burdensome, the custodian may attach tion shall be deemed to be the origi- declassification, downgrading, or up- nating agency for the purpose of de- grading notices to the storage unit in classifying or downgrading such mate- lieu of the remarking action otherwise rial. If it appears probable that another required. Each notice shall indicate the agency or another NASA organization change, the authority for the action, may have a substantial interest in the date of the action, and the storage whether the classification of any par- units to which it applies. Items with- ticular information should be main- drawn from such storage units shall be tained, the possessing NASA installa- promptly remarked. However, when in- tion shall not exercise the power con- formation subject to a posted down- ferred upon it by this paragraph, until grading or declassification notice is after consultation with any other agen- withdrawn from one storage unit solely cy or NASA organization having an in- for transfer to another, or a storage terest in the subject matter. unit containing such information is (3) Transfer for storage or retirement. transferred from one place to another, (i) Insofar as practicable, classified the transfer may be made without re- documents shall be reviewed to deter- marking if the notice is attached to or mine whether or not they can be down- remains with each shipment. graded or declassified prior to being (i) Foreign Relations Series. In order to forwarded to records centers or to the permit the State Department editors of National Archives for storage. Any Foreign Relations of the United States to downgrading or declassification deter- meet their mandated goal of publishing
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20 years after the event, NASA shall tity but was provided to NASA with assist these editors by facilitating ac- the expressed or implied obligation cess to appropriate classified materials that it be held in confidence must be in its custody and by expediting declas- classified. ‘‘The Order’’ states that un- sification review of items from its files authorized disclosure of foreign gov- selected for publication. ernment information, the identity of a (ii)[Reserved] confidential foreign source, or intel- ligence sources or methods is presumed [44 FR 34913, June 18, 1979, as amended at 45 FR 3888, Jan. 21, 1980; 48 FR 5892, Feb. 9, 1983; to cause damage to the national secu- 53 FR 41318, Oct. 21, 1988] rity. Therefore, such foreign govern- ment information shall be classified at Subpart G—Foreign Government least Confidential. However, at the Information time of classification, judicious consid- eration shall be given to the sensitivity § 1203.700 Identification. of the subject matter and the impact of its unauthorized disclosure upon both In order to qualify as foreign govern- the United States and the originating ment information, information must foreign government or organization of fall into one of the two following cat- governments in order to determine the egories: most appropriate level of classifica- (a) Information provided to the tion. Levels above Confidential must United States by a foreign government be assigned by an original classifica- or international organization of gov- tion authority. ernments, such as the North Atlantic Treaty Organizatiuon (NATO), where [44 FR 34913, June 18, 1979, as amended at 48 the United States has undertaken an FR 5892, Feb. 9, 1983] obligation, expressed or implied, to keep the information in confidence. § 1203.702 Duration of classification. The information is considered to have Unless the guidelines for the system- been provided in confidence if it is atic review of 30-year old foreign gov- marked in a manner indicating it is to ernment information developed pursu- be treated in confidence or if the cir- ant to § 1203.603(b) prescribe dates or cumstances of the delivery indicate events for declassification: that the information be kept in con- (a) Foreign government information fidence. shall not be assigned a date or event (b) Information requiring confiden- for declassification unless such is spec- tiality produced by the United States ified or agreed to by the foreign entity. pursuant to a written, joint arrange- (b) Foreign government information ment with a foreign government or classified after December 1, 1978, shall international organization of govern- be annotated: DECLASSIFY ON: Origi- ments. A written, joint arrangement nating Agency’s Determination Re- may be evidenced by an exchange of quired or ‘‘OADR.’’ letters, a memorandum of under- standing, or other written record of the [48 FR 5893, Feb. 9, 1983] joint arrangement. § 1203.703 Declassification. § 1203.701 Classification. (a) Information classified in accord- (a) Foreign government information ance with § 1203.400 shall not be declas- that is classified by a foreign entity sified automatically as a result of any shall either retain its original classi- unofficial publication or inadvertent or fication designation or be marked with unauthorized disclosure in the United a United States classification designa- States or abroad of identical or similar tion that will ensure a degree of pro- information. tection equivalent to that required by (b) Following consultation with the the entity that furnished the informa- Archivist of the United States and tion. Original classification authority where appropriate, with the foreign is not required for this purpose. government or international organiza- (b) Foreign government information tion concerned and with the assistance that was not classified by a foreign en- of the Department of State, NASA will
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issue guidelines for the systematic re- Subpart H—Delegation of Author- view of 30-year old foreign government ity to Make Determinations in information that will apply to foreign Original Classification Matters government information of primary concern to NASA. These guidelines are SOURCE: 62 FR 54380, Oct. 20, 1997, unless authorized for use by the Archivist of otherwise noted. the United States and, with the ap- proval of NASA, by an agency having § 1203.800 Delegations. custody of such information. The (a) The NASA officials listed in para- Chairperson, NASA Information Secu- graph (b) (1) and (2) of this section are rity Program Committee, will initiate authorized to make, modify, or elimi- administrative functions necessary to nate security classification assign- effect review of these guidelines at ments to information under their juris- least once every 5 years and submit diction for which NASA has original recommendations to the Administrator classification authority. Such actions based on these reviews. If, after apply- shall be in accordance with currently ing the guidelines to 30-year old foreign applicable criteria, guidelines, laws, government information, a determina- and regulations, and they shall be sub- tion is made by the reviewer that clas- ject to any contrary determination sification is necessary, a date for de- that has been made by the Senior classification or DECLASSIFY ON: Agency Official for Classified National Originating Agency’s Determination Security Information, or by any other Required or ‘‘OADR’’ shall be shown on NASA official authorized to make such the face of the document. a determination. The Director, Secu- (c) Requests for mandatory review rity Management Office, is designated to act as the Senior Agency Official for for declassification of foreign govern- Classified National Security Informa- ment information shall be processed tion. The NASA officials listed in para- and acted upon in accordance with the graph (b)(3) of the section are author- provisions of § 1203.603 except that for- ized to declassify top Secret security eign government information will be classification assignments over 25 declassified only in accordance with years old to information under their the guidelines developed for that pur- jurisdiction for which NASA has origi- pose under § 1203.702 and after consulta- nal classification authority. The NASA tion with other Government agencies officials listed in paragraphs (b)(4) of with subject matter interest as nec- this section are authorized to declas- essary. In those cases where these sify Secret and Confidential security guidelines cannot be applied to the for- classification assignments to informa- eign government information re- tion under their jurisdiction for which quested, the foreign originator nor- NASA has original classification au- mally should be consulted, through ap- thority. propriate channels, prior to final ac- (b) Designated officials—(1) TOP SE- tion on the request. However, when the CRET Classification Authority. (i) Ad- responsible NASA installation knows ministrator. the foreign originator’s view toward (ii) Deputy Administrator. declassification or continued classifica- (iii) Associate Deputy Administrator. tion of the types of information re- (iv) Associate Deputy Administrator quested, consultation with the foreign (Technical). originator is not necessary. (v) Senior Agency Official for Classi- (d) Requests for mandatory review fied National Security Information. for declassification of foreign govern- (2) SECRET and CONFIDENTIAL Clas- ment information which NASA has not sification Authority. Officials listed in paragraph (b)(1) of this section. received or classified shall be referred (3) Declassification Authority, Top Se- to the Government agency having a cret Assignments over 25 years Old. (i) primary interest. The requestor shall Agency Security Program Manager, be advised of the referral. NASA Headquarters. [44 FR 34913, June 18, 1979, as amended at 48 (ii) Such other officials as may be FR 5893, Feb. 9, 1983] delegated declassification authority, in
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writing, by the Senior Agency Official Subpart I—NASA Information for Classified National Security Infor- Security Program Committee mation. (4) Declassification Authority, Secret and Confidential. (i) Security Adminis- SOURCE: 54 FR 6881, Feb. 15, 1989, unless otherwise noted. trative Team Leader, Headquarters NASA. § 1203.900 Establishment. (ii) Such other officials as may be Pursuant to Executive Order 12958, delegated declassification authority, in ‘‘National Security Information,’’ and writing, by the Senior Agency Official the National Aeronautics and Space for Classified National Security Infor- Act of 1958, as amended, there is estab- mation. lished a NASA Information Security (c) Written requests for original clas- Program Committee (hereinafter re- sification authority or declassification ferred to as the Committee) as part of authority shall be forwarded to the the permanent administrative struc- Senior Agency Official for Classified ture of NASA. The Director, NASA Se- National Security Information, with curity Management Office, is des- appropriate justification appended ignated to act as the Chairperson of thereto. (d) The Senior Agency Official for the Committee. The Senior Security Classified National Security Informa- Specialist, NASA Security Manage- tion shall maintain a list of all delega- ment Office, is designated to act as the tions of original classification of de- Committee Executive Secretary. classification authority by name or [64 FR 72535, Dec. 28, 1999] title of the position held. (e) The Senior Agency Official for § 1203.901 Responsibilities. Classified National Security Informa- (a) The Chairperson reports to the tion shall conduct a periodic review of Administrator concerning the manage- delegation lists to ensure that the offi- ment and direction of the NASA Infor- cials so designated have demonstrated mation Security Program as provided a continuing need to exercise such au- for in subpart B of this part. In this thority. connection, the Chairperson is sup- (f) Original classification authority ported and advised by the Committee. shall not be delegated to persons who (b) The Committee shall act on all only reproduce, extract, or summarize appeals from denials of declassification classified information, or who only requests and on all suggestions and apply classification markings derived complaints with respect to administra- from source material or as directed by tion of the NASA Information Security a classification guide. Program as provided for in subpart B of this part. § 1203.801 Redelegation. (c) The Executive Secretary of the Redelegation of TOP SECRET, SE- Committee shall maintain all records CRET, or CONFIDENTIAL original produced by the Committee, its sub- classification authority or declassifica- committees, and its ad hoc panels. tion authority is not authorized. (d) The NASA Security Office, NASA Headquarters, will provide staff assist- § 1203.802 Reporting. ance, and investigative and support The officials to whom original classi- services for the Committee. fication authority has been delegated under this section shall ensure that § 1203.902 Membership. feedback is provided to the Senior The Committee will consist of the Agency Official for National Security Chairperson and Executive Secretary. Information. The Senior Agency Offi- In addition, each of the following cial for National Security Information NASA officials will nominate one per- shall keep the Administrator currently son to Committee membership: informed of all significant actions, (a) Associate Administrator for: problems, or other matters of sub- (1) Aero-Space Technology. stance related to the exercise of the au- (2) Space Science. thority delegated hereunder. (3) Space Flight.
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(4) External Relations. (2) The responsibilities and proce- (5) Life and Microgravity Sciences dures in connection therewith, and and Applications. (3) The penalties that may be en- (b) Associate Deputy Administrator. forced through court actions against (c) General Counsel. unauthorized persons entering security Other members may be designated areas. upon specific request of the Chair- person. § 1203a.101 Definitions. For the purpose of this part, the fol- [54 FR 6881, Feb. 15, 1989, as amended by 64 FR 72535, Dec. 28, 1999] lowing definitions apply: (a) Security area. A physically defined § 1203.903 Ad hoc committees. area, established for the protection or security of facilities, property, or The Chairperson is authorized to es- classfied information and material in tablish such ad hoc panels or sub- the possession or custody of NASA or a committees as may be necessary in the NASA contractor located at a NASA conduct of the Committee’s work. installation or component installation, § 1203.904 Meetings. entry to which is subject to security measures, procedures, or controls. Se- (a) Meetings will be held at the call curity areas which may be established of the Chairperson. are: (b) Records produced by the Com- (1) Restricted area. An area wherein mittee and the minutes of each meet- security measures are applied pri- ing will be maintained by the Execu- marily for the safeguarding or the ad- tive Secretary. ministrative control of property or to protect operations and functions which PART 1203a—NASA SECURITY are vital or essential to the accom- AREAS plishment of the mission assigned to a NASA installation or component in- Sec. stallation. 1203a.100 Purpose and scope. (2) Limited area. An area wherein se- 1203a.101 Definitions. curity measures are applied primarily 1203a.102 Establishment, maintenance, and for the safeguarding of classified infor- revocation of security areas. mation and material or unclassified 1203a.103 Access to security areas. property warranting special protection 1203a.104 Violation of security areas. 1203a.105 Implementation by field and com- and in which the uncontrolled move- ponent installations. ment of visitors would permit access to such classified information and mate- AUTHORITY: 18 U.S.C. 799. rial or property, but within which area SOURCE: 38 FR 8056, Mar. 28, 1973, unless such access may be prevented by appro- otherwise noted. priate visitor escort and other internal restrictions and controls. § 1203a.100 Purpose and scope. (3) Closed area. An area wherein secu- (a) To insure the uninterrupted and rity measures are applied primarily for successful accomplishment of the the purpose of safeguarding classified NASA mission, certain designated se- information and material; entry to the curity areas may be established and area being equivalent, for all practical maintained by NASA installations and purposes, to access to such classified component installations in order to information and material. provide appropriate and adequate pro- (b) Temporary security area. A des- tection for facilities, property, or clas- ignated interim security area, the need sified information and material in the for which will not exceed 30 days from possession or custody of NASA or date of establishment. A temporary se- NASA contractors located at NASA in- curity area may also be established on stallations and component installa- an interim basis, pending approval of tions. its establishment as a permanent secu- (b) This part 1203a sets forth: rity area. (1) The designation and maintenance (c) Permanent security area. A des- of security areas, ignated security area, the need for
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which will exceed 30 days from date of the perimeter of the designated area as establishment. to provide reasonable notice to persons about to enter thereon. The Director of § 1203a.102 Establishment, mainte- Security, NASA Headquarters, upon re- nance, and revocation of security quest, may approve the use of signs areas. that are now being used pursuant to a (a) Establishment. (1) Directors of State statute. NASA field and component installa- (2) Regulate authorized personnel tions, and the Director of Headquarters entry and movement within the area. Administration for NASA Head- (3) Deny entry of unauthorized per- quarters (including component instal- sons or property. lations) may establish, maintain, and (4) Prevent unauthorized removal of protect such areas as restricted, lim- classified information and material or ited, or closed depending upon the op- property from a NASA installation or portunity available to unauthorized component installation. persons either to: (c) Revocation. Once the need for an (i) Obtain knowledge of classified in- established permanent security area no formation, longer exists, the area will be returned (ii) Damage or remove property, or to immediately to normal controls and (iii) Disrupt Government operations. procedures or as soon as practicable. (2) The concurrence of the Director of The Director of Security will be in- Security NASA Headquarters, will be formed of permanent security area rev- obtained prior to the establishment of ocations within 15 workdays. a permanent security area. (3)(i) As a minimum, the following § 1203a.103 Access to security areas. information will be submitted to the (a) Only those NASA employees, Director of Security 15 workdays prior NASA contractor employees, and visi- to establishment of each permanent se- tors who have a need for such access curity area: and who meet the following criteria (a) The name and specific location of may enter a security area: the NASA field or component installa- (1) Restricted area. Be authorized to tion, facility, or property to be pro- enter the area alone or be escorted by tected. or under the supervision of a NASA (b) A statement that the property is employee or NASA contractor em- owned by, or leased to, the United ployee who is authorized to enter the States for use by NASA or is the prop- area. erty of a NASA contractor located on a (2) Limited area. Possess a security NASA installation or component in- clearance equal to the level of the clas- stallation. sified information or material involved (c) Designation desired: i.e., re- or be the recipient of a satisfactorily stricted, limited, or closed. completed national agency check if (d) Specific purpose(s) for the estab- classified material or information is lishment of a security area. not involved. Personnel who do not (ii) For those areas currently des- meet the requirements for unescorted ignated by the installation as ‘‘perma- access may be escorted by a NASA em- nent security areas,’’ the information ployee or NASA contractor employee set forth in paragraph (d)(3)(i) of this who meets the access requirements and section will be furnished to the Secu- has been authorized to enter the area. rity Division, NASA Headquarters, (3) Closed area. Possess a security within 30 workdays of the effective clearance equal to the classified infor- date of this part. mation or material involved. (b) Maintenance. The security meas- (b) The directors of NASA field and ures which may be utilized to protect component installations, and the Di- such areas will be determined by the rector of Headquarters Administration requirements of individual situations. for NASA Headquarters (including As a minimum such security measures component installations) may rescind will: previously granted authorizations to (1) Provide for the posting of signs at enter a security area when an individ- entrances and at such intervals along ual’s continued presence therein is no
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longer required, threatens the security 1203b.107 Use of firearms. of the property therein, or is disruptive 1203b.108 Management oversight. of Government operations. 1203b.109 Disclaimer. AUTHORITY: Sec. 304(f) of the National Aer- § 1203a.104 Violation of security areas. onautics and Space Act of 1958 (42 U.S.C. (a) Removal of unauthorized persons. 2456a). The directors of NASA field and com- SOURCE: 57 FR 4926, Feb. 11, 1992, unless ponent installations (or their des- otherwise noted. ignees) and the Director of Head- quarters Administration for NASA § 1203b.100 Purpose. Headquarters (including component in- This regulation implements section stallations) or his designee may order 304(f) of the National Aeronautics and the removal or eviction of any person Space Act of 1958, as amended (42 whose presence in a designated secu- U.S.C. 2456a), by establishing guide- rity area is in violation of the provi- lines for the exercise of arrest author- sions of this part or any regulation or ity and for the exercise of physical order established pursuant to the pro- force, including deadly force, in con- visions of this part. junction with such arrest authority. (b) Criminal penalties for violation. Whoever willfully violates, attempts to § 1203b.101 Scope. violate, or conspires to violate any reg- ulation or order establishing require- This part applies to only those NASA ments or procedures for authorized and NASA contractor security force entry into an area designated re- personnel who are authorized to exer- stricted, limited, or closed pursuant to cise arrest authority in accordance the provisions of this part may be sub- with 42 U.S.C. 2456a and this regula- ject to prosecution under 18 U.S.C. 799 tion. which provides penalties for a fine of not more than $5,000 or imprisonment § 1203b.102 Definitions. for not more than 1 year, or both. Accredited Course of Training. A course of instruction offered by the § 1203a.105 Implementation by field Federal Law Enforcement Training and component installations. Center, or an equivalent course of in- If a Director of a NASA field or com- struction offered by another Federal ponent installation finds it necessary agency. See § 1203b.103(a)(1). to issue supplemental instructions to Arrest. An act, resulting in the re- any provision of this part, the instruc- striction of a person’s movement, other tions must first be published in the than a brief detention for purposes of FEDERAL REGISTER. Therefore, the pro- questioning about a person’s identity posed supplemental instructions will be and requesting identification, accom- sent to the Security Division (Code plished by means of force or show of DHZ), NASA Headquarters, in accord- authority under circumstances that ance with NASA Management Instruc- would lead a reasonable person to be- tion 1410.10 for processing. lieve that he/she was not free to leave the presence of the officer. PART 1203b—SECURITY PRO- Contractor. NASA contractors and GRAMS; ARREST AUTHORITY AND subcontractors at all tiers. USE OF FORCE BY NASA SECU- RITY FORCE PERSONNEL § 1203b.103 Arrest authority. (a) NASA security force personnel Sec. may exercise arrest authority, pro- 1203b.100 Purpose. vided that: 1203b.101 Scope. (1) They graduate from an accredited 1203b.102 Definitions. training course (see § 1203b.102(a)); and 1203b.103 Arrest authority. (2) They have been certified in writ- 1203b.104 Exercise of arrest authority—gen- eral guidelines. ing by the Associate Administrator for 1203b.105 Use of non-deadly physical force Management Systems and Facilities, when making an arrest. or designee, as specifically authorized 1203b.106 Use of deadly force. to exercise arrest authority.
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(b) The authority of NASA security (d) Custody of the person arrested force personnel to make a warrantless should be transferred to other Federal arrest is subject to the following condi- law enforcement personnel (e.g., United tions: States Marshals or FBI agents) or to (1) The arresting officer must be local law enforcement agency per- guarding and protecting property sonnel, as appropriate, as soon as pos- owned or leased by, or under the con- sible, in order to ensure that the per- trol of, the United States under the ad- son is brought before a magistrate ministration and control of NASA or without unnecessary delay. one of its contractors or subcontrac- tors, at facilities owned by or con- § 1203b.105 Use of non-deadly physical tracted to NASA; and force when making an arrest. (2) The person to be arrested has When a security force officer has the committed in the arresting officer’s right to make an arrest, as discussed in presence any offense against the § 1203b.103, the officer may use only United States; or that non-deadly physical force which is (3) The arresting officer has reason- reasonable and necessary to apprehend able grounds to believe that the person and arrest the offender; to prevent the to be arrested has committed or is escape of the offender; or to defend committing any felony cognizable himself/herself or a third person from under the laws of the United States. what the security force officer reason- (c) The Office of the General Counsel, ably believes to be the use or threat of NASA Headquarters, or the Installa- imminent use of non-deadly physical tion Chief Counsel’s Office, as appro- force by the offender. Verbal abuse priate, shall provide guidance as to the alone by the offender cannot be the applicability of these regulations. basis under any circumstances for use of non-deadly physical force by a secu- § 1203b.104 Exercise of arrest author- rity force officer. ity—general guidelines. (a) In making an arrest, the security § 1203b.106 Use of deadly force. force officer should announce his/her Deadly force shall be used only in authority and that the person is under those circumstances where the security arrest prior to taking the person into force officer reasonably believes that custody. If the circumstances are such either he/she or another person is in that making such announcements imminent danger of death or serious would be useless or dangerous to the bodily harm. security force officer or others, the se- curity force officer may dispense with § 1203b.107 Use of firearms. these announcements. (b) The security force officer at the (a) If it becomes necessary to use a time and place of arrest may search firearm in any of the circumstances de- the arrested person and the area imme- scribed in § 1203b.106, NASA security diately surrounding the arrested per- force personnel shall comply with the son for weapons and criminal evidence. following precautions whenever pos- This is to protect the arresting officer sible: and to prevent the destruction of evi- (1) Give an order to halt before firing. dence. (2) Do not fire if shots are likely to (c) After the arrest is effected, the ar- harm innocent bystanders. rested person shall be advised of his/her (3) Shoot to stop. constitutional right against self-in- (b) Warning shots are not authorized. crimination. If the circumstances are (c) In the event that a security force such that making such advisement is officer discharges a weapon while in a dangerous to the officer or others, this duty status: requirement may be postponed until (1) The incident shall be reported to the immediate danger has passed. How- the Installation Chief of Security who, ever, no interrogation of the individual in turn, will report it to the NASA Se- may occur until he/she has been prop- curity Office as expeditiously as pos- erly advised of his/her right against sible, with as many details supplied as self-incrimination. are available.
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(2) The officer shall be promptly sus- (c) The Associate Administrator for pended from duty with pay or reas- Management Systems and Facilities, signed to other duties not involving or designee, will ensure that all per- the use of a firearm, as the Installation sons who are authorized to exercise ar- Director or the Associate Adminis- rest authority will, before performing trator for Management Systems and these duties: Facilities deems appropriate, pending (1) Receive instructions on regula- investigation of the incident. tions regarding the use of force, includ- (3) The cognizant Installation Direc- ing deadly force; and tor, or for incidents occurring at NASA Headquarters, the Associate Adminis- (2) Demonstrate knowledge and skill trator for Management Systems and in the use of unarmed defense tech- Facilities, shall appoint an inves- niques and their assigned firearms. tigating officer to conduct a thorough (d) The Associate Administrator for investigation of the incident. Addi- Management Systems and Facilities, tional personnel may also be ap- or designee, will also: pointed, as needed to assist the inves- (1) Provide periodic refresher train- tigating officer. Upon conclusion of the ing to ensure continued proficiency and investigation, the investigating officer updated knowledge as to the use of un- shall submit a written report of find- armed defense techniques; ings and recommendations to the ap- (2) Require security force officers ex- propriate Installation Director or the ercising arrest authority to requalify Associate Administrator for Manage- semiannually with their assigned fire- ment Systems and Facilities. arms; and (4) Upon conclusion of the investiga- tion, the Installation Director or the (3) Require periodic refresher train- Associate Administrator for Manage- ing to ensure continued familiarity ment Systems and Facilities, with the with regulations. advice of Counsel, shall determine the (e) The Associate Administrator for disposition appropriate to the case. Management Systems and Facilities (d) Firearms will be periodically in- and Installation Directors shall issue spected and kept in good working order local management instructions, sub- by a qualified gunsmith. Ammunition, ject to prior NASA Headquarters ap- holsters, and related equipment will be proval, which will supplement this reg- periodically inspected for deterioration ulation for Headquarters/Installation- and kept in good working order. Fire- specific concerns. arms and ammunition will be securely stored separately in locked containers. [57 FR 4926, Feb. 11, 1992, as amended at 58 Firearms will not be stored in a loaded FR 5263, Jan. 21, 1993] condition. Neither firearms nor ammu- § 1203b.109 Disclaimer. nition will be stored in the same con- tainers as money, drugs, precious ma- These regulations are set forth solely terials, or classified information. for the purpose of internal National NASA Headquarters and each Installa- Aeronautics and Space Administration tion shall adopt procedures for the guidance. They are not intended to, do maintenance of records with respect to not, and may not be relied upon to cre- the issuance of firearms and ammuni- ate any rights, substantive or proce- tion. dural, enforceable at law by any party [57 FR 4926, Feb. 11, 1992, as amended at 58 in any matter, civil or criminal, and FR 5263, Jan. 21, 1993] they do not place any limitations on otherwise lawful activities of security § 1203b.108 Management oversight. force personnel or the National Aero- (a) The Administrator shall establish nautics and Space Administration. a committee to exercise management oversight over the implementation of PART 1204—ADMINISTRATIVE arrest authority. (b) The Administrator shall establish AUTHORITY AND POLICY a reporting requirement for Head- quarters and Field Installations. Subparts 1–3 [Reserved]
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Subpart 4—Small Business Policy Subpart 15—Intergovernmental Review of National Aeronautics and Space Ad- Sec. 1204.400 Scope of subpart. ministration Programs and Activities 1204.401 Policy. 1204.1501 Purpose. 1204.402 Responsibilities. 1204.1502 Definitions. 1204.403 General requirements. 1204.1503 Programs and activities subject to Subpart 5—Delegations and Designations these regulations. 1204.1504 [Reserved] 1204.500 Scope of subpart. 1204.1505 Federal interagency coordination. 1204.501 Delegation of authority—to take 1204.1506 Procedures for selecting programs actions in real estate and related mat- and activities under these regulations. ters. 1204.1507 Communicating with State and 1204.502 [Reserved] local officials concerning the Agency’s 1204.503 Delegation of authority to grant programs and activities. easements. 1204.1508 Time limitations for receiving 1204.504 Delegation of authority to grant comments on proposed direct Federal de- leaseholds, permits, and licenses in real velopment. property. 1204.1509 Receiving and responding to com- 1204.505 Delegation of authority to execute ments. certificates of full faith and credit. 1204.1510 Efforts to accommodate intergov- 1204.506–1204.507 [Reserved] ernmental concerns. 1204.508 Delegation of authority of certain 1204.1511 Coordination in interstate situa- civil rights functions to Department of tions. Health, Education, and Welfare. 1204.1512 [Reserved] 1204.509 Delegation of authority to take ac- tion regarding ‘‘liquidated damage’’ as- 1204.1513 Waivers of provisions of these reg- sessments under the Contract Work ulations. Hours and Safety Standards Act, and as- APPENDIX A TO PART 1204—ITEMS TO COVER IN sociated labor statutes. MEMORDANDA OF AGREEMENT
Subparts 6–9 [Reserved] Subparts 1–3 [Reserved] Subpart 10—Inspection of Persons and Per- sonal Effects at NASA Installations or Subpart 4—Small Business Policy on NASA Property; Trespass or Unau- thorized Introduction of Weapons or AUTHORITY: 42 U.S.C. 2473(c)(5); 42 U.S.C. Dangerous Materials 2473b; Public Law 101–507, the VA/HUD/Indep. Agencies Appropriation Act for FY 1991, at 1204.1000 Scope of subpart. 104 Stat. 1380 (Nov. 5, 1990); and 15 U.S.C. 631– 1204.1001 Policy. 650. 1204.1002 Responsibility. 1204.1003 Procedures. SOURCE: 58 FR 43554, Aug. 17, 1993, unless 1204.1004 Trespass. otherwise noted. 1204.1005 Unauthorized introduction of fire- arms or weapons, explosives, or other § 1204.400 Scope of subpart. dangerous materials. 1204.1006 Violations. This subpart establishes NASA’s small business policy and outlines the Subparts 11–13 [Reserved] delegation of authority in imple- menting this policy as required by Fed- Subpart 14—Use of NASA Airfield Facilities eral law. by Aircraft Not Operated for the Ben- efit of the Federal Government § 1204.401 Policy. 1204.1400 Scope. (a) It is the policy of NASA to enable 1204.1401 Definitions. small business concerns (including 1204.1402 Policy. small women-owned businesses), His- 1204.1403 Available airport facilities. torically Black Colleges and Univer- 1204.1404 Requests for use of NASA airfield sities, and other minority educational facilities. institutions the opportunity to partici- 1204.1405 Approving authority. 1204.1406 Procedures in the event of a de- pate equitably and proportionately in clared in-flight emergency. its total purchases and contracts con- 1204.1407 Procedure in the event of an unau- sistent with NASA’s needs to execute thorized use. its missions.
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(b) In carrying out the NASA pro- ness Administration (SBA) Procure- curement program, the primary consid- ment Center Representative (PCR) or eration shall be that of securing con- the appropriate Small Business Admin- tract performance, including obtaining istration Regional Office in matters re- deliveries of required items or services lating to Field Installation procure- at the time, in the quantity and of the ment activities. A Small Business quality prescribed. In the area of re- Technical Advisor shall be assigned to search and development contracts, the each contracting activity within the general policy of NASA is to award agency to which the SBA has assigned such contracts to those organizations a PCR. determined by responsible personnel to have a high degree of competence in § 1204.403 General requirements. the specific branch of science or tech- (a) All proposed procurement trans- nology required for the successful con- actions in excess of $25,000 shall be ex- duct of the work. It is in the interest of amined by a Small Business Specialist the civilian space program that the prior to issuance of bids or requests for number of firms engaged in research proposals to determine suitability for and development work for NASA be ex- small participation or set-asides, un- panded and that there be an increase in less the transaction has already been the extent of participation in such set-aside for small business by the con- work by competent small and small tracting officer. disadvantaged business firms. (b) The appropriate office of the § 1204.402 Responsibilities. Small Business Administration (as- (a) Office of Small and Disadvantaged signed PCR) shall be informed of pro- Business Utilization (OSDBU). The Asso- posed procurements estimated to ex- ciate Administrator for Small and Dis- ceed $25,000. advantaged Business Utilization, NASA (c) A Bidder’s list shall be main- Headquarters, is responsible for the de- tained at each Field Installation on a velopment, supervision, and coordina- current basis and reviewed to ensure tion of the NASA Small Business Pro- that small business firms are given an gram. The Associate Administrator is equitable opportunity to participate in also responsible for formulating policy those procurements suitable for per- and procedures relating to small busi- formance by such firms. Installations ness, and representing NASA before may use, at their option, the SBA Pro- other Government agencies on matters curement Automated Source System primarily affecting small business. (PASS) in lieu of the separate Center (b) NASA Headquarters and Field In- Bidder’s list, if resources can be con- stallations. The Directors of Field In- served. stallations and the Associate Adminis- (d) NASA Small Business Specialists trator for Procurement at Head- shall acquire descriptive data, bro- quarters will designate a qualified indi- chures, or other information con- vidual as a ‘‘Small Business Spe- cerning small business firms that ap- cialist’’ to provide a central point of pear competent to perform research contact to which small and small dis- and development (R&D) work in fields advantaged business concerns may di- in which NASA is interested and fur- rect inquiries concerning participation nish such information to appropriate in the NASA procurement program, or NASA personnel for consideration of secure assistance in submitting bids or these firms in future R&D procure- proposals and performance of con- ments. The Small Business Specialists tracts. Where the Director of the Field at Headquarters and Field Installations Installation considers that the volume shall assist and consult, as necessary, of procurement at the Installation does with NASA technical personnel in ana- not warrant a full-time Small Business lyzing such information, arranging Specialist, the Director may assign field inspection of facilities, making such duties to qualified procurement appointments for technical personnel personnel on a part-time basis. NASA with representatives of small business Field Installations shall establish and firms, and obtaining from other agen- maintain liaison with the Small Busi- cies appraisals of work performance by
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such firms. When feasible, Small Busi- scribed functions of the National Aero- ness Specialists shall conduct or par- nautics and Space Administration. ticipate in outreach conferences and [30 FR 3378, Mar. 13, 1965] training sessions to inform small busi- nesses of contracting opportunities § 1204.501 Delegation of authority—to with the Agency. take actions in real estate and re- (e) In accordance with Public Law 95– lated matters. 507, NASA will require contractors hav- (a) Delegation of authority. The Asso- ing contracts in excess of $1 million for ciate Administrator for Management the construction of any public facility, Systems and Facilities and the Direc- and in excess of $500,000 for all other tor, Facilities Engineering Division, contracts, and of such nature as to af- are delegated authority, in accordance ford opportunities for subcontracting with applicable laws and regulations, in substantial amounts, to establish and subject to conditions imposed by and conduct small business subcon- immediate superiors, to: (1) Prescribe agency real estate poli- tracting programs. Such programs will cies, procedures, and regulations; be periodically reviewed by NASA (2) Enter into and take other actions Small Business Specialists to evaluate including, but not limited to, the fol- their adequacy. lowing; (f) NASA will encourage competent (i) Acquire (by purchase, lease, con- small business concerns to submit un- demnation, or otherwise) fee and lesser solicited proposals for research and de- interests in real property and, in the velopment work in areas within case of acquisition by condemnation, NASA’s responsibility, which may lead to sign declarations of taking. to contracts for such work. The forma- (ii) Use, with their consent, the fa- tion of contractor pools or joint ven- cilities of Federal and other agencies tures to perform research and develop- with or without reimbursement. ment work will also be encouraged. (iii) Determine entitlement to and (g) NASA Small Business Specialists quantum of, financial compensation will disseminate to small business con- under, and otherwise exercise the au- cerns information concerning inven- thority contained in the Uniform Relo- tions for which NASA holds patents on cation Assistance and Real Property behalf of the United States and under Acquisition Policies Act of 1970, as which it is NASA policy to grant li- amended (42 U.S.C. 4601), and regula- censes. tions in implementation thereof. (h) Small business participation in (iv) Grant easements, leaseholds, li- censes, permits, or other interests NASA procurement shall be accurately (wherever located) controlled by measured, recorded, and publicized. NASA. (i) NASA small business personnel (v) Grant the use of NASA-controlled shall assist small business concerns to real property and approve the acquisi- obtain payments under their contracts, tion and use of nongovernment owned late payment interest penalties, or in- real property for any NASA-related, formation due to such concerns. nonappropriated fund activity purpose with the concurrence of the NASA Subpart 5—Delegations and Comptroller. Designations (vi) Sell and otherwise dispose of real property in accordance with the provi- sions of the Federal Property and Ad- AUTHORITY: 42 U.S.C. 2473. ministrative Services Act of 1949, as § 1204.500 Scope of subpart. amended (40 U.S.C. 471, et seq). (vii) Exercise control over the acqui- This subpart establishes various dele- sition, utilization, and disposal of mov- gations of authority to, and designa- able/relocatable structures including tions of, National Aeronautics and prefabricated buildings, commercial Space Administration officials and packaged accommodations, trailers, other Government officials acting on and other like items used as facility behalf of the agency to carry out pre- substitutes.
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(viii) Request other government this section will not be adverse to the agencies to act as real estate agent for interests of the United States. NASA. (e) Redelegation. (1) The Directors of (ix) Authorize other NASA officials Field Installations with respect to real to take specific implementing action property under their supervision and with regard to any real property trans- management may, subject to the re- action included in the scope of author- strictions in paragraph (f) of this sec- ity delegated in paragraph (a)(2) of this tion, exercise the authority of the Na- section. tional Aeronautics and Space Act of (b) Redelegation. (1) The authority 1958, as amended, and 40 U.S.C. 319 to delegated in paragraph (a)(1) of this 319C to authorize or grant easements section may not be redelegated. in, over, or upon real property of the (2) The authority delegated in para- United States controlled by NASA as graph (a)(2) of this section may be re- will not be adverse to the interests of delegated with power of further redele- the United States. gation. (2) The Directors of Field Installa- (c) Reporting. The officials to whom tions may redelegate this authority to authority is delegated in this section only two senior management officials shall ensure that feedback is provided of the appropriate field installation. to keep the Administrator fully and (f) Restrictions. Except as otherwise currently informed of significant ac- specifically provided, no such easement tions, problems, or other matters of shall be authorized or granted under substance related to the exercise of the the authority stated in paragraph (e) of authority delegated hereunder. this section unless: [51 FR 26862, July 28, 1986, as amended at 56 (1) The appropriate Director of the FR 57592, Nov. 13, 1991] Field Installation determines: (i) That the interest in real property § 1204.502 [Reserved] to be conveyed is not required for a NASA program. § 1204.503 Delegation of authority to grant easements. (ii) That the grantee’s exercise of rights under the easement will not (a) Scope. 40 U.S.C. 319 to 319C author- interfere with NASA operations. izes executive agencies to grant, under (2) Monetary or other benefit, includ- certain conditions, the easements as ing any interest in real property, is re- the head of the agency determines will ceived by the government as consider- not be adverse to the interests of the ation for the granting of the easement. United States and subject to the provi- sions as the head of the agency deems (3) The instrument granting the ease- necessary to protect the interests of ment provides: the United States. (i) For the termination of the ease- (b) Delegation of authority. The Asso- ment, in whole or in part, and without ciate Administrator for Management cost to the government, if there has Systems and Facilities and the Direc- been: tor, Facilities Engineering Division, (A) A failure to comply with any are delegated authority to take actions term or condition of the grant; in connection with the granting of (B) A nonuse of the easement for a easements. consecutive 2-year period for the pur- (c) Definitions. The following defini- pose for which granted; or tions will apply: (C) An abandonment of the easement; (1) State means the States of the or Union, the District of Columbia, the (D) A determination by the Associate Commonwealth of Puerto Rico, and the Administrator for Management Sys- possessions of the United States. tems and Facilities, the Director, Fa- (2) Person includes any corporation, cilities Engineering Division, or the partnership, firm, association, trust, appropriate Director of the Field In- estate, or other entity. stallation that the interests of the na- (d) Determination. It is hereby deter- tional space program, the national de- mined that grants of easements made fense, or the public welfare require the in accordance with the provisions of termination of the easement; and a 30-
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day notice, in writing, to the grantee § 1204.504 Delegation of authority to that the determination has been made. grant leaseholds, permits, and li- (ii) That written notice of the termi- censes in real property. nation shall be given to the grantee, or (a) Delegation of authority. The Na- its successors or assigns, by the Asso- tional Aeronautics and Space Act of ciate Administrator for Management 1958, as amended, authorizes NASA to Systems and Facilities, the Director, grant leaseholds, permits, and licenses Facilities Engineering Division, or the in real property. This authority is dele- appropriate Director of the Field In- gated to the Associate Administrator stallation, and that termination shall for Management Systems and Facili- be effective as of the date of the notice. ties and the Director, Facilities Engi- (iii) For any other reservations, ex- neering Division. ceptions, limitations, benefits, bur- (b) Definition. Real Property means land, buildings, other structures and dens, terms, or conditions necessary to improvements, appurtenances, and fix- protect the interests of the United tures located thereon. States. (c) Determination. It is hereby deter- (g) Waivers. If, in connection with a mined that grants of leaseholds, per- proposed granting of an easement, the mits, or licenses made in accordance Director of a Field Installation deter- with the provisions of this section will mines that a waiver from any of the re- not be adverse to the interests of the strictions in paragraph (f) of this sec- United States. tion is appropriate, authority for the (d) Redelegation. (1) The Directors of waiver may be requested from the As- Field Installations with respect to real sociate Administrator for Management property under their supervision and Systems and Facilities or the Director, management may, subject to the re- Facilities Engineering Division. strictions in paragraph (e) of this sec- (h) Services of the Corps of Engineers. tion, grant a leasehold, permit, or li- In exercising the authority herein cense to any person or organization, in- granted, the Directors of Field Instal- cluding other Government agencies, a lations, under the applicable provisions State, or political subdivision or agen- of any cooperative agreement between cy thereof. This authority may not be NASA and the Corps of Engineers (in exercised with respect to real property which is (i) excess within the meaning effect at that time), may: of 40 U.S.C. 472(e), or (ii) proposed for (1) Utilize the services of the Corps of use by a NASA exchange and subject to Engineers, U.S. Army. the provisions of NASA Management (2) Delegate authority to the Corps of Instruction 9050.6, NASA Exchange Ac- Engineers to execute, on behalf of tivities. NASA, grants of easements in real (2) The Directors of Field Installa- property, as authorized in this section, tions may redelegate this authority to provided that the conditions set forth only two senior management officials in paragraphs (f) and (g) of this section of the Field Installation concerned. are complied with. (e) Restrictions. Except as otherwise (i) Distribution of documents. One copy specifically provided, no leasehold, per- of each document granting an ease- mit, or license shall be granted under ment interest under this authority, in- the authority stated in paragraph (d) of cluding instruments executed by the this section unless: Corps of Engineers, will be forwarded (1) The Director of the Field Installa- for filing in the Central Depository for tion concerned determines: Real Property Documents to: National (i) That the interest to be granted is Aeronautics and Space Administration, not required for a NASA program. Facilities Operations and Maintenance (ii) That the grantee’s exercise of rights granted will not interfere with Branch (Code JXG), Facilities Engi- NASA operations. neering Division, Washington, DC (2) Fair value in money is received by 20546. NASA on behalf of the Government as [51 FR 26860, July 28, 1986, as amended at 56 consideration. FR 57592, Nov. 13, 1991] (3) The instrument provides:
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(i) For a term not to exceed 5 years. (h) Distribution of Documents. One (ii) For the termination thereof, in copy of each document granting an in- whole or in part, and without cost to terest in real property, including in- the Government if there has been: struments executed by the Corps of En- (A) A failure to comply with any gineers, will be forwarded for filing in term or condition of the grant; or the Central Depository for Real Prop- (B) A determination by the Associate erty Documents to: National Aero- Administrator for Management Sys- nautics and Space Administrator, Fa- tems and Facilities, the Director, Fa- cilities Operations and Maintenance cilities Engineering Division, or the Branch (Code JXG), Facilities Engi- Director of the Field Installation con- cerned that the interests of the na- neering Division, Washington, DC tional space program, the national de- 20546. fense, or the public welfare require the [51 FR 27528, Aug. 1, 1986, as amended at 56 termination of the interest granted; FR 57592, Nov. 13, 1991] and a 30-day notice, in writing, to the grantee that such determination has § 1204.505 Delegation of authority to been made. execute certificates of full faith and (iii) That written notice of termi- credit. nation shall be given to the grantee, or (a) Scope. This section designates its successors or assigns, by the Asso- NASA officials authorized to certify ciate Administrator for Management NASA documents to be submitted in Systems and Facilities, the Director, evidence in Federal Courts. Facilities Engineering Division, or the Director of the Field Installation con- (b) Delegation of authority. The fol- cerned, and that termination shall be lowing NASA Headquarters officials effective as of the date specified by are delegated authority to execute cer- such notice. tificates of full faith and credit (Office (iv) For any other reservations, ex- of the Administrator section of NASA ceptions, limitations, benefits, bur- Form 955) certifying the signatures and dens, terms, or conditions necessary to authority of employees of the National protect the interests of the United Aeronautics and Space Administration, States. whenever such certification is required (f) Waivers. If, in connection with a to authenticate copies of official proposed grant, the Director of a Field records for possible admission in evi- Installation determines that a waiver dence in judicial proceedings pursuant from any of the restrictions set forth to 28 U.S.C. 1733 or any other statute: in paragraph (e) of this section is ap- (1) General Counsel; propriate, a request may be submitted (2) Deputy General Counsel; to the Associate Administrator for Management Systems and Facilities or (3) [Reserved] the Director, Facilities Engineering (4) Assistant General Counsels. Division. [29 FR 6319, May 14, 1964, as amended at 39 (g) Services of the Corps of Engineers. FR 25229, July 9, 1974; 43 FR 34122, Aug. 3, In exercising the authority herein 1978] granted, the Directors of Field Instal- lations, pursuant to the applicable pro- §§ 1204.506–1204.507 [Reserved] visions of any cooperative agreement between NASA and the Corps of Engi- § 1204.508 Delegation of authority of neers (in effect at the time), may: certain civil rights functions to De- (1) Utilize the services of the Corps of partment of Health, Education, and Engineers, U.S. Army. Welfare. (2) Delegate authority to the Corps of (a) Pursuant to the authority of Engineers to execute, on behalf of § 1250.111(c) of this chapter, the fol- NASA, any grants of interests in real lowing responsibilities of the National property as authorized in this section Aeronautics and Space Administration provided that the conditions set forth and of the responsible NASA official in paragraphs (e) and (f) of this section under Title VI, Civil Rights Act of 1964 are complied with.
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(78 Stat. 252) (42 U.S.C. 2000d), with re- sions applicable to nonconstruction spect to institutions of higher edu- contracts as they are subject to the cation were delegated by the Adminis- Conract Work Hours and Safety Stand- trator, NASA, to the Secretary, De- ards Act, in regards to the assessment partment of Health, Education, and of liquidated damages. Welfare, on March 15, 1966: (b) Redelegation. None authorized ex- (1) Responsibilities with respect to cept by virtue of succession. compliance reports, including receiving (c) Reporting. The official to whom and evaluation thereof under authority is delegated in this regula- § 1250.105(b) of this chapter, and other tion will assure that feedback is pro- actions under § 1250.105 of this chapter. vided to keep the Administrator in- (2) All actions under § 1250.106 of this formed of significant actions, prob- chapter, including periodic compliance lems, or other matters of substance re- reviews, receiving of complaints, inves- lated to the exercise of the authority tigations, determination of recipient’s delegated hereunder. apparent failure to comply, and resolu- [52 FR 35538, Sept. 22, 1987] tion of matters by informal means. (b) NASA specifically has reserved to itself the responsibilities for effec- Subparts 6–9 [Reserved] tuation of compliance under §§ 1250.107, 1250.108, and 1250.109 of this chapter. Subpart 10—Inspection of Persons (c) The responsibilities so delegated and Personal Effects at NASA were and are to be exercised in accord- Installations or on NASA Prop- ance with the ‘‘Plan for Coordinated erty; Trespass or Unauthorized Enforcement Procedures for Higher Introduction of Weapons or Education’’ (dated February 1966), de- Dangerous Materials veloped by interested Government agencies and approved by the Depart- ment of Justice; and redelegation by AUTHORITY: 42 U.S.C. 2455. the Secretary to other officials of the SOURCE: 65 FR 47663, Aug. 3, 2000, unless Department of Health, Education, and otherwise noted. Welfare was authorized. (d) NASA has retained the right to § 1204.1000 Scope of subpart. exercise these responsibilities itself in This subpart establishes NASA policy special cases with the agreement of the and prescribes minimum procedures appropriate official in the Department concerning the inspection of persons of Health, Education, and Welfare. The and property in their possession while Office of Grants and Research Con- entering, or on, or exiting NASA real tracts, NASA Headquarters, has been property or installations (including designated to represent NASA in car- NASA Headquarters, Centers, or Com- rying out the provisions of this delega- ponent Facilities). In addition, it pro- tion. scribes unauthorized entry or the un- authorized introduction of weapons or [32 FR 3883, Mar. 9, 1967] other dangerous instruments or mate- § 1204.509 Delegation of authority to rials at any NASA installation. take action regarding ‘‘liquidated damage’’ assessments under the § 1204.1001 Policy. Contract Work Hours and Safety (a) In the interest of national secu- Standards Act, and associated labor rity, NASA will provide appropriate statutes. and adequate protection or security for (a) Delegation of authority. The Direc- personnel, property, installations (in- tor, Industrial Relations Office, is here- cluding NASA Headquarters, Centers, by delegated the authority to act for and Component Facilities), and infor- the Administrator in all matters where mation in its possession or custody. In the ‘‘Agency Head’’ is authorized to act furtherance of this policy, NASA re- under 29 CFR part 5, labor standards serves the right to conduct an inspec- provisions applicable to contracts cov- tion of any person, including any prop- ering federally financed and assisted erty in the person’s possession or con- construction and labor standards provi- trol, as a condition of admission to,
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continued presence on, or exiting from, corted off the installation, and appro- any NASA installation. priate law enforcement authorities will (b) It is determined that this policy be notified immediately. is intended to comply with the height- (e) If, during an inspection conducted ened security measures for installa- pursuant to this subpart, an individual tions owned or occupied by Federal is in possession of U.S. Government agencies (in this case NASA), to miti- property without proper authorization, gate threats to such installations and that person will be required to relin- to better protect the persons and prop- quish the property to the security rep- erty thereon. resentative pending proper authoriza- tion for the possession of the property § 1204.1002 Responsibility. or its removal from the installation. The NASA Center Directors and the The individual relinquishing the prop- Associate Administrator for Head- erty will be provided with a receipt for quarters Operations are responsible for the property. implementing the provisions of this subpart. In implementing this subpart, § 1204.1004 Trespass. these officials will coordinate their ac- Unauthorized entry upon any NASA tion with appropriate officials of other real property or installation is prohib- affected agencies. ited.
§ 1204.1003 Procedures. § 1204.1005 Unauthorized introduction of firearms or weapons, explosives, (a) All entrances to NASA real prop- or other dangerous materials. erty or installations (including NASA Headquarters, Centers, or Component (a) The unauthorized carrying, trans- Facilities) will be conspicuously posted porting, or otherwise introducing or with the following notices: causing to be introduced, or using fire- arms or other dangerous weapons, ex- (1) CONSENT TO INSPECTION: Your entry plosives or other incendiary devices, or into, continued presence on, or exit from, other dangerous instrument, sub- this installation is contingent upon your stance, or material likely to produce consent to inspection of person and property. substantial injury or damage to per- (2) UNAUTHORIZED INTRODUCTION OF WEAPONS OR DANGEROUS MATERIALS sons or property, into or upon NASA IS PROHIBITED: Unless specifically author- real property, facility, or installation, ized by NASA, you may not carry, transport, is prohibited. introduce, store, or use firearms or other (b) Paragraph (a) of this section shall dangerous weapons, explosives or other in- not apply to: cendiary devices, or other dangerous instru- (1) The lawful performance of official ment or material likely to produce substan- duties by an officer, agent, or employee tial injury or damage to persons or property. of the United States, a State, or a po- (b) Only NASA security personnel or litical subdivision thereof, or NASA members of the installation’s uni- contractor, who is authorized to carry formed security force will conduct in- firearms or other material covered by spections pursuant to this subpart. paragraph (a) of this section. Such inspections will be conducted in (2) The lawful carrying of firearms or accordance with guidelines established other dangerous weapons at or on a by the Director, Security Management NASA installation after written prior Office, NASA Headquarters. approval has been obtained from the (c) If an individual does not consent installation Security Office in connec- to an inspection, it will not be con- tion with sanctioned hunting, range ducted, but the individual will be de- practice, or other lawful purpose. nied admission to, or be escorted off the installation. § 1204.1006 Violations. (d) If, during an inspection, an indi- Please take notice that anyone vio- vidual is found to be in unauthorized lating these regulations may be cited possession of items believed to rep- for violating Title 18 of the United resent a threat to the safety or secu- States Code (U.S.C.) Section 799, which rity of the installation, the individual states that whoever willfully shall vio- will be denied admission to or be es- late, attempt to violate, or conspire to
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violate any regulation or order promul- Field, California, and is located at gated by the Administrator of the Na- 122°03′ west longitude and 37°25′ north tional Aeronautics and Space Adminis- latitude. tration for the protection or security (4) Crows Landing Airport. The aero- of any laboratory, station, base or nautical facility which is a part of the other facility, or part thereof, or any Crows Landing Flight Facility (CLEF) aircraft, missile, spacecraft, or similar and is located at 121°06′ west longitude vehicle, or part thereof, or other prop- and 37°25′ north latitude, 45 miles east erty or equipment in the custody of the of the Ames Research Center. Administration [NASA], or any real or (b) Aircraft not Operated for the Benefit personal property or equipment in the of the Federal Government. Aircraft custody of any contractor under any which are not owned or leased by the contract with the Administration or United States Government or aircraft any subcontractor of any such con- carrying crew members or passengers tractor, shall be fined under this title who do not have official business re- [Title 18], or imprisoned not more than quiring the use of a NASA airfield fa- one year, or both. cility in the particular circumstance in question. Subparts 11–13 [Reserved] (c) Official Business. Business, in the interest of the U.S. Government, which Subpart 14—Use of NASA Airfield personnel aboard an aircraft must Facilities by Aircraft Not Oper- transact with U.S. Government per- ated for the Benefit of the sonnel or organizations at or near a NASA facility. The use of a NASA air- Federal Government field facility by transient aircraft to petition for U.S. Government business AUTHORITY: 42 U.S.C. 2473(c)(1). or to obtain clearance, servicing, or SOURCE: 56 FR 35812, July 29, 1991, unless other items pertaining to itinerant op- otherwise noted. erations is not considered official busi- ness. § 1204.1400 Scope. (d) User. An individual partnership or This subpart establishes the responsi- corporation owning, operating, or bility and sets forth the conditions and using an aircraft not operated for the procedures for the use of NASA airfield benefit of the Federal Government in facilities by aircraft not operated for whose name permission to use a NASA the benefit of the Federal Government. airfield facility is to be requested and granted. § 1204.1401 Definitions. (e) Hold Harmless Agreement. An For the purpose of this subpart, the agreement executed by the user by following definitions apply: which the user acknowledges aware- (a) NASA Airfield Facility. Those aero- ness of the conditions of the permission nautical facilities owned and operated to use a NASA airfield facility, as- by NASA that consist of the following: sumes any risks connected therewith, (1) Shuttle Landing Facility. The aero- and releases the U.S. Government from nautical facility which is a part of the all liability incurred by the use of such John F. Kennedy Space Center (KSC), facility. Kennedy Space Center, Florida, and is (f) Use Permit. The written permission located at 80°41′ west longitude and signed by the authorized approving of- 28°37′ north latitude. ficial to land, take off, and otherwise (2) Wallops Airport. The aeronautical use a NASA airfield facility. Such use facility which is part of the Wallops permit may be issued for single or mul- Flight Facility (WFF), Wallops Island, tiple occasions. The specific terms of VA, and is located at 75°28′ west lon- the use permit and the provisions of gitude and 37°56′ north latitude in the this subpart govern the use which may general vicinity of Chincoteague, Vir- be made of the airport by aircraft not ginia. operated for the benefit for the Federal (3) Moffett Federal Airfield (MFA). The Government. aeronautical facility which is part of (g) Certificate of Insurance. A certifi- the Ames Research Center, Moffett cate signed by an authorized insurance
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company representative (or a facsimile (e) In no event, except for an in-flight of an insurance policy) evidencing that emergency (see § 1204.1406), will permis- insurance is then in force with respect sion to use NASA airfield facilities be to any aircraft not operated for the granted to an aircraft arriving directly benefit of the Federal Government, the from, or destined for, any location out- user of which is requesting permission side the continental United States un- to use a NASA airfield facility (see less previously arranged and approved § 1204.1404(b)). by the authorized approving official. [56 FR 35812, July 29, 1991, as amended at 60 (f) Permission to use NASA airfields FR 37567, July 21, 1995] may be granted only to those users having the legal capacity to contract § 1204.1402 Policy. and whose aircraft are in full compli- (a) NASA airfields are not normally ance with applicable Federal Aviation available to the general public; hence, Administration (FAA) or other cog- any use of airfield facilities by aircraft nizant regulatory agency require- not operated for the benefit of the Fed- ments. eral Government shall be within the (g) Permission to use NASA airfields, sole discretion of the approving au- except in connection with a declared thorities. in-flight emergency, will consist only (b) Except in the event of a declared of the right to land, park an aircraft, in-flight emergency (see § 1204.1406) or and subsequently take off. NASA is not as otherwise determined by an approv- equipped to provide any other services ing authority, aircraft not operated for such as maintenance or fuel and such the benefit of the Federal Government services will not be provided except fol- are not permitted to land or otherwise lowing an in-flight emergency. use NASA airfield facilities. (c) Any use of a NASA airfield facil- § 1204.1403 Available airport facilities. ity by aircraft not operated for the benefit of the Federal Government The facilities available vary at each shall be free of charge and no consider- NASA Installation having an airfield. ation (monetary or otherwise) shall be The airport facilities available are: exacted or received by NASA for such (a) Shuttle Landing Facility—(1) Run- use. However, each user, as a condition ways. Runway 15–33 is 15,000 feet long of receiving permission to use such air- and 300 feet wide with 1,000-foot over- field facility, shall agree to become fa- runs. The first 3,500 feet at each end of miliar with the physical condition of the runway have been modified for the airfield; abide by the conditions smoothness. The center 8,000 feet of the placed upon such use; subject the air- runway is grooved for improved brak- craft, the user, and those accom- ing under wet conditions. panying the user to any requirements (2) Parking Areas and Hangar Space. imposed by NASA in the interest of se- No hangar space is available. Limited curity and safety while the aircraft or available concrete parking ramp space persons are on a NASA facility; use the makes precoordination necessary. facilities entirely at the user’s own (3) Control Tower. The control tower risk; hold the Federal Government is normally in operation from 0800 to harmless with respect to any and all li- 1600 local time, Monday through Fri- abilities which may arise as a result of day. Additional hours of operation are the use of the facilities; and carry in- filed with the St. Petersburg Flight surance covering liability to others in Service Station (FSS). The tower may amounts not less than those listed in be contacted on 128.55 MHz or 284.0 the Hold Harmless Agreement. MHz. FAA regulations pertaining to (d) Permission to use a NASA airfield the operation of aircraft at airports facility will be granted only in accord- with an operating control tower (§ 91.87 ance with the limitations and proce- of this title) will apply. When the dures established by an approving au- tower is not in operation, the FAA reg- thority and then only when such use ulations pertaining to the operation of will not compete with another airport aircraft at airports without an oper- in the vicinity which imposes landing ating control tower (§ 91.89 of this title) fees or other user charges. will apply.
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(4) Navigation aids. A Microwave UNICOM before landings, takeoffs, and Scanning Beam Landing System taxiing. Civil aircraft operations are (MSBLS) and a Tactical Airborne Navi- normally confined to daylight hours. gation System (TACAN) are installed (4) Navigation Aids. All runways, 04– at the Facility. There are two pub- 22, 10–28, and 17–35 are lighted. Both ac- lished TACAN approaches and an ap- tive taxiways, parallels 04–22 and 10–28, proved and published nondirectional are lighted. Airfield lighting is avail- beacon (NDB) approach available from able upon request. All runway ap- Titusville. Runway approach lighting proaches are equipped with operating (similar to Category II ALSF–2) and precision approach path indicator edge lights are available by prior ar- (PAPI) systems and are available on re- rangement. quest. All airfield obstructions are (5) Hazards. There are towers and equipped with red obstruction lights. buildings south, southeast, and north- (5) Hazards. Numerous towers in air- east of the facility as high as 550 feet port vicinity up to 241 feet above that could pose hazards to air naviga- ground level. Existing tree obstruc- tion. All are marked with obstruction tions are located 1500 feet west of run- lights. way 10 threshold. High shore bird popu- (6) Emergency Equipment. Aircraft lation exists in the Wallops area. Deer Rescue and Fire-fighting (ARFF) occasionally venture across runways. equipment will be provided in accord- Light-controlled traffic crossovers are ance with 14 CFR part 139. in existence. Potential radio frequency (b) Wallops Airport—(1) Runways. (RF) hazards exist from tracking ra- There are three hard surfaced runways dars. Hazards involving aircraft and in satisfactory condition. The runways rocket launch operations exist when and taxiways are concrete and/or as- Restricted Area R–6604 is active. phalt. Runway 10–28 is 8,000 feet long, (6) Emergency Equipment. Aircraft res- 200 feet wide with maximum wheel load cue and fire-fighting equipment is nor- of 57,500 pounds; runway 04–22 is 8,750 mally available on a continuous basis. feet long, 150 feet wide with maximum (c) Moffett Federal Airfield—(1) Run- wheel load of 57,500 pounds; and runway ways. There are two parallel runways, 17–35 is 4,820 feet long, 150 feet wide 32–14, both in satisfactory to good con- with maximum wheel load of 14,700 dition. The runways and taxiways are pounds. concrete and/or asphalt. Runway 32R– (2) Parking Areas and Hangar Space. 14L is 9,200 feet long, 200 feet wide; 32L– No hangar space is available. However, 14R is 8,125 feet long, 200 feet wide with limited concrete parking ramp space is a 600 foot displaced threshold on 32L. available as directed by the control (2) Parking areas and hangar space. tower. Hangar space is not available; concrete (3) Control Tower. This control tower parking ramp space is available as di- is normally in operation from 0630 to rected by the control tower. 1830 local time, Monday through Fri- (3) Control tower. The control tower day, excluding Federal holidays. The normally operates from 0700 to 2300 tower may be contacted on 126.5 MHz local time, 7 days a week, excluding or 394.3 MHz. When the tower is in op- Federal holidays. The tower fre- eration, FAA regulations pertaining to quencies are 126.2 Mhz, 353.2 Mhz, and the operation of aircraft at airports 340.2 Mhz. When the tower is operating, with an operating tower (§ 91.87 of this FAA regulations pertaining to the op- title) will apply. When the tower is not eration of aircraft at airports with an in operation, all aircraft operations operating tower (§ 91.87 of this title) will be handled by Wallops UNICOM on will apply. When the tower is not in op- the tower frequency, and FAA regula- eration, all aircraft operations will be tions pertaining to the operation of conducted by Moffett UNICOM on the aircraft at airports without an oper- tower frequency. FAA regulations per- ating control tower (§ 91.89 of this title) taining to the operation of aircraft at will apply. In addition to Federal Avia- airports without an operating control tion Regulations (FAR’s) (s 91 of this tower (§ 91.89 of this title) will apply. title), Wallops requires that pilots ob- (4) Navigation aids. An Instrument tain clearances from the Wallops Landing System (ILS) is installed. An
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ILS/DME approach to runway 32R and aircraft at airports with an operating an LOC/DME approach to runway 14L tower (§ 91.87 of this title) will apply. are published in DOD Flight Informa- When the tower is not operating, all tion Publication (Terminal), Low Alti- aircraft operations will be conducted tude United States, Volume 2. ILS fre- with Crows Landing UNICOM on the quency is 110.35 Mhz, identifiers are primary tower frequency. FAA regula- Runway 32R, I–NUQ; Runway 14L, I– tions pertaining to the operation of MNQ; Tactical Airborne Navigation aircraft at airports without an oper- (TACAN) (DME) is Channel 123, identi- ating control tower (§ 91.89 of this title) fier is NUQ. Precision Approach Path will apply. Indicators (PAPI) are to be installed by (4) Navigation aids. Crows Landing July 1, 1995, to provide visual reference Airport is a VFR facility. No certified for the ILS and LOC approaches to run- NAVAIDS or published approach proce- ways 32R and 14L. A TACAN with ap- dures exist. proved and published approaches is (5) Hazards. Crows Landing Airport is operational at the facility (identifica- located in an agricultural area. No ob- tion is NUQ, Channel 123). A Radio Con- structions exist within or immediately trolled Lighting System (RCLS) is adjacent to the airspace. The most per- operational for the runway lights on sistent potential hazard is that of agri- 32R–14L; 3 clicks within 5 seconds, low cultural aircraft (crop dusters) without intensity; 5 clicks, medium intensity; 7 radios which transit the airspace. clicks, high intensity (tower frequency, (6) Emergency equipment. Aircraft Res- 126.2 Mhz). Lights automatically extin- cue and Fire Fighting (ARFF) equip- guish after 15 minutes. ment and services are provided by the (5) Hazards. Large blimp hangars (ap- California Air National Guard only proximately 200 feet high) bracket the during published hours of operation. parallel runways, one on the west side, (e) Other facilities. No facilities or two on the east side. A freeway at the services other than those described approach end of 32L displaces the above are available except on an indi- threshold 600 feet. vidual emergency basis to any user. (6) Emergency equipment. Aircraft Res- (f) Status of facilities. Changes to the cue and Fire Fighting (ARFF) equip- status of the KSC, WFF, MFA, and ment is provided by the California Air CLFF facilities will be published in ap- National Guard continuously in ac- propriate current FAA or DOD aero- cordance with U.S. Air Force Regula- nautical publications. tions. [56 FR 35812, July 29, 1991, as amended at 60 (d) Crows Landing Airport—(1) Run- FR 37568, July 21, 1995] ways. There are two concrete runways, 35–17 and 30–12, both in satisfactory § 1204.1404 Requests for use of NASA condition. Parallel taxiways are as- airfield facilities. phalt overlay or concrete. Runway 35– (a) Request for use of a NASA air- 17 is 7,950 feet long, 200 feet wide; run- field, whether on a one time or recur- way 30–12 is 6,975 feet long, 200 feet ring basis, must be in writing and ad- wide. dressed to the appropriate NASA facil- (2) Parking areas and hangar space. ity, namely: Hangars/hangar space do not exist; con- (1) Shuttle Landing Facility. Director crete parking ramp space is available of Center Support Operations, John F. as directed by the control tower. Kennedy Space Center, Kennedy Space (3) Control tower. The control tower Center, Florida 32899. normally operates only when research (2) Wallops Airport. Director of Sub- flight is scheduled by NASA-Ames. The orbital Projects and Operations, God- airfield is closed at all other times ex- dard Space Flight Center, Wallops cept as arranged by other Federal users Flight Facility, Wallops Island, Vir- with the Chief, Airfield Management ginia 23337. Office, Moffett Federal Airfield. The (3) Moffett Federal Airfield and Crows tower frequencies are 125.05 Mhz, 126.2 Landing Flight Facility. Chief, Airfield Mhz, 328.1 Mhz, and 337.8 Mhz. When Management Office, Ames Research the tower is operating, FAA regula- Center, Mail Stop 158–1, Moffett Field, tions pertaining to the operation of California 94035–1000.
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(b) Such requests will: § 1204.1405 Approving authority. (1) Fully identify the prospective The authority to establish limita- user and aircraft. tions and procedures for use of a NASA (2) State the purpose of the proposed airfield, as well as the authority to ap- use and the reason why the use of the prove or disapprove the use of the NASA airfield is proposed rather than NASA airfield facilities subject to the a commercial airport. terms and conditions of this subpart (3) Indicate the expected annual use, and any supplemental rules or proce- to include number and approximate dures established for the facility is date(s) and time(s) of such proposed vested in: use. (a) Shuttle Landing Facility. Director (4) State that the prospective user is of Center Support Operations, Kennedy prepared to fully comply with the Space Center, NASA. terms of this subpart 14 and the use (b) Wallops Airport. Director of Sub- permit which may be issued. orbital Projects and Operations, God- (c) Upon receipt of the written re- dard Space Flight Center, Wallops quest for permission to use the airport, Flight Facility, NASA. the NASA official designated by each (c) Moffett Federal Airfield and Crows facility will request additional infor- Landing Flight Facility. Chief, Airfield mation, if necessary, and forward both Management Office, Ames Research this regulation and the required Hold Center, NASA. Harmless Agreement for execution by [56 FR 35812, July 29, 1991, as amended at 60 the requestor or forward, where appro- FR 37568, July 21, 1995] priate, a denial of the request. (d) The signed original of the Hold § 1204.1406 Procedures in the event of Harmless Agreement shall be returned a declared in-flight emergency. to the designated NASA official, and a (a) Any aircraft involved in a de- copy retained in the aircraft at all clared in-flight emergency that endan- times. Such copy shall be exhibited gers the safety of its passengers and upon proper demand by any designated aircraft may land at a NASA airfield. NASA official. In such situations, the requirements (e) At the same time that the pro- for this subpart for advance authoriza- spective user returns the executed tions, do not apply. original of the Hold Harmless Agree- (b) NASA personnel may use any ment, the user shall forward to the des- method or means to clear the aircraft ignated NASA official the required Cer- or wreckage from the runway after a tificate of Insurance and waiver of landing following an in-flight emer- rights to subrogation. Such certificate gency. Care will be taken to preclude shall evidence that during any period unnecessary damage in so doing. How- for which a permit to use is being re- ever, the runway will be cleared as quested, the prospective user has in soon as possible for appropriate use. force a policy of insurance covering li- (c) The emergency user will be billed ability in amounts not less than those for all costs to the Government that listed in the Hold Harmless Agreement. result from the emergency landing. No (f) When the documents (in form and landing fee will be charged, but the substance) required by paragraphs b charges will include the labor, mate- through e of this section have been re- rials, parts, use of equipment, and tools ceived, they will be forwarded with a required for any service rendered under these circumstances. proposed use permit to the approving (d) In addition to any report required authority for action. by the Federal Aviation Administra- (g) The designated NASA official will tion, a complete report covering the forward the executed use permit or no- landing and the emergency will be filed tification of denial thereof to the pro- with the airfield manager by the pilot spective user after the approving au- or, if the pilot is not available, any thority has acted. other crew member or passenger. [56 FR 35812, July 29, 1991, as amended at 60 (e) Before an aircraft which has made FR 37568, July 21, 1995] an emergency landing is permitted to
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take off (if the aircraft can and is to be § 1204.1501 Purpose. flown out) the owner or operator there- (a) The regulations in this part im- of shall make arrangements acceptable plement Executive Order 12372, ‘‘Inter- to the approving authority to pay any governmental Review of Federal Pro- charges assessed for services rendered grams,’’ issued July 14, 1982, and and execute a Hold Harmless Agree- amended on April 8, 1983. These regula- ment. The owner or operator may also tions also implement applicable provi- be required to furnish a certificate of sions of section 401 of the Intergovern- insurance, as provided in § 1204.1404, mental Cooperation Act of 1968, as covering such takeoff. amended. § 1204.1407 Procedure in the event of (b) These regulations are intended to an unauthorized use. foster an intergovernmental partner- ship and a strengthened federalism by Any aircraft not operated for benefit relying on state processes and on state, of the Federal Government which lands areawide, regional and local coordina- at a NASA airfield facility without ob- tion for review of proposed direct Fed- taining prior permission from the ap- eral development. proving authority, except in a bona (c) These regulations are intended to fide emergency, is in violation of this aid the internal management of the subpart. Such aircraft will experience Agency, and are not intended to create delays while authorization for depar- any right or benefit enforceable at law ture is obtained pursuant to this sub- by a party against the agency or its of- part and may, contrary to the other ficers. provisions of this subpart, be required, at the discretion of the approving au- § 1204.1502 Definitions. thority, to pay a user fee of not less than $100. Before the aircraft is per- Administrator means the Adminis- mitted to depart, the approving au- trator of the U.S. National Aeronautics thority will require full compliance and Space Administration or an offi- with this subpart 1204.14, including the cial or employee of the Agency acting filing of a complete report explaining for the Administrator under a delega- the reasons for the unauthorized land- tion of authority. ing. Violators could also be subject to Agency means the U.S. National Aer- legal liability for unauthorized use. onautics and Space Administration. When it appears that the violation of Order means Executive Order 12372, this subpart was deliberate or is a re- issued July 14, 1982, and amended April peated violation, the matter will be re- 8, 1983, and titled ‘‘Intergovernmental ferred to the Aircraft Management Of- Review of Federal Programs.’’ fice, NASA Headquarters, which will State means any of the 50 states, the then grant any departure authoriza- District of Columbia, the Common- tion. wealth of Puerto Rico, the Common- wealth of the Northern Mariana Is- Subpart 15—Intergovernmental lands, Guam, American Samoa, the Review of National Aero- U.S. Virgin Islands, or the Trust Terri- nautics and Space Adminis- tory of the Pacific Islands. tration Programs and Activi- § 1204.1503 Programs and activities ties subject to these regulations. The Administrator publishes in the AUTHORITY: E.O. 12372, July 14, 1982, 47 FR FEDERAL REGISTER a description of the 30959, as amended April 8, 1983, 48 FR 15887; Agency’s programs and activities that sec. 401 of the Intergovernmental Coopera- are subject to these regulations. tion Act of 1968, as amended (31 U.S.C. 6506).
SOURCE: 48 FR 29340, June 24, 1983, unless § 1204.1504 [Reserved] otherwise noted. § 1204.1505 Federal interagency co- EDITORIAL NOTE: For additional informa- ordination. tion, see related documents published at 47 FR 57369, December 23, 1982, 48 FR 17101, The Administrator to the extent April 21, 1983, and 48 FR 29096, June 24, 1983. practicable, consults with and seeks
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advice from all other substantially af- (1) The state has not adopted a proc- fected federal departments and agen- ess under the Order; or cies in an effort to assure full coordina- (2) The development involves a pro- tion between such agencies and the gram or activity not selected for the Agency regarding programs and activi- state process. ties covered under these regulations. This notice may be made by publica- tion in a periodical of general circula- § 1204.1506 Procedures for selecting tion in the area likely to be affected or programs and activities under these regulations. other appropriate means, which the Agency in its discretion deems appro- (a) A state may select any program priate. or activity published in the FEDERAL REGISTER in accordance with § 1204.1503 § 1204.1508 Time limitations for receiv- of this part for intergovernmental re- ing comments on proposed direct view under these regulations. Each Federal development. state, before selecting programs and (a) Except in unusual circumstances, activities shall consult with local the Administrator gives state processes elected officials. or state, areawide, regional and local (b) Each state that adopts a process officials and entities at least 60 days shall notify the Administrator of the from the date established by the Ad- Agency’s programs and activities se- ministrator to comment on proposed lected for that process. direct Federal development. (c) A state may notify the Adminis- (b) This section also applies to com- trator of changes in its selections at ments in cases in which the review, co- any time. For each change, the state ordination, and communication with shall submit to the Administrator an the Agency has been delegated. assurance that the state has consulted with local elected officials regarding § 1204.1509 Receiving and responding the change. The Agency may establish to comments. deadlines by which states are required (a) The Administrator follows the to inform the Administrator of changes procedures in § 1204.1510 if: in their program selections. (1) A state office or official is des- (d) The Administrator uses a state’s ignated to act as a single point of con- process as soon as feasible, depending tact between a state process and all on individual programs and activities, federal agencies; and after the Administrator is notified of (2) That office or official transmits a its selections. state process recommendation for a program selected under § 1204.1506. § 1204.1507 Communicating with State (b)(1) The single point of contact is and local officials concerning the not obligated to transmit comments Agency’s programs and activities. from state, areawide, regional or local (a) For those programs and activities officials and entities where there is no covered by a state process under state process recommendation. § 1204.1506 the Administrator, to the ex- (2) If a state process recommendation tent permitted by law: is transmitted by a single point of con- (1) Uses the official state process to tact, all comments from state, determine views of state and local areawide, regional, and local officials elected officials; and; and entities that differ from it must (2) Communicates with state and also be transmitted. local elected officials, through the offi- (c) If a state has not established a cial state process, as early in a pro- process, or is unable to submit a state gram planning cycle as is reasonably process recommendation, state, feasible to explain specific plans and areawide, regional and local officals actions. and entities may submit comments to (b) The Administrator provides no- the Agency. tice to directly affected state, (d) If a program or activity is not se- areawide, regional, and local entities lected for a state process, state, in a state of proposed direct Federal areawide, regional and local officials development if: and entities may submit comments to
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the Agency. In addition, if a state proc- § 1204.1511 Coordination in interstate ess recommendation for a nonselected situations. program or activity is transmitted to (a) The Administrator is responsible the Agency by the single point of con- for— tact, the Administrator follows the (1) Identifying proposed direct Fed- procedures of § 1204.1510 of this part. eral development that has an impact (e) The Administrator considers com- on interstate areas; ments which do not constitute a state (2) Notifying appropriate officials process recommendation submitted and entities in states which have under these regulations and for which adopted a process and which select the the Administrator is not required to Agency’s program or activity. apply the procedures of § 1204.1510 of (3) Making efforts to identify and no- this part, when such comments are pro- tify the affected state, areawide, re- gional, and local officials and entities vided by a single point of contact, or in those states that have not adopted a directly to the Agency by a com- process under the Order or do not se- menting party. lect the Agency’s program or activity; (4) Responding pursuant to § 1204.1510 § 1204.1510 Efforts to accommodate of this part if the Administrator re- intergovernmental concerns. ceives a recommendation from a des- (a) If a state provides a state process ignated areawide agency transmitted recommendation to the Agency by a single point of contact, in cases in through its single point of contact, the which the review, coordination, and Administrator either: communication with the Agency have (1) Accepts the recommendation; been delegated. (2) Reaches a mutally agreeable solu- (b) The Administrator uses the proce- tion with the state process; or dures in § 1204.1510 if a state process (3) Provides the single point of con- provides a state process recommenda- tion to the Agency through a single tact with a written explanation of its point of contact. decision, in such form as the Adminis- trator in his or her discretion deems § 1204.1512 [Reserved] appropriate. The Administrator may also supplement the written expla- § 1204.1513 Waivers of provisions of nation by providing the explanation to these regulations. the single point of contact by tele- In an emergency, the Administrator phone, other telecommunication, or may waive any provision of these regu- other means. lations. (b) In any explanation under para- APPENDIX A TO PART 1204—ITEMS TO graph (a)(3) of this section, the Admin- COVER IN MEMORANDA OF AGREEMENT istrator informs the single point of contact that: The items to be covered in Memoranda of (1) The Agency will not implement Agreement between NASA Installations and state and areawide OMB Circular A–95 clear- its decision for a least ten days after inghouses for coordinating NASA and civil- the single point of contact receives the ian planning: explanation; or 1. Clearinghouses will be contacted at the (2) The Administrator has reviewed earliest practicable point in project plan- the decision and determined that, be- ning. Generally, this will be during the prep- aration of Preliminary Engineering Reports, cause of unusual circumstances, the or possibly earlier if meaningful information waiting period of at least ten days is is available that could practically serve as not feasible. an input in the decision-making process. It (c) For purposes of computing the should be noted that clearinghouses are gen- waiting period under paragraph (b)(1) erally comprehensive planning agencies. As of this section, a single point of con- such, they are often the best repositories of information required for development plan- tact is presumed to have received writ- ning and constitute a resource that can often ten notification five days after the date save Federal planners substantial time and of mailing of such notification. effort, if consulted early enough. In addition
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to providing information necessary for pre- 1206.401 Location of NASA Information Cen- liminary engineering, clearinghouses can ters. make useful inputs to the development of en- 1206.402 Documents available for inspection vironmental impact statements, as well as in at NASA Information Centers. reviewing draft statements. Thus, consulta- 1206.403 Duty hours. tion at the earliest stage in planning can have substantial payoffs in installation de- Subpart 5—Responsibilities velopment. 2. Clearinghouses will be afforded a min- 1206.500 Associate Deputy Administrator. imum time of 30 days in which to review and 1206.501 General Counsel. comment on a proposed project and a max- 1206.502 Centers and Components. imum time of 45 days in which to complete 1206.503 NASA Headquarters. such review. 1206.504 Inspector General. 3. The minimum information to be pro- 1206.505 Delegation of authority. vided to the clearinghouse will consist of project description, scope and purpose, sum- Subpart 6—Procedures mary technical data, maps and diagrams where relevant, and any data which would 1206.600 Requests for records. show the relationship of the proposed project 1206.601 Mail, fax and e-mail requests. or action to applicable land use plans, poli- 1206.602 Requests in person. cies, and controls for the affected area. 1206.603 Procedures and time limits for ini- 4. Establish procedures for notifying clear- tial determinations. inghouses of the actions taken on projects, 1206.604 Request for records that exist else- such as implementation, timing, postpone- where. ment, abandonment, and explaining, where 1206.605 Appeals. appropriate, actions taken contrary to clear- 1206.606 Request for additional records. inghouse recommendations. 1206.607 Actions on appeals. 1206.608 Time extensions in unusual cir- PART 1205 [RESERVED] cumstances. 1206.609 Litigation. 1206.610 Notice to submitters of commercial PART 1206—AVAILABILITY OF information. AGENCY RECORDS TO MEMBERS OF THE PUBLIC Subpart 7—Search, Review, and Duplication Fees Sec. 1206.700 Schedule of fees. Subpart 1— Basic Policy 1206.701 Categories of requesters. 1206.702 Waiver or reduction of fees. 1206.100 Scope of part. 1206.703 Aggregation of requests. 1206.101 Definitions. 1206.704 Advance payments. 1206.102 General policy. 1206.705 Form of payment. 1206.706 Nonpayment of fees. Subpart 2—Records Available Subpart 8—Failure to Release Records to 1206.200 Types of records to be made avail- the Public able. 1206.201 Records which have been published. 1206.800 Failure to release records to the 1206.202 Deletion of segregable portions of a public. record. 1206.203 Creation of records. Subpart 9—Annual Report 1206.204 Records of interest to other agen- cies. 1206.900 Requirements for annual report. 1206.205 Incorporation by reference. 1206.206 Availability for copying. AUTHORITY: 5 U.S.C. 552, 552a; 42 U.S.C. 1206.207 Copies. 2473. 1206.208 Release of exempt records. SOURCE: 64 FR 39404, July 22, 1999, unless otherwise noted. Subpart 3—Exemptions 1206.300 Exemptions. Subpart 1—Basic Policy 1206.301 Limitation of exemptions. § 1206.100 Scope of part. Subpart 4—Location for Inspection and This Part 1206 establishes the poli- Request of Agency Records cies, responsibilities, and procedures 1206.400 Information Centers. for the release of Agency records which
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are under the jurisdiction of the Na- (d) The term final determination tional Aeronautics and Space Adminis- means a decision by the Administrator tration, hereinafter NASA, to members or designee, or, in the case of records of the public. This part applies to infor- as specified in § 1206.504, by the Inspec- mation and Agency records located at tor General or designee on an appeal. NASA Headquarters, at NASA Centers, (e) The term working days means all and at NASA Component, as defined in days except Saturdays, Sundays, and Part 1201 of this chapter. Federal holidays. (f) As used in § 1206.608, the term un- § 1206.101 Definitions. usual circumstance means, but only to For the purposes of this part, the fol- the extent reasonably necessary to the lowing definitions shall apply: proper processing of a particular re- quest for Agency records— (a) The term Agency records or records (1) The need to search for and collect means any information that would be the requested records from NASA Cen- an Agency record subject to the re- ters or other establishments that are quirements of the Freedom of Informa- separate from the NASA Information tion Act (FOIA) when maintained by Center processing the request (see Sub- NASA in any format, including an elec- part 6 of this part for procedures for tronic format. Such information in- processing a request for Agency cludes all books, papers, maps, photo- records); graphs, or other documentary mate- (2) The need to search for, collect, rials made or received by NASA in pur- and appropriately examine a volumi- suance of Federal law or in connection nous amount of separate and distinct with the transaction of public business records which are demanded in a single and preserved by NASA as evidence of request; or the organization, functions, policies, (3) The need for consultation, which decisions, procedures, operations, or shall be conducted with all practicable other activities or because of the infor- speed, with another agency having a mational value of data contained substantial interest in the determina- therein. It does not include tangible tion of the request or among two or objects or articles, such as structures, more components of NASA having sub- furniture, paintings, sculptures, exhib- stantial subject-matter interest there- its, models, vehicles or equipment; li- in. brary or museum material made or ac- (g) A statute specifically providing for quired and preserved solely for ref- setting the level of fees for particular erence or exhibition purposes; or types of records (5 U.S.C. 552(a)(4)(A)(vi)) records of another agency, a copy of means any statute that specifically re- which may be in NASA’s possession. quires a government agency to set the (b) The term initial determination level of fees for particular types of means a decision by a NASA official, in records in order to: response to a request by a member of (1) Serve both the general public and the public for an Agency record, on private sector organizations by conven- whether the record described in the re- iently making available government quest can be identified and located information; after a reasonable search and, if so, (2) Ensure that both groups and indi- whether the record (or portions there- viduals pay the cost of publications of) will be made available under this and other services that are for their part or will be withheld from disclosure special use so that these costs are not under Subpart 3 of this part. borne by the general taxpaying public; (c) The term appeal means a request (3) Operate, to the maximum extent by a member of the public, hereinafter possible an information dissemination requester, to the Administrator or des- activity on a self-sustaining basis (to ignee, or, in the case of records as spec- the maximum extent possible); or ified in § 1206.504, to the Inspector Gen- (4) Return revenue to the Treasury eral or designee for reversal of any ad- for defraying, wholly or in part, appro- verse initial determination the re- priated funds used to pay the cost of quester has received in response to a disseminating government informa- request for an Agency record. tion.
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(h) The term direct costs means those eral legal or policy issues regarding the expenditures that NASA actually in- application of exemptions. curs in searching for, duplicating, and (l) The term commercial use request downloading computer files and docu- means a request from or on behalf of ments in response to a FOIA request. one whom seeks information for a use Direct costs include, for example, the or purpose that furthers the commer- salary of the employee who would ordi- cial, trade, or profit interests of either narily perform the work (the basic rate the requester or the person on whose of pay for the employee plus 16 percent behalf the request is made. In deter- of that rate to cover benefits) and the mining whether a requester properly cost of operating duplicating machin- belongs in this category, NASA will ery. Direct costs do not include over- look first to the use to which a re- head expenses such as costs of space, quester will put the documents re- heating, or lighting in the records stor- quested. When NASA has reasonable age facility. cause to doubt the use to which a re- (i) The term search includes all time quester will put the records sought or spent looking for material that is re- when the use is not clear from the re- sponsive to a request, including page- quest itself, NASA will ask the re- by-page or line-by-line identification of quester to further clarify the imme- material within documents. A search diate use for the requested records. A for Agency records that are responsive request from a corporation (not a news to the request may be accomplished by media corporation) may be presumed to manual or automated means. NASA be for commercial use unless the re- will make reasonable efforts to search quester demonstrates that it qualifies for records in electronic form or for- for a different fee category. mat, except when such efforts would (m) The term educational institution significantly interfere with the oper- refers to a preschool, a public or pri- ation of NASA’s automated informa- vate elementary or secondary school, tion systems. NASA will ensure that an institution of graduate higher edu- searching for material is done in the cation, an institution of undergraduate most efficient, least expensive manner higher education, an institution of pro- so as to minimize costs for both the fessional education, and an institution Agency and the requester and will only of vocational education, operating a utilize line-by-line, page-by-page program or programs of scholarly re- search when consistent with this pol- search. icy. Search should be distinguished, (n) The term noncommercial scientific however, from review of material in institution refers to an institution that order to determine whether the mate- is not operated on a commercial basis as rial is exempt from disclosure (see that term is referenced in paragraph (l) paragraph (k) of this section). of this section, and which is operated (j) The term duplication means the solely for the purpose of conducting process of making a copy of a docu- scientific research, the results of which ment in order to respond to a FOIA re- are not intended to promote any par- quest. Such copies can take the form of ticular product or industry. paper copy, electronic forms, micro- (o) The term representative of the news film, audio-visual materials, or ma- media means any person actively gath- chine-readable documentation (e.g., ering news for an entity that publishes, magnetic tape on disk), among others. broadcasts, or makes news available to (k) The term review means the proc- the public. The term news means infor- ess of examining documents located in mation about events that would be of response to a request (see paragraph (l) interest to the public. Examples of of this section) to determine whether news media include, but are not lim- any portion of any document located is ited to, television or radio stations permitted to be withheld. It also in- broadcasting to the public at large, cludes processing any documents for publishers of periodicals who make disclosure, e.g., doing all that is nec- their products available for purchase or essary to excise them and otherwise subscription by the general public (but prepare them for release. Review does only in those instances when they can not include time spent resolving gen- qualify as disseminators of news), and
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entities that disseminate news to the § 1206.102 General policy. general public through telephone, com- (a) In accordance with section puter or other telecommunications 203(a)(3) of the National Aeronautics methods. Moreover, as traditional and Space Act of 1958 (42 U.S.C. methods of news delivery evolve (e.g., 2473(a)(3)), it has been and continues to electronic dissemination of newspapers be NASA policy to provide for the through telecommunications services), ‘‘widest practicable and appropriate such alternative media would be in- dissemination of information con- cluded in this category. In the case of cerning its activities and the results freelance journalists, they may be re- thereof.’’ garded as working for a news organiza- (b) In compliance with the Freedom tion if they can demonstrate a solid of Information Act, as amended (5 basis for expecting publication through U.S.C. 552), a positive and continuing that organization, even though not ac- obligation exists for NASA to make tually employed by it. A publication available to the fullest extent prac- contract would be the clearest proof, ticable upon request by members of the but NASA may also look to the past public all Agency records under its ju- publication record of a requester in risdiction, as described in Subpart 2 of making this determination. this part, except to the extent that (p) The term commercial information they may be exempt from disclosure means, for the purpose of applying the under Subpart 3 of this part. notice requirements of § 1206.610, infor- mation provided by a submitter and in Subpart 2—Records Available the possession of NASA, that may ar- guably be exempt from disclosure § 1206.200 Types of records to be made under the provisions of Exemption 4 of available. the FOIA (5 U.S.C. 552(b)(4)). The mean- (a) Records required to be published ing ascribed to this term for the pur- in the FEDERAL REGISTER. The fol- pose of this notice requirement is sepa- lowing records are required to be pub- rate and should not be confused with lished in the FEDERAL REGISTER, for use of this or similar terms in deter- codification in Title 14, Chapter V, of mining whether information satisfies the CFR. one of the elements of Exemption 4. (1) Description of NASA Head- (q) The term submitter means a person quarters and NASA Centers and the es- or entity that is the source of commer- tablished places at which, the employ- cial information in the possession of ees from whom, and the methods NASA. The term submitter includes, but whereby, the public may secure infor- is not limited to, corporations, state mation, make submittals or requests, governments, and foreign governments. or obtain decisions; It does not include other Federal Gov- (2) Statements of the general course ernment agencies or departments. and method by which NASA’s functions (r) The term compelling need means: are channeled and determined, includ- (1) That a failure to obtain requested ing the nature and requirements of all records on an expedited basis could rea- formal and informal procedures avail- sonably be expected to pose an immi- able; nent threat to the life or physical safe- (3) Rules of procedure, descriptions of ty of an individual; or forms available or the places at which (2) With respect to a request made by forms may be obtained, and instruc- a person primarily engaged in dissemi- tions regarding the scope and contents nating information, urgency to inform of all papers, reports, or examinations; the public concerning actual or alleged (4) Substantive rules of general appli- Federal government activity. cability adopted as authorized by law, (s) The term electronic reading room and statements of general policy or in- means a World Wide Web site from terpretations of general applicability which members of the public can ac- formulated and adopted by NASA; cess information regarding activities, (5) Each amendment, revision, or re- missions, organizations, publications, peal of the foregoing. or other material related to NASA’s (b) Agency opinions, orders, state- congressional mandate. ments, and manuals.
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(1) Unless they are exempt from dis- shall, upon request for other records closure under Subpart 3 of this part, or made in accordance with this part, unless they are promptly published and make such records promptly available copies offered for sale, NASA shall to any person, unless they are exempt make available the following records from disclosure under Subpart 3 of this for public inspection and copying or part, or unless they may be purchased purchase: from other readily available sources, as (i) All final opinions (including con- provided in § 1206.201. curring and dissenting opinions) and (2) Furthermore, at a minimum, all orders made in the adjudication of NASA will maintain in its electronic cases; reading room records created after No- (ii) Those statements of NASA policy vember 1, 1997, under paragraphs and interpretations which have been (b)(1)(iv) and (v) and a guide for re- adopted by NASA and are not pub- questing records or information from lished in the FEDERAL REGISTER; NASA. Such guide shall include all (iii) Administrative staff manuals (or NASA major information systems, a similar issuances) and instructions to description of major information and staff that affect a member of the pub- record locator systems, and a hand- lic; book for obtaining various types and (iv) Copies of all records, regardless categories of NASA public information of form or format, which have been re- through the FOIA. leased to any person under subpart 6 herein and which, because of the na- § 1206.201 Records which have been ture of their subject matter, the Agen- published. cy determines have become or are like- Publication in the FEDERAL REGISTER ly to become the subject of subsequent is a means of making certain Agency requests for substantially the same records are available to the public. records. NASA has a FOIA Electronic Reading (v) A general index of records re- Room at NASA Headquarters and each ferred to under paragraph (b)(1)(iv) of of its Centers. Also, the Commerce this section. Business Daily, Synopsis of U.S. Gov- (2) (i) For records created after No- ernment Proposed Procurement, Sales vember 1, 1997, which are covered by and Contract Awards (Department of paragraph (b)(l)(i) through (b)(l)(v) of Commerce) is a source of information this section, such records shall be concerning Agency records or actions. available electronically, through an Various other NASA publications and electronic reading room and in elec- documents, and indexes thereto, are tronic forms or formats. available from other sources, such as (ii) In connection with all records re- the U.S. Superintendent of Documents, quired to be made available or pub- the National Technical Information lished under this paragraph (b), identi- Service (Department of Commerce), fying details shall be deleted to the ex- and the Earth Resources Observation tent required to prevent a clearly un- Systems Data Center (Department of warranted invasion of personal privacy. the Interior). Such publications and However, in each case the justification documents are not required to be made for the deletion shall be explained fully available or reproduced in response to in writing. The extent of such deletion a request unless they cannot be pur- shall be indicated on the portion of the chased readily from available sources. record which is made available or pub- If a publication or document is readily lished, unless including that indication available from a source other than would harm an interest protected by an NASA, the requester shall be informed exemption in Subpart 3. If technically of the procedures to follow to obtain feasible, the extent of the deletion the publication or document. shall be indicated at the place in the record where the deletion is made. § 1206.202 Deletion of segregable por- (c) Other Agency records. tions of a record. (1) In addition to the records made If a record requested by a member of available or published under para- the public contains both information graphs (a) and (b) of this section, NASA required to be made available and that
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which is exempt from disclosure under § 1206.206 Availability for copying. Subpart 3 of this part, and the portion Except as provided in § 1206.201, the of the records that is required to be availability of a record for inspection made available is reasonably seg- shall include the opportunity to ex- regable from the portion that is ex- tract information therefrom or to pur- empt, the portion that is exempt from chase copies. disclosure shall be deleted and the bal- ance of the record shall be made avail- § 1206.207 Copies. able to the requester. If the nonexempt The furnishing of a single copy of the portion of the record appears to be un- requested record will constitute com- intelligible or uninformative, the re- pliance with this part. quester shall be informed of that fact, and such nonexempt portion shall not § 1206.208 Release of exempt records. be sent to the requester unless there- after specifically requested. If tech- If a record which has been requested nically feasible, the amount of infor- is exempt from disclosure under Sub- mation deleted shall be indicated on part 3 of this part, the record may nev- ertheless be made available under the the released portion of the record, un- procedures of Subpart 6 of this part if less including that indication would it is determined by an official author- harm an interest protected by the ex- ized to make either an initial deter- emption in Subpart 3 under which the mination or a final determination that deletion is made. such action would not be inconsistent § 1206.203 Creation of records. with a purpose of the exemptions set forth in Subpart 3 of this part. Records will not be created by com- piling selected items from the files at Subpart 3—Exemptions the request of a member of the public, nor will records be created to provide § 1206.300 Exemptions. the requester with such data as ratios, proportions, percentages, frequency (a) Under 5 U.S.C. 552(b) Agency distributions, trends, correlations, or records falling within the exemptions comparisons. of paragraph (b) of this section are not required to be made available under § 1206.204 Records of interest to other this part. Such records may neverthe- agencies. less be made available if it is deter- mined that such actions would not be If a NASA record is requested and an- inconsistent with a purpose of the ex- other agency has a substantial interest emption (see § 1206.208). in the record, such an agency shall be (b) The requirements of this part to consulted on whether the record shall make Agency records available do not be made available under this part (see apply to matters that are— § 1206.101(f)(3)). If a record is requested (1)(i) Specifically authorized under that is a record of another agency, the criteria established by an Executive request shall be returned to the re- Order to be kept secret in the interest quester, as provided in § 1206.604(c) un- of national defense or foreign policy less NASA has possession and control and of the record requested. (ii) Are in fact properly classified pursuant to such Executive Order; § 1206.205 Incorporation by reference. (2) Related solely to the internal per- Records reasonably available to the sonnel rules and practices of NASA; members of the public affected there- (3) Specifically exempted from disclo- by, shall be deemed published in the sure by statute (other than 5 U.S.C. FEDERAL REGISTER when incorporated 552), provided that such statute: by reference in material published in (i) Requires that the matters be with- the FEDERAL REGISTER (pursuant to the held from the public in such a manner FEDERAL REGISTER regulation on incor- as to leave no discretion on the issue, poration by reference, 1 CFR Part 51). or
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(ii) Establishes particular criteria for furnished by a confidential source. withholding or refers to particular Whenever informant records main- types of matters to be withheld; tained by a criminal law enforcement (4) Trade secrets and commercial or agency under an informant’s name or financial information obtained from a personal identifier are requested by a person which is privileged or confiden- third party according to the inform- tial; ant’s name or personal identifier, the (5) Interagency or intra-agency Agency may treat the records as not memoranda or letters which would not subject to the requirements of 5 U.S.C. be available by law to a party other 552 unless the informant’s status as an than an agency in litigation with informant has been officially con- NASA; firmed. (6) Personnel and medical files and (v) Would disclose techniques and similar files the disclosure of which procedures for law enforcement inves- would constitute a clearly unwarranted tigations or prosecutions, or would dis- invasion of personal privacy; close guidelines for law enforcement (7) Records or information compiled investigations or prosecutions if such for law enforcement purposes, but only disclosure could reasonably be ex- to the extent that the production of pected to risk circumvention of the such law enforcement records or infor- law, or mation— (vi) Could reasonably be expected to (i) Could reasonably be expected to endanger the life or physical safety of interfere with enforcement pro- any individual. ceedings, (8) Contained in or related to exam- (A) Whenever a request is made ination, operating, or condition reports which involves access to these records prepared by, on behalf of, or for the use and— of an agency responsible for the regula- (1) The investigation or proceeding tion or supervision of financial institu- involves a possible violation of crimi- tions; or nal law; and (9) Geological and geophysical infor- (2) There is reason to believe that the mation and data, including maps, con- subject of the investigation or pro- cerning wells. ceeding is not aware of its pendency, and disclosure of the existence of the § 1206.301 Limitation of exemptions. records could reasonably be expected to (a) This Part 1206 does not authorize interfere with enforcement pro- the withholding of information or the ceedings, the Agency may, during only availability of records to the public, such time as that circumstance con- except as specifically stated in this tinues, treat the records as not subject part. to the requirements of 5 U.S.C. 552. (b) Nothing in this part shall be con- (B) [Reserved] strued as authority to withhold infor- (ii) Would deprive a person of a right mation from Congress. to a fair trial or an impartial adjudica- tion, (iii) Could reasonably be expected to Subpart 4—Location for Inspection constitute an unwarranted invasion of and Request of Agency Records personal privacy, (iv) Could reasonably be expected to § 1206.400 Information Centers. disclose the identity of a confidential NASA will maintain Information source, including a State, local, or for- Centers as set forth in this subpart. eign agency or authority or any pri- vate institution which furnished infor- § 1206.401 Location of NASA Informa- mation on a confidential basis, and, in tion Centers. the case of a record or information (a) NASA will maintain the following compiled by criminal law enforcement Information Centers, at which Agency authority in the course of a criminal records may be inspected, from which investigation or by an agency con- copies of Agency records may be re- ducting a lawful national security in- quested and at which copies of Agency telligence investigation, information forms may be obtained:
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(1) NASA Headquarters (HQ) Informa- (8) (LaRC) http://foia.larc.nasa.gov/ tion Center, National Aeronautics and readroom.html; Space Administration, Washington, DC (9) (MSFC) http:// 20546. www1.msfc.nasa.gov/FOIA/docs/ (2) NASA Information Center, Ames docs.html and Research Center (ARC), Moffett Field, (10) (SSC) http://www.ssc.nasa.gov/ CA 94035. foia/reading/ (3) NASA Information Center, Hugh (c) In addition a requester may sub- L. Dryden Flight Research Center, mit a FOIA request electronically. The (DFRC), Post Office Box 273, Edwards, addresses are as follows: (HQ) CA 93523. [email protected]; (ARC) (4) NASA Information Center, Glenn [email protected]; (DFRC) Research Center (GRC), 21000 [email protected]; (GRC) Brookpark Road, Cleveland, OH 44135. [email protected]; (GSFC) (5) NASA Information Center, God- [email protected]; (JSC) dard Space Flight Center (GSFC), [email protected]; Greenbelt, MD 20771. (KSC)[email protected]; (LaRC) (6) NASA Information Center, John [email protected]; (MSFC) F. Kennedy Space Center (KSC), Ken- [email protected] and (SSC) nedy Space Center, FL 32899. [email protected]; and for Inspector (7) NASA Information Center, Lang- General records, [email protected]. ley Research Center (LaRC), Langley Station, Hampton, VA 23665. § 1206.402 Documents available for in- (8) NASA Information Center, Lyn- spection at NASA Information Cen- don B. Johnson Space Center (JSC), ters. 2101 NASA Road 1, Houston, TX 77058. (a) Each NASA Information Center (9) NASA Information Center, George will have available for inspection, as a C. Marshall Space Flight Center minimum, a current version of the fol- (MSFC), Huntsville, AL 35812. lowing documents: (10) NASA Information Center, John (1) 5 U.S.C. 552; C. Stennis Space Center (SSC), MS (2) Title 14 CFR Chapter V, and Title 39529. 41 CFR Chapter 18, and material pub- (11) NASA Information Center, NASA lished in the FEDERAL REGISTER for Management Office Jet Propulsion codification but not yet included in the Laboratory (JPL), 4800 Oak Grove Code of Federal Regulations; Drive, Pasadena, CA 91109. (3) A master list and index of NASA (12) NASA Information Center, Wal- Issuances, and a copy of all such lops Flight Facility (WFF), Wallops Is- issuances; land, VA 23337. (4) A list and index of the manage- (b) NASA Headquarters and each ment issuances of the NASA Center at NASA Center also has a FOIA Elec- which the Information Center is lo- tronic Reading Room on the Internet. cated, and a copy of such issuances; The Uniform Resource Locator (URL) (5) NASA’s Scientific and Technical addresses are as follows: AeroSpace Reports and current indexes (1) (HQ) http://www.hq.nasa.gov/of- thereto; fice/pao/FOIA/; (6) Cumulative Index to Selected (2) (ARC) http://george.arc.nasa.gov/ Speeches and News Releases issued by dx/FOIA/elec.html; NASA Headquarters; (3) (DFRC) http://www.dfrc.nasa.gov/ (7) Index/Digest of Decisions, NASA FOIA/readroom.html; Board of Contract Appeals; (4) (GRC) http://www.grc.nasa.gov/ (8) Decisions of the NASA Contract WWW/FOIA/ReadingRm.htm; Adjustment Board and a current index (5) (GSFC) http://gen- thereto; esis.gsfc.nasa.gov//foia/read-rm.htm; (9) Copies of Environmental Impact (6) (JSC) http://www.jsc.nasa.gov/pao/ Statements filed by NASA under the public/foia/edocs.html; National Environmental Policy Act of (7) (KSC) http://www- 1969; foia.ksc.nasa.gov/foia/ (10) Collection of all issues of ‘‘NASA READROOM.HTM; Activities’’;
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(11) List of licenses granted under (1) After consultation with the Chief NASA-owned patents; and Counsel or the Counsel charged with (12) A master list and an index of providing legal advice to a Center or a NASA Policy Directives, Guidelines, Component Facility, making initial de- and Charters, and a copy of all such Di- terminations under § 1206.603 and rectives, Guidelines, and Charters. § 1206.604; (b) Because the indexes listed in (2) Determining whether unusual cir- paragraph (a) of this section are volu- cumstances exist under § 1206.608 as minous and because current versions would justify the extension of the time thereof will be available for inspection at NASA Information Centers, from limit for an initial determination; and which copies of the indexes may be re- (3) In coordination with the Asso- quested under § 1206.603, it is deter- ciate Deputy Administrator, ensuring mined and so ordered that publication that requests for records under the cog- of the indexes quarterly in the FED- nizance of his/her respective Center are ERAL REGISTER would be unnecessary processed and initial determinations and impractical. made within the time limits specified in Subpart 6 of this part. § 1206.403 Duty hours. (b) If so designated by the Director or The NASA Information Centers listed Officials-in-Charge of the respective in § 1206.401 shall be open to the public Center, the principal Public Affairs Of- during all regular workdays, from 9 ficer at the Center may perform the a.m. to 4 p.m. functions set forth in paragraphs (a)(1) and (2) of this section. Subpart 5—Responsibilities § 1206.503 NASA Headquarters. § 1206.500 Associate Deputy Adminis- trator. (a) Except as otherwise provided in § 1206.504, the Associate Administrator Except as otherwise provided in for Public Affairs, is responsible for the § 1206.504, the Associate Deputy Admin- istrator or designee is responsible for following: the following: (1) Preparing the annual reports re- (a) Providing overall supervision and quired by § 1206.900, including estab- coordination of the implementation of lishing reporting procedures through- the policies and procedures set forth in out NASA to facilitate the preparation this Part 1206; of such reports; (b) After consultation with the Gen- (2) After consultation with the Office eral Counsel, making final determina- of General Counsel, making initial de- tions under § 1206.607, within the time terminations under § 1206.603 and limits specified in Subpart 6 of this § 1206.604; part; (3) Determining whether unusual cir- (c) Determining whether unusual cir- cumstances exist under § 1206.608 as cumstances exist under § 1206.608 as would justify the extension of the time would justify the extension of the time limit for an initial determination; and limit for a final determination. (4) In coordination with the Asso- § 1206.501 General Counsel. ciate Deputy Administrator, ensuring that requests for Agency records under The General Counsel is responsible the cognizance of Headquarters are for the interpretation of 5 U.S.C. 552 and of this part, and for the handling of processed and initial determinations litigation in connection with a request made within the time limits specified for an Agency record under this part. in Subpart 6 of this part. (b) The functions set forth in para- § 1206.502 Centers and Components. graphs (a)(1), (2) and (3) of this section (a) Except as otherwise provided in may be delegated by the Associate Ad- § 1206.504, the Director of each NASA ministrator for Public Affairs to a Pub- Center or the Official-in-Charge of each lic Affairs Officer or Specialist and to Component, is responsible for the fol- the Manager or his/her designee, NASA lowing: Management Office—JPL.
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§ 1206.504 Inspector General. part is delegated from the Adminis- (a) The Inspector General or designee trator to the officials named in this is responsible for making final deter- subpart. minations under § 1206.607, within the time limits specified in Subpart 6 of Subpart 6—Procedures this part, concerning audit inspection and investigative records originating § 1206.600 Requests for records. in the Office of the Inspector General A member of the public may request records from outside the Government an Agency record by mail, facsimile related to an audit inspection or inves- (FAX), electronic-mail (e-mail), or in tigation, records prepared in response person from the FOIA Office having to a request from or addressed to the cognizance over the record requested or Office of the Inspector General, or from the NASA Headquarters FOIA Of- other records originating within the fice. Office of the Inspector General, after consultation with the General Counsel § 1206.601 Mail, fax and e-mail re- or designee on an appeal of an initial quests. determination to the Inspector Gen- In view of the time limits under 5 eral. U.S.C. 552(a)(6) for an initial deter- (b) The Assistant Inspectors General mination on a request for an Agency or their designees are responsible for record (see § 1206.603), a request must making initial determinations under meet the following requirements: § 1206.603 and § 1206.604 concerning audit (a) The request must be addressed to inspection and investigative records an appropriate NASA FOIA Office or originating in the Office of the Inspec- otherwise be clearly identified in the tor General, records from outside the letter as a request for an Agency Government related to an audit inspec- record under the ‘‘Freedom of Informa- tion or investigation, records prepared tion Act.’’ in response to a request from or ad- (b) The request must identify the dressed to the Office of the Inspector record requested or reasonably describe General, or other records originating it in a manner that enables a profes- with the Office of the Inspector Gen- sional NASA employee who is familiar eral, after consultation with the Attor- with the subject area of the request to ney-Advisor to the Inspector General identify and locate the record with a or designee. reasonable amount of effort. NASA (c) The Inspector General or designee need not comply with a blanket or cat- is responsible for ensuring that re- egorical request (such as ‘‘all matters quests for Agency records as specified relating to’’ a general subject) where it in paragraphs (a) and (b) of this section is not reasonably feasible to determine are processed and initial determina- what is sought. NASA will in good tions are made within the time limits faith endeavor to identify and locate specified in Subpart 6 of this part. the record sought and will consult with (d) The Inspector General or designee the requester when necessary and ap- is responsible for determining whether propriate for that purpose. However, as unusual circumstances exist under provided in § 1206.203, NASA will under- § 1206.608 that would justify extending take no obligation to compile or create the time limit for an initial or final de- information or records not already in termination, for records as specified in existence at the time of the request. paragraphs (a) and (b) of this section. (c) If a fee is chargeable under Sub- (e) Records as specified in paragraphs part 7 of this part for search or duplica- (a) and (b) of this section include any tion costs incurred in connection with records located at Regional and field a request for an Agency record, and the Inspector General Offices, as well as requester knows the amount of the fee records located at the Headquarters Of- at the time of the request, the request fice of the Inspector General. should be accompanied by a check or money order payable in that amount to § 1206.505 Delegation of authority. the ‘‘National Aeronautics and Space Authority necessary to carry out the Administration.’’ NASA cannot be re- responsibilities specified in this sub- sponsible for cash sent by mail; stamps
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will not be accepted. If the amount of Office. With respect to such a request, the fee chargeable is not known at the unless an initial determination can time of the request, the requester will reasonably be made within 20 working be notified in the initial determination days of the original receipt, the request (or in a final determination in the case will be promptly acknowledged and the of an appeal) of the amount of the fee requester notified of the date the re- chargeable (see § 1206.608(c)). For cir- quest was received at that FOIA Office cumstances in which advance payment and that an initial determination on of fees is required, see § 1206.704. the request will be made within 20 working days of that date. § 1206.602 Requests in person. (c) If it is determined that the re- (a) A member of the public may re- quested record (or portion thereof) will quest an Agency record in person at a be made available, and if the charges NASA FOIA Office (see § 1206.401) dur- are under $250, NASA will either send a ing the duty hours of NASA Head- copy of the releasable record and a bill quarters or the Center. for the fee or send the initial deter- (b) A request at a FOIA Office must mination and a bill for the fee to the identify the record requested or reason- requester. In the latter case, the docu- ably describe it as provided in ments will be released when the fee is § 1206.601(b). received. If the fee chargeable is over (c) If the record requested is located $250, a request for payment of the fee at the FOIA Office or otherwise readily will always be sent with the initial de- obtainable, it shall be made available termination, and the records will be to the requester upon the payment of mailed only upon receipt of payment. any fees that are chargeable (see Sub- When records are sent before payment part 7 of this part), which fees may be is received, the fact that interest will paid by a check or money order pay- be charged from the 31st day after the able to the ‘‘National Aeronautics and day of the response shall be stated in Space Administration’’. If the record the response. The date of the mailing requested is not located at the FOIA of an initial determination, with or Office or otherwise readily obtainable, without the records(s), shall be deemed the request will be docketed at the to satisfy the time limit for initial de- FOIA Office and processed in accord- terminations. ance with the procedures in § 1206.603 (d) Any notification of an initial de- and § 1206.604, with any fee chargeable termination that does not comply fully being handled in accordance with with the request for an Agency record, § 1206.601(c). including those searches that produce no documents, shall include a state- § 1206.603 Procedures and time limits ment of the reasons for the adverse de- for initial determinations. termination, include the name and (a) Except as provided in § 1206.608, an title of the person making the initial initial determination on a request for determination, and notify the re- an Agency record, addressed in accord- quester of the right to appeal to the ance with § 1206.601(a) or made in per- Administrator, or the Inspector Gen- son at a NASA FOIA Office shall be eral, as appropriate, under § 1206.605. made, and the requester shall be sent (e) If the requester demonstrates a notification thereof, within 20 working ‘‘compelling need’’ as defined in days after receipt of the request, as re- § 1206.101(r) for records, NASA shall quired by 5 U.S.C. 552(a)(6). provide expedited processing of the re- (b) An initial determination on a re- quest. NASA will inform the requester quest for an Agency record by mail not as to whether the request for expedited addressed in accordance with processing has been granted within 10 § 1206.601(a) shall be made, and the re- working days after the date of the re- quester shall be sent notification quest. thereof, within 20 working days after the correspondence is recognized as a § 1206.604 Request for records that request for an Agency record under the exist elsewhere. ‘‘Freedom of Information Act’’ and re- (a) If a request for an Agency record ceived by the appropriate NASA FOIA is received by a FOIA Office not having
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cognizance of the record (for example, adverse initial determination should be when a request is submitted to one reversed; and NASA Center or Headquarters and the (6) Be sent to the Administrator or requested record exists only at another the Inspector General, as appropriate, NASA Center), the FOIA Office receiv- within 30 calendar days of the date of ing the request shall promptly forward receipt of the initial determination. it to the NASA FOIA Office having cog- (c) An official authorized to make a nizance of the record requested. That final determination may waive any of Center shall acknowledge the request the requirements of paragraph (b) of and inform the requester that an ini- this section, in which case the time tial determination on the request will limit for the final determination (see be sent within 20 working days from § 1206.607(a)) shall run from the date of the date of receipt by such Center. such waiver. (b) If a request is received for Agency records which exist at two or more § 1206.606 Request for additional Centers, the FOIA Office receiving the records. request shall undertake to comply with the request, if feasible, or to forward If, upon receipt of a record (or por- the request (or portions thereof) tions thereof) following an initial de- promptly to a more appropriate Center termination to comply with a request, for processing. The requester shall be the requester believes that the mate- kept informed of the actions taken to rials received do not comply with the respond to the request. request, the requester may elect either (c) If a request is received by a NASA to request additional records under the FOIA Office for a record of another procedures of § 1206.601 or § 1206.602, or agency, the requester shall promptly to file an appeal under the procedures be informed of that fact, and the re- of § 1206.605, in which case the appeal quest shall be returned to the re- must be sent to the Administrator, or quester, with advice as to where the re- to the Inspector General, in the case of quest should be directed. records as specified in § 1206.504, within 30 days of receipt of the record (or por- § 1206.605 Appeals. tions thereof), unless good cause is (a) A member of the public who has shown for any additional delay. requested an Agency record in accord- ance with § 1206.601 or § 1206.602, and § 1206.607 Actions on appeals. who has received an initial determina- (a) Except as provided in § 1206.608, tion which does not comply fully with the Administrator or designee, or in the request, may appeal such an ad- the case of records as specified in verse initial determination to the Ad- § 1206.504, the Inspector General or des- ministrator, or, for records as specified ignee, shall make a final determination in § 1206.504, to the Inspector General on an appeal and notify the requester under the procedures of this section. thereof, within 20 working days after (b) The Appeal must: the receipt of the appeal. (1) Be in writing; (b) If the final determination re- (2) Be addressed to the Adminis- verses in whole or in part the initial trator, NASA Headquarters, Wash- determination, the record requested (or ington, DC 20546, or, for records as portions thereof) shall be made avail- specified in § 1206.504, to the Inspector able promptly to the requester, as pro- General, NASA Headquarters, Wash- ington, DC 20546; vided in the final determination. (3) Be identified clearly on the enve- (c) If the final determination sustains lope and in the letter as an ‘‘Appeal in whole or in part an adverse initial under the Freedom of Information determination, the notification of the Act’’; final determination shall: (4) Include a copy of the request for (1) Explain the basis on which the the Agency record and a copy of the ad- record (or portions thereof) will not be verse initial determination; made available; (5) To the extent possible, state the (2) Include the name and title of the reasons why the requester believes the person making the final determination;
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(3) Include a statement that the final for processing the request shall be con- determination is subject to judicial re- sidered as a factor in determining view under 5 U.S.C. 552(a)(4); and whether exceptional circumstances (4) Enclose a copy of 5 U.S.C. exist. 552(a)(4). § 1206.609 Litigation. § 1206.608 Time extensions in unusual In any instance in which a requester circumstances. brings suit concerning a request for an (a) In ‘‘unusual circumstances’’ as Agency record under this part, the that term is defined in § 1206.101(f), the matter shall promptly be referred to time limits for an initial determina- the General Counsel together with a re- tion (see § 1206.603 and § 1206.604) and for port on the details and status of the re- a final determination (see § 1206.607) quest. In such a case, if a final deter- may be extended, but not to exceed a mination with respect to the request total of 10 working days in the aggre- has not been made, such a determina- gate in the processing of any specific tion shall be made as soon as possible, request for an Agency record. under procedures prescribed by the (b) If an extension of time under this General Counsel in each case. section would be required, the re- quester shall be promptly notified of § 1206.610 Notice to submitters of com- the reasons therefor and the date when mercial information. a determination will be sent. (a) General policy. Upon receipt of a (c) If a record described in a request request for commercial information cannot be located within the 20-work- pursuant to the Freedom of Informa- ing-day time limit for an initial deter- tion Act, NASA shall provide the sub- mination, after consultation with a mitter with notice of the request in ac- professional NASA employee who is fa- cordance with the requirements of this miliar with the subject area of the re- section. quest, that fact normally will justify (b) Notice to submitters. Except as an initial determination that the provided in paragraph (g) or (h) of this record requested cannot be identified section, the Agency shall make a good or located, rather than a decision that faith effort to provide a submitter with an extension of time under this section prompt notice of a request appearing to would be appropriate. encompass its commercial information (d) In exceptional circumstances, if it whenever required under paragraph (c) would be impossible to complete a of this section. Such notice shall iden- search for or review of Agency records tify the commercial information re- within the 20-working-day period for an quested and shall inform the submitter initial determination, an official au- of the opportunity to object to its dis- thorized to make an initial determina- closure in accordance with paragraph tion or the designee may seek an ex- (d) of this section. If the submitter tension of time from the requester. If would not otherwise have access to the such an extension of time can be document that contains the informa- agreed upon, that fact should be clear- tion, upon the request of the sub- ly documented and the initial deter- mitter, the Agency shall provide access mination made within the extended to, or copies of, the records or portions time period; if not, an initial deter- thereof containing the commercial in- mination that the record cannot be formation. This notice shall be pro- identified or located, or reviewed, with- vided in writing upon the request of in the 20-working-day time limit shall the submitter. Whenever the Agency be made under § 1206.603. ‘‘Exceptional provides notice pursuant to this sec- circumstances’’ do not include a delay tion, the Agency shall advise the re- that results from a predictable Agency quester that notice and opportunity to workload of requests unless the Agency comment are being provided to the sub- demonstrates reasonable progress in mitter. reducing its backlog of pending re- (c) When notice is required. Notice quests. Refusal by the requester to rea- shall be given to a submitter whenever sonably modify the scope of a request the information has been designated by or arrange an alternative time frame the submitter as information deemed
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protected from disclosure under Ex- (f) Notice of FOIA lawsuit. Whenever emption 4 of the Act, or the Agency a requester brings suit seeking to com- otherwise has reason to believe that pel disclosure of commercial informa- the information may be protected from tion covered by paragraph (c) of this disclosure under Exemption 4. section, the Agency shall promptly no- (d) Opportunity to object to disclo- tify the submitter. Whenever a sub- sure. Through the notice described in mitter brings suit against the Agency paragraph (b) of this section, the Agen- in order to prevent disclosure of com- cy shall afford a submitter a reason- mercial information, the Agency shall able period within which to provide the promptly notify the requester. Agency with a detailed statement of (g) Exceptions to notice require- any objection to disclosure. This period ments. The notice requirements of this shall not exceed 10 working days from section do not apply if— the date after which the Agency can (1) The information has been pub- reasonably assume receipt of notice by lished or otherwise made available to the submitter, unless the submitter the public. provides a reasonable explanation jus- (2) Disclosure of the information is tifying additional time to respond. If required by law (other than 5 U.S.C. the Agency does not receive a response 552); from the submitter within this period, (3) The submitter has received notice the Agency shall proceed with its re- of a previous FOIA request which en- view of the information and initial de- compassed information requested in termination. The submitter’s response the later request, and the Agency in- shall include all bases, factual or legal, tends to withhold and/or release infor- for withholding any of the information mation in the same manner as in the pursuant to Exemption 4. Information previous FOIA request; provided by a submitter pursuant to (4) Upon submitting the information this paragraph may itself be subject to or within a reasonable period there- disclosure under the FOIA. Submitters after, will not be provided additional oppor- (i) The submitter reviewed its infor- tunities to object to disclosure, and, mation in anticipation of future re- therefore, should provide a complete quests pursuant to the FOIA, explanation of any and all bases for (ii) Provided the Agency a statement withholding any information from dis- of its objections to disclosure con- closure. sistent with that described in para- (e) Notice of intent to disclose. The graph (e) of this section, and Agency shall carefully consider any ob- (iii) The Agency intends to release jections of the submitter in the course information consistent with the sub- of determining whether to disclose mitter’s objections; commercial information. Whenever the (5) Notice to the submitter may dis- Agency decides to disclose commercial close information exempt from disclo- information over the objection of a sure pursuant to 5 U.S.C. 552(b)(7). submitter, the Agency shall forward to (h)(1) An additional limited exception the submitter a written statement to the notice requirements of this sec- which shall include the following: tion, to be used only when all of the (1) A brief explanation as to why the following exceptional circumstances Agency did not agree with any objec- are found to be present, authorizes the tions; Agency to withhold information which (2) A description of the commercial is the subject of a FOIA request, based information to be disclosed, sufficient on Exemption 4 (5 U.S.C. 552(b)(4)), to identify the information to the sub- without providing the submitter indi- mitter; and vidual notice: (3) A date after which disclosure is (i) The Agency would be required to expected. Such notice of intent to dis- provide notice to over 10 submitters, in close shall be forwarded to the sub- which case, notification may be accom- mitter in a reasonable number of work- plished by posting or publishing the no- ing days prior to the expected disclo- tice in a place reasonably calculated to sure date. accomplish notification.
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(ii) Absent any response to the pub- them requires the time of professional lished notice, the Agency determines or managerial personnel, and when the that if it provided notice as is other- amount of time that must be expended wise required by paragraph (c) of this in the search and collection of the re- section, it is reasonable to assume that quested records by such higher level the submitter would object to disclo- personnel is substantial, charges for sure of the information based on Ex- the search may be made at a rate in ex- emption 4; and, cess of the clerical rate, namely for (iii) If the submitter expressed the each one-quarter hour spent by such anticipated objections, the Agency higher level personnel in searching for would uphold those objections. a requested record, $7.50. (2) This exemption shall be used only (d) Review of records. For commer- with the approval of the Chief Counsel cial use requests only, when time is of the Center, the Attorney-Advisor to spent reviewing to determine whether the Inspector General, or the Associate they are exempt from mandatory dis- General Counsel responsible for pro- closure, a charge may be made at the viding advice on the request. This ex- rate for each one-quarter hour spent by ception shall not be used for a class of an attorney, $11.25. No charge shall be documents or requests, but only as made for the time spent in resolving warranted by an individual FOIA re- general legal or policy issues regarding quest. the application of exemptions. This charge will only be assessed the first [64 FR 39404, July 22, 1999, as amended at 65 time NASA reviews a record and not at FR 19647, Apr. 12, 2000] the administrative appeal level. (e) Computerized records. Because of Subpart 7—Search, Review, and the diversity in the types and configu- Duplication Fees rations of computers which may be re- quired in responding to requests for § 1206.700 Schedule of fees. Agency records maintained in whole or The fees specified in this section in part in computerized form, it is not shall be charged for searching for, re- feasible to establish a uniform schedule viewing, and/or duplicating Agency of fees for search and printout of such records made available in response to a records. In most instances, records request under this part. maintained in computer data banks are (a) Copies. For copies of documents available also in printed form and the such as letters, memoranda, state- standard fees specified in paragraph (a) ments, reports, contracts, etc., $0.10 of this section shall apply. If the re- per copy of each page. For copies of quest for an Agency record required to oversize documents, such as maps, be made available under this part re- charts, etc., $0.15 for each reproduced quires a computerized search or print- copy per square foot. These charges for out, the charge for the time of per- copies include the time spent in dupli- sonnel involved shall be at the rates cating the documents. For copies of specified in paragraphs (b) and (c) of computer disks, still photographs, this section. The charge for the com- blueprints, videotapes, engineering puter time involved and for any special drawings, hard copies of aperture supplies or materials used shall not ex- cards, etc., the fee charged will reflect ceed the direct cost to NASA. This the full direct cost to NASA of repro- charge may be as high as $125.00 per ducing or copying the record. quarter hour. Before any computer (b) Clerical searches. For each one- search or printout is undertaken in re- quarter hour spent by clerical per- sponse to a request for an Agency sonnel in searching for an Agency record, the requester shall be notified record in response to a request under of the applicable unit costs involved this part, $3.75. and the total estimated cost of the (c) Nonroutine, nonclerical searches. search and/or printout. When a search cannot be performed by (f) Other search and duplication clerical personnel; for example, when costs. Reasonable standard fees, other the task of determining which records than as specified in paragraphs (a) fall within a request and collecting through (e) of this section, may be
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charged for additional direct costs in- (2) If the cost to be billed to the re- curred in searching for or duplicating quester is equal to or less than $15.00, an Agency record in response to a re- no charges will be billed. quest under this part. Charges which (j) Records will be provided in a form may be made under this paragraph in- or format specified by the requester if clude, but are not limited to, the trans- they are readily reproducible in such portation of NASA personnel to places format with reasonable efforts. If the of record storage for search purposes or records are not readily reproducible in freight charges for transporting the requested form or format, the records to the personnel searching for Agency will so inform the requester. or duplicating a requested record. The requester may specify an alter- (g) Charges for special services. Com- native form or format that is available. plying with requests for special serv- If the requester refuses to specify an ices such as those listed in (g)(1), (2), alternative form or format, the Agency and (3) of this section is entirely at the will not process the request further. discretion of NASA. Neither the FOIA nor its fee structure cover these kinds § 1206.701 Categories of requesters. of services. To the extent that NASA There are four categories of FOIA re- elects to provide the following services, questers: Commercial use requesters; it will levy a charge equivalent to the educational and noncommercial sci- full cost of the service provided: entific institutions; representatives of (1) Certifying that records are true the news media; and all other request- copies. ers. The Act prescribes specific levels (2) Sending records by special meth- of fees for each of these categories: ods such as express mail. (a) Commercial use requesters. When (3) Packaging and mailing bulky NASA receives a request for documents records that will not fit into the larg- appearing to be for commercial use, it est envelope carried in the supply in- will assess charges which recover the ventory. full direct costs of searching for, re- viewing for release, and duplicating the (h) Unsuccessful or unproductive records sought. Requesters must rea- searches. Search charges, as set forth sonably describe the records sought. in paragraphs (b) and (c) of this sec- Moreover, in the case of such a request, tion, may be made even when an Agen- NASA will not consider a request for cy record which has been requested waiver or reduction of fees based upon cannot be identified or located after a an assertion that disclosure would be diligent search and consultation with a in the public interest. Commercial use professional NASA employee familiar requesters are not entitled to 2 hours with the subject area of the request, or of free search time or to 100 free pages if located, cannot be made available of reproduction of documents. under Subpart 3 of this part. Ordi- (b) Education and noncommercial narily, however, fees will not be scientific institution requesters. NASA charged in such instances unless they shall provide documents to requesters are substantial (over $50.00) and the re- in this category for the cost of repro- quester has consented to the search duction alone, excluding charges for after having been advised that it can- the first 100 pages. To be eligible for in- not be determined in advance whether clusion in this category, requesters any records exist which can be made must show that the request being made available (see § 1201206.704) and that is authorized by and under the auspices search fees will be charged even if no of a qualifying institution and that the record can be located and made avail- records are not being sought for a com- able. mercial use, but are being sought in (i) Fees not chargeable. furtherance of scholarly (if the request (1) NASA will not charge for the first is from an educational institution) or 100 pages of duplication and the first 2 scientific (if the request is from a non- hours of search time either manual or commercial scientific institution) re- electronic except to requesters seeking search. Requesters must reasonably de- documents for commercial use. scribe the records sought.
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(c) Requesters who are representa- public understanding of the operations tives of the news media. NASA shall or activities of the government, the provide documents to requesters in this following considerations shall be ap- category for the cost of reproduction plied: alone, excluding charges for the first (1) Whether the subject of the re- 100 pages. To be eligible for inclusion in quested records concerns ‘‘the oper- this category, a requester must dem- ations or activities of the govern- onstrate that he/she meets the criteria ment’’; in § 1206.101(o) of this part, and his/her (2) Whether the disclosure is ‘‘likely request must not be made for a com- to contribute’’ to an understanding of mercial use. Requesters must reason- government operations or activities; ably describe the records sought. (3) Whether disclosure of the re- (d) All other requesters. NASA shall quested information will contribute to charge requesters who do not fit into any of the categories mentioned in this ‘‘public understanding’’; and section, fees which recover the full di- (4) Whether the disclosure is likely to rect reasonable cost of searching for contribute ‘‘significantly’’ to public and reproducing records that are re- understanding of government oper- sponsive to the request, except that the ations or activities. first 100 pages of reproduction and the (d) In determining whether disclosure first 2 hours of search time shall be fur- of the information ‘‘is not primarily in nished without charge. Moreover, re- the commercial interest of the re- quests from individuals for records quester,’’ the following consideration about themselves located in NASA’s shall be applied: systems of records will continue to be (1) Whether the requester has a com- processed under the fee provisions of mercial interest that would be the Privacy Act of 1974, which permits furthered by the requested disclosure; fees only for reproduction. Requesters and if so, must reasonably describe the records (2) Whether the magnitude of the sought. identified commercial interest of the requester is sufficiently large, in com- § 1206.702 Waiver or reduction of fees. parison with the public interest in dis- The burden is always on the re- closure, that disclosure is ‘‘primarily quester to provide the evidence to qual- in the commercial interest of the re- ify him/her for a fee waiver or reduc- quester.’’ tion. (a) NASA shall furnish documents § 1206.703 Aggregation of requests. without charge or at reduced charges A requester may not file multiple re- in accordance with 5 U.S.C. quests at the same time, each seeking 552(a)(4)(A)(iii), provided that: (1) Disclosure of the information is in portions of a document or documents, the public interest because it is likely solely in order to avoid payment of to contribute significantly to public fees. When NASA has reason to believe understanding of the operations or ac- that a requester or a group of request- tivities of the government and ers acting in concert, is attempting to (2) It is not primarily in the commer- break a request down into a series of cial interest of the requester. requests for the purpose of evading the (b) Where these two statutory re- assessment of fees, NASA will aggre- quirements are satisfied, based upon gate any such requests and charge ac- information supplied by the requester cordingly. NASA will consider that or otherwise made known to NASA, the multiple requests made within a 30-day FOIA fee shall be waived or reduced. period were so intended, unless there is Where one or both of these require- evidence to the contrary. Where the ments is not satisfied, a fee waiver or relevant time period exceeds 30 days, reduction is not warranted under the NASA will not assume such a motive statute. unless there is evidence to the con- (c) In determining whether disclosure trary. In no case will NASA aggregate is in the public interest because it is multiple requests on unrelated subjects likely to contribute significantly to from one requester.
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§ 1206.704 Advance payments. not more than 30-day intervals, disclo- (a) NASA will not require a requester sure to a consumer reporting agency, to make an advance payment, i.e., pay- and the use of a collection agency, ment before work is commenced or where appropriate. continued on a request, unless: (1) NASA estimates or determines Subpart 8—Failure to Release that the allowable charges are likely to Records to the Public exceed $250. NASA will notify the re- quester of the likely cost and obtain § 1206.800 Failure to release records to satisfactory assurance of full payment the public. where the requester has a history of (a) Except to the extent that a person prompt payment of FOIA fees, or re- has actual and timely notice of the quire an advance payment of an terms thereof, a person may not in any amount up to the full estimated manner be required to resort to, or be charges in the case of requesters with adversely affected by, a matter re- no history of payment; or quired to be published in the FEDERAL (2) A requester has previously failed REGISTER under § 1206.200(a) and not so to pay a fee in a timely fashion (within published. 30 days of billing), then NASA may re- (b) A final order, opinion, statement quire the requester to pay the full of policy, interpretation, or staff man- amount owed plus any applicable inter- ual or instruction that affects a mem- est as provided below (see § 1206.706(a)), ber of the public may be relied upon, or demonstrate that he/she has, in fact, used, or cited as precedent by NASA paid the fee, and to make an advance against any member of the public only payment of the full amount of the esti- if it has been indexed and either made mated fee before the Agency begins to available or published as provided by process a new request or a pending re- § 1206.200(b) or if the member of the quest from that requester. public has actual and timely notice of (b) When NASA acts under para- the terms thereof. graphs (a)(1) and (2) of this section, the (c) Failure to make available an administrative time limits will begin Agency record required to be made only after NASA has received the fee available under this part could provide payments described in paragraph (a) of the jurisdictional basis for a suit this section. against NASA under 5 U.S.C. 552(a)(4) (B) through (G), which provides as fol- § 1206.705 Form of payment. lows: Payment shall be made by check or money order payable to the ‘‘National (B) On complaint, the District Court of the United States in the district in which the Aeronautics and Space Administra- complainant resides, or has his principal tion’’ and sent per instructions in the place of business, or in which the Agency initial determination. records are situated, or in the District of Co- lumbia, has jurisdiction to enjoin the Agen- § 1206.706 Nonpayment of fees. cy from withholding Agency records and to (a) Interest to be charged. Requesters order the production of any Agency records are advised that should they fail to pay improperly withheld from the complainant. the fees assessed, they may be charged In such a case the court shall determine the matter de novo, and may examine the con- interest on the amount billed starting tents of such Agency records in camera to on the 31st day following the day on determine whether such records or any part which the billing was sent. Interest thereof shall be withheld under any of the will be at the rate prescribed in section exemptions set forth in subsection (b) of this 3717 of Title 31 U.S.C. section, and the burden is on the Agency to (b) Applicability of Debt Collection sustain its action. Act of 1982 (Pub. L. 97–365). Requesters (C) Notwithstanding any other provision of are advised that if full payment is not law, the defendant shall serve an answer or received within 60 days after the billing otherwise plead to any complaint made under this subsection within 30 days after was sent, the procedures of the Debt service upon the defendant of the pleading in Collection Act may be invoked (14 CFR which such complaint is made, unless the 1261.407–1261.409). These procedures in- court otherwise directs for good cause clude three written demand letters at shown.
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[(D) Repealed. Pub. L. 98–620, Title IV, AUTHORITY: 5 U.S.C. 7301; 18 U.S.C. 207–208; 402(2), Nov. 8, 1984, 98 Stat. 3335, 3375.] 42 U.S.C. 2473(c)(1); 5 CFR 2635.102(b); 5 CFR (E) The court may assess against the part 2637; 5 CFR part 2640. United States reasonable attorney fees and other litigation costs reasonably incurred in SOURCE: 52 FR 22755, June 16, 1987, unless any case under this section in which the otherwise noted. complainant has substantially prevailed. (F) Whenever the court orders the produc- Subpart A—General Provisions tion of any Agency records improperly with- held from the complainant and assesses § 1207.101 Cross-references to ethical against the United States reasonable attor- conduct, financial disclosure, and ney fees and other litigation costs, and the other applicable regulations. court additionally issues a written finding that the circumstances surrounding the Employees of the National Aero- withholding raise questions whether Agency nautics and Space Administration personnel acted arbitrarily or capriciously (NASA) should refer to the executive with respect to the withholding, the Special branch-wide Standards of Ethnical Counsel shall promptly initiate a proceeding Conduct at 5 CFR part 2635, the NASA to determine whether disciplinary action is warranted against the officer or employee regulation at 5 CFR part 6901 which who was primarily responsible for the with- supplements the executive branch-wide holding. The Special Counsel, after inves- standards with respect to prohibitions tigation and consideration of the evidence and prior approval requirements appli- submitted, shall submit his findings and rec- cable to certain outside employment ommendations to the administrative author- activities, the Office of Personnel Man- ity of the Agency concerned and shall send agement provisions on employee re- copies of the findings and recommendations sponsibilities and conduct at 5 CFR to the officer or employee or his representa- tive. The administrative authority shall part 735, and the executive branch-wide take the corrective action that the Special financial disclosure regulation at 5 Counsel recommends. CFR part 2634. (G) In the event of noncompliance with the order of the court, the district court may [59 FR 49338, Sept. 28, 1994] punish for contempt the responsible em- ployee, and in the case of a uniformed serv- § 1207.102 Waiver of prohibition in 18 ice, the responsible member. U.S.C. 208. (a) Prohibition. Employees are prohib- Subpart 9—Annual Report ited by criminal statute, 18 U.S.C. 208(a), from participating personally § 1206.900 Requirements for annual re- and substantially in an official capac- port. ity in any particular matter in which, On or before February 1 of each year, to their knowledge, they, or any person NASA shall submit a report covering whose interests are imputed to them the preceding fiscal year to the Depart- under the statute, have a financial in- ment of Justice. terest, if the particular matter will have a direct and predictable effect on PART 1207—STANDARDS OF that interest. CONDUCT (b) Specific waiver available. A NASA employee may request a waiver of this Subpart A—General Provisions prohibition. NASA may grant a specific waiver of the prohibition only if the Sec. Agency determines that the employee’s 1207.101 Cross-references to ethical conduct, financial interest is not so substantial financial disclosure, and other applicable as to be deemed likely to affect the in- regulations. 1207.102 Waiver of prohibition in 18 U.S.C. tegrity of the employee’s services. The 208. waiver must be obtained before the em- 1207.103 Designations of responsible offi- ployee participates in the matter. cials. (c) Officials authorized to make waiver determinations. (1) For the employees Subpart B—Post-Employment Regulations listed below, waivers must be approved 1207.201 Scope of subpart. by the Administrator or Deputy Ad- 1207.202 Exemption for scientific and tech- ministrator. No further delegation is nological communications. authorized.
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(i) Employees who are required by 5 (ii) Other Center employees must CFR 2634.202 to file Public Financial submit their requests to the Center Disclosure Reports; Chief Counsel for concurrence, and (ii) Employees who are appointed then to their Center Director or Dep- under authority of section 203(c)(2) uty Center Director for approval. (‘‘NASA Excepted Positions’’) or sec- (3) Copies of approved waivers must tion 203(c)(10) (‘‘Alien Scientists’’) of be forwarded to the Associate Adminis- the National Aeronautics and Space trator for Human Resources and Edu- Act of 1958, as amended (42 U.S.C. cation, the General Counsel, and the 2473(c)(2) and 2473(c)(10)); Office of Government Ethics. (iii) Astronauts and astronaut can- (e) Cross-references. For regulations didates; concerning general waiver guidance (iv) Chief Counsel; and and exemptions under 18 U.S.C. 208, see (v) Procurement Officers. 5 CFR part 2640. (2) For all other Headquarters em- ployees, the Associate Administrator [66 FR 59137, Nov. 27, 2001] for Headquarters Operations may ap- prove waivers of 18 U.S.C. 208. This au- § 1207.103 Designations of responsible thority may not be redelegated. officials. (3) For all other Center employees, (a) Designated Agency Ethics Official. the Center Director or Deputy Center The General Counsel of NASA is the Director may approve waivers of 18 Designated Agency Ethics Official and U.S.C. 208. This authority may not be is delegated the authority to coordi- redelegated. nate and manage NASA’s ethics pro- (d) Procedures for specific waiver. The gram as set forth in 5 CFR 2638.203. employee’s request for a waiver must (b) Alternate Designated Agency Ethics be in writing. The request must de- Official. The Associate General Counsel scribe the particular matter involved, (General) is the Alternate Designated the relevant duties of the employee, Agency Ethics Official. and the exact nature and amount of (c) Deputy Ethics Officials. The fol- the disqualifying financial interest. lowing officials are designated as Dep- (1) Headquarters employees. (i) Those uty Ethics Officials: Headquarters employees described in (1) The Deputy General Counsel; paragraph (c)(1) of this section must (2) The Associate General Counsel submit their requests to the Official- (General); in-Charge of the Headquarters office in which they are employed and to the (3) The Senior Ethics Attorney as- General Counsel for concurrence. The signed to the Associate General Coun- Official-in-Charge will then submit the sel (General); and request to the Administrator with rec- (4) The Chief Counsel at each NASA ommendations on the proposed waiver. Center and Component Facility. (ii) Other Headquarters employees (d) Agency Designee. As used in 5 CFR must submit their requests to the As- part 2635, the term ‘‘Agency Designee’’ sociate General Counsel (General) for refers to the following: concurrence, and to the Associate Ad- (1) For employees at NASA Head- ministrator for Headquarters Oper- quarters, or for matters affecting em- ations for approval. ployees Agencywide, the Associate (2) Center employees. (i) Those Center Deputy Administrator, the Designated employees described in paragraph (c)(1) Agency Ethics Official, the Alternate of this section must submit their re- Designated Agency Ethics Official, or quests to the Center Chief Counsel for the Chief of Staff; and concurrence and then to the Director (2) For Center employees, the Center of the Center where they are employed. Director, who may delegate specific re- The Center Director will provide the sponsibilities of the Agency Designee request, with recommendations, to the to the Center Chief Counsel or to an- appropriate Enterprise Associate Ad- other official who reports directly to ministrator and to the General Counsel the Center Director. for review and submission to the Ad- (e) Cross-references. For regulations ministrator. on the appointment, responsibilities,
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and authority of the Designated Agen- PART 1208—UNIFORM RELOCA- cy Ethics Official, Alternate Des- TION ASSISTANCE AND REAL ignated Agency Ethics Official, and PROPERTY ACQUISITION FOR Deputy Ethics Officials, see 5 CFR part 2638. For the responsibilities of the FEDERAL AND FEDERALLY AS- Agency Designee, see 5 CFR part 2635. SISTED PROGRAMS [66 FR 59138, Nov. 27, 2001] AUTHORITY: Sec. 213, Uniform Relocation Assistance and Real Property Acquisition Subpart B—Post-Employment Policies Act of 1970, Pub. L. 91–646, 84 Stat. Regulations 1894 (42 U.S.C. 4601) as amended by the Sur- face Transportation and Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. SOURCE: 54 FR 4003, Jan. 27, 1989; 55 FR 100–17, 101 Stat. 246–256 (42 U.S.C. 4601 note). 9250, Mar. 12, 1990, unless otherwise noted. Redesignated at 59 FR 49338, Sept. 28, 1994. EDITORIAL NOTE: For additional informa- tion, see related documents published at 50 § 1207.201 Scope of subpart. FR 8953, March 5, 1985, 52 FR 18768, May 19, 1987, and 52 FR 45667, December 1, 1987. This subpart provides guidance to former NASA government employees § 1208.1 Uniform Relocation Assist- who are subject to the restrictions of ance and Real Property Acquisition. Title V of the Ethics of Government Regulations and procedures for com- Act of 1978, as amended, and who want plying with the Uniform Relocation to communicate scientific or technical Assistance and Real Property Acquisi- information to NASA. tion Policies Act of 1970 (Pub. L. 91–646, 84 Stat. 1894, 42 U.S.C. 4601), as amend- § 1207.202 Exemption for scientific and technological communications. ed by the Surface Transportation and Uniform Relocation Assistance Act of (a) Whenever a former government 1987 (Title IV of Pub. L. 100–17, 101 Stat. employee who is subject to the con- 246–255, 42 U.S.C. 4601 note) are set straints of post-employment conflict of forth in 24 CFR part 24. interest, 18 U.S.C. 207, wishes to com- municate with NASA under the exemp- [52 FR 48017, Dec. 17, 1987 and 54 FR 8912, tion in section 207(j)(5) for the making Mar. 2, 1989] of a communication solely for the pur- pose of furnishing scientific or techno- PART 1209—BOARDS AND logical information, he or she shall COMMITTEES state to the NASA employee con- tracted, the following information: Subparts 1–2 [Reserved] (1) That he or she is a former govern- ment employee subject to the post em- Subpart 3—Contract Adjustment Board ployment restrictions of 18 U.S.C. 207 Sec. (a), (c), or (d)—specify which; 1209.300 Scope. (2) That he or she worked on certain 1209.301 Authority. NASA programs—enumerate which; 1209.302 Establishment of Board. and 1209.303 Functions of Board. (3) That the communication is solely 1209.304 Membership. for the purpose of furnishing scientific 1209.305 Legal advice and assistance. or technological information. (b) If the former government em- Subpart 4—Inventions and Contributions ployee has questions as to whether the Board communication comes within the sci- 1209.400 Scope. entific and technological exemption, he 1209.401 Establishment. or she should contact the General 1209.402 Responsibilities. Counsel, the designated agency ethics 1209.403 Organizational location. official. 1209.404 Membership. 1209.405 Supporting services. [54 FR 4003, Jan. 27, 1989; 55 FR 9250, Mar. 12, 1990. Redesignated and amended at 59 FR 49338, Sept. 28, 1994] Subparts 1–2 [Reserved] 69
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Subpart 3—Contract Adjustment contractual adjustments under the Board Act. Such authority will be exercised in accordance with the standards and procedures established by the Adminis- AUTHORITY: Pub. L. 85–804 and 42 U.S.C. trator, subject to such limitations as 2473(c)(1). the Administrator may prescribe. SOURCE: 51 FR 28924, Aug. 13, 1986, unless (b) The Board shall have the power to otherwise noted. approve, authorize or direct any ac- § 1209.300 Scope. tion, including the modification or re- lease of any obligations, and to make This subpart continues in effect the determinations and findings which are Contract Adjustment Board (herein- necessary or appropriate for the con- after referred to as ‘‘the Board’’) to duct of its functions, and may adopt consider and dispose of requests for ex- such rules of procedure as it considers traordinary contractual adjustments desirable. by contractors of the National Aero- (c) The concurring vote of a majority nautics and Space Administration of the total Board membership shall (hereinafter referred to as NASA). constitute an action of the Board. De- § 1209.301 Authority. cisions of the Board shall be final but the Board may reconsider and modify, (a) The Act of August 28, 1958 (50 correct or reverse any Board decision U.S.C. 1431–35) (hereinafter referred to previously made. as ‘‘the Act’’), empowers the President to authorize departments and agencies § 1209.304 Membership. exercising functions in connection with the national defense to enter into con- The Board will consist of a chair- tracts or into amendments or modifica- person and four other members, all of tions of contracts and to make advance whom shall be appointed by the Admin- payments, without regard to other pro- istrator. visions of law relating to the making, § 1209.305 Legal advice and assistance. performance, amendment, or modifica- tion of contracts, whenever the Presi- The General Counsel of NASA shall dent deems that such action would fa- provide the Board with all necessary cilitate the national defense. advice and assistance. (b) Executive Order No. 10789, dated November 14, 1958 (23 FR 8897), author- Subpart 4—Inventions and izes the Administrator, NASA, to exer- Contributions Board cise the authority conferred by the Act and to prescribe regulations for the AUTHORITY: 42 U.S.C. 2457(f) and 2458. carrying out of such authority. (c) Federal Acquisition Regulation SOURCE: 51 FR 3945, Jan. 31, 1986, unless (FAR), part 50, April 1, 1985, and NASA/ otherwise noted. FAR Supplement 84–2, part 18–50, Octo- ber 19, 1984, establishes standards and § 1209.400 Scope. procedures for the disposition of re- This subpart describes the functions, quests for extraordinary contractual authority, and membership of the adjustments by NASA contractors. NASA Inventions and Contributions Board (hereafter referred to as ‘‘the § 1209.302 Establishment of Board. Board’’). The Board was established on May 15, 1961, and is continued in effect by § 1209.401 Establishment. NASA Management Instruction (NMI) Pursuant to the authority of the Na- 1152.5 and this regulation. tional Aeronautics and Space Act of 1958 as amended (42 U.S.C. 2457(f) and § 1209.303 Functions of Board. 2458) and the Government Employees (a) The Board is authorized to act for Incentive Awards Act of 1954 (5 U.S.C. and exercise the authority of the Ad- 4501–6), the Board was established on ministrator in cases involving request December 4, 1958, and is further contin- by NASA contractors for extraordinary ued in effect by this subpart 4.
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§ 1209.402 Responsibilities. § 1209.403 Organizational location. (a) Waiver of rights in inventions. The Board is established within the Under the authority of 42 U.S.C. 2457(f) Office of Policy Coordination and and pursuant to 14 CFR part 1245 sub- International Relations. part 1 (NASA Management Instruction [59 FR 35623, July 13, 1994] 5109.2), the Board will receive and evaluate petitions for waiver of rights § 1209.404 Membership. of the United States to inventions, ac- (a) The Board will consist of a full- cord each interested party an oppor- time Chairperson and at least six mem- tunity for a hearing, and transmit to bers appointed by the Administrator the Administrator its findings of fact from within NASA. One of the mem- as to such petitions and its rec- bers will be designated by the Chair- ommendations for action to be taken person as Vice-Chairperson. The Chair- with respect thereto. person is responsible directly to the (b) Patent licenses. Under the author- Administrator. ity of 35 U.S.C. 207(b) and pursuant to (b) The Chairperson of the Board is 14 CFR part 1245 subpart 2 (NASA Man- appointed for an unlimited period. All agement Instruction 5109.3), the Board other Board members normally will be will accord a licensee or applicant for appointed initially for a period of 3 license an opportunity for a hearing years. The Chairperson is authorized to with respect to an appeal which raises extend the initial appointment of any a dispute over material facts and will Board member for an additional period be responsible for making findings of of service. If a member resigns or is fact and forwarding them to the Ad- otherwise unable to participate in the ministrator or designee. Board’s activities, a replacement may (c) Monetary awards for scientific and be appointed for the remainder of the technical contributions. (1) Under the au- uncompleted term and, with the ap- thority of 42 U.S.C. 2458 and pursuant proval of the Chairperson, may be ap- to 14 CFR part 1240, the Board will re- pointed for a full 3-year term upon the ceive and evaluate each application for expiration of the original term. This award for any scientific or technical procedure will provide the Board with a contribution to the Administration continual infusion of new members which is determined to have significant with a variety of professional back- value in the conduct of aeronautical grounds and interests. Duties per- and space activities, will accord each formed by the members of the Board applicant an opportunity for a hearing will be in addition to their regular du- ties. upon such application, and will then transmit to the Administrator its rec- (c) The Chairperson is authorized to: ommendation as to the amount of the (1) Assemble the Board as required to monetary award and terms of the discharge the duties and responsibil- ities of the Board; award, if any, to be made for such con- tribution. (2) Establish such panels as may be considered necessary to discharge the (2) If the contribution is made by a responsibilities and perform the func- Government employee, the Board is tions of the Board; and also authorized to consider such con- (3) Issue implementing rules and pro- tribution for award under the incentive cedures, and take such other actions as awards program and to make an award, are necessary to perform the Board’s if any, on its own cognizance, up to the functions. amount of $10,000 in accordance with NASA supplements to Chapter 451 of § 1209.405 Supporting services. the Federal Personnel Manual covering (a) The staff of the Board is estab- this subject. lished to assist the Board in dis- [51 FR 3945, Jan. 31, 1986, as amended at 59 charging its functions and responsibil- FR 35623, July 13, 1994] ities. The staff will:
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(1) Prepare analyses of petitions for the Langley Research Center 4- by 4- waiver of rights to inventions for the foot high Mach number test section consideration of the Board; and the 4- by 4-foot low Mach number (2) Prepare evaluation of proposed test section; and the Lewis Research awards; Center 10- by 10-foot wind tunnel. (3) Document Board actions; and These wind tunnels are operated by (4) Perform such other functions as NASA for industry, NASA, the Depart- may be required. ment of Defense, and other Govern- (b) A full-time director of the staff ment agency projects. will serve as a nonvoting member of (c) National aeronautical facilities. The the Board, and will direct the activities of the staff of the Board. national aeronautical facilities include (c) The director of the staff of the the National Transonic Facility (NTF) Board will report to the Chairperson of at Langley Research Center and the the Board. National Full-Scale Aerodynamic Com- plex, consisting of the 40- by 80-foot PART 1210—DEVELOPMENT WORK and the 80- by 120-foot wind tunnels and FOR INDUSTRY IN NASA WIND related support facilities at Ames Re- TUNNELS search Center. These facilities are op- erated by NASA for industry, NASA, Sec. the Department of Defense, and other 1210.1 Introduction. Government agency projects. 1210.2 General classes of work. (d) All other wind tunnels. All other 1210.3 Priorities and schedules. NASA wind tunnels will be used pri- 1210.4 Company projects. marily for NASA research. However, 1210.5 Government projects. 1210.6 Test preparation and conduct. all of these wind tunnels may be used for industry work when it is in the pub- AUTHORITY: 50 U.S.C. 511–515, 42 U.S.C. lic interest either in joint programs 2473(c)(5) and (6). with NASA or on a fee basis. SOURCE: 51 FR 34083, Sept. 25, 1986, unless (e) NASA policy. All the projects to be otherwise noted. performed in any of the NASA wind § 1210.1 Introduction. tunnels must be appropriate to the fa- cility. (a) Authority. The regulations, as they apply to the Unitary Wind Tunnel § 1210.2 General classes of work. Plan facilities, are promulgated under authority of the Unitary Wind Tunnel (a) Company projects. Includes work Plan Act of 1949, as amended, codified for industry on: at 50 U.S.C. 511–515. This statute states (1) Projects which are neither under ‘‘The facilities authorized * * * shall be contract nor supported by a letter of operated and staffed by the National intent from a Government agency; and Aeronautics and Space Administration (2) Company desired tests which are but shall be available primarily indus- related to a project which is either try for testing experimental models in under contract with or supported by a connection with the development of letter of intent from a Government aircraft and missiles. Such tests shall agency, but are beyond the scope of the be scheduled and conducted in accord- tests requested by the Government ance with industry’s requirements, and agency. allocation of laboratory time shall be (3) A fee will be charged for company made in accordance with the public in- projects. terest, with proper emphasis upon the requirements of each military service (b) Government projects. Includes work and due consideration of civilian for industry on projects which are ei- needs.’’ ther under contract with or supported (b) Unitary wind tunnel plan facilities. by a letter of intent from a Govern- The unitary wind tunnel plan facilities ment agency. The work must be re- are the Ames Research Center 11- by quested by the Government agency. No 11-foot wind tunnel, 9- by 7-foot wind fee will be charged for Government tunnel, and 8- by 7-foot wind tunnel; projects.
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(c) United States/foreign industry con- representatives will be required to ex- sortium projects. This involves U.S. com- plain the technical need for the project panies, which have formed a consor- and why the NASA facility is required, tium or any other type of association as well as to define the extent of the with foreign companies, that desire test program, model and equipment re- tests on aerospace projects of joint or quirements, and schedule. The center foreign interest. An application for shall maintain a file of all company re- work for such a consortium shall dis- quests and their disposition. The com- close the foreign interest in or antici- pany will be required to provide a Safe- pated foreign benefit from tests to be ty Analysis Report (SAR) describing conducted and shall first be reviewed potential hazards that the company by the Director, International Affairs test program, model, and equipment Division, for consistency with current may present to NASA facilities and U.S. foreign policy and for compat- personnel, and other documentation re- ibility with section 102 of the National quired by the facility management to Aeronautics and Space Act of 1958, as assure that safety requirements are amended, prior to a final decision being met. reached on the application. A fee will (b) Scheduling of tests. In scheduling be charged for these consortium time for company projects, the respon- projects unless, in these review proce- sible NASA center will consider the dures, it is determined that Govern- merits of all projects, including gov- ment agency cooperative sponsorship ernment, company, and NASA research warrants a non-fee arrangement. work relative to the national interest (d) Foreign Foreign company projects. and priorities specified in § 1210.3. company requests for wind tunnel use Every reasonable attempt will be made that are not related to U.S. Govern- to accommodate technically justifiable ment or U.S. industry interests or pro- projects on as timely a basis as pos- grams will generally not be granted sible. and will in no event be granted prior to a review, as required in paragraph (c) (c) Fees for company projects. The pol- of this section, by the Director, Inter- icy on charges for the use of NASA fa- national Affairs Division. cilities is explained in NASA Manage- ment Instruction 9080.1, ‘‘Review, Ap- § 1210.3 Priorities and schedules. proval, and Imposition of User (a) Priorities. Unitary wind tunnels Charges.’’ The fee imposed for a com- shall be available primarily to industry pany project will cover all direct and for development work. However, allo- indirect costs to NASA for the wind cations of wind tunnel time shall be in tunnel test. accordance with the public interests, (1) Occupancy time charge. (i) The oc- with due consideration to the require- cupancy time will be computed from ments of the military services, civilian the start of installation of the test ar- needs, and NASA research. Research ticle in the wind tunnel test section work shall have priority in all other through the time that the test article NASA facilities. is removed from the test section and (b) Schedules. Schedules showing the the test section is restored to its origi- allocation of testing time for Govern- nal condition. ment projects and for company (ii) The occupancy time rate will be projects for unitary wind tunnels and determined in accordance with NASA other major wind tunnels will be estab- Management Instruction 9080.1. lished by the appropriate center. (2) Energy/Fuel. The charge for en- ergy/fuel will be determined from the § 1210.4 Company projects. energy/fuel consumed during the tests (a) Initiation of company projects. and the actual cost to NASA. Company projects will be initiated by a (3) Data reduction. The cost of data letter to the Center Director followed reduction and the data report will in- by a conference between company and clude labor, materials, computational NASA representatives at the center costs, and appropriate indirect charges having responsibility for the facility in accordance with NASA Management proposed for the project. The company Instruction 9080.1.
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(4) Cancellation of scheduled wind tun- (e) Proprietary rights. In order to pro- nel time. Upon determination of a test tect the trade secrets of companies, schedule by the representatives of the NASA will generate one set of final re- company and of NASA, it becomes the sults, which will become the property responsibility of the company to meet of the company and be promptly trans- this schedule. A project may be can- mitted to the company. If, subse- celled by the company without charge quently, there is need to review the re- on 60 days’ notice if succeeding sults, it will be the responsibility of projects are ready for testing and can the company to provide the NASA cen- be moved into the company’s pre- ter with copies of the resulting data. viously scheduled time. In the event Upon completion of the review, the subsequently scheduled work cannot be data will be returned to the company. scheduled in lieu of the company’s Should the company desire to maintain work, when cancelled with less than 60 its trade secret rights in the data dur- days’ notice, the company shall be re- ing the loan period, it should mark the quired to pay the occupancy time data with a notice stating that the charge for the scheduled test period or data shall not be used or disclosed for the period the facility test section other than for review purposes without is idle due to the cancellation, which- prior written permission of the com- ever results in the smaller charge. Cur- pany. NASA, in turn, will protect that data covered by the notice which is tailment of a project underway before protected under the law as a trade se- the end of the scheduled test period cret. may be made by the company. In this (f) Test preparation and conduct. See event, the company shall be required to § 1210.6. pay the occupancy charge for the time used plus the unused scheduled time or § 1210.5 Government projects. for the idle time of the test section, (a) Initiation of Government projects. whichever is the smaller. Government projects shall be initiated (5) High-power requirements. Unavail- through a conference of representatives ability of adequate power or economic from the contracted company, the considerations may, on occasion, cause sponsoring Government agency, and delay or cancellation of high-powered the staff of the NASA center having re- test runs. The company shall cooperate sponsibility for the facility proposed with the facility staff in the scheduling for the project. The purpose of the con- of low-powered runs during periods ference will be to establish the tech- when large blocks of power are unavail- nical basis for the project and why the able. However, should rescheduling of NASA facility is required as well as to test runs to accommodate power short- define the extent of the test program, ages be impractical, occupancy time model and instrumentation require- charge credits will be made for time ments, and schedule. Upon concurrence lost arising from such shortages. The of the NASA staff, the sponsoring Gov- basis for these credits, which will also ernment agency will submit a letter of be made for delays due to breakdown or request to the Center Director. A Safe- malfunction of Government-furnished ty Analysis Report (SAR) will be re- equipment or instrumentation, or due quired, describing the potential haz- to other reasons beyond the control of ards that the project test program, the company, will be determined by model, and equipment may present to each center. For example, the test pe- NASA facilities and personnel, as well riod allotted for the program may be as other documentation required by extended to offset delays in lieu of a re- the facility management to assure that fund. safety requirements have been met. (d) Test data transmittal. The basic (b) Scheduling of tests. In scheduling data for company projects will be time for Government projects, the re- transmitted to the requesting company sponsible NASA center will consider without detailed analysis but with the the merits of all projects, including necessary description of methods and Government, company, and NASA re- techniques employed to permit proper search work relative to the national in- interpretation of the data. terest and priorities specified in
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§ 1210.3. Every reasonable attempt will scheduled test period, may result in re- be made to accommodate technically assignment of the position of the tests justifiable projects on a timely basis. on the facility schedule. Detailed speci- (c) Test data transmittal. The basic fications and arrangements for special data for Government projects, without instrumentation will be established by detailed analysis but with the nec- mutual agreement. The user will be re- essary description of methods and tech- quired to furnish all information nec- niques employed to permit the proper essary to prepare the data reduction interpretation of the data, will be software program at a date specified by transmitted to the company for whom the facility staff. the tests were made and to the spon- (d) Test program. All tests will be con- soring Government agency. Further ducted under NASA supervision and by disclosure by NASA of the test results NASA personnel or by NASA support will be made only with the prior con- service contractor personnel unless ap- currence of the sponsoring Government proved otherwise by the facility man- agency. ager. The test program shall be ap- proved by NASA personnel before the § 1210.6 Test preparation and conduct. test project is accepted. By agreement (a) Programming by user. The user will between the user (company representa- be given the greatest possible freedom tives or the requesting agency) and the within the objectives of the scheduled center staff, changes in the test pro- program to obtain the quality and gram may be made within the objec- quantity of information desired, to de- tives of the scheduled program if time termine the sequence and number of is available. When tests are not totally test runs to be made, and to make conducted by NASA personnel or by modifications to the program arising NASA support service contractor per- from the results obtained, subject to sonnel, the NASA Field Installation requirements of safety, energy con- Safety Officer shall verify that the user servation, practicability, and the total personnel are fully cognizant of facil- time assigned. ity safety problems and operations. A (b) Model systems criteria. Information current SAR on the facility shall be will be furnished for each facility on available to the user personnel for re- the permissible size of model, standard view. balances, safety margins to be used in (e) Test data. The NASA staff will be the design of models, model mounting responsible for obtaining all test data, details, and other pertinent factors. All its reduction to suitable coefficient model systems criteria required by the form, and the accuracy of the final facility for safety consideration includ- data, but NASA will assume no respon- ing the necessary drawings and stress sibility for the interpretation of the analyses of the articles to be tested data by others. Transmittal of the data will be furnished at a time specified by will be made as soon as the test is com- the facility staff for their use in pre- pleted and the data are deemed releas- paring for the test. able by NASA. For company projects, (c) Instrumentation. Each facility will the data will be transmitted as di- provide basic instrumentation suitable rected by the company. The data for for the test range of the respective fa- Government projects will be trans- cility and computing equipment for the mitted simultaneously to the spon- reduction of test data. If the basic in- soring Government agency and the strumentation furnished by the facility contractor (if applicable), unless other- does not meet these test requirements, wise directed by the sponsoring agency. the user will provide suitable instru- (f) Shops and office space. During the mentation which will be calibrated by conduct of user testing, NASA will pro- the facility staff to ensure accuracy of vide desk space and at least limited use measurement. This Instrumentation of the shop facilities to the user whose will be made available sufficiently in projects are under test. advance of the test date to accomplish (g) User furnished personnel. User per- the calibration. Serious delays arising sonnel associated with each project from inaccuracies in user supplied in- will be agreed upon between the user strumentation, if occurring during the and facility staff prior to the test.
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PART 1211 [RESERVED] 1212.703 Headquarters and Field or Compo- nent Installations. 1212.704 System manager. PART 1212—PRIVACY ACT—NASA 1212.705 Assistant Administrator for Pro- REGULATIONS curement. 1212.706 Delegation of authority. Subpart 1212.1—Basic Policy Subpart 1212.8—Failure to Comply With Sec. Requirements of This Part 1212.100 Scope and purpose. 1212.101 Definitions. 1212.800 Civil remedies. 1212.801 Criminal penalties.
Subpart 1212.2—Access to Records AUTHORITY: The National Aeronautics and Space Act of 1958, as amended, 72 Stat. 429, 42 1212.200 Determining existence of records U.S.C. 2473; the Privacy Act of 1974, as subject to the Privacy Act. 1212.201 Requesting a record. amended, 88 Stat. 1896, 5 U.S.C. 552a. 1212.202 Identification procedures. SOURCE: 57 FR 4928, Feb. 11, 1992, unless 1212.203 Disclosures. otherwise noted. 1212.204 Fees. 1212.205 Exceptions to individuals’ rights of access. Subpart 1212.1—Basic Policy
Subpart 1212.3—Amendments to Privacy § 1212.100 Scope and purpose. Act Records This part 1212 implements the Pri- vacy Act of 1974, as amended (5 U.S.C. 1212.300 Requesting amendment. 1212.301 Processing the request to amend. 552a). It establishes procedures for indi- 1212.302 Granting the request to amend. viduals to access their Privacy Act records and to request amendment of Subpart 1212.4—Appeals and Related information in records concerning Matters them. It also provides procedures for administrative appeals and other rem- 1212.400 Appeals. edies. This part applies to systems of 1212.401 Filing statements of dispute. 1212.402 Disclosure to third parties of dis- records located at or under the cog- puted records. nizance of NASA Headquarters, NASA Field Installations, and NASA Compo- Subpart 1212.5—Exemptions to Individuals’ nent Installations, as defined in part Rights of Access 1201 of this chapter.
1212.500 Exemptions under 5 U.S.C. 552a (j) § 1212.101 Definitions. and (k). 1212.501 Record systems determined to be For the purposes of this part, the fol- exempt. lowing definitions shall apply in addi- tion to definitions contained in the Subpart 1212.6—Instructions for NASA Privacy Act of 1974, as amended (5 Employees U.S.C. 552a): 1212.600 General policy. (a) The term individual means a liv- 1212.601 Maintenance and publication re- ing person who is either a citizen of the quirements for systems of records. United States or an alien lawfully ad- 1212.602 Requirements for collecting infor- mitted for permanent residence. mation. (b) The term maintain includes main- 1212.603 Mailing lists. tain, collect, use or disseminate. 1212.604 Social security numbers. (c) The term record means any item, 1212.605 Safeguarding information in sys- tems of records. collection, or grouping of information 1212.606 Duplicate copies of records or por- about an individual including, but not tions of records. limited to, education, financial trans- actions, medical history, and criminal Subpart 1212.7—NASA Authority and or employment history, and that con- Responsibilities tains a name, or the identifying num- 1212.700 NASA employees. ber, symbol, or other identifying par- 1212.701 Assistant Deputy Administrator. ticular assigned to the individual, such 1212.702 Associate Administrator for Man- as a finger or voice print or a photo- agement Systems and Facilities. graph.
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(d) The term system of records means (a) To determine if information on a group of any records from which in- the requester is included in a system of formation is retrieved by the name of records; the individual or by some identifying (b) For access to a record; and number, symbol or other identifying (c) For an accounting of disclosures particular assigned to the individual. of the individual’s Privacy Act records. (e) The term system manager means the NASA official who is responsible § 1212.201 Requesting a record. for a system of records as designated in (a) Individuals may request access to the system notice of that system of their Privacy Act records, either in records published in the FEDERAL REG- person or in writing. ISTER. When a system of records in- cludes portions located at more than (b) Individuals may also authorize a one NASA Installation, the term system third party to have access to their Pri- manager includes any subsystem man- vacy Act records. This authorization ager designated in the system notice as shall be in writing, signed by the indi- being responsible for that portion of vidual and contain the individual’s ad- the system of records located at the re- dress as well as the name and address spective Installation. of the representative being authorized (f) The term systems notice means, access. The identities of both the sub- with respect to a system of records the ject individual and the representative publication of information in the FED- must be verified in accordance with the ERAL REGISTER upon establishment or procedures set forth in § 1212.202 of this revision of the existence and character part. of the system of records. The notice (c)(1) Requests must be directed to shall include that information as re- the appropriate system manager, or, if quired by 5 U.S.C. 552a(e)(4). unknown, to the NASA Headquarters (g) The term routine use means, with or Field Installation Information Cen- respect to the disclosure of a record, ter. The request should be identified the use of the record for a purpose clearly on the envelope and on the let- which is compatible with the purpose ter as a ‘‘Request Under the Privacy for which it was collected. Act.’’ (h) The term NASA employee or NASA (2) Where possible, requests should official, particularly for the purpose of contain the following information to § 1212.203(g) related to the disclosure of ensure timely processing: a record to those who have a need for (i) Name and address of subject. the record in the performance of their (ii) Identity of the system of records. official duties, includes employees of a (iii) Nature of the request. NASA contractor which operates or (iv) Identifying information specified maintains a NASA system of records in the applicable system notice to as- for or on behalf of NASA. sist in identifying the request, such as (i) The term NASA information center location of the record, if known, full refers to information centers estab- name, birth date, etc. lished to facilitate public access to (d) NASA has no obligation to com- NASA records under part 1206 of this ply with a nonspecific request for ac- chapter. See § 1206.401 of this chapter cess to information concerning an indi- for the address of each NASA informa- vidual, e.g., a request to provide copies tion center. of ‘‘all information contained in your files concerning me,’’ although a good Subpart 1212.2—Access to faith effort will be made to locate Records records if there is reason to believe NASA has records on the individual. If § 1212.200 Determining existence of the request is so incomplete or incom- records subject to the Privacy Act. prehensible that the requested record The procedures outlined in this sub- cannot be identified, additional infor- part 1212.2 apply to the following types mation or clarification will be re- of requests under the Privacy Act made quested in the acknowledgement, and by individuals concerning records assistance to the individual will be of- about themselves: fered as appropriate.
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(e) If the information center receives ture, and photograph or physical de- a request for access, the Information scription. Center will record the date of receipt (b) The system manager will release and immediately forward the request copies of records by mail only when the to the responsible system manager for circumstances indicate that the re- handling. quester and the subject of the record (f) Normally, the system manager are the same. The system manager shall respond to a request for access may require that the requester’s signa- within 10 work days of receipt of the ture be notarized or witnessed by two request and the access shall be pro- individuals unrelated to the requester. vided within 30 work days of receipt. (c) Identity procedures more strin- (1) In response to a request for ac- gent than those required in this section cess, the system manager shall: may be prescribed in the system notice (i) Notify the requester that there is when the records are medical or other- no record on the individual in the sys- wise sensitive. tem of records and inform the re- quester of the procedures to follow for § 1212.203 Disclosures. appeal (See § 1212.4); (a) The system manager shall keep a (ii) Notify the requester that the disclosure accounting for each disclo- record is exempt from disclosure, cite sure to a third party of a record from a the appropriate exemption, and inform system of records. This includes the requester of the procedures to fol- records disclosed pursuant to computer low for appeal (See § 1212.4); matching programs (See NASA Man- (iii) Upon request, promptly provide agement Instruction (NMI) 1382.18). copies of the record, subject to the fee (b) Disclosure accountings are not re- requirements (§ 1212.204); or quired but are recommended for disclo- (iv) Make the individual’s record sures made: available for personal inspection in the (1) With the subject individual’s con- presence of a NASA representative. sent; or (2) Unless the system manager agrees (2) In accordance with § 1212.203(g) (1) to another location, personal inspec- and (2), below. tion of the record shall be at the loca- (c) The disclosure accounting re- tion of the record as identified in the quired by paragraph (a) of this section system notice. shall include: (3) When an individual requests (1) The date, nature, and purpose of records in a system of records main- the disclosure; and tained on a third party, the request (2) The name and address of the re- shall be processed as a Freedom of In- cipient person or Agency. formation Act (FOIA) request under 14 (d) The disclosure accounting shall be CFR part 1206. If the records requested retained for at least 5 years after the are subject to release under FOIA (5 disclosure or for the life of the record, U.S.C. 552(b)), then a Privacy Act ex- whichever is longer. emption may not be invoked to deny (e) The disclosure accounting main- access. tained under the requirements of this (4) When an individual requests section is not itself a system of records in a system of records main- records. tained on the individual, the request (f) Records in a NASA system of shall be processed under this part. records may not be disclosed to third NASA will not rely on exemptions con- parties without the consent of the sub- tained in FOIA to withhold any record ject individual. However, in con- which is otherwise accessible to the in- sonance with 5 U.S.C. 552a(b), disclo- dividual under this part. sure may be authorized without con- sent, if disclosure would be: § 1212.202 Identification procedures. (1) To an officer or employee of (a) The system manager will release NASA who has a need for the record in records to the requester or representa- the performance of official duties; tive in person only upon production of (2) Required under the Freedom of In- satisfactory identification which in- formation Act (5 U.S.C. 552) and part cludes the individual’s name, signa- 1206 of this chapter;
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(3) For a routine use described in the § 1212.204 Fees. system notice for the system of (a) Fees will not be charged for: records; (1) Search for a retrieval of the re- (4) To the Bureau of the Census for questing individual’s records; purposes of planning or carrying out a (2) Review of the records; census or survey or related activity pursuant to the provisions of Title 13, (3) Making a copy of a record when it U.S. Code; is a necessary part of the process of making the record available for review; (5) To a recipient who has provided NASA with advance adequate written (4) Transportation of the record(s); assurance that the record will be used (5) Making a copy of an amended solely as a statistical research or re- record to provide evidence of the porting record, and the record is to be amendment; or transferred in a form that is not indi- (6) Copies of records if this is deter- vidually identifiable; mined to be in the best interest of the (6) To the National Archives and Government. Records Administration as a record (b) Fees for the duplication of records which has sufficient historical or other will be assessed in accordance with value to warrant its continued preser- § 1206.700(a) of this chapter. vation by the United States Govern- (c) Where it appears that duplication ment or for evaluation by the Archivist fees chargeable under this section will of the United States or the Archivist’s exceed $25, the requester shall be pro- designee to determine whether the vided an estimate of the fees before record has such value; copies are made. Where possible, the (7) To another agency or to an instru- requester will be afforded the oppor- mentality of any governmental juris- tunity to confer with Agency personnel diction within or under the control of in a manner which will reduce the fees, the United States for a civil or crimi- yet still meet the needs of the re- nal law enforcement activity, if the ac- quester. tivity is authorized by law and if the (d) Where the anticipated fee charge- head of the agency or instrumentality able under this section exceeds $25, an has made a written request to NASA advance deposit of part or all of the an- specifying the particular portion de- ticipated fee may be required. sired and the law enforcement activity for which the record is sought; § 1212.205 Exceptions to individual’s (8) To a person pursuant to a showing rights of access. of compelling circumstances affecting (a) The NASA Administrator has de- the health or safety of an individual if termined that the systems of records upon such disclosure notification is set forth in § 1212.501 are exempt from transmitted to the last known address disclosure to the extent provided there- of such individual; in. (9) To either House of Congress or, to (b) Medical records. Normally, an indi- the extent the matter is within its ju- vidual’s medical record shall be dis- risdiction, any committee or sub- closed to the individual, unless the sys- committee, or any joint committee of tem manages, in consultation with a Congress or subcommittee of any such medical doctor, determines that access joint committee; to the record could have an adverse ef- (10) To the Comptroller General, or fect upon the individual. In this case, any of the Comptroller’s authorized NASA shall allow access to the record representative(s), in the course of the by a medical doctor designated in writ- performance of the duties of the Gen- ing by the requesting individual. eral Accounting Office; (c) Test and qualification materials. (11) Pursuant to the order of a court Testing or examination material used of competent jurisdiction; or solely to determine individual quali- (12) To a consumer reporting agency fications for appointment or promotion in accordance with section 3711(f) of in the Federal service the disclosure of Title 31.
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which would compromise the objec- the requester of the procedures to fol- tivity or fairness of the testing or ex- low for appeal (See § 1212.4)). amination process and copies of certifi- cates of eligibles and other lists of eli- § 1212.302 Granting the request to gibles, the disclosure of which is pro- amend. scribed by 5 CFR 300.201, shall be re- NASA shall make the requested moved from an individual’s record con- amendment clearly on the record itself taining such information before grant- and all information deemed to be inac- ing access. curate, irrelevant, or untimely shall be (d) Information compiled for civil ac- deleted and destroyed. Incomplete in- tions or proceedings. Nothing in this formation shall either be amended or part shall allow an individual access to deleted and destroyed. The individual any information compiled in reason- shall then be informed in writing that able anticipation of a civil action or the amendment has been made. If the proceeding. inaccurate, irrelevant, untimely, or in- complete portion of the record has pre- Subpart 1212.3—Amendments to viously been disclosed, then the system manager shall notify those persons or Privacy Act Records agencies of the amended information, referencing the prior disclosures (See § 1212.300 Requesting amendment. § 1212.402). Individuals may request that NASA amend their records maintained in a Subpart 1212.4—Appeals and NASA system of records. This request shall be in writing, addressed to the ap- Related Matters propriate system manager, and shall § 1212.400 Appeals. contain the following: (a) A notation on the envelope and on (a) Individuals may appeal to the As- the letter that it is a ‘‘Request for sistant Deputy Administrator when Amendment of Individual Record under they: (1) Have requested amendment of a the Privacy Act;’’ record and have received an adverse (b) The name of the system of initial determination; records; (2) Have been denied access to a (c) Any information necessary to re- record; or, trieve the record, as specified in the (3) Have not been granted access system notice for the system of records within 30 work days of their request. (See § 1212.201(c)(2)); (b) An appeal shall: (d) A description of that information (1) Be in writing and addressed to the in the record which is alleged to be in- Assistant Deputy Administrator, accurate, irrelevant, untimely, or in- NASA, Washington, DC 20546; complete; and, (2) Be identified clearly on the enve- (e) Any documentary evidence or ma- lope and in the letter as an ‘‘Appeal terial available to support the request. under the Privacy Act;’’ (3) Include a copy of any pertinent § 1212.301 Processing the request to documents; and amend. (4) State the reasons for the appeal. (a) Within 10 work days of receipt by (c) Appeals from adverse initial de- NASA of a request to amend a record, terminations or denials of access must the system manager shall provide the be submitted within 30 work days of requester with a written determination the date of the requester’s receipt of or acknowledgement advising when ac- the initial determination. Appeals in- tion may be taken. volving failure to grant access may be (b) When necessary, NASA may uti- submitted any time after the 30 work lize up to 30 work days after receipt to day period has expired (See provide the determination on a request § 1212.201(f)). to amend a record. (d) A final determination on an ap- (c) If the request for amendment is peal shall be made within 30 work days denied, the determination shall explain after its receipt by the Assistant Dep- the reasons for the denial and inform uty Administrator, unless, for good
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cause shown, the Assistant Deputy Ad- (b) Any subsequent disclosure of a ministrator extends such 30 work day disputed record shall clearly note the period. Prior to the expiration of the 30 portion of the record which is disputed work day period, the requester shall be and shall be accompanied by a copy of notified of any such extension. the statement of dispute and adden- (e) If a denial of a request to amend dum. a record is upheld, the final determina- tion shall: Subpart 1212.5—Exemptions to (1) Explain the basis for the detail; Individuals’ Rights of Access (2) Include information as to how the requester goes about filing a statement § 1212.500 Exemptions under 5 U.S.C. of dispute under the procedures of 552a (j) and (k). § 1212.401; and, (a) These provisions authorize the (3) Include a statement that the final Administrator of NASA to exempt cer- determination is subject to judicial re- tain NASA Privacy Act systems of view under 5 U.S.C. 552a(g). records from portions of the require- ments of this regulation. § 1212.401 Filing statements of dispute. (b) The Administrator has delegated (a) A statement of dispute shall: this authority to the Assistant Deputy (1) Be in writing; Administrator (See § 1212.701). (2) Set forth reasons for the individ- (c) For those NASA systems of ual’s disagreement with NASA’s re- records that are determined to be ex- fusal to amend the record; empt, the system notice shall describe (3) Be concise; the exemption and the reasons. (4) Be addressed to the system man- ager; and, § 1212.501 Record systems determined (5) Be identified on the envelope and to be exempt. in the letter as a ‘‘Statement of Dis- The Administrator has determined pute under the Privacy Act.’’ that the following systems of records (b) The system manager shall prepare are exempt to the extent provided here- an addendum to the statement explain- inafter. ing the basis for NASA’s refusal to (a) Inspector General Investigations amend the disputed record. A copy of Case Files—(1) Sections of the Act from the addendum shall be provided to the which exempted. (i) The Inspector Gen- individual. eral Investigations Case Files system (c) The system manager shall ensure of records is exempt from all sections that the statement of dispute and ad- of the Privacy Act (5 U.S.C. 552a) ex- dendum are either filed with the dis- cept the following: (b) relating to con- puted record or that a notation appears ditions of disclosure; (c) (1) and (2) re- in the record clearly referencing the lating to keeping and maintaining a statement of dispute and addendum so disclosure accounting; (e)(4) (A) that they may be readily retrieved. through (F) relating to publishing a system notice setting forth name, loca- § 1212.402 Disclosure to third parties tion, categories of individuals and of disputed records. records, routine uses, and policies re- (a) The system manager shall garding storage, retrievability, access promptly provide persons or agencies controls, retention and disposal of the to whom the disputed portion of a records; (e) (6), (7), (9), (10), and (11) re- record was previously disclosed and for lating to dissemination and mainte- which an accounting of the disclosure nance of records, and (i) relating to exists under the requirements of criminal penalties. This exemption ap- § 1212.203 of this part, with a copy of the plies to those records and information statement of dispute and addendum, contained in the system of records per- along with a statement referencing the taining to the enforcement of criminal prior disclosure. The subject individual laws. shall be notified as to those individuals (ii) To the extent that there may or agencies which are provided with exist noncriminal investigative files the statement of dispute and adden- within this system of records, the In- dum. spector General Investigations Case
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Files system of records is exempt from denied any right, privilege, or benefit the following sections of the Privacy that they would otherwise be entitled Act (5 U.S.C. 552a): (c)(3) relating to ac- by Federal law, or for which they cess to the disclosure accounting, (d) would otherwise be eligible, as a result relating to access to records, (e)(1) re- of the maintenance of such material, lating to the type of information main- such material shall be provided to such tained in the records; (e)(4) (G), (H), individual, except to the extent that and (I) relating to publishing the sys- the disclosure of such material would tem notice information as to agency reveal the identity of a source who fur- procedures for access and amendment nished information to the Government and information as to the categories of under an express promise that the iden- sources or records, and (f) relating to tity of the source would be held in con- developing agency rules for gaining ac- fidence, or, prior to January 1, 1975, cess and making corrections. under an implied promise that the (2) Reason for exemptions. (i) The Of- identity of the sources would be held in fice of Inspector General is an office of confidence. This system of records is NASA, a component of which performs exempt for one or more of the following as its principal function activity per- reasons: taining to the enforcement of criminal (A) To prevent interference with law laws, within the meaning of 5 U.S.C. enforcement proceedings. 552a(j)(2). This exemption applies only (B) To protect investigatory material to those records and information con- compiled for law enforcement purposes. tained in the system of records per- (C) To avoid unwarranted invasion of taining to criminal investigations. personal privacy, by disclosure of infor- This system of records is exempt for mation about third parties, including one or more of the following reasons: other subjects of investigation, law en- (A) To prevent interference with law forcement personnel, and sources of in- enforcement proceedings. formation. (B) To avoid unwarranted invasion of (D) To fullfill commitments made to personal privacy, by disclosure of infor- protect the confidentiality of sources. mation about third parties, including (E) To protect the identity of Federal other subjects of investigation, inves- employees who furnish a complaint or tigators, and witnesses. information to the OIG, consistent (C) To protect the identity of Federal with section 7(b) of the Inspector Gen- employees who furnish a complaint or eral Act of 1978, as amended, 5 U.S.C. information to the OIG, consistent App. with section 7(b) of the Inspector Gen- (F) To assure access to sources of eral Act of 1978, as amended, 5 U.S.C. confidential information, including App. that contained in Federal, State, and (D) To protect the confidentiality of local criminal law enforcement infor- non-Federal employee sources of infor- mation systems. mation. (G) To prevent disclosure of law en- (E) To assure access to sources of forcement techniques and procedures. confidential information, including (H) To avoid endangering the life or that contained in Federal, State, and physical safety of confidential sources local criminal law enforcement infor- and law enforcement personnel. mation systems. (iii) Records within this system of (F) To prevent disclosure of law en- records comprised of investigatory ma- forcement techniques and procedures. terial compiled solely for the purpose (G) To avoid endangering the life or of determining suitability or eligibility physical safety of confidential sources for Federal civilian employment or ac- and law enforcement personnel. cess to classified information, are ex- (ii) Investigative records within this empt under the provisions of 5 U.S.C. system of records which are compiled 552a(k)(5), but only to the extent that for law enforcement purposes, other disclosure would reveal the identity of than material within the scope of sub- a source who furnished information to section (j)(2), are exempt under the the Government under an express provisions of 5 U.S.C. 552a(k)(2): Pro- promise that the identity of the source vided, however, That if any individual is would be held in confidence, or prior to
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January 1, 1975, under an implied prom- any individual is denied any right, ise that the identity of the source privilege, or benefit that they would would be held in confidence. This sys- otherwise be entitled by Federal law, tem of records is exempt for one or or for which they would otherwise be more of the following reasons: eligible, as a result of the maintenance (A) To fulfill commitments made to of such material, such material shall protect the confidentiality of sources. be provided to such individual, except (B) To assure access to sources of to the extent that the disclosure of confidential information, including such material would reveal the iden- that contained in Federal, State, and tity of a source who furnished informa- local criminal law enforcement infor- tion to the Government under an ex- mation systems. press promise that the identity of the (b) Security Records System—(1) Sec- source would be held in confidence, or, tions of the Act from which exempted. The Security Records System is ex- prior to January 1, 1975, under an im- empted from the following sections of plied promise that the identity of the the Privacy Act (5 U.S.C. 552a): (c)(3) sources would be held in confidence. relating to access to the disclosure ac- This system of records is exempt for counting; (d) relating to access to the one or more of the following reasons: records; (e)(1) relating to the type of (A) To prevent interference with law information maintained in the records; enforcement proceedings. (e)(4) (G), (H), and (I) relating to pub- (B) To protect investigatory material lishing the system notice information compiled for law enforcement purposes. as to agency procedures for access and (C) To avoid unwarranted invasion of amendment, and information as to the personal privacy, by disclosure of infor- categories of sources of records; and (f) mation about third parties, including relating to developing Agency rules for other subjects of investigation, law en- gaining access and making corrections. forcement personnel, and sources of in- (2) Reason for exemption. (i) Personnel formation. Security Records contained in the sys- (D) To fulfill commitments made to tem of records which are compiled sole- protect the confidentiality of sources. ly for the purpose of determining suit- (E) To assure access to sources of ability, eligibility, or qualifications for confidential information, including Federal civilian employment, Federal that contained in Federal, State, and contracts, or access to classified infor- local criminal law enforcement infor- mation are exempt under the provi- sions of 5 U.S.C. 552a(k)(5), but only to mation systems. the extent that the disclosure of such (F) To prevent disclosure of law en- material would reveal the identity of forcement techniques and procedures. the source who furnished information (G) To avoid endangering the life or to the Government under an express physical safety of confidential sources promise that the identity of the source and law enforcement personnel. would be held in confidence, or, prior (iii) The system of records includes to January 1, 1975, under an implied records subject to the provisions of 5 promise that the identity of the U.S.C. 552(b)(1) (required by Executive sources would be held in confidence. order to be kept secret in the interest This system of records is exempt for of national defense or foreign policy), one or more of the following reasons: and such records are exempt under 5 (A) To fulfill commitments made to U.S.C. 552a(k)(1). protect the confidentiality of sources. (B) To assure access to sources of Subpart 1212.6—Instructions for confidential information, including that contained in Federal, State, and NASA Employees local criminal law enforcement infor- § 1212.600 General policy. mation systems. (ii) Criminal Matter Records are con- In compliance with the Privacy Act tained in the system of records and are and in accordance with the require- exempt under the provisions of 5 U.S.C. ments and procedures of this regula- 552a(k)(2): Provided, however, That if tion, NASA has an obligation to:
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(a) Advise individuals, when re- NASA system notice shall include a quested, as to whether any specific sys- reference to the system notice of the tem of records maintained by NASA other agency. contains records pertaining to them; (c) NASA shall provide adequate ad- (b) Prevent records being maintained vance notice to Congress and OMB of by NASA in a system of records for a any proposal to establish a new system specific purpose from being used or of records or alter any existing system made available for another purpose of records as prescribed by OMB Cir- without the individual’s consent; and, cular No. A–130, appendix I. (c) Permit individuals to have access to information about themselves in a § 1212.602 Requirements for collecting NASA system of records, to have a information. copy made, and, if appropriate under In collecting information for systems subpart 1212.3 of this part, to amend of records, the following requirements the records. shall be met: (a) Information shall be collected to § 1212.601 Maintenance and publica- the greatest extent practicable directly tion requirements for systems of from the subject individual when the records. information may result in adverse de- (a) In maintaining systems of terminations about an individual’s records, NASA shall: rights, benefits, and privileges under (1) Maintain any record in a system Federal programs. Exceptions to this of records for necessary and lawful pur- policy may be made under certain cir- poses only, assure that the information cumstances, such as one of the fol- is current and accurate for its intended lowing: use, and provide adequate safeguards to (1) There is a need to verify the accu- prevent misuse of the information. racy of the information supplied by an (2) Maintain only information about individual. an individual relevant and necessary to (2) The information can only be ob- accomplish a purpose or to carry out a tained from a third party. function of NASA authorized by law or (3) There is no risk that information by Executive order of the President. collected from third parties, if inac- (3) Maintain records used by NASA curate, could result in an adverse de- officials in making any determination termination to the individual con- about any individual with such accu- cerned. racy, relevance, timeliness, and com- (4) Provisions are made to verify with pleteness reasonably necessary to as- the individual information collected sure fairness to the individual in mak- from a third party. ing the determination. (b) Each individual who is asked to (4) Maintain no record describing how supply information shall be informed an individual exercises rights guaran- of the following: teed by the First Amendment unless (1) The authority (whether granted expressly authorized by statute, by the by statute, or by Executive order of the individual about whom the record is President) for requesting the informa- maintained or unless pertinent to and tion; within the scope of an authorized law (2) Whether disclosure is mandatory enforcement activity. or voluntary; (5) Maintain and provide access to (3) The intended official use of the in- records of other agencies under NASA’s formation; control consistent with the regulations (4) The routine uses which may be of this part. made of the information, as published (b) Any system of records maintained in the system notices; by NASA which is in addition to or (5) The effects, if any, on the indi- substantially different from a Govern- vidual of not providing all or any part mentwide systems of records described of the requested information. in a systems notice published by an- other agency shall be regarded as a § 1212.603 Mailing lists. NASA system of records subject to the NASA will not sell, rent, or other- requirements of this part, and the wise disclose an individual’s name and
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address to anyone, unless otherwise practice should occur only where there specifically authorized by law. are justifiable organizational needs for it, e.g., where geographic distances § 1212.604 Social security numbers. make use of the system of records time (a) It is unlawful for NASA to deny to consuming or inconvenient. These du- individuals any rights, benefits, or plicate copies shall not be considered a privileges provided by law because of separate NASA system of records. For the individuals’ refusal to disclose example, an office head or designee their social security numbers, except may keep duplicate copies of per- where: sonnel, training, or similar records on (1) The disclosure is required by law; employees within the organization for or administrative convenience purposes. (2) The disclosure is from a system of (b) No disclosure shall be made from records in existence and operating be- duplicate copies outside of the organi- fore January 1, 1975, and was required zational unit. Any outside request for under statute or regulation adopted be- disclosure shall be referred to the ap- fore that date to verify the identity of propriate system manager for response. the individual(s). (c) Duplicate copies are subject to (b) Any time individuals are re- the same safeguard requirements appli- quested to disclose their social security cable to the system of records. numbers, NASA shall indicate whether that disclosure is mandatory or vol- Subpart 1212.7—NASA Authority untary, by what authority the numbers and Responsibilities are requested, and what uses will be made of them. § 1212.700 NASA employees. § 1212.605 Safeguarding information in (a) Each NASA employee is respon- systems of records. sible for adhering to the requirements (a) Safeguards appropriate for a of the Privacy Act and this regulation. NASA system of records shall be devel- (b) An employee shall not seek or ob- oped by the system manager in a writ- tain access to a record in a NASA sys- ten plan approved by the Installation tem of records or to copies of any por- Security Officer. tion of such records under false pre- (b) When records or copies of records tenses. Only those employees with an are distributed within NASA they shall official ‘‘need to know’’ may seek and be prominently identified as records obtain access to records pertaining to protected under the Privacy Act and others. shall be subject to the same safeguard, (c) Employees shall refrain from dis- retention, and disposition require- cussing or disclosing personal informa- ments applicable to the system of tion about others which they have ob- records. tained because of their official need to (c) When records or copies of records know such information in the perform- are distributed to other Federal agen- ance of official duties. cies, other than those having custody (d) To the extent included in a con- of the systems of records, they shall be tract which provides for the mainte- prominently identified as records pro- nance by or on behalf of NASA of a sys- tected under the Privacy Act. tem of records to accomplish a func- (d) Records that are otherwise re- tion of NASA, the requirements of this quired by law to be released to the pub- section shall apply to contractor em- lic need not be safeguarded or identi- ployees who work under the contract. fied as Privacy Act records. § 1212.701 Assistant Deputy Adminis- § 1212.606 Duplicate copies of records trator. or portions of records. The Assistant Deputy Administrator (a) NASA officials may maintain and is responsible for: use, for official purposes, duplicate (a) Making final Agency determina- copies of records or portions of records tions on appeals (§ 1212.400); from a system of records maintained (b) Authorizing exemptions from one by their own organizational unit. This or more provisions of the Privacy Act
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for NASA systems of records (See termination is made to disclose infor- § 1212.500); and, mation without the individual’s con- (c) Authorizing an extension for mak- sent under authority of 5 U.S.C. 552a(b) ing a final determination on an appeal (See § 1212.203(g)); and (§ 1212.400(d)). (4) Providing appropriate oversight for responsibilities and authorities ex- § 1212.702 Associate Administrator for ercised by system managers under Management Systems and Facili- their jurisdiction (§ 1212.704). ties. (b) Directors of NASA Field Installa- (a) The Associate Administrator for tions and Officials-in-Charge of Compo- Management Systems and Facilities is nent Installations or designees may es- responsible for the following: tablish a position of installation Pri- (1) Providing overall supervision and vacy Officer to assist in carrying out coordination of NASA’s policies and the responsibilities listed in paragraph procedures under this regulation; (a) of this section. (2) Approving system notices for pub- lication in the FEDERAL REGISTER; § 1212.704 System manager. (3) Assuring that NASA employees (a) Each system manager is respon- and officials are informed of their re- sible for the following with regard to sponsibilities and that they receive ap- the system of records over which the propriate training for the implementa- system manager has cognizance: tion of these requirments; and, (4) Preparing and submitting the bi- (1) Overall compliance with the ‘‘Pri- ennial report on implementation of the vacy Act—NASA Regulations’’ (NASA Privacy Act to OMB and special re- Management Instruction (NMI) 1382.17) ports required under this regulation, and the Computer Matching Program including establishing appropriate re- (NMI 1382.18); porting procedures in accordance with (2) Ensuring that each person in- OMB Circular No. A–130. volved in the design, development, op- (b) The Associate Administrator for eration, or maintenance of the system Management Systems and Facilities of records is instructed with respect to may establish a position of ‘NASA Pri- the requirements of this regulation and vacy Officer,’ or designate someone to the possible penalties for noncompli- function as such an officer, reporting ance; directly to the Associate Adminis- (3) Submitting a request to the As- trator for Management Systems and sistant Deputy Administrator for an Facilities, and delegate to that officer exemption of the system under subpart any of the functions described in para- 1212.5 of this part, setting forth in pro- graph (a) of this section. posed rulemaking form the reasons for the exemption and citing the specific § 1212.703 Headquarters and Field or provision of the Privacy Act which is Component Installations. believed to authorize the exemption; (a) Officials-in-Charge of Head- (4) After consultation with the Office quarters Offices, Directors of NASA of the General Counsel or the Chief Field Installations and Officials-in- Counsel, making reasonable efforts to Charge of Component Installations are serve notice on an individual when any responsible for the following with re- record on such individual is made spect to those systems of records main- available to any person under compul- tained in their organization: sory legal process when such process (1) Avoiding the establishment of new becomes a matter of public record; systems of records or new routine uses (5) Making an initial determination of a system of records without first on an individual’s request to correct or complying with the requirements of amend a record, in accordance with this regulation; § 1212.302; (2) Ensuring that the requirements of (6) Prior to disclosure of any record this regulation and the Privacy Act are about an individual, assuring that the followed by employees; record is first reviewed for accuracy, (3) Ensuring that there is appropriate completeness, timeliness, and rel- coordination within NASA before a de- evance;
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(7) Authorizing disclosures of a § 1212.705 Assistant Administrator for record without the individual’s consent Procurement. under § 1212.203(g) (1) through (12); The Assistant Administrator for Pro- (8) Responding within the require- curement is responsible for developing ments of § 1212.200 to an individual’s re- appropriate procurement regulations quest for information as to whether the and procedures under which NASA con- system contains a record pertaining to tracts requiring the maintenance of a the individual; system of records in order to accom- (9) Responding to an individual’s re- plish a NASA function are made sub- quest for access and copying of a ject to the requirements of this part. record, in accordance with subpart § 1212.706 Delegation of authority. 1212.2 of this part; (10) Amending a record under subpart Authority necessary to carry out the 1212.3 of this part, or filing in an indi- responsibilities specified in this regula- vidual’s record a statement of dispute; tion is delegated to the officials named, subject to any conditions or (11) Preparing an addendum to an in- limitations imposed in accordance with dividual’s statement of dispute to be this subpart 1212.7. filed in the individual’s records, in ac- cordance with § 1212.401; (12) Maintaining disclosure account- Subpart 1212.8—Failure to Comply ings in accordance with 5 U.S.C. 552a(c) With Requirements of This Part and 14 CFR 1212.203. This includes § 1212.800 Civil remedies. records disclosed pursuant to any com- Failure to comply with the require- puter matching programs; ments of the Privacy Act and this part (13) Notifying persons to whom a could subject NASA to civil suit under record has been disclosed and for which the provisions of 5 U.S.C. 552a(g). an accounting was made as to disputes and corrections involving the record; § 1212.801 Criminal penalties. and (a) A NASA officer or employee may (14) Developing appropriate safe- be subject to criminal penalties under guards for the system of records in ac- the provisions of 5 U.S.C. 552a(i) (1) and cordance with § 1212.605(a). (2). (b) Where a system of records has (1) Section 552a(i)(1). Any officer or subsystems described in the system no- employee of an agency, who by virtue tice, the subsystem manager will have of employment or official position, has the responsibilities outlined in para- possession of, or access to, agency graph (a) of this section. Although the records which contain individually system manager has no line authority identifiable information the disclosure over subsystem managers, the system of which is prohibited by this section manager does have overall functional or by rules or regulations established responsibility for the total system, and thereunder, and who knowing that dis- may issue guidance to subsystem man- closure of the specific material is so agers on implementation of this part. prohibited, willfully discloses the ma- When furnishing information for re- terial in any manner to any person or agency not entitled to receive it, shall quired reports, the system manager be guilty of a misdemeanor and fined will be responsible for reporting the en- not more than $5,000. tire system of records, including any (2) Section 552a(i)(2). Any officer or subsystems. employee of any agency who willfully (c) Exercise of the responsibilities maintains a system of records without and authorities in paragraph (a) of this meeting the notice requirements of section by any system or subsystem subsection (e)(4) of this section shall be managers at a NASA Installation shall guilty of a misdemeanor and fined not be subject to any conditions or limita- more than $5,000. tions imposed in accordance with (3) These two provisions apply to § 1212.703 (a)(4) and (b). NASA civil service employees as well
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as those employees of a NASA con- ties will be restricted by the STS Secu- tractor with responsibilities for main- rity Classification Guide. In addition, taining a Privacy Act system of information concerning the surviv- records. ability/vulnerability of the NSTS may (b) Section 552a(i)(3). Any person who be classified for all NSTS operations. knowingly and willfully requests or ob- (c) NASA will respond promptly to tains any record concerning an indi- queries from the information media vidual from an agency under false pre- and industry, and cooperate with con- tenses shall be guilty of a misdemeanor tractors in their release of NASA re- and fined not more than $5,000. lated informational material including advertising. PART 1213—RELEASE OF INFORMA- (d) NASA officials may participate in TION TO NEWS AND INFORMA- interviews and speak for the Agency in TION MEDIA areas of their assigned responsibility. § 1213.102 Responsibility. Sec. 1213.100 Scope. (a) The Associate Administrator for 1213.101 Policy. Public Affairs is responsible for the de- 1213.102 Responsibility. velopment and overall administration 1213.103 Procedures for issuance of news re- of an integrated Agencywide commu- leases. nications program and determines 1213.104 Procedures for news release coordi- whether the specific information is to nation and concurrence. 1213.105 Interviews. be released. The Associate Adminis- 1213.106 Audiovisual material. trator for Public Affairs will: 1213.107 International news releases. (1) Direct and coordinate all Head- 1213.108 Security. quarters and agencywide public infor- AUTHORITY: 42 U.S.C. 2473(a)(3) and NSDD– mation activities. 84, ‘‘Safeguarding National Security Infor- (2) Direct and coordinate all agency- mation.’’ wide news-oriented audiovisual activi- ties. SOURCE: 52 FR 45936, Dec. 3, 1987, unless otherwise noted. (b) In accordance with § 1213.104, the Public Affairs Officers assigned to § 1213.100 Scope. Headquarters Program and Staff Of- This part 1213 sets forth the policy fices are responsible for developing governing the release of information in plans and coordinating all public infor- any form to news and information mation activities covering their re- media. Not included is the release of spective programs at Headquarters and scientific and technical information to in the field. scientific and technical journals and (c) In accordance with § 1213.104, Di- audiences. rectors of Field Installations, through their Public Affairs Officers, are re- § 1213.101 Policy. sponsible for initiating and obtaining (a) Consistent with NASA statutory concurrences for information programs responsibility, NASA will ‘‘* * * pro- and public releases issued by their re- vide for the widest practicable and ap- spective installation and component propriate dissemination of information installations. concerning its activities and the re- (d) The requirements of this section sults thereof, * * *’’ do not apply to the Office of Inspector (b) Release of information concerning General (IG) regarding IG activities. NASA activities and the results will be [52 FR 45936, Dec. 3, 1987, as amended at 56 made promptly, factually and com- FR 66787, Dec. 26, 1991] pletely. Exceptions include that infor- mation whch may be exempt from dis- § 1213.103 Procedures for issuance of closure under the ‘‘Freedom of Infor- news releases. mation Act’’ (5 U.S.C. 552, as amended) (a) All Headquarters news releases (14 CFR part 1212). For classified DoD will be issued by the Office of Public missions on the National Space Trans- Affairs, Media Services Division. portation System (NSTS), release of (b) Directors of Field Installations, information concerning NASA activi- through their Public Affairs Officer,
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may release information for which that fected will be notified of the reasons Field Installation is the primary or for the action. sole source, i.e., launch, mission, and (c) Field-other. A release originating planetary encounter commentary; tele- in one field installation that involves phone recorded messages; status re- the activities of another installation ports; and releases of local or regional (including Headquarters) will not be interest. Release of information that issued until the concurrences of all in- has national significance will be co- stallations and appropriate Institu- ordinated with the Associate Adminis- tional Program Offices concerned have trator for Public Affairs. Material re- been obtained. The originating instal- ceived from contractors prior to its public release may be reviewed for lation is responsible for arranging a technical accuracy at the contracting mutually acceptable release time. Installation. (d) Simultaneous release. Where a re- (c) The requirements of this section lease is to be simultaneously issued, do not apply to the Office of Inspector whether by Headquarters, a field in- General regarding IG activities. stallation, industry-NASA, or univer- sity-NASA, it will be so stated on the [52 FR 45936, Dec. 3, 1987, as amended at 56 FR 66787, Dec. 26, 1991] news release. Simultaneous release will be coordinated by the Headquarters Di- § 1213.104 Procedures for news release rector, Media Services Division. coordination and concurrence. (e) Date lines. Out-of-town date lines (a) General. All organizational ele- will not be used on releases issued by ments of NASA involved in preparing Headquarters except in the case of an and issuing NASA news releases are re- advance release of a speech text in- sponsible for proper coordination and tended for regional distribution in the obtaining concurrences and clearances area where the speech will be delivered. prior to issuance of the news release. (f) Exchange of releases. All Agency Such coordination will be accom- releases will be exchanged electroni- plished through the Associate Adminis- cally with all field installations by the trator for Public Affairs, NASA Head- Headquarters newsroom. The full text quarters. of important releases, regardless of (b) Headquarters-field. (1) The Head- source, which may generate unusual quarters Office of Public Affairs will release information after obtaining all interest and queries shall be sent by necessary concurrences and clearances electronic mail or telephoned to all in- from the appropriate Program or other terested installations and Head- Headquarters Office. Field Installa- quarters in advance of release time to tions will obtain clearances from the enable public information officers to appropriate Institutional Program or respond intelligently to queries arising other Headquarters Office. locally. (2) Headquarters issuance of a news (g) Exchange of communication activi- release bearing on a Field Installation ties. All field installations will ex- will be coordinated with the Installa- change information with the appro- tion through the appropriate Institu- priate Headquarters Public Affairs Of- tional Program Office/Public Affairs ficers concerning news events and re- Office, Associate Administrator for leases. Immediate notification will be Public Affairs, or Director, Media Serv- made to Headquarters and any im- ices Division. If Headquarters is the pacted installation of events or situa- issuing Agency for a release for which tions that will make news, particularly the primary source is an Installation, of a negative nature. the Office of Public Affairs will keep (h) The requirements of this section the Installation fully informed. do not apply to the Office of Inspector (3) If the Office of Public Affairs General regarding IG activities. changes, delays, or cancels a release proposed for issuance by a Field Instal- [52 FR 45936, Dec. 3, 1987, as amended at 56 lation, the Installation and the appro- FR 66787, Dec. 26, 1991] priate Institutional Program Office af-
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§ 1213.105 Interviews. (3) Audio and/or video tapes of sig- nificant news developments and other (a) NASA personnel will respond events of historical or public informa- promptly to requests to media rep- resentatives for information or inter- tion interest. views. (4) For DoD classified operations, all (b) Normally, requests for interviews audiovisual material of or related to with NASA officials will be made the classified operation will be re- through the appropriate Public Affairs viewed and deemed releasable by the Office. However, journalists will have designated DoD officer. direct access to those NASA officials they seek to interview. § 1213.107 International news releases. (c) Information given to the press (a) All releases of information involv- will be on an ‘‘on-the-record’’ basis ing NASA activities or views affecting only and attributable to the person(s) another country or an international or- making the remarks. Any NASA em- ganization require prior coordination ployee providing material to the press with the International Relations Divi- will identify himself/herself as the sion, Office of External Relations, source. through the Public Affairs Officer as- (d) Any attempt by news media rep- signed to that division. resentatives to obtain classified infor- (b) NASA field installations and mation will be reported through the Headquarters offices will report all vis- Headquarters Office of Public Affairs its proposed by representatives of for- or Installation Public Affairs Office to eign news media to the Public Affairs the Installation Security Office. The Officer for the International Relations knowing disclosure of classified infor- Division, NASA Headquarters. mation to unauthorized individuals will be cause for disciplinary actions (c) Safeguards intended to control ac- against the NASA employee involved. cess to classified information, mate- (e) Public information volunteered rials, or facilities and provisions to by a NASA official will not be consid- protect the NSTS as a national re- ered exclusive to any one media source source will not be diminished in pro- and will be made available to other viding assistance to foreign or U.S. sources, if requested. news representatives. (f) For a DoD classified operation, all inquiries concerning this activity will § 1213.108 Security. be responded to by the designated DoD It is the responsibility of each Public officer. Affairs Officer to implement the STS Security Classification Guide for each [52 FR 45936, Dec. 3, 1987, as amended at 56 FR 66788, Dec. 26, 1991] DoD classified operation on the NSTS. Guidance for this implementation will § 1213.106 Audiovisual material. be provided in the joint NASA and (a) NASA’s central repository of USAF Public Affairs plan for each mis- audiovisual material will be available sion. In addition, each NASA installa- to the information media and to all tion involved in the NSTS will have in- NASA installations. formation concerning the protection of (b) Field installations will provide the NSTS as a national resource. This NASA Headquarters with: category of information, including (1) Selected prints and original or du- NSTS survivability/vulnerability data, plicate negatives of news-oriented pho- may be classified. Therefore, all ques- tographs generated within their respec- tions regarding security classification tive areas. will be resolved by the appropriate se- (2) Selected color motion picture curity classification officer at any footage (prints) which, in the opinion NASA installation or by the designated of the installation, would be appro- DoD security officer for DoD classified priate for use as features in programs. information.
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PART 1214—SPACE FLIGHT 1214.306 Payload specialist relationship with sponsoring institutions.
Subpart 1214.1—General Provisions Re- Subpart 1214.4—International Space garding Space Shuttle Flights of Pay- Station Crew loads for Non-U.S. Government, Reim- bursable Customers 1214.400 Scope. 1214.401 Applicability. Sec. 1214.402 International Space Station crew- 1214.100 Scope. member responsibilities. 1214.101 Eligibility for flight of a non-U.S. 1214.403 Code of Conduct for the Inter- government reimbursable payload on the national Space Station Crew. Space Shuttle. 1214.404 Violations. 1214.102 Definitions. 1214.103 Reimbursement for standard serv- Subpart 1214.5—Mission Critical Space ices. System Personnel Reliability Program 1214.104 Reimbursement for optional serv- ices. 1214.500 Scope. 1214.105 Apportionment and/or assignment 1214.501 Applicability. of services. 1214.502 Definitions. 1214.106 Minor delays. 1214.503 Policy. 1214.107 Postponement. 1214.504 Screening requirements. 1214.108 Termination. 1214.505 Program implementation. 1214.109 Scheduling. 1214.110 Reflight. Subpart 1214.6—Mementos Aboard Space 1214.111 Rendezvous services. Shuttle Flights 1214.112 Patent, data and information mat- ters. 1214.600 Scope. 1214.113 Allocation of risk. 1214.601 Definitions. 1214.114 Provision of services. 1214.602 Policy. 1214.115 Standard services. 1214.603 Official Flight Kit (OFK). 1214.116 Typical optional services. 1214.604 Personal Preference Kit (PPK). 1214.117 Launch and orbit parameters for a 1214.605 Preflight packing and storing. standard launch. 1214.606 Postflight disposition. 1214.118 Special criteria for deployable pay- 1214.607 Media and public inquiries. loads. 1214.608 Safety requirements. 1214.119 Spacelab payloads. 1214.609 Loss or theft. 1214.610 Violations. Subpart 1214.2—Reimbursement for Shuttle Subpart 1214.7—The Authority of the Services Provided to Civil U.S. Govern- Space Shuttle Commander ment Users and Foreign Users Who Have Made Substantial Investment in 1214.700 Scope. the STS Program 1214.701 Definitions. 1214.702 Authority and responsibility of the 1214.200 Scope. Space Shuttle commander. 1214.201 Definition. 1214.703 Chain of command. 1214.202 Reimbursement policy. 1214.704 Violations. 1214.203 Optional reflight guarantee. 1214.204 Patent and data rights. Subpart 1214.8—Reimbursement for 1214.205 Revisit and/or retrieval services. Spacelab Services 1214.206 Damage to payload. 1214.207 Responsibilities. 1214.800 Scope. APPENDIX A TO SUBPART 1214.2—COSTS FOR 1214.801 Definitions. WHICH NASA SHALL BE REIMBURSED 1214.802 Relationship to Shuttle policy. APPENDIX B TO SUBPART 1214.2—OCCUPANCY 1214.803 Reimbursement policy. FEE SCHEDULE 1214.804 Services, pricing basis, and other considerations. Subpart 1214.3—Payload Specialists for 1214.805 Unforeseen customer delay. Space Transportation System (STS) Missions 1214.806 Premature termination of Spacelab flights. 1214.300 Scope. 1214.807 Exceptional payloads. 1214.301 Definitions. 1214.808 Standby payloads. 1214.302 Background. 1214.809 Short-term call-up and accelerated 1214.303 Policy. launch. 1214.304 Process. 1214.810 Integration of payloads. 1214.305 Payload specialist responsibilities. 1214.811 Reflight guarantee.
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1214.812 Payload specialists. 1214.1707 Media and public inquiries. 1214.813 Computation of sharing and pricing parameters. AUTHORITY: Sec. 203, Public Law 85–568, 72 Stat. 429, as amended (42 U.S.C. 2473). Subpart 1214.9—Small Self-Contained Payloads (SSCPs) Subpart 1214.1—General Provi- 1214.900 What does this subpart cover? sions Regarding Space Shuttle 1214.901 What is the relationship of this sub- Flights of Payloads for Non- part with subparts 1214.1 and 1214.2? U.S. Government, Reimburs- 1214.902 Definitions. able Customers 1214.903 What are the requirements con- cerning Launch Services Agreements (LSA)? AUTHORITY: Sec. 203, Pub. L. 85–568, 72 Stat. 1214.904 What are the conditions of use for a 429, as amended (42 U.S.C. 2473); Sec. 201(b) SSCP? Pub. L. 87–624, 76 Stat. 421 (47 U.S.C. 721(b)). 1214.905 What is NASA’s reimbursement pol- icy? SOURCE: 57 FR 4545, Feb. 6, 1992, unless oth- 1214.906 When will my payload be scheduled erwise noted. to fly? 1214.907 Will NASA re-fly my payload if § 1214.100 Scope. something goes wrong (and it’s not my This subpart 1214.1 sets forth general fault)? 1214.908 Who gets rights to patents resulting provisions regarding flight of Space from the payload or to the scientific/re- Shuttle cargo bay payloads for non- search data generated? U.S. government, reimbursable cus- 1214.909 What if my payload is damaged? tomers. It does not apply to Small Self- 1214.910 What are the standard services Contained Payloads flown under the NASA provides for my payload? provision of subpart 1214.9 or payloads 1214.911 Can I buy optional services for my flown on a space-available basis on payload from NASA? 1214.912 Are there special provisions for NASA-provided Hitchiker carriers. SSCP participants who already have a signed LSA governed by regulations in § 1214.101 Eligibility for flight of a effect before April 23, 1999? non-U.S. government reimbursable payload on the Space Shuttle. Subpart 1214.10 [Reserved] To be eligible for flight on the Space 1214.1000–1214.1004 [Reserved] Shuttle, non-U.S. government, reim- bursable payloads must meet criteria Subpart 1214.11—NASA Astronaut Can- for use of the Shuttle established by didate Recruitment and Selection Pro- U.S. law and public policy. The NASA gram Administrator will determine and/or certify the compliance of the payload 1214.1100 Scope. 1214.1101 Announcement. with these criteria. To qualify for 1214.1102 Evaluation of applications. flight on the Space Shuttle, non-U.S. 1214.1103 Application cutoff date. government, reimbursable payloads 1214.1104 Evaluation and ranking of highly must require the unique capabilities of qualified candidates. the Shuttle, or be important for either 1214.1105 Final ranking. national security or foreign policy pur- 1214.1106 Selection of astronaut candidates. 1214.1107 Notification. poses.
Subparts 1214.12–1214.16 [Reserved] § 1214.102 Definitions. (a) Customer. Any non-U.S. govern- Subpart 1214.17—Space Flight Participants ment person or entity who, by virtue of 1214.1700 Scope. a contract or other arrangement with 1214.1701 Applicability. NASA, arranges for or otherwise pro- 1214.1702 Relation to other part 1214 mate- vides payloads to be flown on the Shut- rial. tle on a reimbursable basis. 1214.1703 Definitions. (b) Dedicated flight. A shuttle flight 1214.1704 Policy. 1214.1705 Selection of space flight partici- flown for a single customer. pants. (c) Dedicated flight price. The price es- 1214.1706 Program management. tablished by NASA for a dedicated
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flight that provides the standard serv- (k) Payload weight. The maximum ices listed in § 1214.115 for 1 day of sin- weight of the payload in the Space gle-shift, on-orbit mission operations. Shuttle cargo bay, including the (d) Jettison. To physically separate all weight of the payload itself and a pro or a portion of a payload from the rata share of the weight of any special Shuttle after liftoff of the Shuttle equipment or materials needed for the without the intent of fulfilling the pay- mission. load operations requirements agreed to (l) Scheduled launch date. NASA’s of- by NASA and the customer. ficial then-best-estimate of the data of (e) Launch agreement. The primary launch. This will be the date of record document between NASA and the non- for all scheduling and reimbursement U.S. government, reimbursable cus- procedures. tomer, containing the detailed terms, (m) Shared flight. A flight that may conditions, requirements and con- be shared by more than one customer. straints under which NASA commits to (n) Shuttle standard flight price. The provide launch services. price for Shuttle standard services pro- (f) Marginal cost. Solely for the pur- vided to the customer. poses of determining the cost of a re- (o) Standard launch. A launch meet- flight launch, marginal cost is defined ing all the launch and orbit criteria de- as the cost to the U.S. Government, as fined in § 1214.117. determined by NASA’s normal ac- counting procedures, associated with (p) Standard services. Those services the addition or reduction of one flight which are generally made available for in a given U.S. government fiscal year. all customers, which for Space Shuttle are generically defined in NASA docu- (g) Non-U.S. government reimbursable ment NSTS 07700, Volume XIV, and customers are: (1) All non-U.S. Government persons which are included in the standard or entities paying NASA for Shuttle flight price. If the payload uses only a services under this subpart 1214.1; or portion of the standard services, the (2) U.S. Government agencies obtain- standard flight price will not be af- ing reimbursable Shuttle services for fected. those persons or entities cited in para- § 1214.103 Reimbursement for stand- graph (g)(1) of this section; e.g., the De- ard services. partment of Defense under a Foreign Military sales case. (a) Establishment of price. NASA will (h) Optional services. Those non- establish, and update as appropriate, standard services provided at the cus- the standard flight price under this tomer’s request and with the concur- § 1214.1. rence of NASA. The price for optional (b) Advance pricing. NASA normally services is not included in the standard will agree to a standard flight price no flight price. later than 3 years in advance of launch. (i) Payload integration documentation. (c) Price stability. The standard flight Documentation developed to reflect price will be fixed, subject to the terms NASA/customer agreements on payload of the launch agreement, and subject requirements, payload/Shuttle inter- to escalation pursuant to § 1214.103(d), faces, and ground and flight implemen- and will be the price set by NASA as of tation of the mission. Includes the the time of signing a launch agree- Payload Integration Plan, its Annexes ment. and all related documentation. (d) Escalation of payments. With the (j) Payload length. The maximum exception of payments for earnest length of the payload in the Space money, all payments will be escalated Shuttle cargo bay at any time during according to the U.S. Bureau of Labor launch, landing, operations, deploy- Statistics Index, ‘‘Private Business ment, servicing or retrieval. It includes Sector, All Persons: Productivity, any clearance length necessary for Hourly Compensation, Unit Labor Cost items such as dynamic envelope con- and Prices Seasonally Adjusted’’ table, siderations, deployment, retrieval, ‘‘Compensation, Per Hour,’’ column servicing and use of the remote manip- published in the U.S. Department of ulator system. Labor, Bureau of Labor Statistics,
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news release entitled ‘‘Productivity (4) The load factor is defined as the and Costs.’’ maximum of: (e) Independence of pricing and mani- festing. The standard flight price for a Payload Payload shared flight payload as computed from length, m, weight, kg 1214.103(g) will be independent from the or 18.29 m Shuttle lift actual payload manifest for a specific capability, kg shared flight. (f) Allocation of services. (1) Customers where: contracting for a dedicated flight are (i) Payload length is as defined in eligible for the full standard services, § 1214.102(j); as defined in § 1214.115, available on the (ii) Payload weight is as defined in flight. § 1214.102(k); (2) Customers contracting for a (iii) For those payloads for which standard shared flight meeting the cri- NASA has reviewed and accepted a teria of § 1214.117 are eligible for a por- NASA Form 1628 (Request for Flight tion of the standard services, as defined Assignment) and received earnest in § 1214.115, available on the flight. The money (if required) prior to (insert basis of apportionment will be deter- date of publication in FEDERAL REG- mined by NASA and will be a function ISTER), the Shuttle lift capability for a of the payload load factor. shared flight, standard launch will be (g) Computation of prices. (1) The 29,478 kg. For all other payloads, the Shuttle standard flight price for a dedi- lift capability for a shared flight, cated flight is the dedicated flight standard launch will be 21,542 kg. price as defined in § 1214.102(c). (2) The Shuttle standard flight price (h) Payment schedule—(1) Earnest for a standard shared flight is the prod- money. Earnest money in the amount uct of the payload’s charge factor and of $100,000 per payload will be paid to the dedicated flight price as defined in NASA by the customer. The earnest § 1214.102(c). money will be paid at the time of sub- (3) The computed charge factor for a mission of a NASA Form 1628, and will payload is defined as: be applied to the first payment made by the customer toward the standard Load Factor flight price, or will be retained by NASA unless NASA determines that 0.75 the payload does not meet the eligi- If the computed charge factor ex- bility criteria referenced in § 1214.101. ceeds 1.0, the charge factor will be 1.0. (2) Payment schedule for standard serv- If the computed charge factor is less ices. (i) Payment for standard services than 0.067, the charge factor will be will be made in accordance with the 0.067. following schedule:
Percent of price due
Number of months before launch flight is scheduled At time of Months prior to scheduled launch date scheduling 33 24 18 12 6 3 Total
33 or more ...... 10 10 15 25 25 15 100 24–32 ...... 11 ...... 10 15 25 25 15 101 18–23 ...... 23 ...... 15 25 25 15 103 12–17 ...... 42 ...... 25 25 15 107 6–11* ...... 73 ...... 25 15 113 3–5* ...... 107 ...... 15 122 Less than 3* ...... 122 ...... 122 *Additional charges pursuant to § 1214.103(h)(2)(ii) also may apply.
(ii) Unless otherwise agreed to by uling will be the cumulative amount NASA, for purposes of the payment due at the time of: schedule of § 1214.103(h)(2)(i), the per- (A) NASA’s initial commitment to cent of price due at the time of sched- the schedule of a newly scheduled pay- load;
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(B) A customer’s requested resched- (b) Integration of apportioned/as- uling of a payload such that it will be signed payload elements within the launched at an earlier date; or payload is the responsibility of the cus- (C) Rescheduling of a payload post- tomer. Any NASA assistance in such poned at the request of the customer or integration will be provided as an op- caused by the customer. tional service. (iii) If the time from a customer’s re- (c) Customers intending to apportion quest for initial scheduling or resched- and/or assign services will so designate uling of a payload is less than 1 year at the time the launch agreement is from the launch date being requested, signed. and NASA can accommodate the re- quest, NASA may also charge the cus- § 1214.106 Minor delays. tomer any estimated additional cost of NASA will attempt to accommodate providing standard services on such a customer requested minor launch shortened schedule. delays. Such delays will normally be (iv) Normally no charges for standard requested just prior to launch. Except services will be made after the flight, for potential optional service charges, except for a final adjustment for esca- delays up to 72 hours can normally be lation. accommodated at no charge. This 72- (i) Late payment fees. Customers who hour period is shared by all customers do not meet the payment schedule de- on a particular flight. The basis of pro- fined in § 1214.103(h) will be subject to a ration will be established in the launch late payment fee established by NASA agreement. Delays beyond 72 hours will in the launch agreement. require NASA’s approval and will re- sult in an additional charge as estab- § 1214.104 Reimbursement for optional lished in the launch agreement. services. (a) Pricing basis. To the extent prac- § 1214.107 Postponement. tical, optional services will be provided (a) Provisions of this paragraph apply on a fixed-price or fixed-rate basis. If to postponements requested or caused this is not practical, the price will be by the customer. on a governmental cost basis; i.e., the (b) A customer postponing the flight actual cost or in certain cases the esti- of a payload will pay a postponement mated actual costs. fee to NASA. The fee will be computed (b) Escalation of payments. All pay- as a percentage of the customer’s Shut- ments for optional services subject to tle standard flight price and will be escalation will be escalated in accord- based on the table below. ance with the provisions of § 1214.103(d). Postponement fee, per- (c) Schedules of payments. NASA will cent of standard flight establish payment schedules for op- Months before scheduled launch price date when postponement occurs tional services and will incorporate Dedicated Shared those schedules in the launch agree- flights flights ment at the time a particular optional More than 33 ...... 0 0 service is agreed to between the cus- 18 or more but less than or equal tomer and NASA. to 33 —1st postponement ...... 0 0 (d) Late payment fees. Customers who —2nd and subsequent ...... 5 5 do not make payments by the due 17 or more but less than 18 ...... 6 9 dates defined by NASA will be subject 16 or more but less than 17 ...... 7 13 15 or more but less than 16 ...... 8 17 to a late payment fee established by 14 or more but less than 15 ...... 10 20 NASA in the launch agreement. 13 or more but less than 14 ...... 11 24 12 or more but less than 13 ...... 12 28 § 1214.105 Apportionment and/or as- 11 or more but less than 12 ...... 13 32 signment of services. 10 or more but less than 11 ...... 14 36 9 or more but less than 10 ...... 15 40 (a) Subject to NASA approval, a cus- 8 or more but less than 9 ...... 17 43 7 or more but less than 8 ...... 18 47 tomer may apportion and/or assign 6 or more but less than 7 ...... 19 51 Shuttle services to third parties within Less than 6 ...... 20 55 the payload. No apportionment and/or assignment of Shuttle services may (c) If at any point, a customer post- take place outside the payload. ponement results in a launch date
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more than 12 months later than the § 1214.109 Scheduling. original scheduled launch date, the (a) Establishment of a launch date. (1) standard flight price for the customer’s NASA will assign a tentative launch payload may be adjusted by NASA to reflect any new standard flight price date for a payload only after NASA’s applicable at the time of the postponed receipt, review and acceptance of a cus- launch, if such new price is higher than tomer-submitted NASA Form 1628 re- the originally contracted price. questing flight assignment and NASA’s (d) The payment schedule for post- receipt of the customer’s earnest poned flights will be as defined in money. § 1214.103(h)(2). (2) NASA’s confirmation of a par- (e) Customers postponing the flight ticular launch date will be at the time of a payload may also be subject to new a launch services agreement is signed, or additional charges for optional serv- normally not later than 36 months ices. prior to the desired launch date. (b) NASA changes to launch date. § 1214.108 Termination. NASA will attempt to maintain the (a) Customers terminating the customer’s launch date as long as the launch of a payload will pay a termi- customer’s obligations, as established nation fee for standard services to by NASA, are met. However, NASA NASA. may revise the launch date under those (1) The termination fee for dedicated circumstances contained in the launch flights will be computed as a percent- agreement. If practical, NASA launch age of the Shuttle standard flight price date changes will be in consultation and will be based on the table below. with the customer; however, NASA re- serves the unilateral right to make de- Termination fee, cisions with regard to launch sched- Months before scheduled launch date percent of Shuttle when termination occurs standard flight price ules. (c) Payload delivery. NASA, in con- 18 or more ...... 10 sultation with the customer, will es- 17 or more but less than 18 ...... 11 tablish a date for payload delivery to 16 or more but less than 17 ...... 12 15 or more but less than 16 ...... 13 the launch site. 14 or more but less than 15 ...... 15 (d) Reflight scheduling. NASA will at- 13 or more but less than 14 ...... 16 tempt to schedule a payload reflight at 12 or more but less than 13 ...... 17 the earliest opportunity, but normally 11 or more but less than 12 ...... 18 10 or more but less than 11 ...... 19 no earlier than 14 months after a deter- 9 or more but less than 10 ...... 20 mination is made that a customer is 8 or more but less than 9 ...... 22 entitled to, and in fact requests a re- 7 or more but less than 8 ...... 23 flight. 6 or more but less than 7 ...... 24 Less than 6 ...... 25 § 1214.110 Reflight. (2) The termination fee for shared (a) NASA will provide a reflight of a flights will be the sum of all payments customer’s payload under conditions previously paid or due for the standard defined in the launch agreement. The flight price, as defined in standard flight price for reflights will § 1214.103(h)(2), at the time of termi- be based on NASA’s marginal cost as nation. defined in § 1214.102(f). Reflights only (b) NASA may establish, in the apply to dedicated flights and those launch agreement, certain conditions shared-flight payloads that can be ac- under which the customer may termi- commodated on a standard launch as nate a payload launch with reduced defined in § 1214.117. termination fees if NASA delays the (b) Reflights as defined in this launch of the customer’s payload for an § 1214.110 apply only to the same pay- extended period. load involved in the launch that neces- (c) Customers terminating the flight sitated the reflight, or to an essen- of a payload may also be subject to new tially identical payload with essen- or additional charges for optional serv- tially identical integration and flight ices. operations requirements.
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§ 1214.111 Rendezvous services. of liability among the customer, other (a) A rendezvous mission involves the customers, related entities and NASA rendezvous of the Space Shuttle orbiter for all activities under the launch with an orbiting spacecraft for one or agreement. The customer will also be more of the following purposes: required to purchase third-party liabil- (1) Retrieval and return to Earth of ity insurance covering launch and on- the orbiting spacecraft (or part there- orbit operations in an amount deemed of), including a spacecraft deployed appropriate by NASA. earlier on the same Space Shuttle § 1214.114 Provision of services. flight. (2) Exchange of a spacecraft (or part NASA will provide, solely at its dis- thereof) delivered to orbit on a par- cretion, services to the extent con- ticular Space Shuttle mission for an al- sistent with U.S. obligations, law, pol- ready orbiting spacecraft (or part icy and capability. thereof) and return of already orbiting spacecraft to Earth. § 1214.115 Standard services. (3) Revisit of an orbiting spacecraft Standard services for the Space Shut- for purposes such as resupply, repair, tle are generically defined in NASA reboost or inspection. document NSTS 07700, Volume XIV. (b) Mission operational requirements The standard services to be provided and associated optional service charges for a specific payload will be agreed to and conditions for both dedicated and between NASA and the customer in the shared flight rendezvous services will launch agreement and associated pay- be negotiated on a case-by-case basis. load integration documentation. Typ- ical standard services include the fol- § 1214.112 Patent, data and informa- tion matters. lowing for each customer. (a) A standard launch that meets the (a) Patent and data rights. NASA will criteria established in § 1214.117. not acquire rights to inventions, pat- (b) Transportation of the customer’s ents or proprietary data which may be payload in the orbiter cargo bay in a used in, or arise from, activities for location selected by NASA. which a customer has reimbursed (c) One day of single-shift, on-orbit NASA under the policies set forth here- mission operations. in. However, in certain instances in which the NASA Administrator has de- (d) A five-person flight crew: com- termined that activities may have a mander, pilot and three mission spe- significant impact on the public cialists. health, safety or welfare, NASA may (e) Orbiter flight planning services. obtain assurances from the customer (f) One day of transmission of pay- that the results will be made available load data to compatible receiving sta- to the public on terms and conditions tions via an Independent Payload Data reasonable under the circumstances. Stream. (Subject to availability, NASA (b) Information. All customers will be may make excess orbiter instrumenta- required to furnish NASA with suffi- tion downlink capability available to cient information to ensure Shuttle payloads at no additional charge.) safety and NASA’s and the U.S. Gov- (g) Deployment of a free flyer, pro- ernment’s continued compliance with vided the payload meets all the condi- law, published policy and the U.S. Gov- tions stated in § 1214.118. ernment’s obligations. (h) NASA support of selected payload design reviews. § 1214.113 Allocation of risk. (i) Prelaunch payload installation, The U.S. Government will assume no verification and orbiter compatibility risk for damages to the customer re- testing. sulting from certain activities con- (j) NASA payload safety reviews. ducted under the launch agreement or to third parties resulting from launch § 1214.116 Typical optional services. related activities or on-orbit oper- Typical optional services that may ations. The customer will be required be provided by NASA include the fol- to agree to be bound by a cross-waiver lowing, and will be further defined and
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limited in payload integration docu- § 1214.118 Special criteria for mentation agreed upon by NASA and deployable payloads. the customer. To qualify for the standard flight (a) Use of Extended Duration Orbiter price, deployable payloads must meet (EDO) capability or other mission kits certain criteria in terms of time of day to extend basic orbiter capability. of launch, and other factors. These cri- (b) Extravehicular activity (EVA) teria will be specified in the launch services. agreement and associated payload inte- (c) Transportation to orbit of all or a gration documentation. part of the customer’s payload in other § 1214.119 Spacelab payloads. than the orbiter cargo bay. (d) Unique payload/orbiter integra- (a) Special provisions. This § 1214.119 tion and test. establishes the special provisions for Spacelab services provided to Space (e) Payload mission planning serv- Shuttle customers. Where designated, ices, other than for launch, deployment provisions of this § 1214.119 supersede and entry phases. those of other portions of this docu- (f) Additional time on orbit. ment. The following five types of (g) Payload data processing. Spacelab flights are available to ac- (h) Flight of payload specialists. commodate payload requirements: (i) Transmission of payload data via (1) Dedicated-Shuttle Spacelab flight an Independent Payload Data Stream (Ref. § 1214.119(d)(3)). during additional time on orbit. (2) Dedicated-pallet flight (Ref. (j) Transmission of payload data via § 1214.119(d)(4)). a Direct Data Stream. (3) Dedicated-FMDM/MPESS (flexible multiplexer-demultiplexer/multipur- § 1214.117 Launch and orbit param- pose experiment support structure) eters for a standard launch. flight (Ref. § 1214.119(d)(4)). (4) Complete-pallet flight (Ref. To qualify for the standard flight § 1214.119(d)(5)). price, all payloads must meet the fol- (5) Shared-element flight (Ref. lowing launch criteria: § 1214.119(d)(6)). (a) For dedicated flights: (b) Definitions—(1) Spacelab elements. (1) Launch from Kennedy Space Cen- Pallets (3-meter segments), pressurized ter (KSC) into the customer’s choice of modules (long or short), and the two standard mission orbits: 160 NM FMDM/MPESS (1-meter cross-bay circular orbit, 28.5° inclination (nomi- structure), all as maintained in the nal), or 160 NM circular orbit, 57° incli- NASA-approved Spacelab configura- nation (nominal). tion. (2) Launch on a date selected by (2) Spacelab standard flight price. The NASA within the scheduling con- price for standard services provided to straints specified in the launch agree- Spacelab customers. If a customer ment. elects not to use a portion of the stand- (3) Launch at a time, selected by ard services, the Spacelab standard NASA, from a launch window of not flight price will not be affected. The less than 1 hour (a more restrictive Spacelab standard flight price is a pro launch window may be provided as an rata share of: optional service). (i) The dedicated flight price as de- fined in § 1214.102(c); (b) For shared flights from KSC to (ii) The standard price for use of the the standard mission orbit of 160 NM ° selected Spacelab elements; and circular orbit, 28.5 inclination (nomi- (iii) For complete-pallet and shared- nal): element flights: (1) Launch on a date selected by (A) The price for 6 extra days on NASA within the scheduling con- orbit; and straints specified in the launch agree- (B) The price for 7 days of second- ment. shift operation. (2) Launch at any time of day, se- (c) Mandatory use of dedicated-Shuttle lected by NASA. Spacelab flight. (1) The customer will be
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required to fly under the provisions of (iii) Customers contracting for a § 1214.119(d)(3), if the customer requires dedicated-Shuttle Spacelab flight will exclusive use of any of the following: reimburse NASA for standard services (i) Pressurized module (long or an amount that is the sum of: short). (A) The dedicated flight price as de- (ii) Three pallets in the ‘‘1+1+1’’ con- fined in § 1214.102(c); and figuration. (B) The price for the use of all Space- (iii) Four pallets in the ‘‘2+2’’ con- lab elements used (including all nec- figuration. essary mission-independent Spacelab (2) In the cases cited in paragraph equipment). (1)(i) of this section, if the customer re- (4) Dedicated 3-meter pallets and dedi- quests, NASA will attempt to find com- cated FMDM/MPESS. (i) A dedicated patible sharees to fly with the cus- pallet (or a dedicated FMDM/MPESS) tomer’s payload. If NASA is successful, is one that is flown for a single cus- the customer’s Shuttle standard flight tomer and includes all Spacelab hard- price will be the greater of: ware necessary to permit it to be flown (i) The dedicated flight price less re- on any shared flight as an autonomous imbursements from sharees actually payload (e.g., a dedicated 3-meter pal- flown; or let may either be supplied with its own exclusive igloo or be flown without an (ii) The computed Shuttle shared- igloo, if it requires only standard Shut- flight price for the customer’s Spacelab tle services). payload. (ii) In addition to a pro rata share of (d) Reimbursement for standard serv- the standard services listed in ices. (1) Customers will reimburse § 1214.119(j), the following standard NASA an amount equal to the Spacelab services are provided to customers of standard flight price computed accord- dedicated pallets (or dedicated FMDM/ ing to the following provisions: MPESS) and form the basis for estab- (2) Earnest money. For those cus- lishing the Spacelab standard flight tomers required to pay earnest money price: in accordance with § 1214.103(h)(1), the (A) A pro rata share of the standard total earnest money payment per pay- services listed in § 1214.115, where the load for Spacelab payloads (including basis for proration is the customer’s Shuttle services) will be either $150,000 Shuttle load factor as defined in or 10 percent of the customer’s esti- § 1214.119(l)(4)(i) for dedicated pallets mated Spacelab standard flight price, and in § 1214.119(l)(5)(ii) for a dedicated whichever is less. FMDM/MPESS. (3) Dedicated-Shuttle Spacelab flight. (B) The exclusive services of the pal- (i) A dedicated-Shuttle Spacelab flight let (or FMDM/MPESS) and all Spacelab is a Shuttle flight flown for a single hardware provided to support the pal- customer who is entitled to select the let (or FMDM/MPESS). Spacelab elements used on the flight. (C) One day of one-shift on-orbit op- (ii) In addition to the standard serv- erations. ices listed in § 1214.119(j), the following (D) Launch on a shared standard standard services are provided to cus- Shuttle flight as defined in § 1214.117. tomers of dedicated-Shuttle Spacelab (E) A pro rata share of the on-orbit flights and form the basis for the payload operations time of two NASA- Spacelab standard flight price: furnished mission specialists, where (A) Use of the full standard services the basis of proration will be the cus- of the Shuttle and the Spacelab ele- tomer’s Shuttle load factor. ments selected. (iii) Customers contracting for a (B) One day of one-shift on-orbit op- dedicated-pallet (or FMDM/MPESS) erations. flight will reimburse NASA for stand- (C) Standard mission destinations ard services an amount that is the sum consistent with launch criteria as de- of: fined in § 1214.117. (A) The product of the customer’s (D) The available payload operations Shuttle charge factor and the dedi- time of two NASA-furnished mission cated flight price as defined in specialists. § 1214.102(c); and
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(B) The price for the use of the pallet mission-independent Spacelab equip- (or FMDM/MPESS) selected (including ment. all necessary mission-independent (6) Shared element. (i) A shared ele- Spacelab equipment). ment is a Spacelab pallet, FMDM/ (5) Complete pallet. (i) A complete MPESS, or module that: Spacelab pallet is one that is flown for (A) May be shared by two or more a single customer, but flies with other customers on a NASA-designated Spacelab elements on a NASA or Spacelab flight; and NASA-designated Spacelab flight and (B) Shares common standard services shares the common standard Spacelab with other Spacelab elements on the services (e.g., shares an igloo with same flight. other pallets). (ii) In addition to a pro rata share of (ii) In addition to a pro rata share of the standard services listed in the standard services listed in § 1214.119(j), the following standard § 1214.119(j), the following standard services are provided to customers of services are provided to customers of shared elements and form the basis for complete pallets and form the basis for the Spacelab standard flight price: the Spacelab standard flight price: (A) For shared pallets, a pro rata (A) The pallet’s pro rata share of share of the standard services provided standard services listed in § 1214.115, by a pallet. The basis of proration will where the basis of proration will be the be the customer’s Spacelab load frac- customer’s Shuttle load factor as de- tion as defined in § 1214.119(l)(7)(i)(A). fined in § 1214.119(l)(6)(i). (B) For shared modules, a pro rata (B) A pro rata share of 7 days of two- share of the standard services provided shift on-orbit operations, where the by a long module flown on a dedicated- basis of proration will be the cus- Shuttle Spacelab flight. The basis of tomer’s Shuttle load factor. proration will be the customer’s Space- (C) Mission destination selected by lab load fraction as defined in NASA in consultation with the cus- § 1214.119(l)(7)(i)(B). The type of pressur- tomer. ized module actually used to meet a (D) Assignment, with the customer’s customer’s requirement for a shared concurrence, to a Spacelab flight des- module will be determined by NASA ignated by NASA. subsequent to launch agreement nego- tiations. (E) Launch date established by (C) A pro rata share of the element’s NASA. share of standard services listed in (F) A pro rata share of the on-orbit § 1214.115, where the basis for proration payload operations time of two NASA- will be the customer’s Spacelab load furnished mission specialists and two fraction. payload specialists, where the basis of (D) A pro rata share of 7 days of two- proration will be the customer’s Shut- shift on-orbit operations, where the tle load factor. basis of proration will be the cus- (G) Use of the entire volume above a tomer’s Shuttle load factor as defined pallet. in § 1214.119(l)(7)(i). (iii) Customers contracting for com- (E) Mission destination selected by plete-pallet flights will reimburse NASA in consultation with the cus- NASA for standard services an amount tomer. which is the sum of: (F) Assignment, with the customer’s (A) The product of the customer’s concurrence, to a Spacelab flight des- Shuttle charge factor and the sum of: ignated by NASA. (1) The dedicated flight price as de- (G) Launch date established by fined in § 1214.102(c). NASA. (2) The charge for 6 extra days of one- (H) A pro rata share of the on-orbit shift on-orbit operations. operations time of two NASA-furnished (3) The standard price for additional mission specialists, where the basis of services required to support a second proration will be the customer’s Shut- shift of on-orbit operations for 7 days. tle load factor. (B) The price for the use of a com- (iii) Customers contracting for plete pallet, including all necessary shared-element flights will reimburse
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NASA for Standard services an amount Fee for use of that is the sum of: Spacelab ele- ment(s), percent (A) The product of the customer’s Months before scheduled launch date of price for use Shuttle charge factor and the sum of: when postponement or termination occurs of element(s) (1) The dedicated flight price as de- Post- Termi- fined in § 1214.102(c); pone- nation (2) The charge for 6 extra days of one- ment shift on-orbit operations; and 12 ...... 14 20 (3) The standard price for additional 3 ...... 60 85 services required to support a second 0 ...... 75 100 shift of on-orbit operations for 7 days. Complete Pallets and Shared Elements (B) The product of the customer’s element charge factor and the price for 18 or more ...... 5 10 12 ...... 18 80 the use of the Spacelab element being 9 ...... 32 95 used, including all necessary mission- 8 or less ...... 95 100 independent Spacelab equipment. (e) Minor delays. The minor delay pro- (5) At the time of signing of the visions of § 1214.106 will apply only to launch agreement, NASA will define a those Spacelab payloads whose Shuttle payload removal cutoff date (relative load factor is equal to or greater than to the launch date) for each Spacelab 0.05. payload to be flown on a shared flight. (f) Postponement and termination. (1) A A customer may still postpone or ter- customer may postpone the flight of a minate a flight after the payload’s cut- Spacelab payload one time with no ad- off date; however, NASA will not be re- ditional charge if postponement occurs quired to remove the payload before more than 18 months before the sched- flight. uled launch date. (6) Customers postponing or termi- (2) Postponement or termination fees nating the flight of a payload may also for Spacelab payloads will consist of be subject to new or additional charges the sum of: for optional services associated with (i) A fee for postponement or termi- Shuttle or Spacelab support provided nation of the Shuttle launch. by NASA. (ii) A fee for use of the Spacelab ele- (g) Spacelab reflight. (1) For Spacelab ments. payloads, the provisions of § 1214.110 (3) For Shuttle launch postponement apply. and termination fee customers will be [Reserved] governed by the provisions of § 1214.107 (h) Premature termination of Spacelab or § 1214.108, as appropriate. flights. If a dedicated-Shuttle Spacelab (4) The postponement and termi- flight, a dedicated-pallet flight or dedi- nation fees for use of the Spacelab ele- cated-FMDM/MPESS flight is pre- ments are computed as a percentage of maturely terminated, NASA will re- the customer’s price for use of the fund the optional services charges for Spacelab elements and will be based on planned, but unused, extra days on the table below. When postponement or orbit. If a complete-pallet or shared- termination occurs less than 18 months element flight is prematurely termi- before launch, the fees will be com- nated, NASA will refund a pro rata puted by linear interpolation using the share of the charges for planned, but points provided. unused, extra days on orbit to cus- Fee for use of tomers whose payload operations are, Spacelab ele- in NASA’s judgment, adversely af- ment(s), percent fected by such premature termination. Months before scheduled launch date of price for use when postponement or termination occurs of element(s) The basis for proration will be the cus- tomer’s Shuttle load factor. Post- Termi- pone- nation (i) Integration of payloads. (1) The cus- ment tomer will bear the cost of the fol- Dedicated Flights, Dedicated Elements, and Dedicated lowing typical Spacelab-payload mis- FMDM/MPESS sion management functions: . (i) Performing analytical design of 18 or more ...... 5 10 the mission.
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(ii) Generating mission requirements livery of the payload to NASA will ne- and their documentation in the Pay- gotiate such operation as an optional load Integration Plan (PIP). service. (iii) Providing mission-unique train- (j) Common standard services for Space- ing and payload specialists (if appro- lab payloads. The following standard priate). services are common to all Spacelab (iv) Physically integrating experi- flights: ments into racks and/or onto pallets. (1) Use of Shuttle 1 and Spacelab (v) Providing payload-unique soft- hardware. ware for use during ground processing, (2) Spacelab interface analysis. on orbit or in POCC operations. (3) A five-person NASA flight crew (vi) Providing operation support. consisting of commander, pilot and (vii) Ensuring the mission is safe. three mission specialists. (2) All physical integration (and de- (4) Accommodations for a five-person integration) of payloads into racks and/ flight crew. or onto pallets will normally be per- (5) Prelaunch integration and inter- formed at KSC by NASA. When the face verification of preassembled racks customer provides Spacelab elements, and pallets (Levels III, II and I for these physical integration activities NASA-furnished Spacelab hardware; may be done by the customer at a loca- Level I only for customer-furnished tion chosen by the customer. Spacelab hardware). (3) Except for the restrictions noted (6) Shuttle 1 and Spacelab flight plan- in paragraph (i)(2) of this section, and ning. the implementation of paragraph (7) Payload electrical power. (i)(1)(vii), customers contracting for (8) Payload environmental control. dedicated-Shuttle and dedicated-pallet (9) On-board data acquisition and flights may perform the Spacelab-pay- processing services. load mission management functions (10) One day of transmission of pay- defined in paragraph (i)(1) of this sec- load data to compatible receiving sta- tion. NASA will assist customers in the tions via an Independent Payload Data performance of these functions, if re- Stream. (Subject to availability NASA quested. Charges for this service will be may make excess orbiter instrumenta- based on estimated actual costs, or ac- tion downlink capability available to tual costs where appropriate, and will payloads at no additional charge.) 1 be in addition to the price for standard (11) Use of NASA-furnished standard services. payload monitoring and control facili- (4) For complete pallets or shared ties. elements, NASA will normally perform (12) Voice communications between the Spacelab-payload mission manage- on-orbit flight personnel operating the ment functions listed in paragraph customer’s payload and a NASA-des- (i)(1) of this section. Charges for this ignated payload monitoring and con- service will be based on estimated ac- trol facility. tual costs, or actual costs where appro- (13) NASA payload safety review.1 priate, and will be in addition to the (14) NASA support of payload design price for standard services. reviews.1 (5) Integration of payload entities (k) Typical optional services for Space- mentioned in paragraphs (i)(2) through lab payloads. The following are typical (i)(4) of this section with NASA-fur- optional Spacelab services. nished Spacelab support systems and (1) Use of special payload support with the Shuttle will be performed by equipment, e.g., instrument pointing NASA as a standard service for all pay- system. loads flown on customer-furnished (2) Nonstandard mission destination. Spacelab elements. Customers will be (3) Additional time on orbit. available to participate as required by (4) Mission-independent training, use NASA in these levels of integration. of, and accommodations for all flight Customer equipment will be operated personnel in excess of five. only to the extent necessary for inter- face verification. Customers requiring 1 Typical standard Shuttle services re- additional payload operation after de- peated for clarity.
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(5) Mission-dependent training of all tomer’s individual (dedicated, complete NASA-furnished personnel and or shared) elements, with the limita- backups. tion that the customer’s Shuttle (6) Analytical and/or hands-on inte- charge factor will not exceed 1.0. gration (and de-integration) of the cus- (iv) Customers contracting for pallet- tomer’s payload into racks and/or onto only payloads are entitled to locate pallets. minimal controls as agreed to by (7) Unique integration or testing re- NASA in a pressurized area to be des- quirements. ignated by NASA. There is no addi- (8) Additional resources beyond the tional charge for this service. customer’s pro rata share. (v) NASA will, at its discretion, ad- (9) Additional experiment time or just, up or down, the load factors and crew time beyond the customer’s pro load fractions calculated according to rata share. the procedures defined in this section. (10) Special access to and/or oper- Adjustments will be made for special ation of payloads. space or weight requirements, which (11) Customer-unique requirements include, but not limited to: for: software development for the Com- (A) Sight clearances, orientation or mand and Data Management Sub- placement limits. system (CDMS) onboard computer, con- figuration of the Payload Operations (B) Clearances for movable payloads. Control Center (POCC) and/or CDMS (C) Unusual access clearance require- used during KSC ground processing. ments. (12) Extravehicular Activity (EVA) (D) Clearances extending beyond the services. bounds of the normal element enve- (13) Payload flight planning services. lope. (14) Transmission of Spacelab data (E) Extraordinary shapes. contained in the Shuttle OI telemetry The adjusted values will be used as the link to a location other than a NASA- basis for computing charge factors and designated monitoring and control fa- prorating services. cility. (2) Definitions used in computations. (i) (15) Transmission of payload data via L =Chargeable payload length, m. The an Independent Payload Data Stream c total length in the cargo bay occupied during additional time on orbit. by the customer’s experiment and the (16) Transmission of payload data via Spacelab element(s) used to carry it. a Direct Data Stream. (17) Level III/II integration of cus- (ii) Wc=The weight, kg, of the cus- tomer-furnished Spacelab hardware. tomer’s payload and the customer’s pro (l) Computation of sharing and pricing rata share of the weight of NASA mis- parameters—(1) General. (i) Computa- sion-peculiar equipment carried to tional procedures as contained in the meet the customer’s needs. following subparagraphs will be applied (3) Dedicated-Shuttle Spacelab flight (1- as indicated. The procedure for com- day mission). The total reimbursement puting Shuttle load factor, charge fac- is as defined in § 1214.119(d)(3)(iii). tor and flight price for Spacelab pay- (4) Dedicated-pallet flight (1-day mis- loads replaces the procedure contained sion). (i) The Shuttle load factors, in § 1214.103. charge factors and nominal payload ca- (ii) Shuttle charge factors as derived pacities for dedicated-pallet flights are herein apply to payloads meeting the shown in the table below. Subject to launch and orbit criteria established in other Shuttle Spacelab structural lim- § 1214.117. Customers will reimburse its, customers are entitled to use the NASA an optional services fee for payload weight capability of the pal- flights to nonstandard destinations. lets as indicated in the table. Payload (iii) The customer’s total Shuttle weights in excess of those shown are charge factor will be the sum of the subject to NASA approval and may en- Shuttle charge factors for the cus- tail optional services charges.
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Load Factor Charge Factor Nominal Payload Capac- ity, kg No. of Pallets With Igloo FMDM Con- With Igloo FMDM Con- FMDM Con- figuration figuration With Igloo figuration
1 ...... 0.228 0.189 0.305 0.252 2,325 2,950 2 ...... 0.392 NA 0.523 NA 4,470 NA 3-pallet train* ...... 0.556 NA 0.742 NA 4,435 NA 2+1 config...... 0.594 NA 0.792 NA 7,750 NA *Three pallets requiring the ‘‘1+1+1’’ configuration will be flown on a dedicated-flight basis [See § 1214.119(c)(1)].
(ii) Total reimbursement. The cus- ject to NASA approval and may entail tomer’s total reimbursement is as de- optional service charges. fined in § 1214.119(d)(4)(iii). (ii) Total reimbursement. The cus- (5) Dedicated FMDM/MPESS flight (1- tomer’s total reimbursement is as de- day mission)—(i) Shuttle charge factor. fined in § 1214.119(d)(5)(iii). The Shuttle charge factor for dedicated (7) Shared elements (7-day mission). FMDM/MPESS flights is defined as: (i) Spacelab load fractions and Shuttle load factors. Shuttle Load Factor (A) Pallet. Spacelab load fraction is 075. the greater of: (ii) Shuttle load factor. (A) The Shut- W tle load factor is defined as the max- c imum of: 2, 583 kg or Lc 18. 29 m Payload volume, m3 3 or 15 m + Shuttle load factor is the greater of: Wc 767 21, 542 kg Payload volume, m3 (B) The minimum value of Lc is based 3 on the element length, plus clearances, 76 m and is 1.18 m. or (iii) Total reimbursement. The cus- tomer’s total reimbursement is as de- Wc fined in § 1214.119(d)(4)(iii). (6) Complete pallets (7-day mission). (i) 4, 319 kg The Shuttle load factor and charge fac- (B) Pressurized module. Spacelab load tor for a complete pallet are 0.198 and fraction and Shuttle load factor are 0.228, respectively, and its payload identical and are the greater of: weight capability is 2,583 kg. Subject to other Shuttle or Spacelab structural Wc limits, customers are entitled to use 13, 045 kg this payload weight capability. Pay- load weight in excess of 2,583 kg is sub- or
2 × ()Experiment volume+ Storage volume, m3 40 m3
(ii) Shuttle charge factors and element Shuttle charge factors and element charge factors for pressurized modules.
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charge factors are identical and are de- (vii) Pressurized module storage volume. fined as follows: Storage volume in the pressurized mod- ule is defined as the volume of one or The element charge fac- If the Spacelab load fraction (and tor and Shuttle charge more rectangular parallelepipeds en- Shuttle load factor) is: factor will be: closing the customer’s stowed payload. No edge of the parallelepiped(s) will be Less than 0.00435 ...... 0.005 0.00435 to 0.87 ...... Spacelab load fraction less than 30 centimeters in length. divided by 0.87 (viii) Pallet payload volume. Volume Greater than 0.87 ...... 1.0 of the customer’s pallet-mounted pay- load is defined as the volume of a rec- (iii) Element charge factors for shared tangular parallelepiped enclosing the pallets. pallet payload and customer-dictated mounting hardware. No edge of the The element charge fac- If the Spacelab load fraction is: tor will be: parallelepiped will be less than 30 cen- timeters in length. Less than 0.0189 ...... 0.0218 0.0189 to 0.87 ...... Spacelab load fraction divided by 0.87 Subpart 1214.2—Reimbursement Greater than 0.87 ...... 1.0 for Shuttle Services Provided (iv) Shuttle charge factors for shared to Civil U.S. Government Users pallets. and Foreign Users Who Have Made Substantial Investment The Shuttle charge fac- If the Shuttle load factor is: tor will be: in the STS Program
Less than 0.00375 ...... 0.005 SOURCE: 42 FR 8631, Feb. 11, 1977, unless 0.00375 to 0.75 ...... Shuttle load factor divided by 0.75 otherwise noted. Greater than 0.75 ...... 1.0 § 1214.200 Scope. (v) Total reimbursement. This subpart 1214.2 sets forth: (A) The customer’s total reimburse- (a) The policy on reimbursement for ment is as defined in § 1214.119(d)(6)(iii). Shuttle services which are provided by (B) If a customer contracts for por- NASA to users (as defined in § 1214.201) tions of more than one element, the under launch services agreements, and charges for the use of the elements will (b) Responsibilities for putting such apply individually to each element policy into effect and carrying it out. used. (vi) Pressurized module experiment vol- § 1214.201 Definition. ume. Experiment volume in the pres- For the purpose of this subpart, the surized module is defined to be the sum term users means: of the customer’s payload volume in (a) For all civil U.S. Government racks and in the center aisle. agencies who request Shuttle services (A) Rack volume is defined relative from NASA, and to basic Air Transportation Rack (b) Foreign users who have made sub- (ATR) configurations. The customer’s stantial investment in the STS pro- rack volume will be defined as the vol- gram, i.e., European Space Agency ume of one or more rectangular (ESA), ESA member or observer na- parallelepipeds (rectangular-sided tions participating in Spacelab devel- boxes) which totally enclose the cuss opment, and Canada, when conducting payload. Width dimensions will be ei- experimental science or experimental ther 45.1 or 94.0 centimeters. Height di- applications missions with no near- mensions will be integral multiples of term commercial implications. 4.45 centimeters. Depth dimensions will be 61.2 or 40.2 centimeters. § 1214.202 Reimbursement policy. (B) Center aisle space volume is de- (a) Features of policy. (1) All users will fined as the volume of a rectangular be charged on a fixed price basis; there parallelepiped which totally encloses will be no post-flight charges, except the customer’s payload. No edge of the for prespecified optional services. parallelepiped will be less than 30 cen- (2) The price will be based on esti- timeters in length. mated costs.
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(3) The price will be held constant for of the optional services is set forth in flights in the first three years of Space appendix C to subpart 1214.1. Transportation System (STS) oper- (vii) For the user with an experi- ations. mental, new use of space or first time (4) Payments shall be escalated ac- use of space of great public value, the cording to the Bureau of Labor Statis- reimbursement to NASA for the dedi- tics Index for Compensation per hour, cated, standard Shuttle flight in either Total Private. the first or second phase shall be a pro- (5) Subsequent to the first three rata share of the average twelve year years, the price will be adjusted annu- additive costs as estimated at the time ally to insure that total operating of negotiations. Programs which qual- costs are recovered over a twelve-year ify for this price will be determined by period. an STS Exceptional Program Selection (6) Pricing incentives are designed to Process. In all cases, the Administrator maximize the proper utilization of the will be the selection official. STS. (viii) For dedicated flight users, (b) Dedicated flight reimbursements. (1) NASA and the user will identify a de- For the purposes of this policy, a dedi- sired launch date within a period of cated flight is one sold to a single user. ninety days three years prior to flight. (2) The policy is established for two One year prior to the flight, a firm distinct phases of Shuttle operations. launch and payload delivery date will The first phase is through the third full be identified by NASA. The firm launch fiscal year of Shuttle operations and date will be within the first sixty days the second phase consists of nine full of the original ninety day period. fiscal years subsequent to the first Launch will occur on the firmly sched- phase. uled launch date or within a period of (i) For a dedicated Shuttle flight dur- thirty days thereafter. The payload ing the first phase, NASA shall be re- must be ready to launch for the dura- imbursed in an amount which is a pro- tion of that period. rata share of forecast additive costs (c) Shared flight reimbursements. (1) averaged over the first phase of three The price of a shared Shuttle flight years; however, the price shall not be will be a fraction of the dedicated less than a pro-rata share of forecast Shuttle flight price. The fraction will total operating costs averaged over be based on the length and weight of both the first and second phases of the the payload and the mission destina- twelve year Shuttle operation period. tion at the time of contract negotia- (ii) For a dedicated Shuttle flight tions. The formula for computing the during the second phase, NASA shall be fraction is set forth in appendix D to reimbursed a pro-rata share of forecast subpart 1214.1. total operating costs over both phases (2) For shared flight users, NASA and to insure that total operating costs are the user will identify a desired launch recovered over the twelve year period. date three years prior to flight. Launch (iii) The definition of the costs are will occur within a period of ninety specified in this subpart are set forth days, beginning on the desired launch in appendix A to this subpart. date. One year prior to flight, a pay- (iv) Subject to NASA approval, a load delivery date and a firm launch dedicated flight user may apportion date will be coordinated among the and assign STS services to other STS shared flight users. This firm launch users provided they satisfy STS user date will be within the first thirty days requirements. The price of integrating of the original ninety day period. The additional payloads will be negotiated. launch will occur on the firmly sched- (v) A summary of standard Shuttle uled launch date or within a perod of services included in the flight price is sixty days thereafter. The payloads set forth in appendix B to subpart must be ready to launch for the dura- 1214.1. tion of that period. (vi) The prices of optional Shuttle (3) A 20 percent discount on the services are being developed and shall standard flight price will be given to be set forth in the Shuttle Price Book shared flight users who will fly on a which is being developed. A summary space-available (standby) basis. NASA
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will provide launch services within a (2) Options must be exercised for a prenegotiated period of one year. flight by the end of the second phase of Shared flight payloads must be flight operations or the option fee will be re- deliverable to the launch site on the tained by NASA. first day of the one year period and (f) Fixed price period and escalation. (1) sustain that condition until delivery to The price will remain constant for the launch site. The user will be noti- flights during the first phase of Shuttle fied sixty days prior to the firmly operations. For flights during the sec- scheduled launch date which has been ond phase, the price wil be adjusted on established by NASA. At that time, a yearly basis, if necessary, to assure NASA will also establish a payload de- revovery of total operating costs over a livery date. The payload must be avail- twelve-year period. These adjusted able at the launch site on the assigned prices will be applicable only to agree- delivery date and ready to launch for a ments executed after the adjustment is period of sixty days after the firmly made. scheduled launch date. (2) Shuttle services for both phases (d) Small self-contained payloads. will be contracted on a fixed price Packages under 200 pounds and smaller basis. The payments in the contract than five cubic feet which require no will be escalated to the time of the Shuttle services (power, deployment, payment using the Bureau of Labor etc.), and are for R&D purposes, will be Statistics Index for Compensation per flown on a space-available basis during hour, Total Private. both phases of Shuttle operation. The (g) Earnest money. Earnest money price for this service will be negotiated shall be paid to NASA prior to NASA’s based on size and weight, but will not accepting a launch reservation. The exceed $10,000 in 1975 dollars. A min- earnest money required shall be imum charge of $3,000 in 1975 dollars $100,000 per payload; however, if the will be made. If Shuttle services are re- payload is a small self-contained pay- quired, the price will be individually load, the earnest money shall be $500.00 negotiated. Reimbursement to NASA will be made at the time the package is per payload. The earnest money shall scheduled for flight. be applied to the first payment for each (e) Options. (1) In order to allow the payload made by the customer, or shall user greater flexibility in selecting a be retained by NASA if a launch serv- launch date, the user may purchase a ices agreement is not signed. ‘‘floating launch date’’ option. At the (h) Reimbursement schedule. (1) Reim- time of contract execution, the user bursement shall be made in accordance will begin to make payments according with the reimbursement schedule con- to a 33 month reimbursement schedule tained in this subsection. No charges for this launching. At any time during shall be made after the flight, except as Phase 1 or 2, the user may exercise this negotiated in the contract for option by informing NASA of his de- prespecified extra services. Those users sired launch date for this option which who contract for Shuttle services less will then be negotiated by NASA and than three years before the desired the user. This launch date must be at launch date will be accommodated and least 33 months after the date of the will pay on an accelerated basis accord- first reimbursement payment. If the ing to the reimbursement schedule. desired launch date is within one year (2) Standby payloads. (i) Before the es- of the date of declaration, the short tablishment of a firmly scheduled term call-up option and associated fee launch date, the number of months be- will apply. If the desired launch is to fore launch will be computed assuming occur in a year for which a new price a launch date at the mid-point of the per flight is in effect, the user will pay designated one-year period. the new price. The fee for this option is (ii) Once the firmly scheduled launch 10 percent of the user’s flight price in date is established, the user shall reim- effect at the time of contract execution burse NASA to make his payments cur- and is payable at that time. This fee rent according to the reimbursement will not be applied to the price of the schedule. user’s flight. (3) Rembursement schedule.
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[Percent of price] tion. The user shall reimburse NASA the standard share flight price accord- Months prior to scheduled Number of months before launch date ing to the reimbursement schedule plus launch flight is scheduled a load factor-recovery fee which is the 33 27 21 15 9 3 difference between a dedicated flight 33 months or more ...... 10 10 17 17 23 23 price and the total adjusted reimburse- 27 to 32 months ...... 21 17 17 23 23 ment from all shared flight users. 21 to 26 months ...... 40 17 23 23 15 to 20 months ...... 61 23 23 (5) Shared flights contracted three 9 to 14 months ...... 90 23 months or less before launch will be 3 to 8 months ...... flown on a space-available basis. NASA shall be reimbursed the shared flight This schedule holds unless there are price according to the reimbursement offsetting advantages to the U.S. Gov- schedule plus short term call-up addi- ernment of an accelerated launch tional costs. These additional charges schedule. will be based on estimated costs to be (4) Contracts for Shuttle services incurred. made one year or less before a flight (6) For the purposes of this para- and up to three months before a flight graph, adjusted reimbursements is de- will be made on a space-available basis fined to be reimbursements assuming unless short term call-up option is all shared users are among those de- elected. fined in § 1214.201. (i) Short term call-up option. (1) For (7) The load factor-recovery fee will flights contracted on year or less be- never be less than zero. fore launch, but not less than three (8) The load factor-recovery fee is months before launch, short term call- payable upon receipt of NASA’s billing up will be provided to dedicated flight therefor. users at the dedicated flight prices ac- (j) Accelerated launches. For users who cording to the reimbursement sched- reschedule a launch so that it occurs ule. earlier than the planned launch, the (2) For dedicated flight users requir- user will pay on an accelerated reim- ing short term call-up flights less than bursement schedule. The user will re- three months before launch, NASA will imburse NASA to make his payments provide STS launch services on a current on the new accelerated reim- space-available basis. NASA shall be bursement schedule. If the time from reimbursed the dedication flight price notification of acceleration is less than according to the reimbursement sched- one year from the new launch date, ule plus short term call-up additional short term call-up reimbursements will costs. The additional costs will be also apply. based on estimated costs to be in- (k) Postponements—(1) Non-standby curred. payloads. (i) A user can postpone a (3) For shared flights contracted one flight of his payload one time with no year or less before launch, but more additional charge if postponement oc- than six months before launch, users curs more than one year before launch. may elect the short term call-up op- For subsequent postponed flights more tion. The user shall reimburse NASA than one year before launch, the user the standard shared flight price accord- shall reimburse NASA a postonement ing to the reimbursement schedule plus fee of 5 percent of the user’s flight a load factor-recovery fee. The load price. For postponements one year or factor-recovery fee is half the dif- less before launch, the user shall reim- ference between a dedicated flight burse NASA 5 percent of the user’s price and the user’s shared flight price flight price plus an occupancy fee ac- or the difference between a dedicated cording to the occupancy fee schedule flight price and the total adjusted re- in appendix B. imbursements from all shared users, (ii) If the postponement of a flight whichever is less. causes the payload to be launched in a (4) For shared flights contracted six year for which a different price per months or less before launch, but more flight has been established, the new than three months before launch, users price shall apply if it is higher than the may elect the short term call-up op- originally contracted price.
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(2) Standby payloads. (i) For flights § 1214.203 Optional reflight guarantee. postponed more than six months prior (a) If reflight insurance is purchased to the beginning of the negotiated one- from NASA, NASA guarantees one re- year period, NASA shall renegotiate a flight of: new one-year period during which (1) The launch and development of a launch will occur. No additional fee free flying payload into a Shuttle com- will be imposed. patible mission orbit if, through no (ii) For flights postponed six months fault of the user, the first launch and or less prior to the beginning of the ne- deployment attempt is unsuccessful gotiated one-year period, the user shall and if the payload returns safely to reimburse NASA 5 percent of the user’s earth or a second payload is provided flight price plus an occupancy fee ac- by the user. cording to the occupancy fee schedule (2) The launch of an attached payload set forth in appendix B. into its mission orbit if the first launch attempt is unsuccessful through no (3) Postponement fees are payable fault of the user, and if the payload re- upon receipt of NASA’s billing there- turns safely to earth or a second pay- for. load is provided by the user. (4) Flights postponed will henceforth (3) A launch of a Shuttle into a pay- be treated as newly scheduled launches load mission orbit for the purpose of according to the reimbursement sched- retrieving a payload if the first re- ule. The number of months prior to trieval attempt is unsuccessful through launch will be taken as the total num- no fault of the user. This guarantee ber or months between the date post- only applies if the payload is in a safe ponement is elected and the new retrievable condition as determined by launch date. Short term call-up options NASA. and associated fees shall apply. (b) Reflight insurance is not applica- (5) Minor delays (up to three days) ble to payloads or upper stages placed caused by the users will not constitute into orbits other than the Shuttle mis- a postponement. No fee will be charged sion orbit. for a minor delay. § 1214.204 Patent and data rights. (l) Cancellations—(1) Non-standby pay- (a) When accommodating missions loads. Users who cancel a flight more under this subpart, i.e., experimental than one year before launch shall reim- science or experimental applications burse NASA 10 percent of the user’s missions for ESA, ESA member states flight price. For a cancelled flight one or Canada with no near-term commer- year or less before launch, the user cial implications, NASA will obtain for shall reimburse NASA 10 percent of the U.S. Governmental purposes rights to user’s flight price plus an occupancy inventions, patents and data resulting fee as set forth in appendix B. from such missions, subject to the (2) Standby payloads. (i) Users who user’s retention of the rights to first cancel a flight more than six months publication of the data for a specified prior to the beginning of the nego- period of time. tiated one-year period shall reimburse (b) The user will be required to fur- NASA 10 percent of the user’s flight nish NASA with sufficient information price. to verify peaceful purposes and to in- (ii) For a flight cancelled six months sure Shuttle safety and NASA’s and or less prior to the beginning of the ne- the U.S. Government’s continued com- gotiated one-year period, the user shall pliance with law and the Government’s reimburse NASA 10 percent of the obligations. user’s flight price plus an occupancy § 1214.205 Revisit and/or retrieval fee as set forth in appendix B. services. (3) Cancellation fees are payable These services will be priced on the upon receipt of NASA’s billing there- basis of estimated costs. If a special for. dedicated Shuttle flight is required, [42 FR 8631, Feb. 11, 1977, as amended at 49 the full dedicated price will be charged. FR 17736, Apr. 25, 1984] If the user’s retrieval requirement is
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such that it can be accomplished on a APPENDIX A TO SUBPART 1214.2—COSTS scheduled Shuttle flight, he will only FOR WHICH NASA SHALL BE REIM- pay for added mission planning, unique BURSED hardware or software, time on orbit, Total Operating Costs. Total Operating and other extra costs incurred by the Costs include all direct and indirect costs, revisit. excluding costs of composing the use charge. Such costs include direct program charges § 1214.206 Damage to payload. for manpower, expended hardware, refurbish- The price does not include a contin- ment of hardware, spares, propellants, provi- gency or premium for damage that sions, consumables and launch and recovery services. They also include a charge for pro- may be caused to a payload through gram support, center overhead and contract the fault of the U.S. Government or its administration. contractors. The U.S. Government, therefore, will assume no risk for dam- APPENDIX B TO SUBPART 1214.2— age or loss to the user’s payload. The OCCUPANCY FEE SCHEDULE users will assume that risk or obtain insurance protecting themselves For a postponed or cancelled dedicated flight, the occupancy fee will be zero. against that risk. For a postponed or cancelled shared flight, the occupancy fee will be computed accord- § 1214.207 Responsibilities. ing to the computation instructions set forth (a) Headquarters officials. (1) The below. If the computation results in an occu- NASA Comptroller, in coordination pancy fee which is less than zero, the occu- with the Associate Administrator for pancy fee will be reset to zero. For a postponed or cancelled shared flight Space Flight will: one year or less, but more than six months (i) Prescribe guidelines, procedures, before launch, the user shall reimburse and other instructions which are nec- NASA an occupancy fee of half the user’s essary for estimating costs and setting flight price less any adjusted reimburse- prices and publishing them in the ments from other users who contract for the NASA Issuance System, and same flight subsequent to the postponement or cancellation date. (ii) Review and arrange for the bill- For a postponed or cancelled shared flight ing of users. six months or less before launch, the user (2) The Associate Administrator for shall reimburse NASA an occupancy fee of Space Flight will arrange for: 90% of the user’s flight price less any ad- (i) Developing estimates for costs and justed reimbursements from other users who establishing prices in sufficient detail contract for the same flight subsequent to the postponement or cancellation date. to reveal their basis and rationale. For a given shared flight, if the occupancy (ii) Obtaining approval of the NASA fee so computed would result in total ad- Comptroller of such estimates and re- justed reimbursements (exclusive of the 5% lated information prior to the execu- (10%) postponement (cancellation) fee) in ex- tion of any agreement, and cess of the price of a dedicated flight, the oc- (iii) Reviewing of final billings to cupancy fee will be reduced in order to re- cover the price of a dedicated flight. users prior to submission to the NASA In the event that, as a result of the post- Comptroller. ponement or cancellation, the Shuttle is not (b) Field installation officials. The Di- launched at all for the intended flight, the rectors of Field Installations respon- occupancy fee will be zero. sible for the STS operations will: For purposes of this attachment, adjusted (1) Maintain and/or establish agency reimbursements is defined to be reimburse- systems which are needed to identify ments assuming all users are among those defined in § 1214.201. costs in the manner prescribed by the NASA Comptroller, (2) Compile financial records, reports, Subpart 1214.3—Payload Special- and related information, and ists for Space Transportation (3) Provide assistance to other NASA System (STS) Missions officials concerned with costs and re- lated information. SOURCE: 54 FR 48587, Nov. 24, 1989, unless otherwise noted.
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§ 1214.300 Scope. cation of STS and crew resources to (a) This revision of subpart 1214.3 re- the accomplishment of the combined defines the title of payload specialist payload objectives during the payload and sets forth NASA’s policy on and operations phase of the flight in ac- process for the determination of need, cordance with the approved flight plan. selection, and utilization of payload (f) Investigator Working Group (IWG). specialists and additional mission spe- A group composed of the Principal In- cialists to be assigned to a Space vestigators, or their representatives, Transportation System (STS) flight in whose primary purpose is facilitating addition to the standard NASA flight or coordinating the development and crew. execution of the operational plans of (b) This subpart does not apply to the an approved NASA program or report- selection of crew for the Space Station ing the progress thereof. Freedom. It is recognized that the (g) Payload sponsor. For NASA and Space Station has unique requirements NASA-related payloads the payload regarding its crew and that a separate, sponsor is the Associate Administrator specifically tailored policy will need to of the sponsoring Program Office whose be developed in the future. responsibilities are most closely re- lated to the particular scientific or en- § 1214.301 Definitions. gineering discipline associated with a (a) Payload specialists. Individuals payload. For all other payloads, the other than NASA astronauts (com- payload sponsor is identified by the As- manders, pilots, and mission special- sociate Administrator who contracts ists), whose presence is required on with the agency or organization, board the Space Shuttle to perform whether foreign or domestic, private- specialized functions with respect to sector or governmental, to fly a pay- operation of one or more payloads or load on the STS. other essential mission activities. (h) Unique requirements. The need for (b) NASA or NASA-related payload. A a highly specialized or unusual tech- specific complement of instruments, nical or professional background or the space equipment, and support hard- need for instrument operations requir- ware, developed by a NASA Program ing a highly specialized or unusual Office or by another party with which background that is not likely to be NASA has a shared interest, and car- found in the group of mission special- ried into space to accomplish a mission ists or cannot be attained in a reason- or discrete activity in space. able training period. (c) Mission. The performance of a co- herent set of investigations or oper- § 1214.302 Background. ations in space to achieve program (a) The Space Transportation System goals. A single mission might require (STS) has been developed to expand the more than one flight or more than one Nation’s capabilities to utilize the mission might be accomplished on a unique environment of space. It pro- single flight. vides opportunity for individuals other (d) Mission manager. The official re- than career astronauts to participate sponsible for the implementation of as onboard members of the flight crew the payload portion of an STS flight(s). under specified conditions. The purpose (e) Mission specialist. A career NASA of such participation by these individ- astronaut trained and skilled in the op- uals is to ensure the achievement of eration of STS systems related to pay- the payload or mission-related objec- load operations and thoroughly famil- tives. iar with the operational requirements (b) The STS will provide these addi- and objectives of the payloads with tional crew members with a habitable which the mission specialist will fly. working environment and support serv- The mission specialist, when des- ices in such a way as to require a min- ignated for a flight, will participate in imum of dedicated space flight train- the planning of the mission and will be ing, allowing them to concentrate their responsible for the coordination of efforts on the accomplishment of their overall payload/STS interaction. The scientific, technical, or mission objec- mission specialist will direct the allo- tives.
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§ 1214.303 Policy. (ii) Space flight participants, defined to refer to persons whose presence on- (a) General. (1) The Challenger acci- board the Space Shuttle is not required dent marked a major change in the for operation of payloads or for other U.S. outlook and policies with respect essential mission activities, but is de- to the flight of other than NASA astro- termined by the Administrator of nauts. NASA and interested external NASA to contribute to other approved parties, domestic and international, NASA objectives or to be in the na- must re-examine previous under- tional interest. standings, expectations, and commit- (b) Payload specialists. Payload spe- ments regarding flight opportunities in cialists may be added to Shuttle crews light of the new policies now being when more than the minimum crew enunciated. size of five is needed and unique re- (2) NASA policies and their imple- quirements are involved. In the case of mentation recognize that: foreign-sponsored missions and pay- (i) Every flight of the Shuttle in- loads, the need and requirements for volves risks; payload specialists will be negotiated (ii) Flight opportunities will now and mutually agreed between the for- generally be limited to professional eign sponsors and NASA. The selection NASA astronauts and payload special- process for additional crew members to ists essential for mission requirements; meet approved requirements will first and give consideration to qualified NASA (iii) Top priority must be given to: mission specialists. When payload spe- (A) Establishing, proving, and main- cialists are required, they will be nomi- taining the reliability and safety of the nated by the appropriate NASA, for- Shuttle system; eign, or other designated payload spon- (B) Timely and efficient reduction of sor. In the case of NASA or NASA-re- the backlog of high priority scientific lated payloads, the nominations will be and national security missions; and based on the recommendations of the maximum utilization of the Shuttle ca- appropriate Investigator Working pacity for primary and secondary pay- Group (IWG). loads that require transportation to or (c) Space flight participants. NASA re- from orbit by the Space Shuttle. mains committed to the long-term goal (3) All Shuttle flights will be planned of providing space flight opportunities with a minimum NASA crew of five as- for persons outside the professional tronauts (commander, pilot, and three categories of NASA astronauts and mission specialists). When payload or payload specialists when this contrib- other mission requirements define a utes to approved NASA objectives or is need and operational constraints per- determined to be in the national inter- mit, the crew size can be increased to a est. However, NASA is devoting its at- maximum of seven. Any such addi- tention to proving the Shuttle sys- tional crew members must be identi- tem’s capability for safe, reliable oper- fied at least 12 months before flight ation and to reducing the backlog of and be available for crew integration at high priority missions. Accordingly, 6 months. flight opportunities for space flight (4) NASA policy and terminology are participants are not available at this revised to recognize two categories of time. NASA will assess Shuttle oper- persons other than NASA astronauts, ations and mission and payload re- each of which requires separate policy quirements on an annual basis to de- treatment. They are: termine when it can begin to allocate (i) Payload specialists, redefined to and assign space flight opportunities refer to persons other than NASA as- for future space flight participants, tronauts (commanders, pilots, and mis- consistent with safety and mission con- sion specialists), whose presence is re- siderations. When NASA determines quired onboard the Space Shuttle to that a flight opportunity is available perform specialized functions with re- for a space flight participant, first pri- spect to operation of one or more pay- ority will be given to a ‘‘teacher in loads or other essential mission activi- space,’’ in fulfillment of space edu- ties. cation plans.
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§ 1214.304 Process. sultant training obligation, or if (a) Determining the need for additional backup payload specialists are re- crew members. The payload sponsor will quired, the IWG may then solicit can- be responsible for recommending the didate payload specialists from outside number of addition crew members and the career astronaut corps. The solici- for establishing the technical or sci- tation will require, as a minimum, that entific need, the selection criteria, a summary of professional qualifica- uniqueness of qualifications, the pro- tions be submitted to the IWG. In addi- posed training, and other requirements tion, a medical history, and the results for the additional crew members. The of the physical examination described payload sponsor’s requirements for ad- in paragraph (b)(3)(iii) of this section ditional crew members, their qualifica- will be required. The IWG will be re- tions, and the proposed duration for sponsible for: training will be reviewed with and con- (i) Establishing professional and curred in by the Associate Adminis- operational criteria for payload spe- trator for Space Flight. cialists for specific payloads. The cri- (b) Selection of additional crew members teria will include willingness on the for NASA and NASA-related payloads. part of the candidate to accept the ap- After the requirement for additional plicable provisions of § 1214.306 and sat- crew members has been established, isfactory completion of a background the IWG will be tasked by the payload investigation conducted to NASA’s sponsor to commence the selection process. The IWG review process will standards, as determined by the Direc- include the participation of a senior as- tor, NASA Security Office. tronaut from the Flight Crew Oper- (ii) Evaluating all candidates using ations Directorate at the Johnson the criteria established. Space Center who will provide oper- (iii) Determining which candidate ational and applicant suitability cri- payload specialists, who meet the teria. NASA Class III Space Flight Medical (1) Prior to the payload sponsor’s rec- Selection Standards, are deemed best ommendation for additional crew mem- professionally qualified. (The bers and at his/her direction, the IWG preselection phases of the medical ex- will have studied the requirements of amination will be conducted at John- the selected investigations, the num- son Space Center by certified exam- ber, qualifications, training require- iners approved by the Director, Life ments and other requirements of pay- Sciences Division, NASA Head- load specialists, and backups necessary quarters). to support the payload objectives, and (iv) Submitting its recommendations made recommendations to the payload for payload specialists through the sponsor. mission manager to the payload spon- (2) Members of the mission specialist sor who in turn will determine final cadre will be considered first. The pay- recommendations which will be re- load mission manager, on behalf of the viewed with and concurred in by the IWG, will convey the selection criteria Associate Administrator for Space for the proposed additional crew mem- bers to the Chief, Astronaut Office. The Flight. IWG, the mission manager, and the As- (4) The payload sponsor and the Asso- tronaut Office will coordinate the re- ciate Administrator for Space Flight view of the proposed candidates and will advise the Administrator of the the mission manager will forward rec- payload specialist selections. ommendations to the payload sponsor. (c) Selection of additional crew members Recommendations from the payload for foreign payloads. The need and re- sponsor will be submitted to the Asso- quirements for payload specialists will ciate Administrator for Space Flight be negotiated and mutually agreed to for approval. between the foreign sponsor and NASA. (3) If mission specialists meeting the This negotiating process will include requirements cannot be provided be- the participation of a senior astronaut cause of the uniqueness of require- from the Flight Crew Operations Direc- ments or impracticability of the re- torate at the Johnson Space Center
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who will provide operational and appli- for Space Flight for approval who will cant suitability criteria. After agree- then advise the Administrator of the ment is reached, the payload sponsor selections. will initiate the selection process. Sub- (2) If mission specialists meeting the ject to the negotiated agreement, sub- requirements cannot be provided be- sequent steps in the process will be cause of the uniqueness of qualifica- similar to those described in tions or impracticability of the result- § 1214.304(b) modified as follows: ant training obligation, the payload (1) The IWG functions will be per- sponsor selection committee, with con- formed by a selection committee or currence from the payload sponsor and other procedure designated by the pay- the Associate Administrator for Space load sponsor. Flight, may then consider other can- (2) The payload sponsor will des- didate payload specialists. The payload ignate an individual to perform the sponsor will be responsible for: mission manager functions. (i) Establishing professional and (3) The committee or procedure in operational criteria for payload spe- paragraph (c)(1) of this section and the cialists for specific payloads. The cri- person named in paragraph (c)(2) of teria will include willingness on the this section will be established during part of the candidate to accept the ap- the negotiations between the foreign plicable provisions of § 1214.306 and sat- sponsor and NASA, consistent with the isfactory completion of a background specific circumstances. investigation conducted to NASA’s (4) The payload sponsor will also be standards, as determined by the Direc- responsible for submission to NASA by tor, NASA Security Office. an appropriate authority of written as- (ii) Evaluating all candidates using surance that an inquiry has been made the criteria established. into the recommended payload special- (iii) Determining which candidate ist’s background and suitability on the payload specialists, who meet the basis of standards similar to those ap- NASA Class III Space Flight Medical plied to NASA payload specialist can- Selection Standards, are deemed best didates and a statement by the selected professionally qualified. (The candidate asserting a willingness to ac- preselection phases of the medical ex- cept the applicable provisions of amination will be conducted at the § 1214.306. These written assurances Johnson Space Center by certified ex- must be received and accepted by aminers approved by the Director, Life NASA before selection and before any Sciences Division, NASA Head- NASA training can begin. quarters). (d) Selection of additional crew members (iv) Submitting its recommendations for other payloads. After the request for for payload specialist selection to the additional crew members is approved, Associate Administrator for Space the payload sponsor will commence the Flight for approval. selection process. The payload sponsor (e) Preflight activities for additional review process will include the partici- crew members. Mission specialists serv- pation of a senior astronaut from the ing as additional crew for the payload, Flight Crew Operations Directorate at once selected, will be primarily respon- the Johnson Space Center who will pro- sible to the mission manager who, to- vide operational and applicant suit- gether with the IWG (or comparable ability criteria. body designated by the payload spon- (1) The payload sponsor will first con- sor) and the Director, Flight Crew Op- sider members of the mission specialist erations, will determine the integrated cadre. A representative of the payload training and work schedules as appro- sponsor selection committee will con- priate to the areas of responsibilities vey the selection criteria for the pro- outlined in the following paragraphs. posed payload specialists to the Chief, (1) The IWG for NASA and NASA-re- Astronaut Office, and coordinate on lated payloads or the Payload Sponsor the recommendations for mission spe- for all other payloads is responsible for cialists to satisfy the requirements. defining the training necessary for pay- The recommendations will be sub- load elements within its cognizance. mitted to the Associate Administrator The mission manager is responsible for
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the total integrated payload training which as backup. However, in cases and will assist the IWG as necessary in where mission specialists have been se- carrying out the defined training ac- lected for the payload specialist posi- tivities. tion(s), they will be considered as pri- (2) The Director, Flight Crew Oper- mary at the time of selection. The rec- ations, is responsible for establishing ommendations will be forwarded by the the training requirements for payload mission manager to the Program Office specialists on Orbiter, Spacelab, and which will review the recommenda- STS-provided payload support systems tions and forward them to the Asso- as appropriate. In order to enhance the ciate Administrator for Space Flight crew integration process, the addi- for concurrence. The payload sponsor tional crew members (payload special- and the Associate Administrator for ists and additional mission specialists) Space Flight will advise the Adminis- will be based at the Johnson Space trator of the selections. Center 6 months prior to flight, unless (g) Effective date. The described selec- otherwise agreed between the payload tion process will apply to all STS mis- sponsor and the Director, Flight Crew sions for which selections have not Operations, Johnson Space Center. been approved prior to December 31, (3) The payload specialists must be 1988. certified for flight by the Director, Flight Crew Operations, upon satisfac- § 1214.305 Payload specialist respon- tory completion of all required train- sibilities. ing and demonstrated performance of (a) Relationship with flight crew. The assigned tasks. Certification of the crew commander has overall responsi- payload specialist’s readiness for flight bility for crew integration and the safe will be made to the payload mission and successful conduct of the mission. manager and will include an assess- With respect to crew and vehicle safe- ment by the crew commander of the ty, the commander has ultimate re- payload specialist’s suitability for sponsibility and authority for all as- space flight. signed crew duties. The payload spe- (4) The mission manager is respon- sible for verifying to the payload spon- cialist is responsible to the authority sor that all crew members are properly of the commander and operates in com- trained for in-flight payload oper- pliance with mission rules and Payload ations. Operation Control Center directives. (i) The medical program for payload Payload specialists are expected to op- specialists will be continued during the erate as an integral part of the crew preflight period in accordance with the and will participate in crew activities NASA Class III Space Flight Medical as specified by the crew commander. Selection Standards. (b) Operation of payload elements. The (ii) If, during the preflight period, the payload specialist will be responsible number of additional crew members is for the operation of the assigned pay- reduced to fewer than that agreed to, load elements. Onboard decisions con- or an additional crew member does not cerning assigned payload operations meet the certification requirements, will be made by the payload specialist. the necessary reprocessing may be ini- A payload specialist may be designated tiated to provide replacements con- to resolve conflicts between the pay- sistent with the above described selec- load elements and approve such devi- tion process and the STS training re- ation from the flight plan as may arise quirements. from equipment failures or STS fac- (f) Designation of primary and backup tors. In the instance of STS factors, payload specialists (when required). At the mission specialist will present the an appropriate time designated by the available options for the payload-re- mission manager (not later than 9 lated decisions by the payload spe- months prior to flight), the IWG for cialist. NASA and NASA-related payloads or (c) Operation of STS equipment. The payload sponsor for all other payloads payload specialist will be responsible will recommend which payload special- for knowing how to operate certain ists should be designated as prime and Obiter systems, such as hatches, food,
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and hygiene systems, and for pro- by the NASA General Counsel or des- ficiency in those normal and emer- ignee. gency procedures which are required (c) Payload specialists who are em- for safe crew operations, including ployed by a branch, department, or emergency egress and bail out. The re- agency of the U.S. Government other sponsibility for on-orbit management than NASA may (pursuant to the exer- of Orbiter systems and attached pay- cise of judgment by the NASA General load support systems and for Counsel) be required to enter into an extravehicular activity and payload agreement with NASA to accept and be manipulation with the Remote Manip- governed by specified standards of con- ulator System will rest with the NASA duct. Any such agreement will be flight crew. The NASA flight crew will signed on behalf of NASA by the NASA operate Orbiter systems and standard General Counsel or designee. payload support systems, such as Spacelab and Internal Upper Stage sys- tems. With approval of the commander, Subpart 1214.4—International payload specialists may operate pay- Space Station Crew load support systems which have an ex- tensive interface with the payload. AUTHORITY: 42 U.S.C. sections 2455, 2473, and 2475; 18 U.S.C. 799. § 1214.306 Payload specialist relation- SOURCE: 65 FR 80303, Dec. 21, 2000, unless ship with sponsoring institutions. otherwise noted. Specialists who are not U.S. Govern- ment employees must enter into a con- § 1214.400 Scope. tractual or other arrangement estab- (a) This subpart sets forth policy and lishing an obligatory relationship with procedures with respect to Inter- an institution participating in the pay- national Space Station crewmembers load as designated by the payload spon- provided by NASA for flight to the sor prior to selection and before enter- International Space Station. ing into training at a NASA installa- (b) In order to provide for the safe op- tion or NASA-designated location. eration, maintenance of order, and Payload specialists who are not other- proper conduct of crew aboard the wise U.S. Government employees will International Space Station, the Janu- not become U.S. Government employ- ary 29, 1998, Agreement Among the ees by virtue of being selected as a pay- load specialist. Except as specified in Government of Canada, Governments the following paragraphs of this sec- of Member States of the European tion, NASA will not enter into any di- Space Agency, the Government of rect contractual or other arrangement Japan, the Government of the Russian with individual payload specialists. Federation, and the Government of the Any exception must be approved by the United States of America Concerning NASA Administrator. Cooperation on the Civil International (a) Payload specialists who are not Space Station (hereinafter Agreement), citizens of the United States will be re- which establishes and governs the quired to enter into an agreement with International Space Station, requires NASA in which they agree to accept the development and approval of a and be governed by specified standards Code of Conduct for International of conduct. Any such agreement will be Space Station crew. Pursuant to Arti- signed on behalf of NASA by the NASA cle 11 of the Agreement, each Inter- General Counsel or designee. national Space Station partner is (b) Payload specialists who are citi- obliged to ensure that crewmembers zens of the United States and who are which it provides observe the Code of not employees of the U.S. Government, Conduct. will be required to enter into an agree- ment with NASA in which they agree § 1214.401 Applicability. to accept and be governed by specified This subpart applies to all persons standards of conduct. Any such agree- provided by NASA for flight to the ment will be signed on behalf of NASA International Space Station, including
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U.S. Government employees, uni- (b) All NASA-provided personnel on formed members of the Armed Serv- board the International Space Station ices, U.S. citizens who are not employ- are additionally subject to the author- ees of the U.S. Government, and for- ity of the International Space Station eign nationals. Commander and shall comply with Commander’s orders and directions. § 1214.402 International Space Station crewmember responsibilities. § 1214.403 Code of Conduct for the (a) All NASA-provided International International Space Station Crew. Space Station crewmembers are sub- The Code of Conduct for the Inter- ject to specified standards of conduct, national Space Station Crew, which including those prescribed in the Code sets forth minimum standards for of Conduct for the International Space NASA-provided International Space Station Crew, set forth as § 1214.403. Station crewmembers, is as follows: NASA-provided International Space Station crew members may be subject CODE OF CONDUCT FOR THE INTERNATIONAL to additional standards and require- SPACE STATION CREW ments, as determined by NASA, which will be made available to those NASA- I. INTRODUCTION provided crewmembers, as appropriate. A. Authority (1) NASA-provided International Space Station crewmembers who are This Code of Conduct for the International not citizens of the United States will Space Station (ISS) crew, hereinafter re- be required to enter into an agreement ferred to as Crew Code of Conduct (CCOC), is with NASA in which they agree to established pursuant to: comply with specified standards of con- (1) Article 11 (Crew) of the intergovern- mental Agreement Among the Government duct, including those prescribed in the of Canada, Governments of Member States of Code of Conduct for the International the European Space Agency, the Government Space Station Crew (§ 1214.403). Any of Japan, the Government of the Russian such agreement will be signed on be- Federation, and the Government of the half of NASA by the NASA General United States of America Concerning Co- Counsel or designee. operation on the Civil International Space (2) NASA-provided International Station (the IGA) signed by the Partner Space Station crewmembers who are States on January 29, 1998; and citizens of the United States but are (2) Article 11 (Space Station Crew) of the not employees of the U.S. Government Memoranda of Understanding between, re- will be required to enter into an agree- spectively, the National Aeronautics and ment with NASA in which they agree Space Administration of the United States of America (NASA) and the Canadian Space to comply with specified standards of Agency (CSA), NASA and the European conduct, including those prescribed in Space Agency (ESA), NASA and the Govern- the Code of Conduct for the Inter- ment of Japan (GOJ), and NASA and the national Space Station Crew Russian Space Agency (RSA) Concerning Co- (§ 1214.403). Any such agreement will be operation on the Civil International Space signed on behalf of NASA by the NASA Station (the MOU’s), which require, inter General Counsel or designee. alia, that the crew Code of Conduct be devel- (3) NASA-provided International oped by the partners. Space Station crewmembers who are employed by a branch, department, or B. Scope and Content agency of the U.S. Government may, as The partners have developed and approved determined by the NASA General this CCOC to: establish a clear chain of com- Counsel, be required to enter into an mand on-orbit; establish a clear relationship agreement with NASA to comply with between ground and on-orbit management; specified standards of conduct, includ- and establish a management hierarchy; set ing those prescribed in the Code of Con- forth standards for work and activities in space, and, as appropriate, on the ground; es- duct for the International Space Sta- tablish responsibilities with respect to ele- tion Crew (§ 1214.403). Any such agree- ments and equipment; set forth disciplinary ment will be signed on behalf of NASA regulations; establish physical and informa- by the NASA General Counsel or des- tion security guidelines; and define the ISS ignee. Commander’s authority and responsibility,
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on behalf of all the partners, to enforce safe- (6) ‘‘Flight Rules’’ means the set of rules ty procedures, physical and information se- used by the Cooperating Agencies to govern curity procedures and crew rescue proce- flight operations. dures for the ISS. This CCOC and the dis- (7) ‘‘ISS crewmembers’’ means any person ciplinary policy referred to in Section IV approved for flight to the ISS, including both shall not limit the application of Article 22 ISS expedition crew and visiting crew, begin- of the IGA. This CCOC succeeds the NASA– ning upon assignment to the crew for a spe- RSA Interim Code of Conduct, which was de- cific and ending upon completion of the veloped pursuant to Article 11.2 of the MOU postflight activities related to the mission. between NASA and RSA to cover early as- sembly prior to other partners’ flight oppor- II. GENERAL STANDARDS tunities. A. Responsibilities of ISS Crewmembers This CCOC sets forth the standards of con- duct applicable to all ISS crewmembers dur- ISS Crewmembers shall comply with the ing preflight, on-orbit, and post-flight activi- CCOC. Accordingly, during preflight, on- ties, (including launch and return phases). orbit, and postflight activities, they shall ISS crewmembers are subject to additional comply with the ISS Commander’s orders, requirements, such as the ISS Flight Rules, all Flight and ISS program Rules, oper- the disciplinary policy, and requirements ational directives, and management policies, imposed by their Cooperating Agency or as applicable. These include those related to those relating to the Earth-to-Orbit Vehicle safety, health, well-being, security, and (ETOV) transporting an ISS crewmember. other operational or management matters Each ISS crewmember has a right to know governing all aspects of ISS elements, equip- about such additional requirements. ISS ment, payloads and facilities, and non-ISS crewmembers will also abide by the rules of facilities, to which they have access. All ap- the institution hosting the training, and by plicable rules, regulations, directives, and standards and requirements defined by the policies shall be made accessible to ISS Multilateral Crew Operations Panel (MCOP), crewmembers through appropriate means, the Multilateral Space Medicine Board coordinated by the MCOP. (MSMB) and the Multilateral Medical Oper- ations Panel (MMOP). Each ISS crewmember B. General Rules of Conduct will be informed by the Cooperating Agency ISS Crewmembers’ conduct shall be such providing him or her of the responsibilities as to maintain a harmonious and cohesive of ISS crewmembers under the IGA, the relationship among the ISS crewmembers MOU’s and this CCOC. Further, each ISS and an appropriate level of mutual con- crewmember will be educated by the Cooper- fidence and respect through an interactive, ating Agency providing him or her through participative, and relationship-oriented ap- the crew training curriculum and normal proach which duly takes into account the program operations as to ISS program rules, international and multicultural nature of operational directives and management poli- the crew and mission. cies. Completion of postflight activities shall No ISS crewmember shall, by his or her not affect an ISS crewmember’s continuing conduct, act in a manner which results in or obligations under Section V of this CCOC. creates the appearance of: (1) Giving undue preferential treatment to any person or enti- C. Definitions ty in the performance of ISS activities; and/ For the purposes of the CCOC: or (2) adversely affecting the confidence of (1) ‘‘Cooperating Agency’’ means NASA, the public in the integrity of, or reflecting CSA, ESA, Rosaviakosmos (formerly RSA) unfavorably in a public forum on, any ISS and, in the case of Japan, the Science and partner, partner state or Cooperating Agen- Technology Agency of Japan (STA) and, as cy. appropriate, the National Space Develop- ISS crewmembers shall protect and con- ment Agency of Japan (NASDA), assisting serve all property to which they have access agency to STA. for ISS activities. No such property shall be (2) ‘‘Crew Surgeon’’ means a Flight Sur- altered or removed for any purpose other geon assigned by the MMOP to any given ex- than those necessary for the performance of pedition. He or she is the lead medical officer ISS duties. Before altering or removing any and carries primary responsibility for the such property, ISS crewmembers shall first health and well-being of the entire ISS crew. obtain authorization from the Flight Direc- (3) ‘‘Disciplinary policy’’ means the policy tor, except as necessary to ensure the imme- developed by the MCOP to address violations diate safety of ISS crewmembers or ISS ele- of the CCOC and impose disciplinary meas- ments, equipment, or payloads. ures. C. Use of Position (4) ‘‘ETOV’’ means Earth-to-Orbit Vehicle travelling between Earth and the ISS. ISS crewmembers shall refrain from any (5) ‘‘Flight Director’’ means the Flight Di- use of the position of ISS crewmember that rector in control of the ISS. is motivated, or has the appearance of being
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motivated, by private gain, including finan- For avoidance of doubt, nothing in this cial gain, for himself or herself or other per- Section shall affect the ability of the MCOP sons or entities. Performance of ISS duties to designate the national of any Partner shall not be considered to be motivated by State as an ISS Commander. private gain. Furthermore, no ISS crew- member shall use the position of ISS crew- (1) During Preflight and Postflight Activities member in any way to coerce, or give the ap- The ISS Commander is the leader of the pearance of coercing, another person to pro- crew and is responsible for forming the indi- vide any financial benefit to himself or her- vidual ISS crewmembers into a single, inte- self or other persons or entities. grated team. During preflight activities, the D. Mementos and Personal Effects ISS Commander, to the extent of his or her authority, leads the ISS crewmembers Each ISS crewmember may carry and store through the training curriculum and mis- mementos, including flags, patches, insignia, sion-preparation activities and seeks to en- and similar small items of minor value, on- sure that the ISS crewmembers are ade- board the ISS, for his or her private use, sub- quately prepared for the mission, acting as ject to the following: the crew’s representative to the ISS pro- (1) mementos are permitted as a courtesy, gram’s training, medical, operations, and not an entitlement; as such they shall be utilization authorities. During postflight ac- considered as ballast as opposed to a payload tivities, the ISS Commander coordinates as or mission requirement and are subject to necessary with these authorities to ensure manifest limitations, on-orbit stowage allo- that the ISS crewmembers complete the re- cations, and safety considerations; quired postflight activities. (2) mementos may not be sold, transferred for sale, used or transferred for personal (2) During On-Orbit Operations gain, or used or transferred for any commer- cial or fundraising purpose. Mementos (a) General which, by their nature, lend themselves to exploitation by the recipients, or which, in The ISS Commander is responsible for and the opinion of the Cooperating Agency pro- will, to the extent of his or her authority and viding the ISS crewmember, engender ques- the ISS on-orbit capabilities, accomplish the tions as to good taste, will not be permitted. mission program implementation and ensure An ISS crewmember’s personal effects, the safety of the ISS crewmembers and the such as a wristwatch, will not be considered protection of the ISS elements, equipment, mementos. Personal effects of any nature or payloads. may be permitted, subject to constraints of mass/volume allowances for crew personal ef- (b) Main Responsibilities fects, approval of the ISS crewmember’s Co- The ISS Commander’s main responsibil- operating Agency, and approval of the trans- ities are to: (1) Conduct operations in or on porting Cooperating Agency and consider- the ISS as directed by the Flight Director ations of safety and good taste. and in accordance with the Flight Rules, If a Cooperating Agency carries and stores plans and procedures; (2) direct the activities items onboard the ISS in connection with of the ISS crewmembers as a single, inte- separate arrangements, these items will not grated team to ensure the successful comple- be considered mementos of the ISS crew- tion of the mission; (3) fully and accurately members. inform the Flight Director, in a timely man- III. AUTHORITY AND RESPONSIBILITIES OF THE ner, of the ISS vehicle configuration, status, ISS COMMANDER, CHAIN OF COMMAND AND commanding, and other operational activi- SUCCESSION ONORBIT; RELATIONSHIP BE- ties on-board (including off-nominal or emer- TWEEN GROUND AND ON-ORBIT MANAGEMENT gency situations); (4) enforce procedures for the physical and information security of op- A. Authority and Responsibilities of the ISS erations and utilization data; (5) maintain Commander order; (6) ensure crew safety, health and well-being including crew rescue and return; The ISS Commander, as an ISS crew- and (7) take all reasonable action necessary member, is subject to the standards detailed for the protection of the ISS elements, elsewhere in this CCOC, in addition to the equipment, or payloads. command-specific provisions set forth below: The ISS Commander will seek to maintain (c) Scope of Authority a harmonious and cohesive relationship among the ISS crewmembers and an appro- During all phases of on-orbit activity, the priate level of mutual confidence and respect ISS Commander, consistent with the author- through an interactive, participative, and re- ity of the Flight Director, shall have the au- lationship-oriented approach which duly thority to use any reasonable and necessary takes into account the international and means to fulfill his or her responsibilities. multicultural nature of the crew and mis- This authority, which shall be exercised con- sion. sistent with the provisions of Sections II and
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IV, extends to: (1) the ISS elements, equip- designed to minimize the amount of real- ment, and payloads; (2) the ISS crew- time discussion required during mission op- members; (3) activities of any kind occurring erations. in or on the ISS; and (4) data and personal ef- fects in or on the ISS where necessary to IV. DISCIPLINARY REGULATIONS protect the safety and well-being of the ISS ISS crewmembers will be subject to the crewmembers and the ISS elements, equip- disciplinary policy developed and revised as ment, and payloads. Any matter outside the necessary by the MCOP and approved by the ISS Commander’s authority shall be within Multilateral Coordination Board (MCB). The the purview of the Flight Director. MCOP has developed an initial disciplinary Issues regarding the Commander’s use of policy which has been approved by the MCB. such authority shall be referred to the Flight Director as soon as practicable, who will The disciplinary policy is designed to main- refer the matter to appropriate authorities tain order among the ISS crewmembers dur- for further handling. Although other ISS ing preflight, on-orbit and postflight activi- crewmembers may have authority over and ties. The disciplinary policy is administra- responsibility for certain ISS elements, tive in nature and is intended to address vio- equipment, payloads, or tasks, the ISS Com- lations of the CCOC. Such violations may, mander remains ultimately responsible, and inter alia, affect flight assignments as an solely accountable, to the Flight Director for ISS crewmember. The disciplinary policy the successful completion of the activities does not limit a Cooperating Agency’s right and the mission. to apply relevant laws, regulations, policies, and procedures to the ISS crewmembers it B. Chain of Command and Succession On-orbit provides, consistent with the IGA and the MOU’s. (1) The ISS Commander is the highest au- thority among the ISS crewmembers on- V. PHYSICAL AND INFORMATION SECURITY orbit. The MCOP will determine the order of GUIDELINES succession among the ISS crewmembers in advance of flight, and the Flight Rules set The use of all equipment and goods to forth the implementation of a change of which ISS crewmembers have access shall be command. limited to the performance of ISS duties. (2) Relationship of the ISS Commander to Marked or otherwise identified as export ETOV and Other Commanders controlled data and marked proprietary data The Flight Rules define the authority of obtained by an ISS crewmember in the the ETOV Commander, the Rescue Vehicle course of ISS activities shall only be used in Commander, and any other commanders, and the performance of his or her ISS duties. set forth the relationship between their re- With respect to data first generated on-board spective authorities and the authority of the the ISS, the ISS crewmembers will be ad- ISS Commander. vised by the appropriate Cooperating Agency or by the data owner or provider through C. Relationship Between the ISS Commander that Cooperating Agency as to the propri- (On-Orbit Management) and the Flight Direc- etary or export-controlled nature of the data tor (Ground Management) and will be directed to mark and protect The Flight Director is responsible for di- such data and to continue such protection recting the mission. A Flight Director will for as long as the requirements for such pro- be in charge of directing real-time ISS oper- tection remain in place. Additionally, ISS ations at all time. The ISS Commander, crewmembers shall act in a manner con- working under the direction of the Flight Di- sistent with the provisions of the IGA and rector and in accordance with the Flight the MOU’s regarding protection of oper- Rules, is responsible for conducting on-orbit ations data, utilization data, and the intel- operations in the manner best suited to the lectual property of ISS users. They shall also effective implementation of the mission. The comply with applicable ISS program rules, ISS Commander, acting on his or her own operational directives, and management authority, is entitled to change the daily policies designed to further such protections. routine of the ISS crewmembers where nec- Personal information about ISS crew- essary to address contingencies, perform ur- members, including all medical information, gent work associated with crew safety and private family conference, or other private the protection of the ISS elements, equip- information, whether from verbal, written, ment or payloads, or conduct critical flight or electronic sources, shall not be used or operations. Otherwise, the ISS Commander disclosed by other ISS crewmembers for any should implement the mission as directed by purpose, without the consent of the affected the Flight Director. Specific roles and re- ISS crewmember, except as required for the sponsibilities of the ISS Commander and the immediate safety of ISS crewmembers or the Flight Director are described in the Flight protection of ISS elements, equipment, or Rules. The Flight Rules outline decisions payloads. In particular, all personal medical planned in advance of the mission and are information, whether derived from medical
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monitoring, investigations, or medical con- Subpart 1214.5—Mission Critical tingency events, shall be treated as private medical information and shall be trans- Space System Personnel Reli- mitted in a private and secure fashion in ac- ability Program cordance with procedures to be set forth by the MMOP. Medical data which must be han- dled in this fashion includes, for example, SOURCE: 55 FR 53289, Dec. 28, 1990, unless biomedical telemetry, private medical com- otherwise noted. munications, and medical investigation data. Nothing in this paragraph shall be in- § 1214.500 Scope. terpreted to limit an ISS crewmember’s ac- This subpart 1214.5 establishes a pro- cess to all medical resources aboard the ISS, gram designed to ensure that personnel to ground-based medical support services, or to his or her own medical data during pre- assigned to mission critical positions/ flight, on-orbit, and postflight activities. duties meet the screening requirements outlined in § 1214.504 of this part. VI. PROTECTION OF HUMAN RESEARCH SUBJECTS § 1214.501 Applicability. No research on human subjects shall be (a) This regulation applies to civil conducted which could, with reasonable fore- sight, be expected to jeopardize the life, service and contractor personnel at health, physical integrity, or safety of the NASA Headquarters and field installa- subject. tions who work in activities that are No research procedures shall be under- vital to the safety and success of mis- taken with any ISS crewmember as a human sion critical space systems. subject without: (1) written approval by the (b) The provisions of this regulation Human Research Multilateral Review Board (HRMRB) and (2) the full written and in- apply to all civil service and con- formed consent of the human subject. Each tractor personnel assigned to mission such approval and consent shall be obtained critical positions/duties with the ex- prior to the initiation of such research, and ception of the personnel addressed in shall fully comply with the requirements of § 1214.501(c) of this part. This includes the HRMRB. The HRMRB is responsible for command and decision making per- procedures for initiation of new experiments sonnel as well as technicians. on-orbit when all consent requirements have been met, but the signature of the human (c) This regulation does not include subject cannot be obtained; explicit consent flight crew or payload specialists. They of the human subject will nonetheless be re- are covered by NASA Management In- quired in all such cases. Subjects volun- struction (NMI) 33304 (14 CFR part 1214, teering for human research protocols may at subpart 1214.11), ‘‘NASA Astronaut their own discretion, and without providing Candidate Recruitment and Selection a rationale, withdraw their consent for par- Program.’’ ticipation at any time, without prejudice, (d) This regulation applies to Space and without incurring disciplinary action. In addition, approval or consent for any re- Station Freedom International Part- search may be revoked at any time, includ- ners in that the certification require- ing after the commencement of the research, ments in § 1214.505(f) of this part apply by: the HRMRB, the Crew Surgeon, the to foreign personnel in mission critical Flight Director, or the ISS Commander, as positions/duties. appropriate, if the research would endanger the ISS Crew Member or otherwise threaten § 1214.502 Definitions. the mission success. A decision to revoke consent by the human subject or approval by (a) Mission Critical Space Systems. The the other entities listed above will be final. Space Shuttle and other critical space systems, including Space Station Free- § 1214.404 Violations. dom, designated Expendable Launch This subpart is a regulation within Vehicles (ELV’s), designated payloads, the meaning of 18 U.S.C. 799, and who- Shuttle Carrier Aircraft and other des- ever willfully violates, attempts to vio- ignated resources that provide access late, or conspires to violate any provi- to space. The Director of each NASA sion of this subpart or any order or di- Installation will designate areas asso- rection issued under this subpart may ciated with these systems that are mis- be cited for violating title 18 of the sion critical space systems areas. U.S. Code and could be fined or impris- (b) Mission Critical Positions/Duties. oned not more than 1 year, or both. Positions/duties which, if performed in
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a faulty, negligent, or malicious man- ensuring a scientifically, techno- ner, could jeopardize mission critical logically, and economically strong and space systems and/or delay a mission. secure nation, program reliability, While this regulation establishes suit- operational and safety considerations ability screening requirements which, require that stringent measures be if met, will allow unescorted access to taken to provide for the protection of mission critical space areas, compli- the systems. In addition to the Space ance with the requirements does not Shuttle and the Space Station Free- authorize unescorted access to classi- dom, designated ELV’s, designated fied areas by Personnel Reliability payloads, Shuttle Carrier Aircraft and Program (PRP) personnel who do not other designated resources which pro- have security clearances. vide the same critical access to space (c) Medical Authority. A NASA civil or the ability to accomplish critical service or contract physician/psychia- objectives in space are considered to trist responsible for maintaining med- constitute valued national resources. ical records, providing results of med- (b) Measures to ensure this protec- ical evaluations, and interpreting eval- tion are: uations as they relate to reliable per- (1) Special physical security provi- formance of mission-critical duties. sions as provided in NMI 8610.22.3 The medical authority will coordinate (2) Procedures to ensure that per- evaluations with the investigatory au- sonnel assigned to mission critical po- thority. sitions/duties meet screening require- (d) Investigatory Authority. A NASA ments, as set forth in § 1214.504 of this civil service or contract individual re- part prior to unescorted access to areas sponsible for reviewing court, law en- where mission critical space systems forcement (Civil, DOD, NASA, other are located. Federal), and other official records and NASA screening plans/procedures § 1214.504 Screening requirements. records to provide evaluations, rec- ommendations, and guidance to NASA (a) Only those persons who are cer- organizations, supervisors, and PRP tified under the PRP will have adjudicators on issuing, denying, or re- unescorted access to mission critical voking eligibility for mission critical space systems areas, be assigned to, positions/duties. employed in, or retained in mission (e) Certification. The determination critical positions/duties. While this that an employee assigned to duties as regulation provides for unescorted ac- described in § 1214.505 of this part, is cess to mission critical space systems qualified to perform those duties, and areas, it does not preclude the need for that this employee has been found reli- escorting of PRP personnel who do not able in accordance with the adjudica- have security clearances in classified tion guidelines set forth in Attachment areas. The certification will be based B of NMI 8610.13.1 on an evaluation of screening data which is to be undertaken by a trained § 1214.503 Policy. evaluator using evaluation guidance (a) The Space Shuttle and the Space and criteria contained in Federal Per- Station Freedom are included in the sonnel Manual (FPM) chapter 731 and NASA National Resource Protection Attachment B (Adjudication Guide- 4 Program as delineated in NMI 8610.22, lines) of NMI 8610.13. The need for im- ‘‘National Resource Protection Pro- partial and consistent evaluation of gram.’’ 2 The Space Shuttle and the data based on a set of standards is con- Space Station Freedom provide a capa- sidered paramount to the successful bility to support a wide range of sci- implementation of this program. entific applications and commercial, (b) Determination of suitability for defense, and international uses. Since assignment to mission critical posi- they will contribute significantly to tions/duties will be made on the basis of the following criteria: 1 Copies may be obtained from NASA Head- quarters (Code NA–2), Washington, DC 20546. 3 See footnote 1 to § 1214.502(e). 2 See footnote 1 to § 1214.502(e). 4 See footnote 1 to § 1214.502(e).
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(1) Supervisory nomination (per re- and contractor personnel assigned to quirements of § 1214.505(c) of this part) these positions/duties. The number of and assurance of ability to perform persons so identified must be the abso- mission critical duties as evidenced by lute minimum necessary to meet oper- performance during training and while ational requirements. on the job. (c) Each NASA installation to which (2) Medical evaluation (for cause this regulation is applicable will estab- only) by NASA designated medical/psy- lish: chiatric authority consistent with: (1) A suitability certification system (i) The guidelines and requirements including a designated certifying offi- of the NASA Occupational Health Divi- cial to ensure that the screening re- sion as required to ensure adequate quirements of this regulation are met. health for competent and reliable per- Adjudication Guidelines (Attachment formance; and B of NMI 8610.13) 5 provides a baseline (ii) Information developed by testing, for each installation to consider in for- review and other screening regarding mulating a certification approach. The an individual’s health, drug or alcohol screening/evaluation plans and proce- abuse, or other factors which may re- dures formulated at each installation flect adversely on his or her cog- will be approved by Headquarters (Of- nizance, judgement, and ability to act fice of Safety and Mission Quality reliably. Such information shall be (Code Q) and appropriate Program As- considered ‘‘cause’’ within the meaning sociate Administrators) before imple- of this subsection. mentation. (iii) All information obtained by (2) A management review process to medical or Employee Assistance Pro- validate the objectivity of individual gram evaluation is subject to federal suitability certification determina- and state statutes and regulations per- tions and to ensure that reassignments taining to the privacy and confiden- or other personnel actions taken pursu- tiality of patient/client information. ant to this regulation are fair and in (3) Evaluation by a NASA-designated consonance with applicable personnel investigatory authority including a re- policies and procedures. view of the results of any National (3) An adequate training program for Agency Check (including a name check certifying officials, supervisors, adju- of the Federal Bureau of Investigation dicators, and other installation per- (FBI) fingerprint records) completed sonnel approved by Headquarters Code within the past 5 years. When the Na- Q before implementation. tional Agency Check indicates that a (4) Each NASA installation will more extensive investigation has been maintain a roster of installation adju- completed, the results of that inves- dicators. Directors of the Installations tigation will also be reviewed. will approve appointment of adjudica- (4) Local agency checks as appro- tors. priate. (d) Supervisors will: (5) A review of the PRP candidate’s (1) Review for reliability and nomi- personnel employment records. (6) A review of the Inspector General nate personnel whose duties require case files. certification under the PRP. (c) Information acquired during the (2) Certify that the PRP candidate screening process will be protected in a holds current licenses, skill training manner consistent with the provisions certificates, and other documentation of the Privacy Act and other pertinent issued as required by applicable direc- laws and regulations. tives. (3) Brief PRP candidates and rebrief § 1214.505 Program implementation. PRP personnel on the needs and intent (a) The Director of each NASA In- of the PRP. stallation will designate mission crit- (4) Monitor and continually evaluate ical space systems areas. personnel for steady reliable perform- (b) NASA installations will identify ance and notify the certifying official positions/duties subject to this regula- tion and will identify all civil service 5 See footnote 1 to § 1214.502(e).
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if changes occur which may com- Subpart 1214.6—Mementos promise the safety and reliability of Aboard Space Shuttle Flights mission critical space systems. (e) NASA Headquarters Office of AUTHORITY: Pub. L. 85–568, 72 Stat. 426 (42 Safety and Mission Quality (Code Q) U.S.C. 2473(c)). will act as the Office of Primary Re- SOURCE: 56 FR 31074, July 9, 1991, unless sponsibility (OPR) for PRP policy and otherwise noted. oversight (periodic review). The certifi- cation of Headquarters personnel will § 1214.600 Scope. be carried out by the Office of Head- This subpart establishes policy, pro- quarters Operations (Code D) in accord- cedures, and responsibilities for select- ance with § 1214.505 of this part. ing, approving, packing, storing, and (f) Foreign representatives requiring disposing of mementos carried on access to mission critical space sys- Space Shuttle flights. tems or having the need to assume mis- sion critical positions/duties (as de- § 1214.601 Definitions. fined in § 1214.502 of this part) pursuant (a) Mementos. Flags, patches, insig- to international agreements also re- nia, medallions, minor graphics, and quire certification under this program. similar items of little commercial NASA will accept certifications from value, especially suited for display by foreign agencies following review under the individuals or groups to whom they the NASA Headquarters process have been presented. (§ 1214.505(e) of this part), if a written (b) Official Flight Kit (OFK). A con- agreement has been reached with the tainer, approximately 0.057 cubic me- foreign sponsoring agency whereby ters (2 cubic feet) in size, reserved for NASA recognizes the foreign agency’s carrying official mementos of NASA process as equivalent to its own. Such and other organizations aboard Space agreements will be negotiated by the Shuttle flights. No personal items will International Relations Division (Code be carried in the OFK. (c) Personal Preference Kit (PPK). A XI) with the concurrence of the NASA container, approximately 12.82 centi- Headquarters Office of Safety and Mis- meters × 20.51 centimeters × 5.13 centi- sion Quality (Code Q) and the Program meters (5′′×8′′×2′′) in size, separately as- Office responsible for the program to signed to each individual accom- which such access is sought. The intent panying a Space Shuttle flight for car- of the certification process is that for- rying personal mementos during the eign personnel are screened as thor- flight. oughly as are U.S. citizens who have access to mission critical space sys- § 1214.602 Policy. tems areas or who have the need to as- (a) Premise. Mementos are welcome sume mission critical duties. aboard Space Shuttle flights. However, (g) NASA will accept certifications they are flown as a courtesy—not as an from other Federal agenices, depart- entitlement. The Associate Adminis- ments, and offices following review trator for Space Flight is free to make under the NASA Headquarters process exceptions to this accommodation (Section 1214.505(e) of this part), if a without explanation. Moreover, me- written agreement has been reached mentos are ballast not payload. They whereby NASA recognizes that process can be reduced or eliminated (by the as equivalent to its own. Such agree- Deputy Director, Space Shuttle Pro- ments will be negotiated by the NASA gram, Johnson Space Center) for Headquarters Office of Safety and Mis- weight, volume, or other technical rea- sion Quality (Code Q) and the Program sons without reference to higher au- Office responsible for the program to thority. which such access is sought. A security (b) Constraints. Mementos to be car- ried on Space Shuttle flights must be clearance to access classified material approved by the Associate Adminis- is not sufficient to meet the certifi- trator for Space Flight and are stowed cation requirements of this regulation. only in an OFK or a PPK. Mementos
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will not be carried within payload con- tions/individuals (both other than as a tainers, including Get-Away Specials, Space Shuttle customer) and other or in any other container or locker Federal agencies to the Associate Ad- aboard the Space Shuttle, other than ministrator of External Relations, within the designated OFK or PPK. Code X, NASA Headquarters, Wash- (c) Economic Gain. Items carried in an ington, DC 20546. Upon receipt of all re- OFK or a PPK will not be sold, trans- quests, the cognizant offices will re- ferred for sale, used or transferred for view and forward data to the Associate personal gain, or used or transferred Director, Code AC, Johnson Space Cen- for any commercial or fund-raising ter, Houston, TX 77058. purpose. Items such as philatelic mate- (3) All others (aerospace companies, rials and coins that, by their nature, state and local governments, the aca- lend themselves to exploitation by the demic community, and non-space-re- recipients, or create problems with re- lated businesses) may send requests di- spect to good taste; or that are large, rectly to the Associate Director, Code bulky, or heavy items (in the context of the OFK’s size, as indicated in AC, Johnson Space Center, Houston, § 1214.601(b) of this part) will not be ap- TX 77058. In the event OFK requests, on proved for flight. a particular flight, exceed OFK capa- bility, priority consideration may be § 1214.603 Official Flight Kit (OFK). given to those entities having payloads (a) Purpose. The OFK on a particular on that flight. The listing of the pro- flight enables NASA, developers of posed OFK contents for each flight is NASA sponsored payloads, NASA’s ex- prepared at the Johnson Space Center ternal payload customers, other Fed- and forwarded to the Associate Admin- eral agencies, researchers, aerospace istrator for Space Flight approxi- contractors, and counterpart institu- mately 30 days prior to launch for ap- tions of friendly foreign countries to proval. utilize mementos as awards and com- mendations or preserve them in muse- § 1214.604 Personal Preference Kit ums or archives. The courtesy is also (PPK). extended to other organizations out- (a) Purpose. The PPK enables persons side the aerospace community, such as accompanying Space Shuttle flights to state and local governments, the aca- carry personal items for use as memen- demic community, and independent tos. Only those individuals actually ac- business entities. In the latter case, it companying such flights (astronaut is customary to fly only one item for crew members, payload specialists, and the requesting organization to be used space flight participants) may request for display purposes. authorization to carry personal items (b) Limitations. In addition to as mementos. These items must be car- § 1214.602(c) of this part, U.S. national ried in individually assigned PPK’s. flags will not be flown as mementos ex- (b) Limitations. The contents of a PPK cept by U.S. Government sponsors. must be limited to 20 separate items, (c) Approval of Contents. At least 60 days prior to the launch of a Space with a total weight of 0.682 kilograms Shuttle flight, an authorized represent- (1.5 pounds). Each item is allocated for ative of each organization desiring me- a different recipient and distributed ac- mentos to be carried on the flight in cordingly. The volume of a PPK must × the OFK must submit a letter or re- be contained in a 12.82 centimeters quest describing the item(s) to be flown 20.51 centimeters × 5.13 centimeters and the intended purpose or distribu- (5′′×8′′×2′′) bag provided by NASA. In- tion. Letters should be directed to the creases in these limitations will be au- cognizant NASA office as follows: thorized only by the Associate Admin- (1) Space Shuttle customers/users of istrator for Space Flight. any nature, to the Director of Trans- (c) Approval of Contents. At least 60 portation Services, Code MC, NASA days before the scheduled launch of a Headquarters, Washington, DC 20546. Space Shuttle flight, each person as- (2) Foreign organizations/individuals, signed to the flight who desires to and Department of Defense organiza- carry items in a PPK must submit a
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proposed list of items and their recipi- released to the media and to the public ents to the Associate Director, John- upon their request, but only after the son Space Center. The Associate Direc- contents have been approved by the As- tor will review the requests for compli- sociate Administrator for Space Flight. ance with this subpart and submit the (b) Personal Preference Kit. Informa- crew members’ PPK lists through su- tion on the contents of PPK’s will be pervisory channels to the Associate routinely released to the media and to Administrator for Space Flight for ap- the public upon their request imme- proval. A signed copy of the Associate diately following postflight inventory. Administrator for Space Flight’s ap- (c) Responsibility for Release of Infor- proval will be returned to the Director, mation. The Director of Public Affairs, Johnson Space Center, for appropriate Johnson Space Center, is responsible distribution. for the prompt release of information on OFK and PPK contents. § 1214.605 Preflight packing and stor- ing. § 1214.608 Safety requirements. (a) Items intended for inclusion in The contents of OFK’s and PPK’s OFK’s or PPK’s must arrive at the must meet the requirements set forth Johnson Space Center, Code AC, at in NASA Handbook 1700.7, ‘‘Safety Pol- least 45 days prior to the flight on icy and Requirements for Payloads which they are scheduled in order for Using the Space Transportation Sys- them to be listed on the cargo mani- tem (STS).’’ fest, packaged, weighed, and stowed aboard the Orbiter. Items must arrive § 1214.609 Loss or theft. at the Johnson Space Center prior to (a) Responsibility. The National Aero- the 45-day limit even if the Associate nautics and Space Administration will Administrator for Space Flight’s ap- not be responsible for the loss or theft proval is still pending. Items not ap- of, or damage to, items carried in proved by the Associate Administrator OFK’s or PPK’s. for Space Flight will be returned to the (b) Report of Loss or Theft. Any person requesting individual/organization. who learns that an item contained in (b) The Associate Director, Johnson an OFK or a PPK is missing shall im- Space Center, is responsible for the fol- mediately report the loss to the John- lowing: son Space Center Security Office and (1) Securing the items while awaiting the NASA Inspector General. the launch on which they are mani- fested. § 1214.610 Violations. (2) Packaging, weighing, and stowing Any item carried in violation of the the items according to the manifests requirements of this subpart shall be- approved by the Associate Adminis- come the property of the U.S. Govern- trator for Space Flight. ment, subject to applicable Federal § 1214.606 Postflight disposition. laws and regulations, and the violator may be subject to disciplinary action, The Associate Director, Johnson including being permanently prohib- Space Center, will: ited from use of, or, if an individual, (a) Receive and inventory all items from flying aboard the Space Shuttle flown in the OFK and PPK’s following or any other manned spacecraft of the each Shuttle flight. National Aeronautics and Space Ad- (b) Return the contents of the PPK’s ministration. to the persons who submitted them. (c) Return all other flown items to the submitting organizations with an Subpart 1214.7—The Authority of appropriate letter of certification. the Space Shuttle Commander (d) Retain and secure mementos flown by the Agency for future use. AUTHORITY: Pub. L. 85–588, 72 Stat. 426 (42 U.S.C. 2473, 2455; 18 U.S.C. 799); Art. VIII, § 1214.607 Media and public inquiries. TIAS 6347 (18 U.S.T. 2410).
(a) Official Flight Kit. Information on SOURCE: 45 FR 14845, Mar. 7, 1980, unless the contents of OFK’s will be routinely otherwise noted.
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§ 1214.700 Scope. extravehicular activity associated with the mission. This subpart establishes the author- ity of the Space Shuttle commander to [45 FR 14845, Mar. 7, 1980, as amended at 56 enforce order and discipline during all FR 27899, June 18, 1991] flight phases of a Shuttle flight to take whatever action in his/her judgment is § 1214.702 Authority and responsibility necessary for the protection, safety, of the Space Shuttle commander. and well-being of all personnel and on- (a) During all flight phases of a Space board equipment, including the Space Shuttle flight, the Space Shuttle com- Shuttle elements and payloads. During mander shall have the absolute author- the final launch countdown, following ity to take whatever action is in his/ crew ingress, the Space Shuttle com- her discretion necessary to: mander has the authority to enforce (1) Enhance order and discipline, order and discipline among all on- (2) Provide for the safety and well board personnel. During emergency sit- being of all personnel on board, and uations prior to liftoff the Space Shut- (3) Provide for the protection of the tle commander has the authority to Space Shuttle elements and any pay- take whatever action in his/her judg- ment is necessary for the protection or load carried or serviced by the Space security, safety, and well-being of all Shuttle. personnel on board. The commander shall have authority throughout the flight to use any rea- [56 FR 27899, June 18, 1991] sonable and necessary means, including § 1214.701 Definitions. the use of physical force, to achieve this end. (a) Space Shuttle Elements consists of (b) The authority of the commander the Orbiter, an External Tank, two extends to any and all personnel on Solid Rocket Boosters, Spacelab, Upper board the Orbiter including Federal of- Stage Boosters (Solid Spinning Upper ficers and employees and all other per- Stage and Interim Upper Stages) and sons whether or not they are U.S. na- others as specified in NASA Manage- ment Instruction 8040.9. tionals. (b) The flight crew consists of the (c) The authority of the commander commander, pilot, and mission spe- extends to all Space Shuttle elements, cialist(s). payloads, and activities originating (c) A flight is the period from launch with or defined to be a part of the to landing of a Space Shuttle—a single Space Shuttle mission. round trip. (In the case of a forced (d) The commander may, when he/she landing the Space Shuttle com- deems such action to be necessary for mander’s authority continues until a the safety of the Space Shuttle ele- competent authority takes over the re- ments and personnel on board, subject sponsibility for the Orbiter and for the any of the personnel on board to such persons and property aboard.) restraint as the circumstances require (d) The flight-phases consist of until such time as delivery of such in- launch, in orbit, deorbit, entry, land- dividual or individuals to the proper ing, and postlanding. authorities is possible. (e) A payload is a specific com- [45 FR 14845, Mar. 7, 1980, as amended at 56 plement of instruments, space equip- FR 27900, June 18, 1991] ment, and support hardware/software carried into space to accomplish a sci- § 1214.703 Chain of command. entific mission or discrete activity. (f) Personnel on board refers to those (a) The Commander is a career NASA astronauts or other persons actually in astronaut who has been designated to the Orbiter or Spacelab during any serve as commander on a particular flight phase of a Space Shuttle flight flight, and who shall have the author- (including any persons who may have ity described in § 1214.702 of this part. transferred from another vehicle) and Under normal flight conditions (other including any persons performing than emergencies or when otherwise
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designated) the Space Shuttle com- § 1214.800 Scope. mander is responsible to the Flight Di- This subpart 1214.8 establishes the rector, Johnson Space Center, Houston, special reimbursement policy for TX. (b) The pilot is a career NASA astro- Spacelab services provided to Space naut who has been designated to serve Transportation System (STS) cus- as the pilot on a particular flight and tomers governed by the provisions of is second in command of the flight. If subpart 1214.1 or subpart 1214.2. It ap- the commander is unable to carry out plies to flights occurring in the second the requirements of this subpart, then phase of STS operations (U.S. Govern- the pilot shall succeed to the duties ment fiscal years 1986, 1987, and 1988). and authority of the commander. The following five types of Spacelab (c) Before each flight, the other flights are available to accommodate flight crew members (Mission Special- payload requirements: ists) will be designated by the Director (a) Dedicated-Shuttle Spacelab flight of Flight Operations, Johnson Space [Ref. § 1214.804(e)]. Center, Houston, TX, in the order in (b) Dedicated-pallet flight [Ref. which they will assume the authority § 1214.804(f)]. of the commander under this subpart (c) Dedicated-FMDM/MPESS (flexible in the event that the commander and multiplexer-demultiplexer/multipur- pilot are both not able to carry out pose experiment support structure) their duties. flight [Ref. § 1214.804(f)]. (d) The determinations, if any, that a (d) Complete-pallet flight [Ref. crew member in the chain of command § 1214.804(g)]. is not able to carry out his or her com- (e) Shared-element flight [Ref. mand duties and is, therefore, to be re- § 1214.804(h)]. lieved of command, and that another crew member in the chain of command § 1214.801 Definitions. is to succeed to the authority of the (a) Shuttle policy. The appropriate commander, will be made by the Direc- subpart (1214.1 or 1214.2) governing use tor of the Johnson Space Center. of the Shuttle. Determinaltion of the [45 FR 14845, Mar. 7, 1980, as amended at 47 appropriate subpart for each customer FR 3095, Jan. 22, 1982; 56 FR 27900, June 18, shall be made by reference to §§ 1214.101 1991] and 1214.201. § 1214.704 Violations. (b) Spacelab elements. Pallets (3-meter segments), pressurized modules (long (a) All personnel on board a Space or short), and the FMDM/MPESS (1- Shuttle flight are subject to the au- meter cross-bay structure), all as thority of the commander and shall maintained in the NASA-approved conform to his/her orders and direction Space lab configuration. as authorized by this subpart. (c) Standard flight price. The price for (b) This regulation is a regulation standard Shuttle and standard Space- within the meaning of 18 U.S.C. 799, lab services provided. If a customer and whoever willfully violates, at- elects not to use a portion of the stand- tempts to violate, or conspires to vio- ard services, the standard flight price late any provision of this subpart or any order or direction issued under this shall not be affected. subpart shall be fined not more than (d) Shuttle load factor. The parameter $5,000 or imprisoned not more than 1 used to compute the customer’s pro year, or both. rata share of Shuttle services and used to compute the Shuttle charge factor. [45 FR 14845, Mar. 7, 1980, as amended at 56 Means of computing this parameter are FR 27900, June 18, 1991] defined in § 1214.813. (e) Spacelab load fraction. The param- Subpart 1214.8—Reimbursement eter used to compute the customer’s for Spacelab Services pro rata share of each element’s serv- ices and used to compute the element SOURCE: 50 FR 30809, July 30, 1985, unless charge factor. Means of computing this otherwise noted. parameter are defined in § 1214.813.
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(f) Shuttle charge factor and element (b) Escalation. Payments shall be es- charge factor. Parameters used in com- calated in accordance with the Shuttle putation of the customer’s flight price. policy. Means of computing these parameters (c) Customers shall reimburse NASA are defined in § 1214.813. an amount which is the sum of the cus- (g) Dedicated flight price for Spacelab tomer’s standard flight price and the missions. (1) The single-shift operation price for all optional services provided. dedicated flight price for Spacelab mis- (d) Earnest money. For those cus- sions is identical to the Shuttle dedi- tomers required to pay earnest money cated flight price as defined in the by the Shuttle policy, the total earnest Shuttle policy. money payment per payload for Space- (2) The two-shift operation dedicated lab payloads (including Shuttle serv- flight price for Spacelab missions is ices) shall be the lesser of $150,000 or the sum of: 10% of the customer’s estimated stand- (i) The Shuttle dedicated flight price ard flight price. Earnest money will be as defined in the Shuttle policy. applied to the first payment for stand- (ii) The standard price for additional ard services made for each payload by services required to support a second the customer or will be retained by shift of on-orbit operations. NASA if a Launch Services Agreement is not signed. § 1214.802 Relationship to Shuttle pol- icy. § 1214.804 Services, pricing basis, and Except as specifically noted, the pro- other considerations. visions of the Shuttle policy also apply (a) Mandatory use of dedicated-Shuttle to Spacelab payloads. Although some Spacelab flight. (1) Customers shall be language in the Shuttle policy is Shut- required to fly under the provisions of tle-specific, it is the intent of this sub- paragraph (e) of this section if the cus- part 1214.8 that the Shuttle policy be tomer requires exclusive use of any of applied to Spacelab also, including the the following: policy on patent and data rights. How- (i) Pressurized module (long or ever, in the event of any inconsist- short). encies in the policies, the Spacelab pol- (ii) Three pallets in the ‘‘1+1+1’’ con- icy will govern with respect to Space- figuration. lab services. (iii) Four pallets in the ‘‘2+2’’ con- figuration. § 1214.803 Reimbursement policy. (2) In the cases cited in paragraph (a) Reimbursement basis. (1) This pol- (a)(1) of this section, if the customer icy is established for the second phase requests, NASA will attempt to find of STS operations (U.S. Government compatible sharees to fly with the cus- fiscal years 1986, 1987, and 1988). tomer’s payload. If NASA is successful, (2) Standard flight price. During this the customer’s Shuttle standard flight phase, customers covered by subpart price shall be the greater of: 1214.1 or subpart 1214.2 shall reimburse (i) The appropriate dedicated flight NASA for standard Spacelab services price for the customer’s Spacelab mis- an amount which is a pro rata share of: sion less adjusted reimbursements (as (i) The appropriate dedicated flight defined in the Shuttle policy) from price for the customer’s Spacelab mis- sharees actually flown. sion. (ii) The computed shared-flight (ii) The standard price for use of the Spacelab flight price for the customer’s selected Spacelab elements during the payload. second phase of STS operations. (b) Apportionment and assignment of (3) The price shall be held constant services. Subject to NASA approval, a for flights during this phase of STS op- customer contracting for a Spacelab erations. flight shall be permitted to apportion (4) Reimbursement policies for subse- and assign services under the provi- quent phases of STS operations will be sions of the Shuttle policy. developed after NASA has obtained (c) Postponement and termination. (1) A more operational experience. customer may postpone the flight of a
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Spacelab payload one time with no ad- payload’s cutoff date; however, NASA ditional charge if postponement occurs shall not be required to remove the more than 18 months before the sched- payload before flight. uled launch date. (d) Minor delays. The minor delay (2) Postponement or termination fees provisions of the Shuttle policy shall for Spacelab payloads shall consist of apply only to those Spacelab payloads the sum of: whose Shuttle load factor is equal to or (i) A fee for Shuttle transporation. greater than 0.05. (ii) A fee for use of the Spacelab ele- (e) Dedicated-Shuttle Spacelab flight. ments. (1) A dedicated-Shuttle Spacelab flight (3) Shuttle transportation fee. Cus- is a Shuttle flight sold to a single cus- tomers shall be governed by the provi- tomer who is entitled to select the sions of the Shuttle policy with the fol- Spacelab elements used on the flight. lowing exception. When computing oc- (2) In addition to the standard serv- cupancy fees for shared-element pay- ices listed in paragraph (i) of this sec- loads, the ‘‘adjusted reimbursements tion, the following standard services from other customers’’ shall be defined are provided to customers of dedicated- as the adjusted reimbursements from Shuttle Spacelab flights and form the those customers who subsequently con- basis for the standard flight price: tract for the use of the element being shared. (i) Use of the full standard services of (4) Spacelab use fee. The postpone- the Shuttle and the Spacelab elements ment and termination fees for use of selected. the Spacelab elements are computed as (ii) One day of one-shift on-orbit op- a percentage of the customer’s price for erations. use of the Spacelab elements and shall (iii) Standard mission destinations as be based on the table below. When post- defined in the Shuttle policy. ponement or termination occurs less (iv) Launch within a prenegotiated than 18 months before launch, the fees 90-day period in accordance with the shall be computed by linear interpola- dedicated flight scheduling provisions tion using the points provided. of the Shuttle policy. (v) The available payload operations Fee for use of Spacelab ele- time of two NASA-furnished mission ment(s), percent specialists. Time when postponement or termination of price for use occurs, months before scheduled launch of element(s) (3) Customers contracting for a dedi- date cated-Shuttle Spacelab flight shall re- Post- pone- Termi- imburse NASA an amount which is the ment nation sum of: Dedicated Flights, Dedicated Elements, and Dedicated (i) The one-shift operation dedicated FMDM/MPESS flight price for a 1-day Spacelab mis- sion. 0 ...... 75 100 3 ...... 60 85 (ii) The price for the use of all Space- 12 ...... 14 20 lab elements used (including all nec- 18 ...... 5 10 essary mission-independent Spacelab More than 18 ...... 5 10 equipment). Complete Pallets and Shared Elements (iii) The price for all optional serv- Less than 8 ...... 95 100 ices provided. 8 ...... 95 100 (f) Dedicated 3-meter pallets and dedi- 9 ...... 32 95 cated FMDM/MPESS. (1) A dedicated 12 ...... 18 80 18 ...... 5 10 pallet (or a dedicated FMDM/MPESS) More than 18 ...... 5 10 is one which is sold to a single cus- tomer and which includes all Spacelab (5) At the time of signing of the hardware necessary to permit it to be Launch Services Agreement, NASA flown on any shared Shuttle flight as shall define a payload removal cutoff an autonomous payload (e.g., a dedi- date (relative to the launch date) for cated 3-meter pallets may either be each Spacelab payload to be flown on a supplied with its own exclusive igloo or shared flight. A customer may still may fly without an igloo if it requires postpone or terminate a flight after the only standard Shuttle services).
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(2) In addition to a pro rata share of tomers of complete pallets and form the standard service listed in para- the basis for the standard flight price. graph (i) of this section, the following (i) The pallet’s pro rata share of standard services are provided to cus- standard Shuttle services, where the tomers of dedicated pallets (or dedi- basis of proration shall be the cus- cated FMDM/MPESS) and form the tomer’s Shuttle load factor as defined basis for establishing the standard in § 1214.813(f)(1). flight price: (ii) A pro rata share of 7 days of two- (i) A pro rata share of the Shuttle shift on-orbit operations, where the services normally provided, where the basis of proration shall be the cus- basis for proration is the customer’s tomer’s Shuttle load factor. Shuttle load factor as defined in (iii) Mission destination selected by § 1214.813(d)(1) for dedicated pallets and NASA in consultation with the cus- in § 1214.813(e)(2) for dedicated FMDM/ tomer. MPESS. (iv) Assignment, with the customer’s (ii) The exclusive services of the pal- concurrence, to a Spacelab flight des- let (or FMDM/MPESS) and all Spacelab ignated by NASA. hardware provided to support the pal- (v) Launch date established by let (or FMDM/MPESS). NASA. (iii) One day of one-shift on-orbit op- (vi) A pro rata share of the on-orbit erations. payload operations time of two NASA- (iv) Launch to the standard mission furnished mission specialists, where destination of 160 nmi, 28.5° as defined the basis of proration shall be the cus- in the Shuttle policy. tomer’s Shuttle load factor. (v) Launch within a prenegotiated 90- (vii) Use of the entire volume above a day period in accordance with the pallet. shared-flight scheduling provisions of (3) Users contracting for complete the Shuttle policy. pallet flights shall reimburse NASA an (vi) A pro rata share of the on-orbit amount which is the sum of: payload operations time of two NASA- (i) The product of the customer’s furnished mission specialists, where Shuttle charge factor and the two- the basis of proration shall be the cus- shift-operation dedicated flight price of tomer’s Shuttle load factor. a 7-day Spacelab mission. The dedi- (3) Customers contracting for a dedi- cated flight price for a 7-day complete- cated pallet (or FMDM/MPESS) flight pallet mission is the sum of the dedi- shall reimburse NASA an amount cated flight price for a 1-day two-shift which is the sum of: mission and the charge for 6 extra days (i) The product of the customer’s of two-shift on-obit operation. Shuttle charge factor and the one- (ii) The price for the use of a com- shift-operation dedicated flight price of plete pallet, including all necessary a 1-day Spacelab mission. mission-independent Spacelab equip- (ii) The price for the use of the pallet ment. (or FMDM/MPESS) selected (including (iii) The price for all optional serv- all necessary mission-independent ices provided. Spacelab equipment). (h) Shared element. (1) A shared ele- (iii) The price for all optional serv- ment is a Spacelab pallet or module ices provided. which: (g) Complete pallet. (1) A complete (i) Is shared by two or more cus- Spacelab pallet is one which is sold to tomers on a NASA-designated Spacelab a single customer but flies with other flight. Spacelab elements on a NASA or (ii) Shares common standard Space- NASA-designated Spacelab flight and lab services with other Spacelab ele- shares the common standard Spacelab ments on the same flight. services, e.g., shares an igloo with (2) In aditional to a pro rata share of other pallets. the standard services listed in para- (2) In addition to a pro rata share of graph (i) of this section, the following the standard services listed in para- standard services are provided to cus- graph (i) of this section, the following tomers of shared elements and form standard services are provided to cus- the basis for the standard flight price:
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(i) For shared pallets, a pro rata ices are common to all Spacelab share of the standard services provided flights: by a pallet. The basis of proration shall (1) Use of Shuttle 1 and Spacelab be the customer’s Spacelab load frac- hardware. tion as defined in § 1214.813(g)(1)(i). (2) Spacelab interface analysis. (ii) For shared modules, a pro rata (3) Kennedy Space Center (KSC) share of the standard services provided launch.1 by a long module flown on a dedicated- (4) A five-person NASA flight crew Shuttle Spacelab flight. The basis of consisting of commander, two pilots, proration shall be the customer’s and two mission specialists. Spacelab load fraction as defined in (5) Accommodations for a five-person § 1214.813(g)(1)(ii). The type of pressur- flight crew. ized module actually used to meet a (6) Prelaunch integration and inter- customer’s requirement for a shared face verification of preassembled racks module shall be determined by NASA and pallets (Levels III, II, and I for subsequent to contract negotiations. NASA-furnished Spacelab hardware; (iii) A pro rata share of the element’s Level I only for customer-furnished share of standard Shuttle services, Spacelab hardware). where the basis for proration shall be 1 the customer’s Spacelab load fraction. (7) Shuttle and Spacelab flight plan- (iv) A pro rata share of 7 days of two- ning. shift on-orbit operations, where the (8) Payload electrical power. basis of proration shall be the cus- (9) Payload environmental control. tomer’s Shuttle load factor as defined (10) On-board data acquisition and in § 1214.813(g)(1). processing services. (v) Mission destination selected by (11) Transmission of data to a NASA- NASA in consultation with the cus- designed monitoring and control facil- tomer. ity via the basic STS Operational In- (vi) Assignment, with the customer’s strumentation (OI) telemetry system. concurrence, to a Spacelab flight des- (12) Use of NASA-furnished standard ignated by NASA. payload monitoring and control facili- (vii) Launch date established by ties. NASA. (13) Voice communications between (viii) A pro rata share of the on-orbit personnel operating the customer’s operations time of two NASA-furnished payload and a NASA-designated pay- mission specialists, where the basis of load monitoring and control facility. proration shall be the customer’s Shut- (14) NASA payload safety review.1 tle load factor. (15) NASA support of payload design (3) Customers contracting for shared- reviews.1 element flight shall reimburse NASA (j) Typical optional Spacelab services. an amount which is the sum of: The following are typical optional (i) The product of the customer’s Spacelab services: Shuttle charge factor and the two-shift (1) Use of special payload support operation dedicated flight price of a 7- equipment, e.g., instrument pointing day Spacelab mission. The dedicated system. flight price for a 7-day shared-element (2) Vandenberg Air Force Base mission is the sum of the dedicated (VAFB) launch. flight price for a 1-day two-shift-mis- (3) Nonstandard mission destination. sion and the charge for 6 extra days of two-shift on-orbit operations. (4) Additional time on orbit. (ii) The product of the customer’s (5) Mission-independent training, use element charge factor and the price for of, and accommodations for all flight the use of the Spacelab element being personnel in excess of five. used, including all necessary mission- (6) Mission-dependent training of all independent Spacelab equipment. NASA-furnished personnel and (iii) The price for all optional serv- backups. ices provided. (i) Common standard Spacelab services. 1 Typical standard Shuttle services re- The following standard Spacelab serv- peated for clarity.
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(7) Analytical and/or hands-on inte- planned, but unused, extra days on gration (and de-integration) of the cus- orbit. If a complete-pallet or shared- tomer’s payload into racks and/or onto element flight is prematurely termi- pallets. nated, NASA shall refund a pro rata (8) Unique integration or testing re- share of the charges for planned, but quirements. unused, extra days on orbit to cus- (9) Additional resources beyond the tomers whose payload operations are, customer’s pro rata share. in NASA’s judgment, adversely af- (10) Additional experiment time or fected by such premature termination. crew time beyond the customer’s pro The basis for proration shall be the rata share. customers’ Shuttle load factor. (11) Special access to and/or oper- ation of payloads. § 1214.807 Exceptional payloads. (12) Customer unique requirements Customers whose payloads qualify for; software development for the Com- under the NASA Exceptional Program mand and Data Management Sub- Selection Process shall reimburse system (CDMS) onboard computer, con- NASA for Spacelab and Shuttle serv- figuration of the Payload Operations ices on the basis indicated in the Shut- Control Center (POCC), and/or CDMS tle policy. utilized during KSC ground processing. (13) Extravehicular Activity (EVA) § 1214.808 Standby payloads. services. The standby payload provisions of (14) Payload flight planning services. the Shuttle policy do not apply to (15) Transmission of Spacelab data Spacelab flights. contained in the STS OI telemetry link to a location other than a NASA-des- § 1214.809 Short-term call-up and ac- ignated monitoring and control facil- celerated launch. ity. The short-term call-up and acceler- (16) Transmission of Spacelab data ated launch provisions of the Shuttle not contained in the STS OI telemetry policy normally are not offered to link. Spacelab customers. NASA will nego- (17) Level III and/or Level II integra- tiate any such customer requirements tion of customer-furnished Spacelab on an individual basis. hardware. (k) Options. The provisions of § 1214.810 Integration of payloads. §§ 1214.102(e) and 1214.202(e) do not apply (a) The customer shall bear the cost to Spacelab payloads. of performing the following typical Spacelab-payload mission management § 1214.805 Unforeseen customer delay. functions: Should an unforeseen customer pay- (1) Analytical design of the mission. load problem pose a threat of delay to (2) Generation of mission require- the Shuttle launch schedule or critical ments and their documentation in the off-line activities, NASA shall, if re- Payload Integration Plan (PIP). quested by the customer, make all rea- (3) Provision of mission unique train- sonable efforts to prevent a delay, con- ing and payload specialists (if appro- tingent on the availability of facilities, priate). equipment, and personnel. In request- (4) Physical integration of experi- ing NASA to make such special efforts, ments into racks and/or onto pallets. the customer shall agree to reimburse (5) Provision of payload unique soft- NASA the estimated additional cost in- ware for use during ground processing, curred. on orbit, or in POCC operations. (6) Supporting operations. § 1214.806 Premature termination of (7) Assuring the mission is safe. Spacelab flights. (b) All physical integration (and de- If a dedicated-Shuttle Spacelab integration) of payloads into racks and/ flight, a dedicated-pallet flight, or or onto pallets will normally be per- dedicated-FMDM/MPESS flight is pre- formed at KSC by NASA. When the maturely terminated, NASA shall re- customer provides Spacelab elements, fund the optional services charges for these physical integration activities
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may be done by the customer at a loca- (c) Reflight guarantees, if provided, tion chosen by the customer. must cover the customer’s entire pay- (c) With the exception of the restric- load. tions noted in paragraph (b) of this sec- (d) Payloads covered by reflight guar- tion, customers contracting for dedi- antees shall be entitled to a reflight cated-Shuttle and dedicated-pallet with no charge for standard Spacelab flights may perform the Spacelab-pay- and Shuttle services if both the fol- load mission management functions lowing occur: defined in paragraph (a) of this section. (1) Through no fault of the customer NASA will assist customers in the per- or defect in the customer’s payload, formance of these functions, if re- Spacelab systems (i.e., data, power, and cooling) are not within nominal speci- quested. Charges for this service will be fications, as measured by NASA at nor- based on estimated actual costs, or ac- mal Spacelab monitoring points, at the tual costs where appropriate, and will time of first turn-on of the customer’s be in addition to the price for standard payload, all as defined in the Launch services. Services Agreement. (d) For complete pallets or shared (2) The customer’s mission objective elements, NASA will normally perform is not achieved solely as a direct result the Spacelab-payload mission manage- of the occurrence, at the time of first ment functions listed in paragraph (a) turn-on of the customer’s payload, of of this section. Charges for this service events described in paragraph (d)(1) of will be based on estimated actual costs, this section. or actual costs where appropriate, and (e) If more than one reflight is re- will be in addition to the price for quired, no additional reflight premium standard services. shall be charged. (e) Integration of payload entities (f) If a payload being reflown was not mentioned in paragraphs (b)–(d) of this initially covered by a reflight guar- section with NAS-furnished Spacelab antee, the reimbursements for the re- support systems and with the Shuttle flight shall be the same as for a newly- shall be performed by NASA as a stand- scheduled launch. ard service for all payloads flown on customer-furnished Spacelab elements. § 1214.812 Payload specialists. Customers shall be available to partici- (a) The use of customer-furnished pate as required by NASA in these lev- payload specialists shall be subject to els of integration. Customer equipment the approval of the NASA Adminis- shall be operated only to the extent trator or the Administrator’s designee. necessary for interface verification. (b) Customers with payloads whose Customers requiring additional pay- Shuttle load factor is equal to or great- load operation after delivery of the er than 0.5 are entitled to request that payload to NASA shall negotiate such a customer-selected payload specialist operation as an optional service. be flown with the customer’s payload. Dedicated-flight customers are entitled § 1214.811 Reflight guarantee. to request the flight of two customer- selected payload specialists. (a) During the second phase of STS (c) NASA may approve the flight of a operations, there is no additional re- customer-selected payload specialist flight premium for those shared-flight with payloads whose Shuttle load fac- Spacelab payloads which can be accom- tor is less than 0.5 if, in NASA’s judg- modated on a standard Shuttle launch ment, there is sufficient scientific need to 160 nmi, 28.5° as defined in the Shut- to warrant such a flight. tle policy and all dedicated-flight (d) The standard Spacelab flight Spacelab payloads. price is based on operation of the cus- (b) NASA and the customer may ne- tomer’s payload by two NASA-fur- gotiate appropriate reflight provisions nished mission specialists. Accom- (e.g., scheduling, reflight premiums) modations for, and mission-inde- for payloads not covered by paragraph pendent training of, any payload spe- (a) of this section. Otherwise, no re- cialists and backups required for the flight services shall be provided. customer’s mission shall be provided as
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optional services and shall be paid for Adjustments shall be made for special by the customer. The price for this space or weight requirements which in- service shall be the same for both cus- clude, but are not limited to: tomer-furnished and NASA-furnished (i) Sight clearances, orientation, or payload specialists. placement limits. (ii) Clearances for movable payloads. § 1214.813 Computation of sharing and (iii) Unusual access clearance re- pricing parameters. quirements. (a) General. (1) Computational proce- (iv) Clearances extending beyond the dures as contained in the following bounds of the normal element enve- subparagraphs of this paragraph of this lope. section shall be applied as indicated. (v) Extraordinary shapes. The procedure for computing Shuttle The adjusted values shall be used as load factor, charge factor, and flight the basis for computing charge factors price for Spacelab payloads replaces and prorating services. the procedure contained in the Shuttle (b) Definitions used in computations— policy. (1) LC=Chargeable payload length, m. (2) Shuttle charge factors as derived The total length in the cargo bay occu- herein apply to the standard mission pied by the customer’s experiment and destination of 160 nmi altitude, 28.5° in- the Spacelab element(s) used to carry clination. Customers shall reimburse it. NASA an optional services fee for (2) WC=The weight of the customer’s flights to nonstandard destinations. payload and the customer’s pro rata (3) The customer’s total Shuttle share of the weight of NASA mission- charge factor shall be the sum of the peculiar equipment carried to meet the Shuttle charge factors for the cus- customer’s needs, kg. tomer’s individual (dedicated, com- (c) Dedicated-shuttle spacelab flight (1- plete, or shared) elements, with the day mission). The total reimbursement limitation that the customer’s Shuttle is as defined in § 1214.804(e)(3). charge factor shall not exceed 1.0. (d) Dedicated-pallet flight (1-day mis- (4) Customers contracting for pallet- sion). (1) The Shuttle load factors and only payloads are entitled to locate charge factors for dedicated-pallet minimal controls as agreed to by flights are shown in table 1. Subject to NASA in a pressurized area to be des- other STS Spacelab structural limits, ignated by NASA. There is no addi- customers are entitled to utilize the tional charge for this service. payload weight capability of the pal- (5) NASA shall, at its discretion, ad- lets as indicated in table 1. Payload just up or down the load factors and weights in excess of those shown are load fractions calculated according to subject to NASA approval and may en- the procedures defined in this section. tail optional services charges.
TABLE 1—SHUTTLE LOAD FACTORS, CHARGE FACTORS, AND NOMINAL CAPACITIES FOR DEDICATED PALLETS
Load factor Charge factor Nominal payload capacity, kg Number of pallets With Igloo FMDM con- With Igloo FMDM con- FMDM con- figuration figuration With Igloo figuration
1 ...... 0.228 0.189 0.305 0.252 2,325 2,950 2 ...... 0.392 NA 0.523 NA 4,470 NA 3-pallet train 1 ...... 0.556 NA 0.742 NA 4,435 NA 2+1 configuration ...... 0.594 NA 0.792 NA 7,750 NA 1 Three pallets requiring the ‘‘1+1+1’’ configuration shall be flown on a dedicated flight basis [See § 1214.804(a)].
(2) Total reimbursement. The cus- The computed charge factor for dedi- tomer’s total reimbursement is as de- cated FMDM/MPESS flights is defined fined in § 1214.804(f)(3). as: (e) Dedicated FMDM/MPESS flight (1- day mission)—(1) Shuttle charge factor.
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this payload weight capability. Pay- Shuttle Load Factor load weight in excess of 2,583 kg is sub- 0.75 ject to NASA approval and may entail optional service charges. (2) Shuttle load factor. (i) The Shuttle load factor is defined as the maximum (2) Total reimbursement. The cus- of: tomer’s total reimbursement is as de- fined in § 1214.804(g)(3). L W + 767 (g) Shared elements (7-day mission)—(1) CCor Spacelab load fractions and Shuttle load 18., 29 29 478 factors—(i) Pallet. Spacelab load frac- tion is the greater of: (ii) The minimum value of LC is based on the element length, plus 3 clearances, and is 1.18 m. WC Payload volume, m (3) Total reimbursement. The cus- or tomer’s total reimbursement is as de- 2, 583 15 fined in § 1214.804(f)(3). Shuttle load factor is the greatest of: (f) Complete pallets (7-day mission). (1) 3 The Shuttle load factor and charge fac- WC Payload volume, m tor for a complete pallet are 0.198 and or 0.228, respectively, and its payload 13, 045 76 weight capability is 2,583 kg. Subject to (ii) Pressurized module. Spacelab load other STS or Spacelab structural lim- fraction and Shuttle load factor are its, customers are entitled to utilize identical and are the greater of:
W 2× ( Experiment volume) + Storage volume, m3 C or 4, 319 40
(2) Shuttle charge factors and element If the Shuttle load factor is— The Shuttle charge factor charge factors for pressurized modules. shall be— Shuttle charge factors and element 0.00375 to 0.75 ...... Shuttle load factor divided by charge factors are identical and are de- 0.75. fined as follows: Greater than 0.75 ...... 1.0.
The element charge factor (5) Total reimbursement. (i) The cus- If the Spacelab load fraction and Shuttle charge factor (and Shuttle load factor) is— shall be— tomer’s total reimbursement is as de- fined in § 1214.804(h)(3). Less than 0.00435 ...... 005. (ii) If a customer contracts for por- 0.00435 to 0.87 Spacelab load fraction di- vided by 0.87. tions of more than one element, the Greater than 0.87 ...... 1.0. charges for the use of the elements shall apply individually to each ele- (3) Element charge factors for shared ment used. pallets. (6) Experiment volume in the pres- surized module is defined to be the sum If the Spacelab load fraction The element charge factor is— shall be— of the customer’s payload volume in racks and in the center aisle. Less than 0.0189 ...... 0.0218. (i) Rack volume is defined relative to 0.0189 to 0.87 ...... Spacelab load fraction di- basic Air Transportation Rack (ATR) vided by 0.87. Greater than 0.87 ...... 1.0. configurations. The customer’s rack volume shall be defined as the volume (4) Shuttle charge factors for shared of one or more rectangular pallets. parallelepipeds (rectangular-sided box) which totally enclosed the customer’s The Shuttle charge factor payload. Width dimensions shall be ei- If the Shuttle load factor is— shall be— ther 45.1 or 94.0 centimeters. Height di- Less than 0.00375 ...... 0.005. mensions shall be integral multiples of
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4.45 centimeters. Depth dimensions space-available basis in a NASA-sup- shall be 61.2 or 40.2 centimeters. plied standard cylindrical container (ii) Center aisle space volume is de- under the provisions of this subpart. fined as the volume of a rectangular (b) Who is a SSCP participant? A SSCP parallelepiped which totally encloses participant is any individual or entity the customer’s payload. No edge of the that meets the following criteria: parallelepiped shall be less than 30 cen- (1) Submits a letter requesting a timeters in length. SSCP flight opportunity (for an au- (7) Storage volume in the pressurized thorized representative of NASA, this module is defined as the volume of one is considered a ‘‘Letter of Intent’’) and or more rectangular parallelepipeds en- includes a brief description of the pro- closing the customer’s stowed payload. posed payload to the Shuttle Small No edge of the parallepiped(s) shall be Payload Projects Office (SSPPO), God- less than 30 centimeters in length. dard Space Flight Center, Wallops (8) Volume of the customer’s pallet- Flight Facility, National Aeronautics mounted payload is defined as the vol- and Space Administration, Wallops Is- ume of a rectangular parallelepiped en- land, VA 23337. closing the pallet payload and cus- (2) Any individual, entity or U.S. tomer-dictated mounting hardware. No Government agency (other than edge of the parallelepiped shall be less NASA), shall also submit an earnest than 30 centimeters in length. money deposit of $500 to pursue a SSCP flight opportunity. Subpart 1214.9—Small Self- (3) The party submitting the $500 ear- Contained Payloads (SSCPs) nest money deposit need not be the en- tity providing the payload. The party entering into the Launch Services AUTHORITY: 42 U.S.C. 2473 and 2475. Agreement (LSA) is responsible for SOURCE: 66 FR 37411, July 18, 2001, unless payment of standard and optional serv- otherwise noted. ice fees agreed upon in the signed LSA. (4) The party signing the LSA may § 1214.900 What does this subpart enter into a joint venture or other ar- cover? rangement (sponsorship) with one or This subpart sets forth the rules on more parties to fly the payload in one Space Shuttle services that are pro- NASA container. All participants in- vided by NASA to participants in the volved in the project shall be identified Small Self-Contained Payloads in the signed LSA. (SSCP’s) Program. This subpart also (c) What are payload classes? NASA includes NASA’s policy for the use of determines the class for each payload SSCP’s by domestic educational insti- based on the type of institution or or- tutions. NASA’s policy on SSCP’s is to ganization providing or supplying the stimulate and encourage the use of payload, as defined in the LSA. Classes space by a wide range of participants, of payloads are defined as follows: particularly those associated with edu- (1) Class I payloads are payloads flown cation. for scientific educational purposes by a recognized domestic educational insti- § 1214.901 What is the relationship of tution. For a payload to qualify for this subpart with subparts 1214.1 flight as a Class I, ‘‘domestic edu- and 1214.2? cational institution payload’’: This subpart governs the provision of (i) The applying institution must be Space Shuttle services for SSCP’s; sub- a U.S. public or private nonprofit (Sec- parts 1214.1 and 1214.2 are not applica- tion 501(c)(3) of the Internal Revenue ble. Code (26 U.S.C.)) educational institu- tion, which may include universities, § 1214.902 Definitions. colleges, community colleges, elemen- (a) What is a SSCP? SSCP’s, otherwise tary or secondary schools, or univer- known as Get Away Specials (GAS), sity-affiliated education research foun- are small (200 pounds or less and 5 dations. Entities other than Section cubic feet or less) scientific research 501(c)(3) domestic education institu- and development payloads flown on a tions may sponsor a Class I, domestic
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education payload, providing the edu- conditions for flight of an SSCP pay- cational institution meets the criteria load, including the price for standard established for domestic educational and optional services. For more infor- institutions in this policy. mation on contents of the LSA, refer (ii) The payload must be certified, by to § 1214.903. an authorized official of the institu- (g) What is a PAR? A Payload Accom- tion, to be part of an educational or re- modations Requirements (PAR) docu- search project that is principally for ment is the technical agreement, be- the benefit of students, rather than tween NASA’s SSCP Program and the non-students, such as faculty, research parties designated in the LSA, which staff or the sponsor. The certification defines the unique information re- shall include a brief explanation of the quired for the preparation, flight and educational aspects of the payload disposition of a GAS payload. project and how it principally benefits (h) What is a PIP? A Payload Integra- students. tion Plan (PIP) defines the technical (iii) Payload experiments should in- agreement between NASA’s SSCP Pro- volve students in all phases of the gram and the Space Shuttle Program project, including concept develop- Office at Johnson Space Center (JSC) ment, initial planning, design, conduct, and defines any Shuttle related op- and analysis of the results of the ex- tional service requirements. periments. (i) What is the ‘‘queue’’? (1) The Flight (2) Class II payloads are payloads Assignment Queue is the queue of pay- flown for the U.S. Government. loads eligible to be manifested on a (3) Class III payloads are payloads shuttle flight. To be eligible, the pay- flown for other U.S. commercial and load must meet the following criteria: private entities. (i) A LSA has been signed within the (4) Class IV payloads are payloads requirements outlined in § 1214.903. flown for international entities, wheth- er they be educational institutions, (ii) The requirements of the signed government or industry. Class IV pay- PAR and PIP have been met. loads are subject to the same existing (iii) NASA has assessed the technical U.S. laws and regulations as are domes- readiness of the payload and a Phase II tic payloads. Class IV payloads are sub- Safety Data Package equivalent has ject to review and approval by the been submitted, in accordance with the NASA Office of External Relations. NSTS 1700.7, Safety Policy and Re- Only payloads whose use is exclusively quirements for Payloads Using the STS for peaceful purposes are eligible for and the NSTS 13830, Payload Safety flight through the GAS Program. Review and Data Submittal Require- (d) What is an earnest money deposit? ment. An earnest money deposit is a non-re- (2) Once a payload has met these cri- fundable $500 down payment required teria, it enters the queue with its posi- for participation in the SSCP Program. tion based on the EMR date. (e) Why is the earnest money receipt (j) What is the ‘‘Two-in-Twenty’’ rule? (EMR) date important? The earnest The SSCP Program utilizes a flight as- money receipt (EMR) date is the date signment process in which no entity NASA receives the earnest money de- may receive more than two out of any posit from a non-NASA participant or twenty consecutive payload opportuni- a ‘‘Letter of Intent’’ from a NASA par- ties, as long as there are other pay- ticipant. Upon receipt of the earnest loads available for assignment. money or ‘‘Letter of Intent’’, a payload (k) What is a cancellation? When the identification number is assigned. The party signing the LSA fails to meet its EMR date determines the payload’s po- obligations under the LSA, with no sition in the flight assignment queue. undue administrative delay on the part To retain the EMR date, the terms de- of NASA, the payload will be removed fined in the Launch Services Agree- from participation in the SSCP Pro- ment (LSA) must be met. gram with no refund of monies paid. (f) What is a LSA? A Launch Services (l) What are standard services? Stand- Agreement (LSA) is a binding contract ard services provided to all SSCP’s are that describes the governing terms and listed in § 1214.910.
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(m) What are optional services? Op- $500 earnest money deposit will be for- tional services are additional services feited and the payload will be can- requested by the SSCP participant and celled. provided, at NASA’s option. NASA may also determine the need for a specific § 1214.904 What are the conditions of optional service for a payload. Optional use for a SSCP? services require an additional cost to (a) The payload must be flown in a the participant and are identified and NASA-supplied standard container. agreed upon in the LSA (refer to (b) The payload shall be used only to § 1214.911). conduct experiments of a scientific re- (n) What is an undue administrative search and development nature or sci- delay on the part of NASA? An undue ad- entific education purposes. ministrative delay is a delay caused by (c) All participants shall be required NASA’s failure to perform its functions to furnish NASA with sufficient infor- under the LSA in a reasonable time, as mation to ensure Shuttle safety. NASA determined by NASA. Delays caused by shall reserve the right to inspect and/or the parties’ inability to agree to the test all materials, components, and LSA terms and conditions are specifi- elements of the payload at any time, cally excluded from this definition. including sealed and commercially sup- (o) What is a ‘‘Letter of Intent’’? A plied payload elements. ‘‘Letter of Intent’’ is written by an au- (d) The party signing the LSA shall thorized NASA representative request- be required to furnish NASA with suffi- ing participation in the SSCP Pro- cient information to verify peaceful gram. For more information on the purposes and NASA’s and the U.S. Gov- ‘‘Letter of Intent’’, refer to § 1214.904(e). ernment’s continued compliance with law and the Government’s obligations. § 1214.903 What are the requirements (e) NASA participants shall submit a concerning Launch Services Agree- ‘‘Letter of Intent’’, signed by an au- ments (LSA)? thorized NASA representative, to ini- (a) Once the Earnest Money Deposit tiate the process of arranging for a is received, the LSA shall designate: SSCP flight. A NASA Center is re- (1) All participants involved in the quired to seek sponsorship from a project; NASA Headquarters Program Office, (2) The class of the payload; identify that sponsoring code and ob- (3) The general nature and purpose of tain their concurrence in the ‘‘Letter the payload; of Intent’’. (4) The size and weight of the pay- (f) The NASA Administrator reserves load; the right to determine the accept- (5) The price for standard services to ability of any SSCP participant and be provided; any payload, on a case-by-case basis. (6) Any restrictions on the type of The NASA Administrator may reject Shuttle flight appropriate for flying any payload, which, in his/her opinion, the payload; would be contrary to the educational (7) The payment schedule and the mission of this program or NASA’s terms of cancellation; mission. (8) The optional services to be pro- (g) To assure humane treatment, the vided by NASA and the price of those Office of Biological and Physical Re- services; and search at NASA Headquarters will re- (9) The means of compliance with the view all experiments using live ani- provisions of § 1214.908 regarding sig- mals. nificant impact on public health, safe- ty or welfare. § 1214.905 What is NASA’s reimburse- (b) A separate LSA shall be signed for ment policy? each payload. (a) Will I get my earnest money back if (c) The LSA must be signed within 12 I cancel? No, the earnest money is non- months from the date of the letter for- refundable, but is applied to the stand- warding the LSA to the SSCP partici- ard flight price if the LSA is signed pants for signature. If the LSA is not within the required time. If the LSA is signed within the required time, the not signed within the required time,
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the $500 earnest money will be forfeited flight but shall retain its position in and the payload will be cancelled. the flight assignment queue until a (b) How will I reimburse NASA for serv- suitable flight becomes available. ices? (2) If the ‘‘Two-in-Twenty’’ rule ap- (1) NASA shall be reimbursed an plies to a payload, that payload shall amount, which is the sum of the price not be assigned to the flight, but shall for standard services and the price for retain its position in the flight assign- optional services. ment queue (refer to § 1214.902 (k)). (2) All standard services shall be (d) Once a payload has been given a charged on a fixed-price basis. Prices tentative flight assignment, it shall are based on the payload classification, not be removed from a flight as a re- weight and volume. sult of another SSCP participants’ sub- (3) NASA shall be reimbursed in ac- sequent signing of a LSA. cordance with the reimbursement (e) NASA may reschedule a payload schedule specified in the signed LSA. tentatively assigned to a flight as a re- (c) When there is no undue adminis- sult of other Shuttle operational con- trative delay on the part of NASA, and siderations. Should this be necessary, the progress payments are not reim- rescheduling shall be done on a last-on, bursed to NASA within the allocated first-off basis. time provided in the LSA, all monies (f) Payloads being re-flown pursuant paid to date will be forfeited and the to § 1214.907 and payloads rescheduled payload will be cancelled. by NASA after tentative flight assign- ment shall have flight assignment pri- § 1214.906 When will my payload be ority, in that order, on subsequent scheduled to fly? flights over all other payloads includ- (a) NASA shall not be obligated to ing those already assigned to other perform any standard or optional serv- flights. ices, including flight scheduling and (g) NASA shall determine the date placement of the payload on the STS, for payload delivery to the launch site. if the terms of the signed LSA have not Payment of launch fees, as defined in been met. the signed LSA, is required before the (b) How does the flight queue work? payload delivery to launch site. Tentative flight assignments of pay- loads shall be made on a rotation basis § 1214.907 Will NASA re-fly my payload using the rotation sequence of Class I, if something goes wrong (and it’s II, I, III, I, IV, I, II, etc. (refer to not my fault)? § 1214.902(d)). Rotation is maintained in (a) NASA will provide a one-time re- a continuing sequence from mission to flight of a payload at no additional mission. Payloads must meet all other charge for SSCP standard services, if mission requirements to be assigned to all the following occur: the available space. If, at the time of a (1) Standard SSCP systems are not tentative flight assignment, there are within nominal specifications, at the no payloads in the current class of the time of first turn-on of the payload in continuing rotation that meet all the orbit, through no fault of the SSCP mission requirements, payloads of the participant (including all its related next class in the rotation sequence entities). shall be considered until a payload (2) The payload’s mission objectives meeting the requirements is found are not achieved solely as a direct re- available. sult of the conditions or events de- (c) Are there reasons my payload would scribed in paragraph (a)(1) of this sec- not be assigned to an available flight? tion; and Payloads shall be assigned on the basis (3) The payload returns safely to of their positions in the flight assign- Earth or a second (essentially iden- ment queue within each class with the tical) payload is provided for re-flight. following exceptions: (b) A re-flight shall be provided with (1) If the available flight does not a dollar credit towards future optional meet the payload’s requirements as de- SSCP services, or the party signing the fined in their signed PAR and LSA, the LSA shall be refunded, for any unused payload shall not be assigned to the optional SSCP services purchased and
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paid for on the Shuttle flight which en- § 1214.910 What are the standard serv- titles the payload to a re-flight. ices NASA provides for my payload? (c) The two-in-twenty rule is not ap- The following are standard services plicable to the re-flight of the payloads provided for SSCP’s: described in this section. (a) Flight in a NASA flight-qualified § 1214.908 Who gets rights to patents standard container. resulting from the payload or to the (b) Use of a NASA shipping con- scientific/research data generated? tainer. (a) NASA will not acquire rights to (c) One ‘‘on’’ and one ‘‘off’’ signal inventions, patents, or proprietary provided on each of three NASA-pro- data privately funded by SSCP partici- vided inputs to the container. pants, or arising out of activities for (d) Choice of one standard NASA con- which NASA has been reimbursed tainer atmosphere (vacuum, breathing under the policies set forth in this sub- air, inert gas, inert gas vented in part. However, in certain instances in space). which the NASA Administrator has de- (e) Limited consultation on space termined that activities may have a systems provided by NASA at des- significant impact on the public ignated NASA centers. health, safety, or welfare, NASA may (f) Standard NASA payload safety re- obtain assurances from the partici- views at a designated NASA center. pants that the results will be made (Safety shall not be compromised. Un- available to the public on terms and usually complex safety reviews or test- conditions reasonable under the cir- ing/analysis requires additional fund- cumstances. ing as an optional service.) (b) NASA, unless otherwise agreed, (g) Pre-integration storage of the will require all scientific or research payload at Kennedy Space Center data to be made publicly available (KSC). without restriction of disclosure and (h) Limited access to the payload use no later than one year after the prior to integration. Shuttle mission on which the payload (i) Installation of the payload in the was flown. Possible exceptions are: container and removal of the payload (1) Those results comprising an in- from the container after flight. vention for which patent protection (j) Installation of the container in has been or will in a reasonable time be the Shuttle and removal of the con- sought; or tainer from the Shuttle after flight. (2) Data disclosing an invention prior (k) KSC launch. to applying for patent protection thereon. (l) On-orbit payload operational time consistent with the primary Space § 1214.909 What if my payload is dam- Shuttle mission. aged? (m) Brief post-flight documentation The flight price does not include a of the Space Shuttle mission profile contingency or premium for damage and payload operational times. that may be caused to a payload (n) Return of payload to the partici- through the fault of the U.S. Govern- pant at the launch site. ment, its contractors, or other Space Shuttle users. The U.S. Government § 1214.911 Can I buy optional services for my payload from NASA? assumes no risk for damage or loss to the payload. The participants in the (a) Optional services are available, SSCP Program assume this risk and and the price, terms, and conditions for are free to purchase insurance protec- such services shall be negotiated on a tion against damage or loss to their case-by-case basis and agreed upon in payload. In the event the party signing the LSA. the LSA permits a third party to use (b) Optional services could result in its SSCP flight opportunity, this third substantial additional charges and in- party will be required to agree to the creased liability insurance require- terms of the cross-waiver of liability in ments and/or affect NASA’s ability to the launch services agreement. manifest the payload.
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(c) NASA may, at its sole discretion, sions of this subpart apply to those approve or deny the provision of re- participants. quested optional services. (2) Participants with a signed LSA who choose not to sign a new LSA will § 1214.912 Are there special provisions retain their Earnest Money Receipt for SSCP participants who already have a signed LSA governed by reg- date and their payload classification as ulations in effect before April 23, defined in their original signed LSA, 14 1999? CFR 1214.9 and 1214.10 in effect before (a) Where there are participants with April 23, 1999 and shall apply to their a signed LSA governed by the provi- payload’s participation in the SSCP sions of 14 CFR 1214.9 and 1214.10 in ef- program. fect before April 23, 1999 (and contained (3) Participants who do not have a in the 14 CFR, Part 1200 to end, edition signed LSA or have not met the terms revised as of January 1, 1999), and there of their signed LSA will be required to will be new participants with a signed either sign a new LSA or their payload LSA governed by the provisions of this will be cancelled and all monies paid subpart 14 CFR 1214.9, the following will be forfeited. provisions apply to the manifesting of (b) The primary differences between payloads: the provisions in effect before April 23, (1) Participants with a signed LSA 1999 and the provisions in this subpart may elect to sign a new LSA, and re- are the payload classification and rota- tain their Earnest Money Receipt date tion sequence for manifesting pay- as defined in their original signed LSA. loads, as set forth in the following Once the new LSA is signed, the provi- table:
If you remain under the old If and when you sign a new The previous rotation se- signed LSA, your payload LSA, your payload class will The new rotation sequence: quence: class will be: be:
Class II, Class I, Class II, Class I—Domestic Education Class I—Domestic Education Class I, Class II, Class I, Class III, Class II, Class I, Class II—Other U.S. and Class II—U.S. Government Class III, Class I, Class IV, etc. International Class III—Other U.S. Class I, etc. Class III–U.S. Government Class IV—International
(c) Payloads will be offered tentative §§ 1214.1000–1214.1004 [Reserved] flight opportunities for each mission in the following sequence until the flight Subpart 1214.11—NASA Astronaut manifest is fulfilled: Candidate Recruitment and (1) As defined in the provisions of 14 CFR 1214.9 and 1214.10 in effect before Selection Program April 23, 1999, payloads with signed LSA’s will be tentatively manifested SOURCE: 54 FR 37940, Sept. 14, 1989, unless utilizing the class rotation of II, I, II, otherwise noted. III until this queue is exhausted; (2) If the previous queue is exhausted § 1214.1100 Scope. and additional payloads are needed to It is NASA policy to maintain an in- fulfill the flight manifest, the new tegrated Astronaut Corps. This subpart class rotation of I, II, I, III, I, IV, as de- 1214.11 sets forth NASA procedures and fined in this subpart 1214.9, will then be assigns responsibilities for recruitment used to tentatively manifest payloads and selection of astronaut candidates. with signed LSA’s until the manifest is It applies to all pilot and mission spe- fulfilled. cialist astronaut candidate selection (3) NASA participants are not re- activities conducted by the National quired to sign a LSA and are consid- Aeronautics and Space Administration. ered a government class payload in both rotation sequences as defined in § 1214.1101 Announcement. paragraphs (c)(1) and (2) of this section. (a) Astronaut candidate opportuni- ties Will be announced nationwide by Subpart 1214.10 [Reserved] the Johnson Space Center (JSC) and 142
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publicized periodically unless specifi- process to assure adherence to applica- cally canceled by NASA. ble rules and regulations. (b) Civilian applicants may apply at (e) Those rated ‘‘Highly Qualified’’ any time. may be required to obtain a Class I or (c) JSC is responsible for imple- Class II physical. Only medically quali- menting and refining the astronaut fied applicants will be referred for final candidate application process to mini- evaluation and possible interview and mize the effort required to file and/or selection. Those who are not medically update applications. qualified will be so informed and will (d) Military personnel on active duty not be eligible for further consider- must apply through and be nominated ation. by the military service with which they are affiliated. Military nominees § 1214.1103 Application cutoff date. will not be part of the continuing pool of applicants. The military services (a) The JSC Director, or designee, is will convene their internal selection responsible for identifying the need for boards and provide nominees to NASA. additional astronaut candidates and for The military nominees will be evalu- obtaining necessary approval to make ated by NASA and the military serv- selections. ices will be notified promptly of those (b) Once such approval has been ob- nominees who are finalists. tained, the JSC Director will establish (e) The Assistant Administrator for a cutoff date for the acceptance of ap- Equal Opportunity Programs, NASA plications. Applications received after Headquarters, will provide assistance the date of the request will be main- in the recruiting process. tained and processed for the next selec- tion. The cutoff date will normally § 1214.1102 Evaluation of applications. occur every 2 years on or about July 1. (a) All incoming applications will be reviewed by the JSC Human Resources § 1214.1104 Evaluation and ranking of Office to determine whether or not ap- highly qualified candidates. plicants meet basic qualifications. (a) The JSC Director will appoint a Those not meeting the basic qualifica- tion requirements will be so notified in selection board consisting of discipline writing and will not be eligible for fur- experts and such other persons as ap- ther consideration. Those meeting the propriate to further evaluate and rank basic qualification requirements will the ‘‘Highly Qualified’’ applicants. have their applications retained for re- (b) Efforts will be made to assure view by a designated rating panel. that minorities and females are in- (b) The JSC Director, or designee, cluded on this board. will appoint the rating panel composed (c) The ‘‘Highly Qualified’’ applicants of discipline experts who will review who are determined to be the ‘‘Best and rate qualified applicants as ‘‘Quali- Qualified’’ will be invited to the John- fied’’ or ‘‘Highly Qualified.’’ son Space Center for an interview, ori- (c) Efforts will be made to assure entation, and detailed medical evalua- that minorities and females are in- tion. cluded among these discipline experts. (d) Background investigations will (d) The criteria for each level will be normally be initiated on those appli- developed by JSC and will serve as the cants rated ‘‘Best Qualified.’’ basis for the ratings. The evaluation will be based on the quality of the indi- § 1214.1105 Final ranking. vidual’s academic background and ex- perience and the extent to which the Final rankings will be based on a individual’s academic achievements, combination of the selection board’s experience, and special qualifications initial evaluations and the results of relate to the astronaut candidate posi- the interview process. Veteran’s pref- tion. Reference information on those erence will be included in this final rated ‘‘Highly Qualified’’ will normally ranking in accordance with applicable be obtained. The JSC Director of regulations. Human Resources will monitor this
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§ 1214.1106 Selection of astronaut can- § 1214.1703 Definitions. didates. (a) Space flight participants. All per- The selection board will recommend sons whose presence aboard a Space to the JSC Director its selection of Shuttle flight is authorized in accord- candidates from among those finalists ance with this regulation. who are medically qualified. The num- (b) Committee. The Space Flight Par- ber and names of candidates selected to ticipant Evaluation Committee, estab- be added to the corps will be approved, lished in NASA Headquarters for the as required, by JSC/ NASA manage- purpose of directing and administering ment and the Associate Administrator the program for space flight partici- for Space Flight, prior to notifying the pants. The Committee consists of the individuals or the public. following NASA Headquarters officials: Associate Deputy Administrator § 1214.1107 Notification. (Chair), General Counsel, Associate Ad- Selectees and the appropriate mili- ministrator for External Relations, As- tary services will be notified and the sociate Administrator for Manage- public informed. All unsuccessful ment, Associate Administrator for qualified applicants will be notified of Space Flight, Associate Administrator nonselection and given the opportunity for Public Affairs and Assistant Ad- to update their applications and indi- ministrator for Equal Opportunity Pro- cate their desire to receive consider- grams. ation for future selections. [56 FR 47148, Sept. 18, 1991] Subparts 1214.12–1214.16 § 1214.1704 Policy. [Reserved] (a) NASA policy is to provide Space Shuttle flight opportunities to persons Subpart 1214.17—Space Flight (individuals outside the professional categories of NASA astronauts and Participants payload specialists) whose presence on- board the Space Shuttle is not required AUTHORITY: 42 U.S.C. 2473 and the National for operation of payloads or for other Aeronautics and Space Act of 1958, as amend- essential mission activities, but is de- ed. termined by the Administrator of SOURCE: 49 FR 17737, Apr. 25, 1984, unless NASA to contribute to other approved otherwise noted. NASA objectives or to be in the na- tional interest. However, flight oppor- § 1214.1700 Scope. tunities for space flight participants This subpart establishes NASA policy will not be available in the near term. and selection procedures for accommo- NASA will assess Shuttle operations dation of space flight participants and mission and payload requirements aboard flights of the Space Shuttle. on an annual basis to determine when it can begin to allocate and assign [56 FR 47148, Sept. 18, 1991] space flight opportunities for future space flight participants, consistent § 1214.1701 Applicability. with safety and mission considerations. This subpart applies to NASA Head- When NASA determines that a flight quarters and field installations. opportunity is available for a space flight participant, first priority will be § 1214.1702 Relation to other part 1214 given to a ‘‘teacher in space,’’ in fulfill- material. ment of space education plans. Except as specifically noted, all regu- (b) To be considered for selection as latory provisions of Space Shuttle poli- space flight participants, applicants cies also apply to space flight partici- must: pants. In the event of any inconsist- (1) Be free of medical conditions encies in the policies, the regulatory which would either impair the appli- policies established for crew members cant’s ability to participate in, or be will govern with respect to space flight aggravated by, space flight, as deter- participants. mined by NASA physicians.
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(2) Be willing to undergo appropriate cants will be judged, and administra- background investigation. tive information such as to whom ap- (3) Be willing to undergo necessary plications should be directed, the open- training. ing and closing dates for applications, (4) Meet additional requirements that and any other information or matters may be stated in Announcements of determined to be pertinent to the pro- Opportunity (AO) soliciting applica- gram in general and/or the specific tions for particular spaceflights. flight. (c) Persons accepted as space flight (b) All applications received in re- participant candidates will enter into sponse to the AO will be screened to an agreement with NASA for the pe- eliminate those applicants not meeting riod of training, flight, debriefing, and the basic qualification requirements. post-flight activities. The agreements (c) Remaining applications will be will cover such pertinent matters as, forwarded to the outside review panel but not limited to, responsibilities and established for the announcement in authorities of the respective parties, question and composed of members ap- compensation where appropriate, in- propriate to the specific purposes stat- surance, and liability. ed in that announcement. The review (d) Typically the selection of space panel will evaluate all the applications flight participants will be based on and recommend to NASA a list of those their comparative abilities to fulfill applicants who appear most likely to the objectives and purposes stated in meet the purposes. Announcement of Opportunities (AO’s) (d) NASA selection of applicants covering one or more Space Shuttle qualified to undergo necessary training missions in which their participation is and be certified for flight will be made desired. A NASA-designated outside re- by the Committee, based upon criteria view panel will evaluate the qualifica- that include: tions of applicants to select those who (1) Recommendation of the outside most appropriately meet those pur- review panel. poses of participant flight associated (2) Ability to undergo successfully with the particular AO. NASA will re- the necessary period of training to en- tain the authority to make final selec- sure adaptation to flight experience tion of space flight participants for and mission activities. flight training and eventual flight from (3) Ability to pass medical and psy- among those applicants rated most chological examinations to minimize highly in the review process. NASA the possibility of hazard to persons or will encourage the participation of a missions. wide and diverse array of participants, (4) Adaptability to living and work- including women and minorities. ing in space. [49 FR 17737, Apr. 25, 1984, as amended at 56 (5) Willingness to enter into an agree- FR 47148, Sept. 18, 1991] ment with NASA covering pre-flight, flight, and post-flight activities, with § 1214.1705 Selection of space flight individual rights and responsibilities participants. set forth in that agreeement. (a) The agency will publicly an- (6) Satisfactory completion of a nounce each space flight participant background investigation conducted to opportunity through appropriate NASA’s standards as adjudicated by means, including notice in the FED- the NASA Security Officer. ERAL REGISTER and press releases. Each (e) The Committee will submit a list such Announcement of Opportunity of those candidates suitable for selec- will include a listing of basic qualifica- tion to the NASA Administrator, who tion requirements to be met (including will select the requisite number to un- those of § 1214.1704(b)), a statement of dergo the necessary training to prepare the specific National Aeronautics and them for space flight. Space Act purposes to which this op- (f) Those candidates who successfully portunity is directed, what information complete the training will become is required of applicants to dem- qualified as space flight participants. onstrate their ability to fulfill those Flight assignments will be made by the purposes, the criteria on which appli- Administrator from this qualified
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group. NASA reserves the right to so- AUTHORITY: Sec. 203, Pub. L. 85–568, 72 Stat. licit additional space flight participant 429, as amended; 42 U.S.C. 2473. applications, if necessary. SOURCE: 48 FR 9845, Mar. 9, 1983, unless oth- (g) Authority to officially designate erwise noted. candidates for training, certify can- didates as qualified space flight par- Subpart 1215.1—Use and Reim- ticipants, and assign space flight par- bursement Policy for Non-U.S. ticipants to specific Space Shuttle Government Users flights is reserved to the Adminis- trator. § 1215.100 General. § 1214.1706 Program management. The TDRSS represents a major in- vestment by the U.S. Government with The Associate Administrator for the primary goal of providing improved Space Flight is responsible for program tracking and data acquisition services management under the direction of the to spacecraft in low earth orbit or to Committee chairperson. mobile terrestrial users such as air- § 1214.1707 Media and public inquiries. craft or balloons. It is the objective of NASA to operate as efficiently as pos- (a) The Associate Administrator for sible with the TDRSS. This is to the External Relations will respond to all mutual benefit of all users. Such user inquiries directed to the agency con- consideration will permit NASA and cerning space flight participants and non-NASA service to be delivered with- the process by which they are selected. out compromising the mission objec- (b) The names of all applicants will tives of any individual user. To encour- be withheld from public release until age users toward achieving efficient the space flight participants are se- TDRSS usage, this reimbursement pol- lected by the Administrator. icy has been established to purposely influence users to operate with TDRSS PART 1215—TRACKING AND DATA in the most efficient and orderly man- RELAY SATELLITE SYSTEM (TDRSS) ner possible. Additionally, the reim- bursement policy is designed to comply Subpart 1215.1—Use and Reimbursement with the Bureau of the Budget Circular Policy for Non-U.S. Government Users A–25 on User Charges, dated September 23, 1959, which requires that a reason- Sec. 1215.100 General. able charge should be made to each 1215.101 Scope. identifiable recipient for a measurable 1215.102 Definitions. unit or amount of Government service 1215.103 Services. or property from which a special ben- 1215.104 Apportionment and assignment of efit is derived. services. 1215.105 Delivery of user data. [56 FR 28048, June 19, 1991] 1215.106 User command and tracking data. 1215.107 User data security and frequency § 1215.101 Scope. authorizations. This subpart sets forth the policy 1215.108 Defining user service requirements. governing TDRSS services provided to 1215.109 Scheduling user service. non-U.S. government users and the re- 1215.110 User cancellation of all services. 1215.111 User postponement of service. imbursement for rendering such serv- 1215.112 User/NASA contractual arrange- ices. It excludes TDRSS services pro- ment. vided as standard or optional services 1215.113 User charges. to Space Transportation System (STS) 1215.114 Service rates. users under existing policy for Shuttle 1215.115 Payment and billing. and Spacelab (14 CFR subparts 1214.1, APPENDIX A TO PART 1215—ESTIMATED SERV- 1214.2, and 1214.8); i.e., user command ICE RATES IN 1997 DOLLARS FOR TDRSS and telemetry support, which utilizes STANDARD SERVICES (BASED ON NASA ES- and is a part of the Shuttle or Spacelab CALATION ESTIMATE) APPENDIX B TO PART 1215—FACTORS AFFECT- communications system, is a Shuttle/ ING STANDARD CHARGES Spacelab service. Cooperative missions APPENDIX C TO PART 1215—TYPICAL USER AC- are also not under the purview of this TIVITY TIMELINE subpart. The arrangements for TDRSS
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services for cooperative missions will providing to low-earth orbital user be covered in a Memorandum of Under- spacecraft or other terrestrial users. standing (MOU), as a consequence of (1) Tracking services. negotiations between NASA and the (2) Data acquisition service. other concerned party. Any MOU which (3) Command transmission service. includes provision for any TDRSS serv- (4) Emergency line outage recording ice will require signatory concurrence in the event of a communications fail- by the Associate Administrator for ure between White Sands, Goddard Space Operations prior to dedicating Space Flight Center (GSFC), and John- Office of Space Operations resources son Space Center (JSC). for support of a cooperative mission. (5) A weekly user spacecraft orbit de- [56 FR 28048, June 19, 1991] termination in NASA standard orbital elements as determined by NASA for § 1215.102 Definitions. TDRSS target acquisition purposes. (a) User. Any non-U.S. Government (6) Delivery of user data at the NASA representative or entity who contracts Ground Terminal (NGT) located at with NASA to use TDRSS services. White Sands. (b) TDRSS. The Tracking and Data (7) Pre-launch support for data flow Relay Satellite System including test and related activities which re- Tracking and Data Relay Satellites quire use of a TDRS. (TDRS), the White Sands Ground Ter- (8) Pre-launch support planning and minal (WSGT), and the necessary documentation. TDRSS operational areas, interface de- (9) Scheduling user services via vices and NASA communication cir- cuits to unify the above into a func- TDRSS. tioning system. It specifically excludes (10) Access to tracking data to enable the user ground system/TDRSS inter- users to perform orbit determination face. at their option. (c) Bit stream. The digital electronic (b) Mission unique services. Other signals acquired by TDRSS from the tracking and data services desired by user craft or the user generated input the user beyond the standard service commands for transmission to the user and the charges therefor, will be identi- craft. fied and assessed on a case-by-case (d) Flexible support. Support requests basis. which permit NASA, at its option, to schedule service at any time during the § 1215.104 Apportionment and assign- period of a single orbit of the user mis- ment of services. sion. Missions requiring multiple sup- No user may apportion, assign, or port periods during a single orbit may otherwise convey to any third party its be classified as constrained support. TDRSS service. Each user may obtain (e) Constrained support. Support re- service only through contractual quests which specify the exact times agreement with the Associate Adminis- NASA is to provide service, or condi- trator for Space Operations. tions of support which can be trans- lated into exact times for service, such [56 FR 28048, June 19, 1991] as sub-satellite positions, apogee/per- § 1215.105 Delivery of user data. igee position, etc., for which support is needed. (a) As a standard service, NASA will (f) Scheduling service period. One provide to the user its data from the scheduled contact utilizing a single TDRSS as determined by NASA in the TDRS whereby the user by requesting form of one or more digital or analog service is allotted a block of time for bit streams synchronized to associated operations between the user satellite clock streams at the NGT. and TDRSS. (b) User data handling requirements beyond the NGT interface will be pro- § 1215.103 Services. vided as a standard service to the user, (a) Standard services. These are serv- to the extent that the requirements do ices which the TDRSS is capable of not exceed NASA’s planned standard
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communications system. Any addi- (2) The user shall insure that a suffi- tional data transport or handling re- cient quantity of tracking data is re- quirements exceeding NASA’s capa- ceived at GSFC to permit the deter- bility will be dealt with as a mission- mination of the user satellite orbital unique service. elements. The charges for this service (c) No storage of the user data is pro- will be determined by using the on- vided in the standard service. NASA orbit service rates. will provide short-term temporary re- cording of data at White Sands, only in § 1215.107 User data security and fre- quency authorizations. event of a NASA Communications Net- work (NASCOM) link outage. (a) User data security is not provided (d) NASA will provide TDRSS serv- by the TDRSS. Responsibility for data ices on a ‘‘reasonable efforts’’ basis security resides solely with the user. and, accordingly, will not be liable for Users desiring data safeguards shall damages of any kind to the user or provide and operate, external to the third parties for any reason, including TDRSS, the necessary equipment or but not limited to failure to provide systems to accomplish data security. contracted-for services. The price for Any such user provisions must be com- TDRSS services does not include a con- patible with data flow through TDRSS tingency or premium for any potential and not interfere with other users. damages. The user will assume any (b) All radio frequency authoriza- risk of damages or obtain insurance to tions associated with operations pursu- protect against any risk. ant to this directive are the responsi- bility of the user. If appropriate, au- [48 FR 9845, Mar. 9, 1983, as amended at 56 FR thority(ies) must be obtained from the 28049, June 19, 1991] Federal Communications Commission (FCC) for operations consistent with § 1215.106 User command and tracking U.S. footnote 303 of the National Table data. of Frequency Allocations, FCC Rules (a) User command data may enter and Regulations, at 47 CFR 2.106. the TDRSS via the NASCOM interface [56 FR 28049, June 19, 1991] at one of three locations: (1) For Shuttle payloads which uti- § 1215.108 Defining user service re- lize the Shuttle commanding system, quirements. command data must enter the system Potential users should become famil- via the Johnson Space Center (JSC) iar with TDRSS capabilities and con- and is governed by the policies estab- straints, which are detailed in the lished for STS services (see § 1215.101). TDRSS User’s Guide (GSFC document, (2) For free flyers and other payloads, STDN No. 101.2), as early as possible. command data must enter the system This action allows the user to evaluate at the Goddard Space Flight Center the trade-offs available among various (GSFC) if it is to be a standard service. TDRSS services, spacecraft design, op- (3) The use of other command data erations planning, and other signifi- entry points [e.g., the NASA Ground cant mission parameters. When these Terminal (NGT) at White Sands, NM, user evaluations have been completed, or Johnson Space Center (JSC), for and the user desires to use TDRSS, the payloads using an independent direct user should initiate a request for link from TDRS to the user payload] is TDRSS service. considered to be a mission unique serv- (a) Initial requests for TDRSS service ice. from non-U.S. Government users (b) NASA is required to maintain the should be addressed to NASA Head- user satellite orbital elements to suffi- quarters, Code OX, Space Network Di- cient accuracy to permit the TDRS vision, Washington, DC 20546. Upon re- system to establish and maintain ac- view and preliminary acceptance of the quisition. This can be accomplished in service requirements by NASA Head- two ways: quarters, the appropriate areas of (1) The user can provide the orbital GSFC will be assigned to the project to elements in a NASA format to GSFC to produce the detailed requirements, meet TDRSS operational requirements. plans and documentation necessary for
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support of the mission. Changes to user (iii) Other payloads/spacecraft of in- requirements shall be made as far in terest to the United States. advance as possible and shall be sub- (iv) Other payloads/spacecraft mitted in writing to both NASA Head- launched by a NASA launch vehicle. quarters, Code OX, Space Network Di- (v) Other payloads/spacecraft. vision, and GSFC, Code 501, Greenbelt, (vi) Support of other launches. MD 20771. (3) Exceptions to these priorities may (b) Acceptance of user requests for be determined on a case-by-case basis TDRSS service is the sole prerogative with the NASA Administrator or his/ of NASA. Although TDRSS represents her designee as the priorities stated in a significant increase to current sup- paragraph (b)(2) of this section are in- port capabilities, service capacity is fi- dicative of general rather than specific nite, and service will be provided in ac- cases. cordance with operational priorities es- (4) Emergency service conditions are tablished by NASA. Request for serv- those requiring rapid response to ices within priority groups shall be ne- changing user service requirements. gotiated with non-NASA users on a Emergency service may be instituted first come, first service basis for inclu- under the following conditions: sion into the TDRSS mission model. (i) Circumstances which pose a threat [48 FR 9845, Mar. 9, 1983, as amended at 56 FR to the security of the United States. 28049, June 19, 1991] (ii) Circumstances which threaten human life. § 1215.109 Scheduling user service. (iii) Circumstances which threaten (a) User service shall be scheduled user mission loss. only by NASA. Scheduling refers to (iv) Other circumstances of such a that activity occurring after the user nature which make it necessary to pre- has been accepted and placed in the empt normally scheduled services. TDRSS mission model as specified in (5) At times, emergency service re- § 1215.108(b). See appendix C for a de- quirements will override normal sched- scription of a typical user activity ule priority. Under emergency service timeline. conditions, disruptions to schedule (b) Schedule conflict will be resolved service will occur. As a consequence, in general by application of principles users requiring emergency service shall of priority to user service require- be charged for emergency service at ments. Services shall be provided ei- rate factors set forth in appendix B. ther as normally scheduled service or (6) Disruptive updates are scheduled as emergency/disruptive update serv- updates which, by virtue of priorities, ice. Priorities will be different for cause previously scheduled user serv- emergency/disruptive updates than for ices to be rescheduled or deleted or are normal services. requested by the user less than 45 min- (1) Normally scheduled service is utes prior to the scheduled support pe- service which is planned and ordered riod. under normal operational conditions (i) Disruptive updates will be charged and is subject to schedule conflict reso- at the same rates as emergency serv- lution under normal service priorities. ice. User initiated schedule requests Priorities are established by the NASA which are received less than 45 minutes Administrator or his/her designee. Re- prior to the requested schedule support quests for normally scheduled service time will be considered a disruptive up- must be received by the schedulers at date. the GSFC Network Control Center (ii) User initiated schedule requests (NCC) no later than 45 minutes prior to which are received more than 45 min- requested support time. utes and less than 12 hours prior to the (2) Normal scheduling principles of scheduled support period will be acted priority are generally ordered as fol- upon as a routine input provided other lows beginning with the highest pri- users are unaffected. If other users are ority: affected, the scheduling input will be (i) Launch, reentry, landing of the considered a disruptive update and the STS Shuttle, or other NASA launches. appropriate charge factor will be ap- (ii) NASA payloads/spacecraft. plied.
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(iii) The Network Control Center control functions, location of user con- (NCC) at GSFC reserves the sole right trol facility, and identification of com- to schedule, reschedule or cancel munications requirements. TDRSS service. Schedule changes (10) Identification of ground commu- brought about through no fault of the nications requirements and interface user are not charged the factor for a points, including the level of support to disruptive update. be requested from NASCOM. (7) While the priority listing remains (d) To provide for effective planning, the general guide for establishing sup- general service requirements should be port availability, the NASA schedulers provided at least 3 years before initi- will exercise judgment and endeavor to ation of service. With these data NASA see that lower priority users are not will determine whether the requested excluded from a substantial portion of services can be provided. their contracted-for service due to the (e) Detailed requirements for user requirements of higher priority users. services must be provided 18 months (8) When a user contracts for TDRSS before the initiation of service. These service for an ‘‘operational satellite’’ data will be the basis for the technical which interfaces with a significant definition of the Interface Control Doc- number of national and world-wide ument (ICD). If requirements are re- users on a regularly scheduled basis as ceived late, necessitating extraor- opposed to a ‘‘research and develop- dinary NASA activities [e.g., overtime, ment satellite,’’ NASA will place spe- special printing of documents], such cial emphasis on the operational re- activities will be considered to be mis- quirement when planning schedules. sion unique and their cost charged the This should reduce the probability of user. losing perishable operational data such as meteorological, climate, or earth re- [48 FR 9845, Mar. 9, 1983, as amended at 56 FR sources information. 28049, June 19, 1991] (c) General user service require- ments, which will be used for prelimi- § 1215.110 User cancellation of all serv- nary planning and mission modeling, ices. should include as a minimum, the fol- The user has the right to terminate lowing; its service contract with NASA at any (1) Date of service initiation. time. A user who exercises this right (2) Expected date of service termi- after contracting for service shall pay nation. the charge agreed upon for services (3) The type of TDRSS services de- previously rendered, and the cost in- sired [e.g., multiple access, tracking, curred by the Government for support etc.]. of pre-launch activities, services, and (4) The frequency and duration of mission documentation not included in each service, including orbital position that charge. The user will remain re- or time constraints on service delivery sponsible for the charges for any serv- from a given spacecraft where appro- ices actually provided. priate. (5) Orbital or trajectory parameters § 1215.111 User postponement of serv- and tracking data requirements. ice. (6) Spacecraft events affecting track- The user may postpone the initiation ing, telemetry or command require- of contracted service (e.g., user launch ments. date) by delivery of written notifica- (7) Signal parameters and data rates tion to NASA Headquarters, Code OX. by type of service, type and location of Any delay in the contracted start of antennas and other related information service date may affect the quantity of dealing with user tracking, command, service to be provided due to commit- and data systems. ments to other support requirements. (8) Special test requirements, com- Therefore, the validity of previous esti- patibility testing, data flows, simula- mates of predicted support availability tions, etc. may no longer be applicable. (9) Identification of type and quan- tity of user information necessary for [56 FR 28049, June 19, 1991]
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§ 1215.112 User/NASA contractual ar- whether or not an agreement is entered rangement. into with NASA for TDRSS services. (a) The NASA Administrator reserves [48 FR 9845, Mar. 9, 1983, as amended at 56 FR the right to waive any portion of the 28049, June 19, 1991] reimbursement due to NASA under the provisions of the reimbursement pol- § 1215.114 Service rates. icy. (a) Non-U.S. Government user rates (b) When NASA has determined that will reflect TDRSS total operational a potential user has not made suffi- and maintenance costs prorated to a cient progress toward concluding a per-minute basis. contractual arrangement for service, (b) Rates for TDRSS services will be after being placed in a mission model, set by the Associate Administrator for NASA shall have the unilateral right Space Operations each October for the to remove that user from the mission following year, January through De- model. cember. Rate variations will reflect (c) NASA shall have the right to de- changes in operating costs, loading for- termine unilaterally that the potential mulas and escalation. user has failed to make progress to- (c) Projected estimates will include ward concluding a contractual arrange- escalation bases on the Bureau of ment. Labor Statistics Index for compensa- § 1215.113 User charges. tion per hour—total private. (d) Appendix A is provided for pre- (a) The user shall reimburse NASA liminary planning purposes only. It de- the sum of the charges for standard lineates the rate per minute by service and mission-unique services. Charges and type of user. These rates are sub- will be based on the service rates appli- ject to change. cable for the calendar year. (e) The per minute charge for TDRSS (b) For standard services the user service is computed by multiplying the shall be charged only for services ren- charge per minute for the appropriate dered, except that if a total cancella- service by the number of minutes tion of service occurs, the users shall scheduled and the appropriate factor be charged in accordance with the pro- (for flexible, constrained or disruptive/ visions of § 1215.110. emergency service). (1) Standard services which are scheduled, and then cancelled by the [48 FR 9845, Mar. 9, 1983, as amended at 49 FR user less than 12 hours prior to the 10659, Mar. 22, 1984; 56 FR 28049, June 19, 1991] start of that scheduled service period, will be charged as if the scheduled § 1215.115 Payment and billing. service actually occurred. (a) To each user there will be an ini- (2) The time scheduled by the user tial non-refundable administrative project shall include the slew time, set charge of $25,000 which is applicable to- up and/or configuration time, TDRSS ward TDRSS operational services. contact time, and all other conditions (b) The procedure for billing and pay- for which TDRSS services were allo- ment of standard TDRSS services is as cated to the user. follows: (3) Charges will be accumulated by (1) The calendar year is divided into the minute, based on the computerized two service periods, January through schedule/configuration messages which June and July through December. The physically set up the TDRSS equip- charge for TDRSS service will be deter- ment at the start of a support period mined in October for the succeeding and free the equipment for other users calendar year. at the end of a support period. (2) The estimated cost of service, (c) The user shall reimburse NASA January through June period, will be for the costs of any mission unique due the previous July 1, and will be services provided by NASA. billed 60 days prior to the payment due (d) Any person or entity which pays date. to NASA the initial administrative (3) The estimated cost of service, charge (see § 1215.115) does so with the July through December period, will be understanding that it is not refundable due the previous January 1, and will be
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billed 60 days prior to the payment due rates are slightly different for CSLA cus- date. tomers. (4) Adjustments to the amounts pre- CSLA customer rates: paid will be made to the succeeding bil- 1. Single Access Service—Base rate is $180 per lings as the actual service time is tab- minute for CSLA users. ulated. Amounts due to the user will be 2. Multiple Access Forward Service—Base rate is $39 per minute for CSLA users. credited to the next service period or 3. Multiple Access Return Service—Base rate refunded to the user if no more service is $13 per minute for CSLA users. is to be provided. (5) The total estimated cost of all [61 FR 46713, Sept. 5, 1996] standard pre-launch services such as mission planning, documentation, link APPENDIX B TO PART 1215—FACTORS analysis, testing, computer, human re- AFFECTING STANDARD CHARGES sources, etc., with the exception of Charges for services shall be determined by TDRSS operational services, will be multiplying the factors below by the base paid to the Government prior to NASA rates for standard services set forth in ap- rendering such services. This advance pendix A. payment will be applied as a credit to Emer- the charges billed for post-launch Time or gency TDRSS operational services as speci- Flexi- position service, ble con- disruptive fied in paragraphs (b) (1) through (4) of strained updates this section. (c) Payment schedules for mission Single access service ...... 5 1 2 unique services will be mutually devel- Multiple access forward oped between NASA the user on a case- (command) service ...... 67 1 2 by-case basis, dependent upon level of Emer- engineering effort, long-lead items, Normally gency special communication services or sched- service, uled sup- disruptive other considerations. Payment will port updates generally be made prior to NASA in- curring a cost for mission unique serv- Multiple access return (telemetry) ice. service ...... 1 2 (d) Late payments by the user will require the user to pay a late payment APPENDIX C TO PART 1215—TYPICAL charge equal to 11⁄2% per month of the USER ACTIVITY TIMELINE unpaid balance calculated daily from the date the payment was due until the Time (approximate) Activity date payment is made. Project Request NASA Headquarters perform conceptualization study to determine availability of APPENDIX A TO PART 1215—ESTIMATED (At least 3 years TDRSS. If accepted as a user, begin SERVICE RATES IN 1997 DOLLARS FOR before launch; contractual negotiation by submis- Ref. sion of $25,000 non-refundable TDRSS STANDARD SERVICES (BASED § 1215.108(a)). charge, and place into mission ON NASA ESCALATION ESTIMATE) model. 3 years before Submit general user requirements to TDRSS user service rates for services ren- launch (Ref. permit preliminary planning. Begin dered in CY–97 based on current projections § 1215.109(c).. payment for pre-mission activities in 1997 dollars are as follows: (Ref. § 1215.115(b)(5)). 1. Single Access Service—Forward command, 18 months before Provide detailed requirements for tech- return telemetry, or tracking, or any com- launch (earlier if nical definition and development of interfacing is ex- operational documents and ICD’s. bination of these, the base rate is $184.00 per pected).. (Ref. § 1215.109(e)). If appropriate, minute for non-U.S. Government users. initiate action with the Federal Com- 2. Multiple Access Forward Service—Base munications Commission for license rate is $42.00 per minute for non-U.S. Govern- to communicate with TDRSS at least ment users. 18 months prior to launch (Ref. 3. Multiple Access Return Service—Base rate § 1215.107(b)). is $13.00 per minute for non-U.S. Government 3 weeks prior to a Submit scheduling request to GSFC users. scheduled sup- covering a weekly period. Receive port period (SSP). schedule from GSFC based on prin- Due to the advent of commercial launch 2 weeks prior to ciples of priority (Ref. service customers, an addendum will be re- an SSP. § 1215.109(b)(2)). Acknowledgement quired to reflect rates for service rendered to GSFC required. under the Commercial Space Launch Act Up to 12 hours prior Can cancel an SSP without charge (CSLA). Due to statutory requirements, the to an SSP.. (Ref. § 1215.113(a)(1)).
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Time (approximate) Activity 1216.316 Cooperating with other agencies and individuals. Up to 45 minutes Can schedule an SSP if a time slot is 1216.317 Classified information. prior to an SPP.. available without impacting another user. 1216.318 Deviations. Between SSP Schedule requests will be charged at minus 45 minutes the disruptive update rate (Ref. OTHER REQUIREMENTS and the SSP.. § 1215.109(b)(5)). 1216.319 Environmental resources document. Real-Time...... Emergency service requests will be re- sponded to per the priority system 1216.320 Environmental review and con- (Ref. § 1215.109(b)(3)) and assessed sultation requirements. the emergency service rate. 1216.321 Environmental effects abroad of major Federal actions. [56 FR 28049, June 19, 1991] Subpart 1216.1—Policy on PART 1216—ENVIRONMENTAL Environmental Quality and Control QUALITY AUTHORITY: The National Aeronautics and Subpart 1216.1—Policy on Environmental Space Act of 1958, as amended (42 U.S.C. 2451 Quality and Control et seq.); the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. Sec. 4321 et seq.); the Environmental Quality Im- 1216.100 Scope. 1216.101 Applicability. provement Act of 1970, as amended (42 U.S.C. 1216.102 Policy. 4371 et seq.); sec. 309 the Clean Air Act, as 1216.103 Responsibilities of NASA officials. amended (42 U.S.C. 7609); E.O. 11514 (Mar. 5, 1970, as amended by E.O. 11991, May 24, 1977); Subpart 1216.2—Floodplain and Wetlands the Council on Environmental Quality NEPA Management Regulations (40 CFR part 1500–1508); and E.O. 12114, Jan. 4, 1979 (44 FR 1957). 1216.200 Scope. SOURCE: 44 FR 44485, July 30, 1979, unless 1216.201 Applicability. 1216.202 Responsibility of NASA officials. otherwise noted. 1216.203 Definition of key terms. 1216.204 General implementation require- § 1216.100 Scope. ments. This subpart sets forth NASA policy 1216.205 Procedures for evaluating NASA ac- on environmental quality and control tions impacting floodplains and wet- lands. and the responsibilities of NASA offi- cials in carrying out these policies. Subpart 1216.3—Procedures for Imple- menting the National Enviromental § 1216.101 Applicability. Policy Act (NEPA) This subpart is applicable to NASA 1216.300 Scope. Headquarters and field installations. 1216.301 Applicability. 1216.302 Definition of key terms. § 1216.102 Policy. 1216.303 Responsibilities of NASA officials. NASA policy is to: AGENCY PROCEDURES (a) Use all practicable means, con- 1216.304 Major decision points. sistent with NASA’s statutory author- 1216.305 Criteria for actions requiring envi- ity, available resources, and the na- ronmental assessments. tional policy, to protect and enhance 1216.306 Preparation of environmental as- the quality of the environment; sessments. (b) Provide for proper attention to 1216.307 Scoping. and ensure that environmental amen- 1216.308 Preparation of draft statements. 1216.309 Public involvement. ities and values are given appropriate 1216.310 Preparation of final statements. consideration in all NASA actions, in- 1216.311 Record of the decision. cluding those performed under con- 1216.312 Timing. tract, grant, lease, or permit; 1216.313 Implementing and monitoring the (c) Recognize the worldwide and long- decision. 1216.314 Tiering. range character of environmental con- 1216.315 Processing legislative environ- cerns and, when consistent with the mental impact statements. foreign policy of the United States and
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its own responsibilities, lend appro- state, and local governmental agencies priate support to initiatives, resolu- concerned with environmental matters; tions, and programs designed to maxi- (6) Acquire information for and en- mize international cooperation in an- sure the preparation of appropriate ticipating and preventing a decline in NASA reports on environmental mat- the quality of the world environment; ters. (d) Use systematic and timely ap- (b) Officials-in-Charge of Head- proaches which will ensure the inte- quarters Offices and NASA Field In- grated use of the natural and social stallation Directors are responsible for: sciences and environmental design arts (1) Identifying matters under their in planning and decisionmaking for ac- cognizance which may affect protec- tions which may have an impact on the tion and enhancement of environ- human environment; mental quality and for employing the (e) Pursue research and development, proper procedures to ensure that nec- within the scope of NASA’s authority essary actions are taken to meet the or in response to authorized agencies, requirements of applicable laws and for application of technologies useful regulations; in the protection and enhancement of (2) Coordinating environmental qual- environmental quality; ity-related activities under their cog- (f) Initiate and utilize ecological and nizance with the Associate Adminis- other environmental information in trator for Management; and the planning and development of re- (3) Supporting and assisting the As- source-oriented projects; and sociate Administrator for Management (g) Invite cooperation, where appro- on request. priate, from Federal, State, local, and (c) Officials-in-Charge of Head- regional authorities and the public in quarters Offices are additionally re- NASA planning and decisionmaking sponsible for: processes. (1) Giving high priority, in the pur- § 1216.103 Responsibilities of NASA of- suit of program objectives, to the iden- ficials. tification, analysis, and proposal of re- (a) The Associate Administrator for search and development which, if con- Management or designee shall: ducted by NASA or other agencies, (1) Coordinate the formulation and may contribute to the achievement of revision of NASA policies and positions beneficial environmental objectives; on matters pertaining to environ- and mental protection and enhancement; (2) In coordination with the Asso- (2) Represent NASA in working with ciate Administrator for Management, other governmental agencies and inter- making available to other parties, both agency organizations to formulate, re- governmental and nongovernmental, vise, and achieve uniform under- advice and information useful in pro- standing and application of govern- tecting and enhancing the quality of mentwide policies relating to the envi- the environment. ronment; (d) NASA Field Installation Directors (3) Develop and ensure the implemen- are additionally responsible for: tation of agencywide standards, proce- (1) Implementing the NASA policies, dures, and working relationships for standards and procedures for the pro- protection and enhancement of envi- tection and enhancement of environ- ronmental quality and compliance with mental quality and supplementing applicable laws and regulations; them as appropriate in local cir- (4) Develop, as an integral part of cumstances; NASA’s basic decision processes, proce- (2) Specifically assigning responsibil- dures to ensure that environmental ities for environmental activities factors are properly considered in all under the installation’s cognizance to proposals and decisions; appropriate subordinates, while pro- (5) Establish and maintain working viding for the coordination of all such relationships with the Council on Envi- activities; and ronmental Quality, Environmental (3) Establishing and maintaining Protection Agency, and other national, working relationships with national,
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state, regional and governmental agen- cedures prescribed in §§ 1216.204 and cies responsible for environmental reg- 1216.205. ulations in localities in which the field (b) The Assistant Associate Adminis- installations conduct their activities. trator for Facilities Engineering, NASA Headquarters, is responsible for [44 FR 44485, July 30, 1979, as amended at 53 overall coordination of floodplain and FR 9760, Mar. 25, 1988] wetlands management activities, and for conducting periodic on-site reviews Subpart 1216.2—Floodplain and of each Installation’s floodplain and Wetlands Management wetlands management activities, and for conducting periodic on-site reviews AUTHORITY: E.O. 11988 and E.O. 11990, as of each Installation’s floodplain and amended; 42 U.S.C. 2473(c)(1). wetlands management activities to as- sure compliance with the Executive or- SOURCE: 44 FR 1089, Jan. 4, 1979, unless oth- erwise noted. ders. [53 FR 9760, Mar. 25, 1988, as amended at 56 § 1216.200 Scope. FR 50506, Oct. 7, 1991] This subpart 1216.2 prescribes proce- dures to: § 1216.203 Definition of key terms. (a) Avoid long- and short-term ad- (a) Action—any NASA activity in- verse impacts associated with the occu- cluding, but not limited to, acquisi- pancy and modification of floodplains tion, construction, modification, and wetlands; changes in land use, issuance of facili- (b) Avoid direct or indirect support of ties use permits, and disposition of floodplain and wetlands development Federal lands and facilities. wherever there is a practicable alter- (b) Base flood—is that flood which has native; a one percent chance of occurrence in (c) Reduce the risk of flood loss; any given year (also known as a 100- year flood). This term is used in the (d) Minimize the impact of floods on National Flood Insurance Program human health, safety and welfare; (NFIP) to indicate the minimum level (e) Restore, preserve and protect the of flooding to be used by a community natural and beneficial values served by in its floodplain management regula- floodplains and wetlands; tions. (f) Develop an integrated process to (c) Base floodplain—the 100-year involve the public in the floodplain and floodplain (one percent chance flood- wetlands management decision-making plain). Also see definition of floodplain. process; (d) Critical action—any activity for (g) Incorporate the Unified National which even a slight chance of flooding Program for Flood Plain Management; would be too great, such as storing and, lunar samples or highly toxic or water (h) Establish internal management reactive materials. controls to monitor NASA actions to (e) Facility—any item made or placed assure compliance with the Orders. by a person including buildings, struc- tures and utility items, marine struc- § 1216.201 Applicability. tures, bridges and other land develop- These procedures are applicable to ment items, such as levees and drain- Federal lands and facilities under the age canals. management control of NASA Head- (f) Flood or flooding—a general and quarters and field installations regard- temporary condition of partial or com- less of location. plete inundation of normally dry land areas from the overflow of inland and/ § 1216.202 Responsibility of NASA offi- or tidal waters, and/or the unusual and cials. rapid accumulation or runoff of surface (a) Directors of Field Installations waters from any source. and, as appropriate, the Associate Ad- (g) Flood fringe—that portion of the ministrator for Management at NASA floodplain outside of the regulatory Headquarters, are responsible for im- floodway (often referred to as plementing the requirements and pro- ‘‘floodway fringe’’).
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(h) Floodplain—the lowland and rel- (p) Wetlands—those areas that are atively flat areas adjoining inland and frequently inundated by surface or coastal waters including flood-prone ground water and normally support a areas of offshore islands, including at a prevalence of vegetative or aquatic life minimum, that area subject to a one that requires saturated or seasonally percent or greater chance of flooding in saturated soil conditions for growth any given year. The base floodplain and reproduction. Wetlands generally shall be used to designate the 100-year include swamps, marshes, bogs, and floodplain (one percent chance flood- similar areas such as sloughs, potholes, plain). The critical action floodplain is river overflows, mud flats, wet mead- defined as the 500-year floodplain (0.2 ows, and natural ponds. Because all percent chance floodplain). A large por- NASA wetlands lie in floodplains, and tion of NASA coastal floodplains also for purposes of simplifying the proce- encompasses wetlands. dures of this subpart, floodplains will (i) Floodproofing—the modification of be understood as to encompass wet- individual structures and facilities, lands, except in cases where wetlands their sites, and their contents to pro- factors require special consideration. tect against structural failure, to keep (Also, see definition of floodplain.) water out or to reduce the effects of (q) Support—actions which encourage water entry. or otherwise provide incentives to un- (j) Minimize—to reduce to the small- dertake floodplain or wetlands develop- est possible amount or degree. ment, such as extending roads or utili- (k) One percent chance flood—the ties into or near a floodplain, therefore flood having one chance in 100 of being making floodplain development more exceeded in any one-year period (a feasible. large flood). The likelihood of exceed- ing this magnitude increases in a time § 1216.204 General implementation re- period longer than one year, e.g., there quirements. are two chances in three of a larger (a) Each NASA Field Installation flood exceeding the one percent chance shall prepare, if not already available, flood in a 100-year period. an Installation base floodplain map (l) Practicable—capable of being done based on the latest information and ad- within existing constraints. The test of vice of the appropriate District Engi- what is practicable depends upon the neer, Corps of Engineers, or, as appro- situation and includes consideration of priate, the Director of the Federal the pertinent factors, such as environ- Emergency Management Agency. The ment, cost or technology. map shall delineate the limits of both (m) Preserve—to prevent modification the 100-year and 500-year floodplains. A to the natural floodplain environment copy of the map, approved by the Field or to maintain it as closely as possible Installation Director, will be provided to its natural state. to the Assistant Associate Adminis- (n) Regulatory floodway—the area reg- trator for Facilities Engineering, ulated by Federal, State or local re- NASA Headquarters, by February 28, quirements; the channel of a river or 1979. The map will conform to the defi- other watercourse and the adjacent nitions and requirements specified in land areas that must be reserved in an the Floodplain Management Guidelines open manner; i.e., unconfined or unob- for Implementing Executive Order structed either horizontally or 11988. vertically to provide for the discharge (b) For any proposed action or crit- of the base flood so the cumulative in- ical action, as defined in § 1216.203(a), crease in water surface elevation is no using the approved floodplain map, the more than a designated amount (not to Field Installation Director, while con- exceed one foot as set by the National currently seeking to avoid the flood- Flood Insurance Program (NFIP)). plain, shall determine if the proposed (o) Restore—to re-establish a setting action will or will not be located in, or or environment in which the natural may indirectly impact or indirectly functions of the floodplain can again support development in, the base (sub- operate. stitute ‘‘500-year’’ for ‘‘base’’ in critical
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action cases) floodplain and proceed ac- (iv) Potential for affecting the nat- cordingly: ural and beneficial floodplain values. (1) If the action or critical action will (2) NASA shall provide appropriate be located in the base floodplain or guidance to applicants for facilities use may indirectly impact or indirectly permits and grants to enable them to support floodplain development, and is similarly evaluate, in accordance with not excepted under § 1216.204(h), field the Orders, the effects of their pro- installations will adhere to the proce- posals in floodplains and wetlands. dures prescribed in § 1216.205. This evaluation will be a precondition (2) If such action or critical action of any NASA approval of such permit will not be located in the base flood- or grant involving floodplains or wet- plain, or is the type of action that will lands. clearly nor indirectly impact or indi- (e) Facilities to be located in rectly support floodplain development, floodplains will be constructed in ac- the action may be implemented with- cordance with the standards and cri- out further review or coordination, teria promulgated under the National provided all other applicable NASA re- Flood Insurance Program (NFIP). Devi- quirements and policies have been met. ations are allowed only to the extent (c) Any request for new authoriza- that these standards are inappropriate tions or appropriations transmitted to for NASA operations, research and test the Office of Management and Budget activities. Because construction of shall indicate, on a case-by-case basis, NASA facilities will rarely be nec- if the action proposed will be located in essary in floodplains and wetlands, ex- a floodplain and whether the proposed pertise in the latest flood proofing action is in accordance with Executive measures, standards and criteria will Orders 11988 and 11990. not be normally maintained within the (d) Each field installation shall: Take NASA staff. To assure full compliance floodplain management and wetlands with the NFIP regulations, and that protection into account when formu- the Order’s key requirement to mini- lating its water and land use plans— mize harm to or within the floodplain and when evaluating like plans of oth- or wetlands is met, field installations ers—as an integral part of its facilities will: master planning activities; Restrict the use of land and water resources ap- (1) Consult with the appropriate local propriate to the degree of flood hazard office of the Corps of Engineers or Fed- involved; and, Incorporate rec- eral Emergency Management Agency ommended Federal and State actions and/or U.S. Fish and Wildlife Service, for the continuing unified program for as applicable, on a regular basis planning and action at all levels of gov- throughout the facility design or ac- ernment to reduce the risk of flood tion planning phase. Documentation of losses in accordance with the Unified this consultation will be recorded in National Program for Flood Plain Man- the Field Installation’s project file. agement (U.S. Water Resources Coun- (2) Submit evidence of the successful cil, 1978). completion of this consultation to the (1) Descriptive documentation sup- Assistant Associate Administrator for porting these planning matters shall be Facilities Engineering, NASA Head- included in the ‘‘land use’’ section of quarters, prior to the start of project each field installation’s facilities mas- construction. ter plan, as prescribed in NASA Man- (f) If NASA property used or visited agement Instruction 7232.1, Master by the general public is located in an Planning of NASA Facilities. The eval- identified flood hazard area, the Instal- uation and quantification of flood haz- lation shall provide on structures, in ards should be expressed in terms of: this area and other places where appro- (i) Potential for monetary loss; priate (such as where roads enter the (ii) Human safety, health, and wel- flood hazard area), conspicuous delin- fare; eation of the 100-year and 500-year (iii) Shifting of costs, damage or flood levels, flood of record, and prob- other adverse impacts to off-site prop- able flood height in order to enhance erties; and, public awareness of flood hazards. In
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addition, Field Installations shall re- (1) Hazard mitigation actions taken view their storm control and disaster by a field installation on an emergency plans to assure that adequate provision basis to reduce and control hazards as- is made to warn and evacuate the gen- sociated with established NASA test or eral public as well as employees. These operations activities in accordance plans will include the integration of with the field installation’s approved adequate warning time into such plans. Safety Plan. Any such action must be The results of this review shall be sub- approved in writing by the Field Instal- mitted to the Assistant Associate Ad- lation’s Safety Officer, and the ap- ministrator for Facilities Engineering, proval document retained in the Safety NASA Headquarters, by February 28, Office files. 1979. (2) Repair, maintenance or modifica- (g) When property in floodplains is tion to existing roadways, bridges and proposed for lease, permit, out-grant, utility systems in coastal floodplains easement, right-of-way, or disposal to or wetlands which provide long-term non-Federal public or private parties, support for major NASA operations the field installation shall: and test facilities (usually located out (1) Reference in the conveyance docu- of the base floodplain), provided such ment (prepared by the General Services repair, maintenance or modification Administration in disposal actions) activities are of a routine or emer- those uses that are restricted under gency nature for which the ‘‘no action’’ identified Federal, State, and local alternative is not practicable; and it is floodplain regulations, such as State ostensibly evident that: coastal management plans. (i) The proposed action would not im- (2) Except where prohibited by law, pact the floodplain or wetlands. attach other appropriate restrictions, (ii) The only alternative would be to equal to the Order’s in scope and strict- construct new duplicate facilities near ness, to the uses of properties by the the same site with attendant impacts grantee or purchaser and any succes- on the floodplain or wetlands area. sors which assure that: (3) Rehabilitation and modification (i) Harm to lives, property and flood- of existing minor technical facilities plain values are identified; and (such as camera pads, weather towers, (ii) Such harm is minimized and repeater buildings), including the re- floodplain values are restored and pre- pair of such damaged facilities to a served. condition closely matching the origi- (3) Withhold such properties from nal construction, provided it can be conveyance if the requirements of readily determined by Directors of paragraphs (g)(1) and (2) of this section Field Installations that there is no cannot be met. practicable alternative but to continue (h) The NASA Administrator has de- the activity in its current coastal termined that certain types of actions floodplain site. In such cases, the taken in coastal floodplains and wet- sitings of such facilities must be rig- lands typically do not possess the po- idly constrained by nationally recog- tential to result in long- or short-term nized master planning criteria, such as adverse impacts associated with the oc- ‘‘line-of-sight, quantity-distance, and cupancy or modification of floodplains, acoustic sound-pressure-level’’ factors. or result in direct or indirect support In addition, certification of these de- of floodplain development. Neverthe- terminations by Directors of Field In- less, in undertaking these actions, any stallations will be retained in the opportunities to minimize, restore, and project file. preserve floodplain and wetlands values [44 FR 1089, Jan. 4, 1979, as amended at 56 FR must be considered and implemented. 50506, Oct. 7, 1991] With this understanding, for the fol- lowing types of actions, Directors of § 1216.205 Procedures for evaluating Field Installations in coastal locations NASA actions impacting floodplains may determine that undertaking such and wetlands. actions does not warrant full applica- (a) Before taking any action a deter- tion of the procedures prescribed in mination shall first be made whether § 1216.205. the proposed action will occur in or
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may adversely affect a floodplain or provide opportunities for the public to wetlands, using the method prescribed provide meaningful input. in § 1216.204(b). (2) Working with the appropriate (b) These procedures apply only to State Single Point of Contact pursuant evaluations of those proposed actions to E.O. 12372 and, if applicable, other which are to be located in or may ad- public groups and officials, to identify versely impact floodplains. These eval- practicable alternatives in addition to uations shall be made at the earliest those already identified by NASA. The practicable stage of advance planning, alternatives will include: such as during facilities master plan (i) Carrying out the proposed action development or when preparing pre- at a location outside the base flood- liminary engineering reports. These plain (alternative sites). evaluations shall include analyses of (ii) Other means which accomplish harm to lives and property, the natural the same purpose as the proposed ac- and beneficial values of floodplains and tion (alternative actions). wetlands, and the cumulative impacts of multiple actions over the long term. (iii) Taking no action, if the result- (1) Early public notice is the next ing hazards and/or harm to or within step in the evaluation process and will the floodplain overbalances the bene- normally be accomplished using only fits to be provided by the proposed ac- the appropriate Single State Point of tion. Contact and coordinating with that (3) The costs and impacts of all prac- party pursuant to Executive Order ticable alternatives must now be fully (E.O.) 12372, as amended, ‘‘Intergovern- determined to properly assess the prac- mental Review of Federal Programs,’’ ticability of avoiding the base flood- as appropriate. If, however, actions in- plain, or of minimizing harm to the volving land acquisition or a major floodplain if alternatives directly or in- change in land or water use is pro- directly support floodplain develop- posed, the overall public audience will ment or have other adverse impacts. be as broad as reasonably possible in- (i) The basic criteria to be used in de- cluding, but not limited to, adjacent termining the impacts of the various property owners and residents, near-by alternatives appear in the Floodplain floodplain residents and local elected Management Guidelines for Imple- officials. To assure their continuous menting Executive Order 11988 (43 FR interaction and involvement, the Field 6030). These criteria discuss in detail Installation will issue public notices the three basic types of impacts which and newsletters, and hold public hear- are to be addressed: ing and/or work shops on a formalized (A) Positive and negative impacts scheduled basis to provide the oppor- (beneficial and harmful); tunity for public input and under- (B) Concentrated and dispersed im- standing of the proposed action. Re- pacts (impacts on-site, near-site, and gardless of the scope of action pro- remote from the installation); and posed, initially a notice will be pro- (C) Short and long-term impacts (in- vided to the appropriate State Single clude temporary changes and those Point of Contact pursuant to E.O. 12372 that will not exceed three pages and that take the form of delayed changes will include: resulting from the cumulative effects (i) A location map of the proposed ac- of many individual actions). tion. (ii) Also to be determined is the na- (ii) The reasons why the action is ture of resulting hazards and risk to proposed to be located in a floodplain. lives and property; and the restoration (iii) A statement indicating whether and preservation of natural and bene- the action conforms to applicable state ficial floodplain and wetlands values. and local floodplain protection stand- (iii) In determining the type, mag- ards. nitude, costs, timing factors, etc., of (iv) A list of any NASA identified al- the impacts, it is emphasized that sub- ternatives to be considered. jective assessments have little value. (v) A statement explaining the tim- To qualify for inclusion in the evalua- ing of public notice review actions to tion process, an impact must be fully
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described and quantified in a measur- (6) If, upon completing the compara- able way compatible with good sci- tive evaluation, the Field Installation entific or engineering practice. Briefly Director determines that the only stated, an impact is effected by or practicable alternative is locating in based on, and limited to, a quantified the base floodplain, a statement of alteration of existing coastal or fundings and public explanation must riverine systems including: be provided to all those who have re- (A) Anticipated flood levels, sheet ceived the early public notice, and spe- flow, coursing and velocity of flood cifically to the appropriate State Sin- caused surface water; gle Point of Contact pursuant to E.O. (B) Ground water flows and recharge; 12372, and will include as a minimum: (C) Tidal flows; (i) The reasons why the proposed ac- (D) Topography; and, tion must be located in the floodplain. (E) Ecology, including water quality, (ii) A statement of all significant vegetation and the terrestrial and facts considered in making the deter- aquatic habitats. mination including alternative sites (4) For the proposed action and those and actions. alternatives which will impact the (iii) A statement indicating whether floodplain or wetlands, additional anal- the actions conform to applicable ysis must be undertaken to minimize, State and local floodplain protection restore and preserve the natural and standards. beneficial floodplain or wetlands val- (iv) In cases where land acquisition ues. Because NASA does not retain ex- or major changes in land use are in- pertise in these areas of floodplain volved, it may also be appropriate to management, field installations will include: consult, on a case-by-case basis, with (A) A provision for publication in the the appropriate local office of the U.S. FEDERAL REGISTER or other appro- Fish and Wildlife Service to assure priate vehicle. that, for each of the above alter- (B) A description of how the activity natives, methods are prescribed which will be designed or modified to mini- will: mize harm to or within the floodplain. (i) Minimize harm to lives and prop- (C) A statement indicating how the erty from flood hazards; action affects natural or beneficial (ii) Minimize harm to natural and floodplain or wetlands values. beneficial values of floodplains and (D) A statement listing other in- wetlands; and volved agencies and individuals. (iii) Restore floodplains or wetlands (7) After a reasonable period (15 to 30 values, if applicable, to the proposed days) to allow for public response, the action. proposed action may proceed through (5) The proposed action and alter- the normal NASA approval process, or natives shall now be comparatively if disposal is anticipated, the action evaluated taking into account the can be implemented in accordance with identified impacts, the steps necessary Federal Property Management Regula- to minimize these impacts and oppor- tions real property disposal procedures. tunities to restore and preserve flood- If, however, significant new informa- plain and wetlands values. The com- tion is revealed in comments by the parison will emphasize floodplain val- public, the field installation shall re- ues. evaluate the proposed action in accord- (i) If this evaluation indicates that ance with the provisions of paragraph the proposed action in the base flood- (b)(5) of this section. plain is still practicable, consider lim- (8) For major NASA actions signifi- iting the action so that a non-flood- cantly affecting the quality of the plain site could be more practicable. human environment, the evaluations (ii) If the proposed action is outside required above will be included in any the floodplain but has adverse impacts statement prepared under Section or supports floodplain development, 102(2)(C) of the National Environmental consider modifying or relocating the Policy Act. action to eliminate or reduce these ef- (9) In accordance with § 1216.202(b), fects or even taking no action. the Assistant Associate Administrator
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for Facilities Engineering, NASA Head- proval, may be separate from the cat- quarters, will conduct periodic on-site egories. reviews to assure that the action is [44 FR 44485, July 30, 1979, as amended at 53 carried out in accordance with the FR 9760, Mar. 25, 1988] stated findings and plans for the pro- posed action, in compliance with the § 1216.302 Definition of key terms. Executive orders. The definitions contained within part [44 FR 1089, Jan. 4, 1979, as amended at 56 FR 1508, Terminology and Index, CEQ Regu- 50506, Oct. 7, 1991] lations, 43 FR 55978, apply to subpart 1216.3. Additional definitions, necessary for the purpose of this subpart, are as Subpart 1216.3—Procedures for follows: Implementing the National (a) Budget line items. The individual Environmental Policy Act items in the annual NASA authoriza- (NEPA) tion legislation which are used here to classify the range of NASA actions. The four main budget line items are: AUTHORITY: The National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2451 (1) Research and Development (R&D). et seq.); the National Environmental Policy Those activities directed towards at- Act of 1969 (NEPA), as amended (42 U.S.C. taining the objectives of a specific mis- 4321 et seq.); the Environmental Quality Im- sion, project, or program. All NASA’s provement Act of 1970, as amended (42 U.S.C. aeronautics and space program ele- 4371 et seq.); sec. 309 the Clean Air Act, as ments are categorized within the R&D amended (42 U.S.C. 7609); E.O. 11514 (Mar. 5, program categories. R&D funds are ex- 1970, as amended by E.O. 11991, May 24, 1977); pended chiefly for contracted research the Council on Environmental Quality NEPA and development and for research Regulations (40 CFR part 1500–1508); and E.O. grants. Some R&D funds are also ex- 12114, Jan. 4, 1979 (44 FR 1957). pended in support of in-house research SOURCE: 44 FR 44485, July 30, 1979, unless (e.g., equipment purchases and other otherwise noted. research support, but not civil service salaries). § 1216.300 Scope. (2) Research and Program Management This subpart sets forth NASA proce- (R&PM). Those activities directed to- dures implementing the provisions of wards the general support of the NASA section 102(2) of the National Environ- institution charged with the conduct of mental Policy Act (NEPA). The NASA the aeronautics and space program. procedures of this subpart supplement R&PM funds are expended for the the regulations of the Council on Envi- NASA civil service work force (both for ronmental Quality (43 FR 55978) which performing in-house R&D and for plan- establish uniform procedures for imple- ning, managing, and supporting con- menting those provisions of NEPA. tractor and grantee R&D), and for other general supporting functions. § 1216.301 Applicability. (3) Construction of Facilities (C of F). Those activities directed towards con- (a) This subpart is applicable to struction of new facilities; repair, reha- NASA Headquarters and field installa- bilitation, and modification of existing tions. facilities; acquisition of related facility (b) The procedures established by equipment; design of facilities projects; this subpart apply to all NASA actions and advance planning related to future which may have an impact on the qual- facilities needs. ity of the environment. These actions (4) Space Flight, Control and Data may fall within any of the four NASA Communications (SFCDC). Has similar budget categories: Research and Devel- scope to R&D but covers activities opment (R&D), Construction of Facili- which are primarily of a production ties (CoF), Research and Program Man- and operational nature related to space agement (R&PM), and Space Flight flight. The content includes the na- Control and Data Communications tional fleet of Space Shuttle orbiters, (SFCDC), or, if not involving budget including main engines, launch site authority or other congressional ap- and mission operations, initial spares,
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production tooling and supporting ac- § 1216.303 Responsibilities of NASA of- tivities, launch operations and track- ficials. ing and data acquisition. (a) The Associate Administrator for (b) Construction of facilities project. The consolidation of applicable specific Management or designee, who is re- individual types of facility work, in- sponsible for developing the procedures cluding related collateral equipment, of this subpart and for ensuring that which is required to fully reflect all of environmental factors are properly the needs, generally relating to one fa- considered in all NASA planning and cility, which have been or may be gen- decisionmaking, shall: erated by the same set of events or cir- (1) Monitor these processes to ensure cumstances which are required to be that the agency procedures are achiev- accomplished at one time in order to ing their purposes; provide for the planned initial oper- (2) Advise line management and in- ational use of the facility or a discrete form NASA employees of technical and portion thereof. Facility projects are management requirements of environ- subject to the NASA decision processes mental analysis, of appropriate exper- of § 1216.304. tise available in and out of NASA, (c) Environmental analysis. The anal- and—with the assistance of the NASA ysis of the environmental effects of General Counsel—of relevant legal de- proposed actions, including alternative velopments; and proposals. The analyses are carried out from the very earliest of planning stud- (3) Consolidate and transmit to the ies for the action in question, and are appropriate parties NASA comments the materials from which the more for- on environmental impact statements mal environmental assessments, envi- and other environmental reports pre- ronmental impact statements, and pub- pared by other agencies. lic record of decisions are made. (b) Officials-in-Charge of Head- (d) Institutional action. An action to quarters Offices (hereafter termed establish, change, or terminate an as- ‘‘Headquarters officials’’) are respon- pect of the NASA institution, defined sible for implementing the procedures as the total NASA resource (plant, em- established by these regulations for the ployees, skills). consideration and documentation of (e) R&D project. A discrete research the environmental aspects of the deci- and development activity, with a sion processes in their respective areas scheduled beginning and ending, which of responsibility. normally involves one of the following (c) The Assistant Administrator for primary purposes: Legislative Affairs is responsible for (1) The design, development, and ensuring that the legislative environ- demonstration of major advanced tech- mental impact statements accompany nology hardware items; NASA recommendations or reports on (2) The design, construction, and op- proposals for legislation submitted to eration of a new launch vehicle (and as- Congress. The Associate Administrator sociated ground support) during its re- for Management, the Chief Financial search and development phase; and (3) The construction and operation of Officer (CFO)/Comptroller and the Gen- one or more aeronautics or space vehi- eral Counsel will provide guidance as cles (and necessary ground support) in required. order to accomplish a scientific or [44 FR 44485, July 30, 1979, as amended at 53 technical objective. R&D projects are FR 9761, Mar. 25, 1988; 56 FR 50507, Oct. 7, each subelements in the NASA R&D 1991] budget line item. R&D projects are sub- ject to the decision processes of AGENCY PROCEDURES § 1216.304. (f) SFCDC project. R&D type projects § 1216.304 Major decision points. authorized under the SFCDC budget The possible environmental effects of line item. a proposed action must be considered, [44 FR 44485, July 30, 1979, as amended at 53 along with technical, economic, and FR 9761, Mar. 25, 1988] other factors, in the earliest planning.
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At that stage, the responsible Head- (4) Proposal to implement a program quarters official shall begin the nec- change. essary steps to comply with all the re- [44 FR 44485, July 30, 1979, as amended at 53 quirements of section 102(2) of the Na- FR 9761, Mar. 25, 1988] tional Environmental Policy Act of 1969. Major NASA activities, particu- § 1216.305 Criteria for actions requir- larly R&D (or SFCDC) and facility ing environmental assessments. projects, generally have four distinct (a) Whether a proposed NASA action phases: The conceptual study phase; within the meaning of the CEQ Regula- the detailed planning/definition phase; tions (43 FR 55978) requires the prepa- the development/construction phase; ration of an environmental assessment, and the operation phase. (Other NASA an environmental impact statement, activities have fewer, less well-defined both, or neither, will depend upon the phases, but can still be characterized scope of the action and the context and by phases representing general or feasi- intensity of any environmental effects bility study, detailed planning or defi- expected to result. A NASA action nition, and implementation.) Environ- shall require the preparation of an en- mental documentation shall be linked vironmental assessment (§§ 1501.3 and to major decision points as follows: 1508.9 of the CEQ Regulations) provided (a) Completion of an environmental the action is not one normally requir- assessment and the determination as ing an environmental impact state- to whether an environmental impact ment (paragraph (c)) or it is not cat- statement is required must be made egorically excluded from the require- prior to the decision to proceed from ment for an environmental assessment the conceptual study phase to the de- and an environmental impact state- tailed planning/definition phase of the ment (paragraph (d)). proposed action. For example, this de- (b) Specific NASA actions normally termination must be concurrent with: requiring an environmental assessment (1) Proposal of an R&D (or SFCDC) are: project for detailed planning and (1) Specific spacecraft development project definition; and flight projects in space science. (2) Proposal of a major Construction (2) Specific spacecraft development of Facilities project for detailed plan- and flight projects in space and terres- ning and project definition; trial applications. (3) Proposal of an institutional ac- (3) Specific experimental projects in tion (other than a facility project) for aeronautics and space technology and detailed planning and definition; and energy technology applications. (4) Proposal of a plan to define (4) Development and operation of new changes in an approved project. space transportation systems and ad- vanced development of new space (b) The final environmental impact transportation and spacecraft systems. statement (EIS) should be completed (5) Reimbursable launches of non- and circulated prior to the decision to NASA spacecraft or payloads. proceed from the detailed planning/def- (6) Major Construction of Facilities inition phase to the development/con- projects. struction (or implementation) phase of (7) Actions to alter ongoing oper- the proposed action. For example, the ations at a NASA installation which EIS should be completed by, and incor- could lead, either directly or indi- porated with: rectly, to natural or physical environ- (1) Proposal of an R&D (or SFCDC) mental effects. project for development/construction; (c) NASA actions expected to have a (2) Proposal of a major Construction significant effect upon the quality of of Facilities project for development/ the human environment shall require construction; an environmental impact statement. (3) Proposal to undertake a signifi- For these actions an environmental as- cant institutional action (other than a sessment is not required. Criteria to be facility project); and used in determining significance are
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given in § 1508.27 of the CEQ Regula- Technology Base, Systems Technology tions (43 FR 55978). Specific NASA ac- Programs) other than experimental tions requiring environmental impact projects. statements, all in the R&D budget cat- (4) R&D (or SFCDC) activities in egory, are as follows: space transportation systems engineer- (1) Development and operation of new ing and scientific and technical support launch vehicles. operations, routine transportation op- (2) Development and operation of erations, and advanced studies. space vehicles likely to release sub- (5) R&D (or SFCDC) activities in stantial amounts of foreign materials space tracking and data systems. into the earth’s atmosphere, or into (6) Facility planning and design space. (funding). (3) Development and operation of nu- (7) Minor construction of new facili- clear systems, including reactors and ties including rehabilitation, modifica- thermal devices used for propulsion tion, and repair. and/or power generation. Excluded are (8) Continuing operations of a NASA devices with millicurie quantities or installation at a level of effort, or al- less of radioactive materials used as in- tered operations, provided the alter- strument detectors and small radioiso- ations induce only social and/or eco- tope heaters used for local thermal nomic effects but no natural or phys- control, provided they are properly ical environmental effects. contained and shielded. (e) Even though an action may be (d) NASA actions categorically ex- categorically excluded from the need cluded from the requirements to pre- for a formal environmental assessment pare either an environmental assess- or environmental impact statement, it ment or an EIS (§ 1508.4 of the CEQ is not excluded from the requirement Regulations) fit the following criteria: for an environmental analysis con- They are each sub-elements of an ap- ducted during the earliest planning proved broadbased level-of-effort NASA phases. If that analysis shows that the science and technology program (basic action deviates from the criteria for research, applied research, develop- exclusion and it is concluded that there ment of technology, ongoing mission may be significant environmental ef- operations), facility program, or insti- fects, an environmental assessment tutional program; and they are each must be carried out. Based upon that managed relatively independently of assessment, a determination must then other related sub-elements by means of be made whether or not to prepare an separate task orders, Research and environmental impact statement. Technology Operating Plans, etc. Spe- cific NASA actions fitting these cri- [44 FR 44485, July 30, 1979, as amended at 53 teria and thus categorically excluded FR 9761, Mar. 25, 1988] from the requirements for environ- mental assessments and environmental § 1216.306 Preparation of environ- impact statements are: mental assessments. (1) R&D (or SFCDC) activities in (a) For each NASA action meeting space science (e.g., Physics and Astron- the criteria of 14 CFR 1216.305(b) and omy Research and Analysis, Planetary for other actions as required, the re- Exploration Mission Operations and sponsible Headquarters official shall Data Analysis) other than specific prepare an environmental assessment spacecraft development and flight (40 CFR 1501.3 and 1508.9 of the CEQ projects. Regulations) and, on the basis of that (2) R&D activities in space and ter- assessment, determine if an EIS is re- restrial applications (e.g., Resource Ob- quired; except where action meeting servations Applied Research and Data the criteria is strictly of a local nature Analysis, Technology Utilization) under the purview of the Field Installa- other than specific spacecraft develop- tion Director. ment and flight projects. (b) If the determination is that no en- (3) R&D activities in aeronautics and vironmental impact statement is re- space technology and energy tech- quired, the Headquarters official or nology applications (e.g., Research and Field Installation Director, shall, in
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coordination with the Associate Ad- process shall include, but not be lim- ministrator for Management, prepare a ited to: ‘‘Finding of No Significant Impact.’’ (a) Air quality; (See 40 CFR 1508.13 of the CEQ Regula- (b) Water quality; tions.) The ‘‘Finding of No Significant (c) Waste generation, treatment, Impact’’ shall be made available to the transportation disposal and storage; affected public through direct distribu- (d) Noise, sonic boom, and vibration; tion and publication in the FEDERAL (e) Toxic substances; REGISTER, or coordinated with the State Single Point of Contact pursuant (f) Biotic resources; to E.O. 12372, as amended, ‘‘Intergov- (g) Radioactive materials and non- ernmental Review of Federal Pro- ionizing radiation; grams,’’ as appropriate. (h) Endangered species; (c) If the determination is that an en- (i) Historical, archeological, and rec- vironmental impact statement is re- reational factors; quired, the Headquarters official shall (j) Wetlands and floodplains; and proceed with the ‘‘notice of intent to (k) Economic, population and em- prepare an EIS’’ (see 40 CFR 1508.22 of ployment factors, provided they are the CEQ Regulations). The Head- interrelated with natural or physical quarters official shall transmit this no- environmental factors. tice to the Associate Administrator for Management for review and subsequent § 1216.308 Preparation of draft state- publication in the FEDERAL REGISTER ments. (see 40 CFR 1507.3(e) of the CEQ Regula- tions). The Headquarters official shall (a) The responsible Headquarters offi- then apply procedures set forth in 14 cial shall prepare the draft environ- CFR 1216.307 to determine the scope of mental impact statement in the man- the EIS and proceed to prepare and re- ner provided in 40 CFR part 1502 of the lease the environmental statement in CEQ Regulations and shall submit the accordance with the CEQ Regulations draft statement and any attachments and the procedures of this subpart. to the Associate Administrator for (d) Environmental assessments may Management for NASA review prior to be prepared for any actions, even those any formal review outside NASA. This which meet the criteria for environ- submission shall be accompanied by a mental impact statements (§ 1216.305(c)) list of Federal, State, and local offi- or for categorical exclusion cials (40 CFR part 1503 of the CEQ Reg- (§ 1216.305(d)), if the responsible Head- ulations) and a list of other interested quarters official believes that the ac- parties (40 CFR 1506.6 of the CEQ Regu- tion may be an exception or that an as- lations) from whom comments should sessment will assist in planning or de- be requested. cisionmaking. (b) After the NASA review is com- [44 FR 44485, July 30, 1979, as amended at 53 pleted, the Associate Administrator for FR 9761, Mar. 25, 1988] Management shall submit the approved § 1216.307 Scoping. draft statement to the Environmental Protection Agency (EPA), Office of The responsible Headquarters official Federal Activities, and shall seek the shall conduct an early and open process views of appropriate agencies and indi- for determining the scope of issues to be addressed in environmental impact viduals in accordance with 40 CFR part statements and for identifying the sig- 1503 and § 1506.6 of the CEQ Regula- nificant issues related to a proposed ac- tions. tion. The elements of the scoping proc- (c) Comments received shall be pro- ess are defined in § 1501.7 of the CEQ vided to the originating official for Regulations and the process must in- consideration in preparing the final clude considerations of the range of ac- statement. To the extent possible, re- tions, alternatives, and impacts dis- quirements for review and consultation cussed in § 1508.25 of the CEQ Regula- with other agencies on environmental tions. The range of environmental cat- matters established by statutes other egories to be considered in the scoping than NEPA, such as the review and
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consultation requirements of the En- § 1216.310 Preparation of final state- dangered Species Act of 1973, as amend- ments. ed, should be met prior to or through (a) After conclusion of the review this review process (§ 1216.320). process with other Federal, State, and [44 FR 44485, July 30, 1979, as amended at 53 local agencies and the public, the re- FR 9761, Mar. 25, 1988] sponsible Headquarters official shall consider all suggestions, revise the § 1216.309 Public involvement. statement as appropriate, and forward the proposed final statement to the As- (a) Interested persons can get infor- sociate Administrator for Manage- mation on NASA environmental im- ment. The Associate Administrator for pact statements and other aspects of Management shall submit the approved NASA’s NEPA process by contacting final statement to the EPA Office of the Assistant Associate Administrator Federal Activities, to all parties who for Facilities Engineering, Code NX, commented, and to other interested NASA Headquarters, Washington, DC parties in accordance with CEQ Regu- 20546, 202–453–1965. Pertinent informa- lations. tion regarding any aspect of the NEPA (b) Each draft and final statement, process may also be mailed to the the supporting documentation, and the above address. record of decision shall be available for (b) Responsible Headquarters offi- public review and copying at the office cials and NASA Field Installation Di- of the responsible Headquarters offi- rectors shall identify those persons, cial, or at the office of a suitable des- community organizations, and environ- ignee. Copies of draft and final environ- mental interest groups who may be in- ment impact statements shall also be terested or affected by the proposed available at the NASA Information NASA action and who should be in- Center, 600 Independence Avenue, SW., volved in the NEPA process. They shall Washington, DC 20546; at information submit a list of such persons and orga- centers at appropriate NASA field in- nizations to the Associate Adminis- stallations; and at appropriate state trator for Management at the same and local clearinghouses. time they submit: [44 FR 44485, July 30, 1979, as amended at 53 (1) A recommendation regarding a FR 9762, Mar. 25, 1988] ‘‘Finding of No Significant Impact,’’ (2) A ‘‘Notice of Intent to Prepare an § 1216.311 Record of the decision. EIS,’’ At the time of the decision on the (3) A recommendation for public proposed action, the originating Head- hearings, quarters official shall consult with the (4) A preliminary draft EIS, Associate Administrator for Manage- (5) A preliminary final EIS, ment and prepare a concise public (6) Other preliminary environmental record of the decision. (See 40 CFR 1505.2 of the CEQ Regulations.) documents (14 CFR 1216.321(d)). (c) The Associate Administrator for [53 FR 9762, Mar. 25, 1988] Management may modify such lists re- ferred to in paragraph (b) of this sec- § 1216.312 Timing. tion as appropriate to ensure that (a) Environmental impact statements NASA shall comply, to the fullest ex- are drafted when the Headquarters offi- tent practicable, with 40 CFR 1506.6 of cial has determined that the statement the CEQ Regulations and section 2–4(d) shall be prepared. No decision to pro- of Executive Order 12114. ceed to the development/construction (d) The decision whether to hold pub- (or implementation) phase of the pro- lic hearings shall be made by the Asso- posed action (the major decision point ciate Administrator for Management in of § 1216.304(b)) shall be made by NASA consultation with the General Counsel. until the later of the following dates (§ 1506.10 of the CEQ Regulations); [53 FR 9762, Mar. 25, 1988, as amended at 56 (1) Ninety days after publication of FR 50507, Oct. 7, 1991] an EPA notice of a NASA draft EIS.
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(2) Thirty days after publication of mentation already available, and avoid an EPA notice of a NASA final EIS. repetition. (b) When necessary to comply with other specific statutory requirements, § 1216.315 Processing legislative envi- NASA shall consult with and obtain ronmental impact statements. from EPA time periods other than (a) Preparation of a legislative envi- those specified by the Council for tim- ronmental impact statement shall con- ing of agency action. form to the requirements of 40 CFR 1506.8 of the CEQ Regulations. The re- § 1216.313 Implementing and moni- sponsible Headquarters official, in co- toring the decision. ordination with the Associate Adminis- (a) Section 1505.3 of the CEQ Regula- trator for Management, shall identify tions provides for agency monitoring those NASA recommendations or re- to assure that mitigation measures and ports on legislation that would require other commitments associated with preparation of environmental impact the decision and its implementation statements in accordance with criteria and described in the EIS are carried set forth in 14 CFR 1216.305. out and have the intended effects. (b) For the purposes of this provision, (b) The responsible Headquarters offi- ‘‘legislation’’ not only excludes re- cial shall, as necessary, conduct the re- quests for appropriations (40 CFR quired monitoring and shall provide 1508.17 of the CEQ Regulations), but periodic reports as required by the As- also excludes the annual authorization sociate Administrator for Manage- bill submitted to the Congress. ment. [53 FR 9762, Mar. 25, 1988] (c) If the monitoring activity indi- cates that resulting environmental ef- § 1216.316 Cooperating with other fects differ from those described in the agencies and individuals. current documents, the Headquarters (a) The Associate Administrator for official shall reassess the environ- Management, in coordination with the mental impact and consult with the Associate Administrator for External Associate Administrator for Manage- Relations, shall ensure that NASA offi- ment to determine the need for addi- cials have an opportunity to cooperate tional mitigation measures and wheth- with other agencies and individuals. er to prepare a supplement to the EIS He/she shall keep abreast of the activi- (see 40 CFR 1502.9 of the CEQ Regula- ties of Federal, state, and local agen- tions). cies, particularly activities in which [44 FR 44485, July 30, 1979, as amended at 53 NASA has expertise or jurisdiction by FR 9762, Mar. 25, 1988] law (see 40 CFR 1508.15 of the CEQ Reg- ulations). He/she shall inform the re- § 1216.314 Tiering. sponsible Headquarters official of the Actions which are the subject of an need for cooperation as necessary. environmental impact statement and (b) At the request of the Associate which represents projects of broad Administrator for Management, Head- scope may contain within them compo- quarters officials shall initiate discus- nent actions of narrower scope, perhaps sions with another Federal agency con- restricted to individual sites of activ- cerning those activities which may be ity or sequential stages of a mission, the subject of that agency’s EIS on and which themselves may require en- which NASA proposes to comment. vironmental assessments and, where (c) At the request of the Associate necessary, environmental impact Administrator for Management, the re- statements. The CEQ Regulations pro- sponsible Headquarters official shall, vide that agencies may use ‘‘Tiering’’ in the interest of eliminating duplica- (§ 1508.28 of the CEQ Regulations) of en- tion, prepare joint analyses, assess- vironmental impact statements to re- ments, and statements with state and late such broad and narrow actions. local agencies. These joint environ- When employing tiering, Headquarters mental documents shall conform with officials shall, by reference, make max- the requirements of these procedures imum use of environmental docu- and overall NASA policy.
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(d) Because of the uniqueness of the § 1216.318 Deviations. NASA’s aerospace activities, it is un- From time to time there will arise likely that NASA will have the oppor- good and valid reasons for a deviation tunity to ‘‘adopt’’ environmental state- from these procedures. These proce- ments prepared by other agencies (40 dures are not intended to be a sub- CFR 1506.3 of the CEQ Regulations). stitute for sound professional judg- However, should the responsible NASA ment. Accordingly, if and as problems offical wish to adopt a Federal draft or arise which justify a deviation, the pro- final environmental impact statement or portion thereof, he/she shall consult posed deviation and supporting ration- with the Associate Administrator for ale shall be forwarded to the Associate Management to determine whether Administrator for Management. Unless that statement meets NASA require- such documentation is received, it will ments. be assumed that each planning and de- cisionmaking action is in accordance (e) From time to time, there may be disagreements between NASA and with these procedures. other Federal agencies regarding which [53 FR 9763, Mar. 25, 1988] agency has primary responsibility to prepare an environmental impact OTHER REQUIREMENTS statement in which both parties are in- volved. The Headquarters official with § 1216.319 Environmental resources primary responsibility for the activity document. in question shall consult with the As- Each Field Installation Director sociate Administrator for Management shall ensure that there exists an envi- to resolve such questions in accordance ronmental resources document which with 40 CFR 1501.5 of the CEQ Regula- describes the current environment at tions. that field installation, including cur- (f) Responsibility for the environ- rent information on the effects of mental analyses and any necessary en- NASA operations on the local environ- vironmental assessments and environ- ment. This document shall include in- mental impact statements required by formation on the same environmental permits, leases, easements, etc., pro- effects as included in an environmental posed for issuance to non-Federal ap- impact statement (see 14 CFR 1216.307). plicants rests with the Headquarters This document shall be coordinated official responsible for granting of that with the Associate Administrator for permit, lease, easement, etc. The re- Management and shall be published in sponsible Headquarters official shall an appropriate NASA report category consult with the Associate Adminis- for use as a reference document in pre- trator for Management for advice on paring other environmental documents the type of environmental information (e.g., environmental impact statements needed from the applicant and on the for proposed actions to be located at extent of the applicant’s participation the NASA field installation in ques- in the necessary environmental studies tion). The Director of each NASA field and their documentation. installation shall ensure that existing resource documents are reviewed and [53 FR 9762, Mar. 25, 1988] updated, if necessary, by December 31, § 1216.317 Classified information. 1980, and at appropriate intervals thereafter. Environmental assessments and im- pact statements which contain classi- [53 FR 9763, Mar. 25, 1988] fied information to be withheld from public release in the interest of na- § 1216.320 Environmental review and tional security or foreign policy shall consultation requirements. be organized so that the classified por- (a) Headquarters officials and Field tions are appendices to the environ- Installation Directors shall, to the mental document itself. The classified maximum extent possible, conduct en- portion shall not be made available to vironmental analyses, assessments, the public. and any impact statement preparation
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concurrently with environmental re- 1979, the Headquarters official shall views required by the laws and regula- analyze actions under his/her cog- tions listed below: nizance with due regard for the envi- (1) Section 106 of the National His- ronmental effects abroad of such ac- toric Preservation Act of 1966 (16 U.S.C. tions. The Headquarters official shall 470(f)) requires identification of Na- consider whether such actions involve: tional Register properties, eligible (1) Potential environmental effects properties, or properties which may be on the global commons (i.e., oceans and eligible for the National Register with- the upper atmosphere); in the area of the potential impact of a (2) Potential environmental effects NASA proposed action. Evaluation of on a foreign nation not participating the impact of the NASA action on such with or not otherwise involved in the properties shall be discussed in draft NASA activity; environmental impact statements and (3) The export of products or facili- transmitted to the Advisory Council on ties producing products (or emission/ Historic Preservation for comments. effluents) which in the United States (2) Section 7 of the Endangered Spe- are prohibited or strictly regulated be- cies Act (16 U.S.C. 1531 et seq.) requires cause their effects on the environment indentification of and consultation on create a serious public health risk. The aspects of the NASA action that may Associate Administrator for Manage- affect listed species or their habitat. A ment will provide additional guidance written request for consultation, along regarding the types of chemical, phys- with the draft statement, shall be con- ical, and biological agents involved. veyed to the Regional Director of the (4) A physical project which, in the U.S. Fish and Wildlife Service or the U.S., would be prohibited or strictly National Marine Fisheries Service, as regulated by Federal law to protect the appropriate, for the Region where the environment against radioactive sub- action will be carried out. stances; (3) Executive Order 11988 (Floodplains (5) Potential environmental effects Management) and Executive Order on natural and ecological resources of 11990 (Wetlands), as amended, and im- global importance and which the Presi- plemented by 14 CFR subpart 1216.2— dent in the future may designate (or Floodplains and Wetlands Management, which the Secretary of State des- prescribe procedures to avoid adverse ignates pursuant to international trea- impacts associated with the occupancy ty). A list of any such designations will and modification of floodplains and be available from the Associate Admin- wetlands and require identification and istrator for Management. evaluation of actions which are pro- (b) Prior to decisions (§ 1216.304) on posed for location in or which may af- any action falling into the categories fect a floodplain or wetland. A com- specified in paragraph (a), the Head- parative evaluation of such actions quarters official shall make a deter- shall be discussed in draft environ- mination whether such action may mental impact statements and trans- have a significant environmental effect mitted to appropriate State Single abroad. Point of Contact for comments. (c) If the Headquarters official deter- (b) Other environmental review and mines that the action will not have a consultation requirements peculiar to significant environmental effect NASA, if any, may be identified in the abroad, he/she shall prepare a memo- NASA environmental impact imple- randum for the record which states the mentation handbook. reasoning behind such a determination. [44 FR 44485, July 30, 1979, as amended at 53 A copy of the memorandum shall be FR 9763, Mar. 25, 1988] forwarded to the Associate Adminis- trator for Management. Note that § 1216.321 Environmental effects these procedures do not allow for cat- abroad of major Federal actions. egorical exclusions (E.O. 12114, section (a) In accordance with these proce- 2–5(d)). dures and E.O. 12114, ‘‘Environmental (d) If the Headquarters official deter- Effects Abroad of Major Federal Ac- mines that an action may have a sig- tions’’ (44 FR 1957), dated January 4, nificant environmental effect abroad,
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he/she shall consult with the Associate Commissioner of Customs duty-free Administrator for Management and the entry of articles into the United States Director, International Relations Divi- for the use of NASA or for implementa- sion. The Associate Administrator for tion of a NASA international program, Management, in coordination with the including articles that will be launched Director, International Relations Divi- into space, spare parts for such arti- sion, shall (as specified in E.O. 12114) cles, ground support equipment, or make a determination whether the sub- uniquely associated equipment for use ject action requires: in connection with a NASA inter- (1) An environmental impact state- national program or launch service ment, agreement. This part also sets forth (2) Bilateral or multilateral environ- NASA’s procedures with respect to the mental studies, or use of its authority to bring foreign- (3) Concise reviews of environmental owned articles and articles from space issues. into the customs territory of the (e) When informed of the determina- United States, and describes the non- tion of the Associate Administrator for Management, the Headquarters official import status of such articles. shall proceed to take the necessary ac- § 1217.101 Applicability. tions in accordance with these imple- menting procedures. This part applies to qualifying arti- (f) The Associate Administrator for cles entered or withdrawn from ware- Management shall, in coordination house for consumption in the customs with the Associate Administrator for territory of the United States, and to External Relations, determine when an articles brought into the customs terri- affected nation shall be informed re- tory of the United States by NASA garding the availability of documents from space or from foreign country as referred to in paragraph (d) of this sec- part of the NASA international pro- tion and coordinate with the Depart- gram. ment of State all NASA communica- tions with foreign governments con- § 1217.102 Background. cerning environmental matters as re- In order to encourage and facilitate lated to E.O. 12114. the use of NASA’s launch services for [44 FR 44485, July 30, 1979, as amended at 53 the exploration and use of space, sec- FR 9763, Mar. 25, 1988] tion 116 of Public Law 97–446 provided for the duty-free entry into the United PART 1217—DUTY-FREE ENTRY OF States of certain articles imported by SPACE ARTICLES NASA for its space-related activities or articles imported by another person or Sec. entity for the purpose of meeting its 1217.100 Scope. obligations under a launch services 1217.101 Applicability. agreement with NASA. Such articles 1217.102 Background. were certified by NASA to the Commis- 1217.103 Authority to certify. 1217.104 Certification forms. sioner of Customs for duty-free entry 1217.105 Procedures. to be launched into space or space 1217.106 Articles brought into the United parts or necessary and uniquely associ- States by NASA from space. ated support equipment for use in con- AUTHORITY: Sections 101 and 103 of Pub. L. nection with a launch into space. This 103–465, 108 Stat. 4814 and 4819; Proclamation exemption from duty was provided for No. 6780 of March 23, 1995, 60 FR 15845 (March in Subheading 9808.00.80, Harmonized 27, 1995). Tariff Schedule of the United States SOURCE: 62 FR 6467, Feb. 12, 1997, unless (HTSUS) (19 U.S.C. 1202). Also, HTSUS, otherwise noted. Chapter VIII, U.S. note 1, pursuant to the same law, provided that return of § 1217.100 Scope. articles by NASA from space to the This part sets forth policy and proce- United States would not be considered dures with respect to the use of the an importation, and similarly not be NASA’s authority to certify to the U.S. subject to a duty.
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As a result of the Uruguay Round Attn: ID/Manager, International Tech- agreements of the 1994 General Agree- nology Transfer Policy, National Aero- ment on Tariffs and Trade, this author- nautics and Space Administration, ity was revised and expanded in scope. Washington, DC 20546. It now provides that imports of articles (3) The NASA Associate Adminis- for NASA’s use and articles imported trator for Space Flight is authorized to to implement NASA’s international issue the certification for articles im- programs, including articles to be ported into the United States by per- launched into space, parts thereof, sons or entities under agreements ground support equipment, and unique- other than those identified in para- ly associated equipment for use in con- graphs (a)(1) and (a)(2) of this section, nection with NASA’s international pro- including launch services agreements. grams and launch service agreements Requests for certification should be would be eligible for duty-free customs sent to: Office of Space Flight, Attn: M/ entry upon certification by NASA to Director, Space Operations Utilization, the Commissioner of Customs. The re- vised authorities also provided, in U.S. National Aeronautics and Space Ad- note 1 to subchapter VIII of chapter 98 ministration, Washington, DC 20546. of the HTSUS, that articles brought (b) Each certification by the officials into the customs territory of the identified in paragraphs (a)(1), (a)(2), United States by NASA from space or and (a)(3) of this section shall receive from a foreign country as part of a the concurrence of the Office of the NASA’s international programs would General Counsel. not be considered imports or subject to (c) Subject to procedures established customs entry requirements. by the officials identified in paragraphs (a)(1), (a)(2), or (a)(3) of this section, as § 1217.103 Authority to certify. appropriate, the Center Procurement (a) The following NASA officials, Officer or a Program Manager at a their deputies, and designees within NASA Installation who is designated their respective organizations are au- by an official identified in paragraphs thorized, under the conditions de- (a)(1), (a)(2), or (a)(3) of this section scribed herein, to make the certifi- may make the certification to the cation to the Commissioner of Customs Commissioner of Customs required for required for the duty-free entry of the duty-free entry of space articles space articles pursuant to subheading pursuant to subheading HTSUS HTSUS 9808.00.80. 9808.00.80. Such procedures shall in- (1) The NASA Associate Adminis- clude the following requirements: trator for Procurement is authorized to (1) All such certifications by des- issue the certification for articles im- ignated Procurement Officers or Pro- ported into the United States which gram Managers shall receive the con- are procured by NASA or by other U.S. currence of the Chief Counsel of the Government agencies, or by U.S. Gov- issuing NASA Installation; and ernment contractors or subcontractors (2) All such certifications by des- when title to the articles is or will be ignated Procurement Officers or Pro- vested in the U.S. Government pursu- gram Managers shall be promptly re- ant to the terms of the contract or sub- ported to an official identified in para- contract. Requests for certification graphs (a)(1), (a)(2), or (a)(3) of this sec- should be sent to: Office of Procure- tion, as appropriate. ment, Attn: HK/Director, Contract Management Division, National Aero- § 1217.104 Certification forms. nautics and Space Administration, Washington, DC 20546. To the extent an authorized NASA (2) The NASA Associate Adminis- official approves a request for certifi- trator for External Relations is author- cation, that official shall sign a certifi- ized to issue the certification for arti- cate in the following form: cles imported into the United States (a) For articles procured by NASA, a pursuant to international agreements. Customs Service Form CF 7501 (Entry Requests for certification should be Summary) shall be completed, and the sent to: Office of External Relations, following certification shall be used:
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ARTICLES FOR THE NATIONAL AERONAUTICS be in the form of the certifications set AND SPACE ADMINISTRATION forth in paragraphs (a) or (b) of this Item 9808.00.80, Harmonized Tariff Schedule of section, as appropriate, but shall in- the United States clude the following paragraph at the end thereof: Program: llllllllllllllllll I hereby certify that the articles identified Before this certification is used to obtain in [attached invoice] are being imported for duty-free entry of these articles, a cognizant the use of the National Aeronautics and NASA official at the receiving NASA Instal- Space Administration (NASA) in accordance lation, who is designated by the Installation with 9808.00.80, Harmonized Tariff Schedule Director, shall verify in writing that specifi- of the United States. cally identified articles to be entered on a particular date are the articles described in Name llllllllllllllllllll this certificate or its attachments. This Date lllllllllllllllllllll verification and this certification shall be (b) For articles imported by NASA to presented to the U.S. Customs Service at the time entry for the particular articles is implement international programs of sought. NASA to which NASA will take title, Name llllllllllllllllllll or which remain the property of for- eign entities under such programs, no Date lllllllllllllllllllll entry is required pursuant to U.S. note With respect to articles represented 1 to HTSUS subchapter VIII of chapter to be: procurements by NASA; or im- 98. For such articles, the following cer- ports to implement international pro- tification shall be used: grams of NASA to which NASA will take title, or foreign-owned articles for ARTICLES FOR USE IN AN INTERNATIONAL PRO- use in a NASA international program, GRAM OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION the NASA official issuing the blanket certificate shall review the proposed Item 9808.00.80, Harmonized Tariff Schedule of articles and approve their eligibility the United States for duty-free entry. A description of Program: llllllllllllllllll these articles shall either be referred Foreign Owner(s) (if applicable): llllll to in the blanket certificate and pro- In accordance with subheading 9808.00.80 vided in Form CF 7501 (Entry Sum- and U.S. note 1 to subchapter VIII of chapter mary) for procurements or attached to 98, Harmonized Tariff Schedule of the United the certificate for imports to imple- States, I hereby certify that the above-de- ment NASA international programs, as scribed shipment is being brought into the appropriate. customs territory of the United States as part of an international program of the Na- § 1217.105 Procedures. tional Aeronautics and Space Administra- tion (NASA). No CF 7501 entry is required for (a) Requests for certification shall be this shipment. All articles contained in this forwarded to an appropriate NASA offi- shipment are, and shall remain, the property cial or designee as provided for in of NASA or of the foreign entities identified § 1217.103 of this part. above. Except for articles consumed in the (b) Each request for certification execution of the above-described Program, shall be accompanied by: none of these articles will be made available (1) A proposed certificate as provided for sale or other disposition to persons or in- for in § 1217.104 of this part; stitutions not directly involved in the Pro- gram identified above. (2) The information and documenta- tion required by 19 CFR 10.102(a), in- Name llllllllllllllllllll cluding invoice documentation or a de- Date lllllllllllllllllllll scription of covered articles; and (c) A blanket certificate for a series (3) The anticipated date of entry of of imports under a specific NASA inter- entry and port of entry for each arti- national program or procurement is cle. If the article is to be transported authorized but shall require written in bond from the port of arrival to an- verification by a NASA official des- other port of entry in the United ignated by a Director of a receiving States, identify both ports. NASA Installation that the articles re- (c) The signed certificate and its at- ceived meet the conditions of the cer- tachment(s) will be forwarded to the tificate. The blanket certificate shall NASA Installation responsible for
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duty-free entry of the materials, unless PART 1221—THE NASA SEAL AND issued at such Installation by an au- OTHER DEVICES, AND THE CON- thorized official in accordance with GRESSIONAL SPACE MEDAL OF § 1217.103(c) of this part. These docu- HONOR ments shall be presented to an appro- priated Customs official at the port(s) Subpart 1221.1—NASA Seal, NASA Insignia, of entry. The procedures specified in 19 NASA Logotype, NASA Program Identi- CFR 10.102 will be followed by the fiers, NASA Flags, and the Agency’s NASA Installation in obtaining duty- Unified Visual Communications System free entry at the Customs port(s) of entry. The NASA Installation should Sec. 1221.100 Scope. ensure that, at the time the articles 1221.101 Policy. are to be released after Customs entry, 1221.102 Establishment of the NASA Seal. the custody of the imported articles is 1221.103 Establishment of the NASA Insig- transferred directly from the carrier or nia. from the U.S. Customs Service to the 1221.104 Establishment of the NASA Logo- type. NASA Installation, its agent, or the 1221.105 Establishment of the NASA Pro- launch service customer in the case of gram Identifiers. a Launch and Associated Services 1221.106 Establishment of the NASA Flag. Agreement. 1221.107 Establishment of the NASA Admin- (d) If articles procured under con- istrator’s, Deputy Administrator’s, and Associate Deputy Administrator’s Flags. tract by NASA are imported prior to 1221.108 Establishment of the NASA Unified compliance with these procedures and Visual Communications System. it is essential that the articles be re- 1221.109 Use of the NASA Seal. leased from Customs custody prior to 1221.110 Use of the NASA Insignia. such compliance, the procedures out- 1221.111 Use of the NASA Logotype. 1221.112 Use of the NASA Program Identi- lined in 19 CFR 10.101 may be followed fiers. by cognizant NASA officials to secure 1221.113 Use of the NASA Flags. the release of the articles from Cus- 1221.114 Approval of new or change pro- toms custody. To the extent applicable, posals. the procedures in § 1217.105 of this part 1221.115 Violations. 1221.116 Compliance and enforcement. shall be followed when time permits to obtain duty-free entry for the articles Subpart 1221.2—The Congressional Space released from Customs custody. Medal of Honor § 1217.106 Articles brought into the 1221.200 Scope. United States by NASA from space. 1221.201 Basis for award of the medal. 1221.202 Description of the medal. Pursuant to U.S. note 1 subchapter 1221.203 Nominations. VIII of chapter 98, HTSUS, articles 1221.204 Proceedings of the NASA Incentive brought into the customs territory of Awards Board. the United States by NASA from space APPENDIX A TO PART 1221—CONGRESSIONAL shall not be considered an importation, SPACE MEDAL OF HONOR and no certification or entry of such materials through U.S. Customs shall Subpart 1221.1—NASA Seal, NASA be required. This provision is applica- Insignia, NASA Logotype, ble to articles brought to the U.S. from NASA Program Identifiers, space whether or not the articles were NASA Flags, and the Agen- launched into space aboard a NASA ve- cy’s Unified Visual Commu- hicle. nications System
AUTHORITY: 42 U.S.C. 2472(a) and 2473(c)(1).
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SOURCE: 58 FR 58944, Nov. 5, 1993, unless (b) The use of the devices prescribed otherwise noted. in this section shall be governed by the provisions of this subpart. The use of § 1221.100 Scope. the devices prescribed in this section This subpart sets forth the policy for any purpose other than as author- governing the use of the NASA Seal, ized by this subpart is prohibited. the NASA Insignia, NASA Logotype, Their misuse shall be subject to the NASA Program Identifiers, and the penalties authorized by statute, as set NASA Flags. This subpart also estab- forth in § 1221.115 and shall be reported lishes and sets forth the concept and as provided in § 1221.116. scope of the NASA Unified Visual Com- (c) Any proposal for a new NASA In- munications System and prescribes the signia, NASA Logotype, NASA Pro- policy and guidelines for implementa- gram Identifier, or for modification to tion of the system. those prescribed in this section shall be processed in accordance with § 1221.114. § 1221.101 Policy. (a) The NASA Seal, the NASA Insig- § 1221.102 Establishment of the NASA nia, NASA Logotype, NASA Program Seal. Identifiers, the NASA Flags, and the The NASA Seal was established by Agency’s Unified Visual Communica- Executive Order 10849 (24 FR 9559), No- tions System, as prescribed in § 1221.102 vember 27, 1959, as amended by Execu- through § 1221.108 of this subpart, shall tive Order 10942 (24 FR 4419), May 22, be used exclusively to represent NASA, 1961. The NASA Seal, established by its programs, projects, functions, ac- the President, is the Seal of the Agen- tivities, or elements. The use of any de- cy and symbolizes the achievements vices other than those provided by or and goals of NASA and the United subsequently approved in accordance States in aeronautical and space ac- with the provisions of this subpart is tivities. The NASA Seal shall be used prohibited. as set forth in § 1221.109.
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§ 1221.103 Establishment of the NASA sign element for visual communica- Insignia. tions formerly reserved for the NASA The NASA Insignia was designed by Logotype. The NASA Insignia shall be the Army Institute of Heraldry and ap- used as set forth in § 1221.110, the NASA proved by the Commission of Fine Arts Graphics Standards Manual, NASA In- and the NASA Administrator. It sym- signia Standards Supplement, and any bolizes NASA’s role in aeronautics and related NASA directive or specification space and is established by the NASA approved by the NASA Administrator Administrator as the signature an de- and published subsequent hereto.
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§ 1221.104 Establishment of the NASA NASA Administrator. It symbolizes Logotype. NASA’s role in aeronautics and space The NASA Logotype was approved by from 1975 to 1992 and has been retired. the Commission of Fine Arts and the
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The NASA Logotype shall be used as set forth in § 1221.111.
§ 1221.105 Establishment of NASA Pro- § 1221.106 Establishment of the NASA gram Identifiers. Flag. A separate and unique identifier may The NASA Flags for interior and ex- be designed and approved in connection terior use were created by the NASA with or in commemoration of a major Administrator in January 1960. Com- NASA program. Each approved identi- plete design, size, and color of the fier shall be officially identified by its NASA interior and exterior flags for title such as ‘‘Apollo,’’ ‘‘Skylab,’’ ‘‘Vi- manufacturing purposes are detailed in king,’’ ‘‘Space Shuttle,’’ ‘‘Space Sta- U.S. Army QMG Drawing 5–1–269, revi- tion,’’ or a major NASA anniversary. sion September 14, 1960. The NASA NASA Program Identifiers shall be Flags shall be used as set forth in used as set forth in § 1221.112 pursuant to approval as set forth in § 1221.114. § 1221.113.
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§ 1221.107 Establishment of the NASA NASA Administrator, Deputy Adminis- Administrator’s, Deputy Adminis- trator, and Associate Deputy Adminis- trator’s, and Associate Deputy Ad- trator. Each of these flags conforms to ministrator’s Flags. the basic design of the NASA Flag ex- (a) Concurrently with the establish- cept for the following: × ment of the NASA Flag in January (1) The size of the flag is 3 feet 4 1960, the NASA Administrator also es- feet; (2) The Administrator’s Flag has four tablished NASA Flags to represent the stars;
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(3) The Deputy Administrator’s Flag as new design standards and specifica- has three stars; and tions are developed and approved. Cop- (4) The Associate Deputy Administra- ies of the NASA Graphics Standards tor’s Flag has two stars. Manual and the NASA Insignia Stand- (b) Flags representing these senior ards Supplement may be obtained di- officials shall be used as set forth in rectly from the NASA Graphics Coordi- § 1221.113. nator, Office of Public Affairs, NASA Headquarters. § 1221.108 Establishment of the NASA (d) The Director of each Field Instal- Unified Visual Communications lation has designated an official to System. serve as Graphics Coordinator for his/ (a) The NASA Administrator directed her Installation. The Director, HQ Op- the establishment of a NASA Unified erations Division, has designated an of- Visual Communications System. The ficial to serve as the Headquarters system was developed under the Fed- Graphics Coordinator. Any changes in eral Design Improvement Program ini- these assignments shall be reported to tiated by the President in May 1972. the NASA Graphics Coordinator, NASA This system is the Agencywide pro- Headquarters, Code POS. gram by which NASA projects a con- (e) Graphics Coordinators are respon- temporary, business-like, progressive, sible for ensuring compliance with the and forward-looking image through the NASA Graphics Standards Manual, the use of effective design for improved NASA Insignia Standards Supplement, communications. The system provides and the NASA Unified Visual Commu- a professional and cohesive NASA iden- nications System for their respective tity by imparting continuity of graph- Installations. ics design in all layout, reproduction art, stationery, forms, publications, § 1221.109 Use of the NASA Seal. signs, films, video productions, vehi- (a) The Associate Deputy Adminis- cles, aircraft, and spacecraft markings trator shall be responsible for custody and other items. It creates a unified of the NASA Impression Seal and cus- image which is representative and sym- tody of NASA replica (plaques) seals. bolic of NASA’s progressive attitudes The NASA Seal is restricted to the fol- and programs. lowing: (b) The Associate Administrator for (1) NASA award certificates and med- Public Affairs is responsible for the de- als. velopment and implementation of the (2) NASA awards for career service. NASA Unified Visual Communications (3) Security credentials and employee System. With the development of the identification cards. NASA Unified Visual Communications (4) NASA Administrator’s docu- System, the Office of Public Affairs at ments; the Seal may be used on docu- NASA Headquarters created the NASA ments such as interagency or intergov- Graphics Standards Manual and the ernmental agreements and special re- NASA Insignia Standards Supplement ports to the President and Congress, which are the official guides for the use and on other documents, at the discre- and application of the NASA Insignia tion of the NASA Administrator. and the NASA Unified Visual Commu- (5) Plaques; the design of the NASA nications System. Seal may be incorporated in plaques (c) The Associate Administrator for for display in Agency auditoriums, Public Affairs, NASA Headquarters, presentation rooms, lobbies, offices of has designated a NASA Graphics Coor- senior officials, and on the fronts of dinator to implement and monitor buildings occupied by NASA. A sepa- Agencywide design improvements in rate NASA seal in the form of a 15- consonance with the NASA Graphics inch, round, bronze-colored plaque on a Standards Manual, the NASA Insignia walnut-colored wood base is also avail- Standards Supplement, and the NASA able, but prohibited for use in the Unified Visual Communications Sys- above representational manner. It is tem. The NASA Graphics Coordinator restricted to use only as a presentation will develop and issue changes and ad- item by the Administrator and the ditions to the manual as required and Deputy Administrator.
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(6) The NASA Flag and the NASA Ad- (7) NASA publications, including ministrator’s, Deputy Administrator’s, pamphlets, brochures, manuals, hand- and Associate Deputy Administrator’s books, house organs, bulletins, general Flags, which incorporate the design of reports, posters, signs, charts, exhibits, the Seal. and items of similar nature for general (7) NASA prestige publications which use, as specified in the NASA Graphics represent the achievements or missions Standards Manual and the NASA Insig- of NASA as a whole. nia Standards Supplement. (8) Publications (or documents) in- (8) Briefcases or dispatch cases issued volving participation by another Gov- by NASA. ernment agency for which the other (9) Certificates covering authority to Government agency has authorized the NASA and contractor security per- use of its seal. sonnel to carry firearms. (b) Use of the NASA Seal for any pur- (10) NASA occupied buildings when pose other than as prescribed in this the use of the NASA Insignia is more section is prohibited, except that the appropriate than use of the NASA Seal. Associate Deputy Administrator may (b) Personal articles—NASA employees. authorize, on a case-by-case basis, the (1) Business calling cards of NASA em- use of the NASA Seal for purposes ployees may carry the imprint of the other than those prescribed when the NASA Insignia. Associate Deputy Administrator deems such use to be appropriate. (2) Limited usage on automobiles. If determined appropriate by the cog- § 1221.110 Use of the NASA Insignia. nizant Installation official, it is ac- ceptable to place a NASA Insignia The NASA Insignia is authorized for sticker on personal automobiles where use on the following: such identification will facilitate entry (a) NASA articles. (1) NASA letterhead or control of such vehicles at NASA In- stationary. stallations or parking areas. (2) Films, videotapes, and sound re- cordings produced by or for NASA. (3) Personal items used in connection (3) Wearing apparel and personal with NASA employees’ recreation asso- property items used by NASA employ- ciation activities. ees in the performance of their duties. (4) Items for sale through NASA em- (4) Required uniforms of contractor ployees’ nonappropriated fund activi- employees when performing public af- ties subject to paragraph (c) of this sec- fairs, guard or fire protection duties, tion. and similar duties within NASA Instal- (5) NASA employees shall not use the lations or at other assigned NASA duty NASA Insignia in any manner that stations, and on any required con- would imply that NASA endorses a tractor-owned vehicles used exclu- commercial product, service, or activ- sively in the performance of these du- ity or that material of a nonofficial na- ties, when authorized by NASA con- ture represents NASA’s official posi- tracting officers. tion. (5) Spacecraft, aircraft, automobiles, (c) Miscellaneous articles. (1) The man- trucks and similar vehicles owned by, ufacture and commercial sale of the leased to, or contractor-furnished to NASA Insignia as a separate and dis- NASA, or produced for NASA by con- tinct device in the form of an emblem, tractors, but excluding NASA-owned patch, insignia, badge, decal, vinylcal, vehicles used and operated by contrac- cloth, metal, or other material which tors for the conduct of contractor busi- would preclude NASA’s control over its ness. use or application is prohibited. (6) Equipment and facilities owned (2) Use of the NASA Uniform Patch- by, leased to, or contractor-furnished es, which incorporate the NASA Insig- to NASA, such as machinery, major nia, is authorized only as prescribed in tools, ground handling equipment, of- the NASA Graphics Standards Manual fice and shop furnishings (if appro- and the NASA Insignia Standards Sup- priate), and similar items of a perma- plement, for NASA personnel and nent nature, including those produced NASA contractor personnel identifica- for NASA by contractors. tion.
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(3) No approval for use of the NASA will be approved on a case-by-case Insignia will be authorized when its use basis by the Associate Administrator can be construed as an endorsement by for Public Affairs. NASA of a product or service. (e) The manufacture, sale, or use of (4) Items bearing the NASA Insignia any colorable imitation of the design such as souvenirs, novelties, toys, mod- of an official NASA Program Identifier els, clothing, and similar items (includ- will not be approved. ing items for sale through the NASA employees’ nonappropriated fund ac- § 1221.113 Use of the NASA Flags. tivities) may be manufactured and sold (a) The NASA Flag is authorized for only after the NASA Insignia applica- use only as follows: tion has been submitted to, and ap- (1) On or in front of NASA buildings. proved by, the Associate Administrator (2) At NASA ceremonies. for Public Affairs, or designee, NASA (3) At conferences (including display Headquarters, Washington, DC 20546. in NASA conference rooms). (d) Use of the NASA Insignia for any (4) At governmental or public appear- other purpose than as prescribed in ances of NASA executives. this section is prohibited, except that (5) In private offices of senior offi- the Associate Administrator for Public cials. Affairs may authorize on a case-by- (6) As otherwise authorized by the case basis the use of the NASA Insignia NASA Administrator or designee. for other purposes when the Associate (7) The NASA Flag must be displayed Administrator for the Public Affairs with the United States Flag. When the deems such use to be appropriate. United States Flag and the NASA Flag are displayed on a speaker’s platform § 1221.111 Use of the NASA Logotype. in an auditorium, the United States The NASA Logotype has been retired Flag must occupy the position of honor and is used only in an authentic histor- and be placed at the speaker’s right as ical context, and only with prior writ- the speaker faces the audience, with ten approval of the NASA Adminis- the NASA Flag at the speaker’s left. trator. (b) The NASA Administrator’s, Dep- uty Administrator’s and Associate § 1221.112 Use of the NASA Program Deputy Administrator’s Flags shall be Identifiers. displayed with the United States Flag (a) Official NASA Program Identi- in the respective offices of these offi- fiers will be restricted to the uses set cials but may be temporarily removed forth in this section and to such other for use at the discretion of the officials uses as the Associate Administrator for concerned. Public Affairs may specifically ap- prove. § 1221.114 Approval of new or change (b) Specific approval is given for the proposals. following uses: (a) Except for NASA Astronaut Mis- (1) Use of exact reproductions of a sion Crew Badges/Patches, any pro- badge in the form of a patch made of posal to change or modify the emblem- cloth or other material, or a decal, or atic devices set forth in this subpart or a gummed sticker on articles of wear- to introduce a new emblematic device ing apparel and personal property other than as prescribed in this subpart items; and requires the written approval of the (2) Use of exact renderings of a badge NASA Administrator with prior ap- on a coin, medal, plaque, or other com- proval and recommendation of the Di- memorative souvenirs. rector, Public Services Division. (c) The manufacture and sale or free (b) In addition to the written ap- distribution of identifiers for the uses proval of the NASA Administrator, any approved or that may be approved proposal for a new or for a modification under paragraphs (a) and (b) of this sec- to the design of the NASA Insignia tion are authorized. may also be submitted to the Commis- (d) Portrayal of an exact reproduc- sion of Fine Arts for its advice as to tion of a badge in conjunction with the the merit of the design. If approved in advertising of any product or service writing by the NASA Administrator
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and advice received from the Commis- § 1221.200 Scope. sion of Fine Arts, the NASA Insignia This subpart establishes procedures and the use of such NASA Insignia for nominating an astronaut for the must be prescribed in this subpart and Congressional Space Medal of Honor. published in the FEDERAL REGISTER. (c) Proposals to establish, change, or § 1221.201 Basis for award of the modify NASA Astronaut Crew Mission medal. Badges/Patches requires the written (a) The standard of award for the approval of the Director, Flight Crew Congressional Space Medal of Honor is Operations, Johnson Space Center; established by Pub. L. 91–76 (42 U.S.C. Center Director, Johnson Space Center; 2461) which provides that the President and the Associate Administrator for may award the Medal to any ‘‘astro- Space Flight. Decals/patches/badges naut who in the performance of his du- may be produced as soon as the ap- ties has distinguished himself by ex- proval cycle is completed. ceptionally meritorious efforts and contributions to the welfare of the Na- § 1221.115 Violations. tion and of mankind.’’ (a) NASA Seal. Any person who uses (b) Only one Congressional Space the NASA Seal in a manner other than Medal of Honor may be awarded to a as authorized in this subpart shall be person. However, for each succeeding subject to the provisions of Title 18 act that would otherwise justify the U.S.C. 1017. award of the Medal, the President may award a suitable bar or other device. (b) NASA Insignia, NASA Logotype, (c) The Medal may be awarded to any and NASA Program Identifiers. Any per- person who is or has been designated to son who uses the NASA Insignia, NASA travel in space and who has distin- Logotype, or NASA Program Identifier guished himself or herself while under- in a manner other than as authorized taking duties in preparation for, execu- in this subpart shall be subject to the tion of, or subsequent to, but in con- provisions of title 18 U.S.C. 701. nection with, a space flight. (d) The Medal may be awarded for ac- § 1221.116 Compliance and enforce- tions occurring before the effective ment. date of this subpart 1221.2, and, when In order to ensure adherence to the appropriate, posthumously. authorized uses of the NASA Seal, the NASA Insignia, the NASA Logotype, § 1221.202 Description of the medal. NASA Program Identifiers, and the The description of the Congressional NASA Flags as provided, in this sub- Space Medal of Honor, which was de- part, a report of each suspected viola- signed by the Institute of Heraldry, tion of this subpart (including the use U.S. Army, is set forth in appendix A of unauthorized NASA Insignias) or of to this subpart. Each person awarded questionable usages of the NASA Seal, the Medal also shall receive a citation the NASA Insignia, the NASA Logo- describing the basis for the award. type, NASA Program Identifiers, or the NASA Flags, shall be submitted to the § 1221.203 Nominations. Inspector General, NASA Head- (a) Formal nominations for award of quarters, in accordance with NASA the Congressional Space Medal of Management Instruction 9810.1, ‘‘The Honor on behalf of NASA will be made NASA Investigations Program.’’ by the Administrator to the President. (b) Any person may recommend to Subpart 1221.2—The Congres- the Administrator that an astronaut be sional Space Medal of Honor nominated for award of the Medal. Such a recommendation must be in writing, and must describe in concise AUTHORITY: Pub. L. 91–76, September 29, detail the events believed to warrant 1969. award of the Medal. The recommenda- SOURCE: 43 FR 15624, Apr. 14, 1978, unless tion should, if appropriate, be accom- otherwise noted. panied by supporting documentation,
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such as eyewitness statements, ex- rocket era and the imagination of the men in tracts from official records, sketches, the space program of the United States. The photographs, etc. stylized glory cloud alludes to the glory in (c) All recommendations for nomina- the coat of arms of the United States and to the high esteem of the award. The dark blue tions submitted to the Administrator voided star symbolizes the vast mysteries of or made on his own initiative will be outer space while the brilliancy of the feat is referred to the NASA Incentive Awards represented by a diamond. The eagle with Board for the purpose of investigating wings raised in the spirit of peace represents and making findings of fact and giving man’s first landing on another planet. advice to the Administrator. (d) Any recommendation involving REVERSE an astronaut who is a member of the DESCRIPTION armed services on active duty or who is employed by another agency of the The reverse bears in center the inscription ‘‘CONGRESSIONAL’’ arranged in a semi- Federal Government but temporarily circle above the inscription ‘‘SPACE MEDAL assigned or detailed to NASA shall also PRESENTED TO’’; in base is space for the be transmitted to the Secretary of De- name of the recipient and the date all within fense or the head of the employing an outer circle of fifty stars. agency, as appropriate, for his or her recommendation. SUSPENSION RIBBON (e) The Administrator will forward to DESCRIPTION the President his recommendation, and that of the astronaut’s employing A ribbon 13⁄8 inches in width consisting of 1 agency, as appropriate. the following vertical stripes: gold ⁄16 inch, dark blue 1⁄4 inch, light blue 9⁄32 inch, white 1⁄16 inch, red 1⁄16 inch, white 1⁄16 inch, light § 1221.204 Proceedings of the NASA In- 9 1 1 centive Awards Board. blue ⁄32 inch, dark blue ⁄4 inch, gold ⁄16 inch. The NASA Incentive Awards Board CABLE NOS. OF COLORS shall thoroughly consider the facts giv- Gold ...... 65021 (old gold). ing rise to a recommendation for nomi- Dark Blue ...... 70076 (independence nation and shall prepare a report for blue). the Administrator. The Board should, Blue ...... 65014 (light blue). Red ...... 65006 (scarlet). to the extent practicable, coordinate White ...... 65005. its efforts with those of the astronaut’s employing agency, as appropriate. Its SYMBOLISM final report must take into account The scarlet center line on the white band any pertinent information submitted symbolizes the courage of the astronauts in by the employing agency. the nation’s manned space program and the fire power of rockets that carry the crew APPENDIX A TO PART 1221— through the earth’s atmosphere (light blue); CONGRESSIONAL SPACE MEDAL OF HONOR the light blue is the same color as the chief of the shield of the coat of arms of the OBVERSE United States which appears on the Presi- dent’s flag. The dark blue symbolizes the DESCRIPTION hostile environment of space, the gold edge A circular green enamel wreath of laurel representing success and accomplishment. surmounted by a five-pointed gold star (with Red, white and blue are also the national vertical point downward) and issuing from colors of the United States. between each point a gold flame, the star surmounted by a light blue enamel cloud MINIATURE bank with five lobes edged in gold bearing a five-pointed dark blue enamel star DESCRIPTION fimbriated gold and charged in center with a A one-half size replica of the medal and diamond; standing upon the wreath at top suspension ribbon approximately 25⁄16 inches center a gold eagle with wings displayed. in overall length.
SYMBOLISM LAPEL EMBLEM The laurel wreath, a symbol of great DESCRIPTION achievement, with the overlapping star points, simulates space vehicles moving to A miniature of the obverse of the medal, greater accomplishments through space. The 9⁄16 inch in diameter, all gold with a diamond flames signify the dynamic energy of the in center.
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ROSETTE This includes research conducted by federal civilian employees or military DESCRIPTION personnel, except that each department One-half inch in diameter in the colors of or agency head may adopt such proce- the ribbon. dural modifications as may be appro- priate from an administrative stand- PART 1230—PROTECTION OF point. It also includes research con- HUMAN SUBJECTS ducted, supported, or otherwise subject to regulation by the federal govern- Sec. ment outside the United States. 1230.101 To what does this policy apply? (1) Research that is conducted or sup- 1230.102 Definitions. ported by a federal department or 1230.103 Assuring compliance with this pol- agency, whether or not it is regulated icy—research conducted or supported by any Federal Department or Agency. as defined in § 1230.102(e), must comply 1230.104–1230.106 [Reserved] with all sections of this policy. 1230.107 IRB membership. (2) Research that is neither con- 1230.108 IRB functions and operations. ducted nor supported by a federal de- 1230.109 IRB review of research. partment or agency but is subject to 1230.110 Expedited review procedures for regulation as defined in § 1230.102(e) certain kinds of research involving no must be reviewed and approved, in more than minimal risk, and for minor compliance with §§ 1230.101, 1230.102, changes in approved research. 1230.111 Criteria for IRB approval of re- and 1230.107 through 1230.117 of this pol- search. icy, by an institutional review board 1230.112 Review by institution. (IRB) that operates in accordance with 1230.113 Suspension or termination of IRB the pertinent requirements of this pol- approval of research. icy. 1230.114 Cooperative research. (b) Unless otherwise required by de- 1230.115 IRB records. partment or agency heads, research ac- 1230.116 General requirements for informed consent. tivities in which the only involvement 1230.117 Documentation of informed con- of human subjects will be in one or sent. more of the following categories are 1230.118 Applications and proposals lacking exempt from this policy: definite plans for involvement of human (1) Research conducted in established subjects. or commonly accepted educational set- 1230.119 Research undertaken without the tings, involving normal educational intention of involving human subjects. practices, such as (i) research on reg- 1230.120 Evaluation and disposition of appli- cations and proposals for research to be ular and special education instruc- conducted or supported by a Federal De- tional strategies, or (ii) research on the partment or Agency. effectiveness of or the comparison 1230.121 [Reserved] among instructional techniques, cur- 1230.122 Use of Federal funds. ricula, or classroom management 1230.123 Early termination of research sup- methods. port: Evaluation of applications and pro- (2) Research involving the use of edu- posals. cational tests (cognitive, diagnostic, 1230.124 Conditions. aptitude, achievement), survey proce- AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b). dures, interview procedures or observa- SOURCE: 56 FR 28012, 28019, June 18, 1991, tion of public behavior, unless: unless otherwise noted. (i) Information obtained is recorded in such a manner that human subjects § 1230.101 To what does this policy can be identified, directly or through apply? identifiers linked to the subjects; and (a) Except as provided in paragraph (ii) any disclosure of the human sub- (b) of this section, this policy applies jects’ responses outside the research to all research involving human sub- could reasonably place the subjects at jects conducted, supported or otherwise risk of criminal or civil liability or be subject to regulation by any federal de- damaging to the subjects’ financial partment or agency which takes appro- standing, employability, or reputation. priate administrative action to make (3) Research involving the use of edu- the policy applicable to such research. cational tests (cognitive, diagnostic,
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aptitude, achievement), survey proce- agency but not otherwise covered by dures, interview procedures, or obser- this policy, comply with some or all of vation of public behavior that is not the requirements of this policy. exempt under paragraph (b)(2) of this (e) Compliance with this policy re- section, if: quires compliance with pertinent fed- (i) The human subjects are elected or eral laws or regulations which provide appointed public officials or candidates additional protections for human sub- for public office; or (ii) federal stat- jects. ute(s) require(s) without exception that (f) This policy does not affect any the confidentiality of the personally state or local laws or regulations which identifiable information will be main- may otherwise be applicable and which tained throughout the research and provide additional protections for thereafter. human subjects. (4) Research, involving the collection (g) This policy does not affect any or study of existing data, documents, foreign laws or regulations which may records, pathological specimens, or di- otherwise be applicable and which pro- agnostic specimens, if these sources are vide additional protections to human publicly available or if the information subjects of research. is recorded by the investigator in such (h) When research covered by this a manner that subjects cannot be iden- policy takes place in foreign countries, tified, directly or through identifiers procedures normally followed in the linked to the subjects. foreign countries to protect human (5) Research and demonstration subjects may differ from those set projects which are conducted by or sub- forth in this policy. [An example is a ject to the approval of department or foreign institution which complies agency heads, and which are designed with guidelines consistent with the to study, evaluate, or otherwise exam- World Medical Assembly Declaration ine: (Declaration of Helsinki amended 1989) (i) Public benefit or service pro- issued either by sovereign states or by grams; (ii) procedures for obtaining an organization whose function for the benefits or services under those pro- protection of human research subjects grams; (iii) possible changes in or al- is internationally recognized.] In these ternatives to those programs or proce- circumstances, if a department or dures; or (iv) possible changes in meth- agency head determines that the proce- ods or levels of payment for benefits or dures prescribed by the institution af- services under those programs. ford protections that are at least (6) Taste and food quality evaluation equivalent to those provided in this and consumer acceptance studies, (i) if policy, the department or agency head wholesome foods without additives are may approve the substitution of the consumed or (ii) if a food is consumed foreign procedures in lieu of the proce- that contains a food ingredient at or dural requirements provided in this below the level and for a use found to policy. Except when otherwise required be safe, or agricultural chemical or en- by statute, Executive Order, or the de- vironmental contaminant at or below partment or agency head, notices of the level found to be safe, by the Food these actions as they occur will be pub- and Drug Administration or approved lished in the FEDERAL REGISTER or will by the Environmental Protection be otherwise published as provided in Agency or the Food Safety and Inspec- department or agency procedures. tion Service of the U.S. Department of (i) Unless otherwise required by law, Agriculture. department or agency heads may waive (c) Department or agency heads re- the applicability of some or all of the tain final judgment as to whether a provisions of this policy to specific re- particular activity is covered by this search activities or classes of research policy. activities otherwise covered by this (d) Department or agency heads may policy. Except when otherwise required require that specific research activities by statute or Executive Order, the de- or classes of research activities con- partment or agency head shall forward ducted, supported, or otherwise subject advance notices of these actions to the to regulation by the department or Office for Protection from Research
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Risks, Department of Health and a research activity, (for example, In- Human Services (HHS), and shall also vestigational New Drug requirements publish them in the FEDERAL REGISTER administered by the Food and Drug Ad- or in such other manner as provided in ministration). It does not include re- department or agency procedures.1 search activities which are inciden- tally regulated by a federal department [56 FR 28012, 28019, June 18, 1991; 56 FR 29756, June 28, 1991] or agency solely as part of the depart- ment’s or agency’s broader responsi- § 1230.102 Definitions. bility to regulate certain types of ac- tivities whether research or non-re- (a) Department or agency head means search in nature (for example, Wage the head of any federal department or and Hour requirements administered agency and any other officer or em- by the Department of Labor). ployee of any department or agency to (f) Human subject means a living indi- whom authority has been delegated. vidual about whom an investigator (b) Institution means any public or (whether professional or student) con- private entity or agency (including fed- ducting research obtains eral, state, and other agencies). (1) Data through intervention or (c) Legally authorized representative interaction with the individual, or means an individual or judicial or (2) Identifiable private information. other body authorized under applicable law to consent on behalf of a prospec- Intervention includes both physical pro- tive subject to the subject’s participa- cedures by which data are gathered (for tion in the procedure(s) involved in the example, venipuncture) and manipula- research. tions of the subject or the subject’s en- (d) Research means a systematic in- vironment that are performed for re- vestigation, including research devel- search purposes. Interaction includes opment, testing and evaluation, de- communication or interpersonal con- signed to develop or contribute to gen- tact between investigator and subject. eralizable knowledge. Activities which ‘‘Private information’’ includes infor- meet this definition constitute re- mation about behavior that occurs in a search for purposes of this policy, context in which an individual can rea- whether or not they are conducted or sonably expect that no observation or supported under a program which is recording is taking place, and informa- considered research for other purposes. tion which has been provided for spe- For example, some demonstration and cific purposes by an individual and service programs may include research which the individual can reasonably activities. expect will not be made public (for ex- (e) Research subject to regulation, and ample, a medical record). Private infor- similar terms are intended to encom- mation must be individually identifi- pass those research activities for which able (i.e., the identity of the subject is a federal department or agency has or may readily be ascertained by the specific responsibility for regulating as investigator or associated with the in- formation) in order for obtaining the information to constitute research in- 1 Institutions with HHS-approved assur- volving human subjects. ances on file will abide by provisions of title (g) IRB means an institutional review 45 CFR part 46 subparts A–D. Some of the other Departments and Agencies have incor- board established in accord with and porated all provisions of title 45 CFR part 46 for the purposes expressed in this pol- into their policies and procedures as well. icy. However, the exemptions at 45 CFR 46.101(b) (h) IRB approval means the deter- do not apply to research involving prisoners, mination of the IRB that the research fetuses, pregnant women, or human in vitro has been reviewed and may be con- fertilization, subparts B and C. The exemp- ducted at an institution within the tion at 45 CFR 46.101(b)(2), for research in- constraints set forth by the IRB and by volving survey or interview procedures or ob- other institutional and federal require- servation of public behavior, does not apply to research with children, subpart D, except ments. for research involving observations of public (i) Minimal risk means that the prob- behavior when the investigator(s) do not par- ability and magnitude of harm or dis- ticipate in the activities being observed. comfort anticipated in the research are
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not greater in and of themselves than the institution, regardless of whether those ordinarily encountered in daily the research is subject to federal regu- life or during the performance of rou- lation. This may include an appro- tine physical or psychological exami- priate existing code, declaration, or nations or tests. statement of ethical principles, or a (j) Certification means the official no- statement formulated by the institu- tification by the institution to the sup- tion itself. This requirement does not porting department or agency, in ac- preempt provisions of this policy appli- cordance with the requirements of this cable to department- or agency-sup- policy, that a research project or activ- ported or regulated research and need ity involving human subjects has been not be applicable to any research ex- reviewed and approved by an IRB in ac- empted or waived under § 1230.101 (b) or cordance with an approved assurance. (i). (2) Designation of one or more IRBs § 1230.103 Assuring compliance with established in accordance with the re- this policy—research conducted or quirements of this policy, and for supported by any Federal Depart- which provisions are made for meeting ment or Agency. space and sufficient staff to support (a) Each institution engaged in re- the IRB’s review and recordkeeping du- search which is covered by this policy ties. and which is conducted or supported by (3) A list of IRB members identified a federal department or agency shall by name; earned degrees; representa- provide written assurance satisfactory tive capacity; indications of experience to the department or agency head that such as board certifications, licenses, it will comply with the requirements etc., sufficient to describe each mem- set forth in this policy. In lieu of re- ber’s chief anticipated contributions to quiring submission of an assurance, in- IRB deliberations; and any employ- dividual department or agency heads ment or other relationship between shall accept the existence of a current each member and the institution; for assurance, appropriate for the research example: full-time employee, part-time in question, on file with the Office for employee, member of governing panel Protection from Research Risks, HHS, or board, stockholder, paid or unpaid and approved for federalwide use by consultant. Changes in IRB member- that office. When the existence of an ship shall be reported to the depart- HHS-approved assurance is accepted in ment or agency head, unless in accord lieu of requiring submission of an as- with § 1230.103(a) of this policy, the ex- surance, reports (except certification) istence of an HHS-approved assurance required by this policy to be made to is accepted. In this case, change in IRB department and agency heads shall membership shall be reported to the also be made to the Office for Protec- Office for Protection from Research tion from Research Risks, HHS. Risks, HHS. (b) Departments and agencies will (4) Written procedures which the IRB conduct or support research covered by will follow (i) for conducting its initial this policy only if the institution has and continuing review of research and an assurance approved as provided in for reporting its findings and actions to this section, and only if the institution the investigator and the institution; has certified to the department or (ii) for determining which projects re- agency head that the research has been quire review more often than annually reviewed and approved by an IRB pro- and which projects need verification vided for in the assurance, and will be from sources other than the investiga- subject to continuing review by the tors that no material changes have oc- IRB. Assurances applicable to federally curred since previous IRB review; and supported or conducted research shall (iii) for ensuring prompt reporting to at a minimum include: the IRB of proposed changes in a re- (1) A statement of principles gov- search activity, and for ensuring that erning the institution in the discharge such changes in approved research, of its responsibilities for protecting the during the period for which IRB ap- rights and welfare of human subjects of proval has already been given, may not research conducted at or sponsored by be initiated without IRB review and
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approval except when necessary to must be submitted with the application eliminate apparent immediate hazards or proposal or by such later date as to the subject. may be prescribed by the department (5) Written procedures for ensuring or agency to which the application or prompt reporting to the IRB, appro- proposal is submitted. Under no condi- priate institutional officials, and the tion shall research covered by § 1230.103 department or agency head of (i) any of the Policy be supported prior to re- unanticipated problems involving risks ceipt of the certification that the re- to subjects or others or any serious or search has been reviewed and approved continuing noncompliance with this by the IRB. Institutions without an ap- policy or the requirements or deter- proved assurance covering the research minations of the IRB and (ii) any sus- shall certify within 30 days after re- pension or termination of IRB ap- ceipt of a request for such a certifi- proval. cation from the department or agency, (c) The assurance shall be executed that the application or proposal has by an individual authorized to act for been approved by the IRB. If the cer- the institution and to assume on behalf tification is not submitted within these of the institution the obligations im- time limits, the application or proposal posed by this policy and shall be filed may be returned to the institution. in such form and manner as the depart- ment or agency head prescribes. (Approved by the Office of Management and (d) The department or agency head Budget under control number 9999–0020) will evaluate all assurances submitted [56 FR 28012, 28019, June 18, 1991; 56 FR 29756, in accordance with this policy through June 28, 1991] such officers and employees of the de- partment or agency and such experts §§ 1230.104–1230.106 [Reserved] or consultants engaged for this purpose as the department or agency head de- § 1230.107 IRB membership. termines to be appropriate. The depart- (a) Each IRB shall have at least five ment or agency head’s evaluation will members, with varying backgrounds to take into consideration the adequacy promote complete and adequate review of the proposed IRB in light of the an- of research activities commonly con- ticipated scope of the institution’s re- ducted by the institution. The IRB search activities and the types of sub- shall be sufficiently qualified through ject populations likely to be involved, the experience and expertise of its the appropriateness of the proposed ini- members, and the diversity of the tial and continuing review procedures members, including consideration of in light of the probable risks, and the race, gender, and cultural backgrounds size and complexity of the institution. and sensitivity to such issues as com- (e) On the basis of this evaluation, munity attitudes, to promote respect the department or agency head may for its advice and counsel in safe- approve or disapprove the assurance, or guarding the rights and welfare of enter into negotiations to develop an human subjects. In addition to pos- approvable one. The department or sessing the professional competence agency head may limit the period dur- necessary to review specific research ing which any particular approved as- activities, the IRB shall be able to as- surance or class of approved assurances certain the acceptability of proposed shall remain effective or otherwise research in terms of institutional com- condition or restrict approval. mitments and regulations, applicable (f) Certification is required when the law, and standards of professional con- research is supported by a federal de- duct and practice. The IRB shall there- partment or agency and not otherwise fore include persons knowledgeable in exempted or waived under § 1230.101 (b) these areas. If an IRB regularly reviews or (i). An institution with an approved research that involves a vulnerable assurance shall certify that each appli- category of subjects, such as children, cation or proposal for research covered prisoners, pregnant women, or handi- by the assurance and by § 1230.103 of capped or mentally disabled persons, this Policy has been reviewed and ap- consideration shall be given to the in- proved by the IRB. Such certification clusion of one or more individuals who
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are knowledgeable about and experi- tions in (to secure approval), or dis- enced in working with these subjects. approve all research activities covered (b) Every nondiscriminatory effort by this policy. will be made to ensure that no IRB (b) An IRB shall require that infor- consists entirely of men or entirely of mation given to subjects as part of in- women, including the institution’s con- formed consent is in accordance with sideration of qualified persons of both § 1230.116. The IRB may require that in- sexes, so long as no selection is made formation, in addition to that specifi- to the IRB on the basis of gender. No cally mentioned in § 1230.116, be given IRB may consist entirely of members to the subjects when in the IRB’s judg- of one profession. ment the information would meaning- (c) Each IRB shall include at least fully add to the protection of the rights one member whose primary concerns and welfare of subjects. are in scientific areas and at least one (c) An IRB shall require documenta- member whose primary concerns are in tion of informed consent or may waive nonscientific areas. documentation in accordance with (d) Each IRB shall include at least § 1230.117. one member who is not otherwise affili- (d) An IRB shall notify investigators ated with the institution and who is and the institution in writing of its de- not part of the immediate family of a cision to approve or disapprove the pro- person who is affiliated with the insti- posed research activity, or of modifica- tution. tions required to secure IRB approval (e) No IRB may have a member par- of the research activity. If the IRB de- ticipate in the IRB’s initial or con- cides to disapprove a research activity, tinuing review of any project in which it shall include in its written notifica- the member has a conflicting interest, tion a statement of the reasons for its except to provide information re- decision and give the investigator an quested by the IRB. opportunity to respond in person or in (f) An IRB may, in its discretion, in- writing. vite individuals with competence in (e) An IRB shall conduct continuing special areas to assist in the review of review of research covered by this pol- issues which require expertise beyond icy at intervals appropriate to the de- or in addition to that available on the gree of risk, but not less than once per IRB. These individuals may not vote year, and shall have authority to ob- with the IRB. serve or have a third party observe the consent process and the research. § 1230.108 IRB functions and oper- ations. (Approved by the Office of Management and Budget under control number 9999–0020) In order to fulfill the requirements of this policy each IRB shall: § 1230.110 Expedited review proce- (a) Follow written procedures in the dures for certain kinds of research same detail as described in involving no more than minimal § 1230.103(b)(4) and, to the extent re- risk, and for minor changes in ap- quired by, § 1230.103(b)(5). proved research. (b) Except when an expedited review (a) The Secretary, HHS, has estab- procedure is used (see § 1230.110), review lished, and published as a Notice in the proposed research at convened meet- FEDERAL REGISTER, a list of categories ings at which a majority of the mem- of research that may be reviewed by bers of the IRB are present, including the IRB through an expedited review at least one member whose primary procedure. The list will be amended, as concerns are in nonscientific areas. In appropriate after consultation with order for the research to be approved, other departments and agencies, it shall receive the approval of a ma- through periodic republication by the jority of those members present at the Secretary, HHS, in the FEDERAL REG- meeting. ISTER. A copy of the list is available from the Office for Protection from Re- § 1230.109 IRB review of research. search Risks, National Institutes of (a) An IRB shall review and have au- Health, HHS, Bethesda, Maryland thority to approve, require modifica- 20892.
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(b) An IRB may use the expedited re- therapies subjects would receive even if view procedure to review either or both not participating in the research). The of the following: IRB should not consider possible long- (1) Some or all of the research ap- range effects of applying knowledge pearing on the list and found by the re- gained in the research (for example, viewer(s) to involve no more than mini- the possible effects of the research on mal risk, public policy) as among those research (2) Minor changes in previously ap- risks that fall within the purview of its proved research during the period (of responsibility. one year or less) for which approval is (3) Selection of subjects is equitable. authorized. In making this assessment the IRB Under an expedited review procedure, should take into account the purposes the review may be carried out by the of the research and the setting in IRB chairperson or by one or more ex- which the research will be conducted perienced reviewers designated by the and should be particularly cognizant of chairperson from among members of the special problems of research in- the IRB. In reviewing the research, the volving vulnerable populations, such as reviewers may exercise all of the au- children, prisoners, pregnant women, thorities of the IRB except that the re- mentally disabled persons, or economi- viewers may not disapprove the re- cally or educationally disadvantaged search. A research activity may be dis- persons. approved only after review in accord- ance with the non-expedited procedure (4) Informed consent will be sought set forth in § 1230.108(b). from each prospective subject or the (c) Each IRB which uses an expedited subject’s legally authorized representa- review procedure shall adopt a method tive, in accordance with, and to the ex- for keeping all members advised of re- tent required by § 1230.116. search proposals which have been ap- (5) Informed consent will be appro- proved under the procedure. priately documented, in accordance (d) The department or agency head with, and to the extent required by may restrict, suspend, terminate, or § 1230.117. 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 en- sure the safety of subjects. § 1230.111 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- (b) When some or all of the subjects ments are satisfied: are likely to be vulnerable to coercion (1) Risks to subjects are minimized: or undue influence, such as children, (i) By using procedures which are con- prisoners, pregnant women, mentally sistent with sound research design and disabled persons, or economically or which do not unnecessarily expose sub- educationally disadvantaged persons, jects to risk, and (ii) whenever appro- additional safeguards have been in- priate, by using procedures already cluded in the study to protect the being performed on the subjects for di- rights and welfare of these subjects. agnostic or treatment purposes. (2) Risks to subjects are reasonable § 1230.112 Review by institution. in relation to anticipated benefits, if any, to subjects, and the importance of Research covered by this policy that the knowledge that may reasonably be has been approved by an IRB may be expected to result. In evaluating risks subject to further appropriate review and benefits, the IRB should consider and approval or disapproval by officials only those risks and benefits that may of the institution. However, those offi- result from the research (as distin- cials may not approve the research if it guished from risks and benefits of has not been approved by an IRB.
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§ 1230.113 Suspension or termination (4) Copies of all correspondence be- of IRB approval of research. tween the IRB and the investigators. An IRB shall have authority to sus- (5) A list of IRB members in the same pend or terminate approval of research detail as described is § 1230.103(b)(3). that is not being conducted in accord- (6) Written procedures for the IRB in ance with the IRB’s requirements or the same detail as described in §§ 1230.103(b)(4) and 1230.103(b)(5). that has been associated with unex- (7) Statements of significant new pected serious harm to subjects. Any findings provided to subjects, as re- suspension or termination of approval quired by § 1230.116(b)(5). shall include a statement of the rea- (b) The records required by this pol- sons for the IRB’s action and shall be icy shall be retained for at least 3 reported promptly to the investigator, years, and records relating to research appropriate institutional officials, and which is conducted shall be retained the department or agency head. for at least 3 years after completion of (Approved by the Office of Management and the research. All records shall be acces- Budget under control number 9999–0020) sible for inspection and copying by au- thorized representatives of the depart- § 1230.114 Cooperative research. ment or agency at reasonable times Cooperative research projects are and in a reasonable manner. those projects covered by this policy (Approved by the Office of Management and which involve more than one institu- Budget under control number 9999–0020) tion. In the conduct of cooperative re- search projects, each institution is re- § 1230.116 General requirements for sponsible for safeguarding the rights informed consent. and welfare of human subjects and for Except as provided elsewhere in this complying with this policy. With the policy, no investigator may involve a approval of the department or agency human being as a subject in research head, an institution participating in a covered by this policy unless the inves- cooperative project may enter into a tigator has obtained the legally effec- joint review arrangement, rely upon tive informed consent of the subject or the review of another qualified IRB, or the subject’s legally authorized rep- make similar arrangements for avoid- resentative. An investigator shall seek ing duplication of effort. such consent only under circumstances that provide the prospective subject or § 1230.115 IRB records. the representative sufficient oppor- (a) An institution, or when appro- tunity to consider whether or not to priate an IRB, shall prepare and main- participate and that minimize the pos- tain adequate documentation of IRB sibility of coercion or undue influence. activities, including the following: The information that is given to the (1) Copies of all research proposals re- subject or the representative shall be viewed, scientific evaluations, if any, in language understandable to the sub- that accompany the proposals, ap- ject or the representative. No informed proved sample consent documents, consent, whether oral or written, may progress reports submitted by inves- include any exculpatory language tigators, and reports of injuries to sub- through which the subject or the rep- jects. resentative is made to waive or appear (2) Minutes of IRB meetings which to waive any of the subject’s legal shall be in sufficient detail to show at- rights, or releases or appears to release tendance at the meetings; actions the investigator, the sponsor, the insti- taken by the IRB; the vote on these ac- tution or its agents from liability for tions including the number of members negligence. voting for, against, and abstaining; the (a) Basic elements of informed con- basis for requiring changes in or dis- sent. Except as provided in paragraph approving research; and a written sum- (c) or (d) of this section, in seeking in- mary of the discussion of controverted formed consent the following informa- issues and their resolution. tion shall be provided to each subject: (3) Records of continuing review ac- (1) A statement that the study in- tivities. volves research, an explanation of the
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purposes of the research and the ex- (3) Any additional costs to the sub- pected duration of the subject’s partici- ject that may result from participation pation, a description of the procedures in the research; to be followed, and identification of (4) The consequences of a subject’s any procedures which are experi- decision to withdraw from the research mental; and procedures for orderly termination (2) A description of any reasonably of participation by the subject; foreseeable risks or discomforts to the (5) A statement that significant new subject; findings developed during the course of (3) A description of any benefits to the research which may relate to the the subject or to others which may rea- subject’s willingness to continue par- sonably be expected from the research; ticipation will be provided to the sub- (4) A disclosure of appropriate alter- ject; and native procedures or courses of treat- (6) The approximate number of sub- ment, if any, that might be advan- jects involved in the study. tageous to the subject; (c) An IRB may approve a consent procedure which does not include, or (5) A statement describing the ex- which alters, some or all of the ele- tent, if any, to which confidentiality of ments of informed consent set forth records identifying the subject will be above, or waive the requirement to ob- maintained; tain informed consent provided the IRB (6) For research involving more than finds and documents that: minimal risk, an explanation as to (1) The research or demonstration whether any compensation and an ex- project is to be conducted by or subject planation as to whether any medical to the approval of state or local gov- treatments are available if injury oc- ernment officials and is designed to curs and, if so, what they consist of, or study, evaluate, or otherwise examine: where further information may be ob- (i) Public benefit of service programs; tained; (ii) procedures for obtaining benefits or (7) An explanation of whom to con- services under those programs; (iii) tact for answers to pertinent questions possible changes in or alternatives to about the research and research sub- those programs or procedures; or (iv) jects’ rights, and whom to contact in possible changes in methods or levels the event of a research-related injury of payment for benefits or services to the subject; and under those programs; and (8) A statement that participation is (2) The research could not prac- voluntary, refusal to participate will ticably be carried out without the involve no penalty or loss of benefits to waiver or alteration. which the subject is otherwise entitled, (d) An IRB may approve a consent and the subject may discontinue par- procedure which does not include, or ticipation at any time without penalty which alters, some or all of the ele- or loss of benefits to which the subject ments of informed consent set forth in is otherwise entitled. this section, or waive the requirements (b) Additional elements of informed to obtain informed consent provided consent. When appropriate, one or the IRB finds and documents that: more of the following elements of in- (1) The research involves no more formation shall also be provided to than minimal risk to the subjects; each subject: (2) The waiver or alteration will not (1) A statement that the particular adversely affect the rights and welfare treatment or procedure may involve of the subjects; risks to the subject (or to the embryo (3) The research could not prac- or fetus, if the subject is or may be- ticably be carried out without the come pregnant) which are currently waiver or alteration; and unforeseeable; (4) Whenever appropriate, the sub- (2) Anticipated circumstances under jects will be provided with additional which the subject’s participation may pertinent information after participa- be terminated by the investigator tion. without regard to the subject’s con- (e) The informed consent require- sent; ments in this policy are not intended
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to preempt any applicable federal, signed consent form for some or all state, or local laws which require addi- subjects if it finds either: tional information to be disclosed in (1) That the only record linking the order for informed consent to be le- subject and the research would be the gally effective. consent document and the principal (f) Nothing in this policy is intended risk would be potential harm resulting to limit the authority of a physician to from a breach of confidentiality. Each provide emergency medical care, to the subject will be asked whether the sub- extent the physician is permitted to do ject wants documentation linking the so under applicable federal, state, or subject with the research, and the sub- local law. ject’s wishes will govern; or (Approved by the Office of Management and (2) That the research presents no Budget under control number 9999–0020) more than minimal risk of harm to subjects and involves no procedures for § 1230.117 Documentation of informed consent. which written consent is normally re- quired outside of the research context. (a) Except as provided in paragraph In cases in which the documentation (c) of this section, informed consent requirement is waived, the IRB may re- shall be documented by the use of a quire the investigator to provide sub- written consent form approved by the IRB and signed by the subject or the jects with a written statement regard- subject’s legally authorized representa- ing the research. tive. A copy shall be given to the per- (Approved by the Office of Management and son signing the form. Budget under control number 9999–0020) (b) Except as provided in paragraph (c) of this section, the consent form § 1230.118 Applications and proposals may be either of the following: lacking definite plans for involve- (1) A written consent document that ment of human subjects. embodies the elements of informed Certain types of applications for consent required by § 1230.116. This grants, cooperative agreements, or con- form may be read to the subject or the tracts are submitted to departments or subject’s legally authorized representa- agencies with the knowledge that sub- tive, but in any event, the investigator jects may be involved within the period shall give either the subject or the rep- of support, but definite plans would not resentative adequate opportunity to normally be set forth in the applica- read it before it is signed; or tion or proposal. These include activi- (2) A short form written consent doc- ument stating that the elements of in- ties such as institutional type grants formed consent required by § 1230.116 when selection of specific projects is have been presented orally to the sub- the institution’s responsibility; re- ject or the subject’s legally authorized search training grants in which the ac- representative. When this method is tivities involving subjects remain to be used, there shall be a witness to the selected; and projects in which human oral presentation. Also, the IRB shall subjects’ involvement will depend upon approve a written summary of what is completion of instruments, prior ani- to be said to the subject or the rep- mal studies, or purification of com- resentative. Only the short form itself pounds. These applications need not be is to be signed by the subject or the reviewed by an IRB before an award representative. However, the witness may be made. However, except for re- shall sign both the short form and a search exempted or waived under copy of the summary, and the person § 1230.101 (b) or (i), no human subjects actually obtaining consent shall sign a may be involved in any project sup- copy of the summary. A copy of the ported by these awards until the summary shall be given to the subject project has been reviewed and approved or the representative, in addition to a by the IRB, as provided in this policy, copy of the short form. and certification submitted, by the in- (c) An IRB may waive the require- stitution, to the department or agency. ment for the investigator to obtain a
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§ 1230.119 Research undertaken with- failed to comply with the terms of this out the intention of involving policy. human subjects. (b) In making decisions about sup- In the event research is undertaken porting or approving applications or without the intention of involving proposals covered by this policy the de- human subjects, but it is later pro- partment or agency head may take posed to involve human subjects in the into account, in addition to all other research, the research shall first be re- eligibility requirements and program viewed and approved by an IRB, as pro- criteria, factors such as whether the vided in this policy, a certification sub- applicant has been subject to a termi- mitted, by the institution, to the de- nation or suspension under paragraph partment or agency, and final approval (a) of this section and whether the ap- given to the proposed change by the de- plicant or the person or persons who partment or agency. would direct or has have directed the scientific and technical aspects of an § 1230.120 Evaluation and disposition activity has have, in the judgment of of applications and proposals for the department or agency head, mate- research to be conducted or sup- rially failed to discharge responsibility ported by a Federal Department or for the protection of the rights and Agency. welfare of human subjects (whether or (a) The department or agency head not the research was subject to federal will evaluate all applications and pro- regulation). posals involving human subjects sub- mitted to the department or agency § 1230.124 Conditions. through such officers and employees of With respect to any research project the department or agency and such ex- or any class of research projects the de- perts and consultants as the depart- partment or agency head may impose ment or agency head determines to be additional conditions prior to or at the appropriate. This evaluation will take time of approval when in the judgment into consideration the risks to the sub- of the department or agency head addi- jects, the adequacy of protection tional conditions are necessary for the against these risks, the potential bene- protection of human subjects. fits of the research to the subjects and others, and the importance of the PART 1232—CARE AND USE OF knowledge gained or to be gained. (b) On the basis of this evaluation, ANIMALS IN THE CONDUCT OF the department or agency head may NASA ACTIVITIES approve or disapprove the application or proposal, or enter into negotiations Sec. to develop an approvable one. 1232.100 Scope. 1232.101 Applicability. 1232.102 Policy. § 1230.121 [Reserved] 1232.103 Definitions. 1232.104 Implementation procedures by non- § 1230.122 Use of Federal funds. NASA institutions. Federal funds administered by a de- 1232.105 Implementation procedures by partment or agency may not be ex- NASA field installations. pended for research involving human 1232.106 Management authority and respon- subjects unless the requirements of sibility. this policy have been satisfied. 1232.107 Sanctions. AUTHORITY: 42 U.S.C. Sec. 2451; Pub. L. 89– § 1230.123 Early termination of re- 544, as amended; 7 U.S.C. Sec. 2131; 39 U.S.C. search support: Evaluation of appli- Sec. 3001; 9 CFR subchapter A parts 1, 2, 3, cations and proposals. and 4; and Pub. L. 99–158, Sec. 495. (a) The department or agency head SOURCE: 54 FR 35870, Aug. 30, 1989, unless may require that department or agency otherwise noted. support for any project be terminated or suspended in the manner prescribed § 1232.100 Scope. in applicable program requirements, This rule establishes the policy, im- when the department or agency head plementation procedures, and manage- finds an institution has materially ment authority and responsibility for
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the care and use of vertebrate animals mals (hereinafter referred to as PHS (hereinafter referred to as ‘‘animal sub- Policy) effective November 1, 1986.1 jects’’) in the conduct of NASA activi- (b) This rule authorizes NASA to ties. have the same authority for NASA-sup- ported programs as that delegated to § 1232.101 Applicability. PHS by the PHS Policy, including the functions and responsibilities of the This rule applies to NASA Head- Animal Care and Use Committees quarters and NASA field installations (ACUC’s). and will be followed in all activities (c) All research supported by NASA using animal subjects that are sup- that involves activities using animal ported by NASA, conducted in NASA subjects shall be conducted under pro- facilities, aircraft, or spacecraft, or tocols that conform to this rule and which involve NASA to any degree. All that are reviewed and approved as pre- activities using animal subjects con- scribed in this rule. ducted under a contract, grant, cooper- ative agreement, memorandum of un- § 1232.103 Definitions. derstanding, or joint endeavor agree- The following definitions of terms ment entered into by NASA and an- comply with the PHS Policy and apply other Government agency, private en- to the conduct of all NASA activities tity, non-Federal public entity, or for- related to the care and use of animal eign entity are included within the subjects. scope of this rule. (a) Activity includes research, testing of hardware for animal use, flight ex- § 1232.102 Policy. perimentation, and any other tasks in- volving the use of animal subjects. (a) It is NASA policy to require its (b) Animal is any live vertebrate ani- laboratories and the institutions per- mal. forming NASA-supported activities (c) Animal Care and Use Committee using animal subjects to comply with (ACUC) is the committee established at the Animal Welfare Act of 1966 (Pub. L. each institution and NASA field instal- 89–544), as amended (Pub. L. 91–579, lation involved in research with animal Pub. L. 94–279, and Pub. L. 99–198), 7 subjects. It is responsible for evalu- U.S.C. 2131 et seq., and 39 U.S.C. 3001, ating the care and use of animal sub- and with the regulations promulgated jects at the facility and for ensuring thereunder by the Secretary of Agri- that the care and use of animal sub- culture (9 CFR subchapter A parts 1, 2, jects at the facility is in compliance 3, and 4) pertaining to the care, han- with this rule and PHS Policy. dling, and treatment of animal subjects (d) Authorized NASA Official is the Di- held or used for research, testing, rector, Life Sciences Division, NASA teaching, or other activities supported Headquarters, or designee, who is the NASA Administrator’s representative by the Federal government. Investiga- and is responsible for all NASA activi- tors shall follow the guidelines de- ties involving animal subjects. This in- scribed in the National Institutes of dividual is responsible for implementa- Health (NIH) Publication No. 85–23 tion of the provisions of this rule and (Rev. 1985), ‘‘Guide for the Care and Use for ensuring that agency programs in- of Laboratory Animals’’ (the Guide) or volving animal subjects comply fully subsequent revisions. Attention is with all applicable laws, regulations, called to the U.S. Government ‘‘Prin- and guidelines. ciples for the Utilization and Care of (e) Field Installation Director is the Di- Vertebrate Animals Used in Testing, rector of a NASA Field Installation, or Research, and Training’’ on pp. 81–83 of designee, who is the institutional offi- the Guide. In order to implement these cial responsible for the care and use of guidelines and principles, investigators will comply with the revised Public 1 Available from the Office of Protection Health Service (PHS) Policy on Hu- from Research Risks (OPRR), National Insti- tutes of Health, 9000 Rockville Pike, Bldg. 31, mane Care and Use of Laboratory Ani- Room 5B59, Bethesda, MD 20892, Telephone 301–496–7005.
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animal subjects in research conducted been reviewed in accordance with the at that field installation and for ensur- PHS Policy (IV.C.) and approved by the ing compliance with this rule at that appropriate ACUC at the participating field installation. institution. (f) Investigator is any person who uses (c) Proposal Approval for Flight Experi- or proposes to use live animal subjects ments. In addition to the institution’s in NASA-supported activities, e.g., re- ACUC review, activities involving ani- ceives funds, salaries, or support under mal subjects to be flown on NASA a grant, award, agreement, contract, or spacecraft will be subject to review and direct employment by NASA, or the approval by the Ames Research Center use of any NASA facilities, aircraft, or (ARC) ACUC. The ARC ACUC will sub- spacecraft for the purpose of carrying mit each evaluation report to the ARC out research, tests, or experiments Director who will transmit the report using animal subjects. with his/her recommendation to the (g) PHS Assurance is a document pre- Authorized NASA Official, NASA Head- pared by an awardee institution assur- ing its compliance with PHS Policy. quarters. Animal activities to be flown (h) Research of Flight Program Man- onboard NASA manned spacecraft may ager is the NASA Headquarters man- also be subject to review by the Human ager of each program in which NASA Research Policy and Procedures Com- has a manifest interest. mittee (HRPPC) at the Johnson Space (i) Supported pertains to activities ei- Center (JSC). Animal activities uti- ther funded in part or in whole by lizing the facilities of any NASA field NASA or an approved activity that is installation are also subject to ap- not funded by NASA but that utilizes proval of that field installation’s ACUC NASA facilities, including spacecraft (§ 1232.105(d)). and aircraft. (d) Institutions with PHS Assurance on (j) Veterinarian is the NASA attend- File. The institution, by an approved or ing veterinarian, a person who has provisionally acceptable Assurance on graduated from a veterinary school ac- file at the NIH Office for Protection credited by the American Veterinary from Research Risks (OPRR), Depart- Medical Association’s Council on Edu- ment of Health and Human Services cation or has a certificate issued by the (HHS), assures NASA that it will com- American Veterinary Medical Associa- ply with the PHS Policy. The Assur- tion’s Education Commission for For- ance file number must be included in eign Veterinary Graduates, has re- the research proposal submitted to ceived training and/or experience in NASA. the care and management of the spe- (e) Institutions with no PHS Assur- cies being attended, and who has direct ance on File. Proposals from institu- or delegated authority and responsi- tions without an approved Assurance bility for activities involving animal on file with the NIH OPRR will first be subjects at the NASA field installation. peer-reviewed for scientific merit. If § 1232.104 Implementation procedures the proposed research is deemed wor- by non-NASA institutions. thy of support, NASA will arrange for a (a) Proposal Information. No animal special Assurance to be negotiated by subjects may be utilized unless a pro- the Director, Life Sciences Division, posal justifying and describing their NASA Headquarters. The arrangements use is submitted to NASA for approval. for a special Assurance review by NIH The required proposal information is should be undertaken in consultation outlined in the PHS Policy (IV.D.1.a.– with the NASA representative to the e.). Interagency Research Animal Com- (b) Proposal Approval by the Institu- mittee (IRAC) and will be handled on a tional ACUC. Before a proposal for re- case-by-case basis. search involving the use of animal sub- (f) Foreign institutions must comply jects will be considered for NASA sup- with the PHS Policy (see Section II Of port, the NASA Headquarters Research PHS Policy) and this rule before being or Flight Program Manager must re- supported by NASA for any activities ceive a statement that the research has involving animal subjects.
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§ 1232.105 Implementation procedures report to the Field Installation Direc- by NASA field installations. tor who will, upon request, transmit (a) Proposal Information. The informa- the report with his/her recommenda- tion required for proposals involving tion to the Authorized NASA Official, the use of animal subjects is identical NASA Headquarters. to that described in § 1232.104(a). (3) NASA ACUC’s have the authority (b) Proposal Approval by the NASA to approve, disapprove, or require ACUC. Before a proposal for research changes to be made in those compo- involving the use of animal subjects nents of proposals involving the care will be considered for NASA support, and use of animal subjects that are the NASA Headquarters Research or submitted by NASA investigators. All Flight Program Manager must receive decisions shall be based on the response a statement that the research has been of a majority of a quorum of the mem- reviewed in accordance with PHS Pol- bers. A minority opinion including ab- icy (IV.C.) and approved by the ACUC stentions should be recorded; this at the appropriate field installation. record should include a justification (c) Proposal Approval for Flight Experi- for the opinion. ments. In addition to the Field Installa- (4) The ACUC shall conduct con- tion ACUC review, activities involving tinuing review of proposals at appro- animal subjects to be flown on NASA priate intervals as determined by the spacecraft will be subject to review and ACUC, but not less than once every 3 approval by the ARC ACUC. The ARC years. ACUC will submit each evalaution re- (5) Proposals that have been approved port to the ARC Director who will by the ACUC may be subject to further transmit the report with his/her rec- appropriate review by the Authorized ommendation to the Authorized NASA NASA Official, NASA Headquarters. Official, NASA Headquarters. Animal However, the official may not approve activities to be flown onboard NASA those sections of a proposal related to manned spacecraft may also be subject the care and use of animal subjects if to review by the HRPPC at JSC. they have not been approved by the (d) Approval for Use of Field Installa- ACUC. tion Facilities. The NASA Field Installa- (6) Once experimental procedures are tion ACUC will review and approve or approved, no substantial changes can disapprove those parts of proposals be made unless a formal request with that call for the use of their facilities appropriate justification for such a re- to conduct any activity involving ani- quest is submitted to and approved by mal subjects (e.g., Kennedy Space Cen- the appropriate ACUC. If the experi- ter or ARC Dryden facilities used to ment involves exposure of the flight support experiments using animal sub- crew to the animal subjects, the jects). The ACUC will submit each HRPPC at JSC must review and ap- evaluation report to the Field Installa- prove the proposed modifications. Cop- tion Director who will transmit the re- ies of ACUC approval of the proposed port with his/her recommendation to modifications shall be submitted to the the Authorized NASA Official, NASA Field Installation Director who will, Headquarters. upon request, transmit the report to (e) NASA Animal Care and Use Commit- the Authorized NASA Official, NASA tees. (1) The Director of each NASA Headquarters. Field Installation that is involved in (7) Other functions of the field instal- animal research activities will estab- lation ACUC include: lish an ACUC to ensure compliance (i) Reviewing at least once every 6 with the policies and provisions of this months the field installation’s program rule. The membership of the ACUC for humane care and use of animals, shall be in accordance with PHS Pol- using the Guide as a basis for evalua- icy. tion; (2) The NASA Field Installation (ii) Inspecting at least once every 6 ACUC’s will review and approve or dis- months all of the field installation’s approve all proposals using animal sub- animal facilities (including satellite fa- jects. In accordance with the PHS Pol- cilities), using the Guide as a basis for icy (IV.C.), the ACUC will submit each evaluation;
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(iii) Preparing reports of the ACUC in activities using animal subjects evaluations conducted as required by shall maintain: § 1232.105 (e)(7)(i) and (ii), and submit- (i) An Assurance of compliance with ting the reports to the Field Installa- PHS Policy and this rule (§ 1232.105 (f)); tion Director. (Note: the reports shall (ii) Minutes of ACUC meetings, in- be updated at least once every 6 cluding records of attendance, activi- months upon completion of the re- ties of the committee, and committee quired semiannual evaluations and deliberations; shall be maintained by the field instal- (iii) Records of applications, pro- lation and made available to the Au- posals, and proposed significant thorized NASA Official upon request. changes in the care and use of animals The reports must contain a description and whether ACUC approval was given of the nature and extent of the field in- or withheld; stallation’s adherence to the Guide and this rule and must identify specifically (iv) Records of semiannual ACUC re- any departures from the provisions of ports and recommendations (including the Guide and this rule, and must state minority views) as forwarded to the the reasons for each departure. The re- Field Installation Director; ports must distinguish significant defi- (v) Records of AAALAC accredita- ciencies from minor deficiencies. A sig- tion; and nificant deficiency is one which, con- (vi) The Field Installation’s Animal sistent with PHS Policy, and, in the Users Guide and Animal Care Facility judgment of the ACUC and the Field Management Manual. The Field Instal- Installation Director, is or may be a lation Animal Users Guide and Animal threat to the health or safety of the Care Facility Management Manual animals. If program or facility defi- should be revised at appropriate inter- ciencies are noted, the reports must vals. contain a reasonable and specific plan (2) All records shall be maintained and schedule for correcting each defi- for at least 3 years; records that relate ciency.) directly to applications, proposals, and (iv) Reviewing concerns involving the proposed significant changes in ongo- care and use of animals at the field in- ing activities reviewed and approved by stallation; the ACUC shall be maintained for the (v) Making recommendations to the duration of the activity and for an ad- Field Installation Director regarding ditional 3 years after completion of the any aspect of the field installation’s activity. All records shall be furnished animal program, facilities, or per- upon request to the Authorized NASA sonnel training. Official. (f) NASA Assurances. Each NASA field (h) Reporting Requirements. For each installation involved in activities NASA field installation involved in ac- using animal subjects must assure that tivities using animal subjects: its programs and facilities have been (1) Statements of ACUC approval of evaluated and accredited by the Amer- research proposals, ACUC evaluation ican Association for the Accreditation reports of flight experiment proposals of Laboratory Animal Care (AAALAC). Written assurance of compliance with and of experiment proposals utilizing the provisions of the PHS Policy and field installation facilities, and the this rule is also required from NASA field installation’s Assurance of com- field installations involved in animal pliance shall be submitted in the man- activities before approval of any such ner prescribed in §§ 1232.104(c) and activity. This Assurance should follow 1232.105 (b), (c), (d), and (f). the sample PHS Assurance format (2) At least once every 12 months, the shown on pages 19–26 of the PHS Policy ACUC, through the Field Installation and must be submitted by the Field In- Director, shall report in writing to the stallation Director to the Authorized Authorized NASA Official: NASA Official. The Assurance is sub- (i) Any change in the field installa- ject to renewal every 5 years. tion’s program or facilities that would (g) Recordkeeping Requirements. (1) affect the AAALAC accreditation sta- Each NASA field installation involved tus;
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(ii) Any change in the description of (3) Decide and administer sanctions the field installation’s program for ani- in cases of noncompliance with this mal care and use; rule; (iii) Any changes in the ACUC mem- (4) Fulfill the reporting requirements bership; assigned to this individual in (iv) Notice of the dates that the § 1232.105(h); and ACUC conducted its semiannual eval- (5) Sign the annual USDA report. uations of the field installation’s pro- (c) NASA Field Installation(s) ACUC gram and facilities and submitted the Responsibility. Each NASA Field Instal- evaluations to the Field Installation lation ACUC is responsible to its Field Director; Installation Director for the activities (v) A statement that the field instal- described in §§ 1232.104(c) and 1232.105 lation has no changes to report as spec- (b), (c), (d), (e) and (h). ified in § 1232.105(h)(2) (i), (ii), or (iii) of (d) Research or Flight Program Man- this rule, if there are no changes. ager Responsibility. The Research or (3) The ACUC, through the Field In- Flight Program Manager is responsible stallation Director, shall promptly pro- for ascertaining the presence of the re- vide the Authorized NASA Official with quired PHS Assurance file number for a full explanation of the circumstances proposals involving animal subjects re- and actions taken with respect to: ceived from non-NASA institutions, (i) Any serious or continuing non- and a statement of ACUC review and compliance with this rule and PHS Pol- approval of all NASA and non-NASA icy; proposals involving animal subjects. (ii) Any serious deviation from the No awards for activities involving ani- provisions of the Guide; or mal subjects can be made without this (iii) Any suspension of an activity by documentation [see §§ 1232.104 (b) and the ACUC. (d) and 1232.105(b)]. (4) Reports filed under § 1232.105 (h) of (e) NASA Veterinarian(s) Responsi- this rule shall include any minority bility. NASA veterinarian(s) have direct views filed by members of the ACUC. or delegated authority and responsi- (5) A copy of the U.S. Department of bility for activities involving animal Agriculture (USDA) Annual Report subjects at their field installation. will be furnished to the Authorized Such authority and responsibilities NASA Official. shall include recommending approval or disapproval of procedures involving § 1232.106 Management authority and animal subjects as a member of the responsibility. ACUC, continual monitoring of these (a) Authorized NASA Official. The Au- activities, surveillance of the health thorized NASA Official is the NASA and condition of animal subjects, and Administrator’s representative and is reporting any observed deviations from responsible for all NASA activities in- approved procedures involving animal volving animal subjects. This indi- subjects to the Field Installation Di- vidual is responsible for implementa- rector and the ACUC. In the case of de- tion of the provisions of this rule and viation from ACUC-approved practices for ensuring that agency programs in- or procedures, the veterinarian shall volving animal subjects comply fully have the authority to immediately halt with all applicable laws, regulations, such procedures until they are re- and guidelines. viewed and resolved by the ACUC. In (b) Field Installation Director. The cases of a conflict concerning animal Field Installation Director is respon- usage by an investigator that cannot sible for and has the authority to: be resolved between him/her and the (1) Sign the field installation’s Assur- veterinarian, the matter may be ance, making a commitment on behalf brought to the attention of the Field of the field installation that the re- Installation ACUC for review and rec- quirements of the PHS Policy and this ommendation for action as set forth in rule will be met in all field installation this rule. Whereas the performance of activities involving animal subjects; the veterinarian’s duties can be dele- (2) Create and oversee the func- gated to other qualified individuals, tioning of the field installation ACUC; the ultimate responsibility rests with
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the veterinarian. This responsibility § 1232.107 Sanctions. extends not only to the Animal Care (a) Non-NASA Institutions. Principal Facility (ACF), but also to other loca- investigators not employed by NASA tions where animal subjects are used. whose activities are supported by Other specific areas of responsibility NASA but whose activities using ani- and authority vested in the veteri- mal subjects are restricted to non- narian are: NASA facilities shall be subject to the (1) Entry of personnel into the ACF. control of their institution’s ACUC and The veterinarian has the responsibility responsible institutional official. Noti- to develop access procedures to the fication of noncompliance with this ACF and submit them to the ACUC for rule shall be made either as described approval. in § 1232.106(f) or by the non-NASA in- (2) Personnel Training. The veteri- stitution to the Director of the NASA narian will participate in the training Field Installation through which the of personnel in the handling of animal activity has been supported and to the subjects and in specimen sampling pro- Authorized NASA Official. Any contin- ued noncompliance may be caused for cedures. termination of funding or support. (3) Animal Training. The veterinarian (b) NASA Field Installations. (1) Inap- will monitor all schedules and proce- propriate procedures on animal sub- dures involving the training and accli- jects by NASA principal investigators mation of animal subjects. shall be halted by the NASA Field In- (4) Surgery and Surgical Procedures. stallation Veterinarian or line manage- The veterinarian will monitor all sur- ment and brought to the attention of gical procedures and verify that the the ACUC if the issue cannot be imme- principles of the Guide with regard to diately resolved. The ACUC will review aseptic surgery are employed. Post-sur- the activity and report any noncompli- gical recovery procedures are included. ance with this rule to the Field Instal- If necessary, training will be provided lation Director. Principal investigators by the veterinarian to bring procedures not employed by NASA, whose activi- conducted by investigators to the level ties using animal subjects are per- of these standards. formed in NASA facilities, aircraft, or (5) Veterinary Medical and Engineering spacecraft, are subject to similar ac- Procedures. The veterinarian will mon- tion. Such noncompliance will be cause itor all veterinary medical and engi- for sanctions. The principal investi- neering procedures performed on ani- gator can contest, in writing, these de- mal subjects and verify their appro- cisions to the ACUC. (2) The ACUC as the agent of the priateness. The veterinarian will ac- Field Installation Director may sus- tively participate in identifying and/or pend an activity that it previously ap- establishing the design requirements proved if it determines that the activ- and adequacy of animal facilities for ity is not being conducted in accord- ground and spaceflight-related activi- ance with applicable provisions of the ties. Animal Welfare Act, the Guide, PHS (f) NASA Representative to the Inter- Policy requirements, or this rule. agency Research Animal Committee (3) Any suspension or termination of (IRAC). The NASA representative to approval will include a statement of the IRAC will obtain information of all the reasons for the action and will be cases in which an institution’s Assur- promptly reported to the principal in- ance has been revoked by the PHS. The vestigator and the appropriate Field NASA IRAC representative will notify Installation Director. In the case of in- NASA ACUC’s, Field Installation Di- vestigators from non-NASA institu- rectors, the Authorized NASA Official, tions, notification should be sent to and all Headquarters Research and the investigator, the appropriate insti- Flight Program Managers so that they tution, and the Director of the Field can determine which NASA awards in- Installation through which the activity volving the use of animal subjects are has been supported. If the ACUC sus- affected and can take appropriate sanc- pends an activity involving animal sub- tions. jects, the Field Installation Director in
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consultation with the ACUC shall re- NASA for scientific and technical con- view the reasons for suspension, take tributions which have significant value appropriate corrective action, and re- in the conduct of aeronautical and port that action with a full explanation space activities pursuant to 42 U.S.C. to the Authorized NASA Official, 2458, and establishes the awards pro- NASA Headquarters. If an ACUC rec- gram consistent with the Federal Tech- ommends disapproval suspension, ter- nology Transfer Act of 1986, Section 12, mination, or conditional approval of an 15 U.S.C. 3710b(1). activity, the principal investigator will be given the opportunity to ask for re- § 1240.101 Scope. consideration of the decision in person This subpart applies to any scientific and/or in writing to the appropriate or technical contribution, whether or NASA ACUC. not patentable, which is determined by (4) If, after notification of the Field the Administrator after referral to the Installation Director and an oppor- Inventions and Contributions Board to tunity for correction, such deficiencies have significant value in the conduct of or deviations remain uncorrected, the aeronautical and space activities for ACUC will notify (in writing) the Au- which an application for award has thorized NASA Official, NASA Head- been submitted to NASA under 42 quarters, who is then responsible for U.S.C. 2458. all corrective action to be taken. § 1240.102 Criteria. PART 1240—INVENTIONS AND (a) Only those contributions to NASA CONTRIBUTIONS which have been (1) used in a NASA program or adopted or sponsored or Subpart 1—Awards for Scientific and supported by NASA, and (2) found to Technical Contributions have significant value in the conduct of aeronautical and space activities will Sec. be recommended for award under this 1240.100 Purpose. subpart. 1240.101 Scope. 1240.102 Criteria. (b) In determining the amount, 1240.103 Applications for awards. terms, and conditions of any award, 1240.104 Special procedures—NASA and the following criteria will be consid- NASA contractor employees. ered: 1240.105 Review and evaluation of contribu- (1) The value of the contribution to tion. the United States; 1240.106 Notification by the Board. (2) The aggregate amount of any 1240.107 Reconsideration. 1240.108 Hearing procedure. sums which have been expended by the 1240.109 Recommendation to the Adminis- applicant for the development of such trator. contribution; 1240.110 Release. (3) The amount of any compensation 1240.111 Presentation of awards. (other than salary received for services 1240.112 Financial accounting. rendered as an officer or employee of 1240.113 Delegation of authority. the Government) previously received AUTHORITY: Sec. 306 of the National Aero- by the applicant for or on account of nautics and Space Act of 1958, as amended (42 the use of such contributions by the U.S.C. 2458), and the Federal Technology United States; and Transfer Act of 1986, Sec. 12, 15 U.S.C. (4) Such other factors as the Admin- 3710b(1). istrator shall determine to be material. SOURCE: 55 FR 614, Jan. 8, 1990, unless oth- erwise noted. § 1240.103 Applications for awards. (a) Eligibility. Applications for award Subpart 1—Awards for Scientific may be submitted by any person in- and Technical Contributions cluding any individual, partnership, corporation, association, institution, § 1240.100 Purpose. or other entity. This subpart prescribes procedures (b) Information required. Applications for submitting applications for mone- for award should be addressed to the tary awards to the Administrator of Inventions and Contributions Board
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(herein referred to as the Board), Na- unless specifically requested by the tional Aeronautics and Space Adminis- Board. In those few cases where such tration, Washington, DC 20546, and will models or exhibits have been submitted contain: pursuant to a request made by the (1) The name and address of the ap- Board, the same will be returned to the plicant, the person’s relationship to applicant upon written request from the contributor if the contribution is the applicant. made by one other than the applicant, (3) It is the policy of the Board to use and the names and addresses of any or disclose information contained in others having information as to the applications for awards for evaluation value or usage of the contribution; purposes only. Applications for awards (2) A complete written description of submitted with restrictive legends or the contribution, in the English lan- statements differing from this policy guage, accompanied by drawings, will be treated in accordance with the sketches, diagrams, or photographs il- Board’s policy. lustrating the nature of the contribu- tion and the technical and scientific § 1240.104 Special procedures—NASA principles upon which it is based, any and NASA contractor employees. available test or performance data or (a) A NASA Headquarters office, a observations of pertinent scientific NASA field installation, or a NASA phenomena, and the aeronautics or contractor may submit to the Board an space application of the contribution; application for an award identifying (3) The date and manner of any pre- the originator(s) of any scientific or vious submittal of the contribution to technical contribution conceived or de- any other United States Government veloped during the performance of a agency, and the name of such agency; NASA program or contract, and which (4) The aggregate amount of any is considered to be of value in advanc- sums which have been expended by the ing the state of knowledge in space or applicant for the development of the aeronautical activities, whether or not contribution; the contribution is the subject of a (5) The nature and extent of any NASA Tech Brief or of a U.S. patent known use of the contribution by the application. United States and by any agency of the (b) When the Board receives written United States Government; notice (NASA Form 1548) that the As- (6) The amount of any compensation sociate General Counsel for Intellec- (other than salary received for services tual Property at NASA Headquarters rendered as an officer or employee of or the cognizant Patent Counsel at a the Government) previously received NASA field installation has authorized by the applicant for or on account of the filing of a U.S. patent application the use of such contribution by the for an invention made and reported by United States; an employee of NASA or an employee (7) Identification of any United of a NASA contractor, the Board will States and foreign patents applied for recommend to the Administrator or a or issued relating to the contribution; designee that an initial award of at and least $500 be granted to a sole inventor, (8) An agreement to surrender all and an award in the amount of at least claims which such applicant may have $250 will normally be granted to each of for the use of such contribution by the joint inventors. The Board is author- Government. ized to recommend a supplemental (c) General. (1) Each contribution will monetary award in an amount that be made the subject of a separate appli- will be based on the evaluation of the cation in order that each contribution technical and commercial merits of the may be evaluated individually. invention. (2) Material constituting a possible (c) When the Board receives written hazard to safety or requiring unusual notice (NASA Form 1546) that the storage facilities should not be sub- Technology Utilization Officer at a mitted, and will not be accepted. Mod- NASA field installation has approved els or intricate exhibits demonstrating for publication a selected NASA Tech the contribution will not be accepted Brief based on an innovation made and
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reported by an employee of NASA or a § 1240.106 Notification by the Board. NASA contractor, the Board will rec- (a) With respect to each completed ommend to the Administrator or des- application where the Board has rec- ignee that an initial award of at least ommended to the Administrator the $150 be granted, and an award in at granting of an award, and the Adminis- least that amount will be granted to trator has approved such award, the each originator of the innovation. The Board will notify the applicant of the Board is authorized to recommend a amount and terms of the award. In the supplemental monetary award in an case of NASA employees or employees amount that will be based on the eval- of NASA contractors, such notification uation of the technical and commercial merits of the innovation. will normally be made through the ap- propriate NASA field installation rep- (d) When a selected NASA Tech Brief resentative. has been approved for publication and the filing of a U.S. patent application (b) Except for applications from has been authorized for the same con- NASA employees or employees of tribution, the initial awards authorized NASA contractors, where the Board in paragraphs (b) and (c) of this section does not propose to recommend to the will be cumulative. Administrator the granting of an (e) Awards authorized in paragraphs award, a notification will be provided (a), (b), and (c) of this section will not which includes a brief statement of the be granted to a contributor who has reasons for such decision. previously received full compensation § 1240.107 Reconsideration. for, or on account of, the use of such a contribution by the United States. (a) In those cases where the Board (f) If a contribution, as first reported does not recommend an award, the ap- and evaluated, is judged not to merit a plicant may, within such period as the supplemental award, as provided for in Board may set but in no event less paragraphs (a), (b), or (c) of this sec- than 30 days from notification, request tion, and the contribution is later reconsideration of the Board’s decision. proved to be of significant value, it (b) If reconsideration has been re- may be submitted for reevaluation. Re- quested within the prescribed time, the sponsible NASA and NASA contractor applicant will, within 30 days from the officials are encouraged to periodically date of the request for reconsideration, review such reported contributions, or within any other time as the Board and to resubmit them for reconsider- may set, file its statement setting ation through the same channels as forth the issues, points, authorities, ar- originally reported. guments, and any additional material on which it relies. § 1240.105 Review and evaluation of (c) Upon filing of the reconsideration contribution. statement by the applicant, the case (a) A contribution will be initially re- will be assigned for reconsideration by viewed by the Board on the basis of the the Board upon the contents of the ap- material submitted by the applicant plication, the record, and the reconsid- under § 1240.103(b). eration statement submitted by the ap- (b) If it is determined that the con- plicant. tribution has been used in a NASA pro- (d) If after reconsideration, the Board gram, or adopted or sponsored or sup- again does not propose to recommend ported by NASA, the contribution will the granting of an award, the appli- be evaluated for its significant value in cant, after such notification by the the conduct of aeronautical or space Board, may request an oral hearing activity. within the time set by the Board. (c) The Board will recommend an (e) An oral hearing without reconsid- award for such contribution when, eration may be granted upon deter- upon evaluation of its scientific and mination of the Chairperson that good technical merits, it is determined to cause exists to do so. warrant an award of at least $250.
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§ 1240.108 Hearing procedure. Board to the Administrator or designee (a) Oral hearing held by the Board will reflect the views of the majority of will be in accordance with the fol- the Board members. Dissenting views lowing procedures: may be transmitted with the majority (1) If the applicant requests a hearing opinion. within the time set in accordance with § 1240.110 Release. § 1240.107 (d) or (e), the Board will set a place and date for such hearing and no- Under subsection 306(b)(1) of the Na- tify the applicant. tional Aeronautics and Space Act of (2) The applicant may be represented 1958, as amended, no award will be by an attorney or any other appro- made to an applicant unless the appli- priately designated person. cant submits a duly executed release, (3) Hearings will be open to the pub- in a form specified by the Adminis- lic unless the applicant requests that a trator, of all claims the applicant may closed hearing be held. have to receive any compensation (4) Hearings may be held before the (other than the award recommended) full membership of the Board or before from the United States Government for any panel of Board members designated use of the contribution or any element by the Chairperson. thereof at any time by or on behalf of (5) Hearings will be conducted in an the United States, or by or on behalf of informal manner with the objective of any foreign government pursuant to providing the applicant with a full op- any existing or future treaty or agree- portunity to present evidence and ar- ment with the United States, within guments in support of the application. the United States, or at any other Evidence may be presented through place. means of such witnesses, exhibits, and visual aids as are arranged for by the § 1240.111 Presentation of awards. applicant. While proceedings will be ex (a) Monetary awards and accom- parte, members of the Board and its panying written acknowledgments to counsel may address questions to wit- employees of NASA will be presented nesses called by the applicant, and the in a formal ceremony by the appro- Board may, at its option, utilize the as- priate Official-in-Charge at the Head- sistance and testimony of technical ad- quarters Office, or by the Director of visors or other experts. the cognizant field installation or des- (6) Subject to the provisions of ignee. § 1240.103(c)(2), the applicant will sub- (b) Monetary awards and accom- mit a copy of any exhibit or visual aid panying written acknowledgments to utilized unless otherwise directed by employees of NASA contractors will be the Board. The Board may, at its dis- forwarded to contractor officials for cretion, arrange for a written tran- suitable presentation. script of the proceedings and a copy of such transcript will be made available § 1240.112 Financial accounting. by the recorder for purchase by the ap- (a) An Award Check Receipt (NHQ plicant. DIV Form 622), which accompanies the (7) No funds are available to defray transmittal of each group of award traveling expenses or any other cost in- checks from the Board will be dated curred by the applicant. and signed by the responsible Award (b) [Reserved] Liaison Officer/Technology Utilization Officer and returned to the Board with- § 1240.109 Recommendation to the Ad- out delay. ministrator. (b) Not later than December 10 of Upon a determination by the Board each year, the responsible field instal- that a contribution merits an award, lation official will submit a report cer- the Board will recommend to the Ad- tifying that all award checks, which ministrator or a designee the terms were issued and received by the field and conditions of the proposed award, installation during the year, have been including a specific amount and dis- delivered to the proper employees of tribution thereof for any multiple con- NASA and employees of NASA contrac- tributors. The recommendation of the tors. In the case of those checks that
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have not been delivered by December 1245.112 Notice of proposed Board action and 10, the certification report will be ac- reconsideration. companied by all undelivered checks 1245.113 Hearing procedure. 1245.114 Findings and recommendations of and a brief explanation of the reasons the Board. for the failure to make delivery. This 1245.115 Action by the Administrator. annual certification report is essential 1245.116 Miscellaneous provisions. in order to assure that income and 1245.117 March-in and waiver revocation withholding tax totals for all awardees procedures. are correct and complete at the close of 1245.118 Record of decisions. each calendar year. Subpart 2 [Reserved] § 1240.113 Delegation of authority. Subpart 3—NASA Foreign Patent Program (a) The Associate Administrator for Management and the Chairperson, In- 1245.300 Scope of subpart. 1245.301 Inventions under NASA contracts. ventions and Contributions Board, are 1245.302 Inventions by NASA employees. delegated authority to execute grants 1245.303 Criteria. of awards for significant scientific or 1245.304 Procedures. technical contributions not exceeding $1000 per contributor, when in accord- Subpart 4—Foreign Patent Licensing ance with the recommendation of the Regulations Board and in conformity with applica- 1245.400 Scope of subpart. ble law and regulations. 1245.401 Policy. (b) The Chairperson, Inventions and 1245.402 Types of licenses and terms and Contributions Board, is delegated au- conditions. thority to execute grants of initial 1245.403 Government license. awards upon the decision to file for a 1245.404 Enforcement of patent rights. U.S. patent application, and upon ap- 1245.405 Procedures. proval to publish a selected NASA Tech Subpart 5—Authority and Delegations to Brief. Take Certain Actions Relating to Pat- (c) No redelegation is authorized ex- ents and Other Intellectual Property cept by virtue of succession. Rights (d) The Chairperson, Inventions and Contributions Board, will ensure that 1245.500 Scope. feedback is provided so that the Ad- 1245.501 General Counsel. ministrator, through official channels, 1245.502 Associate General Counsel for Intel- lectual Property. is currently informed of significant ac- 1245.503 Patent Counsel of Field Installa- tions, problems, or other matters of tions. substance related to the exercise of the 1245.504 Further redelegation. authority delegated in this section. Subpart 1—Patent Waiver PART 1241 [RESERVED] Regulations
PART 1245—PATENTS AND OTHER AUTHORITY: 42 U.S.C. 2457, 35 U.S.C. 200 et INTELLECTUAL PROPERTY RIGHTS seq. SOURCE: 52 FR 43748, Nov. 16, 1987, unless Subpart 1—Patent Waiver Regulations otherwise noted.
Sec. § 1245.100 Scope. 1245.100 Scope. 1245.101 Applicability. This subpart prescribes regulations 1245.102 Definitions and terms. for the waiver of rights of the Govern- 1245.103 Policy. ment of the United States to inven- 1245.104 Advance waivers. tions made under NASA contract in 1245.105 Waiver after reporting inventions. conformity with section 305 of the Na- 1245.106 Waiver of foreign rights. tional Aeronautics and Space Act of 1245.107 Reservations. 1245.108 License to contractor. 1958, as amended (42 U.S.C. 2457). 1245.109 Assignment of title to NASA. 1245.110 Content of petitions. § 1245.101 Applicability. 1245.111 Submission of petitions. The provisions of the subpart apply to all inventions made or which may be 205
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made under conditions enabling the the National Aeronautics and Space Administrator to determine that the Act of 1958, as amended (42 U.S.C. rights therein reside in the Govern- 2457(f)). ment of the United States under sec- (g) Chairperson means Chairperson of tion 305(a) of the National Aeronautics the NASA Inventions and Contribu- and Space Act of 1958, as amended, 42 tions Board. U.S.C. 2457(a). The provisions do not (h) Petitioner means a contractor or apply to inventions made under any prospective contractor who requests contract, grant, or cooperative agree- that the Administrator waive rights in ment with a nonprofit organization or an invention or class of inventions small business firm that are afforded made or which may be made under a the disposition of rights as provided in NASA contract. In the case of an iden- 35 U.S.C. 200–204 (Pub. L. 96–517, 94 tified invention, the petitioner may be Stat. 3019, 3020, 3022 and 3023; and Pub. the inventor(s). L. 98–620, 98 Stat. 3364–3367). (i) Government agency includes any executive department, independent § 1245.102 Definitions and terms. commission, board, office, agency, ad- As used in this subpart: ministration, authority, Government (a) Contract means any actual or pro- corporation, or other Government es- posed contract, agreement, under- tablishment of the executive branch of standing, or other arrangement with the Government of the United States of the National Aeronautics and Space America. Administration (NASA) or another (j) Administrator means the Adminis- Government agency on NASA’s behalf, trator of the National Aeronautics and including any assignment, substitution Space Administration or the Adminis- of parties, or subcontract executed or trator’s duly authorized representa- entered into thereunder, and including tive. NASA grants awarded under the au- thority of 42 U.S.C. 1891–1893. § 1245.103 Policy. (b) Contractor means the party who (a) In implementing the provisions of has undertaken to perform work under section 305(f) of the National Aero- a contract or subcontract. nautics and Space Act of 1958, as (c) Invention includes any art, meth- amended (42 U.S.C. 2457(f)), and in de- od, process, machine, manufacture, de- termining when the interests of the sign, or composition or matter, or any United States would be served by waiv- new and useful improvement thereof, er of all or any part of the rights of the or any variety of plant, which is or United States in inventions made in may be patentable under the Patent the performance of work under NASA Laws of the United States of America contracts, the Administrator will be or any foreign country. guided by the objectives set forth in (d) Made, when used in relation to the National Aeronautics and Space any invention, means the conception or Act of 1958, as amended (42 U.S.C. 2451– first actual reduction to practice of 2477) and by the basic policy of the such invention. Presidential Memorandum and State- (e) Practical application means to ment of Government Patent Policy to manufacture in the case of a composi- the Heads of the Executive Depart- tion or product, to practice in the case ments and agencies dated February 18, of a process or method, or to operate in 1983. Among the most important goals the case of a machine or system; and, are to provide incentives to foster in- in each case, under such conditions as ventiveness and encourage the report- to establish that the invention is being ing of inventions made under NASA utilized and that its benefits are to the contracts, to provide for the widest extent permitted by law or Govenment practicable dissemination of new tech- regulations available to the public on nology resulting from NASA programs, reasonable terms. and to promote early utilization, expe- (f) Board means the NASA Inventions ditious development, and continued and Contributions Board established by availability of this new technology for the Administrator of NASA within the commercial purposes and the public Administration under section 305(f) of benefit. In applying this regulation,
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both the need for incentives to draw served by restricting or eliminating all forth private initiatives and the need or part of the rights of the contractor to promote healthy competition in in- in one or more of the following situa- dustry must be weighed. tions: (b) Several different situations arise (1) When the contractor is not lo- when waiver of all or any part of the cated in the United States or does not rights of the United States may be re- have a place of business in the United quested and are prescribed in States or is subject to the control of a §§ 1245.104–1245.106. Under § 1245.104, ad- foreign government; vance waiver of rights to any or all of (2) When a determination has been the inventions which may be made made by Government authority which under a contract may be requested is authorized by statute or Executive prior to the execution of the contract, order to conduct foreign intelligence or or within 30 days after execution of the counter-intelligence activities that the contract. Waiver of rights to an identi- restriction or elimination of the right fied invention made and reported under to retain title to any inventions made a contract are to be requested under in the performance of work under the § 1245.105, and may be requested under contract is necessary to protect the se- this provision even though a request curity of such activities; or under § 1245.104 was not made, or if (3) Where the Board finds that excep- made, was not granted. Waiver of for- tional circumstances exist, such that eign rights under § 1245.106 may be re- restriction or elimination of the right quested concurrently with domestic to retain title will better promote one rights under § 1245.104 or § 1245.105, or or more of the following objectives: may be made independently. (i) Promoting the utilization of in- (c) With respect to inventions which ventions arising from federally sup- may be or are made or conceived in the ported research and development; course of or under contracts for re- (ii) Encouraging maximum participa- search, development or demonstration tion of industry in federally-supported work awarded by NASA on behalf of research and development; the Department of Energy (DOE) or in (iii) Ensuring that inventions are support of a DOE program, on a reim- used in a manner to promote free com- bursable basis pursuant to agreement petition and enterprise; between DOE and NASA, the waiver (iv) Promoting the commercializa- policy, regulations, and procedures of tion and public availability of inven- DOE will be applied. NASA will nor- tions made in the United States by mally grant waiver of rights to inven- United States industry and labor; and tions made under contracts awarded by (v) Ensuring that the Government NASA on behalf of, or in support of, obtains sufficient rights in federally- programs funded by another Govern- supported inventions to meet the needs ment agency, unless the funding agen- of the Government and protect the cy recommends and justifies denial of public against nonuse or unreasonable the waiver. See §§ 1245.110(c) and use of inventions. 1245.111(b). (c)(1) An advance waiver, when grant- ed, will be subject to the reservations § 1245.104 Advance waivers. set forth in § 1245.107. Normally, the (a) The provisions of this section reservations of § 1245.107(a), License to apply to petitions for waiver of domes- the Government, and § 1245.107(b), tic rights to any or all of the inven- March-in rights, will apply. However, tions which may be made under a con- should one or more of the situations tract. set forth in paragraphs (b)(1) through (b) The NASA Inventions and Con- (b)(3), of this section exist, rather than tributions Board normally will rec- denying the advance waiver request, ommend grant of a request for advance the Board may recommend restricting waiver of domestic rights submitted or eliminating only part of the rights prior to execution of contract or within of the contractor to the extent nec- 30 days after execution of the contract essary to address the particular situa- unless the Board finds that the inter- tion, consistent with the policy and ests of the United States will be better goals of § 1245.103. In that event, the
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waiver grant will be subject to addi- mitted in the subpart of the original tional reservations as provided for in petition. § 1245.107(c). (f) A waiver granted pursuant to a pe- (2) An advance waiver, when granted, tition submitted under this section will apply only to inventions reported shall extend to any contract changes, to NASA under the applicable terms of modifications, or supplemental agree- the contract and a designation made ments, so long as the purpose of the within 6 months of the time of report- contract or the scope of work to be per- ing (or a reasonable time thereafter formed is not substantially changed. permitted for good cause shown) that the contractor elects title to the inven- § 1245.105 Waiver after reporting in- tion and intends to file or has filed a ventions. U.S. patent application. Such election (a) The provisions of this section will be made by notification in writing apply to petitions for waiver of domes- to the patent representative designated tic rights to identified inventions in the contract. Title to all other in- which have been reported to NASA and ventions made under the contract are to which a waiver of rights has not subject to section 305(a) of the National been granted pursuant to § 1245.104. Aeronautics and Space Act of 1958, as (b)(1) When an individual identified amended, 42 U.S.C. 2457(a). The grant- invention has been reported to NASA ing of the advance waiver does not oth- under the applicable terms of the con- erwise relieve a contractor of any of tract and waiver of rights has not been the invention identification or report- granted under § 1245.104, the Board nor- ing requirements set forth in the appli- mally will recommend grant of a re- cable patent rights clause in the con- quest for waiver of domestic rights to tract. such invention if the request is re- (3) The waiver shall extend to the in- ceived within 8 months of first disclo- vention claimed in any patent applica- sure to NASA (or such longer period tion filed on the reported invention, in- that the Board may permit for good cluding any subsequent divisional or cause shown), unless the Board finds continuation application thereof, pro- that one or more of the situations set vided the claims of the subsequent ap- forth in § 1245.104(b)(3)(i) through (v) plication do not substantially change exist. When granted, the waiver will be the scope of the reported invention. subject to the reservations set forth in (d) When a petition for waiver is sub- § 1245.107 in the same manner as dis- mitted under paragraph (b) of this sec- cussed in § 1245.104(c)(1). tion, prior to contract execution, it (2) The waiver shall extend to the in- will be processed expeditiously so that vention claimed in the patent applica- a decision on the petition may be tion filed on the reported invention, in- reached prior to execution of the con- cluding any subsequent divisional or tract. However, if there is insufficient continuation application thereof, pro- time or insufficient information is pre- vided the claims of the subsequent ap- sented, or for other reasons which do plication do not substantially change not permit a recommendation to be the scope of the reported invention. made without unduly delaying execu- tion of the contract, the Board will in- § 1245.106 Waiver of foreign rights. form the contracting officer that no (a) The Board will consider the waiv- recommendation has been made and er of foreign rights in any designated the reasons therefor. The contracting country concurrently with the waiver officer will then notify the petitioner of domestic rights when so requested of the Board’s action. under § 1245.104 or § 1245.105. (e) After notification by the con- (b) The Board will also consider a tracting officer under paragraph (d) of separate request for foreign rights for this section, the petitioner may, upon an individual identified invention in its execution of the contract, or within any designated country if a request 30 days, request the Board to recon- was not made pursuant to paragraph sider the matter under paragraph (b) of (a) of this section, or for countries not this section either on the record or designated pursuant to paragraph (a) of with any additional statements sub- this section.
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(c) Waiver of foreign rights will nor- not reasonably satisfied by the con- mally be granted under paragraph (a) tractor, assignee, or their licensees; or paragraph (b) of this section in any (3) Such action is necessary to meet designated country unless; (1) The requirements for public use specified Board finds that the economic inter- by Federal regulations and such re- ests of the United States will not be quirements are not reasonably satisfied served thereby; or unless (2) in the case by the contractor, assignee, or licens- of an individual identified invention ees; or under paragraph (b) of this section, (4) Such action is necessary because NASA has determined, prior to the re- the agreement required by the ‘‘Pref- quest, to file a patent application in erence for United States industry’’ has the designated country. not been obtained or waived or because (d) If, subsequent to the granting of a licensee of the exclusive right to use the petition for foreign rights, the peti- or sell any invention in the United tioner requests and designates addi- States is in breach of such agreement. tional countries in which it wishes to (c) Additional reservations. In the secure patents, the Chairperson may event one or more of the situations set grant such request, in whole or in part, forth in § 1245.104 (b)(1) through (b)(3) without further action by the Board. exist, the Board may determine to rec- ommend partial grant of the waiver re- § 1245.107 Reservations. quest (rather than denial) by making the grant subject to additional reserva- (a) License to the Government. Any in- tions (than those set forth in (a) and vention for which waiver of domestic (b) of this section) to the extent nec- or foreign rights has been granted essary to address the particular situa- under this subpart shall be subject to tion. Such additional reservations may the reservation by the Administrator include, but not be limited to, field-of- of an irrevocable, nonexclusive, non- use or terrestrial-use limitations, or transferable, royalty-free license for additions to the march-in rights. the practice of the invention through- out the world by or on behalf of the § 1245.108 License to contractor. United States or any foreign govern- (a) Each contractor reporting an in- ment pursuant to any treaty or agree- vention is granted a revocable, non- ment with the United States. exclusive, royalty-free license in each (b) March-in rights. For any invention patent application filed in any country for which waiver of rights has been on the invention and in any resulting granted under this subpart, NASA has patent in which the Government ac- the right in accordance with 35 U.S.C. quires title. The license extends to the 203 and 210, and with the procedures set contractor’s domestic subsidiaries and forth in § 1245.117 and 37 CFR 401.6, to affiliates, if any, within the corporate require the contractor, an assignee, or structure of which the contractor is a exclusive licensee of the invention to party and includes the right to grant grant a nonexclusive, partially exclu- sublicenses of the same scope to the ex- sive, or exclusive license in any field of tent the contractor was legally obli- use to a responsible applicant or appli- gated to do so at the time the contract cants, upon terms that are reasonable was awarded. The license and right is under the circumstances, and if the transferable only with the approval of contractor, assignee, or exclusive li- the Administrator except when trans- censee refuses such a request, NASA ferred to the successor of that part of has the right to grant such a license the contractor’s business to which the itself if NASA determines that: invention pertains. (1) Such action is necessary because (b) The contractor’s domestic license the contractor or assignee has not may be revoked or modified by the Ad- taken, or is not expected to take with- ministrator to the extent necessary to in a reasonable time, effective steps to achieve expeditious practical applica- achieve practical application of the in- tion of the invention pursuant to an vention in such field of use; application for an exclusive license (2) Such action is necessary to allevi- submitted in accordance with the Li- ate health or safety needs which are censing of NASA Inventions (14 CFR
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1245.2). This license will not be revoked time thereafter for good cause shown) in that field of use and/or the geo- from the date a license is granted by graphical areas in which the contractor the Commissioner of Patents and has achieved practical application and Trademarks to file foreign patent ap- continues to make the benefits of the plications where such filing has been invention available to the public on prohibited by a Secrecy Order. reasonable terms. The license in any (c) In any country in which the waiv- foreign country may be revoked or er recipient decides not to continue modified at the discretion of the Ad- prosecution of any application, to pay ministrator to the extent the con- maintenance fees on, or defend in reex- tractor, its licensees, or its domestic amination or opposition proceedings on subsidiaries or affiliates have failed to a patent on a waived invention, the achieve practical application in that waiver recipient shall notify the patent foreign country. representative within sufficient time (c) Before revocation or modification for NASA to continue prosecution, pay of the license, the contractor will be the maintenance fee or defend the reex- provided a written notice of the Ad- amination or opposition, and upon ministrator’s intention to revoke or written request, convey title to NASA modify the license, and the contractor and execute all papers necessary for will be allowed 30 days (or any other NASA to proceed with the appropriate time as may be allowed by the Admin- action. istrator for good cause shown by the contractor) after the notice to show § 1245.110 Content of petitions. cause why the license should not be re- (a) Each request for waiver of domes- voked or modified. The contractor tic or foreign rights under § 1245.104, shall have the right to appeal, under § 1245.105, or § 1245.106 shall be by peti- the Licensing of NASA Inventions (14 tion to the Administrator and shall in- CFR 1245.2), any decision concerning clude: the revocation or modification of its li- (1) An identification of the peti- cense. tioner, its place of business, and ad- dress; § 1245.109 Assignment of title to NASA. (2) If the petitioner is represented by (a) The instrument of waiver set counsel, the name, address, and tele- forth in § 1245.115(c) shall be voided by phone number of the counsel; NASA with respect to the domestic (3) A citation to the section title to any invention for which a pat- (§ 1245.104, § 1245.105, or § 1245.106) under ent application has not been filed with- which the petition is submitted, the in 1 year (or a reasonable time there- nature and extent of the rights re- after for good cause shown) from notifi- quested, and a positive statement that cation to NASA of election of title, as waiver of rights under the cited section required by § 1245.104(c)(2), for an ad- is being requested; vanced waiver pursuant to § 1245.104, or (4) If the petitioner is an employee within 1 year from the granting of a inventor of the contractor, a statement waiver for an individual invention from the contractor that the con- granted pursuant to § 1245.105. tractor does not object to this petition. (b) The instrument of waiver set (5) Information identifying the pro- forth in § 1245.115(c) shall be voided by posed contract or resulting contract, if NASA with respect to title in any for- any; eign country for which waiver has been (6) A designation of the country or granted pursuant to § 1245.106, if a pat- countries, the United States of Amer- ent application has not been filed in ica and/or foreign, in which waiver of that country (or in the European Pat- title is requested; ent Office or under the Patent Coopera- (7) A copy of the invention disclosure tion Treaty and that country des- if the request is for an individual iden- ignated) within either 10 months (or a tified invention (under § 1245.105); reasonable time thereafter for good (8) The name, address, and telephone cause shown) from the date a cor- number of the party with whom the responding U.S. patent application has Board is to communicate when the re- been filed or 6 months (or a reasonable quest is acted upon;
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(9) Whether the petitioner is an enti- (1) Whether it proposes to rec- ty of or under the control of a foreign ommend to the Administrator that the government; petition be: (10) The signature of the petitioner or (i) Granted in the extent requested; its authorized representative; and (ii) Granted in an extent different (11) The date of the petition. from that requested; or (b) No specific forms need be used. (iii) Denied. Requests for advanced waiver should, (2) Of the reasons for any rec- preferably, be included with the pro- ommended action adverse to or dif- posal, but in any event in advance of ferent from the waiver of rights re- negotiations. quested by the petitioner. (b) Request for reconsideration and (c) Petitions for waiver under contracts statements required. (1) If, under para- funded by another agency. The content graph (a) of this section, the Board no- of the petitions for waiver of title to tifies the petitioner that the Board inventions made under contracts proposes to recommend action adverse awarded by NASA on behalf of the De- to or different from the waiver re- partment of Energy under § 1245.103(c) quested, the petitioner may, within the shall follow the procedures and form period as the Board may set, but not prescribed by and shall be acted on by less than 15 days from the notification, that agency. Petitions under contracts request reconsideration by the Board. awarded by NASA on behalf of other (2) If reconsideration has been re- agencies will be coordinated with the quested within the prescribed time, the agency before action is taken by the petitioner shall, within 30 days from Board. the date of the request for reconsider- § 1245.111 Submission of petitions. ation, or within any other time as the Board may set, file its statement set- (a) Petitions for advance waiver of ting forth the points, authorities, argu- domestic rights under § 1245.104 or for ments, and any additional material on advance waiver of foreign rights under which it relies. § 1245.106 presented prior to contract (3) Upon filing of the reconsideration execution, must be submitted to the statement by the petitioner, the peti- contracting officer. Any petition sub- tion will be assigned for reconsider- mitted by a prospective contractor and ation by the Board upon the contents selected for negotiation of a contract of the petition, the record, and the re- will be processed and forwarded to the consideration statement submitted by Board for consideration. All other peti- the petitioner. tions will be submitted to the patent (4) The Board, after its reconsider- representative designated in the con- ation, will promptly notify the peti- tract for processing prior to forwarding tioner of its proposed recommendation to the Board. to the Administrator. If the Board’s (b) A copy of any waiver petitions proposed action is adverse to, or dif- submitted under § 1245.103(c) should be ferent from, the waiver requested, the forwarded to the appropriate NASA petitioner may request an oral hearing field installation patent counsel, if not within the time as the Board has set. supplied earlier, for (1) transmittal to the Department of Energy for proc- § 1245.113 Hearing procedure. essing by that agency, or (2) coordina- (a) If the petitioner requests an oral tion with other agencies, as applicable. hearing within the time set, under § 1245.112(b)(4), the Board shall set the § 1245.112 Notice of proposed Board time and place for the hearing and action and reconsideration. shall notify the petitioner. (a) Notice. Except as provided by (b) Oral hearings held by the Board § 1245.104(d), the Board will notify the shall be open to the public and shall be petitioner, through the contracting of- held in accordance with the following ficer, with respect to petitions for ad- procedures: vance waiver prior to contract execu- (1) Oral hearings shall be conducted tion, and directly to the petitioner for in an informal manner, with the objec- all other petitions: tive of providing the petitioner with a
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full opportunity to present facts and § 1245.115 Action by the Adminis- arguments in support of the petition. trator. Evidence may be presented through (a) After receiving the transmittal means of witnesses, exhibits, and vis- from the Board, the Administrator ual aids as are arranged for by the peti- shall determine, in accordance with the tioner. Petitioner may be represented policy of § 1245.103, whether or not to by any person including its attorney. grant any petition for waiver of rights While proceedings will be ex parte, to the petitioner. members of the Board and its counsel (b) In the event of denial of the peti- may address questions to witnesses tion by the Administrator, a written called by the petitioner, and the Board notice of such denial will be promptly may, at its option, enlist the aid of transmitted by the Board to the peti- technical advisors or expert witnesses. tioner. The written notice will be ac- Any person present at the hearing may companied with a statement of the make a statement for the record. grounds for denial. (2) A transcript or equivalent record (c) If the waiver is granted by the Ad- of the proceeding shall be arranged for ministrator, the petitioner shall be by the Board. The petitioner shall sub- sent for execution, an instrument of mit for the record a copy of any exhibit waiver confirmatory of the conditions or visual aid utilized during the hear- and reservations of the waiver grant. ing. The petitioner shall promptly return the executed copy of the instrument of § 1245.114 Findings and recommenda- waiver to the Chairperson. tions of the Board. § 1245.116 Miscellaneous provisions. (a) Findings of the Board. The Board shall consider the petition, the NASA (a) Filing of patent applications and re- imbursement of costs. In order to protect contract, if relevant, the goals cited in the interests of the Government and § 1245.103(a), the effect of the waiver on the petitioner in inventions, a peti- the objectives of the related NASA pro- tioner may file United States patent grams, and any other available facts applications for such inventions prior and information presented to the Board to the Administrator’s determination by an interested party. The Board shall on a petition for waiver. If an applica- document its findings. tion on an identified invention is filed (b) Recommendation of the Board. (1) during the pendency of the petition, or Except as provided in § 1245.104(d), after within 60 days prior to the receipt of a making the findings of fact, the Board petition, NASA will reimburse the peti- shall formulate its proposed rec- tioner for any reasonable costs of the ommendation to the Administrator as filing and patent prosecution that may to the grant of waiver as requested, the have occurred, provided: grant of waiver upon terms other than (1) Similar patent filing and prosecu- as requested, or denial of waiver. tion costs are not normally reimbursed (2) If the Board proposes to rec- to the petitioner as direct or indirect ommend, initially or upon reconsider- costs chargeable to the Government ation or after oral hearing, that the pe- contracts; tition be granted in the extent re- (2) The petition is ultimately denied quested or, in other cases, where the with respect to domestic rights, or petitioner does not request reconsider- with respect to foreign and domestic ation or a hearing during the period set rights, if both are requested, and for the action or informs the Board (3) Prior to reimbursement, peti- that the action will not be requested, tioner assigns the application to the United States of America as rep- or fails to file the required statements resented by the Administrator of the within the prescribed time, the Board National Aeronautics and Space Ad- shall transmit the petition, a summary ministration. record of hearing proceedings, if appli- (b) Statement of Government rights. cable, its findings of fact, and its rec- The waiver recipient shall include, ommendation to the Administrator. within the specification of any United
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States patent application and any pat- fidential and not subject to disclosure ent issuing thereon for a waived inven- under 5 U.S.C. 552. tion, the following statement: (g) Communications. Unless otherwise The invention described herein was made specifically set forth in this subpart, in the performance of work under NASA all communications relating to waived Contract No. lll, and is subject to the pro- inventions, and all information and visions of Section 305 of the National Aero- documents required to be submitted to nautics and Space Act of 1958, as amended (42 NASA in this subpart, shall be fur- U.S.C. 2457). nished to the patent representative (c) License to the Government. The designated in the contract under which waiver recipient shall return to NASA the waived invention was made. a duly executed and approved license to the Government (which will be pre- (Recordkeeping and reporting requirements contained in paragraph (f) were approved by pared by the Government) fully con- the Office of Management and Budget under firming of all the rights, domestic and control number 2700–0050) foreign, to which the Government is entitled. § 1245.117 March-in and waiver rev- (d) Patent filing and issuance informa- ocation procedures. tion. The waiver recipient shall furnish (a) The exercise of march-in proce- to either the Chairperson or the patent dures shall be governed by 35 U.S.C. 203 representative, the filing date, serial number and title, and upon request, a and by the applicable provisions of 37 copy of any domestic or foreign patent CFR 401.6, entitled ‘‘Exercise of march- application including an English lan- in rights for inventions made by non- guage version if filed in a language profit organizations and small business other than English, and a copy of the firms.’’ patent or patent number and issue (b) Whenever NASA receives informa- date, for any waived invention. tion that it believes might warrant the (e) Transfer of rights. The waiver re- exercise of march-in rights, before ini- cipient shall notify the Chairperson tiating any march-in proceeding, it prior to any transfer of principal rights shall notify the waiver recipient in in any waived invention to any party. writing of the information and request Such transfer shall be subject to all informal written or oral comments rights reserved by the Government, from the waiver recipient as well as in- and all obligations of the waiver recipi- formation relevant to the matter. In ent, as set forth in this subpart. the absence of any comments from the (f) Utilization reports. (1) The waiver waiver recipient within 30 days, NASA recipient shall provide to the Chair- may, at its discretion, proceed with the person upon request, and no more fre- procedures set forth in 37 CFR 401.6. If quently than annually, reports on the a comment is received within 30 days, utilization of a waived invention or on or later if NASA has not initiated the efforts at obtaining such utilization procedures, then NASA shall, within 60 being made by the waiver recipient or days after it receives the comment, ei- its licensees or assigns. Such reports ther initiate the procedures or notify shall include information regarding the the waiver recipient, in writing, that it status of the development, date of first will not pursue march-in rights on the commercial sale or use, and such other basis of the available information. data and information as the Chair- (c) If march-in procedures are to be person may reasonably specify. No uti- initiated, the Administrator of NASA, lization reports need be submitted or designee, shall undertake or refer after the term of the patent. the matter for fact finding to the (2) Such reports on the utilization of NASA Board of Contract Appeals (BCA) a waived invention, as well as informa- and its Chairperson. tion on the utilization or efforts at ob- (d) Fact-finding shall be conducted taining utilization obtained as part of by the NASA BCA and its Chairperson a march-in proceeding under § 1245.117, in accordance with its procedures that shall be treated by NASA as commer- are consistent with the procedures set cial and financial information obtained forth in 37 CFR 401.6. Any portion of from a person and privileged and con- the march-in proceeding, including a
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fact-finding hearing that involves tes- a patent application covering the in- timony or evidence relating to the uti- vention in such countries. However, lization or efforts at obtaining utiliza- any such waiver is subject to the res- tion that are being made by the waiver ervation by the Administrator of the recipient, its assignee, or licensees license required to be retained by shall be closed to the public, including NASA under section 305(f) of the Na- potential licensees. In accordance with tional Aeronautics and Space Act of 35 U.S.C. 202(c)(5), NASA shall not dis- 1958 (42 U.S.C. 2457(f)). close any such information obtained (b) Conversely, where the principal during a march-in proceeding to per- rights in an invention made under a sons outside the Government except NASA contract remain in the con- when such release is authorized by the tractor by virtue of waiver, waiver recipient (assignee or licensee). § 1245.19(a)(5) provides that the con- (e) The preparation of written find- tractor, upon written request, will con- ings of fact and recommended deter- vey to the Administrator of NASA the mination by the Chairperson of the entire right, title, and interest in the NASA BCA and the determination by invention in any foreign country in the Administrator, or designee, of which the contractor has elected not to NASA shall be in accordance with 37 file a patent application. CFR 401.6. (c) With respect to inventions in (f) NASA may, at any time, termi- which NASA has acquired and retained nate a march-in proceeding if it is sat- the principal rights, NASA will file isfied that it does not wish to exercise patent applications in countries other march-in rights. than the United States on inventions selected in accordance with the cri- § 1245.118 Record of decisions. teria set forth in § 1245.303. The findings of fact and rec- ommendations made to the Adminis- § 1245.302 Inventions by NASA employ- trator by the Board with respect to ees. each petition for waiver shall be re- (a) The foreign rights of NASA and of corded by the Board and be available to the NASA employee making an inven- the public. tion are determinable in accordance with Executive Orders 9865 and 10096 Subpart 2 [Reserved] and Government Patent Board Admin- istrative Order No. 6 issued pursuant Subpart 3—NASA Foreign Patent thereto. Program (b) Where NASA acquires an assign- ment of the domestic rights in an in- AUTHORITY: 42 U.S.C. 2457(h) and Executive vention made by a NASA employee, Orders 9865 and 10096. NASA will also obtain an option to ac- quire the foreign rights, including the SOURCE: 30 FR 1844, Feb. 10, 1965, unless otherwise noted. right to file foreign patent applications on the invention. § 1245.300 Scope of subpart. (c) Where NASA is entitled to only a This subpart establishes policy, cri- governmental license in the invention, teria, and procedures concerning the the principal foreign rights in the in- NASA Foreign Patent Program. vention are retained by the employee unless he agrees in writing to assign § 1245.301 Inventions under NASA con- such rights to NASA. tracts. § 1245.303 Criteria. (a) Pursuant to § 1245.113, NASA has facilitated the filing of foreign patent The following categories of inven- applications by contractors by pro- tions will be considered for the filing of viding for the granting of a waiver of patent applications by NASA in coun- title to a contractor to any identified tries other than the United States: invention in countries other than the (a) Inventions which may be utilized United States in the event the Admin- abroad in governmental programs of istrator of NASA does not desire to file the United States.
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(b) Inventions which may be ex- granted in countries other than the ploited abroad in the public interest by United States and to NASA-owned pat- license to U.S. nationals or others. ent applications pending in such coun- (c) Inventions which may be utilized tries and supplement the provisions of in applications type satellites, such as subpart 2 of this part for foreign patent communications and meteorological licensing. satellites. (d) Inventions considered to be basic § 1245.401 Policy. discoveries or of major significance in The foreign licensing program of the an art. National Aeronautics and Space Ad- (e) Inventions in fields which directly ministration serves to promote and concern the public health or public utilize foreign patent rights vested in welfare. the Administration. The objectives of this program are to further the inter- § 1245.304 Procedures. ests of United States industry in for- (a) The patent counsel at each NASA eign commerce, to enhance the eco- field installation will review all inven- nomic interests of the United States tion disclosures at the time of dock- and to advance the international rela- eting and will expedite the processing tionships of the United States. and preparation of a U.S. patent appli- cation, if justified, on those inventions § 1245.402 Types of licenses and terms which appear to fall within the criteria and conditions. set forth in § 1245.303. The patent coun- Licenses will be individually nego- sel will make a recommendation as to tiated and may be granted to any ap- whether or not foreign patent coverage plicant, foreign or domestic, on a non- appears justified at the time of assign- exclusive or exclusive basis for royal- ing a priority evaluation to a disclosed ties or other considerations and on invention. such other terms and conditions as are (b) Preparation and filing of patent deemed appropriate to the interests of applications in foreign countries will the United States. Preference in the be subject to approval of the Assistant granting of foreign license rights will General Counsel for Patent Matters, be shown to those applicants who have NASA Headquarters. previously been granted a license under (c) The Office of Assistant General the corresponding U.S. patent or pat- Counsel for Patent Matters will budget ent application. for and administer the filing of all pat- ent applications in countries other § 1245.403 Government license. than the United States. There will be reserved from each ex- (d) Coordination with other inter- clusive license an irrevocable, non- ested NASA offices will be undertaken exclusive, nontransferable, royalty-free by the Assistant General Counsel for license for the practice of such inven- Patent Matters. tion throughout the world by or on be- half of the United States or any foreign Subpart 4—Foreign Patent government pursuant to any existing Licensing Regulations or future treaty or agreement with the United States. AUTHORITY: 42 U.S.C. 2457(g) and (h). § 1245.404 Enforcement of patent SOURCE: 31 FR 10958, Aug. 18, 1966, unless rights. otherwise noted. An exclusive licensee will be author- § 1245.400 Scope of subpart. ized to enforce the licensed patent and (a) The subpart establishes the pol- to sue infringers of the patent at its icy, terms, conditions, and procedures own expense. under which NASA-owned foreign pat- ents and patent applications may be li- § 1245.405 Procedures. censed. (a) NASA will publish in the United (b) The provisions of this subpart States, and elsewhere as may be appro- apply to all NASA-owned patents priate, lists of NASA-owned foreign
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patents or patent applications avail- § 1245.501 General Counsel. able for licensing. The General Counsel administers the (b) NASA will also furnish written NASA patent program and is delegated notice of the availability for licensing authority to take the following specific of NASA-owned foreign patents or pat- actions related to intellectual prop- ent applications to any licensee under erty, including patent, copyright, the corresponding U.S. patent or pat- trademark, and related matters: ent application. (a) Determination of rights. (1) To exe- (c) Applications for license should be cute notifications of the Administra- addressed to the Administrator, Na- tor’s determinations made pursuant to tional Aeronautics and Space Adminis- section 305(a) of the National Aero- tration, Washington, DC 20456. The ap- nautics and Space Act of 1958, as plication must fully identify the patent amended; or patent application, and state the (2) To make determinations, under type of license requested together with Executive Order 10096 of January 23, proposed terms and conditions thereof. 1950, as amended, of the respective (d) The conduct of negotiations with rights of the Government and of the in- prospective licensees will be the re- ventor in and to inventions made by sponsibility of the General Counsel, employees under the adminstrative ju- NASA. In the conduct of such negotia- risdiction of the National Aeronautics tions, due regard shall be had for the and Space Administration, and to ap- possible interests of NASA program point a liaison officer to deal with the and staff offices, and their coordination Commissioner of Patents in such mat- will be obtained as deemed appropriate. ters pursuant to 37 CFR 100.10, ‘‘Admin- (e) NASA will publish notice in the istration of a Uniform Patent Policy FEDERAL REGISTER, and elsewhere as With Respect to the Domestic Rights may be appropriate, of its intention to in Inventions Made by Government grant an exclusive license under an Employees’’; identified patent or patent application. (b) Powers of attorney. To appoint and/ An exclusive license will not be grant- or revoke principal attorneys and to ed until the expiration of 60 days from execute necessary powers of attorney the date of notice in order to provide a for the purpose of filing and pros- suitable time interval for interested ecuting patent applications in which persons or other Government agencies the United States, as represented by the Administrator, has an interest by to interpose comment or objection. way of either title or license; (f) All licenses shall become effective (c) Application papers and statements. upon the written acceptance by the li- To receive patent applications, docu- censee of a license instrument speci- ments, and statements transmitted to fying the type of license and terms and the Administrator pursuant to section conditions thereof. 305(c) of the National Aeronautics and Space Act of 1958, as amended; Subpart 5—Authority and Delega- (d) Acceptance of licenses and assign- tions to Take Certain Actions ments. To accept on behalf of the Relating to Patents and Other United States licenses under, assign- Intellectual Property Rights ments of, and other rights in inven- tions, patents, and applications for pat- ents; AUTHORITY: 42 U.S.C. 2473, 2457; 14 CFR 1204.506. (e) Secrecy orders. To exercise all pow- ers of the Administrator with respect SOURCE: 43 FR 34122, Aug. 3, 1978, unless to secrecy orders in patent cases and otherwise noted. foreign filing under 35 U.S.C. 181 et seq.; § 1245.500 Scope. (f) Certifications. To exercise the au- This subpart 5 sets forth the author- thority of the Administrator with re- ity and delegations relating to intellec- spect to certifications in support of re- tual property rights, and the adminis- quests for extensions of time under 35 tration of the NASA patent program. U.S.C. 267;
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(g) Foreign patent program. To exer- Contributions Board, and the NASA cise the authority of the Administrator Patent Waiver Regulations, 14 CFR in taking all necessary action to obtain subpart 1245.1 (NASA Management In- and maintain patents in foreign coun- struction 5109.2). tries, including the execution of instru- ments necessary for filing, prosecution, § 1245.502 Associate General Counsel and maintenance of foreign applica- for Intellectual Property. tions and patents; The Associate General Counsel for (h) Authority under section 305(d) and Intellectual Property provides func- (e). To represent the Administrator and tional direction to all Patent Counsel to appoint attorneys to represent the and is redelegated the authority to Administrator in the conduct of busi- take the following actions: ness under sections 305(d) and (e) of the (a) Rights determinations. (1) To exe- National Aeronautics and Space Act of cute notifications of the Administra- 1958, as amended, including execution tor’s determinations made pursuant to of requests pursuant to said sections of section 305(a) of the National Aero- the act that patents be issued to the nautics and Space Act of 1958, as Administrator on behalf of the United amended; States or that title be transferred to (2) To make determinations, under the Administrator; Executive Order 10096 of January 23, (i) Acquisition authority. To exercise 1950 as amended, of the respective the power conferred on the Adminis- rights of the Government and of the in- trator by the National Aeronautics and ventor in and to inventions made by Space Act of 1958, as amended, to ac- employees under the administrative ju- quire an interest in patents and patent risdiction of the National Aeronautics applications, including the purchase of and Space Administration, and to ap- such interests in settlement of claims point a liaison officer to deal with the for the unauthorized use of patented Commissioner of Patents in such mat- inventions and to acquire interests in ters pursuant to 37 CFR 100.10, ‘‘Admin- copyrights, trademarks, and trade istration of a Uniform Patent Policy names; With Respect to the Domestic Rights (j) Authority to settle copyright claims. in Inventions Made by Government To exercise all powers conferred on the Employees’’; Administrator by 28 U.S.C. 1498(b), in- (b) Powers of attorney. To appoint and/ cluding the settlement of claims for or revoke principal attorneys and to copyright infringement; execute necessary powers of attorney (k) Granting of licenses. To make the for the purpose of filing and pros- determinations and to take any and all ecuting patent applications in which actions with respect to the licensing of the United States, as represented by NASA inventions vested in the Admin- the Administrator, has an interest by istrator by the NASA Domestic Patent way either of title or license; Licensing Regulations, 14 CFR subpart (c) Application papers and statements. 1245.2 (NASA Management Instruction To receive patent applications, docu- 5109.3) and the NASA Foreign Patent ments, and statements transmitted to Licensing Regulations, 14 CFR subpart the Administrator pursuant to section 1245.4 (NASA Management Instruction 305(c) of the National Aeronautics and 5109.5) to sign all FEDERAL REGISTER Space Act of 1958, as amended; notice material required by the patent (d) Acceptance of licenses and assign- licensing regulations and to otherwise ments. To accept, on behalf of the grant licenses on any invention in United States, licenses under, assign- which the Administrator has reserved ments of, and other rights in inven- the right to grant licenses; and tions, patents, and applications for pat- (l) Waiver determinations and instru- ents; and ments. To sign for the Administrator (e) Secrecy orders. To exercise all pow- attestations of determinations of grant ers of the Administrator with respect or denial of waiver of title to inven- to secrecy orders in patent cases and tions and to execute instruments of foreign filing under 35 U.S.C. 181 et seq. waiver, when in accordance with the [43 FR 34122, Aug. 3, 1978, as amended at 56 recommendations of the Inventions and FR 19797, Apr. 30, 1991]
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§ 1245.503 Patent Counsel of Field In- 1250.110 Judicial review. stallations. 1250.111 Effect on other regulations; forms and instructions. Patent Counsel of Field Installations 1250.112 Relationship with other officials. and Patent Counsel, NASA Resident Legal Office, Pasadena, Calif., are re- APPENDIX A TO PART 1250—NASA FEDERAL delegated authority to take the fol- FINANCIAL ASSISTANCE TO WHICH THIS lowing actions: PART APPLIES (a) Rights determination. To make de- AUTHORITY: Sec. 602, 78 Stat. 252, 42 U.S.C. termination, under Executive Order 2000d–1; and the laws listed in appendix A to 10096 of January 23, l950, as amended, or this part. the respective rights of the Govern- SOURCE: 30 FR 301, Jan. 9, 1965, unless oth- ment and of the inventor in and to in- erwise noted. ventions made by employee under the administrative jurisdiction of their in- § 1250.100 Purpose. stallations in those instances where The purpose of this part is to effec- the Government is entitled to obtain tuate the provisions of Title VI of the the entire right, title, and interest, and Civil Rights Act of 1964 (hereafter re- to make each determination, with the ferred to as ‘‘the Act’’) to the end that concurrence of the Associate General no person in the United States shall, Counsel for Intellectual Property, in on the ground of race, color or national those instances where the Government acquires less than the entire domestic origin, be excluded from participation right, title, and interest. in, be denied the benefits of, or be oth- (b) Acceptance of licenses and assign- erwise subjected to discrimination ments. To accept on behalf of the under any program or activity receiv- United States licenses under, assign- ing Federal financial assistance from ments of and other rights in inven- the National Aeronautics and Space tions, patents, and applications for pat- Administration, hereinafter referred to ents. as NASA. [43 FR 34122, Aug. 3, 1978, as amended at 56 § 1250.101 Applicability. FR 19797, Apr. 30, 1991] (a) Covered programs. (1) This part ap- § 1245.504 Further redelegation. plies to any program for which Federal None authorized except by virtue of financial assistance is authorized under succession. a law administered by NASA, including the federally-assisted programs and ac- PART 1250—NONDISCRIMINATION tivities listed in appendix A to this part. The fact that a program or activ- IN FEDERALLY-ASSISTED PRO- ity is not listed in appendix A shall not GRAMS OF NASA—EFFEC- mean, if Title VI of the Act is other- TUATION OF TITLE VI OF THE wise applicable, that such program is CIVIL RIGHTS ACT OF 1964 not covered. Other programs under statutes now in force or hereafter en- Sec. acted may be added to appendix A by 1250.100 Purpose. 1250.101 Applicability. notice published in the FEDERAL REG- 1250.102 Definitions. ISTER. 1250.103 Discrimination prohibited. (2) This part applies to money paid, 1250.103–1 General. property transferred, or other Federal 1250.103–2 Specific discriminatory acts pro- financial assistance extended under hibited. any such program after the effective 1250.103–3 Employment practices. 1250.103–4 Illustrative applications. date of this part pursuant to an appli- 1250.103–5 Special programs. cation approved prior to such effective 1250.103–6 Medical emergencies. date. 1250.104 Assurances. (b) Excluded activities. This part does 1250–105 Compliance information. not apply to (1) any Federal financial 1250.106 Conduct of investigations. 1250.107 Procedure for effecting compliance. assistance by way of insurance or guar- 1250.108 Hearings. anty contracts, (2) money paid, prop- 1250.109 Decisions and notices. erty transferred, or other assistance
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extended under any such program be- another recipient for the purpose of fore the effective date of this part, ex- carrying out a program. cept as provided in paragraph (a) of (g) Principal Compliance Officer means this section, (3) any assistance to any the Director, Equal Employment Op- individual who is the ultimate bene- portunity Office, Office of Organization ficiary under any such program, (4) any and Management, NASA Headquarters, employment practice, under any such or any successor officer to whom the program, of any employer, employment Administrator should delegate author- agency, or labor organization, except ity to perform the functions assigned as provided in § 1250.103–3, (5) contracts to the Principal Compliance Officer by not covered in the programs listed in this part. appendix A, or (6) advances, V-loans, (h) Program includes any program, and other financial assistance made in- project, or activity for the provision of cident to NASA procurements not cov- services, financial aid, or other bene- ered in the programs listed in appendix fits to individuals (including education A. or training) whether provided through employees of the recipient of Federal § 1250.102 Definitions. financial assistance or provided by oth- As used in this part— ers through contracts or other arrange- (a) Administrator means the Adminis- ments with the recipient, and including trator of the NASA. work opportunities and cash or loan or (b) Applicable means one who submits other assistance to individuals, or for an application, request, proposal, or the provision of facilities for fur- plan required to be approved by a re- nishing services, financial aid or other sponsible NASA official, or by a pri- benefits to individuals. The services, fi- mary recipient, as a condition to eligi- nancial aid, or other benefits provided bility for Federal financial assistance; under a program receiving Federal fi- and the term application means such an nancial assistance shall be deemed to application, request, proposal or plan. include any services, financial aid, or (c) Facility includes all or any portion other benefits provided with the aid of of structures, equipment, or other real Federal financial assistance or with or personal property or interests there- the aid of any non-Federal funds, prop- in, and the provision of facilities in- erty, or other resources required to be cludes the construction, expansion, expended or made available for the pro- renovation, remodeling, alteration or gram to meet matching requirements acquisition of facilities. or other conditions which must be met (d) Federal financial assistance in- in order to receive the Federal finan- cludes (1) grants and loans of Federal cial assistance, and to include any funds, (2) the grant or donation of Fed- services, financial aid, or other bene- eral property and interests in property, fits provided in or through a facility (3) the detail of Federal personnel, (4) provided with the aid of Federal finan- the sale and lease of, and the permis- cial assistance or such non-Federal re- sion to use (on other than a casual or sources. transient basis), Federal property or (i) Recipient means any State, polit- any interest in such property without ical subdivision of any State, or instru- consideration or at a nominal consider- mentality of any State or political sub- ation, or at a consideration which is re- division, any public or private agency, duced for the purpose of assisting the institution, or organization, or other recipient, or in recognition of the pub- entity, or any individual, in any State, lic interest to be served by such sale or to whom Federal financial assistance is lease to the recipient, and (5) any Fed- extended, directly or through another eral agreement, arrangement, or other recipient, for any program, including contract which has as one of its pur- any successor, assign, or transferee poses the provision of assistance. thereof, but such term does not include (e) NASA means the National Aero- any ultimate beneficiary under any nautics and Space Administration. such program. (f) Primary recipient means any recipi- (j) Responsible NASA official means: ent which is authorized or required to (1) The heads of Offices at NASA extend Federal financial assistance to Headquarters responsible for making
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grants, and contracts of the kind listed (4) Subject an individual to segrega- in appendix A; and tion or separate treatment in any mat- (2) Each Director of a field installa- ter related to his receipt of any service, tion which makes or administers financial aid, or other benefit under grants and contracts of the kind listed the program; in appendix A, or any officer to whom (5) Restrict an individual in any way he has delegated authority to act with- in the enjoyment of any advantage or in the areas of responsibility assigned privilege enjoyed by others receiving to him under this part. any service, financial aid, or other ben- (k) United States means the States of efit under the program; the United States, the District of Co- (6) Treat an individual differently lumbia, Puerto Rico, the Virgin Is- from others in determining whether he lands, American Samoa, Guam, Wake satisfies any admission, enrollment, Island, the Canal Zone, and the terri- quota, eligibility, membership or other tories and possessions of the United requirement or condition which indi- States, and the term State means any viduals must meet in order to be pro- one of the foregoing. vided any service, financial aid, or [30 FR 301, Jan. 9, 1965, as amended at 38 FR other benefit provided under the pro- 17936, July 5, 1973] gram; (7) Deny an individual an opportunity § 1250.103 Discrimination prohibited. to participate in the program through § 1250.103–1 General. the provision of services or otherwise or afford him an opportunity to do so No person in the United States shall, which is different from that afforded on the ground of race, color or national others under the program (including origin be excluded from participation the opportunity to participate in the in, be denied the benefits of, or be oth- program as an employee but only to erwise subjected to discrimination the extent set forth in § 1250.103–3). under any program to which this part (b) A recipient, in determining the applies. types of services, financial aid, or other § 1250.103–2 Specific discriminatory benefits, or facilities which will be pro- acts prohibited. vided under any such program, or the (a) A recipient under any program to class of individuals to whom, or the sit- which this part applies may not, di- uations in which, such services, finan- rectly or through contractual or other cial aid, other benefits, or facilities arrangements, on ground of race, color, will be provided under any such pro- or national origin: gram, or the class of individuals to be (1) Deny an individual any service, fi- afforded an opportunity to participate nancial aid, or other benefit provided in any such program, may not, directly under the program; or through contractual or other ar- (2) Provide any service, financial aid, rangements, utilize criteria or methods or other benefit to an individual which of administration which have the effect is different, or is provided in a different of subjecting individuals to discrimina- manner, from that provided to others tion because of their race, color, or na- under the program; tional origin, or have the effect of de- (3) In determining the site or loca- feating or substantially impairing ac- tion of facilities, a recipient or appli- complishment of the objectives of the cant may not make selections with the program as respects individuals of a purpose or effect of excluding individ- particular race, color, or national ori- uals from, denying them the benefits gin. of, or subjecting them to discrimina- (c) As used in this section the serv- tion under any program to which this ices, financial aid, or other benefits regulation applies, on the grounds of provided under a program receiving race, color, or national origin; or with Federal financial assistance shall be the purpose or effect of defeating or deemed to include any service, finan- substantially impairing the accom- cial aid, or other benefit provided in or plishment of the objectives of the Act through a facility provided with the or this regulation. aid of Federal financial assistance.
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(d) A recipient may not take action (b) Employment opportunities pro- that is calculated to bring about indi- vided in connection with any of the rectly what this part forbids it to ac- programs listed in appendix A, which complish directly. opportunities are limited, or for which (e) The enumeration of specific forms preference is given, to students, fel- of prohibited discrimination in this lows, or other persons in training for section does not limit the generality of the same or related employments, are the prohibition in § 1250.103–1. This reg- programs of the kind described in para- ulation does not prohibit the consider- graph (a)(1) and (2) of this section. ation of race, color, or national origin (c) The requirements applicable to if the purpose and effect are to remove construction employment under any or overcome the consequences of prac- such program shall be those specified tices or impediments which have re- in or pursuant to Executive Order 11246 stricted the availability of, or partici- or any Executive order which super- pation in, the program or activity re- sedes it. ceiving Federal financial assistance, on (d) Where a primary objective of the Federal financial assistance is not to the grounds of race, color, or national provide employment, but discrimina- origin. Where previous discriminatory tion on the grounds of race, color, or practices or usage tends, on the national origin in the employment grounds of race, color, or national ori- practices of the recipient or other per- gin, to exclude individuals from par- sons subject to the regulation tends, on ticipation in, to deny them the benefits the grounds of race, color, or national of, or to subject them to discrimina- origin, to exclude individuals from par- tion under any program or activity to ticipation in, to deny them the benefits which this regulation applies the appli- of, or to subject them to discrimina- cant or recipient has an obligation to tion under any program to which this take reasonable action to remove or regulation applies, the provisions of overcome the consequences of the prior paragraph (a) of this section shall discriminatory practice or usage, and apply to the employment practices of to accomplish the purpose of the Act. the recipient or other persons subject [30 FR 301, Jan. 9, 1965, as amended at 38 FR to the regulation, to the extent nec- 17936, July 5, 1973] essary to assure equality of oppor- tunity to, and nondiscriminatory § 1250.103–3 Employment practices. treatment of, beneficiaries. (a) Where a primary objective of the [30 FR 301, Jan. 9, 1965, as amended at 38 FR Federal financial assistance to a pro- 17936, July 5, 1973] gram to which this part applies is to provide employment, a recipient may § 1250.103–4 Illustrative applications. not directly or through contractual or (a) In training grant programs dis- other arrangements subject an indi- crimination is forbidden in the selec- vidual to discrimination on the ground tion or eligibility of individuals to be of race, color, or national origin in its trained and in their treatment by the employment practices under such pro- grantee during their training. In any gram (including recruitment or re- case where selection is made from a cruitment advertising, employment, predetermined group, such as the stu- layoff or termination, upgrading, de- dents in an institution, the group must motion, or transfer, rates of pay or have been selected without discrimina- other forms of compensation, and use tion. of facilities), including programs where (b) In a research or training grant to a primary objective of the Federal fi- a university for activities to be con- nancial assistance is (1) to assist such ducted in a graduate school, discrimi- individuals through employment to nation in the admission and treatment meet expenses incident to the com- of students in the graduate school is mencement or continuation of their prohibited and the prohibition extends education or training, or (2) to provide to the entire university unless it satis- work experience which contributes to fies the responsible NASA official that the education or training of such indi- practices with respect to other parts or viduals. programs of the university will not
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interfere, directly or indirectly, with served. For example, where a univer- fulfillment of the assurance required sity is not adequately serving members with respect to the graduate school. of a particular racial or nationality (c) Discrimination in the treatment group, it may establish special recruit- of students or other trainees includes ment policies to make its program bet- the prohibition of discrimination ter known and more readily available among the students or trainees in the to such group, and take other steps to availability or use of any academic, provide that group with more adequate dormitory, eating, recreational, or service. other facilities of the grantee or other [30 FR 301, Jan. 9, 1965, as amended at 38 FR recipient. 17937, July 5, 1973] (d) In a research or training grant, discrimination is prohibited with re- § 1250.103–5 Special programs. spect to the availability of any edu- cational activity and any provision of An individual shall not be deemed medical or other services and any fi- subjected to discrimination by reason nancial aid to individuals incident to of his exclusion from the benefits of a the grant. program limited by Federal law to in- (e) Upon transfers of real or personal dividuals of a particular race, color, or property for research or educational national origin different from his. uses, discrimination is forbidden to the § 1250.103–6 Medical emergencies. same extent as in the case of grants for the construction of facilities or the Notwithstanding the provisions of provision of equipment for like pur- §§ 1250.103 to 1250.103–5, a recipient of poses. Federal financial assistance shall not (f) In some situations even though be deemed to have failed to comply past discriminatory practices have with § 1250.103–1, if immediate provision been abandoned, the consequences of of a service or other benefit to an indi- such practices continue to impede the vidual is necessary to prevent his death full availability of a benefit. If the ef- or serious impairment of his health, forts required of the applicant or re- and such service or other benefit can- cipient under § 1250.105 to provide infor- not be provided except by or through a mation as to the availability of the medical institution which refuses or program or activity, and the rights of fails to comply with § 1250.103–1. beneficiaries under this regulation, have failed to overcome these con- § 1250.104 Assurances. sequences, it will become necessary for (a) General requirement. Every appli- such applicant or recipient to take ad- cation for Federal financial assistance ditional steps to make the benefits to carry out a program to which this fully available to racial and nation- part applies, and every application for ality groups previously subjected to Federal financial assistance to provide discrimination. This action might take a facility shall, as a condition to its ap- the form, for example, of special ar- proval and the extension of any Fed- rangements for obtaining referrals or eral financial assistance pursuant to making selections which will insure the application, contain, be accom- that groups previously subjected to dis- panied by, or identify and make ref- crimination are adequately served. erence to, an assurance that the pro- (g) Even though an applicant or re- gram will be conducted or the facility cipient has never used discriminatory operated in compliance with all re- policies, the services and benefits of quirements imposed by or pursuant to the program or activity it administers this part. If the assurance is not made may not in fact be equally available to a part of the application, the applica- some racial or nationality groups. In tion shall identify the assurance which such circumstances an applicant or re- is applicable to the application. One as- cipient may properly give special con- surance shall suffice for all applica- sideration to race, color, or national tions of an applicant if the assurance origin to make the benefits of its pro- complies with the conditions made ap- gram more widely available to such plicable by this part to each such appli- groups, not then being adequately cation for Federal financial assistance.
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Every assurance shall include provi- sought, or the beneficiaries of or par- sions which give the United States a ticipants in such program. right to seek its judicial enforcement. (d) Assurances for construction of facili- (b) Duration of assurances. The period ties. (1) In the case of assistance for the of time to be covered by the assurances construction of a facility, or part required under this § 1250.104 shall be as thereof, the assurance shall extend to follows: the entire facility and to facilities op- (1) Real property. In the case of an ap- erated in connection therewith. In plication for Federal financial assist- grants to assist in the construction of ance for providing real property or facilities for the provision of research, structures thereon, the assurance shall training, or educational services, as- obligate the recipient, or in the case of surances will be required that services a subsequent transfer, the transferee, will be provided without discrimina- for the period during which the real tion, to the same extent that discrimi- property or structures are used for a nation would be forbidden as a condi- purpose for which the Federal financial tion of grants for the support of such assistance is extended or for another services. Thus, as a condition of grants purpose involving the provision of for the construction of academic, re- similar services or benefits. search or other facilities at institu- (2) Personal property. In the case of an tions of higher education, assurances application for Federal financial assist- will be required that there will be no ance for providing personal property, discrimination in the admission or the assurance shall obligate the recipi- treatment of students. Also, see para- ent for the period during which he re- graph (c) of this section for the require- tains ownership or possession of the ment as to the applicability of the as- property. surance to the applicant’s organiza- (3) Other kinds of Federal financial as- tion. sistance. In the case of an application (2) In other construction grants the for any other kind of Federal financial assurances required will similarly be assistance, the assurance shall obligate adapted to the nature of the activities the recipient for the period during to be conducted in the facilities for which Federal financial assistance is construction of which the grants have extended pursuant to the application. been authorized by Congress. (c) Assurances for research, training, or (e) Instrument effecting or recording educational programs. (1) In the case of transfers of real property. The instru- application by an institution of higher ment effecting or recording the trans- education or any other organization for fer, shall contain a covenant running Federal financial assistance for a pro- with the land assuring nondiscrimina- gram or activity which involves par- tion for the period during which the ticipation by students, fellows or train- real property is used for a purpose for ees, including but not limited to assist- which the Federal financial assistance ance for research, training, or the pro- is extended or for another purpose in- vision of facilities, the assurance re- volving the provision of similar serv- quired by this § 1250.104 shall extend to ices or benefits. Where no transfer of admission practices and to all other property is involved, but property is practices relating to the treatment of improved under a program of Federal students or other participants. financial assistance, the recipient shall (2) The assurances from such an ap- agree to include such a covenant in any plicant shall be applicable to the entire subsequent transfer of such property. organization of the applicant unless Where the property is obtained from the applicant establishes, to the satis- the Federal Government, such cov- faction of the officer administering the enant may also include a condition program or activity involved, that its coupled with a right to be reserved by practices in designated parts or pro- NASA to revert title to the property in grams of the organization of the appli- the event of a breach of the covenant cant will in no way affect its practices where, in the discretion of the respon- in the program of the applicant for sible NASA official, such a condition which Federal financial assistance is and right of reverter is appropriate to
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the program under which the real prop- enable the primary recipient to carry erty is obtained and to the nature of out its obligations under this part. the grant and the grantee. (c) Access to sources of information. (f) Assurances for transfer of surplus Each recipient shall permit access by real property. Transfers of surplus prop- the Principal Compliance Officer or his erty are subject to regulations issued designee during normal business hours by the Administrator of General Serv- to such of its books, records, accounts ices (41 CFR 101–6.2). and other sources of information, and (g) Form of assurances. The respon- its facilities as may be pertinent to as- sible NASA officials shall specify the certain compliance with this part. form of assurances required by this Where any information required of a § 1250.104 and the extent to which like recipient is in the exclusive possession assurances will be required by sub- of any other agency, institution or per- grantees, contractors and subcontrac- son and that agency, institution or per- tors, transferees, successors in inter- son shall fail or refuse to furnish this est, and other participants in the pro- information, the recipient shall so cer- gram. tify in its report and shall set forth (h) Requests for proposals. Any request what efforts it has made to obtain the for proposals issued by NASA which re- information. lates to covered financial assistance (d) Information to beneficiaries and listed in appendix A shall have set participants. Each recipient shall make forth therein or have attached thereto available to participants, beneficiaries, the assurance prescribed in accordance and other interested persons such in- with paragraph (g) of this section, and formation regarding the provisions of shall require that the proposer either this part and its applicability to the include the assurance as a part of his program under which the recipient re- signed proposal or identify and refer to ceives Federal financial assistance, and an assurance already signed and sub- make such information available to mitted by the proposer. them in such manner, as the Principal Compliance Officer finds necessary to [30 FR 301, Jan. 9, 1965, as amended at 38 FR apprise such persons of the protection 17937, July 5, 1973] against discrimination assured them by the Act and this part. § 1250.105 Compliance information. (a) Cooperation and assistance. Each § 1250.106 Conduct of investigations. responsible NASA official shall to the (a) Periodic compliance reviews. The re- fullest extent practicable seek the co- sponsible NASA official or his designee operation of recipients in obtaining shall from time to time review the compliance with this part and shall practices of recipients to determine provide assistance and guidance to re- whether they are complying with this cipients to help them comply volun- part. tarily with this part. (b) Complaints. Any person who be- (b) Compliance reports. Each recipient lieves himself or any specific class of shall keep such records and submit to individuals to be subjected to discrimi- the Principal Compliance Officer or his nation prohibited by this part may by designee timely, complete and accurate himself or by a representative file with compliance reports at such times, and the Principal Compliance Officer or his in such form and containing such infor- designee a written complaint. A com- mation, as the Principal Compliance plaint must be filed not later than 90 Officer or his designee may determine days from the date of the alleged dis- to be necessary to enable him to ascer- crimination, unless the time for filing tain whether the recipient has com- is extended by the Principal Compli- plied or is complying with this part. In ance Officer or his designee. the case of any program under which a (c) Investigations. The Principal Com- primary recipient extends Federal fi- pliance Officer or his designee will nancial assistance to any other recipi- make a prompt investigation whenever ent, such other recipient shall also sub- a compliance review, report, com- mit such compliance reports to the pri- plaint, or any other information indi- mary recipient as may be necessary to cates a possible failure to comply with
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this part. The investigation should in- ommendation that appropriate pro- clude, where appropriate, a review of ceedings be brought to enforce any the pertinent practices and policies of rights of the United States under any the recipient, the circumstances under law of the United States (including which the possible noncompliance with other titles of the Act), or any assur- this part occurred, and other factors ance or other contractual undertaking, relevant to a determination as to and (2) any applicable proceeding under whether the recipient has failed to State or local law. comply with this part. (b) Noncompliance with § 1250.104. 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 § 1250.104 or of this section indicates a failure to otherwise fails or refuses to comply comply with this part, the Principal Compliance Officer or his designee will with a requirement imposed by or pur- so inform the recipient and the matter suant to that section, Federal financial will be resolved by informal means assistance may be refused in accord- whenever possible. If it has been deter- ance with the procedures of paragraph mined that the matter cannot be re- (c) of this section. NASA shall not be solved by informal means, action will obligated to provide assistance in such be taken as provided for in § 1250.107. a case during the pendency of the ad- (2) If an investigation does not war- ministrative proceedings under such rant action pursuant to paragraph subsection except that NASA shall con- (d)(1) of this section, the responsible tinue assistance during the pendency of NASA official or his designee will so such proceedings where such assistance inform the recipient and the complain- is due and payable pursuant to an ap- ant, if any, in writing. plication therefor approved prior to the (e) Intimidatory or retaliatory acts pro- effective date of this part. hibited. No recipient or other person (c) Termination of or refusal to grant or shall intimidate, threaten, coerce, or to continue Federal financial assistance. discriminate against any individual for No order suspending, terminating or the purpose of interfering with any refusing to grant or continue Federal right or privilege secured by section 601 financial assistance shall become effec- of the Act or this part, or because he tive until (1) the responsible NASA of- has made a complaint, testified, as- ficial has advised the applicant or re- sisted, or participated in any manner cipient of his failure to comply and has in an investigation, proceeding, or hearing under this part. The identity of determined that compliance cannot be complainants shall be kept confiden- secured by voluntary means, (2) there tial except to the extent necessary to has been an express finding on the carry out the purposes of this part, in- record, after opportunity for hearing, cluding the conduct of any investiga- of a failure by the applicant or recipi- tion, hearing, or judicial proceeding ent to comply with a requirement im- arising thereunder. posed by or pursuant to this part, (3) the action has been approved by the § 1250.107 Procedure for effecting com- Administrator pursuant to § 1250.109(e), pliance. and (4) the expiration of 30 days after (a) General. If there appears to be a the Administrator has filed with the failure or threatened failure to comply committee of the House and the com- with this part, and if the noncompli- mittee of the Senate having legislative ance or threatened noncompliance can- jurisdiction over the program involved, not be corrected by informal means, a full written report of the cir- compliance with this part may be ef- cumstances and the grounds for such fected by the suspension or termi- action. Any action to suspend or termi- nation of or refusal to grant or to con- nate or to refuse to grant or to con- tinue Federal financial assistance or by tinue Federal financial assistance shall any other means authorized by law. be limited to the particular political Such other means may include, but are entity, or part thereof, or other appli- not limited to, (1) a reference to the cant or recipient as to whom such a Department of Justice with a rec-
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finding has been made and shall be lim- hearing under section 602 of the Act ited in its effect to the particular pro- and § 1250.107(c) of this part and consent gram, or part thereof, in which such to the making of a decision on the noncompliance has been so found. basis of such information as is avail- (d) Other means authorized by law. No able. 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 NASA Head- taken until (1) the Principal Compli- quarters in Washington, DC, at a time ance Officer has determined that com- fixed by the Principal Compliance Offi- pliance cannot be secured by voluntary cer unless he determines that the con- means, (2) the recipient or other person venience of the applicant or recipient has been notified of its failure to com- or of NASA requires that another place ply and of the action to be taken to ef- be selected. Hearings shall be held be- fect compliance and (3) the expiration fore the Administrator, or, at his dis- of at least 10 days from the mailing of cretion, before a hearing examiner des- such notice to the recipient or other ignated in conformity with 5 U.S.C. person. During this period of at least 10 3105 and 3344 (section 11 of the Adminis- days additional efforts shall be made to trative Procedure Act). persuade the recipient or other person (c) Right to counsel. In all proceedings to comply with this part and to take under this section, the applicant or re- such corrective action as may be ap- cipient and NASA shall have the right propriate. to be represented by counsel. [30 FR 301, Jan. 9, 1965, as amended at 38 FR (d) Procedures, evidence, and record. (1) 17937, July 5, 1973] The hearing, decision, and any admin- istrative review thereof shall be con- § 1250.108 Hearings. ducted in conformity with 5 U.S.C. 554– (a) Opportunity for hearing. Whenever 557 (section 5–8 of the Administrative an opportunity for a hearing is re- Procedure Act), and in accordance with quired by § 1250.107(c), reasonable no- such rules of procedure as are proper tice shall be given by registered or cer- (and not inconsistent with this section) tified mail, return receipt requested, to relating to the conduct of the hearing, the affected applicant or recipient. giving of notices subsequent to those This notice shall advise the applicant provided for in paragraph (a) of this or recipient of the action proposed to section, taking of testimony, exhibits, be taken, the specific provision under arguments, and briefs, requests for which the proposed action against it is findings, and other related matters. to be taken, and the matters of fact or Both NASA and the applicant or recipi- law asserted as the basis for this ac- ent shall be entitled to introduce all tion, and either (1) fix a date not less relevant evidence on the issues as stat- than 20 days after the date of such no- ed in the notice for hearing or as deter- tice within which the applicant or re- mined by the officer conducting the cipient may request of the Principal hearing at the outset of or during the Compliance Officer that the matter be hearing. scheduled for hearing or (2) advise the (2) Technical rules of evidence shall applicant or recipient that the matter not apply to hearings conducted pursu- in question has been set down for hear- ant to this part, but rules or principles ing at a stated place and time. The designed to assure production of the time and place so fixed shall be reason- most credible evidence available and to able and shall be subject to change for subject testimony to test by cross-ex- cause. The complainant, if any, shall amination shall be applied where rea- be advised of the time and place of the sonably necessary by the officer con- hearing. An applicant or recipient may ducting the hearing. The hearing offi- waive a hearing and submit written in- cer may exclude irrelevant, immate- formation and argument for the record. rial, or unduly repetitious evidence. All The failure of an applicant or recipient documents and other evidence offered to request a hearing under this para- or taken for the record shall be open to graph or to appear at a hearing for examination by the parties and oppor- which a date has been set shall be tunity shall be given to refute facts deemed to be a waiver of the right to a and arguments advanced on either side
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of the issues. A transcript shall be review the initial decision shall con- made of the oral evidence except to the stitute the final decision of the Prin- extent the substance thereof is stipu- cipal Compliance Officer. lated for the record. All decisions shall (b) Decisions on record or review by the be based upon the hearing record and NASA Principal Compliance Officer. written findings shall be made. Whenever a record is certified to the (e) Consolidated or joint hearings. In Principal Compliance Officer for deci- cases in which the same or related sion or he reviews the decision of a facts are asserted to constitute non- hearing examiner pursuant to para- compliance with this part with respect graph (a) of this section, or whenever to two or more programs to which this the Administrator conducts the hear- part applies, or non-compliance with ing, the applicant or recipient shall be this part and the regulations of one or given reasonable opportunity to file more other Federal departments or with him briefs or other written state- agencies issued under Title VI of the ments of its contentions, and a copy of Act, the Administrator may, by agree- the final decision of the Principal Com- ment with such other departments or pliance Officer shall be given in writing agencies where applicable, provide for to the applicant or recipient and to the the conduct of consolidated or joint complainant, if any. hearings, and for the application to (c) Decisions on record where a hearing such hearings of rules of procedures is waived. Whenever a hearing is waived not inconsistent with the part. Final pursuant to § 1250.108, a decision shall decisions in such cases, insofar as this be made by the Principal Compliance part is concerned, shall be made in ac- Officer on the record and a copy of such cordance with § 1250.109. decision shall be given in writing to [30 FR 301, Jan. 9, 1965, as amended at 38 FR the applicant or recipient, and to the 17937, July 5, 1973] complainant, if any. (d) Rulings required. Each decision of § 1250.109 Decisions and notices. a hearing officer or the Principal Com- (a) Decision by person other than the pliance Officer shall set forth his rul- NASA Principal Compliance Officer. If ing on each finding, conclusion, or ex- the hearing is held by a hearing exam- ception presented, and shall identify iner, such hearing examiner shall ei- the requirement or requirements im- ther make an initial decision, if so au- posed by or pursuant to this part with thorized, or certify the entire record which it is found that the applicant or including his recommended findings recipient has failed to comply. and proposed decision to the Principal (e) Approval by administrator. Any Compliance Officer for a final decision, final decision of the NASA Principal and a copy of such initial decision or Compliance Officer which provides for certification shall be mailed to the ap- the suspension or termination of, or plicant or recipient. Where the initial the refusal to grant or continue Fed- decision is made by the hearing exam- eral financial assistance, or the imposi- iner, the applicant or recipient may, tion of any other sanction available within 30 days of the mailing of such under this part or the Act, shall notice of initial decision, file with the promptly be transmitted to the Admin- Principal Compliance Officer his excep- istrator, who may approve such deci- tions to the initial decision with his sion, may vacate it, or remit or miti- reasons therefor. In the absence of ex- gate any sanction imposed. ceptions, the Principal Compliance Of- (f) Content of orders. The final deci- ficer may on his own motion, within 45 sion may provide for suspension or ter- days after the initial decision, serve on mination of, or refusal to grant or con- the applicant or recipient a notice that tinue Federal financial assistance, in he will review the decision. Upon the whole or in part, under the program in- filing of such exceptions or of such no- volved, and may contain such terms, tice of review the Principal Compliance conditions, and other provisions as are Officer shall review the initial decision consistent with and will effectuate the and issue his own decision thereon in- purposes of the Act and this part in- cluding the reasons therefor. In the ab- cluding provisions designed to assure sence of either exceptions or a notice of that no Federal financial assistance
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will thereafter be extended under such § 1250.110 Judicial review. program to the applicant or recipient Action taken pursuant to section 602 determined by such decision to be in of the Act is subject to judicial review default in its performance of an assur- as provided in section 603 of the Act. ance given by it pursuant to this part, or to have otherwise failed to comply § 1250.111 Effect on other regulations; with this part, unless and until it cor- forms and instructions. rects its non-compliance and satisfies (a) Effect on other regulations. All reg- the Principal Compliance Officer that ulations, orders, or like directions it will fully comply with this part. heretofore issued by any officer of (g) Post termination proceedings. (1) An NASA which impose requirements de- applicant or recipient adversely af- signed to prohibit any discrimination fected by an order issued under para- against individuals on the ground of graph (f) of this section shall be re- race, color, or national origin under stored to full eligibility to receive Fed- any program to which this part applies, eral financial assistance if it satisfies and which authorize the suspension or the terms and conditions of that order termination of or refusal to grant or to for such eligibility or if it brings itself continue Federal financial assistance into compliance with this regulation to any applicant for or recipient of and provides reasonable assurance that such assistance under such program for it will fully comply with this regula- failure to comply with such require- tion. ments, are hereby superseded to the ex- (2) Any applicant or recipient ad- tent that such discrimination is pro- versely affected by an order entered hibited by this part, except that noth- pursuant to paragraph (f) of this sec- ing in this part shall be deemed to re- tion may at any time request the Prin- lieve any person of any obligation as- cipal Compliance Officer to restore sumed or imposed under any such su- perseded regulation, order, instruction, fully the eligibility to receive Federal or like direction prior to the effective financial assistance. Any such request date of this Instruction. Nothing in shall be supported by information this part, however, shall be deemed to showing that the applicant or recipient supersede any of the following (includ- has met the requirements of paragraph ing future amendments thereof): (1) Ex- (g)(1) of this section. If the Principal ecutive Orders 10925 and 11246 and regu- Compliance Officer determines that lations or instructions issued there- those requirements have been satisfied, under, or (2) any other regulations or he shall restore such eligibility. instructions, insofar as such other reg- (3) If the Principal Compliance Offi- ulations or instructions prohibit dis- cer denies any such request, the appli- crimination on the ground of race, cant or recipient may submit a request color, or national origin in any pro- for a hearing in writing, specifying why gram or situation to which this part is it believes such official to have been in inapplicable, or prohibit discrimina- error. It shall thereupon be given an tion on any other ground. expeditious hearing, with a decision on (b) Forms and instructions. Each re- the record, in accordance with rules of sponsible NASA official shall issue and procedure issued by the Principal Com- promptly make available to interested pliance Officer. The applicant or recipi- persons forms and detailed instructions ent will be restored to such eligibility and procedures for effectuating this if it proves at such a hearing that it part as applied to financial assistance satisfied the requirements of paragraph to which this part applies and for (g)(1) of this section. While proceedings which he is responsible. under this paragraph are pending, the (c) Supervision and coordination. The sanctions imposed by the order issued Administrator may assign to officials under paragraph (f) of this section shall of other departments or agencies of the Government, with the consent of such remain in effect. departments or agencies, responsibil- [30 FR 301, Jan. 9, 1965, as amended at 38 FR ities in connection with the effec- 17937, July 5, 1973] tuation of the purposes of Title VI of
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the Act and this part (other than re- PART 1251—NONDISCRIMINATION sponsibility for final decision as pro- ON BASIS OF HANDICAP vided in § 1250.109), including the achievement of effective coordination Subpart 1251.1—General Provisions and maximum uniformity within NASA and within the Executive Sec. 1251.100 Purpose. Branch of the Government in the appli- 1251.101 Application. cation of Title VI and this part to simi- 1251.102 Definitions. lar programs and in similar situations. 1251.103 Discrimination prohibited. Any action taken, determination made, 1251.104 Assurances required. or requirement imposed by an official 1251.105 Remedial action, voluntary action, of another department or agency act- and self-evaluation. 1251.106 Designation of responsible em- ing pursuant to an assignment of re- ployee and adoption of grievance proce- sponsibility under this subsection shall dures. have the same effect as though such ac- 1251.107 Notice. tion has been taken by the responsible 1251.108 Administrative requirements for official of this agency. small recipients. 1251.109 Effect of State or local law or other [30 FR 301, Jan. 9, 1965, as amended at 38 FR requirements and effect of employment 17937, July 5, 1973] opportunities.
§ 1250.112 Relationship with other offi- Subpart 1251.2—Employment Practices cials. 1251.200 Discrimination prohibited. NASA officials, in performing the 1251.201 Reasonable accommodation. functions assigned to them by this 1251.202 Employment criteria. 1251.203 Preemployment inquiries. part, are responsible for recognizing the delegations of authority and re- Subpart 1251.3—Program Accessibility sponsibility of other NASA officials and for seeing the actions taken or in- 1251.300 Discrimination prohibited. 1251.301 Existing facilities. structions issued by them are properly 1251.302 New construction. coordinated with the offices and divi- sions having joint interests. Subpart 1251.4—Procedures
APPENDIX A TO PART 1250—NASA FED- 1251.400 Procedures for compliance. ERAL FINANCIAL ASSISTANCE TO Subpart 1251.5—Enforcement of Non- WHICH THIS PART APPLIES discrimination on the Basis of Handi- 1. Grants made under the authority of Pub. cap in Programs or Activities Con- L. 85–934, approved September 6, 1958 (42 ducted by the National Aeronautics U.S.C. 1891–1893). and Space Administration 2. Contracts with nonprofit institutions of 1251.501 Purpose. higher education or with nonprofit organiza- 1251.502 Application. tions whose primary purpose is the conduct 1251.503 Definitions. of scientific research, wherein title to equip- 1251.504–1251.509 [Reserved] ment purchased with funds under such con- 1251.510 Self-evaluation. tracts may be vested in such institutions or 1251.511 Notice. organizations under the authority of section 1251.512–1251.529 [Reserved] 2 of Pub. L. 85–934, approved September 6, 1251.530 General prohibitions against dis- 1938 (42 U.S.C. 1892). crimination. 3. Training grants made under the author- 1251.531–1251.539 [Reserved] ity of the National Aeronautics and Space 1251.540 Employment. Act of 1958, as amended (42 U.S.C. 2451–2460, 1251.541–1251.548 [Reserved] 2472–2473). 1251.549 Program accessibility: Discrimina- 4. Facilities grants made under authority tion prohibited. in annual NASA authorization and appro- 1251.550 Program accessibility: Existing fa- priation acts. cilities. 1251.551 Program accessibility: New con- [30 FR 301, Jan. 9, 1965, as amended at 38 FR struction and alterations. 17936, July 5, 1973] 1251.552–1251.559 [Reserved]
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1251.560 Communications. vides or otherwise makes available as- 1251.561–1251.569 [Reserved] sistance in the form of: 1251.570 Compliance procedures. (1) Funds; 1251.571–1251.999 [Reserved] (2) Services of Federal personnel; or AUTHORITY: 29 U.S.C. 794. (3) Real and personal property or any SOURCE: 51 FR 26862, July 28, 1986, unless interest in or use of such property, in- otherwise noted. cluding: (i) Transfers or leases of such prop- Subpart 1251.1—General erty for less than fair market value or Provisions for reduced consideration; and (ii) Proceeds from a subsequent § 1251.100 Purpose. transfer or lease of such property if the This part effectuates section 504 of Federal share of its fair market value the Rehabilitation Act of 1973, which is is not returned to the Federal Govern- designed to eliminate discrimination ment. on the basis of handicap in any pro- (g) Facility means all or any portion gram or activity receiving Federal fi- of buildings, structures, equipment, nancial assistance. roads, walks, parking lots, or other real or personal property or interest in § 1251.101 Application. such property. This part applies to each recipient of (h) Handicapped person. (1) Handi- Federal financial assistance from the capped persons means any person who: National Aeronautics and Space Ad- (i) Has a physical or mental impair- ministration and to each program or ment which substantially limits one or activity that receives or benefits from more major life activities; such assistance. (ii) Has a record of such an impair- ment; or § 1251.102 Definitions. (iii) Is regarded as having such an im- As used in this part, the term: pairment. (a) The Act means the Rehabilitation (2) As used in paragraph (h)(1) of this Act of 1973, Pub. L. 93–112, as amended section, the phrase: by the Rehabilitation Act Amendments (i) Physical or mental impairment of 1974, Pub. L. 93–516, 29 U.S.C. 794. means: (b) Section 504 means section 504 of the Act. (A) Any physiological disorder or (c) Assistant Administrator means the condition, cosmetic disfigurement, or Assistant Administrator for Equal Op- anatomical loss affecting one or more portunity Programs for NASA. of the following body systems: neuro- (d) Recipient means any state or its logical; musculoskeletal; special sense political subdivision, any instrumen- organs; respiratory, including speech tality of a state or its political subdivi- organs; cardiovascular; reproductive; sion, any public or private agency, in- digestive; genitourinary; hemic and stitution, organization, or other entry, lymphatic; skin; and endocrine; or or any person to which Federal finan- (B) Any mental or psychological dis- cial assistance is extended directly or order, such as mental retardation, or- through another recipient, including ganic brain syndrome, emotional or any successor, assignee, or transferee mental illness, and specific learning of a recipient, but excluding the ulti- disabilities. The term physical or mental mate beneficiary of the assistance. impairment includes, but is not limited (e) Applicant for assistance means one to, such diseases and conditions as or- who submits an application, request, or thopedic, visual, speech, and hearing plan required to be approved by a impairments, cerebral palsy, epilepsy, NASA official or by a recipient as a muscular dystrophy, multiple sclerosis, condition to becoming a recipient. cancer, heart disease, diabetes, mental (f) Federal financial assistance means retardation, emotional illness, drug ad- any grant, loan, contract (other than a diction, and alcoholism. procurement contract or a contract of (ii) Major life activities means func- insurance or guaranty), or any other tions such as caring for one’s self, per- arrangement by which the agency pro- forming manual tasks, walking, seeing,
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hearing, speaking, breathing, learning, (ii) Afford a qualified handicapped and working. person an opportunity to participate in (iii) Has a record of such an impairment or benefit from aid, benefit, or service means has a history of, or has been that is not equal to that afforded oth- misclassified as having, a mental or ers; physical impairment that substantially (iii) Provide a qualified handicapped limits one or more major life activi- person with an aid, benefit, or service ties. that is not as effective as that provided (iv) Is regarded as having an impair- to others; ment means: (iv) Provide different or separate aid, (A) Has a physical or mental impair- benefits, or services to handicapped ment that does not substantially limit persons or to any class of handicapped major life activities but that is treated persons unless such action is necessary by a recipient as constituting such a to provide qualified handicapped per- limitation; sons with aid, benefits, or services that (B) Has a physical or mental impair- are as effective as those provided to ment that substantially limits major others; life activities only as a result of the at- (v) Aid or perpetuate discrimination titudes of others toward such impair- against a qualified handicapped person ment; or by providing significant assistance to (C) Has none of the impairments de- an agency, organization, or person that fined in this paragraph but is treated discriminates on the basis of handicap by a recipient as having such an im- in providing any aid, benefit, or service pairment. to beneficiaries of the recipient’s pro- (i) Qualified handicapped person gram; means: (vi) Deny a qualified handicapped (1) With respect to employment, a person the opportunity to participate handicapped person who, with reason- as a member of planning or advisory able accommodation, can perform the boards; or essential functions of the job in ques- (vii) Otherwise limit a qualified tion; handicapped person in the enjoyment (2) With respect to other services, a of any right, privilege, advantage, or handicapped person who meets the es- opportunity enjoyed by others receiv- sential eligibility requirements for the ing an aid, benefit, or service. receipt of such services. (2) For purposes of this part, aids, (j) Handicap means any condition or benefits, and services, to be equally ef- characteristic that renders a person a fective, are not required to produce the handicapped person as defined in para- identical result or level of achievement graph (h) of this section. for handicapped persons and nonhandi- capped persons, but must afford handi- § 1251.103 Discrimination prohibited. capped persons equal opportunity to (a) General. No qualified handicapped obtain the same result, to gain the person shall, on the basis of handicap, same benefit, or to reach the same be excluded from participation in, be level of achievement, in the most inte- denied the benefits of, or otherwise be grated setting appropriate to the per- subjected to discrimination under any son’s needs. program or activity which receives or (3) Recipients shall take appropriate benefits from Federal financial assist- steps to ensure that no handicapped in- ance. dividual is denied the benefits of, ex- (b) Discriminatory actions prohibited. cluded from participation in, or other- (1) A recipient, in providing any aid, wise subjected to discrimination in any benefits, or services, may not, directly program receiving or benefiting from or through contractual, licensing, or Federal financial assistance because of other arrangements, on the basis of the absence of auxiliary aids for indi- handicap: viduals with impaired sensory, manual, (i) Deny a qualified handicapped per- or speaking skills. son the opportunity to participate in (4) Despite the existence of separate or benefit from the aid, benefit, or or different programs or activities pro- service; vided in accordance with this part, a
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recipient may not deny a qualified handicapped persons is not prohibited handicapped person the opportunity to by this part. participate in such programs or activi- ties that are not separate or different. § 1251.104 Assurances required. (5) A recipient may not, directly or (a) Assurances. An applicant for Fed- through contractual or other arrange- eral financial assistance for a program ments, utilize criteria or methods of or activity to which this part applies administration: shall submit an assurance, on a form (i) That have the effect of subjecting specified by the Assistant Adminis- qualified handicapped persons to dis- trator, that the program will be oper- crimination of the basis of handicap; ated in compliance with this part. An (ii) That have the purpose or effect of applicant may incorporate these assur- defeating or substantially impairing ances by reference in subsequent appli- accomplishment of the objectives of cations to NASA. the recipient’s program with respect to (b) Duration of obligation. (1) In the handicapped persons; or case of Federal financial assistance ex- (iii) That perpetuate the discrimina- tended in the form of real property or tion of another recipient if both recipi- to provide real property or structures ents are subject to common adminis- on the property, the assurance will ob- trative control or are agencies of the ligate the recipient or, in the case of a same State. (6) In determining the site or loca- subsequent transfer, the transferee, for tion of a facility, an applicant for as- the period during which the real prop- sistance or a recipient may not make erty or structures are used for the pur- selections: pose for which Federal financial assist- (i) That have the effect of excluding ance is extended or for another purpose handicapped persons from, denying involving the provision of similar serv- them the benefits of, or otherwise sub- ices or benefits. jecting them to discrimination under (2) In the case of Federal financial as- any program or activity that receives sistance extended to provide personal or benefits from Federal financial as- property, the assurance will obligate sistance; or the recipient for the period during (ii) That have the purpose or effect of which it retains ownership or posses- defeating or substantially impairing sion of the property. the accomplishment of the objectives (3) In all other cases, the assurance of the program or activity with respect will obligate the recipient for the pe- to handicapped persons. riod during which Federal financial as- (7) As used in this section, the aid, sistance is extended. benefit, or service provided under a (c) Covenants. (1) Where Federal fi- program or activity receiving or bene- nancial assistance is provided in the fiting from Federal financial assistance form of real property or interest in the includes any aid, benefit, or service property from NASA, the instrument provided in or through a facility that effecting or recording this transfer has been constructed, expanded, al- shall contain a covenant running with tered, leased or rented, or otherwise ac- the land to assure nondiscrimination quired, in whole or in part, with Fed- for the period during which the real eral financial assistance. property is used for a purpose for which (8) Recipients shall take appropriate the Federal financial assistance is ex- steps to ensure that communications tended or for another purpose involving with their applicants, employees, and the provision of similar services or beneficiaries are available to persons benefits. with impaired vision and hearing. (2) Where no transfer of property is (c) Programs limited by Federal law. involved but property is purchased or The exclusion of nonhandicapped per- improved with Federal financial assist- sons from the benefits of a program ance, the recipient shall agree to in- limited by Federal statute of Executive clude the covenant described in para- order to handicapped persons from a graph (c)(3) of this section in the in- program limited by Federal statute or strument effecting or recording any Executive order to a different class of subsequent transfer of the property.
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(3) Where Federal financial assist- receiving full benefits or equal and in- ance is provided in the form of real tegrated treatment within the pro- property or interest in the property gram. from NASA, the covenant shall also in- (b) Voluntary action. A recipient may clude a condition coupled with a right take steps, in addition to any action to be reserved by NASA to revert title that is required by this part, to over- to the property in the event of a breach come the effects of conditions that re- of the covenant. If a transferee of real sulted in limited participation in the property proposes to mortgage or oth- recipient’s program or activity by erwise encumber the real property as qualified handicapped persons. security for financing construction of (c) Self-evaluation. (1) A recipient new, or improvement of existing facili- shall, within 1 year of the effective ties on the property for the purposes date of this part; or within 1 year of for which the property was transferred, first becoming a recipient: the Assistant Administrator may, upon (i) Evaluate, with the assistance of request of the transferee and if nec- interested persons, including handi- essary to accomplish such financing capped persons or organizations rep- and upon such conditions as he or she resenting handicapped persons, its cur- deems appropriate, agree to forbear the rent policies and practices and the ef- exercise of such right to revert title for fects thereof that do not or may not so long as the lien of such mortgage or meet the requirements of this part; other encumbrance remains effective. (ii) Modify, after consultation with interested persons, including handi- § 1251.105 Remedial action, voluntary capped persons or organizations rep- action, and self-evaluation. resenting handicapped persons, any (a) Remedial action. (1) If the Assist- policies and practices that do not meet ant Administrator finds that a recipi- the requirements of this part; and ent has discriminated against persons (iii) Take, after consultation with in- on the basis of handicap in violation of terested persons, including handi- section 504 or this part, the recipient capped persons or organizations rep- shall take such remedial action as the resenting handicapped persons, appro- Assistant Administrator deems nec- priate remedial steps to eliminate the essary to overcome the effects to the effects of any discrimination that re- discrimination. sulted from adherence to these policies (2) Where a recipient is found to have and practices. discriminated against persons on the (2) A recipient that employs 15 or basis of handicap in violation of sec- more persons shall, for at least 3 years, tion 504 or this part and where another follow completion of the evaluation re- recipient exercises control over the re- quired under paragraph (c)(1) of this cipient that has discriminated, the As- section, maintain on file, make avail- sistant Administrator, where appro- able for public inspection, and provide priate, may require either or both re- to the Assistant Administrator upon cipients to take remedial action. request: (3) The Assistant Administrator may, (i) A list of the interested persons where necessary to overcome the ef- consulted; fects of discrimination in violation of (ii) A description of areas examined section 504 or this part, require a re- and any problems identified; and cipient to take remedial action: (iii) A description of any modifica- (i) With respect to handicapped per- tions made and of any remedial steps sons who are no longer participants in taken. the recipient’s program but who were participants in the program when such § 1251.106 Designation of responsible discrimination occurred; or employee and adoption of grievance (ii) With respect to handicapped per- procedures. sons who would have been participants (a) Designation of responsible employee. in the program had the discrimination A recipient that employs 15 or more not occurred; or persons shall designate at least one (iii) With respect to handicapped per- person to coordinate its efforts to com- sons presently in the program, but not ply with this part.
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(b) Adoption of grievance procedures. A § 1251.108 Administrative require- recipient that employs 15 or more per- ments for small recipients. sons shall adopt grievance procedures The Assistant Administrator may re- that incorporate appropriate due proc- quire any recipient with fewer than 15 ess standards and that provide for the employees, or any class of such recipi- prompt and equitable resolution of ents, to comply with §§ 1251.106 and complaints alleging any action prohib- 1251.107, in whole or in part, when the ited by this part. Such procedures need Assistant Administrator finds a viola- not to be established with respect to tion of this part or finds that such complaints from applicants for employ- compliance will not significantly im- ment or from applicants for admission pair the ability of the recipient or class to postsecondary educational institu- of recipients to provide benefits or tions. services.
§ 1251.107 Notice. § 1251.109 Effect of State or local law (a) A recipient that employs 15 or or other requirements and effect of more persons shall take appropriate employment opportunities. initial and continuing steps to notify (a) The obligation to comply with participants, beneficiaries, applicants, this part is not obviated or alleviated and employees, including those with by the existence of any state or local impaired vision or hearing, and unions law or other requirement that, on the or professional organizations holding basis of handicap, imposes prohibitions collective bargaining or professional or limits upon the eligibility of quali- agreements with the recipient that it fied handicapped persons to receive does not discriminate on the basis of services or to practice any occupation handicap in violation of section 504 and or profession. this part. The notification shall state, (b) The obligation to comply with where appropriate, that the recipient this part is not obviated or alleviated does not discriminate in admission or because employment opportunities in access to, or treatment or employment any occupation or profession are or in, its programs and activities. The no- may be more limited for handicapped tification shall also include an identi- persons than for nonhandicapped per- fication of the responsible employee sons. designated pursuant to § 1251.106(a). A recipient shall make the initial notifi- Subpart 1251.2—Employment cation required by this paragraph with- Practices in 90 days of the effective date of this part. Methods of initial and continuing § 1251.200 Discrimination prohibited. notification may include the posting of (a) General. (1) No qualified handi- notices, publication in newspapers and capped person shall, on the basis of magazines, placement of notices in re- handicap, be subjected to discrimina- cipient’s publication, and distribution tion in employment under any program of memoranda or other written com- or activity to which this part applies. munications. (2) A recipient that receives assist- (b) If a recipient publishes or uses re- ance shall take positive steps to em- cruitment materials or publications ploy and advance in employment quali- containing general information that it fied handicapped persons in programs makes available to participants, bene- assisted under the Act. ficiaries, applicants, or employees, it (3) A recipient shall make all deci- shall include in those materials or pub- sions concerning employment under lications a statement of the policy de- any program or activity to which this scribed in paragraph (a) of this section. part applies in a manner which ensures A recipient may meet the requirement that discrimination on the basis of of this section and this paragraph ei- handicap does not occur and may not ther by including appropriate inserts in limit, segregate, or classify applicants existing materials and publications or or employees in any way that ad- by revising and reprinting the mate- versely affects their opportunities or rials and publications. status because of handicap.
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(4) A recipient may not participate in agencies, with labor unions, with orga- a contractual or other relationship nizations providing or administering that has the effect of subjecting quali- fringe benefits to employees of the re- fied handicapped applicants or employ- cipient, and with organizations pro- ees to discrimination prohibited by viding training and apprenticeship pro- this subpart. The relationships referred grams. to in this subparagraph include rela- tionships with employment and refer- § 1251.201 Reasonable accommodation. ral agencies, with labor unions, with (a) A recipient shall make reasonable organizations providing or admin- accommodation to the known physical istering fringe benefits to employees of or mental limitations of an otherwise the recipient, and with organizations qualified handicapped applicant or em- providing training and apprenticeship ployee unless the recipient can dem- programs. onstrate that the accommodation (b) Specific activities. The provisions would impose an undue hardship on the of this subpart apply to: operation of its program. (1) Recruitment, advertising, and the (b) Reasonable accommodation may processing of applications for employ- include: ment; (1) Making facilities used by employ- (2) Hiring, upgrading, promotion, ees readily accessible to and usable by award of tenure, demotion, transfer, handicapped persons; and layoff, termination, right of return (2) Job restructuring, part-time or from layoff, and rehiring; modified work schedules, acquisition (3) Rates of pay or any other form of or modification of equipment or de- compensation and changes in com- vices, the provision of readers or inter- pensation; preters, and other similar actions. (4) Job assignments, job classifica- (c) In determining pursuant to para- tions, organizational structures, posi- graph (a) of this section whether an ac- tion descriptions, lines of progression, commodation would impose an undue and seniority lists; hardship on the operation of a recipi- (5) Leaves of absence, sick leave, or ent’s program, factors to be considered any other leave; include: (6) Fringe benefits available by vir- tue of employment, whether or not ad- (1) The overall size of the recipient’s ministered by the recipient; program with respect to number of em- (7) Selection and financial support ployees, number and type of facilities, for training, including apprenticeship, and size of budget; professional meetings, conferences, and (2) The type of the recipient’s oper- other related activities, and selection ation, including the composition and for leaves of absence to pursue train- structure of the recipient’s workforce; ing; and (8) Employer sponsored activities, in- (3) The nature and cost of the accom- cluding social or recreational pro- modation needed. grams; and (d) A recipient may not deny any em- (9) Any other term, condition, or ployment opportunity to a qualified privilege of employment. handicapped employee or applicant if (c) A recipient’s obligation to comply the basis for the denial is the need to with this subpart is not affected by any make reasonable accommodation to inconsistent term of any collective the physical or mental limitations of bargaining agreement to which it is a the employee or applicant. party. (d) A recipient may not participate in § 1251.202 Employment criteria. a contractual or other relationship (a) A recipient may not make use of that has the effect of subjecting quali- any employment test or other selection fied handicapped applicants or employ- criterion that screens out or tends to ees to discrimination prohibited by screen out handicapped persons or any this subpart. The relationships referred class of handicapped persons unless: to in this paragraph include relation- (1) The test score or other selection ships with employment and referral criterion, as used by the recipient, is
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shown to be job-related for the position voluntary basis, that it will be kept in question; and confidential as provided in paragraph (2) Alternative job-related tests of (d) of this section, that refusal to pro- criteria that do not screen out or tend vide it will not subject the applicant or to screen out as many handicapped per- employee to any adverse treatment, sons are not shown by the Assistant and that it will be used only in accord- Administrator to be available. ance with this part. (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: test results accurately reflect the ap- (1) All entering employees are sub- plicant’s or employee’s job skills, apti- jected to such an examination regard- tude, or whatever other factor the test less of handicap; and purports to measure, rather than re- (2) The results of such an examina- flecting the applicant’s or employee’s tion are used only in accordance with impaired sensory, manual, or speaking the requirements of this part. skills (except where those skills are (d) Information obtained in accord- the factors that the test purports to ance with this section as to the med- measure). ical condition or history of the appli- cant shall be collected and maintained § 1251.203 Preemployment inquiries. on separate forms that shall be ac- (a) Except as provided in paragraphs corded confidentiality as medical (b) and (c) of this section, a recipient records, except that: may not conduct a preemployment (1) Supervisors and managers may be medical examination or may not make informed regarding restrictions on the preemployment inquiry of an applicant work or duties of handicapped persons as to whether the applicant is a handi- and regarding necessary accommoda- capped person or as to the nature or se- tions; verity of a handicap. A recipient may, (2) First aid and safety personnel however, make preemployment inquiry may be informed, where appropriate, if into an applicant’s ability to perform the condition might require emergency job-related functions. treatment; and (b) When a recipient is taking reme- (3) Government officials inves- dial action to correct the effects of tigating compliance with the Act shall past discrimination pursuant to be provided relevant information upon § 1251.105(a), when a recipient is taking request. voluntary action to overcome the ef- fects of conditions that resulted in lim- ited participation in its Federally as- Subpart 1251.3—Program sisted program or activity pursuant to Accessibility § 1251.105(b), or when a recipient is tak- § 1251.300 Discrimination prohibited. ing affirmative action pursuant to sec- tion 504 of the Act, the recipient may No qualified handicapped person invite applicants for employment to in- shall, because a recipient’s facilities dicate whether and to what extent they are inaccessible to or unusable by are handicapped, provided that: handicapped persons, be denied the (1) The recipient states clearly on benefits of, be excluded from participa- any written questionnaire used for this tion in, or otherwise be subjected to purpose or makes clear orally if no discrimination under any program or written questionnaire is used that the activity to which this part applies. information requested is intended for use solely in connection with its reme- § 1251.301 Existing facilities. dial action obligations or its voluntary (a) Program accessibility. A recipient of affirmative action efforts; and shall operate each program or activity (2) The recipient states clearly that to which this part applies so that the the information is being requested on a program or activity, when viewed in its
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entirety, is readily accessible to handi- cessibility of its program or activity to capped persons. This paragraph does handicapped persons; not require a recipient to make each of (2) Describe in detail the methods its existing facilities or every part of a that will be used to make the facilities facility accessible to and usable by accessible; handicapped persons. (3) Specify the schedule for taking (b) Methods. A recipient may comply the steps necessary to achieve full pro- with the requirement of paragraph (a) gram accessibility and, if the time pe- of this section through such means as riod of the transition plan is longer redesign of equipment; reassignment of than 1 year, identify steps that will be classes or other services to accessible taken during each year of the transi- buildings; assignment of aides to bene- tion period; and ficiaries; home visits; delivery of (4) Indicate the person responsible for health, welfare, or other social services implementation of the plan. at alternate accessible sites; alteration (e) Notice. The recipient shall adopt of existing facilities and construction and implement procedures to ensure of new facilities in conformance with that interested persons, including per- the requirements of § 1251.302; or any sons with inpaired vision or hearing, other methods that result in making can obtain information as to the exist- its program or activity accessible to ence and location of services, activi- handicapped persons. A recipient is not ties, and facilities that are accessible required to make structural changes in to and usable by handicapped persons. existing facilities where other methods § 1251.302 New construction. are effective in achieving compliance with paragraph (a) of this section. In (a) Design and construction. Each fa- choosing among available methods for cility or part of a facility constructed meeting the requirement of paragraph by, on behalf of, or for the use of a re- (a) of this section, a recipient shall cipient shall be designed and con- give priority to those methods that structed in such manner that the facil- offer programs and activities to handi- ity or part of the facility is readily ac- capped persons in the most integrated cessible to and usable by handicapped persons, if the construction (ground setting appropriate. breaking) was commenced after the ef- (c) Time period. A recipient shall com- fective date of this part. ply with the requirement of paragraph (b) Alteration. Each facility or part of (a) of this section within 60 days of the a facility which is altered by, on behalf effective date of this part except that of, or for the use of a recipient after where structural changes in facilities the effective date of this part in a man- are necessary, such changes shall be ner that affects or could affect the made within 3 years of the effective usability of the facility or part of the date of this part, but in any event as facility shall, to the maximum extent expeditiously as possible. feasible, be altered in such manner (d) Transition plan. In the event that that the altered portion of the facility structural changes to facilities are nec- is readily accessible to and usable by essary to meet the requirement of handicapped persons. paragraph (a) of this section, a recipi- (c) Conformance with Uniform Federal ent shall develop, within 6 months of Accessibility Standards. (1) Effective as the effective date of this part, a transi- of January 18, 1991, design, construc- tion plan setting forth the steps nec- tion, or alteration of buildings in con- essary to complete such changes. The formance with sections 3-8 of the Uni- plan shall be developed with the assist- form Federal Accessibility Standards ance of interested persons, including (USAF) (appendix A to 41 CFR subpart handicapped persons or organizations 101–19.6) shall be deemed to comply representing handicapped persons. A with the requirements of this section copy of the transition plan shall be with respect to those buildings. Depar- made available for public inspection. tures from particular technical and The plan shall, at a minimum: scoping requirements of UFAS by the (1) Identify physical obstacles in the use of other methods are permitted recipient’s facilities that limit the ac- where substantially equivalent or
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greater access to and usability of the volve individuals with handicaps in the building is provided. United States. (2) For purposes of this section, sec- tion 4.1.6(1)(g) of UFAS shall be inter- § 1251.503 Definitions. preted to exempt from the require- For purposes of this regulation, the ments of UFAS only mechanical rooms term— and other spaces that, because of their Assistant Attorney General means the intended use, will not require accessi- Assistant Attorney General, Civil bility to the public or beneficiaries or Rights Division, United States Depart- result in the employment or residence ment of Justice. therein of persons with physical handi- Auxiliary aids means services or de- caps. vices that enable persons with im- (3) This section does not require re- paired sensory, manual, or speaking cipients to make building alterations skills to have an equal opportunity to that have little likelihood of being ac- participate in, and enjoy the benefits complished without removing or alter- of, programs or activities conducted by ing a load-bearing structural member. the agency. For example, auxiliary aids useful for persons with impaired vision [51 FR 26862, July 28, 1986, as amended at 55 FR 52138, 52140, Dec. 19, 1990] include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids Subpart 1251.4—Procedures useful for persons with impaired hear- § 1251.400 Procedures for compliance. ing include telephone handset ampli- fiers, telephones compatible with hear- The procedural provisions applicable ing aids, telecommunication devices to Title VI of the Civil Rights Act of for deaf persons (TDD’s), interpreters, 1964 apply to this part. These proce- notetakers, written materials, and dures are found in §§ 1250.106, 1250.108 other similar services and devices. and 1250.110 of this chapter. Complete complaint means a written statement that contains the complain- Subpart 1251.5—Enforcement of ant’s name and address and describes Nondiscrimination on the the agency’s alleged discriminatory ac- Basis of Handicap in Programs tion in sufficient detail to inform the or Activities Conducted by agency of the nature and date of the al- the National Aeronautics and leged violation of section 504. It shall be signed by the complainant or by Space Administration someone authorized to do so on his or her behalf. Complaints filed on behalf SOURCE: 53 FR 25882 and 25885, July 8, 1988, of classes or third parties shall describe unless otherwise noted. or identify (by name, if possible) the alleged victims of discrimination. § 1251.501 Purpose. Facility means all or any portion of The purpose of this regulation is to buildings, structures, equipment, effectuate section 119 of the Rehabili- roads, walks, parking lots, rolling tation, Comprehensive Services, and stock or other conveyances, or other Developmental Disabilities Amend- real or personal property. ments of 1978, which amended section Historic preservation programs means 504 of the Rehabilitation Act of 1973 to programs conducted by the agency that prohibit discrimination on the basis of have preservation of historic properties handicap in programs or activities con- as a primary purpose. ducted by Executive agencies or the Historic properties means those prop- United States Postal Service. erties that are listed or eligible for listing in the National Register of His- § 1251.502 Application. toric Places or properties designated as This regulation (§§ 1251.501–1251.570) historic under a statute of the appro- applies to all programs or activities priate State or local government body. conducted by the agency, except for Individual with handicaps means any programs or activities conducted out- person who has a physical or mental side the United States that do not in- impairment that substantially limits
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one or more major life activities, has a provided by the agency, an individual record of such an impairment, or is re- with handicaps who is a member of a garded as having such an impairment. class of persons otherwise entitled by As used in this definition, the phrase: statute, regulation, or agency policy to (1) Physical or mental impairment in- receive education services from the cludes— agency; (i) Any physiological disorder or con- (2) With respect to any other agency dition, cosmetic disfigurement, or ana- program or activity under which a per- tomical loss affecting one or more of son is required to perform services or the following body systems: Neuro- to achieve a level of accomplishment, logical; musculoskeletal; special sense an individual with handicaps who organs; respiratory, including speech meets the essential eligibility require- organs; cardiovascular; reproductive; ments and who can achieve the purpose digestive; genitourinary; hemic and of the program or activity without lymphatic; skin; and endocrine; or modifications in the program or activ- (ii) Any mental or psychological dis- ity that the agency can demonstrate order, such as mental retardation, or- would result in a fundamental alter- ganic brain syndrome, emotional or ation in its nature; mental illness, and specific learning (3) With respect to any other pro- disabilities. The term physical or mental gram or activity, an individual with impairment includes, but is not limited handicaps who meets the essential eli- to, such diseases and conditions as or- gibility requirements for participation thopedic, visual, speech, and hearing in, or receipt of benefits from, that pro- impairments, cerebral palsy, epilepsy, gram or activity; and muscular dystrophy, multiple sclerosis, (4) Qualified handicapped person as cancer, heart disease, diabetes, mental that term is defined for purposes of em- retardation, emotional illness, and ployment in 29 CFR 1613.702(f), which is drug addiction and alcoholism. made applicable to this regulation by (2) Major life activities includes func- § 1251.540. tions such as caring for one’s self, per- Section 504 means section 504 of the forming manual tasks, walking, seeing, Rehabilitation Act of 1973 (Pub. L. 93– hearing, speaking, breathing, learning, 112, 87 Stat. 394 (29 U.S.C. 794)), as and working. amended by the Rehabilitation Act (3) Has a record of such an impairment Amendments of 1974 (Pub. L. 93–516, 88 means has a history of, or has been Stat. 1617); the Rehabilitation, Com- misclassified as having, a mental or prehensive Services, and Develop- physical impairment that substantially mental Disabilities Amendments of limits one or more major life activi- 1978 (Pub. L. 95–602, 92 Stat. 2955); and ties. the Rehabilitation Act Amendments of (4) Is regarded as having an impairment 1986 (Pub. L. 99–506, 100 Stat. 1810). As means— used in this regulation, section 504 ap- (i) Has a physical or mental impair- plies only to programs or activities ment that does not substantially limit conducted by Executive agencies and major life activities but is treated by not to federally assisted programs. the agency as constituting such a limi- Substantial impairment means a sig- tation; nificant loss of the integrity of finished (ii) Has a physical or mental impair- materials, design quality, or special ment that substantially limits major character resulting from a permanent life activities only as a result of the at- alteration. titudes of others toward such impair- ment; or §§ 1251.504–1251.509 [Reserved] (iii) Has none of the impairments de- fined in paragraph (1) of this definition § 1251.510 Self-evaluation. but is treated by the agency as having (a) The agency shall, by September 6, such an impairment. 1989, evaluate its current policies and Qualified individual with handicaps practices, and the effects thereof, that means— do not or may not meet the require- (1) With respect to preschool, elemen- ments of this regulation and, to the ex- tary, or secondary education services tent modification of any such policies
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and practices is required, the agency (iii) Provide a qualified individual shall proceed to make the necessary with handicaps with an aid, benefit, or modifications. service that is not as effective in af- (b) The agency shall provide an op- fording equal opportunity to obtain the portunity to interested persons, includ- same result, to gain the same benefit, ing individuals with handicaps or orga- or to reach the same level of achieve- nizations representing individuals with ment as that provided to others; handicaps, to participate in the self- (iv) Provide different or separate aid, evaluation process by submitting com- benefits, or services to individuals with ments (both oral and written). handicaps or to any class of individuals (c) The agency shall, for at least with handicaps than is provided to oth- three years following completion of the ers unless such action is necessary to self-evaluation, maintain on file and provide qualified individuals with make available for public inspection: handicaps with aid, benefits, or serv- (1) A description of areas examined ices that are as effective as those pro- and any problems identified; and vided to others; (2) A description of any modifications (v) Deny a qualified individual with made. handicaps the opportunity to partici- pate as a member of planning or advi- § 1251.511 Notice. sory boards; The agency shall make available to (vi) Otherwise limit a qualified indi- employees, applicants, participants, vidual with handicaps in the enjoy- beneficiaries, and other interested per- ment of any right, privilege, advan- sons such information regarding the tage, or opportunity enjoyed by others provisions of this regulation and its ap- receiving the aid, benefit, or service. plicability to the programs or activi- (2) The agency may not deny a quali- ties conducted by the agency, and fied individual with handicaps the op- make such information available to portunity to participate in programs or them in such manner as the head of the activities that are not separate or dif- agency finds necessary to apprise such ferent, despite the existence of permis- persons of the protections against dis- sibly separate or different programs or crimination assured them by section activities. 504 and this regulation. (3) The agency may not, directly or through contractual or other arrange- §§ 1251.512–1251.529 [Reserved] ments, utilize criteria or methods of administration the purpose or effect of § 1251.530 General prohibitions which would— against discrimination. (i) Subject qualified individuals with (a) No qualified individual with handicaps to discrimination on the handicaps shall, on the basis of handi- basis of handicap; or cap, be excluded from participation in, (ii) Defeat or substantially impair ac- be denied the benefits of, or otherwise complishment of the objectives of a be subjected to discrimination under program or activity with respect to in- any program or activity conducted by dividuals with handicaps. the 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 individuals with handi- basis of handicap— caps from, deny them the benefits of, (i) Deny a qualified individual with or otherwise subject them to discrimi- handicaps the opportunity to partici- nation under any program or activity pate in or benefit from the aid, benefit, conducted by the agency; or or service; (ii) Defeat or substantially impair (ii) Afford a qualified individual with the accomplishment of the objectives handicaps an opportunity to partici- of a program or activity with respect pate in or benefit from the aid, benefit, to individuals with handicaps. or service that is not equal to that af- (5) The agency, in the selection of forded others; procurement contractors, may not use
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criteria that subject qualified individ- gram or activity conducted by the uals with handicaps to discrimination agency. on the basis of handicap. (6) The agency may not administer a § 1251.550 Program accessibility: Exist- licensing or certification program in a ing facilities. manner that subjects qualified individ- (a) General. The agency shall operate uals with handicaps to discrimination each program or activity so that the on the basis of handicap, nor may the program or activity, when viewed in its agency establish requirements for the entirety, is readily accessible to and programs or activities of licensees or usable by individuals with handicaps. certified entities that subject qualified This paragraph does not— individuals with handicaps to discrimi- (1) Necessarily require the agency to nation on the basis of handicap. How- make each of its existing facilities ac- ever, the programs or activities of enti- cessible to and usable by individuals ties that are licensed or certified by with handicaps; the agency are not, themselves, cov- (2) In the case of historic preserva- ered by this regulation. tion programs, require the agency to (c) The exclusion of nonhandicapped take any action that would result in a persons from the benefits of a program substantial impairment of significant limited by Federal statute or Execu- historic features of an historic prop- tive order to individuals with handi- erty; or caps or the exclusion of a specific class (3) Require the agency to take any of individuals with handicaps from a action that it can demonstrate would program limited by Federal statute or result in a fundamental alteration in Executive order to a different class of the nature of a program or activity or individuals with handicaps is not pro- in undue financial and administrative hibited by this regulation. burdens. In those circumstances where (d) The agency shall administer pro- agency personnel believe that the pro- grams and activities in the most inte- posed action would fundamentally grated setting appropriate to the needs alter the program or activity or would of qualified individuals with handicaps. result in undue financial and adminis- §§ 1251.531–1251.539 [Reserved] trative burdens, the agency has the burden of proving that compliance with § 1251.540 Employment. § 1251.550(a) would result in such alter- ation or burdens. The decision that No qualified individual with handi- compliance would result in such alter- caps shall, on the basis of handicap, be subject to discrimination in employ- ation or burdens must be made by the ment under any program or activity agency head or his or her designee conducted by the agency. The defini- after considering all agency resources tions, requirements, and procedures of available for use in the funding and op- section 501 of the Rehabilitation Act of eration of the conducted program or 1973 (29 U.S.C. 791), as established by activity, and must be accompanied by the Equal Employment Opportunity a written statement of the reasons for Commission in 29 CFR part 1613, shall reaching that conclusion. If an action apply to employment in federally con- would result in such an alteration or ducted programs or activities. such burdens, the agency shall take any other action that would not result § 1251.541–1251.548 [Reserved] in such an alteration or such burdens but would nevertheless ensure that in- § 1251.549 Program accessibility: Dis- dividuals with handicaps receive the crimination prohibited. benefits and services of the program or Except as otherwise provided in activity. § 1251.550, no qualified individual with (b) Methods—(1) General. The agency handicaps shall, because the agency’s may comply with the requirements of facilities are inaccessible to or unus- this section through such means as re- able by individuals with handicaps, be design of equipment, reassignment of denied the benefits of, be excluded from services to accessible buildings, assign- participation in, or otherwise be sub- ment of aides to beneficiaries, home jected to discrimination under any pro- visits, delivery of services at alternate
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accessible sites, alteration of existing forth the steps necessary to complete facilities and construction of new fa- such changes. The agency shall provide cilities, use of accessible rolling stock, an opportunity to interested persons, or any other methods that result in including individuals with handicaps or making its programs or activities read- organizations representing individuals ily accessible to and usable by individ- with handicaps, to participate in the uals with handicaps. The agency is not development of the transition plan by required to make structural changes in submitting comments (both oral and existing facilities where other methods written). A copy of the transition plan are effective in achieving compliance shall be made available for public in- with this section. The agency, in mak- spection. The plan shall, at a min- ing alterations to existing buildings, imum— shall meet accessibility requirements (1) Identify physical obstacles in the to the extent compelled by the Archi- agency’s facilities that limit the acces- tectural Barriers Act of 1968, as amend- sibility of its programs or activities to ed (42 U.S.C. 4151–4157), and any regula- individuals with handicaps; tions implementing it. In choosing (2) Describe in detail the methods among available methods for meeting that will be used to make the facilities the requirements of this section, the accessible; agency shall give priority to those (3) Specify the schedule for taking methods that offer programs and ac- the steps necessary to achieve compli- tivities to qualified individuals with ance with this section and, if the time handicaps in the most integrated set- period of the transition plan is longer ting appropriate. than one year, identify steps that will (2) Historic preservation programs. In be taken during each year of the tran- meeting the requirements of sition period; and § 1251.550(a) in historic preservation programs, the agency shall give pri- (4) Indicate the official responsible ority to methods that provide physical for implementation of the plan. access to individuals with handicaps. § 1251.551 Program accessibility: New In cases where a physical alteration to construction and alterations. an historic property is not required be- cause of § 1251.550(a)(2) or (3), alter- Each building or part of a building native methods of achieving program that is constructed or altered by, on accessibility include— behalf of, or for the use of the agency (i) Using audio-visual materials and shall be designed, constructed, or al- devices to depict those portions of an tered so as to be readily accessible to historic property that cannot other- and usable by individuals with handi- wise be made accessible; caps. The definitions, requirements, (ii) Assigning persons to guide indi- and standards of the Architectural Bar- viduals with handicaps into or through riers Act (42 U.S.C. 4151–4157), as estab- portions of historic properties that lished in 41 CFR 101–19.600 to 101–19.607, cannot otherwise be made accessible; apply to buildings covered by this sec- or tion. (iii) Adopting other innovative meth- ods. §§ 1251.552–1251.559 [Reserved] (c) Time period for compliance. The § 1251.560 Communications. agency shall comply with the obliga- tions established under this section by (a) The agency shall take appropriate November 7, 1988, except that where steps to ensure effective communica- structural changes in facilities are un- tion with applicants, participants, per- dertaken, such changes shall be made sonnel of other Federal entities, and by September 6, 1991, but in any event members of the public. as expeditiously as possible. (1) The agency shall furnish appro- (d) Transition plan. In the event that priate auxiliary aids where necessary structural changes to facilities will be to afford an individual with handicaps undertaken to achieve program acces- an equal opportunity to participate in, sibility, the agency shall develop, by and enjoy the benefits of, a program or March 6, 1989, a transition plan setting activity conducted by the agency.
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(i) In determining what type of auxil- theless ensure that, to the maximum iary aid is necessary, the agency shall extent possible, individuals with handi- give primary consideration to the re- caps receive the benefits and services quests of the individual with handi- of the program or activity. caps. (ii) The agency need not provide indi- §§ 1251.561–1251.569 [Reserved] vidually prescribed devices, readers for personal use or study, or other devices § 1251.570 Compliance procedures. of a personal nature. (a) Except as provided in paragraph (2) Where the agency communicates (b) of this section, this section applies with applicants and beneficiaries by to all allegations of discrimination on telephone, telecommunication devices the basis of handicap in programs and for deaf persons (TDD’s) or equally ef- activities conducted by the agency. fective telecommunication systems (b) The agency shall process com- shall be used to communicate with per- plaints alleging violations of section sons with impaired hearing. 504 with respect to employment accord- (b) The agency shall ensure that in- ing to the procedures established by terested persons, including persons the Equal Employment Opportunity with impaired vision or hearing, can Commission in 29 CFR part 1613 pursu- obtain information as to the existence ant to section 501 of the Rehabilitation and location of accessible services, ac- Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The Assistant Administrator for (c) The agency shall provide signage Equal Opportunity Programs shall be at a primary entrance to each of its in- responsible for coordinating implemen- accessible facilities, directing users to tation of this section. Complaints may a location at which they can obtain in- be sent to the Office of Equal Oppor- formation about accessible facilities. tunity Programs, Room 6119, 400 Mary- The international symbol for accessi- bility shall be used at each primary en- land Avenue, SW., Washington, DC trance of an accessible facility. 20546. (d) This section does not require the (d) The agency shall accept and in- agency to take any action that it can vestigate all complete complaints for demonstrate would result in a funda- which it has jurisdiction. All complete mental alteration in the nature of a complaints must be filed within 180 program or activity or in undue finan- days of the alleged act of discrimina- cial and administrative burdens. In tion. The agency may extend this time those circumstances where agency per- period for good cause. sonnel believe that the proposed action (e) If the agency receives a complaint would fundamentally alter the program over which it does not have jurisdic- or activity or would result in undue fi- tion, it shall promptly notify the com- nancial and administrative burdens, plainant and shall make reasonable ef- the agency has the burden of proving forts to refer the complaint to the ap- that compliance with § 1251.560 would propriate Government entity. result in such alteration or burdens. (f) The agency shall notify the Archi- The decision that compliance would re- tectural and Transportation Barriers sult in such alteration or burdens must Compliance Board upon receipt of any be made by the agency head or his or complaint alleging that a building or her designee after considering all agen- facility that is subject to the Architec- cy resources available for use in the tural Barriers Act of 1968, as amended funding and operation of the conducted (42 U.S.C. 4151–4157), is not readily ac- program or activity and must be ac- cessible to and usable by individuals companied by a written statement of with handicaps. the reasons for reaching that conclu- (g) Within 180 days of the receipt of a sion. If an action required to comply complete complaint for which it has ju- with this section would result in such risdiction, the agency shall notify the an alteration or such burdens, the complainant of the results of the inves- agency shall take any other action tigation in a letter containing— that would not result in such an alter- (1) Findings of fact and conclusions ation or such burdens but would never- of law;
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(2) A description of a remedy for each Subpart 1252.3—Responsibilities of violation found; and Recipients (3) A notice of the right to appeal. (h) Appeals of the findings of fact and 1252.300 General responsibilities of recipi- conclusions of law or remedies must be ents. 1252.301 Notice to subrecipients. filed by the complainant within 90 days 1252.302 Assurance of compliance and recipi- of receipt from the agency of the letter ent assessment of age distinctions. required by § 1251.570(g). The agency 1252.303 Information requirements. may extend this time for good cause. (i) Timely appeals shall be accepted Subpart 1252.4—Investigation, Conciliation, and processed by the head of the agen- and Enforcement Procedures cy. (j) The head of the agency shall no- 1252.400 Compliance reviews. tify the complainant of the results of 1252.401 Complaints. the appeal within 60 days of the receipt 1252.402 Mediation. of the request. If the head of the agen- 1252.403 Investigation. cy determines that additional informa- 1252.404 Prohibition against intimidation or tion is needed from the complainant, retaliation. he or she shall have 60 days from the 1252.405 Compliance procedure. date of receipt of the additional infor- 1252.406 Hearings. mation to make his or her determina- 1252.407 Notices, decisions, and post-termi- tion on the appeal. nation proceedings. 1252.408 Remedial action by recipients. (k) The time limits cited in para- 1252.409 Alternate funds disbursal proce- graphs (g) and (j) of this section may be dure. extended with the permission of the 1252.410 Exhaustion of administrative rem- Assistant Attorney General. edies. (l) The agency may delegate its au- 1252.411 Age distinctions. thority for conducting complaint in- vestigations to other Federal agencies, AUTHORITY: Age Discrimination Act of 1975, except that the authority for making as amended, 42 U.S.C. 6101 et seq. (45 CFR part 90). the final determination may not be delegated to another agency. SOURCE: 50 FR 13311, Apr. 4, 1985, unless otherwise noted. [53 FR 25882 and 25885, July 8, 1989]
§§ 1251.571–1251.999 [Reserved] Subpart 1252.1—General § 1252.100 What is the purpose of PART 1252—NONDISCRIMINATION NASA’s age discrimination regula- ON THE BASIS OF AGE IN PRO- tions? GRAMS AND ACTIVITIES RECEIV- The purpose of these regulations is to ING FEDERAL FINANCIAL ASSIST- set out NASA’s policies and to imple- ANCE ment agencywide or agency procedures under the Age Discrimination Act of Subpart 1252.1—General 1975 according to the government-wide Sec. age discrimination regulations at 45 1252.100 What is the purpose of NASA’s age CFR part 90. (Published at 44 FR 33768, discrimination regulations? June 12, 1979.) The Act and the govern- 1252.102 To what programs do these regula- ment-wide regulations prohibit dis- tions apply? crimination on the basis of age in pro- 1252.103 Definitions. grams or activities receiving Federal Subpart 1252.2—Standards for Determining financial assistance. The Act and the Age Discrimination governmentwide regulations permit federally assisted programs and activi- 1252.200 Rules against age discrimination. ties and recipients of Federal funds, to 1252.201 Exceptions to the rules against age discrimination. continue to use age distinctions and 1252.202 Burden of proof. factors other than age which meet the 1252.203 Special benefits for children and requirements of the Act and the gov- the elderly. ernmentwide regulations.
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§ 1252.102 To what programs do these insurance or guaranty), or any other regulations apply? arrangement by which the agency pro- (a) These regulations apply to each vides or otherwise makes available as- NASA recipient and to each program or sistance in the form of: activity operated by the recipient (1) Funds; which receives or benefits from Federal (2) Services of Federal personnel; or financial assistance provided by NASA. interest in or use of property, includ- (b) The Age Discrimination Act of ing: 1975 does not apply to: (i) Transfer or lease of property for (1) An age distinction contained in less than fair market value or for re- that part of a Federal, State, or local duced consideration; and statute or ordinance adopted by an (ii) Proceeds from a subsequent elected body which: transfer or lease of property if the Fed- (i) Provides any benefits or assist- eral share of its fair market value is ance to persons based on age; or not returned to the Federal Govern- (ii) Establishes criteria for participa- ment. tion in age-related terms; or (i) FMCS means the Federal Medi- (iii) Describes intended beneficiaries ation and Conciliation Service. or target groups in age-related terms. (j) Recipient means any State or its (2) Any employment practice of any political subdivision, any instrumen- employer, employment agency, labor tality of a State or its political sub- organization, or any labor-manage- division, any public or private agency, ment joint apprenticeship training pro- institution, organization, or other enti- gram, except for any program or activ- ty, or any person to which Federal fi- ity receiving Federal financial assist- nancial assistance is extended, directly ance for public service employment or through another recipient. Recipient under the Comprehensive Employment includes any successor, assignee, or and Training Act of 1974 (CETA) (29 transferee, but excludes the ultimate U.S.C. 801 et seq.). beneficiary of the assistance. (k) Administrator means the Adminis- § 1252.103 Definitions. trator of the National Aeronautics and As used in these regulations, the Space Administration or designee. term: (l) Subrecipient means any of the enti- (a) Act means the Age Discrimination ties in the definition of ‘‘recipient’’ to Act of 1975, as amended. (Title III of which a recipient extents or passes on Pub. L. 94–135.) Federal financial assistance. A sub- (b) Action means any act, activity, recipient is generally regarded as a re- policy, rule, standard, or method of ad- cipient of Federal financial assistance ministration; or the use of any policy, and has all the duties of a recipient in rule, standard, or method of adminis- these regulations. tration. (m) United States means the 50 States, (c) Age means how old a person is, or the District of Columbia, Puerto Rico, the number of elapsed years from the the Virgin Islands, American Samoa, date of a person’s birth. Guam, Wake Island, the Canal Zone, (d) Age distinction means any action the Trust Territory of the Pacific Is- using age or an age-related term. lands, the Northern Marianas, and the (e) Age-related term means a word or territories and possessions of the words which necessarily imply a par- United States. ticular age or range of ages (for exam- ple, ‘‘children,’’ ‘‘adult,’’ ‘‘older per- Subpart 1252.2—Standards for sons,’’ but not ‘‘student’’). Determining Age Discrimination (f) Discrimination means unlawful treatment based on age. § 1252.200 Rules against age discrimi- (g) NASA means the National Aero- nation. nautics and Space Administration. The rules stated in this section are (h) Federal financial assistance means limited by the exceptions contained in any grant, entitlement, loan, coopera- § 1252.201. tive agreement contract (other than a (a) General rule: No person in the procurement contract or a contract of United States shall, on the basis of age
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be excluded from participation in, be (2) The other characteristic(s) must denied the benefits of, or be subjected be measured or approximated in order to discrimination under any program for the normal operation of the pro- or activity receiving Federal financial gram or activity to continue, or to assistance. achieve any statutory objective of the (b) Specific rules: A recipient may not, program or activity; and in any program or activity receiving (3) The other characteristic(s) can be Federal financial assistance, directly reasonably measured or approximated or through contractual, licensing, or by the use of age; and other arrangements use age distinc- (4) The other characteristic(s) are tions or take any other actions which impractical to measure directly on an have the effect, on the basis of age, of: individual basis. (1) Excluding individuals from, deny- (c) Reasonable factors other than ing them the benefits of, or subjecting age. A recipient is permitted to take an them to discrimination under a pro- action otherwise prohibited by gram or activity receiving Federal fi- § 1252.200 which is based on a factor nancial assistance; or other than age, even though that ac- (2) Denying or limiting individuals in tion may have a disproportionate effect their opportunity to participate in any on persons of different ages. An action program or activity receiving Federal may be based on a factor other than financial assistance. age only if the factor bears a direct and (c) The specific forms of age discrimi- substantial relationship to the normal nation listed in paragraph (b) of this operation of the program or activity or section do not necessarily constitute a to the achievement of a statutory ob- complete list. jective.
§ 1252.201 Exceptions to the rules § 1252.202 Burden of proof. against age discrimination. The burden of proving that an age (a) Definitions. For purposes of this distinction or other action falls within section, the terms normal operation and the exceptions outlined in § 1252.201 (b) statutory objective shall have the fol- and (c) is on the recipient of Federal fi- lowing meaning: nancial assistance. (1) Normal operation means the oper- § 1252.203 Special benefits for children ation of a program or activity without and the elderly. significant changes that would impair its ability to meet its objectives. If a recipient operating a program (2) Statutory objective means any pur- provides special benefits to the elderly pose of a program or activity expressly or to children, such use of age distinc- stated in any Federal statute, state tions shall be presumed to be necessary statute or local statute or ordinance to the normal operation of the pro- adopted by any elected, general pur- gram, notwithstanding the provision of pose legislative body. § 1252.10. (b) Normal operation or statutory ob- jective of any program or activity. A Subpart 1252.3—Responsibilities of recipient is permitted to take an ac- Recipients tion otherwise prohibited by § 1252.200 if the action reasonably takes into ac- § 1252.300 General responsibilities of count age as a factor necessary to the recipients. normal operation of the achievement Each NASA recipient must ensure of any statutory objective of a program that its programs and activities com- or activity. An action reasonably takes ply with these regulations. into account age as a factor necessary to the normal operation or the achieve- § 1252.301 Notice to subrecipients. ment of any statutory objective of a Where a recipient passes on Federal program or activity, if: financial assistance from NASA to sub- (1) Age is used as a measure of ap- recipients, the recipient shall provide proximation of one or more other char- the subrecipient written notice of their acteristics; and obligations under these regulations.
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§ 1252.302 Assurance of compliance view may be as comprehensive as nec- and recipient assessment of age dis- essary to determine whether a viola- tinctions. tion of these regulations has occurred. (a) Each recipient of Federal finan- (b) If a compliance review or pre- cial assistance from NASA shall sign a award review indicates a violation of written assurance as specified by the Act or these regulations, NASA NASA that it will comply with the Act will attempt to secure the recipient’s and these regulations. voluntary compliance with the Act. If (b) Recipient assessment of age distinc- voluntary compliance cannot be tions. (1) As part of a compliance review achieved, NASA will arrange for en- under § 91.41, NASA may require a re- forcement as described in § 1252.405. cipient employing the equivalent of 15 or more employees to complete a writ- § 1252.401 Complaints. ten self-evaluation, in a manner speci- (a) Any person, individually or as a fied by the responsible Agency official, member of a class or on behalf of oth- of any age distinction imposed in its ers, may file a complaint with NASA, program or activity receiving Federal alleging discrimination prohibited by financial assistance from NASA to as- the Act or these regulations based on sess the recipient’s compliance with an action occurring on or after July 1, the Act. 1979. A complaint must be filed within (2) Whenever an assessment indicates 180 days from the date the complainant a violation of the Act and the NASA first had knowledge of the alleged act regulations, the recipient shall take of discrimination. However, for good corrective action. cause shown, NASA may extend this time limit. § 1252.303 Information requirements. (b) NASA will attempt to facilitate (a) Keep records in a form that con- the filing of complaints wherever pos- tains information which NASA deter- sible, including taking the following mines may be necessary to ascertain measures: whether the recipient is complying (1) Accepting as a sufficient com- with the Act and these regulations. plaint, any written statement, which (b) Provide to NASA, upon request, identifies the parties involved and the information and reports which NASA date the complainant first had knowl- determines are necessary to ascertain edge of the alleged violation, describes whether the recipient is complying generally the action or practice com- with the Act and these regulations. plained of, and assigned by the com- (c) Permit reasonable access by plainant. NASA to the books, records, accounts, (2) Freely permitting a complainant and other recipient facilities and to add information to the complaint to sources of information to the extent meet the requirements of a sufficient NASA determines is necessary to as- complaint. certain whether the recipient is com- (3) Widely disseminating information plying with the Act and these regula- regarding the obligations of recipients tions. under the Act and these regulations. (4) Notifying the complainant and Subpart 1252.4—Investigation, the recipient of their rights and obliga- Conciliation, and Enforcement tions under the complaint procedure, Procedures including the right to have a represent- ative at all stages of the complaint § 1252.400 Compliance reviews. procedure. (a) NASA may conduct compliance (5) Notifying the complainant and reviews and pre-award reviews of re- the recipient (or their representatives) cipients or use other similar proce- of their right to contact NASA for in- dures that will permit it to investigate formation and assistance regarding the and correct violations of the Act and complaint resolution process. these regulations. NASA may conduct (c) NASA will return to the com- these reviews even in the absence of a plainant any complaint outside the ju- complaint against a recipient. The re- risdiction of these regulations, and will
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state the reason(s) why it is outside (g) The mediator shall return unre- the jurisdiction of these regulations. solved complaints to NASA.
§ 1252.402 Mediation. § 1252.403 Investigation. (a) Referral of complaints for medi- (a) Informal inquiry. (1) NASA will in- ation. NASA will refer to the Federal vestigate complaints that are unre- Mediation and Conciliation Service all solved after mediation or are reopened complaints that: because of a violation of a mediation (1) Fall within the jurisdiction of the agreement. Act and these regulations; and (2) As part of the initial inquiry, (2) Contain all information necessary NASA will use informal fact finding for further processing. methods, including joint or separate (b) Both the complainant and the re- discussions with the complainant and cipient shall participate in the medi- recipient to establish the facts, and, if ation process to the extent necessary possible, settle the complaint on terms to reach an agreement or make an in- that are mutually agreeable to the par- formed judgment that an agreement is ties. NASA may seek the assistance of not possible. There must be at least any involved State program agency. one meeting with the mediator before (3) NASA will put any agreement in NASA will accept a judgment that an writing and have it signed by the par- agreement is not possible. However, ties and an authorized official at the recipient and the complainant need NASA. not meet with the mediator at the (4) The settlement shall not affect same time. the operation of any other enforcement (c) If the complainant and the recipi- effort of NASA, including compliance ent reach an agreement, the mediator reviews and investigation of other com- shall prepare a written statement of plaints which may involve the recipi- the agreement and have the complain- ent. ant and recipient sign it. The mediator (5) The settlement is not a finding of shall send a copy of the agreement to discrimination against a recipient. NASA. NASA will take no further ac- (b) Formal investigation. If NASA can- tion on the complaint unless the com- not resolve the complaint through in- plainant or the recipient fails to com- formal means it will develop formal ply with the agreement. However, findings through further investigations NASA retains the right to monitor the of the complaint. If the investigation recipient’s compliance with the agree- indicates a violation of these regula- ment. tions, NASA will attempt to obtain (d) The mediator shall protect the voluntary compliance. If NASA cannot confidentiality of all information ob- obtain voluntary compliance, it will tained in the course of the mediation begin enforcement as described in process. No mediator shall testify in § 1252.405. any adjudicative proceeding, produce any document, or otherwise disclose § 1252.404 Prohibition against intimi- any information obtained in the course dation or retaliation. of the mediation process without prior A recipient may not engage in acts of approval of the head of the mediation intimidation or retaliation against any agency. person who: (e) NASA will use the mediation (a) Attempts to assert a right pro- process for a maximum of 60 days after tected by the Act or these regulations; receiving a complaint. or (f) Mediation ends if: (b) Cooperates in any mediation, in- (1) 60 days elapse from the time quiry, hearing, or other part of NASA’s NASA receives the complaint; or investigation, conciliation, and en- (2) Prior to the end of that 60-day pe- forcement process. riod, an agreement is reached; or (3) Prior to the end of that 60-day pe- § 1252.405 Compliance procedure. riod, the mediator determines that an (a) NASA may enforce the Act and agreement cannot be reached. these regulations through:
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(1) Termination of a recipient’s Fed- ation of existing activities during the eral financial assistance from NASA deferral period. New Federal financial under the program or activity involved assistance from NASA does not include where the recipient has violated the assistance approved prior to the begin- Act or these regulations. The deter- ning of a hearing under § 1252.405(a)(1). mination of the recipient’s violation (2) NASA will not begin a deferral may be made only after a recipient has until the recipient has received a no- had an opportunity for a hearing on the tice of an opportunity for a hearing record before an administrative law under § 1252.405(a)(1). NASA will not judge. Therefore, cases which are set- continue a deferral for more than 60 tled in mediation, or prior to a hearing, days unless a hearing has begun within will not involve termination of a re- that time or the time for beginning the cipient’s Federal financial assistance hearing has been extended by mutual from NASA. consent of the recipient and the Ad- (2) Any other means authorized by ministrator. NASA will not continue a law including but not limited to: deferral for more than 30 days after the (i) Referral to the Department of Jus- close of the hearing, unless the hearing tice for proceedings to enforce any results in a finding against the recipi- rights of the United States or obliga- ent. tions of the recipient created by the Act or these regulations. § 1252.406 Hearings. (ii) Use of any requirement of or re- ferral to any Federal, State, or local The procedural provisions for those government agency that will have the hearings required by § 1252.405 are con- effect of correcting a violation of the tained in 14 CFR 1250.108. Act or these regulations. (b) NASA will limit any termination § 1252.407 Notices, decisions, and post- under § 1252.405(a)(1) to the particular termination proceedings. program activity NASA finds in viola- All notices, decisions, and post-ter- tions of these regulations. NASA will mination proceedings, insofar as NASA not base any part of a termination on is concerned, shall be made in accord- a finding with respect to any program ance with 14 CFR 1250.109. or activity of the recipient which does not receive Federal financial assist- § 1252.408 Remedial action by recipi- ance from NASA. ents. (c) NASA will take no action under (a) Where NASA finds a recipient has paragraph (a) until: discriminated on the basis of age, the (1) The Administrator has advised recipient shall take any remedial ac- the recipient of its failure to comply tion that NASA may require to over- with the Act and these regulations and come the effects of the discrimination. has determined that voluntary compli- If another recipient exercises control ance cannot be obtained. over the recipient that has discrimi- (2) 30 days have elapsed after the Ad- nated, NASA may require both recipi- ministrator has sent a written report ents to take remedial action. of the circumstances and grounds of the action to the committees of Con- (b) Even in the absence of discrimina- gress having legislative jurisdiction tion, a recipient may take affirmative over the Federal program or activity action to overcome the effects of condi- involved. The Administrator will file a tions that resulted in limited partici- report whenever any action is taken pation in the recipients program or ac- under paragraph (a) of this section. tivity on the basis of age. (d) NASA also may defer granting new Federal financial assistance from § 1252.409 Alternate funds disbursal procedure. NASA to a recipient when a hearing under § 1252.405(a)(1) is initiated. (a) When NASA withholds funds from (1) New Federal financial assistance a recipient under these regulations, the from NASA includes all assistance for Administrator may disburse the with- which NASA requires an application or held funds directly to an alternate re- approval, including renewal or continu- cipient.
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(b) The Administrator will require § 1252.411 Age distinctions. any alternate recipient to dem- There are no Federal statutes or reg- onstrate: ulations containing age distinctions (1) The ability to comply with these which affect financial assistance ad- regulations; and ministered by the agency. (2) The ability to achieve the goals of the Federal statute authorizing the PART 1253—NONDISCRIMINATION program or activity. ON THE BASIS OF SEX IN EDU- § 1252.410 Exhaustion of administra- CATION PROGRAMS OR ACTIVI- tive remedies. TIES RECEIVING FEDERAL FINAN- (a) A complainant may file a civil ac- CIAL ASSISTANCE tion following the exhaustion of admin- istrative remedies under the Act. Ad- Subpart A—Introduction ministrative remedies are exhausted if: Sec. (1) 180 days have elapsed since the 1253.100 Purpose and effective date. complainant filed the complaint and 1253.105 Definitions. NASA has made no finding with regard 1253.110 Remedial and affirmative action to the complaint; or and self-evaluation. 1253.115 Assurance required. (2) NASA issues any findings in favor 1253.120 Transfers of property. of the recipient. 1253.125 Effect of other requirements. (b) If NASA fails to make a finding 1253.130 Effect of employment opportuni- within 180 days or issues a finding in ties. favor of the recipient, NASA will: 1253.135 Designation of responsible em- (1) Promptly advise the complainant ployee and adoption of grievance proce- dures. of this fact; and 1253.140 Dissemination of policy. (2) Advise the complainant of his or her right to bring a civil action for in- Subpart B—Coverage junctive relief; and 1253.200 Application. (3) Inform the complainant: 1253.205 Educational institutions and other (i) That the complainant may bring a entities controlled by religious organiza- civil action only in a United States dis- tions. trict court for the district in which the 1253.210 Military and merchant marine edu- recipient is located or transacts busi- cational institutions. ness; 1253.215 Membership practices of certain or- ganizations. (ii) That a complainant prevailing in 1253.220 Admissions. a civil action has the right to be 1253.225 Educational institutions eligible to awarded the costs of the action, includ- submit transition plans. ing reasonable attorney’s fees, but that 1253.230 Transition plans. the complainant must demand these 1253.235 Statutory amendments. costs in the complaint. Subpart C—Discrimination on the Basis of (iii) That before commencing the ac- Sex in Admission and Recruitment Pro- tion the complainant shall give 30 days hibited notice by registered mail to the Ad- ministrator, the Attorney General of 1253.300 Admission. the United States, and 1253.305 Preference in admission. (iv) That the notice must state: the 1253.310 Recruitment. alleged violation of the act; the relief Subpart D—Discrimination on the Basis of requested; the court in which the com- Sex in Education Programs or Activities plainant is bringing the action; and, Prohibited whether or not attorney’s fees are de- manded in the event the complainant 1253.400 Education programs or activities. prevails; and 1253.405 Housing. (v) That the complainant may not 1253.410 Comparable facilities. 1253.415 Access to course offerings. bring an action if the same alleged vio- 1253.420 Access to schools operated by lation of the Act by the same recipient LEAs. is the subject of a pending action in 1253.425 Counseling and use of appraisal and any court of the United States. counseling materials.
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1253.430 Financial assistance. local educational agency) admission to 1253.435 Employment assistance to stu- which is independent of admission to dents. any other component of such institu- 1253.440 Health and insurance benefits and tion. services. 1253.445 Marital or parental status. Admission means selection for part- 1253.450 Athletics. time, full-time, special, associate, 1253.455 Textbooks and curricular material. transfer, exchange, or any other enroll- ment, 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 1253.500 Employment. application, request, or plan required 1253.505 Employment criteria. to be approved by an official of the 1253.510 Recruitment. Federal agency that awards Federal fi- 1253.515 Compensation. nancial assistance, or by a recipient, as 1253.520 Job classification and structure. a condition to becoming a recipient. 1253.525 Fringe benefits. Designated agency official means Asso- 1253.530 Marital or parental status. ciate Administrator for Equal Oppor- 1253.535 Effect of state or local law or other requirements. tunity Programs. 1253.540 Advertising. Educational institution means a local 1253.545 Pre-employment inquiries. educational agency (LEA) as defined by 1253.550 Sex as a bona fide occupational 20 U.S.C. 8801(18), a preschool, a private qualification. elementary or secondary school, or an applicant or recipient that is an insti- Subpart F—Procedures tution of graduate higher education, an 1253.600 Notice of covered programs. institution of undergraduate higher 1253.605 Enforcement procedures. education, an institution of profes- sional education, or an institution of AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688. vocational education, as defined in this section. SOURCE: 65 FR 52865, 52876, Aug. 30, 2000, un- Federal financial assistance means any less otherwise noted. of the following, when authorized or extended under a law administered by Subpart A—Introduction the Federal agency that awards such assistance: § 1253.100 Purpose and effective date. (1) A grant or loan of Federal finan- The purpose of these Title IX regula- cial assistance, including funds made tions is to effectuate Title IX of the available for: Education Amendments of 1972, as (i) The acquisition, construction, ren- amended (except sections 904 and 906 of ovation, restoration, or repair of a those Amendments) (20 U.S.C. 1681, building or facility or any portion 1682, 1683, 1685, 1686, 1687, 1688), which is thereof; and designed to eliminate (with certain ex- (ii) Scholarships, loans, grants, ceptions) discrimination on the basis of wages, or other funds extended to any sex in any education program or activ- entity for payment to or on behalf of ity receiving Federal financial assist- students admitted to that entity, or ance, whether or not such program or extended directly to such students for activity is offered or sponsored by an payment to that entity. educational institution as defined in (2) A grant of Federal real or per- these Title IX regulations. The effec- sonal property or any interest therein, tive date of these Title IX regulations including surplus property, and the shall be September 29, 2000. proceeds of the sale or transfer of such property, if the Federal share of the § 1253.105 Definitions. fair market value of the property is As used in these Title IX regulations, not, upon such sale or transfer, prop- the term: erly accounted for to the Federal Gov- Administratively separate unit means a ernment. school, department, or college of an (3) Provision of the services of Fed- educational institution (other than a eral personnel.
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(4) Sale or lease of Federal property an institution of professional or grad- or any interest therein at nominal con- uate or undergraduate higher edu- sideration, or at consideration reduced cation) that has as its primary purpose for the purpose of assisting the recipi- preparation of students to pursue a ent or in recognition of public interest technical, skilled, or semiskilled occu- 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- tating research by persons who have ed by section 3 of Public Law 93–568, 88 received the highest graduate degree in Stat. 1855, by section 412 of the Edu- any field of study. cation Amendments of 1976, Public Law Institution of professional education 94–482, 90 Stat. 2234, and by Section 3 of means an institution (except any insti- Public Law 100–259, 102 Stat. 28, 28–29 tution of undergraduate higher edu- (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, cation) that offers a program of aca- 1688). demic study that leads to a first profes- Title IX regulations means the provi- sional degree in a field for which there sions set forth at §§ 1253.100 through is a national specialized accrediting 1253.605. agency recognized by the Secretary of Transition plan means a plan subject Education. to the approval of the Secretary of Institution of undergraduate higher Education pursuant to section 901(a)(2) education means: of the Education Amendments of 1972, (1) An institution offering at least 20 U.S.C. 1681(a)(2), under which an edu- two but less than four years of college- cational institution operates in mak- level study beyond the high school ing the transition from being an edu- level, leading to a diploma or an asso- cational institution that admits only ciate degree, or wholly or principally students of one sex to being one that creditable toward a baccalaureate de- admits students of both sexes without gree; or discrimination. (2) An institution offering academic study leading to a baccalaureate de- § 1253.110 Remedial and affirmative gree; or action and self-evaluation. (3) An agency or body that certifies (a) Remedial action. If the designated credentials or offers degrees, but that agency official finds that a recipient may or may not offer academic study. has discriminated against persons on Institution of vocational education the basis of sex in an education pro- means a school or institution (except gram or activity, such recipient shall
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take such remedial action as the des- § 1253.115 Assurance required. ignated agency official deems nec- (a) General. Either at the application essary to overcome the effects of such stage or the award stage, Federal agen- discrimination. cies must ensure that applications for (b) Affirmative action. In the absence Federal financial assistance or awards of a finding of discrimination on the of Federal financial assistance contain, basis of sex in an education program or be accompanied by, or be covered by a activity, a recipient may take affirma- specifically identified assurance from tive action consistent with law to over- the applicant or recipient, satisfactory come the effects of conditions that re- to the designated agency official, that sulted in limited participation therein each education program or activity op- by persons of a particular sex. Nothing erated by the applicant or recipient in these Title IX regulations shall be and to which these Title IX regulations interpreted to alter any affirmative ac- apply will be operated in compliance tion obligations that a recipient may with these Title IX regulations. An as- have under Executive Order 11246, 3 surance of compliance with these Title CFR, 1964–1965 Comp., p. 339; as amend- IX regulations shall not be satisfactory ed by Executive Order 11375, 3 CFR, to the designated agency official if the 1966–1970 Comp., p. 684; as amended by applicant or recipient to whom such as- Executive Order 11478, 3 CFR, 1966–1970 surance applies fails to commit itself Comp., p. 803; as amended by Executive to take whatever remedial action is Order 12086, 3 CFR, 1978 Comp., p. 230; necessary in accordance with as amended by Executive Order 12107, 3 § 1253.110(a) to eliminate existing dis- CFR, 1978 Comp., p. 264. crimination on the basis of sex or to (c) Self-evaluation. Each recipient eliminate the effects of past discrimi- education institution shall, within one nation whether occurring prior to or year of September 29, 2000: subsequent to the submission to the (1) Evaluate, in terms of the require- designated agency official of such as- ments of these Title IX regulations, its surance. current policies and practices and the (b) Duration of obligation. (1) In the effects thereof concerning admission of case of Federal financial assistance ex- students, treatment of students, and tended to provide real property or employment of both academic and non- structures thereon, such assurance academic personnel working in connec- shall obligate the recipient or, in the tion with the recipient’s education pro- case of a subsequent transfer, the gram or activity; transferee, for the period during which (2) Modify any of these policies and the real property or structures are used practices that do not or may not meet to provide an education program or ac- the requirements of these Title IX reg- tivity. ulations; and (2) In the case of Federal financial as- (3) Take appropriate remedial steps sistance extended to provide personal to eliminate the effects of any dis- property, such assurance shall obligate crimination that resulted or may have the recipient for the period during resulted from adherence to these poli- which it retains ownership or posses- cies and practices. sion of the property. (d) Availability of self-evaluation and (3) In all other cases such assurance related materials. Recipients shall main- shall obligate the recipient for the pe- tain on file for at least three years fol- riod during which Federal financial as- lowing completion of the evaluation re- sistance is extended. quired under paragraph (c) of this sec- (c) Form. (1) The assurances required tion, and shall provide to the des- by paragraph (a) of this section, which ignated agency official upon request, a may be included as part of a document description of any modifications made that addresses other assurances or obli- pursuant to paragraph (c)(2) of this sec- gations, shall include that the appli- tion and of any remedial steps taken cant or recipient will comply with all pursuant to paragraph (c)(3) of this sec- applicable Federal statutes relating to tion. nondiscrimination. These include but
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are not limited to: Title IX of the Edu- comply with these Title IX regulations cation Amendments of 1972, as amend- is not obviated or alleviated by any ed (20 U.S.C. 1681–1683, 1685–1688). rule or regulation of any organization, (2) The designated agency official club, athletic or other league, or asso- will specify the extent to which such ciation that would render any appli- assurances will be required of the ap- cant or student ineligible to partici- plicant’s or recipient’s subgrantees, pate or limit the eligibility or partici- contractors, subcontractors, trans- pation of any applicant or student, on ferees, or successors in interest. the basis of sex, in any education pro- gram or activity operated by a recipi- § 1253.120 Transfers of property. ent and that receives Federal financial If a recipient sells or otherwise trans- assistance. fers property financed in whole or in part with Federal financial assistance § 1253.130 Effect of employment oppor- to a transferee that operates any edu- tunities. cation 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 §§ 1253.205 through 1253.235(a). § 1253.135 Designation of responsible employee and adoption of grievance § 1253.125 Effect of other require- procedures. ments. (a) Designation of responsible employee. (a) Effect of other Federal provisions. Each recipient shall designate at least The obligations imposed by these Title one employee to coordinate its efforts IX regulations are independent of, and to comply with and carry out its re- do not alter, obligations not to dis- sponsibilities under these Title IX reg- criminate on the basis of sex imposed ulations, including any investigation of by Executive Order 11246, 3 CFR, 1964– any complaint communicated to such 1965 Comp., p. 339; as amended by Exec- recipient alleging its noncompliance utive Order 11375, 3 CFR, 1966–1970 with these Title IX regulations or al- Comp., p. 684; as amended by Executive leging any actions that would be pro- Order 11478, 3 CFR, 1966–1970 Comp., p. hibited by these Title IX regulations. 803; as amended by Executive Order The recipient shall notify all its stu- 12087, 3 CFR, 1978 Comp., p. 230; as dents and employees of the name, of- amended by Executive Order 12107, 3 fice address, and telephone number of CFR, 1978 Comp., p. 264; sections 704 the employee or employees appointed and 855 of the Public Health Service pursuant to this paragraph. Act (42 U.S.C. 295m, 298b-2); Title VII of (b) Complaint procedure of recipient. A the Civil Rights Act of 1964 (42 U.S.C. recipient shall adopt and publish griev- 2000e et seq.); the Equal Pay Act of 1963 ance procedures providing for prompt (29 U.S.C. 206); and any other Act of and equitable resolution of student and Congress or Federal regulation. employee complaints alleging any ac- (b) Effect of State or local law or other tion that would be prohibited by these requirements. The obligation to comply Title IX regulations. with these Title IX regulations is not obviated or alleviated by any State or § 1253.140 Dissemination of policy. local law or other requirement that (a) Notification of policy. (1) Each re- would render any applicant or student cipient shall implement specific and ineligible, or limit the eligibility of continuing steps to notify applicants any applicant or student, on the basis for admission and employment, stu- of sex, to practice any occupation or dents and parents of elementary and profession. secondary school students, employees, (c) Effect of rules or regulations of pri- sources of referral of applicants for ad- vate organizations. The obligation to mission and employment, and all
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unions or professional organizations ferently on the basis of sex except as holding collective bargaining or profes- such treatment is permitted by these sional agreements with the recipient, Title IX regulations. that it does not discriminate on the (c) Distribution. Each recipient shall basis of sex in the educational pro- distribute without discrimination on grams or activities that it operates, the basis of sex each publication de- and that it is required by Title IX and scribed in paragraph (b)(1) of this sec- these Title IX regulations not to dis- tion, and shall apprise each of its ad- criminate in such a manner. Such noti- mission and employment recruitment fication shall contain such informa- representatives of the policy of non- tion, and be made in such manner, as discrimination described in paragraph the designated agency official finds (a) of this section, and shall require necessary to apprise such persons of the protections against discrimination such representatives to adhere to such assured them by Title IX and these policy. Title IX regulations, but shall state at least that the requirement not to dis- Subpart B—Coverage criminate in education programs or ac- tivities extends to employment there- § 1253.200 Application. in, and to admission thereto unless Except as provided in §§ 1253.205 §§ 1253.300 through 1253.310 do not apply through 1253.235(a), these Title IX regu- to the recipient, and that inquiries lations apply to every recipient and to concerning the application of Title IX each education program or activity op- and these Title IX regulations to such erated by such recipient that receives recipient may be referred to the em- Federal financial assistance. ployee designated pursuant to § 1253.135, or to the designated agency § 1253.205 Educational institutions and official. other entities controlled by reli- (2) Each recipient shall make the ini- gious organizations. tial notification required by paragraph (a)(1) of this section within 90 days of (a) Exemption. These Title IX regula- September 29, 2000 or of the date these tions do not apply to any operation of Title IX regulations first apply to such an educational institution or other en- recipient, whichever comes later, tity that is controlled by a religious which notification shall include publi- organization to the extent that appli- cation in: cation of these Title IX regulations (i) Newspapers and magazines oper- would not be consistent with the reli- ated by such recipient or by student, gious tenets of such organization. alumnae, or alumni groups for or in (b) Exemption claims. An educational connection with such recipient; and institution or other entity that wishes (ii) Memoranda or other written com- to claim the exemption set forth in munications distributed to every stu- paragraph (a) of this section shall do so dent and employee of such recipient. by submitting in writing to the des- (b) Publications. (1) Each recipient ignated agency official a statement by shall prominently include a statement the highest-ranking official of the in- of the policy described in paragraph (a) stitution, identifying the provisions of of this section in each announcement, these Title IX regulations that conflict bulletin, catalog, or application form with a specific tenet of the religious or- that it makes available to any person ganization. of a type, described in paragraph (a) of this section, or which is otherwise used § 1253.210 Military and merchant ma- in connection with the recruitment of rine educational institutions. students or employees. (2) A recipient shall not use or dis- These Title IX regulations do not tribute a publication of the type de- apply to an educational institution scribed in paragraph (b)(1) of this sec- whose primary purpose is the training tion that suggests, by text or illustra- of individuals for a military service of tion, that such recipient treats appli- the United States or for the merchant cants, students, or employees dif- marine.
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§ 1253.215 Membership practices of cation, and public institutions of un- certain organizations. dergraduate higher education. (a) Social fraternities and sororities. (e) Public institutions of undergraduate These Title IX regulations do not apply higher education. §§ 1253.300 through to the membership practices of social 1253.310 do not apply to any public in- fraternities and sororities that are ex- stitution of undergraduate higher edu- empt from taxation under section cation that traditionally and contin- 501(a) of the Internal Revenue Code of ually from its establishment has had a 1954, 26 U.S.C. 501(a), the active mem- policy of admitting students of only bership of which consists primarily of one sex. students in attendance at institutions § 1253.225 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 §§ 1253.300 through 1253.310 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 §§ 1253.300 and principally to persons of less than through 1253.310. nineteen years of age. § 1253.230 Transition plans. § 1253.220 Admissions. (a) Submission of plans. An institution (a) Admissions to educational insti- to which § 1253.225 applies and that is tutions prior to June 24, 1973, are not composed of more than one administra- covered by these Title IX regulations. tively separate unit may submit either (b) Administratively separate units. For a single transition plan applicable to the purposes only of this section, all such units, or a separate transition §§ 1253.225 and 1253.230, and §§ 1253.300 plan applicable to each such unit. through 1253.310, each administratively (b) Content of plans. In order to be ap- separate unit shall be deemed to be an proved by the Secretary of Education, educational institution. a transition plan shall: (c) Application of §§ 1253.300 through (1) State the name, address, and Fed- 1253.310. Except as provided in para- eral Interagency Committee on Edu- graphs (d) and (e) of this section, cation Code of the educational institu- §§ 1253.300 through 1253.310 apply to tion submitting such plan, the admin- each recipient. A recipient to which istratively separate units to which the §§ 1253.300 through 1253.310 apply shall plan is applicable, and the name, ad- not discriminate on the basis of sex in dress, and telephone number of the per- admission or recruitment in violation son to whom questions concerning the of §§ 1253.300 through 1253.310. plan may be addressed. The person who (d) Educational institutions. Except as submits the plan shall be the chief ad- provided in paragraph (e) of this sec- ministrator or president of the institu- tion as to recipients that are edu- tion, or another individual legally au- cational institutions, §§ 1253.300 thorized to bind the institution to all through 1253.310 apply only to institu- actions set forth in the plan. tions of vocational education, profes- (2) State whether the educational in- sional education, graduate higher edu- stitution or administratively separate
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unit admits students of both sexes as (2) Any program or activity of a sec- regular students and, if so, when it ondary school or educational institu- began to do so. tion specifically for: (3) Identify and describe with respect (i) The promotion of any Boys State to the educational institution or ad- conference, Boys Nation conference, ministratively separate unit any obsta- Girls State conference, or Girls Nation cles to admitting students without dis- conference; or crimination on the basis of sex. (ii) The selection of students to at- (4) Describe in detail the steps nec- tend any such conference; essary to eliminate as soon as prac- (3) Father-son or mother-daughter ticable each obstacle so identified and activities at an educational institution indicate the schedule for taking these or in an education program or activity, steps and the individual directly re- but if such activities are provided for sponsible for their implementation. students of one sex, opportunities for (5) Include estimates of the number reasonably comparable activities shall of students, by sex, expected to apply be provided to students of the other for, be admitted to, and enter each sex; class during the period covered by the (4) Any scholarship or other financial plan. assistance awarded by an institution of (c) Nondiscrimination. No policy or higher education to an individual be- practice of a recipient to which cause such individual has received such § 1253.225 applies shall result in treat- award in a single-sex pageant based ment of applicants to or students of upon a combination of factors related such recipient in violation of §§ 1253.300 to the individual’s personal appear- through 1253.310 unless such treatment ance, poise, and talent. The pageant, is necessitated by an obstacle identi- however, must comply with other non- fied in paragraph (b)(3) of this section discrimination provisions of Federal and a schedule for eliminating that ob- law. stacle has been provided as required by (c) Program or activity or program paragraph (b)(4) of this section. means: (d) Effects of past exclusion. To over- (1) All of the operations of any entity come the effects of past exclusion of students on the basis of sex, each edu- described in paragraphs (c)(1)(i) cational institution to which § 1253.225 through (iv) of this section, any part of applies shall include in its transition which is extended Federal financial as- plan, and shall implement, specific sistance: steps designed to encourage individuals (i)(A) A department, agency, special of the previously excluded sex to apply purpose district, or other instrumen- for admission to such institution. Such tality of a State or of a local govern- steps shall include instituting recruit- ment; or ment programs that emphasize the in- (B) The entity of such State or local stitution’s commitment to enrolling government that distributes such as- students of the sex previously ex- sistance and each such department or cluded. agency (and each other State or local government entity) to which the as- § 1253.235 Statutory amendments. sistance is extended, in the case of as- (a) This section, which applies to all sistance to a State or local govern- provisions of these Title IX regula- ment; tions, addresses statutory amendments (ii)(A) A college, university, or other to Title IX. postsecondary institution, or a public (b) These Title IX regulations shall system of higher education; or not apply to or preclude: (B) A local educational agency (as de- (1) Any program or activity of the fined in section 8801 of title 20), system American Legion undertaken in con- of vocational education, or other nection with the organization or oper- school system; ation of any Boys State conference, (iii)(A) An entire corporation, part- Boys Nation conference, Girls State nership, or other private organization, conference, or Girls Nation conference; or an entire sole proprietorship—
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(1) If assistance is extended to such tracurricular, research, occupational corporation, partnership, private orga- training, employment, or other edu- nization, or sole proprietorship as a cational program or activity operated whole; or by a recipient that receives Federal fi- (2) Which is principally engaged in nancial assistance because such indi- the business of providing education, vidual has sought or received, or is health care, housing, social services, or seeking, a legal abortion, or any ben- parks and recreation; or efit or service related to a legal abor- (B) The entire plant or other com- tion. parable, geographically separate facil- ity to which Federal financial assist- ance is extended, in the case of any Subpart C—Discrimination on the other corporation, partnership, private Basis of Sex in Admission and organization, or sole proprietorship; or Recruitment Prohibited (iv) Any other entity that is estab- lished by two or more of the entities § 1253.300 Admission. described in paragraphs (c)(1)(i), (ii), or (a) General. No person shall, on the (iii) of this section. basis of sex, be denied admission, or be (2)(i) Program or activity does not in- subjected to discrimination in admis- clude any operation of an entity that is sion, by any recipient to which controlled by a religious organization §§ 1253.300 through §§ 1253.310 apply, ex- if the application of 20 U.S.C. 1681 to cept as provided in §§ 1253.225 and such operation would not be consistent §§ 1253.230. with the religious tenets of such orga- nization. (b) Specific prohibitions. (1) In deter- (ii) For example, all of the operations mining whether a person satisfies any of a college, university, or other post- policy or criterion for admission, or in secondary institution, including but making any offer of admission, a re- not limited to traditional educational cipient to which §§ 1253.300 through operations, faculty and student hous- 1253.310 apply shall not: ing, campus shuttle bus service, cam- (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- ical procedures, benefits, services, and for admission that has a disproportion- the use of facilities, necessary to save ately adverse effect on persons on the the life of a pregnant woman or to ad- basis of sex unless the use of such test dress complications related to an abor- or criterion is shown to predict validly tion are not subject to this section. success in the education program or ac- (2) Nothing in this section shall be tivity in question and alternative tests construed to permit a penalty to be im- or criteria that do not have such a dis- posed on any person or individual be- proportionately adverse effect are cause such person or individual is seek- shown to be unavailable. ing or has received any benefit or serv- (c) Prohibitions relating to marital or ice related to a legal abortion. Accord- parental status. In determining whether ingly, subject to paragraph (d)(1) of a person satisfies any policy or cri- this section, no person shall be ex- terion for admission, or in making any cluded from participation in, be denied offer of admission, a recipient to which the benefits of, or be subjected to dis- §§ 1253.300 through 1253.310 apply: crimination under any academic, ex-
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(1) Shall not apply any rule con- marily or exclusively at educational cerning the actual or potential paren- institutions, schools, or entities that tal, family, or marital status of a stu- admit as students only or predomi- dent or applicant that treats persons nantly members of one sex, if such ac- differently on the basis of sex; tions have the effect of discriminating (2) Shall not discriminate against or on the basis of sex in violation of exclude any person on the basis of §§ 1253.300 through 1253.310. pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice Subpart D—Discrimination on the that so discriminates or excludes; Basis of Sex in Education Pro- (3) Subject to § 1253.235(d), shall treat grams or Activities Prohibited disabilities related to pregnancy, child- birth, termination of pregnancy, or re- § 1253.400 Education programs or ac- covery therefrom in the same manner tivities. and under the same policies as any (a) General. Except as provided else- other temporary disability or physical where in these Title IX regulations, no condition; and person shall, on the basis of sex, be ex- (4) Shall not make pre-admission in- cluded from participation in, be denied quiry as to the marital status of an ap- the benefits of, or be subjected to dis- plicant for admission, including wheth- crimination under any academic, ex- er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ tracurricular, research, occupational A recipient may make pre-admission training, or other education program inquiry as to the sex of an applicant for admission, but only if such inquiry is or activity operated by a recipient that made equally of such applicants of both receives Federal financial assistance. sexes and if the results of such inquiry Sections 1253.400 through 1253.455 do are not used in connection with dis- not apply to actions of a recipient in crimination prohibited by these Title connection with admission of its stu- IX regulations. dents to an education program or ac- tivity of a recipient to which §§ 1253.300 § 1253.305 Preference in admission. through 1253.310 do not apply, or an en- A recipient to which §§ 1253.300 tity, not a recipient, to which §§ 1253.300 through 1253.310 apply shall not give through 1253.310 would not apply if the preference to applicants for admission, entity were a recipient. on the basis of attendance at any edu- (b) Specific prohibitions. Except as pro- cational institution or other school or vided in §§ 1253.400 through 1253.455, in entity that admits as students only or providing any aid, benefit, or service to predominantly members of one sex, if a student, a recipient shall not, on the the giving of such preference has the basis of sex: effect of discriminating on the basis of (1) Treat one person differently from sex in violation of §§ 1253.300 through another in determining whether such 1253.310. person satisfies any requirement or § 1253.310 Recruitment. condition for the provision of such aid, benefit, or service; (a) Nondiscriminatory recruitment. A (2) Provide different aid, benefits, or recipient to which §§ 1253.300 through services or provide aid, benefits, or 1253.310 apply shall not discriminate on the basis of sex in the recruitment and services in a different manner; admission of students. A recipient may (3) Deny any person any such aid, be required to undertake additional re- benefit, or service; cruitment efforts for one sex as reme- (4) Subject any person to separate or dial action pursuant to § 1253.110(a), and different rules of behavior, sanctions, may choose to undertake such efforts or other treatment; as affirmative action pursuant to (5) Apply any rule concerning the § 1253.110(b). domicile or residence of a student or (b) Recruitment at certain institutions. applicant, including eligibility for in- A recipient to which §§ 1253.300 through state fees and tuition; 1253.310 apply shall not recruit pri-
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(6) Aid or perpetuate discrimination (ii) Shall not facilitate, require, per- against any person by providing sig- mit, or consider such participation if nificant assistance to any agency, or- such action occurs. ganization, or person that discrimi- nates on the basis of sex in providing § 1253.405 Housing. any aid, benefit, or service to students (a) Generally. A recipient shall not, or employees; on the basis of sex, apply different (7) Otherwise limit any person in the rules or regulations, impose different enjoyment of any right, privilege, ad- fees or requirements, or offer different vantage, or opportunity. services or benefits related to housing, (c) Assistance administered by a recipi- except as provided in this section (in- ent educational institution to study at a cluding housing provided only to mar- foreign institution. A recipient edu- ried students). cational institution may administer or (b) Housing provided by recipient. (1) A assist in the administration of scholar- recipient may provide separate housing ships, fellowships, or other awards es- on the basis of sex. tablished by foreign or domestic wills, (2) Housing provided by a recipient to trusts, or similar legal instruments, or students of one sex, when compared to by acts of foreign governments and re- that provided to students of the other stricted to members of one sex, that sex, shall be as a whole: are designed to provide opportunities (i) Proportionate in quantity to the to study abroad, and that are awarded number of students of that sex apply- to students who are already matricu- ing for such housing; and lating at or who are graduates of the (ii) Comparable in quality and cost to recipient institution; Provided, that a the student. recipient educational institution that 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 (d) Aids, benefits or services not pro- available to any of its students, shall vided by recipient. (1) This paragraph (d) take such reasonable action as may be applies to any recipient that requires necessary to assure itself that such participation by any applicant, stu- housing as is provided to students of dent, or employee in any education one sex, when compared to that pro- program or activity not operated whol- vided to students of the other sex, is as ly by such recipient, or that facilitates, a whole: permits, or considers such participa- (A) Proportionate in quantity; and tion as part of or equivalent to an edu- (B) Comparable in quality and cost to cation program or activity operated by the student. such recipient, including participation (ii) A recipient may render such as- in educational consortia and coopera- sistance to any agency, organization, tive employment and student-teaching or person that provides all or part of assignments. such housing to students of only one (2) Such recipient: sex. (i) Shall develop and implement a procedure designed to assure itself that § 1253.410 Comparable facilities. the operator or sponsor of such other A recipient may provide separate toi- education program or activity takes no let, locker room, and shower facilities action affecting any applicant, student, on the basis of sex, but such facilities or employee of such recipient that provided for students of one sex shall these Title IX regulations would pro- be comparable to such facilities pro- hibit such recipient from taking; and vided for students of the other sex.
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§ 1253.415 Access to course offerings. of sex, exclude any person from admis- (a) A recipient shall not provide any sion to: course or otherwise carry out any of its (a) Any institution of vocational edu- education program or activity sepa- cation operated by such recipient; or rately on the basis of sex, or require or (b) Any other school or educational refuse participation therein by any of unit operated by such recipient, unless its students on such basis, including such recipient otherwise makes avail- health, physical education, industrial, able to such person, pursuant to the business, vocational, technical, home same policies and criteria of admission, economics, music, and adult education courses, services, and facilities com- courses. parable to each course, service, and fa- (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 § 1253.425 Counseling and use of ap- expeditiously as possible but in no praisal and counseling materials. event later than one year from Sep- tember 29, 2000. With respect to phys- (a) Counseling. A recipient shall not ical education classes and activities at discriminate against any person on the the secondary and post-secondary lev- basis of sex in the counseling or guid- els, the recipient shall comply fully ance of students or applicants for ad- with this section as expeditiously as mission. possible but in no event later than (b) Use of appraisal and counseling ma- three years from September 29, 2000. terials. A recipient that uses testing or (2) This section does not prohibit other materials for appraising or coun- grouping of students in physical edu- seling students shall not use different cation classes and activities by ability materials for students on the basis of as assessed by objective standards of their sex or use materials that permit individual performance developed and or require different treatment of stu- applied without regard to sex. dents on such basis unless such dif- (3) This section does not prohibit sep- ferent materials cover the same occu- aration of students by sex within phys- pations and interest areas and the use ical education classes or activities dur- of such different materials is shown to ing participation in wrestling, boxing, be essential to eliminate sex bias. Re- rugby, ice hockey, football, basketball, cipients shall develop and use internal and other sports the purpose or major activity of which involves bodily con- procedures for ensuring that such ma- tact. terials do not discriminate on the basis (4) Where use of a single standard of of sex. Where the use of a counseling measuring skill or progress in a phys- test or other instrument results in a ical education class has an adverse ef- substantially disproportionate number fect on members of one sex, the recipi- of members of one sex in any particular ent shall use appropriate standards course of study or classification, the that do not have such effect. recipient shall take such action as is (5) Portions of classes in elementary necessary to assure itself that such dis- and secondary schools, or portions of proportion is not the result of discrimi- education programs or activities, that nation in the instrument or its applica- deal exclusively with human sexuality tion. may be conducted in separate sessions (c) Disproportion in classes. Where a for boys and girls. recipient finds that a particular class (6) Recipients may make require- contains a substantially dispropor- ments based on vocal range or quality tionate number of individuals of one that may result in a chorus or choruses sex, the recipient shall take such ac- of one or predominantly one sex. tion as is necessary to assure itself § 1253.420 Access to schools operated that such disproportion is not the re- by LEAs. sult of discrimination on the basis of A recipient that is a local edu- sex in counseling or appraisal mate- cational agency shall not, on the basis rials or by counselors.
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§ 1253.430 Financial assistance. fellowship, or other form of financial (a) General. Except as provided in assistance designated for a member of paragraphs (b) and (c) of this section, that student’s sex. in providing financial assistance to any (c) Athletic scholarships. (1) To the ex- of its students, a recipient shall not: tent that a recipient awards athletic (1) On the basis of sex, provide dif- scholarships or grants-in-aid, it must ferent amounts or types of such assist- provide reasonable opportunities for ance, limit eligibility for such assist- such awards for members of each sex in ance that is of any particular type or proportion to the number of students source, apply different criteria, or oth- of each sex participating in inter- erwise discriminate; scholastic or intercollegiate athletics. (2) Through solicitation, listing, ap- (2) A recipient may provide separate proval, provision of facilities, or other athletic scholarships or grants-in-aid 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 § 1253.450. criminates on the basis of sex; or (3) Apply any rule or assist in appli- § 1253.435 Employment assistance to cation of any rule concerning eligi- students. bility for such assistance that treats persons of one sex differently from per- (a) Assistance by recipient in making sons of the other sex with regard to available outside employment. A recipi- marital or parental status. ent that assists any agency, organiza- (b) Financial aid established by certain tion, or person in making employment legal instruments. (1) A recipient may available to any of its students: administer or assist in the administra- (1) Shall assure itself that such em- tion of scholarships, fellowships, or ployment is made available without other forms of financial assistance es- discrimination on the basis of sex; and tablished pursuant to domestic or for- (2) Shall not render such services to eign wills, trusts, bequests, or similar any agency, organization, or person legal instruments or by acts of a for- that discriminates on the basis of sex eign government that require that in its employment practices. awards be made to members of a par- (b) Employment of students by recipi- ticular sex specified therein; Provided, ents. A recipient that employs any of that the overall effect of the award of its students shall not do so in a manner such sex-restricted scholarships, fel- that violates §§ 1253.500 through lowships, and other forms of financial 1253.550. assistance does not discriminate on the basis of sex. § 1253.440 Health and insurance bene- (2) To ensure nondiscriminatory fits and services. awards of assistance as required in paragraph (b)(1) of this section, recipi- Subject to § 1253.235(d), in providing a ents shall develop and use procedures medical, hospital, accident, or life in- under which: surance benefit, service, policy, or plan (i) Students are selected for award of to any of its students, a recipient shall financial assistance on the basis of not discriminate on the basis of sex, or nondiscriminatory criteria and not on provide such benefit, service, policy, or the basis of availability of funds re- plan in a manner that would violate stricted to members of a particular sex; §§ 1253.500 through 1253.550 if it were (ii) An appropriate sex-restricted provided to employees of the recipient. scholarship, fellowship, or other form This section shall not prohibit a recipi- of financial assistance is allocated to ent from providing any benefit or serv- each student selected under paragraph ice that may be used by a different pro- (b)(2)(i) of this section; and portion of students of one sex than of (iii) No student is denied the award the other, including family planning for which he or she was selected under services. However, any recipient that paragraph (b)(2)(i) of this section be- provides full coverage health service cause of the absence of a scholarship, shall provide gynecological care.
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§ 1253.445 Marital or parental status. shall be reinstated to the status that (a) Status generally. A recipient shall she held when the leave began. not apply any rule concerning a stu- § 1253.450 Athletics. dent’s actual or potential parental, family, or marital status that treats (a) General. No person shall, on the students differently on the basis of sex. basis of sex, be excluded from partici- (b) Pregnancy and related conditions. pation in, be denied the benefits of, be (1) A recipient shall not discriminate treated differently from another per- against any student, or exclude any son, or otherwise be discriminated student from its education program or against in any interscholastic, inter- activity, including any class or extra- collegiate, club, or intramural ath- curricular activity, on the basis of such letics offered by a recipient, and no re- student’s pregnancy, childbirth, false cipient shall provide any such athletics pregnancy, termination of pregnancy, separately on such basis. 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 regula- tion, 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 § 1253.235(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;
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(vii) Provision of locker rooms, prac- (2) A recipient shall make all em- tice, and competitive facilities; ployment decisions in any education (viii) Provision of medical and train- program or activity operated by such ing facilities and services; recipient in a nondiscriminatory man- (ix) Provision of housing and dining ner and shall not limit, segregate, or facilities and services; classify applicants or employees in any (x) Publicity. way that could adversely affect any ap- (2) For purposes of paragraph (c)(1) of plicant’s or employee’s employment this section, unequal aggregate expend- opportunities or status because of sex. itures for members of each sex or un- (3) A recipient shall not enter into equal expenditures for male and female any contractual or other relationship teams if a recipient operates or spon- which directly or indirectly has the ef- sors separate teams will not constitute fect of subjecting employees or stu- noncompliance with this section, but dents to discrimination prohibited by the designated agency official may §§ 1253.500 through 1253.550, including consider the failure to provide nec- relationships with employment and re- essary funds for teams for one sex in ferral 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 §§ 1253.500 through 1253.550 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, § 1253.455 Textbooks and curricular consideration for and award of tenure, material. demotion, transfer, layoff, termi- 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 bar- gaining agreement; § 1253.500 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,
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professional meetings, conferences, and performance of which requires equal other related activities, selection for skill, effort, and responsibility, and tuition assistance, selection for that are performed under similar work- sabbaticals and leaves of absence to ing conditions. pursue training; (9) Employer-sponsored activities, in- §1253.520 Job classification and struc- cluding social or recreational pro- ture. grams; and A recipient shall not: (10) Any other term, condition, or (a) Classify a job as being for males privilege of employment. or for females; (b) Maintain or establish separate § 1253.505 Employment criteria. lines of progression, seniority lists, ca- A recipient shall not administer or reer ladders, or tenure systems based operate any test or other criterion for on sex; or 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 §1253.550. disproportionately adverse effect, are shown to be unavailable. §1253.525 Fringe benefits. §1253.510 Recruitment. (a) ‘‘Fringe benefits’’ defined. For pur- poses of these Title IX regulations, (a) Nondiscriminatory recruitment and means: Any medical, hos- hiring. A recipient shall not discrimi- fringe benefits nate on the basis of sex in the recruit- pital, accident, life insurance, or re- ment and hiring of employees. Where a tirement benefit, service, policy or recipient has been found to be pres- plan, any profit-sharing or bonus plan, ently 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 §1253.515. 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 §§1253.500 through equal contributions to the plan by such 1253.550. recipient for members of each sex; or (3) Administer, operate, offer, or par- §1253.515 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 §1253.530 Marital or parental status. to employees of one sex at a rate less (a) General. A recipient shall not than that paid to employees of the op- apply any policy or take any employ- posite sex for equal work on jobs the ment action:
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(1) Concerning the potential marital, ployment of members of one sex that parental, or family status of an em- are not imposed upon members of the ployee or applicant for employment other sex. that treats persons differently on the (b) Benefits. A recipient that provides basis of sex; or any compensation, service, or benefit (2) Which is based upon whether an to members of one sex pursuant to a employee or applicant for employment State or local law or other requirement is the head of household or principal shall provide the same compensation, wage earner in such employee’s or ap- service, or benefit to members of the plicant’s family unit. other sex. (b) Pregnancy. A recipient shall not discriminate against or exclude from §1253.540 Advertising. employment any employee or applicant for employment on the basis of preg- A recipient shall not in any adver- nancy, childbirth, false pregnancy, ter- tising related to employment indicate mination of pregnancy, or recovery preference, limitation, specification, or therefrom. discrimination based on sex unless sex (c) Pregnancy as a temporary disability. is a bona fide occupational qualifica- Subject to §1253.235(d), a recipient shall tion for the particular job in question. treat pregnancy, childbirth, false preg- nancy, termination of pregnancy, re- §1253.545 Pre-employment inquiries. covery therefrom, and any temporary (a) Marital status. A recipient shall disability resulting therefrom as any not make pre-employment inquiry as other temporary disability for all job- to the marital status of an applicant related purposes, including commence- for employment, including whether ment, duration, and extensions of such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ leave, payment of disability income, (b) Sex. A recipient may make pre- accrual of seniority and any other ben- employment inquiry as to the sex of an efit or service, and reinstatement, and applicant for employment, but only if under any fringe benefit offered to em- such inquiry is made equally of such ployees by virtue of employment. applicants of both sexes and if the re- (d) Pregnancy leave. In the case of a sults of such inquiry are not used in recipient that does not maintain a connection with discrimination prohib- leave policy for its employees, or in the ited by these Title IX regulations. case of an employee with insufficient leave or accrued employment time to §1253.550 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 pregnancy, and recovery therefrom as a wise prohibited by §§1253.500 through justification for a leave of absence 1253.550 provided it is shown that sex is without pay for a reasonable period of a bona fide occupational qualification time, at the conclusion of which the for that action, such that consider- employee shall be reinstated to the sta- ation of sex with regard to such action tus that she held when the leave began is essential to successful operation of or to a comparable position, without the employment function concerned. A decrease in rate of compensation or recipient shall not take action pursu- loss of promotional opportunities, or ant to this section that is based upon any other right or privilege of employ- alleged comparative employment char- ment. acteristics or stereotyped characteriza- tions of one or the other sex, or upon §1253.535 Effect of state or local law or preference based on sex of the recipi- other requirements. ent, employees, students, or other per- (a) Prohibitory requirements. The obli- sons, but nothing contained in this sec- gation to comply with §§1253.500 tion shall prevent a recipient from con- through 1253.550 is not obviated or alle- sidering an employee’s sex in relation viated by the existence of any State or to employment in a locker room or toi- local law or other requirement that im- let facility used only by members of poses prohibitions or limits upon em- one sex.
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Subpart F—Procedures 1259.402 Basic criteria and application pro- cedures. §1253.600 Notice of covered programs. 1259.403 Limitations. 1259.404 Suspension or termination of des- Within 60 days of September 29, 2000, ignation. each Federal agency that awards Fed- eral financial assistance shall publish Subpart 5—Space Grant Fellowships in the FEDERAL REGISTER a notice of the programs covered by these Title IX 1259.500 Description. 1259.501 Responsibilities. regulations. Each such Federal agency 1259.502 Application procedures. shall periodically republish the notice 1259.503 Limitations. of covered programs to reflect changes in covered programs. Copies of this no- Subpart 6—Space Grant Review Panel tice also shall be made available upon request to the Federal agency’s office 1259.600 Panel description. that enforces Title IX. 1259.601 Establishment and composition. 1259.602 Conflict of interest. § 1253.605 Enforcement procedures. 1259.603 Responsibilities. The investigative, compliance, and AUTHORITY: Pub. L. 100–147, 101 Stat. 869– enforcement procedural provisions of 875, 42 U.S.C. 2486; 42 U.S.C. 2452. Title VI of the Civil Rights Act of 1964 SOURCE: 54 FR 19880, May 9, 1989, unless (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby otherwise noted. adopted and applied to these Title IX regulations. These procedures may be Subpart 1—Basic Policy found at 14 CFR 1250.105 through 1250.110. § 1259.100 Scope of part. [65 FR 52877, Aug. 30, 2000] (a) This part 1259 establishes the poli- cies, responsibilities and procedures PART 1259—NATIONAL SPACE relative to the National Space Grant GRANT COLLEGE AND FELLOW- College and Fellowship Program estab- lished by Title II of the National Aero- SHIP PROGRAM nautics and Space Administration Au- thorization Act of 1988 (Pub. L. 100–147, Subpart 1—Basic Policy Oct. 30, 1987, 101 Stat. 869–875, 42 U.S.C. Sec. 2486). This statute authorizes the Ad- 1259.100 Scope of part. ministrator of the National Aero- 1259.101 Definitions. nautics and Space Administration 1259.102 General policy. (NASA), in order to carry out the pur- 1259.103 Special authorities—gift accept- poses of the National Space Grant Col- ance and other Federal funding. lege and Fellowship Act (the Act), to accept conditional or unconditional Subpart 2—Space Grant Program and gifts and donations, to accept and use Project Awards funds from other Federal departments, 1259.200 Description. agencies and instrumentalities, to 1259.201 Types of Space Grant program and make awards with respect to such project awards—regular and special. needs or problems and to designate 1259.202 Application procedures. Space Grant colleges. It further directs 1259.203 Limitations. the Administrator to establish a grad- uate fellowship program to provide Subpart 3—National Needs Grants educational assistance to qualified in- 1259.300 Description. dividuals in fields related to space, and 1259.301 Identification of national needs. to establish an independent committee 1259.302 Application procedures. known as the Space Grant Review 1259.303 Limitations. Panel to review and advise the Admin- istrator with respect to Space Grant Subpart 4—Space Grant College and programs. Consortium Designation (b) The regulations of this part do 1259.400 Description. not apply to awards made by NASA 1259.401 Responsibilities. under any other authority.
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§ 1259.101 Definitions. by the Administrator or designee pur- For the purposes of this part, the fol- suant to section 208 of the Act. lowing definitions shall apply: (h) Space Grant regional consortium (a) Field related to space means any means any association or other alli- academic discipline or field of study ance which is designated as such by the (including the physical, natural and bi- Administrator or designee pursuant to ological sciences, and engineering, section 208 of the Act. space technology, education, econom- (i) Space Grant program means any ics, sociology, communications, plan- program which: ning, law, international affairs and (1) Is administered by any Space public administration) which is con- Grant college, Space Grant regional cerned with or likely to improve the consortium, institution of higher edu- understanding, assessment, develop- cation, institute, laboratory or State ment and utilization of space. or local agency; and (b) Institution of higher education (2) Includes two or more projects in- means any college or university in any volving education and one or more of State which: the following activities in the fields re- (1) Admits as regular students only lated to space: individuals who have a certificate of (i) Research; graduation or equivalent from a sec- (ii) Training; or ondary school; (iii) Advisory services. (2) Is legally authorized within such (j) Space Grant program award means State to provide a program of edu- any award contemplated under section cation beyond secondary education; 206(a) of the Act. (3) Provides an educational program (k) Special Space Grant program award for which a bachelor’s degree or other means any award extended under sec- higher degree is awarded; tion 206(b) of the Act. (4) Is a public or other nonprofit in- (l) Specific national need grant means stitution; and any award extended under section 207 (5) Is accredited by a nationally rec- of the Act. ognized accrediting agency or associa- (m) State means any State of the tion. United States, the District of Colum- (c) National of the United States means bia, the Commonwealth of Puerto Rico, a citizen of the United States or a na- the Virgin Islands, Guam, American tive resident of a possession of the Samoa, the Commonwealth of the United States. It does not refer to or Northern Mariana Islands and any include a citizen of another country other territory or possession of the who has applied for United States citi- United States. zenship. (n) State Space Grant cooperating insti- (d) Panel means the Space Grant Re- tution means any institution of higher view Panel established pursuant to sec- education in a State which does not tion 210 of the Act. have a designated Space Grant college (e) Person means any individual, pub- that is named by the Administrator or lic or private corporation, partnership designee to provide selected Space or other association or entity (includ- Grant program functions within that ing any Space Grant college, Space State. Grant consortium, institution of high- er education, institute or laboratory), § 1259.102 General policy. or any State, political subdivision (a) In accordance with subsections thereof, or agency or officer of a State 103(a)(2) and (3) of the National Aero- or political subdivision thereof. nautics and Space Act of 1958, as (f) Space means aeronautical and space amended, (42 U.S.C. 2457(a)(3)), it is activities which has the meaning given NASA’s policy, through various edu- to such term in section 103(1) of the Na- cational programs, to provide direct tional Aeronautics and Space Act of support for and encouragement to 1958, as amended (42 U.S.C. 2452). teachers, students and prospective stu- (g) Space Grant college means any dents in fields related to space. public or private institution of higher (b) In compliance with the National education which is designated as such Space Grant College and Fellowship
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Act (42 U.S.C. 2486), it shall be NASA’s § 1259.103 Special authorities—gift ac- purpose to: ceptance and other Federal fund- (1) Increase the understanding, as- ing. sessment, development and utilization (a) Acceptance of gifts: of space resources by promoting a (1) In order to carry out the provi- strong educational base, responsive re- sions of the Act, the Administrator is search and training activities and authorized to accept conditional or un- broad and prompt dissemination of conditional gifts or donations of serv- knowledge and techniques; ices, money or property, real, personal (2) Utilize the abilities and talents of or mixed, tangible or intangible. This the universities of the Nation to sup- authority is delegated to the Director, port and contribute to the exploration Educational Affairs Division. and development of the resources and (2) The Administrator or designee opportunities afforded by the space en- may decline any gift or donation that vironment; the Administrator determines is not in (3) Encourage and support the exist- accord with the purposes of the pro- ence of interdisciplinary and multi- gram. Also, conditional gifts or dona- disciplinary programs of space re- tions that are not in compliance with search, to engage in activities of train- the Act or the implementing regula- ing (including teacher education), re- tions shall be declined. NASA may use search and public service and to have a reasonable amount from a gift or do- cooperative programs with industry; nation to cover any administrative (4) Encourage and support the exist- costs associated with such gift or dona- ence of consortia, composed of univer- tion. sity and industry members, to advance (b) Acceptance and use of funds from the exploration and development of other Federal agencies: space resources in cases in which na- (1) To carry out the provisions of the tional objectives can be better fulfilled Act, the Administrator is authorized to than through the programs of single accept and use funds from other Fed- universities; eral departments, agencies and instru- (5) Encourage and support Federal mentalities to pay for awards under funding for graduate fellowships in this program. This authority is dele- fields related to space; gated to the Director, Educational Af- (6) Support activities in colleges and fairs Division. universities generally for the purpose (2) The Administrator or designee of creating and operating a network of may decline any such funds when the institutional programs that will en- Administrator determines acceptance hance achievements resulting from ef- would not be in accord with the pur- forts under this Act; and poses of the program. NASA may use a (7) Encourage cooperation and co- reasonable amount from transferred ordination among Federal agencies and Federal funds to cover any administra- Federal programs concerned with space tive costs associated with such trans- issues. fer. (c) It shall be NASA’s policy to des- ignate Space Grant colleges, State Space Grant cooperating institutions Subpart 2—Space Grant Program and Space Grant regional consortia and and Project Awards award fellowships, grants, contracts and other transactions competitively § 1259.200 Description. in a merit-based review process. Awards are authorized to establish (d) It shall be NASA’s policy to des- any Space Grant and/or fellowship pro- ignate and make awards without dis- gram or project if such program or criminating on the basis of sex, race, project will further the purposes of the color, religion, national origin or hand- Act. icap.
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§ 1259.201 Types of Space Grant pro- section as long as prior written ap- gram and project awards—regular proval is obtained from the Adminis- and special. trator or designee. (a) A regular Space Grant program or project award shall: Subpart 3—National Needs Grants (1) Be funded by NASA up to 66 per- cent of the total cost of the Space § 1259.300 Description. Grant award and/or fellowship program National needs awards may be award- involved; or ed by the Administrator or designee to (2) Be funded up to 100 percent of its meet such needs or problems relating cost if funded by another Federal enti- to aerospace identified by the Space ty. Grant Review Panel, by NASA officials (b) A special Space Grant program or or by any person. Such awards may be project award may be funded up to 100 up to 100 percent of the total cost of percent of the total cost of the special the program or project. project if the Administrator or des- ignee, the Director, Educational Af- § 1259.301 Identification of national fairs Division, finds that: needs. (1) No reasonable means is available through which the applicant can meet National needs shall be identified by the matching requirements for a reg- the Administrator who shall consider ular Space Grant award under para- specific national needs and problems graph (a) of this section; relating to space proposed by the Space (2) The probable benefit of such Grant Review Panel, any NASA official project outweighs the public interest in or any person. such matching requirement; and (3) The same or equivalent benefit § 1259.302 Application procedures. cannot be obtained through the award (a) The Administrator or designee of a regular Space Grant program or has the authority to make awards to project award under paragraph (a) of meet identified national needs. this section or the award of a specific (b) The Director, Educational Affairs national need grant under section 207 Division, shall establish a competitive, of the Act. merit-based review process to examine unsolicited national needs proposals. § 1259.202 Application procedures. (a) The opportunity to apply shall be § 1259.303 Limitations. announced by the Director, Edu- The same limitations shall apply as cational Affairs Division. are stated in § 1259.203. (b) The application procedures and evaluation guidelines for awards under this section will be included in the an- Subpart 4—Space Grant College nouncements of such programs. and Consortium Designation (c) The applications will be reviewed by a peer review merit selection panel § 1259.400 Description. appointed by the Director, Educational (a) The Administrator may designate Affairs Division. Space Grant colleges, Space Grant col- lege consortia and Space Grant re- § 1259.203 Limitations. gional consortia in order to establish Public Law 100–147, Section 206(d)(2) Federal/university partnerships to pro- and (3), states that: mote a strong educational base in the (a) Funds for awards made under this space and aeronautical sciences. These section may not be used to: designated colleges and consortia will (1) Purchase land; provide leadership for a network of (2) Purchase, construct, preserve or American colleges and universities, in- repair any building; or dustry and State and local govern- (3) Purchase or construct any launch ments in space-related fields. The Ad- facility or launch vehicle. ministrator hereby delegates this au- (b) Funds may be used to lease any of thority to the Director, Educational the items listed in paragraph (a) of this Affairs Division.
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(b) Designation of Space Grant col- sory services, in any field related to leges, Space Grant college consortia space; and Space Grant regional consortia (2) Will encourage and follow a re- shall be for 5 years. Designation of gional approach to solving problems or Space Grant colleges and consortia meeting needs relating to space, in co- may be continued based on a merit re- operation with other institutions of view at the beginning of the fifth year. higher education, Space Grant program (c) Each designated Space Grant col- grantees and other persons in the re- lege or consortium will receive: gion. (1) A Space Grant award that re- (c) The opportunity to apply for des- quires a 100 percent match; and ignation shall be announced by the Di- (2) Funds for fellowships. rector, Educational Affairs Division. (d) Each Space Grant college or con- The application procedures and evalua- sortium will be funded annually. tion guidelines for designation shall be included in the designation announce- § 1259.401 Responsibilities. ment. (d) Designation will be decided by a Each designated Space Grant college competitive merit review of the pro- or consortium shall: gram proposal measured against the (a) Designate a Space Grant Program purposes of the Act and including, but Director; not limited to, proposed linkages with (b) Establish a Space Grant Office; other colleges and universities (par- (c) Administer a fellowship program; ticularly institutions with significant (d) Develop and implement programs enrollments of under-represented mi- of public service, interdisciplinary nority groups), public service and col- space-related programs, advisory ac- laboration with space-related industry. tivities and cooperation with industry, research laboratories, State and local § 1259.403 Limitations. governments and other colleges and The same limitations shall apply as universities, particularly institutions are stated in § 1259.203. in their State and/or region with sig- nificantly large enrollments of racial § 1259.404 Suspension or termination minorities who are under-represented of designation. in science and technology; and The Administrator or designee, the (e) Provide nonfederal matching Director, Educational Affairs Division, funds (exclusive of in-kind contribu- may, for cause, and after an oppor- tions) for the Space Grant program tunity for a hearing before an Adminis- equal to that provided by NASA. trative Judge appointed by the Deputy Administrator, suspend or terminate § 1259.402 Basic criteria and applica- the Space Grant designation of any in- tion procedures. stitution or consortium. (a) Any institution of higher edu- cation may be designated a Space Subpart 5—Space Grant Grant college if the Administrator or Fellowships designee finds that it has a balanced program of research, education, train- § 1259.500 Description. ing and advisory services in fields re- The Space Grant fellowship program lated to space, as further defined in the will provide educational and training program announcement. assistance to qualified individuals at (b) Any association or other alliance the graduate level in fields related to of two or more persons may be des- space. Awards will be made to institu- ignated a Space Grant regional consor- tions of higher education for fellow- tium, if the Administrator or designee ships. The student recipients shall be finds that such association or alliance: known as NASA Space Grant Fellows. (1) Is established for the purpose of sharing expertise, research, edu- § 1259.501 Responsibilities. cational or training facilities and other (a) All institutions which receive capabilities in order to facilitate re- Space Grant fellowships will be ex- search, education, training and advi- pected to use the awards to increase
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the pool of graduate students in fields be composed of ten voting members related to space. who are not current NASA employees. (b) The overall fellowship program (b) It shall include four from Federal shall be cognizant of institutional di- departments, agencies or entities that versity and geographical distribution. have an interest in space programs or science and education, and six non- § 1259.502 Application procedures. federal representatives. (a) All applicants for designation as (c) The nonfederal representatives Space Grant colleges and consortia shall include two persons who are di- must apply for Space Grant fellow- rectly involved with the Space Grant ships. program at a Space Grant college or (b) Applicants for Space Grant pro- consortium, one person involved with gram or project grants (under § 1259.200) the Space Grant program at a univer- and for national needs grants (under sity that is not a designated Space § 1259.300) may also apply for Space Grant college, a university president or Grant fellowships. chancellor, one representative of a (c) There will be a merit review selec- space-related industry and the last per- tion of Space Grant fellowship awards. son to be from whatever field the Ad- ministrator determines to be of great- § 1259.503 Limitations. est concern. (a) Fellowships shall be awarded only (d) The Panel members shall be ap- to Nationals of the United States. pointed by the Administrator or des- (b) Any students supported under this ignee. fellowship program shall not be funded (e) The relevant organizations and for more than 4 years unless the Direc- associations in aerospace and science tor, Educational Affairs Division, education fields will be asked to pro- makes an exception. vide three names for each position on the panel. The Administrator shall Subpart 6—Space Grant Review consider them, but not be limited to Panel them, in the selection process. (f) The Administrator or designee § 1259.600 Panel description. shall select a Chair and a Vice Chair. An independent committee, the The Vice Chair shall act as Chair in the Space Grant Review Panel, which is absence or incapacity of the Chair. not subject to the Federal Advisory (g) The Administrator or designee Committee Act, shall be established to may select NASA officials to serve as advise the Administrator with respect ex officio, nonvoting members of the to Space Grant program and project panel. awards, the Space Grant fellowship program and the designation and oper- § 1259.602 Conflict of interest. ation of Space Grant colleges and con- Any member of the Panel who has a sortia. A majority of the voting mem- personal or financial interest in an bers shall be individuals who, by reason issue before the Panel shall abstain of knowledge, experience, or training from voting on such issue. are especially qualified in one or more of the fields related to space. The other § 1259.603 Responsibilities. voting members shall be individuals who, by reason of knowledge, experi- (a) The Panel shall advise the Admin- ence or training, are especially quali- istrator and the Director, Educational fied in, or representative of, education, Affairs Division, with respect to: extension services, State government, (1) Applications or proposals for, and industry, economics, planning or any performance under, awards made pur- other activity related to the purposes suant to sections 206 and 207 of Title II of the Space Grant program. of the Act; (2) The Space Grant fellowship pro- § 1259.601 Establishment and composi- gram; tion. (3) The designation and operation of (a) The Panel, to be located at NASA Space Grant colleges and Space Grant Headquarters in Washington, DC, will regional consortia, and the operation
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of Space Grant and fellowship pro- 1260.25 Change in principal investigator or grams; scope. (4) The formulation and application 1260.26 Financial management. of the planning guidelines and prior- 1260.27 Equipment and other property. ities pursuant to section 205 (a) and 1260.28 Patent rights. (b)(1) of Title II of the Act; and 1260.29 [Reserved]. (5) Such other matters as the Admin- 1260.30 Rights in data. istrator refers to the Panel for review 1260.31 National security. and advice. 1260.32 Nondiscrimination. (b) The Panel shall meet biannually 1260.33 Subcontracts. and at any other time at the call of the 1260.34 Clean air and water. Chair or upon a request from a major- 1260.35 Investigative requirements. ity of the voting members or at the 1260.36 Travel and transportation. call of the Administrator. 1260.37 Safety. (c) The Panel may exercise such pow- 1260.38 Drug-free workplace. ers as are reasonably necessary in SPECIAL CONDITIONS order to carry out the duties enumer- ated in paragraph (a) of this section. 1260.50 Special conditions. (d) The Director, Educational Affairs 1260.51 Cooperative agreement special con- Division, shall appoint an Executive dition. Secretary who shall perform adminis- 1260.52 Multiple year grant or cooperative agreement. trative duties for the Panel. 1260.53 Incremental funding. (e) Federal members of the Panel will 1260.54 Cost sharing. have their agencies reimbursed by 1260.55 Reports substitution. NASA for any travel costs and per 1260.56 Withholding. diem expenses required to attend Panel 1260.57 New technology. meetings. 1260.58 Designation of new technology rep- (f) Nonfederal members of the Panel resentative and patent representative. will be reimbursed by NASA for travel 1260.59 Choice of law. costs and per diem expenses required to 1260.59A Invention reporting and rights. attend Panel meetings. 1260.60 Public information. 1260.61 Allocation of risk/liability. PART 1260—GRANTS AND 1260.62 Payment—to foreign organizations. COOPERATIVE AGREEMENTS 1260.63 Customs clearance and visas. 1260.64 Taxes. Subpart A—General 1260.65 Exchange of technical data and goods. Sec. 1260.66 Listing of reportable equipment and 1260.1 Authority. other property. 1260.2 Purpose. 1260.67 Equipment and other property under 1260.3 Definitions. grants with commercial firms. 1260.4 Applicability. 1260.68 Invoices and payments under grants 1260.5 Amendment. with commercial firms. 1260.6 Publication. 1260.7 Deviations. 1260.69 Electronic funds transfer payment methods. PRE-AWARD REQUIREMENTS POST-AWARD REQUIREMENTS 1260.10 Proposals. 1260.11 Evaluation and selection. 1260.70 Delegation of administration. 1260.12 Choice of award instrument. 1260.71 Supplements and renewals. 1260.13 Award procedures. 1260.72 Adherence to original budget esti- 1260.14 Limitations. mates. 1260.15 Format and numbering. 1260.73 Transfers, novations, and change of 1260.16 Distribution. name agreements. PROVISIONS 1260.74 Property use, disposition, and vest- ing of title. 1260.20 Provisions. 1260.75 Summary of report requirements. 1260.21 Compliance with OMB Circular A– 1260.76 Termination and enforcement. 110. 1260.22 Technical publications and reports. 1260.77 Closeout procedures. 1260.23 Extensions. APPENDIX TO SUBPART A TO PART 1260—LIST- 1260.24 Termination and enforcement. ING OF EXHIBITS
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Subpart B—Uniform Administrative Require- REPORTS AND RECORDS ments for Grants and Cooperative 1260.150 Purpose of reports and records. Agreements with Institutions of Higher 1260.151 Monitoring and reporting program Education, Hospitals, and Other Non- performance. Profit Organizations 1260.152 Financial reporting. 1260.153 Retention and access requirements GENERAL for records.
1260.101 Purpose. TERMINATION AND ENFORCEMENT 1260.102 Definitions. 1260.160 Purpose of termination and enforce- 1260.103 Effect on other issuances. ment. 1260.104 Deviations. 1260.161 Termination. 1260.105 Subawards. 1260.162 Enforcement.
PRE-AWARD REQUIREMENTS AFTER-THE-AWARD REQUIREMENTS 1260.110 Purpose. 1260.170 Purpose. 1260.111 Pre-award policies. 1260.171 Closeout procedures. 1260.112 Forms for applying for Federal as- 1260.172 Subsequent adjustments and con- sistance. tinuing responsibilities. 1260.113 Debarment and suspension. 1260.173 Collections of amounts due. 1260.114 Special award conditions. APPENDIX A TO SUBPART B OF PART 1260— 1260.115 Metric system of measurement. CONTRACT PROVISIONS 1260.116 Resource Conservation and Recov- ery Act (RCRA). AUTHORITY: 42 U.S.C. 2473(c)(1), Pub. L. 97– 1260.117 Certifications and representations. 258, 96 Stat. 1003 (31 U.S.C. 6301 et seq.), and OMB Circular A–110. POST-AWARD REQUIREMENTS SOURCE: 65 FR 62900, Oct. 19, 2000, unless otherwise noted. FINANCIAL AND PROGRAM MANAGEMENT 1260.120 Purpose of financial and program Subpart A—General management. 1260.121 Standards for financial manage- § 1260.1 Authority. ment systems. 1260.122 Payment. (a) The National Aeronautics and 1260.123 Cost sharing or matching. Space Administration (NASA) awards 1260.124 Program income. grants and cooperative agreements 1260.125 Revision of budget and program under the authority of 42 U.S.C. plans. 2473(c)(5), the National Aeronautics and 1260.126 Non-Federal audits. Space Act. This part 1260 is issued 1260.127 Allowable costs. under the authority of 42 U.S.C. 1260.128 Period of availability of funds. 2473(c)(1), Pub. L. 97–258, 96 Stat. 1003 PROPERTY STANDARDS (31 U.S.C. 6301 et seq.), and OMB Cir- cular A–110. 1260.130 Purpose of property standards. (b) The Office of Management and 1260.131 Insurance coverage. 1260.132 Real property. Budget (OMB) approved information 1260.133 Federally-owned and exempt prop- collection under the Paperwork Reduc- erty. tion Act and assigned OMB control 1260.134 Equipment. numbers 2700–0047, Property Manage- 1260.135 Supplies and other expendable prop- ment and Control; 2700–0048, Patents; erty. 2700–0049, Financial Management and 1260.136 Intangible property. Control; and 2700–0097, Central Con- 1260.137 Property trust relationship. tractor Registration.
PROCUREMENT STANDARDS § 1260.2 Purpose. 1260.140 Purpose of procurement standards. (a) This subpart A of the NASA Grant 1260.141 Recipient responsibilities. and Cooperative Agreement Handbook 1260.142 Codes of conduct. 1260.143 Competition. (also subpart A of 14 CFR part 1260), 1260.144 Procurement procedures. provides supplemental NASA policies 1260.145 Cost and price analysis. that clarify and amplify government- 1260.146 Procurement records. wide regulations for awarding and ad- 1260.147 Contract administration. ministering grants and cooperative 1260.148 Contract provisions. agreements with educational and non-
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profit organizations. The government- the Secretary of Education to meet the wide regulations that this subpart sup- requirements of 34 CFR 608.2 and listed plements are set forth in OMB Circular therein. A–110 ‘‘Uniform Administrative Re- Minority educational institution means quirements for Grants and Agreements an institution determined by the Sec- With Institutions of Higher Education, retary of Education to meet the re- Hospitals, and Other Non-Profit Orga- quirements of 34 CFR 637.4. nizations.’’ (NASA has adopted OMB Non-profit organization means an or- Circular A–110 as subpart B of this part ganization that qualifies for the ex- 1260.) emption from taxation under section (b) As required by the Office of Man- 501 of the Internal Revenue Code of agement and Budget (OMB), NASA has 1954, as amended, 26 U.S.C. 501. also adopted the standards set forth in Progress report means a concise state- OMB Circular No. A–133, Audits of ment of work accomplished during the States, Local Governments, and Non- report period (see §§ 1260.22 and Profit Organizations. 1260.75(b)(3)). Recipient acquired equipment means § 1260.3 Definitions. equipment purchased or fabricated (a) The following definitions are a with grant funds by a recipient for the supplement to the subpart B defini- performance of work under its grant. tions set forth at § 1260.102. Additional Small business concern means a con- definitions applicable to specific cat- cern, including its affiliates, which is egories of grants and cooperative independently owned and operated, not agreements are set forth at 14 CFR dominant in the field of operation in 1273.3 and 14 CFR 1274.102. which it is bidding, and qualifies as a (b) Throughout subpart A to this part small business under the criteria and 1260, the term ‘‘grant’’ includes ‘‘coop- size standards in 13 CFR part 121. erative agreement’’ unless otherwise Small disadvantaged business concern indicated. means a small business concern owned Administrative grant officer means a and controlled by individuals who are Federal employee delegated responsi- both socially and economically dis- bility for grant administration; e.g., a advantaged and meets the criteria set NASA grant officer who has retained forth at 13 CFR part 24. grant administration responsibilities, Summary of research means a docu- or an Office of Naval Research (ONR) ment summarizing the results of the grant officer delegated grant adminis- entire project, which includes bibliog- tration by a NASA grant officer. raphies, abstracts, and lists of other Amendment means any document used media in which the research was dis- to effect modifications to grants and cussed. cooperative agreements. Amendments may be issued unilaterally at the dis- Women-owned small business concern cretion of the grant officer. means a small business concern that is Commercial firm means any corpora- at least 51 percent owned by women tion, trust or other organization which who are U.S. citizens and who also con- is organized primarily for profit. trol and operate the business (15 U.S.C. Effective date means the date work 637(d)). can begin, which could be earlier or § 1260.4 Applicability. later than the date of signature on a basic award or modification. Expendi- (a) Subparts A and B of this part 1260 tures made prior to award of a grant establish policies and procedures for are incurred at the recipient’s risk. grants and cooperative agreements Expiration date means the date of awarded by NASA to institutions of completion specified in the grant, after higher education, hospitals, and other which expenditures may not be charged non-profit organizations. against the grant except to satisfy ob- (b) Subject to the special consider- ligations to pay allowable costs com- ations in this paragraph, subparts A mitted on or before that date. and B of this part 1260 are also applica- Historically Black Colleges and Univer- ble to NASA grants and cooperative sities means institutions determined by agreements awarded to commercial
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firms which do not involve cost shar- provision at § 1260.26, Financial Man- ing. (This does not prohibit voluntary agement. cost sharing.) When the commercial (6) Payments will be made to com- firm is expected to receive substantial mercial firms via electronic funds compensating benefits for performance transfer. The special condition at of the work, resource contributions are § 1260.69, Electronic Funds Transfer required for the award of a grant or co- Payment Method, shall be incorporated operative agreement. For policies on into all grants with commercial firms. cooperative agreements with commer- (7) Delegation of grant administra- cial organizations requiring resource tion functions consistent with the poli- contributions by the Recipient, see 14 cies set forth at § 1260.70 (i.e., property CFR part 1274. administration and closeout are to be (1) The allowability of costs incurred delegated) will be made to the cog- by commercial firms is determined in nizant field office of the Defense Con- accordance with the provisions of the tract Management Agency instead of Federal Acquisition Regulation (FAR) to the Office of Naval Research. Dele- at 48 CFR part 31. gations will be made using NASA Form (2) NASA does not allow for payment 1674, Letter of Delegation, for the Ad- of profit or fee to commercial firms ministration of Grants and Cooperative under grant awards. Agreements (Exhibit F to subpart A of (3) When applying the policies set this part 1260, available at the address forth under § 1260.74, the grant officer given in Exhibit F). Cognizant offices shall vest title to any equipment pur- for performing administration under chased under the grant with the Gov- individual grants are set forth in the ernment. The special condition at ‘‘DoD Directory of Contract Adminis- § 1260.67, Equipment and Other Prop- tration Services Components,’’ which erty Under Grants With Commercial is available on the internet at: http:// Firms, shall be incorporated into all www.dcmc.hq.dla.mil/casbook/ grants with commercial firms in place casbook.htm of the provision at § 1260.27, Equipment and Other Property. § 1260.5 Amendment. (4) Due to differing NASA patent This part 1260 will be amended by policies applicable to large businesses, publication of changes in the FEDERAL special conditions at § 1260.57, New REGISTER. Changes will be issued as Technology, and § 1260.58, Designation Grant Notices and incorporated into of New Technology Representative and the official version of the handbook lo- Patent Representative, shall be incor- cated at the internet web site. porated into all grants with commer- cial firms other than those with small § 1260.6 Publication. businesses, in place of the provision at § 1260.28, Patent Rights. Grants with The official site for accessing the small businesses should retain the NASA Grant and Cooperative Agree- § 1260.28 provision. ment Handbook, including current (5) Payments under grants with com- Grant Notices, is on the internet at: mercial firms will be made based on in- http://ec.msfc.nasa.gov/hq/grcover.htm curred costs. NASA Form 272 is not re- § 1260.7 Deviations. quired. Commercial firms will be re- quired to submit invoices on a no more (a) A deviation is required for any of than quarterly basis. Payments to be the following: made on a more than quarterly basis (1) When a prescribed provision (but require the written approval of the not a special condition) set forth ver- grant officer. The center finance office batim in this part 1260 is modified or should also be informed when pay- omitted. ments are to be made on other than a (2) When a provision is set forth in quarterly basis. The special condition this part 1260, but not for use verbatim, at § 1260.68, Invoices and Payments and the Center substitutes a provision Under Grants With Commercial Firms, which is inconsistent with the intent, shall be incorporated into all grants principle, and substance of the provi- with commercial firms in place of the sion.
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(3) When a form prescribed by this plement (NFS) 48 CFR 1835.016. AO’s part 1260 is altered or another form is are described in 48 CFR part 1872. used in its place. (2) An Unsolicited Proposal for new (4) When limitations, imposed by this and innovative ideas. Guidance on the handbook upon the use of a grant pro- submission of unsolicited proposals is vision, form, procedure, or any other contained in the Federal Acquisition grant action, are changed. Regulation (FAR) 48 CFR subpart 15.6 (5) When a form is created for recipi- and (NFS) 48 CFR subpart 1815.6. The ent use that constitutes a ‘‘Collection synopsis requirement in FAR Part 5, of Information’’ within the meaning of however, does not apply to the grant the Paperwork Reduction Act (44 process. Contact with NASA technical U.S.C. 35) and its implementation in 5 personnel prior to proposal submission CFR part 1320. is encouraged to determine if prepara- (b) Requests for authority to deviate tion of a proposal is warranted. These from this part 1260 shall be submitted discussions should be limited to under- to the Office of Procurement, NASA standing NASA research needs and do Headquarters, Procurement Operations not jeopardize the unsolicited status of Division (HS). Requests, signed by the any subsequently submitted proposal. procurement officer, shall contain: (b) The proposal shall contain a de- (1) A full description of the deviation, tailed narrative description of the the circumstances in which it will be work to be undertaken, including the used, and identification of the require- objectives of the project and the appli- ment from which a deviation is sought; cant’s plan for carrying it out. (2) The rationale for the request, per- (1) All proposals shall include budget tinent background information, and data as prescribed in the Budget Sum- the intended effect of the deviation; mary (Exhibit A to subpart A of this (3) The name of the recipient, identi- part 1260, available at the address given fication of the grant affected, and the in Exhibit A). Narrative detail must dollar value; support the proposed budget as re- (4) A statement as to whether the de- quired in Exhibit A. viation has been requested previously, and, if so, details of that request; and (i) The recipient institution is re- (5) A copy of legal counsel’s concur- sponsible for ensuring that costs rence or comments. charged are allowable, allocable, and (c) Where it is necessary to obtain a reasonable under the applicable cost deviation on OMB Circular A–110 (sub- principles governed by OMB Circular part B of this part 1260), Code HS will No. A–21 or A–122. For other details see process all necessary documents in ac- § 1260.127. cordance with § 1260.104. (ii) Subject to applicable cost prin- ciples, facilities and administrative PRE-AWARD REQUIREMENTS cost rates are negotiated between re- cipients and the cognizant agencies as- § 1260.10 Proposals. signed under OMB Circular No. A–21. (a) Consistent with 31 U.S.C. 6301(3), NASA is required to apply the applica- NASA’s policy is to use competitive ble negotiated rate for all grants procedures to award grants whenever awarded to the recipient. possible. A grant can result from: (iii) NASA may accept cost sharing (1) A proposal submitted in response when voluntarily offered. For further to a Broad Agency Announcement guidance see § 1260.123. For grants and (BAA) such as a NASA Research An- cooperative agreements with commer- nouncement (NRA) or an Announce- cial organizations that involve costs ment of Opportunity (AO), a Coopera- sharing, see 14 CFR part 1274. The tive Agreement Notice (CAN), an Agen- amount of cost sharing will not be a cywide program announcement such as factor in determining whether to select the Graduate Student Research Pro- a proposal for award. However, recipi- gram, or other forms of announcements ents may be requested to secure non- approved by the Associate Adminis- federal matching funds equal to the trator for Procurement (HS). NRA’s program portion of training and edu- are described in the NASA FAR Sup- cation grants. In accordance with
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NASA policy to foster continuity of re- reference to an assurance that the re- search, multiple year grant proposals cipient’s programs and activities com- are encouraged, where appropriate, for ply with civil rights and non- a period generally up to three years. discrimination statutes specified in 14 Proposals for multiple year grants CFR parts 1250 through 1253. The assur- shall describe the entire research ances provided on NASA Form 1206 project and include a complete budget shall suffice for all proposals of an ap- for year one and separate estimates for plicant, if they remain current and ac- each subsequent year. curate. An applicant may incorporate (2) A Taxpayer Identification Number these assurances by reference in subse- (TIN) must be included with the ad- quent applications to NASA. dress listed on the proposal. If an [65 FR 62900, Oct. 19, 2000, as amended at 66 award is made, advance payments can- FR 54121, Oct. 26, 2001] not be made without a TIN (31 U.S.C. 7702(c)(1)). § 1260.11 Evaluation and selection. (3) Prior to implementation of the In- (a) Technical evaluation of proposals tegrated Financial Management (IFM) will be conducted by the cognizant System at each center, all grant and NASA technical office and may be cooperative agreement recipients are based on peer reviews. required to register in the Department (b) Under NRA’s, AO’s, other BAA’s, of Defense (DoD) Central Contractor and CAN’s, the selecting official will Registration (CCR) database. Registra- furnish documentation requested by tion is required in order to obtain a the grant officer, (including a copy of Commercial and Government Entity the NRA, selection statement, and peer (CAGE) code, which will be used as a review evaluation if requested), to con- grant and cooperative agreement iden- firm that the award is being made as a tification number for the new system. result of a selection under a NRA, AO, The grant officer shall verify that the other BAA, or CAN. The technical of- prospective awardee is registered in the fice will forward to the grant office a CCR database using the DUNS number completed award package, including a or, if applicable, the DUNS+4 number, funded procurement request, technical via the Internet at http:// evaluation of the proposed budget, and www.ccr2000.com or by calling toll free: other support documentation, and any 800–841–4431, commercial: 696–961–5757. data deliverables that may be required (c)(1) Grant officers are required to when potentially hazardous operations, ensure that all necessary certifi- such as those related to flight and/or cations, disclosures, and assurances mission critical ground systems have have been obtained prior to awarding a been proposed (e.g. Payload Safety grant or cooperative agreement. In Data Review Package) at least 29 days order to reduce paper work required by prior to the requested award date, or the submitting institutions, and as di- before the expiration of the funded pe- rected by NASA; signature by the Au- riod in the case of the renewal of an ex- thorizing Institutional Representative isting effort. on the proposal Cover Page may con- (c) If a proposal is not selected, the firm that all necessary certifications proposer will be notified by the select- and assurances are met. ing official in accordance with the pro- (2) Each new proposal shall include a cedures set forth in the NRA, AO, CAN, certification for debarment and suspen- or BAA. sion under the requirements of 14 CFR (d) Unsolicited proposals will be eval- 1265.510 and 1260.117. uated in accordance with the following (3) Each new proposal for an award procedure: exceeding $100,000 shall include a cer- (1) Evaluations of unsolicited pro- tification, and a disclosure form (SF posals to be awarded as grants or coop- LLL) if required, on Lobbying under erative agreements will be conducted the requirements of 14 CFR 1271.110 and using the same criteria used for review- 1260.117. ing unsolicited proposals to be awarded (4) Each application for funding must as contracts, as set forth at FAR sub- contain assurances on NASA Form part 15.6 and (NFS) 48 CFR subpart 1206, or specifically identify and make 1815.6. Normally, unsolicited proposals
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are accepted to perform discrete Exhibit A). New budgets are not re- projects with defined anticipated out- quired when the program office rec- comes and completion dates. An unso- ommended funding is within twenty licited proposal that results in a grant percent (20 percent) of the proposed or cooperative agreement with no de- amount, provided that, if requested by fined end date, and which requires sub- the proposer, a revised scope of work sequent submission of follow-on unso- based on the recommended funding is licited proposals to ensure continu- submitted by the proposer for accept- ation of the effort, should be closely re- ance by the technical officer. However, viewed to ensure that it meets the FAR when funding decreases in equipment definition for a valid unsolicited pro- and/or subcontracts are involved, the posal. cognizant program office is required to (2) An unsolicited proposal rec- identify the cost element(s) affected by ommended for acceptance shall be sup- the change in funding level. ported by a Justification for Accept- (2) The grant officer will review the ance of an Unsolicited Proposal (JAUP) budget, and any changes made by the prepared by the cognizant technical of- technical officer, to identify any item fice. The JAUP shall be submitted for which may be unallowable under the the approval of the grant officer after cost principles, or which appears un- review and concurrence at a level reasonable or unnecessary. The grant above the technical officer. However, officer will complete Column C of the this review and concurrence is not re- Budget Summary after discussing sig- quired for technical officers at a divi- nificant changes with the recipient sion chief or higher level. The grant of- and/or technical office. Requests for de- ficer’s signature on the award docu- tails from the recipient should be lim- ment will indicate approval of the ited. JAUP. (3) The grant officer will address re- (3) NASA will notify in writing orga- quests for direct charge of equipment nizations that submit unsolicited pro- in the negotiation summary, and state posals that will not be funded. Method whether the purchase is approved as a of notification is at the discretion of direct cost. the grant officer. Proposals will be re- (g) 42 U.S.C. 2459d prohibits NASA turned only when requested. Agency from funding any grant for longer than procedures for handling unsolicited one year if the effect is to provide a proposals are specified at (NFS) 48 CFR guaranteed customer base for new com- 1815.606. mercial space hardware or services. (e) For awards made non-competi- The only exception would be if an Ap- tively, written justifications for equip- propriations Act specifies the new com- ment or travel will be submitted by the mercial space hardware or services to technical office for grant officer ap- be used. proval when more than half of the pro- (h) NASA reserves the right to either posed budget is for equipment or travel fully fund or incrementally fund grants and associated indirect cost. The jus- based on fiscal law and program consid- tification shall describe the extent to erations. Grants with anticipated an- which the equipment or travel is nec- nual funding exceeding $50,000 may be essary. The grant officer’s signature on funded for less than the amount stated the award will indicate approval of the in the proposal. justification. (1) The grant officer will determine (f) The evaluation of the proposal the number of incremental funding ac- budget will conform to the following tions that will be allowed. procedure: (2) The special condition at § 1260.53, (1) The technical officer will review Incremental Funding, will be included the proposer’s estimated cost for con- in the grant. formance to program requirements and (i) Proposals for efforts that involve fund availability. The results of this printing, binding, and duplicating in review shall be recorded in Column B of excess of 25,000 pages are subject to the the proposed Budget Summary Form Government Printing and Binding Reg- (Exhibit A to subpart A of this part ulations, No. 26, February 1990, S. Pub. 1260, available at the address given in 101–9, U.S. Government Printing Office,
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Washington, DC 20402, published by the (3) If it is determined that a procure- Congressional Joint Committee on ment contract is the appropriate type Printing. The technical office will refer of funding instrument to meet NASA’s such proposals to the Installation Cen- purposes, the procurement shall be tral Printing Management Officer conducted under the FAR and the NFS (ICPMO). The grant officer will be ad- (48 CFR Chapter 18). vised in writing of the results of the (4) If an action is to be awarded for a ICPMO review. dollar amount below the simplified ac- (j) The provision at § 1260.30, Rights quisition threshold, the action may be in Data, is to be inserted as a standard completed by a contracting officer as a provision into grants and cooperative purchase order. The purchase order agreements that don’t require cost must be properly modified to include sharing. Additional language is re- necessary language pertaining to data quired for cost sharing and/or matching rights, key personnel requirements, efforts, and in cooperative agreements, and any other necessary requirements as set forth in the provision. as determined by the contracting offi- (k) By acceptance of a grant (con- cer. taining the provision at § 1260.34) the (c) A grant shall be used as the legal recipient agrees that it is in compli- instrument to reflect a relationship be- ance with the Clean Air and Federal tween NASA and a recipient whenever Water Pollution Control Acts. The Ad- the principal purpose is the transfer of ministrator may approve exemptions anything of value to the recipient to from this prohibition under certain cir- accomplish a public purpose of support cumstances under Executive Order or stimulation authorized by Federal 11738. Requests for exemptions or re- statute. Grants are distinguished from newals thereof shall be made to the Of- cooperative agreements in that sub- fice of Procurement, NASA Head- stantial involvement is not expected quarters, Program Operations Division between NASA and the recipient when (Code HS), Washington, DC 20546. carrying out the activity. Grants are (l) Requests for acquisition of prop- distinguished from contracts in that erty may be made by a recipient either grants provide financial assistance to as part of the original budget proposal the recipient to conduct a fairly auton- or subsequent to award. Comprehensive omous program; contracts entail acqui- guidance on evaluating requests for ac- sition. Various types of NASA grants quisition of property, vesting of title, contain different provisions and condi- and administration issues, is set forth tions as described in §§ 1260.20 and at § 1260.74. 1260.50. The major types of grants and [65 FR 62900, Oct. 19, 2000, as amended at 66 cooperative agreements are defined as FR 54121, Oct. 26, 2001] follows. Grants and cooperative agree- ments to carry out other authorized § 1260.12 Choice of award instrument. purposes should be used to the extent (a) This section and § 1260.111 provide appropriate, and must be in compliance guidance on the appropriate choice of with OMB Circular A–110. award instruments consistent with 31 (1) Research grant. A research grant U.S.C. 6301 to 6308. Throughout § 1260.12, shall be used to accomplish a NASA ob- the term ‘‘grant’’ does not include ‘‘co- jective through stimulating or sup- operative agreements.’’ porting the acquisition of knowledge or (b)(1) A procurement contract is a understanding of the subject or phe- mutually binding legal relationship ob- nomena under study, or attempting to ligating the seller to furnish supplies determine and exploit the potential of or services (including construction), scientific discoveries or improvements and the buyer pays for them. in technology, materials, processes, (2) The principal purpose of a pro- methods, devices, or techniques and ad- curement contract is to acquire, for vance the state of the art. The recipi- NASA’s direct use or benefit, a well-de- ent will bear prime responsibility for fined, specific effort clearly required the conduct of research, and exercises for the accomplishment of a scheduled judgment and original thought toward NASA mission or project. attaining the scientific goals within
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broad parameters of the research areas hold another Federal fellowship or proposed and the resources provided; traineeship. (2) Education grant. Students and fac- (ii) No applicant shall be denied con- ulty receiving direct support under a sideration or appointment on the NASA education grant must be U.S. grounds of race, creed, color, national citizens. An education grant is an origin, age, sex, or disability. agreement that provides funds to an (iii) Students and faculty receiving educational institution or other non- direct support under a NASA training profit organizations within one or more grant must be U.S. citizens, except for of the following areas: those supported by the NASA Earth (i) Capturing student interest and/or System Science Fellowship Program, improving student performance in the Graduate Student Fellowship in science, mathematics, technology, or Global Change Research Program, and related fields; the GLOBE Program. (ii) Enhancing the skill, knowledge, or ability of teachers or faculty mem- (iv) Duration of the award is program bers in science, mathematics, or tech- specific. Refer to program policies and nology; procedures for details. Renewal is con- (iii) Supporting national educational tingent upon a successful performance reform movements; evaluation as prescribed by the pro- (iv) Conducting pilot programs or re- gram, concurrence by the NASA tech- search to increase participation and/or nical officer, and the availability of to enhance performance in science, funds. mathematics, or technology education (v) No substantial involvement is ex- at all levels; and pected between NASA and the recipi- (v) Developing instructional mate- ent. A student or faculty member re- rials (e.g., teacher guides, printed pub- ceiving support under a NASA training lications, computer software, and vid- grant does not incur any formal obliga- eotapes) or networked information tion to the Government. services for education; (vi) The use of training grant funds (3) Training grant. A training grant is to acquire equipment, or to acquire or an agreement that provides funds pri- construct facilities will not be per- marily for scholarships, fellowships, or mitted. Government furnished equip- stipends to students, teachers, and/or ment will not be provided. faculty. (vii) An Administrative Report must (i) NASA training grants are awarded be submitted under the guidelines de- to colleges, universities, or other non- scribed by the specific program policies profit organizations; not to individual and procedures. students, teachers, or faculty members. It is the responsibility of the institu- (4) Facilities grant. A facilities grant tion receiving the grant to approve the is used to provide for the acquisition, faculty, teachers, and/or students who construction, use, maintenance, and will participate in the specific pro- disposition of facilities. Facilities, as gram, in cooperation with NASA. If a used in this section, means property student, teacher, or faculty member used for production, maintenance, re- ceases to participate in the program search, development, or testing. Prior for any reason, the institution, with approval by the Associate Adminis- prior NASA approval, may appoint an- trator of Procurement is required be- other student, teacher, or faculty fore proceeding with a facilities grant. member to complete the remaining To obtain prior approval, a package portion of the grant period. Replace- will be forwarded to the Director, Pro- ment students, teachers, and/or faculty gram Operations Division (HS), during electing to apply for the following pro- the planning phase of the grant, that gram year are not automatically enti- includes pertinent background infor- tled to an award and are subject to the mation, details on Congressional Au- evaluation/selection procedures admin- thorization, dollar value, and name of istered to new applicants. Any partici- the recipient. Other information, such pant receiving support under a NASA as a copy of the proposed facility grant training grant may not concurrently award document, is not required. It is
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unlikely an award will be approved un- laboration. NASA policy on performing less specifically authorized by Con- research with foreign organizations on gress. A review by legal counsel to as- a no-exchange-of-funds basis is set sure legal sufficiency is also required. forth at NFS 1835.016–70. In rare in- (d) Cooperative agreement. A cooper- stances, NASA may enter into an ative agreement shall be used as the international agreement under which legal instrument reflecting a relation- funds will be transferred to a foreign ship between NASA and a recipient recipient. whenever the principal purpose is the (3) Grants and cooperative agree- transfer of anything of value to the re- ments to foreign organizations are cipient to accomplish a public purpose made on an exceptional basis only. of support or stimulation authorized by Awards require the prior approval of Federal statute, and substantial in- the Headquarters Office of External Re- volvement is anticipated between lations (Code I) and the Headquarters NASA and the recipient during per- Office of the General Counsel (Code G). formance of the contemplated activity Requests to award foreign grants or co- (31 U.S.C. 6305). Characteristics inher- operative agreements are to be coordi- ent in a cooperative agreement include nated through the Office of Procure- those that apply to a grant, plus the ment, Program Operations Division following: (Code HS). Requests for approval shall (1) Substantial NASA involvement in contain: and contribution to the technical as- (i) The identity of the foreign entity, pects of the effort are necessary for its the country or countries involved, and accomplishment. This could involve an the purpose of the grant or cooperative active NASA role in collaborative rela- agreement. tions, access to a NASA site or equip- (ii) The Space Act Agreement(s) or ment, or sharing NASA facilities and underlying international agreement in- personnel. For example, a university volved, if any. investigator could work for a substan- tial amount of time at a NASA Center, (iii) A description of the effort to be a NASA investigator could work at a undertaken by the entity described in university, or when the collaboration paragraph (e)(3)(i) of this section, in- is such that a jointly authored report cluding their dollar value. or education curriculum product is ap- (iv) The reason why the grant or co- propriate; operative agreement requires a place- (2) The project, conducted as pro- ment with a foreign organization. posed, would not be possible without (v) The reason why the work can not extensive NASA-recipient technical be accomplished on a no exchange of collaboration; funds basis. (3) The nature of the collaboration (4) Grants and cooperative agree- shall be clearly defined and specified in ments to foreign organizations require the special condition at § 1260.51. a review by the Office of General Coun- (e)(1) Grants and cooperative agree- sel. ments with foreign organizations. (5) The requirements of this section Grants and cooperative agreements do not apply to the purchase of sup- with foreign organizations provide for plies or services (excluding research) research to be performed in whole, or from non-U.S. sources by U.S. grant or in part, by a foreign organization, with cooperative agreement recipients, funding being provided by NASA to the when necessary to support research ef- foreign organization as reimbursement forts. for the work performed. (f)(1) The decision whether to use a (2) It is NASA policy that, in general, contract, grant or cooperative agree- research with foreign organizations ment as an award instrument must be will not be conducted through grants based on the principal purpose of the or cooperative agreements, but instead relationship. When NASA, within its will be accomplished on a no-exchange- authority, enters into a transaction of-funds basis. In these cases, NASA where the principal purpose is to ac- enters into agreements undertaking complish a public purpose of support or projects of international scientific col- stimulation authorized by Federal
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statute, a grant or a cooperative agree- agreements. Similarly, a profit-making ment is the appropriate instrument. firm may receive funding through Conversely, if the principal purpose of grants, cooperative agreements, or con- a transaction is to accomplish a NASA tracts. requirement, i.e., to produce something (4) NASA offices may be mandated for NASA’s own use, a procurement through their missions to support spe- contract is the appropriate instrument. cific scientific, educational, or training Two essential questions must be asked programs. The office may be account- to ensure that a grant or cooperative able to NASA management, the Admin- agreement is the appropriate instru- istration, or Congress for oversight and ment. The first question is: Will NASA proper implementation of the program, be directly harmed in furthering a spe- may require direct oversight, may be cific NASA mission requirement if the directly accountable for the results of effort is not accomplished? The answer the program and that the work be suc- to this question must be ‘‘no.’’ The sec- cessfully completed. Whenever the of- ond question is: Is the work being per- fice requesting the grant or coopera- formed by the recipient primarily for tive agreement would be directly its own purposes, which NASA is mere- harmed in performing its mission if an ly supporting with financial or other award was not made, a grant or cooper- assistance? The answer to this question ative agreement is not appropriate. must be ‘‘yes.’’ If these criteria are Specific examples of situations requir- met, then the effort is not a NASA re- ing special scrutiny include— quirement, and can then be considered (i) Education grants that for the ad- as to whether it supports or stimulates ministration of a program for which a public purpose. the education office is directly respon- (2) In applying the principal purpose sible; test, it must be determined whether (ii) Research or education grants to the Government is the direct bene- establish and support university lab- ficiary or user of the activity. If NASA oratories on a non-competitive basis, provides the specifications for the with the resulting work of direct ben- project; or is having the project com- efit to NASA; or pleted based on its own identified (iii) Training grants that hire univer- needs; or will directly use the report or sity students, on a non-competitive result of the project for a scheduled basis, to perform work at a NASA Cen- NASA mission, then, in most cases, the ter in direct support of NASA per- principal purpose is to acquire property sonnel, and perform work which is re- or services for the direct benefit or use quired in support of a NASA mission. of NASA, and thus, a contractual rela- (5) A grant may be used to provide tionship exists. However, there may be funding to an association to hold a con- cases where NASA expects to derive ference (among its members and NASA some incidental use or benefit from officials) where the benefits flow pri- funded activities. In fact, any extra- marily to the association and its mem- mural expenditure that furthers the bers, not to NASA. The principal pur- Agency’s goals or mission can be said pose will be to advance research or to be of benefit or use to the Govern- other purposes of the association. ment. But not every expenditure pro- Thus, NASA may not direct an associa- duces for the Government a benefit or tion in arranging the conference or in use that is direct; i.e., immediate, unin- providing other services for NASA’s terrupted, or specific. Where an ex- benefit. The conference should be run penditure will produce a benefit or use by the association, not by NASA. Con- that is only indirect in nature, a grant ferences sponsored or initiated by or cooperative agreement may be used. NASA primarily to meet a specific (3) The status of the entity involved NASA need or obtain information for is not a primary factor in determining the direct benefit of NASA must be the appropriate award instrument. For supported by means of a contract. example, an entity that operates on a non-profit basis may receive funding § 1260.13 Award procedures. through a contract, and is not limited (a) Award instruments are classified to receiving grants or cooperative as follows:
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(1) Annual grants are grants awarded grant. Augmentations require the sub- for a short term (e.g., on an annual mission of revised budget proposals and basis). technical evaluations covering the ad- (2) Multiple year grants support re- ditional work. Since augmentations search projects that may span several will be performed within the existing years. NASA policy is to make max- period of performance, certifications imum use of multiple year grants. A will not normally be required. Multiple Year Grant is generally se- (4) A grant extension may be placed lected for a period of three years in to extend the grant beyond the expira- keeping with NASA’s policy calling for tion date, in accordance with the provi- research to be peer reviewed at least sion at § 1260.23, Extensions, if addi- every three years. Grants with periods tional time beyond the established pe- of performance in excess of three years riod of performance is required to as- may be appropriate when the NASA sure adequate completion of the origi- technical office determines at the in- nal scope of work within the available ception of the grant that a period of funding. performance in excess of three years is (5) Grant renewals provide for con- necessary to complete a discrete re- tinuation of research beyond the origi- search effort. nal scope, period of performance and (i) If the decision to provide multiple funding levels; therefore, new pro- year funding to a research proposal is posals, certifications and technical made, the special condition at § 1260.52, evaluations are required prior to the Multiple Year Grant or Cooperative execution of a grant renewal. Grant re- Agreement, will be included in the newals will be awarded as new grants. award. Continued performance within a period (ii) Periods approved under the Mul- specified under the Multiple Year tiple Year Grant or Cooperative Agree- Grant provision does not constitute a ment special condition at § 1260.52, and renewal. For research originally award- funded at the levels specified in the ed through a competitive NRA, CAN, special condition, are not considered to or other competitive announcement be new awards. Therefore, new pro- that has completed its period of per- posals, new proposal-related certifi- formance, peer review of a proposal to cations (such as Disclosure of Lobbying continue the research should be accom- Activities, and Debarment and Suspen- plished prior to selecting the research sion), new technical evaluations, and grant for renewal. If the effort was new budget proposals are not required, originally awarded through an unsolic- as long as this information for the mul- ited proposal, a new justification to ac- tiple year period was reviewed and ap- cept the unsolicited proposal would be proved as part of the original proposal. required (however, also see (iii) If NASA program constraints or § 1260.12(f)(1)). Multiple year grant spe- developments within the research cial conditions may be incorporated project dictate a reduction in the fund- into renewals. ing level specified under a Multiple (b) While NASA normally provides Year Grant period, research may con- full funding support for research tinue at the reduced level under the grants, alternate methods of grant terms of the provisions; however, the funding are as follows: recipient may rebudget under the grant (1) Since NASA grant recipients usu- provisions to keep the project within ally gain no measurable commercial or the funding actually provided. economic benefit from grants, other (3) An augmentation to a grant may than conducting research, cost sharing be issued as a supplement at any time for research grants is not generally re- when work is introduced which is out- quired. NASA may, however, accept side the scope of the approved proposal cost sharing when voluntarily offered. or when there is a need for substantial Additionally, in instances when the unanticipated funding. The grant offi- grant officer determines that the re- cer must first determine whether the cipient will benefit from the research augmentation requires a separate ap- results through sales to non-Federal proval as a non-competitive addition to entities, cost sharing based upon this the work to be performed under the mutuality of interest will apply. See
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§ 1260.123. When cost sharing is used, ments. Provisions for grants with U.S. the grant officer shall insert a Special organizations shall be incorporated by Condition substantially as shown in reference, and preprinted checklists § 1260.54, Cost Sharing. (See 14 CFR part may be used (Exhibit C to subpart A of 1274 for grants and cooperative agree- this part 1260). Both special conditions ments with commercial organizations and provisions for grants with foreign involving cost sharing.) organizations will be printed in full (2) NASA may provide partial sup- text. An acceptance block may be port for a research project or con- added when the grant officer finds it ference where additional funding is necessary to require bilateral execu- being provided by other Federal agen- tion of the grant. Program budgets are cies. If the grant also involves cost not generally attached to the award sharing by the recipient, the grant offi- document. When it is necessary to at- cer will ensure that the recipient’s tach the budget due to revisions to the share does not include any Federal original proposed budget or other rea- funds. sons, this information should be suit- ably marked as confidential, and is not § 1260.14 Limitations. be disclosed outside of the Government (a) NASA does not award grants without the consent of the grantee. merely to provide donative assistance (c) The Identification Numbering no matter how worthy the purpose, but System to be used prior to Integrated to the extent that appropriations are Financial Management Project (IFMP) available to carry out authorized Agen- implementation will be applied as fol- cy programs. Research in any academic lows: discipline related to NASA interests (1) For research, education, and fa- normally will qualify. However, advice cilities grants, numbering shall con- of legal counsel should be sought in un- form to (NFS) 48 CFR 1804.7102(a) by in- usual situations, or when unusual cluding the Center Identification Num- project activities or organizational at- ber, except that a NAG prefix will be tributes are evident. used in lieu of the NAS prefix (e.g., (b) It is NASA’s policy that non-mon- NAG5 would be the Goddard prefix des- etary (zero dollar) grants or coopera- ignation). They will be sequentially tive agreements shall not be used, ex- numbered. cept for no-cost extensions. (c) Loans of Government personal (2) Cooperative agreements will use property not associated with a con- the prefix NCC plus the Center Identi- tract, grant, or cooperative agreement fication Number. They will be sequen- under 31 U.S.C. 6301 to 6308, and made tially numbered. under the Space Act of 1958, should be (3) Training grants will use the prefix consummated as loan agreements. NGT plus the Center Identification Also, excess Government research Number. They will be sequentially property may be donated to edu- numbered. cational institutions and nonprofit or- (4) The Catalog of Federal Domestic ganizations pursuant to 15 U.S.C. Assistance (CFDA) Numbers does not 3710(I). See § 1260.133(a)(2). apply to NASA grants. (d) Neither grants nor cooperative (d) The Identification Numbering agreements shall be used as legal in- System will be revised after IFMP im- struments for consulting service ar- plementation. There will be a phase-in rangements. term for Center implementation of the IFMP. For centers using IFMP Per- § 1260.15 Format and numbering. formance Purchasing; the following (a) A grant shall be brief, containing numbering system shall be used for only those provisions and special con- new awards (awards made prior to con- ditions necessary to protect the inter- versation to IFMP will retain pre- ests of the Government. viously assigned numbers): (b) Cover page formats shown in Ex- (1) Document Type for grants. For re- hibit B to subpart A of this Part 1260 search, education, facilities, and train- shall be used for all NASA grant and ing grants, the document type prefix cooperative agreement award docu- GR shall be used.
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(2) Document Type for cooperative grant officer will receive a copy of the agreements. Cooperative agreements approved budget. will use the prefix CO. (c) The file will record the addresses (3) Agency Identifier. The Agency for distribution. identifier NAS shall follow the docu- ment number. PROVISIONS (4) Center Smart Codes. The Center identifier shall follow the document § 1260.20 Provisions. type: (a) Research grants, education Smart grants, and cooperative agreements Installation code with U.S. educational institutions and
Ames Research Center ...... A nonprofit organizations shall incor- Dryden Flight Research Center ...... D porate by reference the provisions set Glenn Research Center ...... C forth in §§ 1260.21 through 1260.38. Goddard Space Flight Center ...... G Headquarters ...... H Training grants shall incorporate by Johnson Space Center ...... J reference the provisions set forth in Kennedy Space Center ...... K §§ 1260.21 through 1260.38, except that Langley Research Center ...... L Marshall Space Flight Center ...... M the grant officer will substitute NASA Management Office—JPL ...... P § 1260.22, Technical Publications and Stennis Space Center ...... S Reports, with reporting requirements as specified by the program office. (5) Fiscal Year. The fiscal year shall (b) Facilities grants provisions will be represented as two digits. be selected on a case-by-case basis (see (6) Procurement Code. ‘‘G’’ will be § 1260.50). used as the procurement code to iden- (c) Research grants awarded to for- tify grants. Cooperative Agreements will be identified using ‘‘A’’ as the pro- eign organizations, when approved by curement code. Headquarters, will include the fol- (7) Serial Numbers. Installations lowing provisions at a minimum: shall number grants and cooperative §§ 1260.21, 1260.22, 1260.23, 1260.24, 1260.25, agreements serially by fiscal year. The 1260.26, 1260.27, 1260.29, 1260.33, 1260.35, serial number shall be six digits com- 1260.36 and 1260.37. Additional special mencing with ‘‘000001’’ and continuing conditions will be selected on a case by in succession. case basis (see § 1260.50). All provisions (8) As an example of the above set will be provided in full text. Referenced forth methodology, the first two grants handbooks, statutes, or other regula- awarded by Marshall Space Flight Cen- tions, which the recipient may not ter in fiscal year 1999 would be have access to, must be made available GRNASM99G000001 and when requested by the foreign organi- GRNASM99G000002. zation. (9) The Catalog of Federal Domestic (d) The provisions set forth at Assistance (CFDA) Numbers does not §§ 1260.21 through 1260.38 do not apply to apply to NASA grants. awards made under the Federal Dem- onstration Partnership (FDP). FDP § 1260.16 Distribution. awards are subject to the FDP Phase (a) Copies of grants and supplements III General Terms and Conditions and will be provided to— the NASA Agency Specific Require- (1) Payment offices (original copy); ments Modifications to the General (2) Technical officers; Terms and Conditions (Exhibit D to (3) Administrative grant officers subpart A of this part 1260). Since these when delegated; documents are provided directly to the (4) The NASA Center for AeroSpace FDP institutions, they are not to be at- Information (CASI), Attn: Document tached to FDP grants. However, the Processing Section, 7121 Standard grant officer will include a statement Drive, Hanover, MD 21076; and similar to the following on FDP grants: (5) Other appropriate offices as deter- ‘‘The Federal Demonstration Partner- mined by the grant officer. ship General Terms and Conditions and (b) In addition to receipt of grants NASA Agency-specific Requirements and supplements, the administrative apply to this award.’’
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(e) Grants or cooperative agreements § 1260.22 Technical publications and awarded by NASA to the Commercial reports. Space Centers under the Space Devel- (This provision describes standard reporting opment and Commercial Research requirements that should be applied in most cir- (SDCR) Program require special condi- cumstances. The requirements set forth under tions in addition to those set forth at this provision may be modified by the grant offi- §§ 1260.21 through 1260.38. SDCR Special cer based on specific report needs for the grant Conditions are required to be included or cooperative agreement, provided that report- in full text for all SDCR Grants and ing requirements do not conflict with § 1260.151. Any special reporting requirements (e.g. Pay- Cooperative Agreements (Exhibit E to load Safety Data Review) will be set forth as a subpart A of this part 1260). Changes or special condition in the award document.) additions to these Special Conditions must be approved by the Office of TECHNICAL PUBLICATIONS AND REPORTS Space Utilization and Product Develop- October 2000 ment (Code UM) prior to the award of the grant. Requests for changes or ad- (a) NASA encourages the widest prac- ticable dissemination of research results at ditions are to be coordinated through any time during the course of the investiga- the Office of Procurement, Program tion. Operations Division (Code HS). (1) All information disseminated as a re- (f) Grants and cooperative agree- sult of the grant shall contain a statement ments awarded by NASA to commer- which acknowledges NASA’s support and cial organizations where cost sharing is identifies the grant by number (e.g., ‘‘The not required shall incorporate the pro- material is based upon work supported by NASA under award No(s) GRNASM99G000001, visions set forth at §§ 1260.21 through etc.’’). 1260.38, modified as set forth under (2) Except for articles or papers published 1260.4(b). in scientific, technical, or professional jour- (g) Grants and cooperative agree- nals, the exposition of results from NASA ments not specifically classified else- supported research should also include the where in this section, but that are following disclaimer: ‘‘Any opinions, find- ings, and conclusions or recommendations awarded for other authorized purposes, expressed in this material are those of the shall include provisions selected on a author(s) and do not necessarily reflect the case-by-case basis. views of the National Aeronautics and Space (h) Whenever the word ‘‘grant’’ ap- Administration.’’ pears in §§ 1260.21 through 1260.38, it (b) Reports shall be in the English lan- shall be deemed to include, as appro- guage, informal in nature, and ordinarily not priate, the term ‘‘cooperative agree- exceed three pages (not counting bibliog- raphies, abstracts, and lists of other media). ment.’’ The recipient shall submit the following re- ports: § 1260.21 Compliance With OMB Cir- (1) A Progress Report for all but the final cular A–110. year of the grant. Each report is due 60 days before the anniversary date of the grant and COMPLIANCE WITH OMB CIRCULAR A–110 shall briefly describe what was accomplished October 2000 during the reporting period as outlined in § 1260.151(d). A special condition specifying This grant or cooperative agreement is more frequent reporting may be required. subject to the requirements set forth in OMB (2) A Summary of Research (or Edu- Circular A–110, Uniform Administrative Re- cational Activity Report in the case of Edu- quirements for Grants and Agreements with cation Grants) is due within 90 days after the Institutions of Higher Education, Hospitals, expiration date of the grant, regardless of and Other Non-Profit Organizations. Recipi- whether or not support is continued under ents are required to comply with the require- another grant. This report shall be a com- ments of A–110, as adopted by NASA as sub- prehensive summary of significant accom- part B of Part 1260 of Title 14 of the Code of plishments during the duration of the grant. Federal Regulations. Specific provisions set (c) Progress Reports, Summaries of Re- forth in this award document are provided to search, and Educational Activity Reports supplement and clarify, not replace, the Cir- shall include the following on the first page: cular, except in circumstances where a waiv- (1) Title of the grant. er from Circular requirements has been ob- (2) Type of report. tained by NASA. (3) Name of the principal investigator. [End of provision] (4) Period covered by the report.
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(5) Name and address of the recipient’s in- § 1260.24 Termination and enforce- stitution. ment. (6) Grant number. (d) Progress Reports, Summaries of Re- TERMINATION AND ENFORCEMENT search, and Educational Activity Reports shall be distributed as follows: October 2000 (1) The original report, in both hard copy Termination and enforcement conditions and electronic format, to the Technical Offi- of this award are specified in §§ 1260.160 cer. through 1260.162. (2) One copy to the NASA Grant Officer, [End of provision] with a notice to the Administrative Grant Officer, (when administration of the grant has been delegated to ONR), that a report § 1260.25 Change in principal investi- was sent. gator or scope. (e) For Summaries of Research and pub- CHANGE IN PRINCIPAL INVESTIGATOR OR SCOPE lished reports, one micro-reproducible copy shall also be sent to the NASA Center for October 2000 AeroSpace Information (CASI), Attn: Docu- ment Processing Section, 7121 Standard The following guidance is provided as an Drive, Hanover, MD 21076. amplification to prior approval requirements [End of provision] set forth at § 1260.125(c): (a) The Recipient shall obtain the approval [65 FR 62900, Oct. 19, 2001, as amended at 66 of the NASA Grant Officer for a change of FR 54121, Oct. 26, 2001] the Principal Investigator, or for a signifi- cant absence of the Principal Investigator § 1260.23 Extensions. from the project, defined as a three month absence from the program or a 25 percent re- EXTENSIONS duction in time devoted to the project. Sig- nificantly reduced availability of the serv- October 2000 ices of the Principal Investigator(s) named (a) It is NASA policy to provide maximum in the grant instrument could be grounds for possible continuity in funding grant-sup- termination, unless alternative arrange- ported research and educational activities, ments are made and approved in writing by therefore, grants may be extended for addi- the Grant Officer. tional periods of time when necessary to (b) Prior written approval is required from complete work that was part of the original NASA if there is to be a significant change award. NASA generally only approves such in the objective or scope. extensions within funds already made avail- [End of provision] able. Any extension that would require addi- tional funding must be supported by a pro- § 1260.26 Financial management. posal submitted at least three months in ad- vance of the expiration date of the grant. FINANCIAL MANAGEMENT (b) In accordance with § 1260.125(e)(2), Re- October 2001 cipients may extend the expiration date of a grant if additional time beyond the estab- (a) Effective October 1, 2001, advance pay- lished expiration date is required to assure ments by electronic funds transfer will be adequate completion of the original scope of made by the Financial Management Office of work within the funds already made avail- the NASA Center which issued the grant in able. For this purpose, the recipient may accordance with procedures provided to the make a one-time no-cost extension, not to recipient. The Recipient shall submit Fed- exceed 12 months, prior to the established eral Cash Transaction Reports (SF 272) to expiration date. Written notification of such the aforementioned office and to the Admin- an extension, with the supporting reasons, istrative Grant Officer (if NASA has dele- must be received by the NASA Grant Officer gated administration) within 15 working at least ten days prior to the expiration of days following the end of each Federal Fiscal the award. A copy of the extension must also quarter. The final SF 272 is due within 90 be forwarded to cognizant Office of Naval Re- days after the expiration date of the grant. search office. NASA reserves the right to dis- The final SF 272 shall be submitted to the Fi- approve the extension if the requirements nancial Management Office, with copies sent set forth at § 1260.125(e)(2) are not met. to the NASA Grant Officer. (c) Requests for approval for all other no- (b) Unless otherwise directed by the Grant cost extensions must be submitted in writing Officer, any unexpended balance of funds to the NASA Grant Officer. Copies are to be which remains at the end of any funding pe- forwarded to the cognizant Office of Naval riod, except the final funding period of the Research office. grant, shall be carried over to the next fund- [End of provision] ing period, and may be used to defray costs
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of any funding period of the grant. This in- ent) are classified as ‘‘supplies,’’ do not re- cludes allowing the carry over of funds to quire the prior approval of the NASA Grant the second and subsequent years of a mul- Officer, shall vest in the Recipient and will tiple year grant. This provision also applies be titled to the Recipient in accordance with to subcontractors performing substantive § 1260.135. work under the grant. For grant renewals, (4) Grant funds may be expended for the ac- the estimated amount of unexpended funds quisition of land or interests therein or for shall be identified in the grant budget sec- the acquisition and construction of facilities tion of the recipient’s renewal proposal. only under a facilities grant, as defined in NASA reserves the right to remove unex- § 1260.12(c)(4). pended balances from grants when insuffi- (b) The Recipient shall submit an annual cient efforts have been made by the grantee Inventory Report, to be received no later to liquidate funding balances in a timely than October 31 of each year, which lists all fashion. reportable (non-exempt equipment and/or [End of provision] Federally owned property) in its custody as [65 FR 62900, Oct. 19, 2000, as amended at 66 of September 30. Negative responses for an- FR 54121, Oct. 26, 2001] nual Inventory Reports (when there is no re- portable equipment) are not required. A § 1260.27 Equipment and other prop- Final Inventory Report of Federally Owned erty. Property, including equipment where title was taken by the Government, will be sub- EQUIPMENT AND OTHER PROPERTY mitted by the Recipient no later than 60 days after the expiration date of the grant. OCTOBER 2000 Negative responses for Final Inventory Re- (a) NASA permits acquisition of special ports are required. purpose and general purpose equipment spe- (1) All reports will include the information cifically required for use exclusively for re- listed in paragraph (f)(1) of § 1260.134, Equip- search activities. ment. No specific report form or format is (1) Acquisition of special purpose or gen- required, provided that all necessary infor- eral purpose equipment costing in excess of mation set forth at § 1260.134(f)(1) is provided. $5,000 (unless a lower threshold has been es- (2) The original of each report shall be sub- tablished by the Recipient) and not included mitted to the Deputy Chief Financial Officer in the approved proposal budget, requires the (Finance). Copies shall be furnished to the prior approval of the NASA Grant Officer. Center Industrial Property Officer and to Grant awards under the Federal Demonstra- ONR. tion Partnership are exempt from this re- [End of provision] quirement. Requests to the NASA Grant Of- ficer for the acquisition of equipment shall § 1260.28 Patent rights. be supported by written documentation set- ting forth the description, purpose, and ac- PATENT RIGHTS quisition value of the equipment, and includ- October 2000 ing a written certification that the equip- ment will be used exclusively for research, As stated at § 1260.136, this award is subject activities. (A change in the model number of to the provisions of 37 CFR 401.3(a) which re- a prior approved piece of equipment does not quires use of the standard clause set out at require resubmission for that item.) 37 CFR 401.14 ‘‘Patent Rights (Small Busi- (2) Special purpose and general purpose ness Firms and Nonprofit Organizations)’’ equipment costing in excess of $5,000 (unless and the following: a lower threshold has been established by the (a) Where the term ‘‘contract’’ or ‘‘Con- Recipient) acquired by the recipient under a tractor’’ is used in the ‘‘Patent Rights’’ grant or cooperative agreement for the pur- clause, the term shall be replaced by the pose of research shall be titled to the Recipi- term ‘‘grant’’ or ‘‘Recipient,’’ respectively. ent as ‘‘exempt’’ without further obligation (b) In each instance where the term ‘‘Fed- to NASA, including reporting of the equip- eral Agency,’’ ‘‘agency,’’ or ‘‘funding Federal ment, in accordance with § 1260.133(b). Spe- agency’’ is used in the ‘‘Patent Rights’’ cial purpose or general purpose equipment clause, the term shall be replaced by the costing in excess of $5,000 (unless a lower term ‘‘NASA.’’ threshold has been established by the Recipi- (c) The following item is added to the end ent) acquired by the Recipient under a grant of paragraph (f) of the ‘‘Patent Rights’’ or cooperative agreement for non-research clause: ‘‘(5) The Recipient shall include a list work shall be titled to the Recipient in ac- of any Subject Inventions required to be dis- cordance with § 1260.134. closed during the preceding year in the per- (3) Special purpose or general purpose formance report, technical report, or renewal equipment acquired by the Recipient with proposal. A complete list (or a negative grant funds, valued under $5,000 (unless a statement) for the entire award period shall lower threshold is established by the Recipi- be included in the summary of research.’’
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(d) The term ‘‘subcontract’’ in paragraph § 1260.29 [Reserved] (g) of the ‘‘Patent Rights’’ clause shall in- clude purchase orders. § 1260.30 Rights in data. (e) The NASA implementing regulation for (The grant officer may revise the language paragraph (g)(2) of the ‘‘Patent Rights’’ under this provision to modify each party’s clause is at 48 CFR 1827.304–4(a)(i)(B). rights based on the particular circumstances (f) The following requirement constitutes of the program and/or the recipient’s need to paragraph (l) of the ‘‘Patent Rights’’ clause: protect specific proprietary information. ‘‘(l) Communications. A copy of all submis- Any modification to the standard language sions or requests required by this clause, set forth under the provision requires the plus a copy of any reports, manuscripts, pub- concurrence of the Center’s Patent Counsel lications or similar material bearing on pat- and that the provision be printed in full ent matters, shall be sent to the Center Pat- text.) ent Counsel and the NASA Grant Officer in addition to any other submission require- RIGHTS IN DATA ments in the grant provisions. If any reports contain information describing a ‘‘subject October 2000 invention’’ for which the recipient has elect- (a) Fully Funded Efforts. ed or may elect to retain title, NASA will (1) ‘‘Data’’ means recorded information, re- use reasonable efforts to delay public release gardless of form, the media on which it may by NASA or publication by NASA in a NASA be recorded, or the method of recording. The technical series until an application filing term includes, but is not limited to, data of date has been established, provided that the a scientific or technical nature, computer Recipient identify the information and the software and documentation thereof, and ‘‘subject invention’’ to which it relates at data comprising commercial and financial the time of submittal. If required by the information. NASA Grant Officer, the Recipient shall pro- (2) The Recipient grants to the Federal vide the filing date, serial number and title, Government, a royalty-free, nonexclusive a copy of the patent application, and a pat- and irrevocable license to use, reproduce, ent number and issue date for any ‘‘subject distribute (including distribution by trans- invention’’ in any country in which the Re- mission) to the public, perform publicly, pre- cipient has applied for patents.’’ pare derivative works, and display publicly, (g) NASA Inventions. NASA will use reason- data in whole or in part and in any manner able efforts to report inventions made by for Federal purposes and to have or permit NASA employees as a consequence of, or others to do so for Federal purposes only. which bear a direct relation to, the perform- (3) In order that the Federal Government ance of specified NASA activities under this may exercise its license rights in data, the agreement and, upon timely request, will use Federal Government, upon request to the Re- reasonable efforts to grant the Recipient an cipient, shall have the right to review and/or exclusive, or partially exclusive, revocable, obtain delivery of data resulting from the royalty-bearing license, subject to the reten- performance of work under this grant, and tion of a royalty-free right of the Govern- authorize others to receive data to use for ment to practice or have practiced the in- Federal purposes. vention by or on behalf of the Government. (b) Cost Sharing and/or Matching Efforts. (h) In the event NASA contractors are When the Recipient cost shares with the tasked to perform work in support of speci- Government on the effort, the following fied activities under a cooperative agree- paragraph applies: ment and inventions are made by Contractor ‘‘(1) In the event data first produced by Re- employees, the Recipient will normally re- cipient in carrying out Recipient’s respon- tain title to its employee inventions in ac- sibilities under an agreement is furnished to cordance with 35 U.S.C. 202, 14 CFR Part 1245, NASA, and Recipient considers such data to embody trade secrets or to comprise com- and Executive Order 12591. In the event the mercial or financial information which is Recipient decides not to pursue rights to privileged or confidential, and such data is title in any such invention and NASA ob- so identified with a suitable notice or legend, tains title to such inventions, NASA will use the data will be maintained in confidence reasonable efforts to report such inventions and disclosed and used by the Government and, upon timely request, will use reasonable and its Contractors (under suitable protec- efforts to grant the Recipient an exclusive, tive conditions) only for experimental, eval- or partially exclusive, revocable, royalty- uation, research and development purposes, bearing license, subject to the retention of a by or on behalf of the Government for an royalty-free right of the Government to agreed to period of time, and thereafter for practice or have practiced the invention by Federal purposes as defined in § 1260.30(a)(2).’’ or on behalf of the Government. (c) For Cooperative Agreements the following [End of provision] paragraph applies:
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‘‘(1) As to data first produced by NASA in 94–135), the implementing regulations issued carrying out NASA’s responsibilities under a pursuant thereto by NASA, and the assur- cooperative agreement and which data would ance of compliance which the recipient has embody trade secrets or would comprise filed with NASA. commercial or financial information that is (b) The Recipient shall obtain from each privileged or confidential if it has been ob- organization that applies or serves as a sub- tained from the Recipient, such data will be recipient, Contractor or subcontractor under marked with an appropriate legend and this award (for other than the provision of maintained in confidence for 5 years (unless commercially available supplies, materials, a shorter period has been agreed to between equipment, or general support services) an the Government and Recipient) after devel- assurance of compliance as required by opment of the information, with the express NASA regulations. understanding that during the aforesaid pe- (c) Work on NASA grants is subject to the riod such data may be disclosed and used provisions of Title VI of the Civil Rights Act (under suitable protective conditions) by or of 1964 (Pub. L. 88–352; 42 U.S.C. 2000d-l), Title on behalf of the Government for Government IX of the Education Amendments of 1972 (20 purposes only, and thereafter for any pur- U.S.C. 1680 et seq.), Section 504 of the Reha- pose whatsoever without restriction on dis- bilitation Act of 1973, as amended (29 U.S.C. closure and use. Recipient agrees not to dis- 794), the Age Discrimination Act of 1975 (42 close such data to any third party without U.S.C. 6101 et seq.), and the NASA imple- NASA’s written approval until the aforemen- menting regulations (14 CFR parts 1250, 1251, tioned restricted period expires.’’ and 1252). [End of provision] [End of provision]
§ 1260.31 National security. § 1260.33 Subcontracts.
NATIONAL SECURITY SUBCONTRACTS October 2000 October 2000 Normally, NASA grants do not involve (a) Recipients shall notify NASA when a classified information. However, if it is subcontract award will be made that falls known in advance that a grant involves clas- within the thresholds established at sified information or if the work on the § 1260.144(e). When pre-award review of a sub- grant is likely to develop classified informa- contract is requested by the NASA Grant Of- tion, individuals performing on the grant ficer in accordance with § 1260.144(e), the fol- who will have access to the information lowing specific documents will be made must obtain the appropriate security clear- available to the NASA Grant Officer. (The ance in advance of performing on the grant, Grant Officer can request additional docu- in accordance with NASA Policy Guidance ments): (NPG) 1620.1, Security Procedures and Guide- (1) A copy of the proposed subcontract. lines. When access to classified information (2) The basis for subcontractor selection. is not originally anticipated in the perform- (3) Justification for lack of competition ance of a grant, but such information is sub- when competitive bids or offers are not ob- sequently sought or potentially developed by tained. the grant Recipient, the NASA Grant Officer (4) The subcontract budget and basis for who issued the grant shall be notified imme- subcontract cost or price. diately, and prior to work under the grant (b) The Recipient (with the exception of proceeding, to implement the appropriate foreign organizations) shall utilize small clearance requirements. business concerns, small disadvantaged busi- [End of provision] ness concerns, Historically Black Colleges and Universities, minority educational insti- § 1260.32 Nondiscrimination. tutions, and women-owned small business concerns as subcontractors to the maximum extent practicable. NONDISCRIMINATION [End of provision] October 2000 (a) To the extent provided by law and any § 1260.34 Clean air and water. applicable agency regulations, this award and any program assisted thereby are sub- CLEAN AIR AND WATER ject to the provisions of Title VI of the Civil October 2000 Rights Act of 1964 (Pub. L. 88–352), Title IX of the Education amendments of 1972 (Pub. L. (Applicable only if the award exceeds 92–318, 20 U.S.C. 1681 et seq.), section 504 of $100,000, or a facility to be used has been the the Rehabilitation Act of 1973 (29 U.S.C. 794), subject of a conviction under the Clean Air the Age Discrimination Act of 1975 (Pub. L. Act (42 U.S.C. 1857c–8(c)(1) or the Federal
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Water Pollution Control Act (33 U.S.C. § 1260.37 Safety. 1319(c)), and is listed by EPA, or if the award is not otherwise exempt). The Recipient SAFETY agrees to the following: (a) Comply with applicable standards, or- October 2000 ders or regulations issued pursuant to the Clean Air Act, as amended (42 U.S.C. 7401 et (a) The Recipient shall act responsibly in seq.) and of the Federal Water Pollution Con- matters of safety and shall take all reason- trol Act (33 U.S.C. 1251 et seq.). able safety measures in performing under (b) Ensure that no portion of the work this grant or cooperative agreement. The Re- under this award will be performed in a facil- cipient shall comply with all applicable fed- ity listed on the Environmental Protection eral, state, and local laws relating to safety. Agency (EPA) List of Violating Facilities on The Recipient shall maintain a record of, the date that this award was effective unless and will notify the NASA Grant Officer im- and until the EPA eliminates the name of mediately (within one workday) of any acci- such facility or facilities from such listings. dent involving death, disabling injury or sub- (c) Use its best efforts to comply with stantial loss of property in performing this clean air standards and clean water stand- grant or cooperative agreement. The Recipi- ards at the facility in which the award is ent will immediately (within one workday) being performed. advise NASA of hazards that come to its at- (d) Insert the substance of the provisions of tention as a result of the work performed. this clause into any nonexempt subaward or (b) Where the work under this grant or co- contract under the award. operative agreement involves flight hard- (e) Report violations to NASA or to EPA. ware, the hazardous aspects, if any, of such [End of provision] hardware will be identified, in writing, by the Recipient. Compliance with this provi- sion by subcontractors shall be the responsi- § 1260.35 Investigative requirements. bility of the Recipient. [End of provision] INVESTIGATIVE REQUIREMENTS § 1260.38 Drug-free workplace. October 2000 (a) As requested by NASA, the Recipient of DRUG-FREE WORKPLACE each grant, and any other individuals to per- form on the grant, agree to provide sufficient October 2000 personal/biographical information necessary (a) Definitions. As used in this provision— to conduct an investigation of the individ- Controlled substance means a controlled ual’s background. The purpose of the inves- substance in schedules I through V of section tigation is to allow access to a NASA Center, 202 of the Controlled Substances Act (21 or to NASA information, for performance of U.S.C. 812) and as further defined in regula- this grant. The Recipient acknowledges that tion at 21 CFR 1308.11 through 1308.15. NASA reserves the right to perform security Conviction means a finding of guilt (includ- checks, and to deny or restrict access to a ing a plea of nolo contendere) or imposition NASA Center, facility, computer system, or of sentence, or both, by any judicial body technical information as appropriate. charged with the responsibility to determine (b) All visit requests must be submitted in violations of the Federal or State criminal a timely manner in accordance with instruc- drug statutes. tions provided by the Center(s) to be visited. Criminal drug statute means a Federal or [End of provision] non-Federal criminal statute involving the manufacture, distribution, dispensing, pos- § 1260.36 Travel and transportation. session, or use of any controlled substance. Drug-free workplace means the site(s) for the performance of work done by the Recipi- TRAVEL AND TRANSPORTATION ent in connection with a specific grant or co- operative agreement at which employees of October 2000 the Recipient are prohibited from engaging (a) The Fly American Act, 49 U.S.C. 1517, in the unlawful manufacture, distribution, requires the Recipient to use U.S. flag air dispensing, possession, or use of a controlled carriers for international air transportation substance. of personnel and property to the extent that Employee means an employee of a Recipient service by those carriers is available. directly engaged in the performance of work (b) Department of Transportation regula- under a Government grant or cooperative tions, 49 CFR Part 173, govern Recipient agreement. ‘‘Directly engaged’’ is defined to shipment of hazardous materials and other include all direct cost employees and any items. other Recipient employee who has other [End of provision] than a minimal impact or involvement in
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performance of the grant or cooperative law enforcement, or other appropriate agen- agreement. cy; and Individual means a Proposer/Recipient that (7) Make a good faith effort to maintain a has no more than one employee including drug-free workplace through implementation the Proposer/Recipient. of paragraphs (b)(1) through (b)(6) of this pro- (b) The Recipient, if other than an indi- vision. vidual, shall—within 30 days after award (un- (c) The Recipient, if an individual, agrees less a longer period is agreed to in writing), by acceptance of the grant or cooperative or as soon as possible for grants and coopera- agreement, not to engage in the unlawful tive agreements of less than 30 days perform- manufacture, distribution, dispensing, pos- ance duration— session, or use of a controlled substance dur- (1) Publish a statement notifying its em- ing performance. ployees that the unlawful manufacture, dis- (d) In addition to other remedies available tribution, dispensing, possession, or use of a to the Government, the Recipient’s failure to controlled substance is prohibited in the Re- comply with the requirements of paragraph cipient’s workplace and specifying the ac- (b) or (c) of this provision may render the tions that will be taken against employees Recipient subject to suspension of payments, for violations of such prohibition; termination of the grant or cooperative (2) Establish an ongoing drug-free aware- agreement, and suspension or debarment. ness program to inform such employees [End of provision] about— (i) The dangers of drug abuse in the work- place; SPECIAL CONDITIONS (ii) The Recipient’s policy of maintaining a drug-free workplace; § 1260.50 Special conditions. (iii) Any available drug counseling, reha- (a) In addition to the provisions set bilitation, and employee assistance pro- forth in 1260.21 through 1260.38, NASA grams; and grants and cooperative agreements are (iv) The penalties that may be imposed upon employees for drug abuse violations oc- subject to special conditions, which ei- curring in the workplace; ther are not applicable to all awards or (3) Provide all employees engaged in per- are temporary in nature. Examples are formance of the grant or cooperative agree- found in §§ 1260.51 through 1260.69, but ment with a copy of the statement required NASA may impose other conditions as by paragraph (b)(1) of this provision; discussed in § 1260.114 or as the require- (4) Notify such employees in writing in the ments dictate. Deviations are not re- statement required by paragraph (b)(1) of quired for changes made to special con- this provision that, as a condition of contin- ued employment on the grant or cooperative ditions. agreement, the employee will— (b) Special conditions will be printed (i) Abide by the terms of the statement; in full text. and (c) In facilities grants, special condi- (ii) Notify the employer in writing of the tions will be selected on a case-by-case employee’s conviction under a criminal drug basis. As appropriate, the requirements statute for a violation occurring in the workplace no later than 5 days after such of the following sections will apply: conviction; § 1260.123(c), Cost Sharing or Matching; (5) Notify the Grant Officer in writing § 1260.125(h), Revision of Budget and within 10 days after receiving notice under Program Plans; and § 1260.132, Real paragraph (b)(4)(ii) of this provision, from an Property. employee or otherwise receiving actual no- (d) Research grants with foreign or- tice of such conviction. The notice shall in- ganizations will include special condi- clude the position title of the employee; (6) Within 30 days after receiving notice tions at §§ 1260.59 through 1260.61, modi- under paragraph (b)(4)(ii) of this provision of fied as necessary, when not covered a conviction, take one of the following ac- under a Memorandum of Agreement tions with respect to any employee who is (MOA). In addition, other special con- convicted of a drug abuse violation occurring ditions (e.g., §§ 1260.62 through 1260.65) in the workplace: will be written with the aid of legal (i) Taking appropriate personnel action counsel, and added when necessary. against such employee, up to and including (e) Grants and cooperative agree- termination; or (ii) Require such employee to satisfac- ments awarded by NASA to commer- torily participate in a drug abuse assistance cial organizations where cost sharing is or rehabilitation program approved for such not required shall incorporate the spe- purposes by a Federal, State, or local health, cial conditions prescribed at § 1260.4.
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§ 1260.51 Cooperative agreement spe- cipient. The Recipient will be given written cial condition. notification by the NASA Grant Officer. (b) The recipient agrees to perform work COOPERATIVE AGREEMENT SPECIAL CONDITION up to the point at which the total amount paid or payable by the Government approxi- October 2000 mates but does not exceed the total amount (a) This award is a cooperative agreement actually allotted to this grant or cooperative as it is anticipated there will be substantial agreement. NASA is not obligated to reim- NASA involvement during performance of burse the Recipient for the expenditure of the effort. NASA and the Recipient mutually amounts in excess of the total funds allotted agree to the following statement of antici- by NASA to this grant or cooperative agree- pated cooperative interactions which may ment. The Recipient is not authorized to continue performance beyond the amount al- occur during the performance of this effort: lotted to this award. (Reference the approved proposal that con- tains a detailed description of the work and insert a concise statement of the exact na- § 1260.54 Cost sharing. ture of the cooperative interactions that COST SHARING deals with existing facts and not contin- gencies.) October 2000 (b) The terms ‘‘grant’’ and ‘‘Recipient’’ (a) NASA and the Recipient will share in mean ‘‘cooperative agreement’’ and ‘‘Recipi- providing the resources necessary to perform ent of cooperative agreement,’’ respectively, the agreement. NASA funding and non-cash wherever the terms appear in provisions and contributions (personnel, equipment, facili- special conditions included in this agree- ties, etc.) and the dollar value of the Recipi- ment. ent’s cash and/or non-cash contribution will (c) NASA’s ability to participate and per- be on alll percent NASA; lll percent form its collaborative effort under this coop- Recipient basis. erative agreement is subject to the avail- (b) The funding and non-cash contributions ability of appropriated funds and nothing in by both parties is represented by the fol- this cooperative agreement commits the lowing dollar amounts: United States Congress to appropriate funds Government Share lll therefor. Recipient Share lll Total Amount lll § 1260.52 Multiple year grant or coop- (c) Criteria and procedures for the allow- erative agreement. ability and allocability of cash and non-cash contributions shall be governed by § 1260.123, MULTIPLE YEAR GRANT OR COOPERATIVE Cost Sharing or Matching. The applicable AGREEMENT Federal cost principles are cited in § 1260.127. October 2000 (d) The Recipient’s share shall not be charged to the Government under this agree- This is a multiple year grant or coopera- ment or under any other contract, grant, or tive agreement. Contingent on the avail- cooperative agreement. ability of funds, scientific progress of the project, and continued relevance to NASA § 1260.55 Reports substitution. programs, NASA anticipates continuing sup- port at approximately the following levels: REPORTS SUBSTITUTION Second year $lll, Anticipated funding datelll. October 2000 Third year $lll, Anticipated funding Technical Reports may be substituted for datelll. the required Performance Reports. The title (Periods may be added or omitted, as appli- page of such reports shall clearly indicate cable) that the substitution has been made and will show the period covered by the originally re- § 1260.53 Incremental funding. quired Performance Report.
INCREMENTAL FUNDING § 1260.56 Withholding.
October 2000 WITHHOLDING (a) Only $lll of the amount indicated on October 2000 the face of this award is available for pay- ment and allotted to this award. NASA con- If a Recipient fails to comply with the templates making additional allotments of terms and conditions of this grant or cooper- funds during performance of this effort. It is ative agreement, including reporting re- anticipated that these funds will be obli- quirements, NASA may withhold advance gated as appropriated funds become avail- payments under this award, and may also able without any action required by the Re- withhold future awards to the Recipient,
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pending correction of the deficiency by the processes, machines, manufactures, and com- Recipient. If advance payments are withheld, positions of matter. Reportable items also the Grant Officer will notify the NASA Fi- include new computer programs, and im- nancial Management Office when payments provements to, or new applications of, exist- may resume. ing computer programs, whether or not copyrightable or otherwise protectable under § 1260.57 New technology. Title 17 of the United States Code. Small business firm, as used in this special NEW TECHNOLOGY condition, means a domestic small business concern as defined at 15 U.S.C. 632 and imple- October 2000 menting regulations (see 13 CFR section (a) Definitions. 121.401 et seq.) of the Administrator of the Administrator, as used in this special condi- Small Business Administration. tion, means the Administrator of the Na- Subject invention, as used in this special tional Aeronautics and Space Administra- condition, means any reportable item which tion (NASA) or duly authorized representa- is or may be patentable or otherwise tive. protectible under Title 35 of the United Grant, as used in this special condition, States Code, or any novel variety of plant means any actual or proposed grant, cooper- that is or may be protectable under the ative agreement, understanding, or other ar- Plant Variety Protection Act (7 U.S.C. 2321 et rangement, and includes any assignment, seq.). substitution of parties, or subcontract exe- (b) Allocation of principal rights. cuted or entered into thereunder. (1) Presumption of title. Made, as used in this special condition, (i) Any reportable item that the Adminis- means conception or first actual reduction trator considers to be a subject invention to practice; provided, that in the case of a shall be presumed to have been made in the variety of plant, the date of determination manner specified in paragraph (1) or (2) of (as defined in section 41(d) of the Plant Vari- section 305(a) of the National Aeronautics ety Protection Act, 7 U.S.C. 2401(d)) must and Space Act of 1958 (42 U.S.C. 2457(a)) also occur during the period of grant per- (hereinafter called ‘‘the Act’’), and that pre- formance. sumption shall be conclusive unless at the Nonprofit organization, as used in this spe- time of reporting the reportable item the Re- cial condition, means a domestic university cipient submits to the Grant Officer a writ- or other institution of higher education or ten statement, containing supporting de- an organization of the type described in sec- tails, demonstrating that the reportable tion 501(c)(3) of the Internal Revenue Code of item was not made in the manner specified 1954 (26 U.S.C. 501(c)) and exempt from tax- in paragraph (1) or (2) of section 305(a) of the ation under section 501(a) of the Internal Act. Revenue Code (26 U.S.C. 501(a)), or any do- (ii) Regardless of whether title to a given mestic nonprofit scientific or educational or- subject invention would otherwise be subject ganization qualified under a State nonprofit to an advance waiver or is the subject of a organization statute. petition for waiver, the Recipient may never- Practical application, as used in this special theless file the statement described in para- condition, means to manufacture, in the case graph (b)(1)(i) of this special condition. The of a composition or product; to practice, in Administrator will review the information the case of a process or method; or to oper- furnished by the Recipient in any such state- ate, in case of a machine or system; and, in ment and any other available information each case, under such conditions as to estab- relating to the circumstances surrounding lish that the invention is being utilized and the making of the subject invention and will that its benefits are, to the extent permitted notify the Recipient whether the Adminis- by law or Government regulations, available trator has determined that the subject in- to the public on reasonable terms. vention was made in the manner specified in Reportable item, as used in this special con- paragraph (1) or (2) of section 305(a) of the dition, means any invention, discovery, im- Act. provement, or innovation of the grantee, (2) Property rights in subject inventions. whether or not patentable or otherwise Each subject invention for which the pre- protectable under Title 35 of the United sumption of paragraph (b)(1)(i) of this special States Code, made in the performance of any condition is conclusive or for which there work under any NASA grant or in the per- has been a determination that it was made formance of any work that is reimbursable in the manner specified in paragraph (1) or under any provision in any NASA grant pro- (2) of section 305(a) of the Act shall be the ex- viding for reimbursement of costs incurred clusive property of the United States as rep- before the effective date of the grant. Re- resented by NASA unless the Administrator portable items include, but are not limited waives all or any part of the rights of the to, new processes, machines, manufactures, United States, as provided in paragraph and compositions of matter, and improve- (b)(3) of this special condition. ments to, or new applications of, existing (3) Waiver of rights.
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(i) Section 305(f) of the Act provides for the cipient’s business to which the invention promulgation of regulations by which the pertains. Administrator may waive the rights of the (2) The Recipient’s domestic license may United States with respect to any invention be revoked or modified by the Administrator or class of inventions made or that may be to the extent necessary to achieve expedi- made under conditions specified in para- tious practical application of the subject in- graph (1) or (2) of section 305(a) of the Act. vention pursuant to an application for an ex- The promulgated NASA Patent Waiver Regu- clusive license submitted in accordance with lations, 14 CFR part 1245, subpart 1, have 37 CFR part 404, Licensing of Government adopted the Presidential Memorandum on Owned Inventions. This license will not be Government Patent Policy of February 18, revoked in that field of use or the geo- 1983, as a guide in acting on petitions (re- graphical areas in which the Recipient has quests) for such waiver of rights. achieved practical application and continues (ii) As provided in 14 CFR Part 1245, sub- to make the benefits of the invention reason- part 1, Recipients may petition, either prior ably accessible to the public. The license in to execution of the grant or within 30 days any foreign country may be revoked or modi- after execution of the grant, for advance fied at the discretion of the Administrator to waiver of rights to any or all of the inven- the extent the Recipient, its licensees, or its tions that may be made under a grant. If domestic subsidiaries or affiliates have failed such a petition is not submitted, or if after to achieve practical application in that for- submission it is denied, the Recipient (or an eign country. employee inventor of the Recipient) may pe- (3) Before revocation or modification of the tition for waiver of rights to an identified license, the Recipient will be provided a subject invention within eight months of written notice of the Administrator’s inten- first disclosure of the invention in accord- tion to revoke or modify the license, and the ance with paragraph (e)(2) of this special Recipient will be allowed 30 days (or such condition, or within such longer period as other time as may be authorized by the Ad- may be authorized in accordance with 14 ministrator for good cause shown by the Re- CFR 1245.105. cipient) after the notice to show cause why (c) Minimum rights reserved by the Gov- the license should not be revoked or modi- ernment. fied. The Recipient has the right to appeal to (1) With respect to each subject invention the Administrator any decision concerning for which a waiver of rights is applicable in the revocation or modification of its license. accordance with 14 CFR part 1245, subpart 1, (e) Invention identification, disclosures, the Government reserves— and reports. (i) An irrevocable, nonexclusive, non- (1) The Recipient shall establish and main- transferable, royalty-free license for the tain active and effective procedures to as- practice of such invention throughout the sure that reportable items are promptly world by or on behalf of the United States or identified and disclosed to Recipient per- any foreign government in accordance with sonnel responsible for the administration of any treaty or agreement with the United this New Technology special condition with- States; and in six months of conception and/or first ac- (ii) Such other rights as stated in 14 CFR tual reduction to practice, whichever occurs 1245.107. first in the performance of work under this (2) Nothing contained in this paragraph (c) grant. These procedures shall include the shall be considered to grant to the Govern- maintenance of laboratory notebooks or ment any rights with respect to any inven- equivalent records and other records as are tion other than a subject invention. reasonably necessary to document the con- (d) Minimum rights to the Recipient. ception and/or the first actual reduction to (1) The Recipient is hereby granted a rev- practice of the reportable items, and records ocable, nonexclusive, royalty-free license in that show that the procedures for identifying each patent application filed in any country and disclosing reportable items are followed. on a subject invention and any resulting pat- Upon request, the Recipient shall furnish the ent in which the Government acquires title, Grant Officer a description of such proce- unless the Recipient fails to disclose the sub- dures for evaluation and for determination ject invention within the times specified in as to their effectiveness. paragraph (e)(2) of this special condition. (2) The Recipient will disclose each report- The Recipient’s license extends to its domes- able item to the Grant Officer within two tic subsidiaries and affiliates, if any, within months after the inventor discloses it in the corporate structure of which the Recipi- writing to Recipient personnel responsible ent is a party and includes the right to grant for the administration of this New Tech- sublicenses of the same scope to the extent nology special condition or, if earlier, within the Recipient was legally obligated to do so six months after the Recipient becomes at the time the grant was awarded. The li- aware that a reportable item has been made, cense is transferable only with the approval but in any event for subject inventions be- of the Administrator except when trans- fore any on sale, public use, or publication of ferred to the successor of that part of the Re- such invention known to the Recipient. The
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disclosure to the agency shall be in the form (i) Any such inventions are subject inven- of a written report and shall identify the tions; grant under which the reportable item was (ii) The Recipient has established and made and the inventor(s) or innovator(s). It maintained the procedures required by para- shall be sufficiently complete in technical graph (e)(1) of this special condition; and detail to convey a clear understanding, to (iii) The Recipient and its inventors have the extent known at the time of the disclo- complied with the procedures. sure, of the nature, purpose, operation, and (2) If the Grant Officer learns of an unre- physical, chemical, biological, or electrical ported Recipient grantee invention that the characteristics of the reportable item. The Grant Officer believes may be a subject in- disclosure shall also identify any publica- vention, the Recipient may be required to tion, on sale, or public use of any subject in- disclose the invention to the agency for a de- vention and whether a manuscript describing termination of ownership rights. such invention has been submitted for publi- (3) Any examination of records under this cation and, if so, whether it has been accept- paragraph will be subject to appropriate con- ed for publication at the time of disclosure. ditions to protect the confidentiality of the In addition, after disclosure to the agency, information involved. the Recipient will promptly notify the agen- (g) Withholding of payment (this para- cy of the acceptance of any manuscript de- graph does not apply to subcontracts). scribing a subject invention for publication (1) Any time before final payment under or of any on sale or public use planned by the this grant, the Grant Officer may, in the Recipient for such invention. Government’s interest, withhold payment (3) The Recipient shall furnish the Grant until a reserve not exceeding $50,000 or 5 per- Officer the following: cent of the amount of this grant, whichever (i) Interim reports every 12 months (or is less, shall have been set aside if, in the such longer period as may be specified by the Grant Officer’s opinion, the Recipient fails Grant Officer) from the date of the grant, to— listing reportable items during that period, (i) Establish, maintain, and follow effec- and certifying that all reportable items have tive procedures for identifying and disclosing been disclosed (or that there are no such in- reportable items pursuant to paragraph (e)(1) ventions) and that the procedures required of this special condition; by paragraph (e)(1) of this special condition (ii) Disclose any reportable items pursuant have been followed. to paragraph (e)(2) of this special condition; (ii) A final report, within 3 months after (iii) Deliver acceptable interim reports completion of the grant work, listing all re- pursuant to paragraph (e)(3)(i) of this special portable items or certifying that there were condition; or no such reportable items, and listing all sub- (iv) Provide the information regarding sub- contracts at any tier containing a patent contracts pursuant to paragraph (h)(4) of rights clause or certifying that there were no this special condition. such subcontracts. (2) Such reserve or balance shall be with- (4) The Recipient agrees, upon written re- held until the Grant Officer has determined quest of the Grant Officer, to furnish addi- that the Recipient has rectified whatever de- tional technical and other information avail- ficiencies exist and has delivered all reports, able to the Recipient as is necessary for the disclosures, and other information required preparation of a patent application on a sub- by the grant. ject invention and for the prosecution of the (3) Final payment under the grant shall patent application, and to execute all papers not be made before the Recipient delivers to necessary to file patent applications on sub- the Grant Officer all disclosures of report- ject inventions and to establish the Govern- able items required by paragraph (e)(2) of ment’s rights in the subject inventions. this special condition, and an acceptable (5) The Recipient agrees, subject to FAR final report pursuant to paragraph (e)(3)(ii) 27.302(j), that the Government may duplicate of this special condition. and disclose subject invention disclosures (4) The Grant Officer may decrease or in- and all other reports and papers furnished or crease the sums withheld up to the max- required to be furnished pursuant to this spe- imum authorized in paragraph (g)(1) of this cial condition. special condition. No amount shall be with- (f) Examination of records relating to in- held under this paragraph while the amount ventions. specified by this paragraph is being withheld (1) The Grant Officer or any authorized under other provisions of the grant. The representative shall, until 3 years after final withholding of any amount or the subse- payment under this grant, have the right to quent payment thereof shall not be con- examine any books (including laboratory strued as a waiver of any Government rights. notebooks), records, and documents of the (h) Subcontracts. Recipient relating to the conception or first (1) Unless otherwise authorized or directed actual reduction to practice of inventions in by the Grant Officer, the Recipient shall— the same field of technology as the work (i) Include the clause at NASA FAR Sup- under this grant to determine whether— plement (NFS) 1852.227–70, New Technology,
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(suitably modified to identify the parties) in cumstances domestic manufacture is not any subcontract hereunder (regardless of commercially feasible. tier) with other than a small business firm or nonprofit organization for the perform- § 1260.58 Designation of new tech- ance of experimental, developmental, or re- nology representative and patent search work; and representative. (ii) Include the clause at FAR 52.227–11 (suitably modified to identify the parties) in DESIGNATION OF NEW TECHNOLOGY REP- any subcontract hereunder (regardless of RESENTATIVE AND PATENT REPRESENTATIVE tier) with a small business firm or nonprofit organization for the performance of experi- October 2000 mental, developmental, or research work. (a) For purposes of administration of the (2) In the event of a refusal by a prospec- special condition of this grant entitled ‘‘New tive subcontractor to accept such a clause Technology,’’ the following named represent- the Recipient— atives are hereby designated by the Grant (i) Shall promptly submit a written notice Officer to administer such special condition: to the Grant Officer setting forth the sub- contractor’s reasons for such refusal and Title, Office Code, Address (including zip code) other pertinent information that may expe- New Technology dite disposition of the matter; and Representative (ii) Shall not proceed with such sub- Patent Representative contract without the written authorization (b) Reports of reportable items, and disclo- of the Grant Officer. sure of subject inventions, interim reports, (3) In the case of subcontracts at any tier, final reports, utilization reports, and other the agency, subcontractor, and Recipient reports required by the special condition, as agree that the mutual obligations of the par- well as any correspondence with respect to ties created by this special condition con- such matters, should be directed to the New stitute a contract between the subcontractor Technology Representative unless trans- and NASA with respect to those matters cov- mitted in response to correspondence or re- ered by this grant. quest from the Patent Representative. In- (4) The Recipient shall promptly notify the quires or requests regarding disposition of Grant Officer in writing upon the award of rights, election of rights, or related matters any subcontract at any tier containing a should be directed to the Patent Representa- patent rights clause by identifying the sub- tive. This special condition shall be included contractor, the applicable patent rights in any subcontract hereunder requiring a clause, the work to be performed under the ‘‘New Technology’’ provision or ‘‘Patent subcontract, and the dates of award and esti- Rights—Retention by the Contractor (Short mated completion. Upon request of the Form)’’ clause, unless otherwise authorized Grant Officer, the Recipient shall furnish a or directed by the Grant Officer. The respec- copy of such subcontract, and, no more fre- tive responsibilities and authorities of the quently than annually, a listing of the sub- above-named representatives are set forth in contracts that have been awarded. 1827.305–370 of the NASA FAR Supplement. (5) The subcontractor will retain all rights provided for the Recipient in paragraph (h)(1)(i) or (ii) of this special condition, § 1260.59 Choice of law. whichever is included in the subcontract, CHOICE OF LAW and the Recipient will not, as part of the consideration for awarding the subcontract, October 2000 obtain rights in the subcontractor’s subject inventions. The rights and obligations of the parties to (i) Preference for United States industry. the grant (or cooperative agreement) shall Unless provided otherwise, no Recipient that be ascertainable by recourse to the laws of receives title to any subject invention and the United States of America. However, it is no assignee of any such Recipient shall grant understood that the laws of the Recipient’s to any person the exclusive right to use or country will generally apply to recipient ac- sell any subject invention in the United tivities within that country. States unless such person agrees that any products embodying the subject invention § 1260.59A Invention reporting and will be manufactured substantially in the rights. United States. However, in individual cases, the requirement may be waived by the Ad- INVENTION REPORTING AND RIGHTS ministrator upon a showing by the Recipient October 2000 or assignee that reasonable but unsuccessful efforts have been made to grant licenses on (a) As used in this provision: similar terms to potential licensees that (1) The term ‘‘invention’’ means any inven- would be likely to manufacture substantially tion or discovery which is or may be patent- in the United States or that under the cir- able or otherwise protectable under Title 35
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of the United States Code, or any novel vari- any person, or for damage to or loss of any ety of plant which is or may be protected property, arising as a result of its possession under the Plant Variety Protection Act (7 or use of any U.S. Government property. U.S.C. 2321 et seq.). (2) The term ‘‘made’’ when used in relation § 1260.62 Payment—to foreign organi- to any invention means the conception or zations. first actual reduction to practice of such in- vention. PAYMENT—TO FOREIGN ORGANIZATIONS (b) The Recipient shall report promptly to (For grants or cooperative agreements the grant officer each invention made in the with foreign organizations, this clause will performance of work under this grant. The be developed on a case-by-case basis.) report of such invention shall— (1) Identify the inventor(s) by full name; and § 1260.63 Customs clearance and visas. (2) Include such full and complete tech- CUSTOMS CLEARANCE AND VISAS nical information concerning the invention as is necessary to enable an understanding of (For grants or cooperative agreements the nature and operation thereof. with foreign organizations, this clause will (c) Reporting shall be made on NASA Form be developed on a case-by-case basis.) 1679 Disclosure of Invention and New Tech- nology (Including Software). § 1260.64 Taxes. (d) The Recipient hereby grants to the Government of the United States of Amer- TAXES ica, as represented by the Administrator of the National Aeronautics and Space Admin- (For grants or cooperative agreements istration, the full rights, title, and interest with foreign organizations, this clause will in and to each such invention throughout the be developed on a case-by-case basis.) world. § 1260.65 Exchange of technical data § 1260.60 Public information. and goods.
PUBLIC INFORMATION EXCHANGE OF TECHNICAL DATA AND GOODS October 2000 (For grants or cooperative agreements with foreign organizations, this clause will Information regarding this grant (includ- be developed on a case-by-case basis.) ing a copy of this award document) may be released by the Recipient without restric- § 1260.66 Listing of reportable equip- tion. However, technical information relat- ment and other property. ing to work performed under this grant where there was a NASA contribution should LISTING OF REPORTABLE EQUIPMENT AND be released by the Recipient only after con- OTHER PROPERTY sultation with the NASA Technical Officer. October 2000 § 1260.61 Allocation of risk/liability. (a) Title to federally-owned property pro- ALLOCATION OF RISK/LIABILITY vided to the Recipient remains vested in the Federal Government, and shall be managed October 2000 in accordance with § 1260.133. The following items of federally-owned property are being (a) With respect to activities undertaken provided to the recipient for use in perform- under this agreement, the Recipient agrees ance of the work under this grant or cooper- not to make any claim against NASA or the ative agreement: U.S. Government with respect to the injury { } or death of its employees or its contractors List property or state ‘‘not applicable.’’ and subcontractor employees, or to the loss (b) The following specific items of equip- of its property or that of its Contractors and ment acquired by the Recipient have been subcontractors, whether such injury, death, identified by NASA for transfer of title to damage or loss arises through negligence or the Government when no longer required for otherwise, except in the case of willful mis- performance under this grant or cooperative conduct. agreement. This equipment will be managed (b) In addition, the Recipient agrees to in- in accordance with 1260.134, and shall be demnify and hold the U.S. Government and transferred to NASA or NASA’s designee in its Contractors and subcontractors harmless accordance with the procedures set forth at from any third party claim, judgment, or 1260.134(g): cost arising from the injury to or death of {List property or state ‘‘not applicable.’’}
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§ 1260.67 Equipment and other prop- system to reflect current asset values for erty under grants with commercial agency financial statement purposes. There- firms. fore, it is essential that required reports be received no later than October 31. A final re- EQUIPMENT AND OTHER PROPERTY UNDER port is required within 30 days after expira- GRANTS WITH COMMERCIAL FIRMS tion of the agreement. (h) The requirements set forth in this spe- (a) This grant permits acquisition of spe- cial condition supercedes grant provision cial purpose equipment required for the con- 1260.27, Equipment and Other Property. duct of research. Acquisition of special pur- pose equipment costing in excess of $5,000 § 1260.68 Invoices and payments under and not included in the approved proposal grants with commercial firms. budget requires the prior approval of the Grant Officer unless the item is merely a dif- INVOICES AND PAYMENTS UNDER GRANTS WITH ferent model of an item shown in the ap- COMMERCIAL FIRMS proved proposal budget. (b) Recipients may not purchase, as a di- October 2000 rect cost to the grant, items of general pur- (a) Invoices for payment of actual incurred pose equipment, examples of which include costs shall be submitted by the Recipient no but are not limited to office equipment and more frequently than on alllbasis. furnishings, air conditioning equipment, re- (b) Invoices shall be submitted by the Re- production and printing equipment, motor cipient to the following offices: vehicles, and automatic data processing (1) The original invoice shall be sent di- equipment. If the Recipient requests an ex- rectly to the payment office designated on ception, the Recipient shall submit a written the grant cover page. request for Grant Officer approval, prior to (2) Copies of the invoice shall be sent to purchase by the Recipient, stating why the the NASA Technical Officer and NASA Grant Recipient cannot charge the general purpose Officer. equipment to indirect costs. (c) All invoices shall reference the grant (c) Under no circumstances shall grant number. funds be used to acquire land or any interest (d) The final invoice shall be marked therein, to acquire or construct facilities (as ‘‘Final’’ and shall be submitted within 90 defined in 48 CFR (FAR) 45.301), or to procure days of the expiration of the grant. passenger carrying vehicles. (e) The requirements set forth in this spe- (d) The Government shall have title to cial condition supercedes grant provision equipment and other personal property ac- 1260.26, Financial Management. quired with Government funds. Such prop- erty shall be disposed of pursuant to 48 CFR § 1260.69 Electronic funds transfer (FAR) 45.603. payment methods. (e) Title to Government furnished equip- ment (including equipment, title to which ELECTRONIC FUNDS TRANSFER PAYMENT has been transferred to the Government METHODS prior to completion of the work) will remain with the Government. October 2000 (f) The Recipient shall establish and main- (a) Payments under this grant will be made tain property management standards for by the Government by electronic funds Government property and otherwise manage transfer through the Treasury Fedline Pay- such property as set forth in 48 CFR (FAR) ment System (FEDLINE) or the Automated 45.5 and 48 CFR (NFS) 1845.5. Clearing House (ACH), at the option of the (g) Recipients shall submit annually a Government. After award, but no later than NASA Form 1018, NASA Property in the Cus- 14 days before an invoice is submitted, the tody of Contractors, in accordance with the Recipient shall designate a financial institu- instructions on the form, the provisions of 48 tion for receipt of electronic funds transfer CFR (NFS) 1845.71 and any supplemental in- payments, and shall submit this designation structions that may be issued by NASA for to the Grant Officer or other Government of- the current reporting period. The original ficial, as directed. NF 1018 shall be submitted to the center Dep- (b) For payment through FEDLINE, the uty Chief Financial Officer (Finance) with Recipient shall provide the following infor- three copies sent concurrently to the center mation: Industrial Property Officer. The annual re- (1) Name, address, and telegraphic abbre- porting period shall be from October 1 of viation of the financial institution receiving each year through September 30 of the fol- payment. lowing year. The report shall be submitted in (2) The American Bankers Association 9- time to be received by October 31. Negative digit identifying number for wire transfers of reports (i.e. no reportable property) are re- the financing institution receiving payment quired. The information contained in the re- if the institution has access to the Federal ports is entered into the NASA accounting Reserve Communication System.
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(3) Payee’s account number at the finan- ($50k or less) will normally not be dele- cial institution where funds are to be trans- gated. ferred. (3) Grant officers may waive specific (4) If the financial institution does not administration requirements in excep- have access to the Federal Reserve Commu- nications System, name, address, and tele- tional circumstances for individual graphic abbreviation of the correspondent fi- grants. Exceptions to delegation must nancial institution through which the finan- be justified and approved in writing by cial institution receiving payment obtains the Grant Officer, and made part of the wire transfer activity. Provide the tele- file. graphic abbreviation and American Bankers (4) Waiver of delegation of property Association identifying number for the cor- administration or closeout to be insti- respondent institution. tuted by a center as a standard prac- (c) For payment through ACH, the Recipi- tice constitutes a deviation to this ent shall provide the following information: (1) Routing transit number of the financial handbook, and requires approval in ac- institution receiving payment (same as cordance with § 1260.7. American Bankers Association identifying (b) Delegations will be made by use of number used for FEDLINE). NF 1674 (Exhibit F to subpart A of this (2) Number of account to which funds are part 1260). The NF 1674, the award docu- to be deposited. ment, and the approved budget will be (3) Type of depositor account (‘‘C’’ for sent to ONR in a single package (elec- checking, ‘‘S’’ for savings). tronically, when possible). (4) If the Recipient is a new enrollee to the (c) Upon acceptance of a delegation, ACH system, a ‘‘Payment Information ONR agrees to the following: Form,’’ SF 3881, must be completed before payment can be processed. (1) On a monthly basis, ONR will pro- (d) In the event the Recipient, during the vide each center a Report of Accepted performance of this grant, elects to des- Delegations listing each grant or coop- ignate a different financial institution for erative agreement accepted for admin- the receipt of any payment made using elec- istration, with pertinent information tronic funds transfer procedures, notification including the ONR point of contacts of such change and the required information name, phone number, and e-mail ad- specified above must be received by the ap- dress. propriate Government official 30 days prior to the date such change is to become effec- (2) On a monthly basis, ONR will tive. electronically send to each Center (e) The documents furnishing the informa- Commercial Technology Office a list- tion required in this clause must be dated ing of New Technology Reports it has and contain the signature, title, and tele- received. phone number of the Recipient official au- (3) On a quarterly basis, ONR will thorized to provide it, as well as the Recipi- provide the cognizant grant officers a ent’s name and contract number. ‘‘List of Delinquent Recipients’’ that (f) Failure to properly designate a finan- failed to provide timely interim or cial institution or to provide appropriate payee bank account information may delay final reports. payments of amounts otherwise properly (4) Property administration should due. always be delegated, even if it is not (g) The requirements set forth in this spe- anticipated that property will be pro- cial condition supercedes grant provision vided by the government or acquired 1260.26, Financial Management. by the recipient. ONR shall follow DoD property administration policies and POST-AWARD REQUIREMENTS procedures, plus the following NASA requirements: § 1260.70 Delegation of administration. (i) The recipient shall maintain prop- (a) Property administration and erty records and manage nonexpend- closeout of NASA grants and coopera- able personal property in accordance tive agreements will be delegated to with 14 CFR 1260.134. During Property the Office of Naval Research (ONR). Control System Analyses (PCSA), ONR Exceptions to this policy are: will check the recipient’s under- (1) Training grants will not be dele- standing and test compliance of prop- gated. erty management requirements, in- (2) Grants of short duration (9 cluding the accuracy of recipient prop- months or less) or low dollar value erty reports. ONR will provide one
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copy of each PCSA Report to the ap- before the expiration of the funded pe- propriate NASA center industrial prop- riod. erty officer. (c) Requests by the recipient to have (ii) ONR will investigate and notify a grant modified must be in writing to NASA as appropriate for any unauthor- the grant officer. Prior approvals and ized property acquisitions by the re- changes are detailed in § 1260.125. cipient. See the provision at § 1260.27. (d) A no-cost extension can be issued (iii) ONR will notify the cognizant by the recipient as detailed in para- grant officer and industrial policy offi- graph (b) of the provision at § 1260.23, cer when property is lost, damaged or Extensions, and § 1260.125(e). NASA re- destroyed. serves the right to disapprove the ex- (iv) Under no circumstances will Gov- tension request if the requirements set ernment property be disposed without forth at § 1260.125(e)(2) are not met, in- instructions from NASA. cluding if the extension request is not (v) Prior to disposition, except when received ten days prior to the grant ex- returned to NASA or reutilized on piration date. other NASA programs, ONR will ensure (e) When two or more actions are all NASA identifications are removed completed on a single supplement, the or obliterated from property, and hard supplement will reflect the effective drives of computers are cleared of sen- date of the earliest action. sitive or NASA owned/licensed soft- § 1260.72 Adherence to original budget ware/data. estimates. § 1260.71 Supplements and renewals. (a) Although NASA assumes no re- sponsibility for budget overruns, the (a) A NASA grant officer can unilat- recipient may spend grant funds with- erally make minor or administrative out strict adherence to individual allo- changes to a grant; e.g., Reports Sub- cations within the proposed budgets, stitution (§ 1260.55) and Withholding except that recipients must comply (§ 1260.56). with prior approval requirements for (b) To ensure timely completion and property and subcontracts as provided closeout of grants, renewal proposals in §§ 1260.27 and 1260.33. to continue the same effort at the same (b) The revision of budgets and pro- institution that are accepted for award gram plans are covered in § 1260.125. by NASA will be awarded as new grants versus continuation of the existing § 1260.73 Transfers, novations, and grant. change of name agreements. (1) When work under a grant is to be (a) When the principal investigator continued through an extension, or changes organizational affiliation and through a renewal of the work under a desires support for the research at a new grant, the continuation effort new location, (i.e., for the grant to be should be instituted concurrent with transferred), the grant officer should the original expiration date. When pos- first consult with the institution that sible, the period of performance should originally received the grant to ascer- be continuous with the prior grant pe- tain whether an acceptable replace- riod of performance. The extension or a ment principal investigator can be sub- renewal of a grant (see § 1260.13(a)) be- stituted to complete the research ef- yond the original expiration date is a fort. The final decision on whether an unilateral decision by NASA based acceptable replacement is available, or upon availability of funds, continued that the research effort should follow research relevance, and progress made the original principal investigator to by the recipient. the new location, is at the discretion of (2) To insure uninterrupted pro- the NASA technical Officer. If the deci- grams, the technical office should for- sion is made to transfer the grant, the ward to the grant office a completed grant at the original institution must award package, including a funded pro- be terminated, and a new proposal curement request, technical evaluation must be submitted to NASA via the ap- of the proposed budget, and other sup- propriate officials of the new institu- port documentation, at least 29 days tion. Although such a proposal will be
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reviewed in the normal manner, every Federal Demonstration Partnership are effort will be made to expedite a deci- exempt from this requirement. The sion. Regardless of the action taken on NASA grant officer will retain author- the new proposal, final reports on the ity for approving the expenditure of original grant, describing the scientific grant funds for the acquisition of such progress and expenditure to date, will equipment. Requests by grant recipi- be required. ents for the acquisition of equipment (b) Novation and change of name shall be supported by written docu- agreements are administrative actions mentation setting forth the descrip- requiring the involvement of the grant tion, purpose, and acquisition value of officer. Novations are legal instru- the equipment, and include a written ments under which obligations of an certification that the equipment will organization, (including the perform- be used exclusively for research. (A ance of grants), are assumed by a new change in the model number of a prior organization arising out of a transfer approved piece of equipment does not of assets, usually as a result of a merg- require re-submission for that item.) er or acquisition by the new organiza- NASA grant officers shall not approve tion. Change of name agreements are the expenditure of grant funds for the legal instruments executed by an orga- acquisition of equipment unless the re- nization and NASA that recognizes the cipient’s justification for the equip- legal change of name of the organiza- ment demonstrates that the equipment tion without disturbing the original will be used exclusively for research rights or obligations of the parties. activities. Procedures for completing novation (b) Vesting of title to property ac- and change of name agreements are set quired by the recipient shall conform forth at FAR subpart 42.12. All nova- to the following procedures: tion agreements and change of name (1) For awards to educational institu- agreements of the recipient, prior to tions and non-profit organizations, spe- execution, shall be reviewed by legal cial purpose and general purpose equip- counsel for legal sufficiency. It is rec- ment costing in excess of $5,000 (unless ommended that the cognizant ONR of- a lower threshold has been established fice be contacted to determine respon- sibilities to complete novation or by the recipient) acquired by the re- change of name agreements. cipient under a grant or cooperative agreement for the purpose of research § 1260.74 Property use, disposition, shall be titled to the recipient as ‘‘ex- and vesting of title. empt’’ equipment as set forth at (a) Approval for acquisition of prop- § 1260.133(b). The recipient shall have no erty shall conform to the following further obligation or accountability to procedures: the Federal Government for the use or (1) Providing existing government disposition of ‘‘exempt’’ property, in- equipment or property, or allowing ac- cluding reporting requirements. Spe- quisition of property by a grant recipi- cial purpose and general purpose equip- ent, should only be allowed in situa- ment costing in excess of $5,000 (unless tions where the recipient justifies the a lower threshold has been established need for the property and cannot carry by the recipient) acquired by the re- out the effort with existing property cipient under a grant or cooperative already in the possession of the recipi- agreement for non-research work shall ent. be titled to the recipient in accordance (2) In accordance with OMB Circulars with § 1260.134. A–21 and A–122, prior approval of prop- (2) For awards to commercial organi- erty acquisitions is required for special zations, the following property proce- purpose equipment with a unit cost dures will apply: over $5,000, general purpose equipment (i) Acquisition of special purpose with a unit cost over $5,000, (unless a equipment costing in excess of $5,000 lower threshold has been established by and not included in the approved pro- the recipient), or coherent systems (as posal budget requires the prior ap- defined in § 1260.74(e)) with a value of proval of the grant officer unless the over $5,000. Grant awards under the item is merely a different model of an
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item shown in the approved proposal mation contained in the reports is en- budget. tered into the NASA accounting sys- (ii) Recipients may not purchase, as a tem to reflect current asset values for direct cost to the grant, items of gen- agency financial statement purposes. eral purpose equipment, examples of Therefore, it is essential that required which include but are not limited to of- reports be received no later than Octo- fice equipment and furnishings, air ber 31. A final report is required within conditioning equipment, reproduction 30 days after expiration of the agree- and printing equipment, motor vehi- ment. cles, and automatic data processing (c) Equipment with a unit price of equipment. If the recipient requests an $5,000 or less (unless a lower threshold exception, the recipient shall submit a has been established by the recipient) written request for grant officer ap- is properly classified as ‘‘supplies,’’ is proval, prior to purchase by the recipi- not subject to transfer to the Agency, ent, stating why the recipient cannot and will be titled to the recipient in ac- charge the general purpose equipment cordance with § 1260.135. to indirect costs. (d) Title to Federally-owned property (iii) Under no circumstances shall remains with the Government, and is grant funds be used to acquire land or subject to the following additional re- any interest therein, to acquire or con- quirements: struct facilities (as defined in 48 CFR (1) In accordance with Public Law 94– (FAR) 45.301), or to procure passenger 519, NASA will not acquire property carrying vehicles. from other agencies for use on NASA (iv) The Government shall have title grants. to equipment and other personal prop- (2) Government property provided to erty acquired with Government funds. a grant recipient for use under a grant Such property shall be disposed of pur- will be identified through inclusion of suant to 48 CFR (FAR) 45.603. the special condition at § 1260.66, List- (v) Title to Government furnished ing of Reportable Equipment and Other equipment (including equipment, title Property. to which has been transferred to the (3) When Federally-owned property is Government prior to completion of the reported excess by a recipient, the ad- work) will remain with the Govern- ministrative grant officer will report ment. the equipment to the center industrial (vi) The Recipient shall establish and property officer, who will consult with maintain property management stand- the technical officer concerning prop- ards for Government property and oth- erty disposition. erwise manage such property as set (4) NASA policy encourages the dona- forth in 48 CFR (FAR) 45.5 and 48 CFR tion of existing, excess NASA property (NFS) 1845.5. to nonprofit organizations whose pri- (vii) Recipients shall submit annu- mary purpose is the conduct of sci- ally a NASA Form 1018, NASA Prop- entific research. erty in the Custody of Contractors, in (e) When two or more components are accordance with the instructions on fabricated into a single coherent sys- the form, the provisions of 48 CFR tem in such a way that the components (NFS) 1845.71 and any supplemental in- lose their separate identities, and their structions that may be issued by NASA separation would render the system for the current reporting period. The useless for its original purpose, the original NF 1018 shall be submitted to components will be considered as inte- the center Deputy Chief Financial Offi- gral parts of a single system. If such a cer, Finance, with three copies sent system includes recipient-owned com- concurrently to the center industrial ponents, the property will be consid- property officer. The annual reporting ered to be exempt. The requirement for period shall be from October 1 of each agreement regarding NASA’s retention year through September 30 of the fol- of its option to take title shall further lowing year. The report shall be sub- apply where it is expected that one or mitted in time to be received by Octo- more recipient-acquired components ber 31. Negative reports (i.e. no report- costing $5,000 or less will be fabricated able property) are required. The infor- into a single coherent system costing
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in excess of $5,000. However, an item advance payments. Instructions and that is used ancillary to a system, answers to payment questions will be without loss of its separate identity provided by the Financial Management and usefulness, will be considered as a Office of the Center that issued the separate item and not as an integral grant. (see § 1260.152.) component of the system. (2) The annual Inventory Report of (f) Property administration and plant Federally Owned Property in Custody clearance for all grants and coopera- of the Recipient will be submitted by tive agreements will be delegated to the recipient as required by § 1260.27(e). the appropriate ONR office. The listing shall include information (g) NASA grant officers will provide specified in § 1260.134(f) together with copies of property related grant docu- beginning and ending dollar value to- mentation to the center industrial tals for the reporting period. Negative property officer and to the Office of reports (i.e., where no property has Naval Research (at time of award or been acquired or provided, or where all modification) when the NASA program acquired property has been titled to office elects to retain title to an exist- the recipient as exempt) are not re- ing item of Government property, to quired. Please note that any property furnish the property to the recipient in acquired by the recipient and not titled lieu of donation, or to take title to to the recipient as exempt, must be re- property acquired by the recipient. ported, even when titled to the recipi- When NASA acquires title to items of ent as non-exempt property in accord- recipient acquired equipment or when ance with the procedures set forth at NASA transfers an item of Government § 1260.134. property to a recipient as Federally (3) A Progress Report shall be sub- owned property, the NASA grant offi- mitted in accordance with §§ 1260.22 and cer shall notify the cognizant NASA 1260.151. Recipients are not required to center financial management officer, submit more than the original and two the industrial property officer and Of- copies. At the request of the technical fice of Naval Research to ensure proper officer, technical reports can be sub- entries in financial and property ac- mitted as new findings are made rather counting records. than on a predetermined time schedule, by use of the special condition at § 1260.75 Summary of report require- § 1260.55, entitled ‘‘Reports Substi- ments. tution.’’ (a) Report responsibilities of the (4) An Educational Activity Report is grant officer are set forth as follows: required annually for education grants (1) The grant officer is responsible for in accordance with § 1260.22. The report submitting the Individual Procurement is due 60 days prior to the anniversary Action Report (NF 507) for all grant date of the grant or cooperative agree- and cooperative agreement actions. ment. (2) The Committee on Academic (5) A Report of Joint NASA/Recipient Science and Engineering (CASE) Re- Inventions is required for all grants port (NF 1356), for grants and coopera- and cooperative agreements, as appli- tive agreements awarded to edu- cable, in accordance with § 1260.28. cational institutions, is submitted by (6) A Disclosure of Subject Invention the program office with the basic is required for all grants and coopera- award procurement request and com- tive agreements, as applicable, in ac- pleted by the grant officer. The grant cordance with § 1260.28. The reporting officer should initiate an amendment of the invention shall be made within to the NF 1356 whenever the principal two months after the inventor dis- investigator or the technical officer closes it to the recipient, and will be changes. reported on NASA Form 1679 Disclo- (b) Intermediate report responsibil- sure of Invention and New Technology ities of the recipient are as follows: (Including Software) in accordance (1) The Federal Cash Transactions with the procedures set forth under Report (SF 272) shall be submitted by § 1260.28. the recipient, in accordance with (7) An Election of Title to a Subject § 1260.26(a), as a condition of receiving Invention is required for all grants and
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cooperative agreements, as applicable, ventions (or negative statement) re- in accordance with § 1260.28. The notice quired to be disclosed that resulted is due within 1 year after disclosure of from the work (see the provision at the subject invention if a statutory bar § 1260.28). exists, otherwise within 2 years. (4) A Final Inventory Report of Fed- (8) A Listing of Subject Inventions is erally Owned Property, including required for all grants and cooperative equipment where title was taken by agreement, in accordance with § 1260.28. the Government, is required for all The listing is due annually. grants and cooperative agreements, (9) A Notification of Decision to where property or equipment has been Forego Patent Protection is required provided by the government or ac- for all grants and cooperative agree- quired by the recipient, § 1260.27. The ments, as applicable, in accordance with § 1260.28. The notification is due 30 report is due within 60 days after the days before the expiration of the re- expiration of the grant or cooperative sponse period. agreement. Negative reports (i.e., (10) A Utilization of Subject Inven- where no property has been acquired or tion Report is required for all grants provided) are required. and cooperative agreements, as appli- (5) A Final Educational Activity Re- cable, in accordance with § 1260.28. The port is required for all education report is due annually. grants or cooperative agreements. The (11) A Notice of Proposed Transfer of report is due within 90 days after the Technology is required for all grants expiration of the grant or cooperative and cooperative agreements, as appli- agreement. cable, in accordance with § 1260.30. The (6) A Faculty Advisor Survey is re- notice is required prior to transferring quired for all training grants. The re- technology to a foreign firm or institu- port is due from the student’s faculty tion. advisor within 60 days after the expira- (12) An Annual NASA Form 1018, tion of the training grant. NASA Property in the Custody of Con- (7) A Summary of Research is re- tractors, is required for all grants and quired for all training grants. The re- cooperative agreements with commer- port is due from the student within 90 cial organizations. The reports are due days after the expiration of the train- October 31st of each year. Negative re- ports (i.e. no reportable property) are ing grant. required. (8) An Administrative Report is re- (c) Final report responsibilities of quired for all training grants. The re- the recipient are as follows: port is due within 90 days after the ex- (1) A Subject Inventions Final Report piration of the training grant. is required for all grants and coopera- (9) A Student Evaluation Form is re- tive agreements, as applicable, in ac- quired for all training grants. The form cordance with § 1260.28. The report is is due from the student within 90 days due within 90 days after the expiration after the expiration of the training of the grant or cooperative agreement. grant. (2) A properly certified Final Federal (10) A Final NASA Form 1018, NASA Cash Transactions Report, SF 272, is Property in the Custody of Contrac- required from the recipient for each tors, is required for all grants and co- grant, in accordance with §§ 1260.26(a) operative agreements with commercial and 1260.152. The report is due within 90 organizations. The report is due within days after the expiration of the grant 30 days after the expiration of the or cooperative agreement. grant or cooperative agreement. (3) A Summary of Research is re- (d) To clarify report requirements to quired for all research grants in ac- cordance with § 1260.22. Citation of pub- grant and cooperative agreement re- lications resulting from research, or cipients, the grant officer will include abstracts thereof, may serve as all or the ‘‘Required Publications and Re- part of the Summary of Research. The ports’’ form (Exhibit G to subpart A of Summary of Research shall also in- this part 1260) as part of the award doc- clude a complete list of all subject in- ument.
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§ 1260.76 Termination and enforce- § 1260.77 Closeout procedures. ment. Closeout is the process by which (a) Suspension or termination of a NASA determines that all applicable grant prior to the planned expiration administrative actions and all required date must be reserved for exceptional work under the instrument have been situations that cannot be handled any completed by both the recipient and other way (see § 1260.160). NASA and no further activity is ex- (b) The Director, Program Operations pected (see § 1260.171). Division (Code HS), shall provide to the (a) Closeout will begin within 90 days General Services Administration infor- after the expiration date of the grant. mation concerning all NASA NASA’s goal for closeout to be com- debarments, suspensions, determina- pleted is within 180 days after the expi- tions of ineligibility, and voluntary ex- ration of the grant. clusions of persons in accordance with (b) Those who are designated to re- 14 CFR 1265.505. ceive NASA reports (except for CASI, (c) Remedies for Noncompliance are which only acknowledges receipt) must delineated in § 1260.162. provide certification to the NASA (d) Failure of the recipient to provide grant officer, and to ONR when dele- a required report can result in the gated, that the reports have been re- Agency and the public being denied in- ceived and satisfactorily completed. formation about grant activities, Electronic certifications are accept- NASA officials having less information able. See §§ 1260.75 and 1260.171(a). The for making decisions, grant closeout property certification should indicate being delayed, and confidence being un- that disposal of any remaining Govern- dermined as to whether the recipient ment property has been made as di- will meet the requirements under other rected and that NASA has been com- grants. Because NASA grants provide pensated for any residual inventory. for advance payments, a recipient (c) When ONR has been delegated could be fully paid before final reports closeout and has completed its actions, are due. At this point, it is too late to the NASA grant officer is to receive withhold payment on the existing from ONR all of the following: grant. (1) Certification that all required re- (e) Consistent with §§ 1260.122(h) and ports have been received and approved. 1260.162(a), NASA may suspend or ter- However, when a NASA technical offi- minate advance payments from recipi- cer does not respond to a third request ents that fail to comply with reporting from ONR to provide a certification for requirements. To remedy failure to fur- a Summary of Research, ONR may pro- nish timely reports, special condition vide a ‘‘qualified acceptance state- at § 1260.56, Withholding, should be used ment’’ in lieu of the required certifi- when awarding a new grant or modi- cation, after providing written notifi- fying an existing grant with non-re- cation to the NASA grant officer. sponsive organizations. (2) A DD Form 1593 Contract Admin- (1) Special condition at § 1260.56 al- istration Completion Record (or equiv- lows the grant officer to instruct the alent electronic notification), without Financial Management Office to sus- supporting or backup documents, indi- pend or terminate advance payments cating property administration is com- under an institutions letter of credit plete. pending receipt of the satisfactorily (3) An original, signed DD Form 1594 completed reports required in § 1260.75. Contract Completion Statement. (2) The grant officer may waive the (d) A grant is administratively com- withholding requirement when the re- plete and ready for closeout when: cipient has taken corrective action (1) Property disposition has been that makes withholding unnecessary. completed. To release for payment the amount (2) Certifications for all reports have withheld, grant officers shall send a been received. memorandum to their Financial Man- (3) A DD Form 1594 has been received, agement Office. when delegated.
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(4) Payments have been made for al- by Federal statute or executive order. lowable reimbursable costs, and re- Non-profit organizations that imple- funds have been received for any bal- ment Federal programs for the States ance of unobligated cash advanced that are also subject to State requirements. is not authorized to be retained for use on other grants (see §§ 1260.171 through § 1260.102 Definitions. 1260.173). Accrued expenditures means the (e) Grants will not be closed out if charges incurred by the recipient dur- litigation or an appeal is pending, or ing a given period requiring the provi- when termination action has not been sion of funds for: completed. (1) Goods and other tangible property (f) Records will be retained in accord- received; ance with § 1260.153 and NPG 1441.1, (2) Services performed by employees, Record Retention Schedules. As set contractors, subcontractors, and other forth in the NPG, grant files are gen- payees; and erally retired to the Federal Records (3) Other amounts becoming owed Center 2 years after completion of the under programs for which no current grant or agreement, and destroyed services or performance is required. when 6 years, 3 months old. Accrued income means the sum of: (1) Earnings during a given period APPENDIX TO SUBPART A TO PART 1260— from services performed by the recipi- LISTING OF EXHIBITS ent, and goods and other tangible prop- Exhibit A—Budget Summary erty delivered to purchasers; and Exhibit B—Standard Grant and Cooperative (2) Amounts becoming owed to the Agreement Cover Page recipient for which no current services Exhibit C—Provisions or performance is required by the re- Exhibit D—Federal Demonstration Partner- cipient. ship Terms and Conditions Acquisition cost of equipment means Exhibit E—Special Conditions for Coopera- tive Agreements between NASA and the the net invoice price of the equipment, Commercial Space Centers including the cost of modifications, at- Exhibit F—NASA 1674 Letter of Delegation tachments, accessories, or auxiliary for the Administration of Grants and Coop- apparatus necessary to make the prop- erative Agreements erty usable for the purpose for which it Exhibit G—Required Publications and Re- was acquired. Other charges, such as ports the cost of installation, transportation, NOTE: Exhibits are available at NASA taxes, duty or protective in-transit in- Headquarters, Code HC, Washington, D.C. 20546. surance, shall be included or excluded from the unit acquisition cost in ac- cordance with the recipient’s regular Subpart B—Uniform Administrative accounting practices. Requirements for Grants and Advance means a payment made by Cooperative Agreements With Treasury check or other appropriate Institutions of Higher Edu- payment mechanism to a recipient cation, Hospitals, and Other upon its request either before outlays Non-Profit Organizations are made by the recipient or through the use of predetermined payment GENERAL schedules. Award means a grant or cooperative § 1260.101 Purpose. agreement that provides support or This subpart implements OMB Cir- stimulation to accomplish a public cular No. A–110 and establishes uniform purpose. Awards include research administrative requirements for NASA grants, training grants, facilities grants and agreements awarded to in- grants, educational grants, and cooper- stitutions of higher education, hos- ative agreements in the form of money pitals, and other non-profit organiza- or property in lieu of money, by NASA tions. NASA shall not impose addi- to an eligible recipient. The term does tional or inconsistent requirements, not include: Technical assistance, except as provided in §§ 1260.104 and which provides services instead of 1260.114 or unless specifically required money; other assistance in the form of
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loans, loan guarantees, interest sub- conduct basic or applied research by a sidies, or insurance; direct payments of non-profit institution of higher edu- any kind to individuals; and, contracts cation or non-profit organization which are required to be entered into whose principal purpose is conducting and administered under procurement scientific research. laws and regulations. Federal funds authorized means the Cash contributions means the recipi- total amount of Federal funds obli- ent’s cash outlay, including the outlay gated by the Federal Government for of money contributed to the recipient use by the recipient. This amount may by third parties. include any authorized carryover of un- Closeout means the process by which obligated funds from prior funding pe- NASA determines that all applicable riods when permitted by agency regula- administrative actions and all required tions or agency implementing instruc- work of the award have been completed tions. by the recipient and NASA. Federal share of real property, equip- Contract means a procurement con- ment, or supplies means that percent- tract under an award, and a procure- age of the property’s acquisition costs ment subcontract under a recipient’s and any improvement expenditures contract. paid with Federal funds. Cost sharing or matching means that Funding period means the period of portion of project or program costs not time when NASA funding is available borne by NASA. for obligation by the recipient. Date of completion means the date on Intangible property and debt instru- which all work under an award is com- ments means, but is not limited to, pleted or the date on the award docu- trademarks, copyrights, patents and ment, or any supplement or amend- patent applications and such property ment thereto, on which NASA sponsor- as loans, notes and other debt instru- ship ends. ments, lease agreements, stock and Disallowed costs means those charges other instruments of property owner- to an award that NASA determines to ship, whether considered tangible or in- be unallowable, in accordance with the tangible. applicable Federal cost principles or NASA means the National Aero- other terms and conditions contained nautics and Space Administration in the award. (NASA), including its authorized rep- Equipment means tangible nonexpend- resentatives. able personal property including ex- Obligations mean the amounts of or- empt property charged directly to the ders placed, contracts and grants award having a useful life of more than awarded, services received and similar one year and an acquisition cost of transactions during a given period that $5,000 or more per unit. However, con- require payment by the recipient dur- sistent with recipient policy, lower ing the same or a future period. limits may be established. Outlays or expenditures means charges Excess property means property under made to the project or program. They the control of any Federal awarding may be reported on a cash or accrual agency that, as determined by the head basis. For reports prepared on a cash thereof, is no longer required for its basis, outlays are the sum of cash dis- needs or the discharge of its respon- bursements for direct charges for goods sibilities. and services, the amount of indirect ex- Exempt property means tangible per- pense charged, the value of third party sonal property acquired in whole or in in-kind contributions applied and the part with Federal funds, where a Fed- amount of cash advances and payments eral awarding agency has statutory au- made to subcontractors. For reports thority to vest title in the recipient prepared on an accrual basis, outlays without further obligation to the Fed- are the sum of cash disbursements for eral Government. An example of ex- direct charges for goods and services, empt property authority is contained the amount of indirect expense in- in the Federal Grant and Cooperative curred, the value of in-kind contribu- Agreement Act (31 U.S.C. 6306) for tions applied, and the net increase (or property acquired under an award to decrease) in the amounts owed by the
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recipient for goods and other property term includes public and private insti- received, for services performed by em- tutions of higher education, public and ployees, contractors, subcontractors private hospitals, and other quasi-pub- and other payees and other amounts lic and private non-profit organizations becoming owed under programs for such as, but not limited to, community which no current services or perform- action agencies, research institutes, ance are required. educational associations, and health Personal property means property of centers. The term may include com- any kind except real property. It may mercial organizations, foreign or inter- be tangible, having physical existence, national organizations (such as agen- or intangible, having no physical exist- cies of the United Nations) which are ence, such as copyrights, patents, or recipients, subcontractors, or contrac- securities. tors or subcontractors of recipients. Prior approval means written ap- The term does not include government- proval by an authorized official evi- owned contractor-operated facilities or dencing prior consent. research centers providing continued Program income means gross income support for mission-oriented, large- earned by the recipient that is directly scale programs that are government- generated by a supported activity or owned or controlled, or are designated earned as a result of the award (see ex- as federally-funded research and devel- clusions in § 1260.124(c) and (f)). Pro- opment centers. gram income includes, but is not lim- Research and development means all ited to, income from fees for services research activities, both basic and ap- performed, the use or rental of real or plied, and all development activities personal property acquired under feder- that are supported at universities, col- ally-funded projects, the sale of com- leges, and other nonprofit institutions. modities or items fabricated under an ‘‘Research’’ is defined as a systematic award, license fees and royalties on study directed toward fuller scientific patents and copyrights, and interest on knowledge or understanding of the sub- loans made with award funds. Interest ject studied. ‘‘Development’’ is the sys- earned on advances of NASA funds is tematic use of knowledge and under- not program income. Except as other- wise provided in the regulations in this standing gained from research directed subpart or the terms and conditions of toward the production of useful mate- the award, program income does not rials, devices, systems, or methods, in- include the receipt of principal on cluding design and development of pro- loans, rebates, credits, discounts, etc., totypes and processes. The term ‘‘re- or interest earned on any of them. search’’ also included activities involv- Project costs means all allowable ing the training of individuals in re- costs, as set forth in the applicable search techniques where such activities Federal cost principles, incurred by a utilize the same facilities as other re- recipient and the value of the contribu- search and development activities and tions made by third parties in accom- where such activities are not included plishing the objectives of the award in the instruction function. during the project period. Small awards means a grant or coop- Project period means the period estab- erative agreement not exceeding the lished in the award document during small purchase threshold. which NASA sponsorship begins and Subaward means an award of finan- ends. cial assistance in the form of money, or Property means, unless otherwise property in lieu of money, made under stated, real property, equipment, intel- an award by a recipient to an eligible lectual property and debt instruments. subrecipient or by a subrecipient to a Real property means land, including lower tier subrecipient. The term in- land improvements, structures and ap- cludes financial assistance when pro- purtenances thereto, but excludes mov- vided by any legal agreement, even if able machinery and equipment. the agreement is called a contract, but Recipient means an organization re- does not include procurement of goods ceiving an award directly from NASA and services nor does it include any to carry out a project or program. The form of assistance which is excluded
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from the definition of ‘‘award’’ of this cipient and is determined by deducting section. the cumulative obligations from the Subrecipient means the legal entity to cumulative funds authorized. which a subaward is made and which is Unrecovered indirect cost means the accountable to the recipient for the use difference between the amount awarded of the funds provided. The term may and the amount which could have been include foreign or international organi- awarded under the recipient’s approved zations (such as agencies of the United negotiated indirect cost rate. Nations). Working capital advance means a pro- Supplies means all personal property cedure whereby funds are advanced to excluding equipment, intellectual prop- the recipient to cover its estimated erty, and debt instruments as defined disbursement needs for a given initial in this section, and inventions of a con- period. tractor conceived or first actually re- duced to practice in the performance of § 1260.103 Effect on other issuances. work under a funding agreement (‘‘sub- For awards subject to this subpart, ject inventions’’), as defined in 37 CFR the requirements of this subpart apply, part 401, ‘‘Rights to Inventions Made except to the extent that any adminis- by Nonprofit Organizations and Small trative requirements of codified pro- Business Firms Under Government gram regulations, program manuals, Grants, Contracts, and Cooperative handbooks and other nonregulatory Agreements.’’ materials are required by statute, or Suspension means an action by NASA are authorized in accordance with the that temporarily withdraws NASA deviations provision in § 1260.104. sponsorship under an award, pending corrective action by the recipient or § 1260.104 Deviations. pending a decision to terminate the The Office of Management and Budg- award by NASA. Suspension of an et (OMB) may grant exceptions for award is a separate action from suspen- classes of grants or recipients subject sion under Federal agency regulations to the requirements of this subpart implementing Executive Orders 12549 when exceptions are not prohibited by and 12689, ‘‘Debarment and Suspen- statute. However, in the interest of sion.’’ maximum uniformity, exceptions from Termination means the cancellation the requirements of this subpart shall of Federal sponsorship, in whole or in be permitted only in unusual cir- part, under an agreement at any time cumstances. NASA may apply more re- prior to the date of completion. strictive requirements to a class of re- Third party in-kind contributions cipients when approved by OMB. NASA means the value of non-cash contribu- may apply less restrictive require- tions provided by non-Federal third ments when awarding small awards, ex- parties. Third party in-kind contribu- cept for those requirements which are tions may be in the form of real prop- statutory. Exceptions on a case-by-case erty, equipment, supplies and other ex- basis may also be made by NASA. See pendable property, and the value of § 1260.6(c). goods and services directly benefiting and specifically identifiable to the § 1260.105 Subawards. project or program. Unless sections of this subpart spe- Unliquidated obligations, for financial cifically exclude subrecipients from reports prepared on a cash basis, means coverage, the provisions of this subpart the amount of obligations incurred by shall be applied to subrecipients per- the recipient that have not been paid. forming work under awards if such sub- For reports prepared on an accrued ex- recipients are institutions of higher penditure basis, they represent the education, hospitals or other non-profit amount of obliga tions incurred by the organizations. State and local govern- recipient for which an outlay has not ment subrecipients are subject to the been recorded. provisions of 14 CFR part 1273, ‘‘Uni- Unobligated balance means the por- form Administrative Requirements for tion of the funds authorized by NASA Grants and Cooperative Agreements to that has not been obligated by the re- State and Local Governments.’’
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PRE-AWARD REQUIREMENTS and suspension rule, 14 CFR part 1265, ‘‘Governmentwide Debarment and Sus- § 1260.110 Purpose. pension (Nonprocurement) and Govern- Sections 1260.111 through 1260.117 pre- mentwide Requirements for Drug-Free scribe forms and instructions and other Workplace (Grants),’’ implementing pre-award matters to be used in apply- Executive Orders 12549 and 12689, ‘‘De- ing for NASA awards. barment and Suspension.’’ This rule re- stricts contracts with certain parties § 1260.111 Pre-award policies. that are debarred, suspended or other- (a) Use of grants and cooperative agree- wise excluded from or ineligible for ments, and contracts. In each instance, participation in Federal assistance pro- NASA shall decide on the appropriate grams or activities. award instrument (i.e. grant, coopera- tive agreement, or contract). The Fed- § 1260.114 Special award conditions. eral Grant and Cooperative Agreement If an applicant or recipient has a his- Act (31 U.S.C. 6301–08) governs the use tory of poor performance, is not finan- of grants, cooperative agreements and cially stable, has a management sys- contracts. A grant or cooperative tem that does not meet the standards agreement shall be used only when the prescribed in this subpart, has not con- principal purpose of a transaction is to formed to the terms and conditions of accomplish a public purpose of support a previous award, or is not otherwise or stimulation authorized by Federal responsible, NASA may impose addi- statute. The statutory criterion for tional requirements as needed. Such choosing between grants and coopera- applicant or recipient will be notified tive agreements is that for the latter, in writing as to the nature of the addi- ‘‘substantial involvement is expected tional requirements, the reason why between the executive agency and the the additional requirements are being State, local government, or other re- imposed, the nature of the corrective cipient when carrying out the activity action needed, the time allowed for contemplated in the agreement.’’ Con- completing the corrective actions, and tracts shall be used when the principal the method for requesting reconsider- purpose is acquisition of property or ation of the additional requirements services for the direct benefit or use of imposed. Any special conditions shall the Federal Government. be promptly removed once the condi- (b) Public notice and priority setting. tions that prompted them have been NASA notifies the public of its in- corrected. tended funding priorities for discre- tionary grant programs through Broad § 1260.115 Metric system of measure- Agency Announcements, Cooperative ment. Agreement Notices, Agency-Wide pro- The Metric Conversion Act, as gram announcements, and other ap- amended by the Omnibus Trade and proved forms of announcements. Competitiveness Act (15 U.S.C. 205) de- clares that the metric system is the § 1260.112 Forms for applying for Fed- preferred measurement system for U.S. eral assistance. trade and commerce. The Act requires (a) NASA shall comply with the ap- each Federal agency to establish a date plicable report clearance requirements or dates in consultation with the Sec- of 5 CFR part 1320, ‘‘Controlling Paper- retary of Commerce, when the metric work Burdens on the Public,’’ with re- system of measurement will be used in gard to all forms used by the NASA in the agency’s procurements, grants, and place of or as a supplement to the other business-related activities. Met- Standard Form 424 (SF 424) series. ric implementation may take longer (b) Applicants shall use those forms where the use of the system is initially and instructions prescribed by NASA impractical or likely to cause signifi- in § 1260.10. cant inefficiencies in the accomplish- ment of federally-funded activities. 1260.113 Debarment and suspension. NASA follows the provisions of Execu- NASA and recipients shall comply tive Order 12770, ‘‘Metric Usage in Fed- with the nonprocurement debarment eral Government Programs.’’ NASA’s
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policy with respect to the metric meas- § 1260.121 Standards for financial urement system is stated in NASA Pol- management systems. icy Directive (NPD) 8010.2, Use of the (a) Recipients shall relate financial Metric System of Measurement in data to performance data and develop NASA Programs. unit cost information whenever prac- tical. For awards that support re- § 1260.116 Resource Conservation and Recovery Act (RCRA). search, it should be noted that it is generally not appropriate to develop Under the RCRA (Pub. L. 94–580 codi- unit cost information. fied at 42 U.S.C. 6962), any State agency (b) Recipients’ financial management or agency of a political subdivision of a systems shall provide for the following. State which is using appropriated Fed- (1) Accurate, current and complete eral funds must comply with section disclosure of the financial results of 6002 of the RCRA (42 U.S.C. 6962). Sec- each federally-sponsored project or tion 6002 requires that preference be program in accordance with the report- given in procurement programs to the ing requirements set forth in § 1260.152. purchase of specific products con- If NASA requires reporting on an ac- taining recycled materials identified in crual basis from a recipient that main- guidelines developed by the Environ- tains its records on other than an ac- mental Protection Agency (EPA) (40 crual basis, the recipient shall not be CFR parts 247 through 254). Accord- required to establish an accrual ac- ingly, State and local institutions of counting system. These recipients may higher education, hospitals, and non- develop such accrual data for its re- profit organizations that receive direct ports on the basis of an analysis of the Federal awards or other Federal funds documentation on hand. shall give preference in their procure- (2) Records that identify adequately ment programs funded with Federal the source and application of funds for funds to the purchase of recycled prod- federally-sponsored activities. These ucts pursuant to the EPA guidelines. records shall contain information per- § 1260.117 Certifications and represen- taining to Federal awards, authoriza- tations. tions, obligations, unobligated bal- ances, assets, outlays, income and in- Unless prohibited by statute or codi- terest. fied regulation, NASA will allow re- (3) Effective control over and ac- cipients to submit certain certifi- countability for all funds, property and cations and representations required other assets. Recipients shall ade- by statute, executive order, or regula- quately safeguard all such assets and tion on an annual basis, if the recipi- assure they are used solely for author- ents have ongoing and continuing rela- ized purposes. tionships with the agency. Annual cer- (4) Comparison of outlays with budg- tifications and representations shall be et amounts for each award. Whenever signed by responsible officials with the appropriate, financial information authority to ensure recipients’ compli- should be related to performance and ance with the pertinent requirements. unit cost data. POST-AWARD REQUIREMENTS (5) Written procedures to minimize the time elapsing between the transfer FINANCIAL AND PROGRAM MANAGEMENT of funds to the recipient from the U.S. Treasury and the issuance or redemp- § 1260.120 Purpose of financial and tion of checks, warrants or payments program management. by other means for program purposes Sections 1260.121 through 1260.128 pre- by the recipient. To the extent that the scribe standards for financial manage- provisions of the Cash Management Im- ment systems, methods for making provement Act (CMIA) (Pub. L. 101–453) payments and rules for: satisfying cost govern, payment methods of State sharing and matching requirements, agencies, instrumentalities, and fiscal accounting for program income, budget agents shall be consistent with CMIA revision approvals, making audits, de- Treasury-State Agreements or the termining allowability of cost, and es- CMIA default procedures codified at 31 tablishing fund availability. CFR part 205, ‘‘Withdrawal of Cash
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from the Treasury for Advances under be in accordance with the actual, im- Federal Grant and Other Programs.’’ mediate cash requirements of the re- (6) Written procedures for deter- cipient organization in carrying out mining the reasonableness, allocability the purpose of the approved program or and allowability of costs in accordance project. The timing and amount of cash with the provisions of the applicable advances shall be as close as is admin- Federal cost principles and the terms istratively feasible to the actual dis- and conditions of the award. bursements by the recipient organiza- (7) Accounting records including cost tion for direct program or project costs accounting records that are supported and the proportionate share of any al- by source documentation. lowable indirect costs. (c) Where the Federal Government (c) Whenever possible, advances shall guarantees or insures the repayment of be consolidated to cover anticipated money borrowed by the recipient, cash needs for all awards made by NASA, at its discretion, may require NASA to the recipient. adequate bonding and insurance if the (1) Advance payments will be made bonding and insurance requirements of by electronic funds transfer. the recipient are not deemed adequate (2) Advance payment mechanisms are to protect the interest of the Federal subject to 31 CFR part 205. Government. (d) [Reserved. Not used by NASA.] (d) NASA may require adequate fidel- (e) Reimbursement is the preferred ity bond coverage where the recipient method when the requirements in para- lacks sufficient coverage to protect the graph (b) of this section cannot be met. Federal Government’s interest. NASA may also use this method on any (e) Where bonds are required in the construction agreement, or if the situations described in this section, the major portion of the construction bonds shall be obtained from compa- project is accomplished through pri- nies holding certificates of authority vate market financing or Federal as acceptable sureties, as prescribed in loans, and the Federal assistance con- 31 CFR part 223, ‘‘Surety Companies stitutes a minor portion of the project. Doing Business with the United When the reimbursement method is States.’’ used, NASA shall make payment with- in 30 days after receipt of the billing, § 1260.122 Payment. unless the billing is improper. (a) Payment methods shall minimize (f) If a recipient cannot meet the cri- the time elapsing between the transfer teria for advance payments and NASA of funds from the United States Treas- has determined that reimbursement is ury and the issuance or redemption of not feasible because the recipient lacks checks, warrants, or payment by other sufficient working capital, NASA may means by the recipients. Payment provide cash on a working capital ad- methods of State agencies or instru- vance basis. Under this procedure, mentalities shall be consistent with NASA shall advance cash to the recipi- Treasury-State CMIA agreements or ent to cover its estimated disburse- default procedures codified at 31 CFR ment needs for an initial period gen- part 205. erally geared to the awardee’s dis- (b)(1) Recipients are to be paid in ad- bursing cycle. Thereafter, NASA shall vance, provided they maintain or dem- reimburse the recipient for its actual onstrate the willingness to maintain: cash disbursements. The working cap- (i) Written procedures that minimize ital advance method of payment shall the time elapsing between the transfer not be used for recipients unwilling or of funds and disbursement by the re- unable to provide timely advances to cipient; and their subcontractor to meet the sub- (ii) Financial management systems contractor’s actual cash disburse- that meet the standards for fund con- ments. trol and accountability as established (g) To the extent available, recipi- in § 1260.121. ents shall disburse funds available from (2) Cash advances to a recipient orga- repayments to an interest earned on a nization shall be limited to the min- revolving fund, program income, re- imum amounts needed and be timed to bates, refunds, contract settlements,
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audit recoveries and interest earned on pected to earn interest in excess of $250 such funds before requesting additional per year on Federal cash balances. cash payments. (3) The depository would require an (h) Unless otherwise required by stat- average or minimum balance so high ute, NASA will not withhold payments that it would not be feasible within the for proper charges made by recipients expected Federal and non-Federal cash at any time during the project period resources. unless the conditions in paragraphs (l) Interest earned on Federal ad- (h)(1) or (2) of this section apply. vances deposited in interest-bearing (1) A recipient has failed to comply accounts in excess of $250 per year shall with the project objectives, the terms be remitted annually to Department of and conditions of the award, or NASA Health and Human Services (DHHS), reporting requirements. Payment Management System, Rock- (2) The recipient is delinquent in a ville, MD 20852. Interest amounts up to debt to the United States as defined in $250 per year may be retained by the OMB Circular A–129, ‘‘Managing Fed- recipient for administrative expense. eral Credit Programs.’’ Under such con- In accordance with 31 CFR part 206, in- ditions, NASA may, upon reasonable terest should be remitted electroni- notice, inform the recipient that pay- cally through the Automated Clearing ments shall not be made for obligations House (ACT) to DHHS. Recipients incurred after a specified date until the without this capability may make the conditions are corrected or the indebt- remittance by check. In either case, edness to the Federal Government is the remittance should be payable to liquidated. DHHS and should indicate the recipi- (i) Standards governing the use of ent’s Entity Identification Number banks and other institutions as deposi- (EIN) and reason, i.e., ‘‘Interest tories of funds advanced under awards earned.’’ are as follows. (m) Except as noted elsewhere in this (1) Except for situations described in subpart, only the following forms shall paragraph (i)(2) of this section, NASA be authorized for the recipients in re- shall not require separate depository questing advances and reimburse- accounts for funds provided to a recipi- ments. Federal agencies shall not re- ent or establish any eligibility require- quire more than an original and two ments for depositories for funds pro- copies of these forms. vided to a recipient. However, recipi- (1) SF–270, Request for Advance or ents must be able to account for the re- Reimbursement. [Reserved. Not used ceipt, obligation and expenditure of by NASA.] funds. (2) SF–271, Outlay Report and Re- (2) Advances of Federal funds shall be quest for Reimbursement for Construc- deposited and maintained in insured tion Programs. The SF–271 may be used accounts whenever possible. for requesting reimbursement for (j) Consistent with the national goal NASA construction programs. of expanding the opportunities for women-owned and minority-owned § 1260.123 Cost sharing or matching. business enterprises, recipients shall be (a) All contributions, including cash encouraged to use women-owned and and third party in-kind, shall be ac- minority-owned banks (a bank which is cepted as part of the recipient’s cost owned at least 50 percent by women or sharing or matching when such con- minority group members). tributions meet all of the following cri- (k) Recipients shall maintain ad- teria. vances of Federal funds in interest (1) Are verifiable from the recipient’s bearing accounts, unless the conditions records. in paragraphs (k)(1), (2), or (3) of this (2) Are not included as contributions section apply. for any other federally-assisted project (1) The recipient receives less than or program. $120,000 in Federal awards per year. (3) Are necessary and reasonable for (2) The best reasonably available in- proper and efficient accomplishment of terest bearing account would not be ex- project or program objectives.
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(4) Are allowable under the applica- that are reasonable, allowable, and al- ble cost principles. locable, but exclusive of overhead (5) Are not paid by the Federal Gov- costs), provided these services are in ernment under another award, except the same skill for which the employee where authorized by Federal statute to is normally paid. be used for cost sharing or matching. (f) Donated supplies may include (6) Are provided for in the approved such items as expendable equipment, budget when required by NASA. office supplies, laboratory supplies or (7) Conform to other provisions of workshop and classroom supplies. this subpart, as applicable. Value assessed to donated supplies in- (b) Unrecovered indirect costs may be cluded in the cost sharing or matching included as part of cost sharing or share shall be reasonable and shall not matching only with the prior approval exceed the fair market value of the of the cognizant NASA grant officer. property at the time of the donation. (c) Values for recipient contributions (g) The method used for determining of services and property shall be estab- cost sharing or matching for donated lished in accordance with the applica- equipment, buildings and land for ble cost principles. If NASA authorizes which title passes to the recipient may recipients to donate buildings or land differ according to the purpose of the for construction/facilities acquisition award, if the conditions in paragraph projects or long-term use, the value of (g)(1) or (2) of this section apply. the donated property for cost sharing (1) If the purpose of the award is to or matching shall be the lesser of para- assist the recipient in the acquisition graph (c)(1) or (2) of this section. of equipment, buildings or land, the (1) The certified value of the remain- total value of the donated property ing life of the property recorded in the may be claimed as cost sharing or recipient’s accounting records at the matching. time of donation. (2) If the purpose of the award is to (2) The current fair market value. support activities that require the use However, when there is sufficient jus- of equipment, buildings or land, nor- tification, NASA may approve the use mally only depreciation or use charges of the current fair market value of the for equipment and buildings may be donated property, even if it exceeds the made. However, the full value of equip- certified value at the time of donation ment or other capital assets and fair to the project. rental charges for land may be allowed, (d) Volunteer services furnished by provided that NASA has approved the professional and technical personnel, charges. consultants, and other skilled and un- (h) The value of donated property skilled labor may be counted as cost shall be determined in accordance with sharing or matching if the service is an the usual accounting policies of the re- integral and necessary part of an ap- cipient, with the following qualifica- proved project or program. Rates for tions: volunteer services shall be consistent (1) The value of donated land and with those paid for similar work in the buildings shall not exceed its fair mar- recipient’s organization. In those in- ket value at the time of donation to stances in which the required skills are the recipient as established by an inde- not found in the recipient organization, pendent appraiser (e.g., certified real rates shall be consistent with those property appraiser or General Services paid for similar work in the labor mar- Administration representative) and ket in which the recipient competes for certified by a responsible official of the the kind of services involved. In either recipient. case, paid fringe benefits that are rea- (2) The value of donated equipment sonable, allowable, and allocable may shall not exceed the fair market value be included in the valuation. of equipment of the same age and con- (e) When an employer other than the dition at the time of donation. recipient furnishes the services of an (3) The value of donated space shall employee, these services shall be val- not exceed the fair rental value of com- ued at the employee’s regular rate of parable space as established by an inde- pay (plus an amount of fringe benefits pendent appraisal of comparable space
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and facilities in a privately-owned copyrighted material, patents, patent building in the same locality. applications, trademarks, and inven- (4) The value of loaned equipment tions produced under an award. How- shall not exceed its fair rental value. ever, Patent and Trademark Amend- (5) The following requirements per- ments (35 U.S.C. 18) apply to inventions tain to the recipient’s supporting made under an experimental, develop- records for in-kind contributions from mental, or research award. third parties. (i) Volunteer services shall be docu- § 1260.125 Revision of budget and pro- mented and, to the extent feasible, sup- gram plans. ported by the same methods used by (a) The budget plan is the financial the recipient for its own employees. expression of the project or program as (ii) The basis for determining the approved during the award process. It valuation for personal service, mate- may include either the Federal and rial, equipment, buildings and land non-Federal share, or only the Federal shall be documented. share, depending upon requirements in the regulations in this subpart. It shall § 1260.124 Program income. be related to performance for program (a) The standards set forth in this evaluation purposes whenever appro- section shall be used to account for priate. program income related to projects fi- (b) Recipients are required to report nanced in whole or in part with Federal deviations from budget and program funds. plans, and request prior approvals for (b) Program income earned during budget and program plan revisions, in the project period shall be retained by accordance with this section. the recipient and added to funds com- (c) For nonconstruction awards, re- mitted to the project by NASA and the cipients shall request prior approvals recipient, and used to further eligible from NASA for the following program project or program objectives, unless or budget related reasons, except the NASA indicates in the terms and con- item in paragraph (c)(5) of this section, ditions of the award another alter- which is waived by NASA. native to account for program income (1) Change in the scope or the objec- or the recipient is subject to special tive of the project or program (even if award conditions, as indicated in there is no associated budget revision § 1260.114. requiring prior written approval). (c) Unless program regulations or the (2) Change in a key person specified terms and conditions of the award pro- in the application or award document. vide otherwise, recipients shall have no (3) The absence for more than three obligation to the Federal Government months, or a 25 percent reduction in regarding program income earned after time devoted to the project, by the ap- the end of the project period. proved project director or principal in- (d) Unless program regulations or the vestigator. terms and conditions of the award pro- (4) The need for additional Federal vide otherwise, costs incident to the funding. generation of program income may be (5) The transfer of amounts budgeted deducted from gross income to deter- for indirect costs to absorb increases in mine program income, provided these direct costs, or vice versa. costs have not been charged to the award. NOTICE: NASA waives prior approval of (e) Proceeds from the sale of property such revisions. shall be handled in accordance with the (6) The inclusion of costs that require requirements of the Property Stand- prior approval in accordance with OMB ards (See §§ 1260.130 through 1260.137). Circular A–21, ‘‘Cost Principles for In- (f) Unless program regulations or the stitutions of Higher Education’’; OMB terms and condition of the award pro- Circular A–122, ‘‘Cost Principles for vide otherwise, recipients shall have no Non-Profit Organizations’’; 45 CFR part obligation to the Federal Government 74 appendix E, ‘‘Principles for Deter- with respect to program income earned mining Costs Applicable to Research from license fees and royalties for and Development under Grants and
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Contracts with Hospitals’’; or 48 CFR categories or programs, functions and part 31, ‘‘Contract Cost Principles and activities for awards in which NASA’s Procedures,’’ as applicable. share of the project exceeds $100,000 (7) The transfer of funds allotted for and the cumulative amount of such training allowances (direct payment to transfers exceeds or is expected to ex- trainees) to other categories of ex- ceed 10 percent of the total budget as pense. last approved by NASA. NASA will en- (8) Unless described in the applica- sure that any such program regulation tion and funded in the approved requirements are announced in pro- awards, the subaward, transfer or con- gram guidelines or are incorporated as tracting out of any work under an special conditions in award documents. award. This provision does not apply to No program regulation shall permit a the purchase of supplies, material, transfer that would cause any Federal equipment or general support services. appropriation or part thereof to be (d) No other prior approval require- used for purposes other than those con- ments for specific items will be im- sistent with the original intent of the posed unless a deviation has been ap- appropriation. proved by OMB. (g) All other changes to nonconstruc- (e) NASA has determined to waive tion budgets, except for the changes de- the following cost-related and adminis- scribed in paragraph (j) of this section, trative prior written approvals other- do not require prior approval. wise required by OMB Circulars A–21, (h) For construction awards, recipi- A–110 and A–122 to allow recipients to ents shall request prior written ap- do the following: proval promptly from NASA for budget (1) Incur pre-award costs 90 calendar revisions whenever the conditions in days prior to award or more than 90 paragraphs (h) (1), (2) or (3) of this sec- calendar days with the prior approval tion apply. of NASA. All pre-award costs are in- (1) The revision results from changes curred at the recipient’s risk (i.e., in the scope or the objective of the NASA is under no obligation to reim- burse such costs if for any reason the project or program. recipient does not receive an award or (2) The need arises for additional if the award is less than anticipated Federal funds to complete the project. and inadequate to cover such costs). (3) A revision is desired which in- (2) Initiate a one-time extension of volves specific costs for which prior the expiration date of the award of up written approval requirements may be to 12 months unless one or more of the imposed consistent with applicable following conditions apply. For one- OMB cost principles listed in § 1260.127. time extensions, the recipient must no- (i) No other prior approval require- tify NASA in writing with the sup- ments for specific items will be im- porting reasons and revised expiration posed unless a deviation has been ap- date at least 10 days before the expira- proved by OMB. tion date specified in the award. This (j) When NASA makes an award that one-time extension may not be exer- provides support for both construction cised merely for the purpose of using and nonconstruction work, NASA re- unobligated balances. quires the recipient to request prior ap- (i) The terms and conditions of award proval from NASA before making any prohibit the extension. fund or budget transfers between the (ii) The extension requires additional two types of work supported. Federal funds. (k) For both construction and non- (iii) The extension involves any construction awards, NASA requires change in the approved objectives or recipients to notify NASA in writing scope of the project. promptly whenever the amount of Fed- (3) Unless directed otherwise by the eral authorized funds is expected to ex- grant officer, carry forward unobli- ceed the needs of the recipient for the gated balances to subsequent funding project period by more than $5,000 or periods. five percent of the Federal award, (f) Program regulations may restrict whichever is greater. This notification the transfer of funds among direct cost shall not be required if an application
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for additional funding is submitted for profit organizations is determined in a continuation award. accordance with the provisions of OMB (l) When requesting approval for Circular A–122, ‘‘Cost Principles for budget revisions, recipients shall use Non-Profit Organizations.’’ The allow- the budget forms that were used in the ability of costs incurred by institutions application unless NASA indicates a of higher education is determined in letter of request suffices. accordance with the provisions of OMB (m) Within 30 calendar days from the Circular A–21, ‘‘Cost Principles for date of receipt of the request for budg- Educational Institutions.’’ The allow- et revisions, NASA shall review the re- ability of costs incurred by hospitals is quest and notify the recipient whether determined in accordance with the pro- the budget revisions have been ap- visions of appendix E of 45 CFR part 74, proved. If the revision is still under ‘‘Principles for Determining Costs Ap- consideration at the end of 30 calendar plicable to Research and Development days, NASA shall inform the recipient Under Grants and Contracts with Hos- in writing of the date when the recipi- pitals.’’ The allowability of costs in- ent may expect the decision. curred by commercial organizations and those non-profit organizations list- § 1260.126 Non-Federal audits. ed in Attachment C to Circular A–122 is (a) Recipients and subrecipients that determined in accordance with the pro- are institutions of higher education or visions of the Federal Acquisition Reg- other non-profit organizations (includ- ulation (FAR) at 48 CFR part 31. ing hospitals) shall be subject to the audit requirements contained in the § 1260.128 Period of availability of Single Audit Act Amendments of 1966 funds. (31 U.S.C. 7501–7507) and revised OMB Where a funding period is specified, a Circular A–133, ‘‘Audits of States, recipient may charge to the grant only Local Governments, and Other Non- allowable costs resulting from obliga- Profit Institutions.’’ tions incurred during the funding pe- (b) State and local governments shall riod and any pre-award costs author- be subject to the audit requirements ized by NASA. contained in the Single Audit Act Amendments of 1966 (31 U.S.C. 7501– PROPERTY STANDARDS 7507) and revised OMB Circular A–133, ‘‘Audits of States, Local Governments, § 1260.130 Purpose of property stand- and Non-Profit Organizations.’’ ards. (c) For-profit hospitals not covered Sections 1260.131 through 1260.137 set by the audit provisions of revised OMB forth uniform standards governing Circular A–133 shall be subject to the management and disposition of prop- audit requirements of NASA. erty furnished by the Federal Govern- (d) Commercial organizations shall ment whose cost was charged to a be subject to the audit requirements of project supported by a Federal award. NASA or the prime recipient as incor- Recipients shall observe these stand- porated into the award document. ards under awards and NASA will not impose additional requirements, unless § 1260.127 Allowable costs. specifically required by Federal stat- For each kind of recipient, there is a ute. The recipient may use its own set of Federal principles for deter- property management standards and mining allowable costs. Allowability of procedures provided it observes the costs shall be determined in accord- provisions of §§ 1260.131 through ance with the cost principles applicable 1260.137. to the entity incurring the costs. Thus, allowability of costs incurred by State, § 1260.131 Insurance coverage. local or federally-recognized Indian Recipients shall, at a minimum, pro- tribal governments is determined in vide the equivalent insurance coverage accordance with the provisions of OMB for real property and equipment ac- Circular A–87, ‘‘Cost Principles for quired with Federal funds as provided State and Local Governments.’’ The al- for property owned by the recipient. lowability of costs incurred by non- Federally-owned property need not be
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insured unless required by the terms (3) The recipient may be directed to and conditions of the award. transfer title to the property to the Federal Government or to an eligible § 1260.132 Real property. third party provided that, in such Unless otherwise provided by statute, cases, the recipient shall be entitled to the requirements concerning the use compensation for its attributable per- and disposition of real property ac- centage of the current fair market quired in whole or in part under awards value of the property. are as follows: § 1260.133 Federally-owned and ex- (a) Title to real property shall vest in empt property. the recipient subject to the condition (a) Federally-owned property. (1) Title that the recipient shall use the real to federally-owned property remains property for the authorized purpose of vested in the Federal Government. Re- the project as long as it is needed and cipients shall submit annually an in- shall not encumber the property with- ventory listing of federally-owned out approval of NASA. property in their custody to NASA. (b) The recipient shall obtain written Upon completion of the award or when approval by NASA for the use of real the property is no longer needed, the property in other federally-sponsored recipient shall report the property to projects when the recipient determines NASA for further Federal agency utili- that the property is no longer needed zation. for the purpose of the original project. (2) If NASA has no further need for Use in other projects shall be limited the property, it shall be declared excess to those under federally-sponsored and reported to the General Services projects (i.e., awards) or programs that Administration, unless NASA has stat- have purposes consistent with those utory authority to dispose of the prop- authorized for support by NASA. erty by alternative methods (e.g., the (c) When the real property is no authority provided by the Federal longer needed as provided in para- Technology Transfer Act (15 U.S.C. 3710 graphs (a) and (b) of this section, the (I)) to donate research equipment to recipient shall request disposition in- educational and non-profit organiza- structions from NASA or its successor tions in accordance with Executive Federal awarding agency. NASA shall Order 12821, ‘‘Improving Mathematics observe one or more of the following and Science Education in Support of disposition instructions. the National Education Goals.’’) Ap- (1) The recipient may be permitted to propriate instructions shall be issued retain title without further obligation to the recipient by NASA. to the Federal Government after it (b) Exempt property. Under the au- compensates the Federal Government thority of the Childs Act, 31 U.S.C. 6301 for that percentage of the current fair to 6308, NASA has determined to vest market value of the property attrib- title to property acquired with Federal utable to the Federal participation in funds in the recipient without further the project. obligation to NASA, including report- (2) The recipient may be directed to ing requirements. sell the property under guidelines pro- vided by NASA and pay the Federal § 1260.134 Equipment. Government for that percentage of the (a) For grants and cooperative agree- current fair market value of the prop- ments for the purpose of research, erty attributable to the Federal par- NASA’s policy is to vest title to prop- ticipation in the project (after deduct- erty acquired with Federal funds in the ing actual and reasonable selling and recipient without further obligation to fix-up expenses, if any, from the sales NASA, including reporting require- proceeds). When the recipient is au- ments, as set forth at § 1260.133(b). For thorized or required to sell the prop- grants and cooperative agreements for erty, proper sales procedures shall be non-research purposes, and in the ex- established that provide for competi- ceptional circumstance where a devi- tion to the extent practicable and re- ation is requested for a grant or coop- sult in the highest possible return. erative agreement for research to not
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vest title in the recipient as exempt, (f) The recipient’s property manage- equipment shall vest in the recipient ment standards for equipment acquired subject to conditions of this section. with Federal funds and federally-owned These policies are not applicable to equipment shall include all of the fol- grants and cooperative agreements lowing: with commercial firms (see (1) Equipment records shall be main- § 1260.74(b)(2) and § 1274.401.) tained accurately and shall include the (b) The recipient shall not use equip- following information. ment acquired with Federal funds to (i) A description of the equipment. provide services to non-Federal outside (ii) Manufacturer’s serial number, organizations for a fee that is less than model number, Federal stock number, private companies charge for equiva- national stock number, or other identi- lent services, unless specifically au- fication number. thorized by Federal statute, for as long (iii) Source of the equipment, includ- as the Federal Government retains an ing the award number. interest in the equipment. (iv) Whether title vests in the recipi- (c) The recipient shall use the equip- ent or the Federal Government. ment in the project or program for (v) Acquisition date (or date re- which it was acquired as long as need- ceived, if the equipment was furnished ed, whether or not the project or pro- by the Federal Government) and cost. gram continues to be supported by Fed- (vi) Information from which one can eral funds and shall not encumber the calculate the percentage of Federal property without approval of NASA. participation in the cost of the equip- When no longer needed for the original ment (not applicable to equipment fur- project or program, the recipient shall nished by the Federal Government). use the equipment in connection with (vii) Location and condition of the its other federally-sponsored activities, equipment and the date the informa- in the following order of priority: tion was reported. (1) Activities sponsored by NASA, (viii) Unit acquisition cost. then (ix) Ultimate disposition data, in- (2) Activities sponsored by other Fed- cluding date of disposal and sales price eral agencies. or the method used to determine cur- (d) During the time that equipment rent fair market value where a recipi- is used on the project or program for ent compensates NASA for its share. which it was acquired, the recipient (2) Equipment owned by the Federal shall make it available for use on other Government shall be identified to indi- projects or programs if such other use cate Federal ownership. will not interfere with the work on the (3) A physical inventory of equipment project or program for which the equip- shall be taken and the results rec- ment was originally acquired. First onciled with the equipment records at preference for such other use shall be least once every two years. Any dif- given to other projects or programs ferences between quantities deter- sponsored by NASA; second preference mined by the physical inspection and shall be given to projects or programs those shown in the accounting records sponsored by other Federal agencies. If shall be investigated to determine the the equipment is owned by the Federal causes of the difference. The recipient Government, use on other activities shall, in connection with the inven- not sponsored by the Federal Govern- tory, verify the existence, current uti- ment shall be permissible if authorized lization, and continued need for the by NASA. User charges shall be treated equipment. as program income. (4) A control system shall be in effect (e) When acquiring replacement to insure adequate safeguards to pre- equipment, the recipient may use the vent loss, damage, or theft of the equipment to be replaced as trade-in or equipment. Any loss, damage, or theft sell the equipment and use the pro- of equipment shall be investigated and ceeds to offset the costs of the replace- fully documented; if the equipment was ment equipment subject to the ap- owned by the Federal Government, the proval of NASA. recipient shall promptly notify NASA.
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(5) Adequate maintenance procedures age of the recipient’s participation in shall be implemented to keep the the cost of the original project or pro- equipment in good condition. gram to the current fair market value (6) Where the recipient is authorized of the equipment, plus any reasonable or required to sell the equipment, prop- shipping or interim storage costs in- er sales procedures shall be established curred. which provide for competition to the (3) If the recipient is instructed to extent practicable and result in the otherwise dispose of the equipment, the highest possible return. recipient shall be reimbursed by NASA (g) When the recipient no longer for such costs incurred in its disposi- needs the equipment, the equipment tion. may be used for other activities in ac- (4) NASA may reserve the right to cordance with the following standards. transfer the title to the Federal Gov- For equipment with a current per unit ernment or to a third party named by fair market value of $5,000 or more, the NASA when such third party is other- recipient may retain the equipment for wise eligible under existing statutes. other uses provided that compensation Such transfer shall be subject to the is made to the original Federal award- following standards. ing agency or its successor. The (i) The equipment shall be appro- amount of compensation shall be com- priately identified in the award or oth- puted by applying the percentage of erwise made known to the recipient in Federal participation in the cost of the writing. original project or program to the cur- (ii) NASA shall issue disposition in- rent fair market value of the equip- structions within 120 calendar days ment. If the recipient has no need for after receipt of a final inventory. The the equipment, the recipient shall re- final inventory shall list all equipment quest disposition instructions from acquired with grant funds and feder- NASA. NASA shall determine whether ally-owned equipment. If NASA fails to the equipment can be used to meet issue disposition instructions within NASA‘s requirements. If no require- the 120 calendar day period, the recipi- ment exists within NASA, the avail- ent shall apply the standards of this ability of the equipment shall be re- section, as appropriate. When NASA ported to the General Services Admin- exercises its right to take title, the istration by NASA to determine wheth- equipment shall be subject to the pro- er a requirement for the equipment ex- visions for federally-owned equipment. ists in other Federal agencies. NASA [65 FR 62900, Oct. 19, 2000, as amended at 66 shall issue instructions to the recipient FR 54125, Oct. 26, 2001] no later than 120 calendar days after the recipient’s request and the fol- § 1260.135 Supplies and other expend- lowing procedures shall govern. able property. (1) If so instructed or if disposition (a) Title to supplies and other ex- instructions are not issued within 120 pendable property shall vest in the re- calendar days after the recipient’s re- cipient upon acquisition. If there is a quest, the recipient shall sell the residual inventory of unused supplies equipment and reimburse NASA an exceeding $5,000 in total aggregate amount computed by applying to the value upon termination or completion sales proceeds the percentage of Fed- of the project or program and the sup- eral participation in the cost of the plies are not needed for any other fed- original project or program. However, erally-sponsored project or program, the recipient shall be permitted to de- the recipient shall retain the supplies duct and retain from the Federal share for use on non-Federal sponsored ac- $500 or ten percent of the proceeds, tivities or sell them, but shall, in ei- whichever is less, for the recipient’s ther case, compensate the Federal Gov- selling and handling expenses. ernment for its share. The amount of (2) If the recipient is instructed to compensation shall be computed in the ship the equipment elsewhere, the re- same manner as for equipment. cipient shall be reimbursed by the Fed- (b) The recipient shall not use sup- eral Government by an amount which plies acquired with Federal funds to is computed by applying the percent- provide services to non-Federal outside
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organizations for a fee that is less than (2) The following definitions apply private companies charge for equiva- for purposes of this paragraph (d): lent services, unless specifically au- (i) Research data is defined as the re- thorized by Federal statute as long as corded factual material commonly ac- the Federal Government retains an in- cepted in the scientific community as terest in the supplies. necessary to validate research findings, but not any of the following: Prelimi- § 1260.136 Intangible property. nary analyses, drafts of scientific pa- (a) The recipient may assert copy- pers, plans for future research, peer re- right in any work that is copyrightable views, or communications with col- and was created, or for which copyright leagues. This ‘‘recorded’’ material ex- ownership was purchased, under an cludes physical objects (e.g., laboratory award. NASA is granted a royalty-free, samples). Research data does not in- nonexclusive and irrevocable right to clude: reproduce, publish, prepare derivative (A) Trade secrets, commercial infor- works or otherwise use the work for mation, materials necessary to be held Federal purposes, and to authorize oth- confidential by a researcher until they ers to do so. are published, or similar information which is protected under law; and (b) Recipients are subject to applica- (B) Personnel and medical informa- ble regulations governing patents and tion and similar information the dis- inventions, including government-wide closure of which would constitute a regulations issued by the Department clearly unwarranted invasion of per- of Commerce at 37 CFR part 401, sonal privacy, such as information that ‘‘Rights to Inventions Made by Non- could be used to identify a particular profit Organizations and Small Busi- person in a research study. ness Firms Under Government Grants, (ii) Published is defined as either Contracts and Cooperative Agree- when: ments.’’ (A) Research findings are published (c) NASA has the right to: in a peer-reviewed scientific or tech- (1) Obtain, reproduce, publish, or oth- nical journal; or erwise use the data first produced (B) A Federal agency publicly and of- under an award; and ficially cites the research findings in (2) Authorize others to receive, repro- support of an agency action that has duce, publish, or otherwise use such the force and effect of law. data for Federal purposes. (iii) Used by the Federal Government (d)(1) In addition, in response to a in developing an agency action that Freedom of Information Act (FOIA) re- has the force and effect of law is de- quest for research data relating to pub- fined as when an agency publicly and lished research findings produced under officially cites the research findings in an award that were used by the Federal support of an agency action that has Government in developing an agency the force and effect of law. action that has the force and effect of (e) Title to intangible property and law, NASA shall request, and the re- debt instruments acquired under an cipient shall provide, within a reason- award or subcontract vests upon acqui- able time, the research data so that sition in the recipient. The recipient they can be made available to the pub- shall use that property for the origi- lic through the procedures established nally-authorized purpose, and the re- under the FOIA. If NASA obtains the cipient shall not encumber the prop- research data solely in response a FOIA erty without approval of NASA. When request, NASA may charge the re- no longer needed for the originally au- quester a reasonable fee equaling the thorized purpose, disposition of the in- full incremental cost of obtaining the tangible property shall occur in accord- research data. This fee should reflect ance with the provisions of § 1260.134(g). costs incurred by NASA, the recipient, (f) Due to the substantial involve- and applicable subrecipients. This fee ment on the part of NASA under a co- is in addition to any fees the agency operative agreement, intellectual prop- may assess under the FOIA (5 U.S.C. erty may be produced by Federal em- 552(a)(4)(A)). ployees and NASA contractors tasked
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to perform NASA assigned activities. protests of award, source evaluation or Title to intellectual property created other matters of a contractual nature. under the cooperative agreement by Matters concerning violation of statute NASA or its contractors will initially are to be referred to such Federal, vest with the creating party. Certain State or local authority as may have rights may be exchanged with the re- proper jurisdiction. cipient. § 1260.142 Codes of conduct. § 1260.137 Property trust relationship. The recipient shall maintain written Real property, equipment, intangible standards of conduct governing the property and debt instruments that are performance of its employees engaged acquired or improved with Federal in the award and administration of funds shall be held in trust by the re- contracts. No employee, officer, or cipient as trustee for the beneficiaries agent shall participate in the selection, of the project or program under which award, or administration of a contract the property was acquired or improved. supported by Federal funds if a real or NASA may require recipients to record apparent conflict of interest would be liens or other appropriate notices of involved. Such a conflict would arise record to indicate that personal or real when the employee, officer, or agent, property has been acquired or improved any member of his or her immediate with Federal funds and that use and family, his or her partner, or an orga- disposition conditions apply to the nization which employs or is about to property. employ any of the parties indicated herein, has a financial or other interest PROCUREMENT STANDARDS in the firm selected for an award. The officers, employees, and agents of the § 1260.140 Purpose of procurement recipient shall neither solicit nor ac- standards. cept gratuities, favors, or anything of Sections 1260.141 through 1260.148 set monetary value from contractors, or forth standards for use by recipients in parties to subagreements. However, re- establishing procedures for the pro- cipients may set standards for situa- curement of supplies and other expend- tions in which the financial interest is able property, equipment, real property not substantial or the gift is an unso- and other services with Federal funds. licited item of nominal value. The These standards are furnished to en- standards of conduct shall provide for sure that such materials and services disciplinary actions to be applied for are obtained in an effective manner violations of such standards by offi- and in compliance with the provisions cers, employees, or agents of the re- of applicable Federal statutes and ex- cipient. ecutive orders. No additional procure- ment standards or requirements shall § 1260.143 Competition. be imposed by NASA upon recipients, All procurement transactions shall unless specifically required by Federal be conducted in a manner to provide, statute or executive order or approved to the maximum extent practical, open in accordance with the deviation proce- and free competition. The recipient dures of § 1260.6. shall be alert to organizational con- flicts of interest as well as noncompeti- § 1260.141 Recipient responsibilities. tive practices among contractors that The standards contained in this sec- may restrict or eliminate competition tion do not relieve the recipient of the or otherwise restrain trade. In order to contractual responsibilities arising ensure objective contractor perform- under its contract(s). The recipient is ance and eliminate unfair competitive the responsible authority, without re- advantage, contractors that develop or course to NASA, regarding the settle- draft specifications, requirements, ment and satisfaction of all contrac- statements of work, invitations for tual and administrative issues arising bids and/or requests for proposals shall out of procurements entered into in be excluded from competing for such support of an award or other agree- procurements. Awards shall be made to ment. This includes disputes, claims, the bidder or offeror whose bid or offer
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is responsive to the solicitation and is minority-owned firms, and women’s most advantageous to the recipient, business enterprises, whenever pos- price, quality and other factors consid- sible. Recipients of NASA awards shall ered. Solicitations shall clearly set take all of the following steps to fur- forth all requirements that the bidder ther this goal. or offeror shall fulfill in order for the (1) Ensure that small businesses, mi- bid or offer to be evaluated by the re- nority-owned firms, and women’s busi- cipient. Any and all bids or offers may ness enterprises are used to the fullest be rejected when it is in the recipient’s extent practicable. interest to do so. (2) Make information on forthcoming opportunities available and arrange § 1260.144 Procurement procedures. time frames for purchases and con- (a) All recipients shall establish writ- tracts to encourage and facilitate par- ten procurement procedures. These ticipation by small businesses, minor- procedures shall provide for, at a min- ity-owned firms, and women’s business imum, that the conditions in para- enterprises. graphs (a)(1), (2) and (3) of this section (3) Consider in the contract process apply. whether firms competing for larger (1) Recipients avoid purchasing un- contracts intend to subcontract with necessary items. small businesses, minority-owned (2) Where appropriate, an analysis is firms, and women’s business enter- made of lease and purchase alter- prises. natives to determine which would be (4) Encourage contracting with con- the most economical and practical pro- sortiums of small businesses, minority- curement for the Federal Government. owned firms and women’s business en- (3) Solicitations for goods and serv- terprises when a contract is too large ices provide for all of the following: for one of these firms to handle individ- (i) A clear and accurate description ually. of the technical requirements for the (5) Use the services and assistance, as material, product or service to be pro- appropriate, of such organizations as cured. In competitive procurements, the Small Business Administration and such a description shall not contain the Department of Commerce’s Minor- features which unduly restrict com- ity Business Development Agency in petition. the solicitation and utilization of (ii) Requirements which the bidder/ small businesses, minority-owned firms offeror must fulfill and all other fac- and women’s business enterprises. tors to be used in evaluating bids or (c) The type of procuring instruments proposals. used (e.g., fixed price contracts, cost re- (iii) A description, whenever prac- imbursable contracts, purchase orders, ticable, of technical requirements in and incentive contracts) shall be deter- terms of functions to be performed or mined by the recipient but shall be ap- performance required, including the propriate for the particular procure- range of acceptable characteristics or ment and for promoting the best inter- minimum acceptable standards. est of the program or project involved. (iv) The specific features of ‘‘brand The ‘‘cost-plus-a-percentage-of-cost’’ name or equal’’ descriptions that bid- or ‘‘percentage of construction cost’’ ders are required to meet when such methods of contracting shall not be items are included in the solicitation. used. (v) The acceptance, to the extent (d) Contracts shall be made only with practicable and economically feasible, responsible contractors who possess of products and services dimensioned in the potential ability to perform suc- the metric system of measurement. cessfully under the terms and condi- (vi) Preference, to the extent prac- tions of the proposed procurement. ticable and economically feasible, for Consideration shall be given to such products and services that conserve matters as contractor integrity, record natural resources and protect the envi- of past performance, financial and ronment and are energy efficient. technical resources or accessibility to (b) Positive efforts shall be made by other necessary resources. In certain recipients to utilize small businesses, circumstances, contracts with certain
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parties are restricted by 14 CFR part § 1260.147 Contract administration. 1265, the implementation of Executive A system for contract administration Orders 12549 and 12689, ‘‘Debarment and shall be maintained to ensure con- Suspension.’’ tractor conformance with the terms, (e) Recipients shall, on request, make conditions and specifications of the available for NASA, pre-award review contract and to ensure adequate and and procurement documents, such as timely follow up of all purchases. Re- request for proposals or invitations for cipients shall evaluate contractor per- bids, independent cost estimates, etc., formance and document, as appro- when any of the following conditions priate, whether contractors have met apply. (1) A recipient’s procurement proce- the terms, conditions and specifica- dures or operation fails to comply with tions of the contract. the procurement standards in NASA’s § 1260.148 Contract provisions. implementation of this subpart. (2) The procurement is expected to The recipient shall include, in addi- exceed the small purchase threshold tion to provisions to define a sound and and is to be awarded without competi- complete agreement, the following pro- tion or only one bid or offer is received visions in all contracts. The following in response to a solicitation. provisions shall also be applied to sub- (3) The procurement, which is ex- contracts. pected to exceed the small purchase (a) Contracts in excess of the small threshold, specifies a ‘‘brand name’’ purchase threshold shall contain con- product. tractual provisions or conditions that (4) The proposed award over the allow for administrative, contractual, small purchase threshold is to be or legal remedies in instances in which awarded to other than the apparent a contractor violates or breaches the low bidder under a sealed bid procure- contract terms, and provide for such ment. remedial actions as may be appro- (5) A proposed contract modification priate. changes the scope of a contract or in- (b) All contracts in excess of the creases the contract amount by more small purchase threshold shall contain than the amount of the small purchase suitable provisions for termination by threshold. the recipient, including the manner by which termination shall be effected § 1260.145 Cost and price analysis. and the basis for settlement. In addi- Some form of cost or price analysis tion, such contracts shall describe con- shall be made and documented in the ditions under which the contract may procurement files in connection with be terminated for default as well as every procurement action. Price anal- conditions where the contract may be ysis may be accomplished in various terminated because of circumstances ways, including the comparison of beyond the control of the contractor. price quotations submitted, market (c) Except as otherwise required by prices and similar indicia, together statute, an award that requires the with discounts. Cost analysis is the re- contracting (or subcontracting) for view and evaluation of each element of construction or facility improvements cost to determine reasonableness, shall provide for the recipient to follow allocability and allowability. its own requirements relating to bid guarantees, performance bonds, and § 1260.146 Procurement records. payment bonds unless the construction Procurement records and files for contract or subcontract exceeds purchases in excess of the small pur- $100,000. For those contracts or sub- chase threshold shall include the fol- contracts exceeding $100,000, NASA lowing at a minimum: may accept the bonding policy and re- (a) Basis for contractor selection, quirements of the recipient, provided (b) Justification for lack of competi- the NASA has made a determination tion when competitive bids or offers that the Federal Government’s interest are not obtained, and is adequately protected. If such a de- (c) Basis for award cost or price. termination has not been made, the
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minimum requirements shall be as fol- REPORTS AND RECORDS lows. (1) A bid guarantee from each bidder § 1260.150 Purpose of reports and records. equivalent to five percent of the bid price. The ‘‘bid guarantee’’ shall con- Sections 1260.151 through 1260.153 set sist of a firm commitment such as a forth the procedures for monitoring bid bond, certified check, or other ne- and reporting on the recipient’s finan- gotiable instrument accompanying a cial and program performance and the necessary standard reporting forms. bid as assurance that the bidder shall, They also set forth record retention re- upon acceptance of his bid, execute quirements. such contractual documents as may be required within the time specified. § 1260.151 Monitoring and reporting (2) A performance bond on the part of program performance. the contractor for 100 percent of the (a) Recipients are responsible for contract price. A ‘‘performance bond’’ managing and monitoring each project, is one executed in connection with a program, subcontract, function or ac- contract to secure fulfillment of all the tivity supported by the award. Recipi- contractor’s obligations under such ents shall monitor subcontracts to en- contract. sure subcontractors have met the audit (3) A payment bond on the part of the requirements as delineated in § 1260.126. contractor for 100 percent of the con- (b) The terms and conditions of the tract price. A ‘‘payment bond’’ is one award shall prescribe the frequency executed in connection with a contract with which the performance reports shall be submitted. Except as provided to assure payment as required by stat- in 1260.151(f), performance reports shall ute of all persons supplying labor and not be required more frequently than material in the execution of the work quarterly or, less frequently than an- provided for in the contract. nually. Annual reports shall be due 90 (4) Where bonds are required in the calendar days after the grant year; situations described in this section, the quarterly or semi-annual reports shall bonds shall be obtained from compa- be due 30 days after the reporting pe- nies holding certificates of authority riod. NASA may require annual reports as acceptable sureties pursuant to 31 before the anniversary dates of mul- CFR part 223, ‘‘Surety Companies tiple year awards in lieu of these re- Doing Business with the United quirements. The final performance re- States.’’ ports are due 90 calendar days after the (d) All negotiated contracts (except expiration or termination of the award. those for less than the small purchase (c) If inappropriate, a final technical threshold) awarded by recipients shall or performance report shall not be re- include a provision to the effect that quired after completion of the project. the recipient, NASA, the Comptroller (d) When required, performance re- General of the United States, or any of ports shall generally contain, for each their duly authorized representatives, award, brief information on each of the following. shall have access to any books, docu- (1) A comparison of actual accom- ments, papers and records of the con- plishments with the goals and objec- tractor which are directly pertinent to tives established for the period, the a specific program for the purpose of findings of the investigator, or both. making audits, examinations, excerpts Whenever appropriate and the output and transcriptions. of programs or projects can be readily (e) All contracts, including small quantified, such quantitative data purchases, awarded by recipients and should be related to cost data for com- their contractors shall contain the pro- putation of unit costs. curement provisions of appendix A to (2) Reasons why established goals this subpart, as applicable. were not met, if appropriate.
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(3) Other pertinent information in- years from the date of submission of cluding, when appropriate, analysis the final expenditure report or, for and explanation of cost overruns or awards that are renewed quarterly or high unit costs. annually, from the date of the submis- (e) Recipients shall not be required to sion of the quarterly or annual finan- submit more than the original and two cial report, as authorized by NASA. copies of performance reports. The only exceptions are the following. (f) Recipients shall immediately no- (1) If any litigation, claim, or audit is tify NASA of developments that have a started before the expiration of the significant impact on the award-sup- three-year period, the records shall be ported activities. Also, notification retained until all litigation, claims or shall be given in the case of problems, audit findings involving the records delays, or adverse conditions which have been resolved and final action materially impair the ability to meet taken. the objectives of the award. This notifi- (2) Records for real property and cation shall include a statement of the equipment acquired with Federal funds action taken or contemplated, and any shall be retained for 3 years after final assistance needed to resolve the situa- disposition. tion. (3) When records are transferred to or (g) NASA may make site visits, as maintained by NASA, the 3-year reten- needed. tion requirement is not applicable to (h) NASA shall comply with clear- the recipient ance requirements of 5 CFR part 1320 (4) Indirect cost rate proposals, cost when requesting performance data allocations plans, etc. as specified in from recipients. § 1260.153(g). (c) NASA authorizes that copies of § 1260.152 Financial reporting. original records may be substituted for (a) When funds are advanced to re- the original records. cipients, each recipient is required to (d) NASA shall request transfer of submit the SF 272, Report of Federal certain records to its custody from re- Cash Transactions, and, when nec- cipients when it determines that the essary, its continuation sheet, SF 272a. records possess long term retention NASA uses this report to monitor cash value. However, in order to avoid dupli- advanced to the recipient and obtain cate record keeping, NASA may make disbursement information for each arrangements for recipients to retain agreement with the recipient. any records that are continuously (b) Recipients are required to submit needed for joint use. the original of the report to the Finan- (e) NASA, the Inspector General, cial Management Office of the NASA Comptroller General of the United Center which issued the agreement 15 States, or any of their duly authorized working days following the end of each representatives, have the right of time- Federal fiscal quarter. Copies will be ly and unrestricted access to any furnished to the appropriate grant offi- books, documents, papers, or other cer. records of recipients that are pertinent [65 FR 62900, Oct. 19, 2000, as amended at 66 to the awards, in order to make audits, FR 54125, Oct. 26, 2001] examinations, excerpts, transcripts and copies of such documents. This right § 1260.153 Retention and access re- also includes timely and reasonable ac- quirements for records. cess to a recipient’s personnel for the (a) This section sets forth require- purpose of interview and discussion re- ments for record retention and access lated to such documents. The rights of to records for awards to recipients. access in this paragraph are not lim- NASA shall not impose any other ited to the required retention period, record retention or access require- but shall last as long as records are re- ments upon recipients. tained. (b) Financial records, supporting doc- (f) Unless required by statute, NASA uments, statistical records, and all shall place no restrictions on recipients other records pertinent to an award that limit public access to the records shall be retained for a period of three of recipients that are pertinent to an
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award, except when NASA can dem- ditions, including the effective date onstrate that such records shall be and, in the case of partial termination, kept confidential and would have been the portion to be terminated. exempted from disclosure pursuant to (3) By the recipient upon sending to the Freedom of Information Act (5 NASA written notification setting U.S.C. 552) if the records had belonged forth the reasons for such termination, to NASA. the effective date, and, in the case of (g) Indirect cost rate proposals, cost partial termination, the portion to be allocations plans, etc. Paragraphs (g)(1) terminated. However, if NASA deter- and (g)(2) of this section apply to the mines in the case of partial termi- following types of documents, and their nation that the reduced or modified supporting records: Indirect cost rate portion of the grant will not accom- computations or proposals, cost alloca- plish the purposes for which the grant tion plans, and any similar accounting was made, it may terminate the grant computations of the rate at which a in its entirety under either paragraphs particular group of costs is chargeable (a)(1) or (2) of this section. (such as computer usage chargeback (b) If costs are allowed under an rates or composite fringe benefit award, the responsibilities of the re- rates). cipient referred to in § 1260.171(a), in- (1) If submitted for negotiation. If the cluding those for property management recipient submits to NASA or the sub- as applicable, shall be considered in the recipient submits to the recipient the termination of the award, and provi- proposal, plan, or other computation to sion shall be made for continuing re- form the basis for negotiation of the sponsibilities of the recipient after ter- rate, then the 3-year retention period mination, as appropriate. for its supporting records starts on the date of such submission. § 1260.162 Enforcement. (2) If not submitted for negotiation. If (a) Remedies for noncompliance. If a re- the recipient is not required to submit cipient materially fails to comply with to NASA or the subrecipient is not re- the terms and conditions of an award, quired to submit to the recipient the whether stated in a Federal statute, proposal, plan, or other computation regulation, assurance, application, or for negotiation purposes, then the 3- notice of award, NASA may, in addi- year retention period for the proposal, tion to imposing any of the special con- plan, or other computation and its sup- ditions outlined in § 1260.114, take one porting records starts at the end of the or more of the following actions, as ap- fiscal year (or other accounting period) propriate in the circumstances. covered by the proposal, plan, or other (1) Temporarily withhold cash pay- computation. ments pending correction of the defi- TERMINATION AND ENFORCEMENT ciency by the recipient or more severe enforcement action by NASA. § 1260.160 Purpose of termination and (2) Disallow (that is, deny both use of enforcement. funds and any applicable matching Sections 1260.61 and 1260.62 set forth credit for) all or part of the cost of the uniform suspension, termination and activity or action not in compliance. enforcement procedures. (3) Wholly or partly suspend or ter- minate the current award. § 1260.161 Termination. (4) Withhold further awards. (a) Awards may be terminated in (5) Take other remedies that may be whole or in part only if the conditions legally available. in paragraph (a)(1), (2) or (3) of this sec- (b) Hearings and appeals. In taking tion apply. an enforcement action, NASA shall (1) By NASA, if a recipient materi- provide the recipient an opportunity ally fails to comply with the terms and for hearing, appeal, or other adminis- conditions of an award. trative proceeding to which the recipi- (2) By NASA with the consent of the ent is entitled under any statute or recipient, in which case the two parties regulation applicable to the action in- shall agree upon the termination con- volved.
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(c) Effects of suspension and termi- imbursable costs under the award being nation. Costs of a recipient resulting closed out. from obligations incurred by the re- (d) The recipient shall promptly re- cipient during a suspension or after fund any balances of unobligated cash termination of an award are not allow- that NASA has advanced or paid and able unless NASA expressly authorizes that is not authorized to be retained by them in the notice of suspension or ter- the recipient for use in other projects. mination or subsequently. Other recipi- OMB Circular A–129 governs ent costs during suspension or after unreturned amounts that become de- termination which are necessary and linquent debts. not reasonably avoidable are allowable (e) When authorized by the terms and if the conditions in paragraph (c)(1) and conditions of the award, NASA shall (2) of this section apply. make a settlement for any upward or (1) The costs result from obligations downward adjustments to the Federal which were properly incurred by the re- share of costs after closeout reports are cipient before the effective date of sus- received. pension or termination, are not in an- (f) The recipient shall account for ticipation of it, and in the case of a ter- mination, are noncancellable. any real and personal property ac- (2) The costs would be allowable if quired with Federal funds or received the award were not suspended or ex- from the Federal Government in ac- pired normally at the end of the fund- cordance with §§ 1260.131 through ing period in which the termination 1260.137. takes effect. (g) In the event a final audit has not (d) Relationship to debarment and sus- been performed prior to the closeout of pension. The enforcement remedies an award, NASA shall retain the right identified in this section, including to recover an appropriate amount after suspension and termination, do not fully considering the recommendations preclude a recipient from being subject on disallowed costs resulting from the to debarment and suspension under Ex- final audit. ecutive Orders 12549 and 12689 and 14 CFR part 1265 (see § 1260.113). § 1260.172 Subsequent adjustments and continuing responsibilities. AFTER–THE–AWARD REQUIREMENTS (a) The closeout of an award does not affect any of the following. § 1260.170 Purpose. (1) The right of NASA to disallow Sections 1260.171 through 1260.173 con- costs and recover funds on the basis of tain closeout procedures and other pro- a later audit or other review. cedures for subsequent disallowances (2) The obligation of the recipient to and adjustments. return any funds due as a result of § 1260.171 Closeout procedures. later refunds, corrections, or other transactions. (a) Recipients shall submit, within 90 (3) Audit requirements in § 1260.126. calendar days after the date of comple- tion of the award, all financial, per- (4) Property management require- formance, and other reports as required ments in §§ 1260.131 through 1260.137. by the terms and conditions of the (5) Records retention as required in award. NASA may approve extensions § 1260.153. when requested by the recipient. (b) After closeout of an award, a rela- (b) Unless NASA authorizes an exten- tionship created under an award may sion, a recipient shall liquidate all ob- be modified or ended in whole or in ligations incurred under the award not part with the consent of the NASA and later than 90 calendar days after the the recipient, provided the responsibil- funding period or the date of comple- ities of the recipient referred to in tion as specified in the terms and con- § 1260.173(a), including those for prop- ditions of the award or in agency im- erty management as applicable, are plementing instructions. considered and provisions made for (c) NASA shall make prompt pay- continuing responsibilities of the re- ments to a recipient for allowable re- cipient, as appropriate.
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§ 1260.173 Collection of amounts due. the Davis-Bacon Act (40 U.S.C. 276a to a–7) and as supplemented by Department of (a) Any funds paid to a recipient in Labor regulations (29 CFR part 5, ‘‘Labor excess of the amount to which the re- Standards Provisions Applicable to Con- cipient is finally determined to be enti- tracts Governing Federally Financed and As- tled under the terms and conditions of sisted Construction’’). Under this Act, con- the award constitute a debt to the Fed- tractors shall be required to pay wages to la- eral Government. If not paid within a borers and mechanics at a rate not less than reasonable period after the demand for the minimum wages specified in a wage de- payment, NASA may reduce the debt termination made by the Secretary of Labor. In addition, contractors shall be required to by the provisions of paragraph (a)(1), pay wages not less than once a week. The re- (2) or (3) of this section cipient shall place a copy of the current pre- (1) Making an administrative offset vailing wage determination issued by the De- against other requests for reimburse- partment of Labor in each solicitation and ments. the award of a contract shall be conditioned (2) Withholding advance payments upon the acceptance of the wage determina- otherwise due to the recipient. tion. The recipient shall report all suspected (3) Taking other action permitted by or reported violations to the NASA. statute. 4. Contract Work Hours and Safety Standards (b) Except as otherwise provided by Act (40 U.S.C. 327–333). Where applicable, all law, NASA shall charge interest on an contracts awarded by recipients in excess of $2,000 for construction contracts and in ex- overdue debt in accordance with 4 CFR cess of $2,500 for other contracts that involve chapter II, ‘‘Federal Claims Collection the employment of mechanics or laborers Standards.’’ shall include a provision for compliance with sections 102 and 107 of the Contract Work APPENDIX A TO SUBPART B OF PART Hours and Safety Standards Act (40 U.S.C. 1260—CONTRACT PROVISIONS 327–333), as supplemented by Department of Labor regulations (29 CFR part 5). Under All contracts awarded by a recipient, in- subsection 102 of the Act, each contractor cluding small purchases, shall contain the shall be required to compute the wages of following provisions as applicable: every mechanic and laborer on the basis of a 1. Equal Employment Opportunity. All con- standard work week of 40 hours. Work in ex- tracts shall contain a provision requiring cess of the standard work week is permis- compliance with Executive Order 11246, sible provided that the worker is com- ‘‘Equal Employment Opportunity,’’ as pensated at a rate of not less than 11⁄2 times amended by Executive Order 11375, ‘‘Amend- the basic rate of pay for all hours worked in ing Executive Order 11246 Relating to Equal excess of 40 hours in the work week. Section Employment Opportunity,’’ and as supple- 107 of the Act is applicable to construction mented by regulations at 41 CFR part 60, work and provides that no laborer or me- ‘‘Office of Federal Contract Compliance Pro- chanic shall be required to work in sur- grams, Equal Employment Opportunity, De- roundings or under working conditions partment of Labor.’’ which are unsanitary, hazardous or dan- 2. Copeland ‘‘Anti-Kickback’’ Act (18 U.S.C. gerous. These requirements do not apply to 874 and 40 U.S.C. 276c). All contracts in excess the purchases of supplies or materials or ar- of $2,000 for construction or repair awarded ticles ordinarily available on the open mar- by recipients shall include a provision for compliance with the Copeland ‘‘Anti-Kick- ket, or contracts for transportation or trans- back’’ Act (18 U.S.C. 874), as supplemented by mission of intelligence. Department of Labor regulations (29 CFR 5. Rights to Inventions Made Under a Con- part 3, ‘‘Contractors and Subcontractors on tract or Agreement. Contracts or agreements Public Building or Public Work Financed in for the performance of experimental, devel- Whole or in Part by Loans or Grants from opmental, or research work shall provide for the United States’’). The Act provides that the rights of the Federal Government and each contractor shall be prohibited from in- the recipient in any resulting invention in ducing, by any means, any person employed accordance with 37 CFR part 401, ‘‘Rights to in the construction, completion, or repair of Inventions Made by Nonprofit Organizations public work, to give up any part of the com- and Small Business Firms Under Govern- pensation to which he is otherwise entitled. ment Grants, Contracts and Cooperative The recipient shall report all suspected or re- Agreements,’’ and any implementing regula- ported violations to NASA. tions issued by the awarding agency. 3. Davis-Bacon Act, as amended (40 U.S.C. 6. Clean Air Act (42 U.S.C. 7401 et seq.) and 276a to a–7). When required by Federal pro- the Federal Water Pollution Control Act (33 gram legislation, all construction contracts U.S.C. 1251 et seq.), as amended. Contracts of awarded by the recipients of more than $2,000 amounts in excess of $100,000 shall contain a shall include a provision for compliance with provision that requires the recipient to agree
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to comply with all applicable standards, or- Subpart 1261.3—Claims Against NASA or ders or regulations issued pursuant to the Its Employees for Damage to or Loss of Clean Air Act (42 U.S.C. 7401 et seq.) and the Property or Personal Injury or Death— Federal Water Pollution Control Act as Accruing On or After January 18, 1967 amended (33 U.S.C. 1251 et seq.). Violations shall be reported to NASA and the Regional 1261.300 Scope of subpart. Office of the Environmental Protection 1261.301 Authority. Agency (EPA). 1261.302 Claim. 7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1261.303 Claimant. 1352). Contractors who apply or bid for an 1261.304 Place of filing claim. award of $100,000 or more shall file the re- quired certification. Each tier certifies to 1261.305 Form of claim. the tier above that it will not and has not 1261.306 Evidence and information required. used Federal appropriated funds to pay any 1261.307 Time limitations. person or organization for influencing or at- 1261.308 NASA officials authorized to act tempting to influence an officer or employee upon claims. of any agency, a member of Congress, officer 1261.309 Action under the Federal Tort or employee of Congress, or an employee of a Claims Act. member of Congress in connection with ob- 1261.310 Investigation of claims. taining any Federal contract, grant or any 1261.311 Claims requiring Department of other award covered by 31 U.S.C. 1352. Each Justice approval or consultation. tier shall also disclose any lobbying with 1261.312 Action on approved claims. non-Federal funds that takes place in con- 1261.313 Required notification in the event nection with obtaining any Federal award. of denial. Such disclosures are forwarded from tier to 1261.314 [Reserved] tier up to the recipient. 1261.315 Procedures for the handling of law- 8. Debarment and Suspension (Executive Or- suits against NASA employees arising ders 12549 and 12689). No contract shall be within the scope of their office or em- made to parties listed on the General Serv- ployment. ices Administration’s List of Parties Ex- 1261.316 Policy. cluded from Federal Procurement or Non- 1261.317 Attorney-client privilege. procurement Programs in accordance with Executive Orders 12549 and 12689, ‘‘Debar- Subpart 1261.4—Collection of Civil Claims ment and Suspension.’’ This list contains the of the United States Arising Out of the names of parties debarred, suspended, or oth- erwise excluded by agencies, and contractors Activities of the National Aeronautics declared ineligible under statutory or regu- and Space Administration (NASA) latory authority other than Executive Order 1261.400 Scope of subpart. 12549. Contractors with awards that exceed 1261.401 Definitions. the small purchase threshold shall provide 1261.402 Delegation of authority. the required certification regarding its ex- clusion status and that of its principal em- 1261.403 Consultation with appropriate offi- ployees. cials; negotiation. 1261.404 Services of the Inspector General. 1261.405 Subdivision of claims not author- PART 1261—PROCESSING OF ized; other administrative proceedings. MONETARY CLAIMS (GENERAL) 1261.406 Aggressive collection action; docu- mentation. Subpart 1261.1—Employees’ Personal 1261.407 Demand for payment; limitation pe- Property Claims riods. 1261.408 Use of consumer reporting agency. Sec. 1261.409 Contracting for collection services. 1261.100 Scope of subpart. 1261.410 Suspension or revocation of license 1261.101 Claimants. or eligibility; liquidation of collateral. 1261.102 Maximum amount. 1261.411 Collection in installments. 1261.103 Time limitations. 1261.412 Interest, penalties, and administra- 1261.104 Allowable claims. tive costs. 1261.105 Unallowable claims. 1261.413 Analysis of costs; automation; pre- 1261.106 Submission of claims. vention of overpayments, delinquencies, 1261.107 Evidence in support of claim. or defaults. 1261.108 Recovery from carriers, insurers, 1261.414 Compromise of claims. and other third parties. 1261.415 Execution of releases. 1261.109 Computation of allowance. 1261.416 Suspending or terminating collec- 1261.110 Settlement of claims. tion action. 1261.417 Referral to Department of Justice Subpart 1261.2 [Reserved] (DJ) or General Accounting Office (GAO). 332
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Subpart 1261.5—Administrative Offset of signed to duty with or under the juris- Claims diction of NASA; (3) The authorized agent or legal rep- 1261.500 Scope of subpart. resentative of a person named in para- 1261.501 Definition. 1261.502 Notification procedures. graph (a)(1) or (2) of this section; or 1261.503 Agency records inspection; hearing (4) The survivors of a person named or review. in paragraph (a)(1) or (2) of this section 1261.504 Interagency requests. in the following order of precedence: 1261.505 Multiple debts. Spouse; children, father or mother, or 1261.506 Limitation periods. both; or brothers or sisters, or both. 1261.507 Civil Service Retirement and Dis- Claims by survivors may be allowed ability Fund. whether arising before, concurrently 1261.508 Offset against a judgment. with, or after the decedent’s death, if Subpart 1261.6—Collection by Offset From otherwise covered by this subpart. Indebted Government Employees (b) Employees of contractors with the United States and employees of 1261.600 Purpose of subpart. nonappropriated fund activities are not 1261.601 Scope of subpart. included within the meaning of para- 1261.602 Definitions. graph (a)(1) or (2) of this section. 1261.603 Procedures for salary offset. (c) Claims may not be made by or for 1261.604 Nonwaiver of rights by involuntary setoff. the benefit of a subrogee, assignee, con- 1261.605 Refunds. ditional vendor, or other third party. 1261.606 Salary offset request by a creditor agency other than NASA (the current § 1261.102 Maximum amount. paying agency). From October 1, 1982, to October 30, 1261.607 Obtaining the services of a hearing 1988, the maximum amount that may official. be paid under the Military Personnel AUTHORITY: Subparts 1261.4, 1261.5, and and Civilian Employees’ Claim Act of 1261.6 issued under 42 U.S.C. 2473(c); 31 U.S.C. 1964, as amended (31 U.S.C. 3721) is 3711 et seq.; 5 U.S.C. 5514; 4 CFR parts 101–105; $25,000, and on or after October 31, 1988, 5 CFR part 550 subpart K, §§ 550.1101–550.1107. the maximum amount is $40,000 (Pub. SOURCE: 45 FR 48104, July 18, 1980, unless L. 100–565, 102 Stat. 2833, October 31, otherwise noted. 1988). Subpart 1261.1—Employees’ [54 FR 35456, Aug. 28, 1989] Personal Property Claims § 1261.103 Time limitations. (a) A claim may be allowed only if AUTHORITY: 31 U.S.C. 2371, et seq. the claim is presented in writing with- in 2 years after it accrues. For the pur- § 1261.100 Scope of subpart. poses of this subpart, a claim accrues This subpart prescribes regulations at the time of the accident or incident governing the settlement of claims causing the loss or damage, or at such against the National Aeronautics and time as the loss or damage is or should Space Administration (NASA) for dam- have been discovered by the claimant age to, or loss of, personal property in- through the exercise of due diligence. cident to service with NASA. (b) If a claim accrues in time of war or if an armed conflict intervenes with- § 1261.101 Claimants. in 2 years after it accrues, and if good (a) A claim for damage to, or loss of, cause is shown, the claim may be pre- personal property incident to service sented not later than 2 years after that with NASA may be made only by: cause ceases to exist, or 2 years after (1) An officer or employee of the Na- the war or armed conflict is termi- tional Aeronautics and Space Adminis- nated, whichever is earlier. The dates tration; of beginning and ending of such an (2) A member of the uniformed serv- armed conflict are the dates estab- ices (Army, Navy, Air Force, Marine lished by concurrent resolution of the Corps, Coast Guard, Coast and Geodetic Congress or by a determination of the Survey and Public Health Service) as- President.
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§ 1261.104 Allowable claims. (2) Transportation or travel losses. (a) A claim may be allowed only if: Claims may be allowed for damage to, (1) The damage or loss was not or loss of, property incident to trans- caused wholly or partly by the neg- portation or storage pursuant to or- ligent or wrongful act of the claimant, ders, or in connection with travel the claimant’s agent, private em- under orders, including property in the ployee, or family member (the stand- custody of a carrier, an agent or agen- ard to be applied is that of reasonable cy of the Government, or the claimant. care under the circumstances); (3) House trailers. Claims may be al- (2) The possession of the property lowed for damage to, or loss of, house lost or damaged and the quantity is de- trailers and their contents under the termined to have been reasonable, use- provisions of paragraph (c)(2) of this ful, or proper under the circumstances; section. and (4) Negligence of the Government. (3) The claim is substantiated by Claims may be allowed for damage to, proper and convincing evidence. or loss of, property caused by the neg- (b) Claims which are otherwise allow- ligence or wrongful act or omission of able under this subpart shall not be any employee of the Government while disallowed solely because the property acting within the scope of office or em- was not in the possession of the claim- ployment. ant at the time of the damage or loss, (5) Enemy action or public service. or solely because the claimant was not Claims may be allowed for damage to, the legal owner of the property for or loss of, property as a direct con- which the claim is made. For example, borrowed property may be the subject sequence of: of a claim. (i) Enemy action or threat of action (c) Subject to the conditions in para- or combat, guerrilla, brigandage, or graph (a) of this section and the other other belligerent activity, or unjust provisions of this subpart, any claim confiscation by a foreign power or its for damage to, or loss of, personal prop- nationals; erty incident to service with NASA (ii) Action by the claimant to quiet a may be considered and allowed. The civil disturbance or to alleviate a pub- following are examples of the principal lic disaster; or types of claims which may be allowed, (iii) Efforts by the claimant to save but these examples are not exclusive human life or Government property. and other types of claims may be al- (6) Property used for benefit of the Gov- lowed, unless excluded by § 1261.105. ernment. Claims may be allowed for (1) Property loss or damage in quarters damage to, or loss of, property when or other authorized places. Claims may used for the benefit of the Government be allowed for damage to, or loss of, at the request of, or with the knowl- property arising from fire, flood, hurri- edge and consent of, an authorized offi- cane, other natural disaster, theft, or cial. other unusual occurrence, while such (7) Clothing and accessories. Claims property is located at: may be allowed for damage to, or loss (i) Quarters within the 50 States or of, clothing or accessories customarily the District of Columbia that were as- worn on the person, such as eyeglasses, signed to the claimant or provided by hearing aids or dentures. the United States; (ii) Quarters outside the 50 States § 1261.105 Unallowable claims. and the District of Columbia that were occupied by the claimant, whether or Claims are not allowable for the fol- not they were assigned or provided by lowing: the United States, except when the (a) Unassigned quarters in United claimant is a civilian employee who is States. Claims may not be allowed for a local inhabitant; or property loss or damage in quarters oc- (iii) Any warehouse, office working cupied by the claimant within the 50 area, hospital, or other place author- States or the District of Columbia that ized or apparently authorized for the were not assigned to claimant or pro- reception or storage of property. vided in kind by the United States.
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(b) Money or currency. Claims may being furnished or provided by the Gov- not be allowed for loss of money or cur- ernment; or rency, except when lost incident to (3) The damage or loss was caused by fire, flood, hurricane, other natural dis- the negligent or wrongful act or omis- aster, or by theft from quarters (as sion of any employee of the Govern- limited by paragraph (a)). Reimburse- ment acting within the scope of office ment for loss of money or currency is or employment. limited to an amount which is deter- mined reasonable to have been in the § 1261.106 Submission of claims. claimant’s possession at the time of the loss. All claims shall be submitted in du- (c) Government property. Claims may plicate to the Administrator or des- not be allowed for property owned by ignee on NASA Form 1204, ‘‘Employee’s the United States, except that for Claim for Damage to, or Loss of, Per- which the claimant is financially re- sonal Property Incident to Service.’’ sponsible to any agency of the Govern- ment other than NASA. § 1261.107 Evidence in support of (d) Business property. Claims may not claim. be allowed for property used in a pri- (a) General. In addition to the infor- vate business enterprise. mation required on NASA Form 1204, (e) Articles of extraordinary value. and any other evidence required by the Claims may not be allowed for valuable Administrator or designee, the claim- articles, such as cameras, watches, jew- ant will furnish the following evidence elry, furs; or other articles of extraor- when relevant: dinary value, when shipped with house- (1) A corroborating statement from hold goods or as unaccompanied bag- the claimant’s supervisor or other per- gage (shipment includes storage). This son or persons having personal knowl- prohibition does not apply to articles edge of the facts concerning the claim. in the personal custody of the claimant (2) A statement of any property re- or articles properly checked: Provided, That reasonable protection or security covered or replaced in kind. measures have been taken by claimant. (3) An itemized bill of repair for prop- (f) Unserviceable property. Claims may erty which has been repaired, or one or not be allowed for worn-out unservice- more written estimates of the cost of able property. repairs from competent persons if the (g) Illegal possession. Claims may not property is repairable but has not been be allowed for property acquired, pos- repaired. sessed, or transported in violation of (b) Specific classes of claims. Claims of law or in violation of applicable regula- the following types shall also be ac- tions or directives. companied with specific and detailed (h) Estimate fees. Claims may not in- evidence as indicated: clude fees paid to obtain estimates or (1) Theft, burglary, etc. A statement repair, except when it is clear that an describing in detail the location where estimate could not have been obtained the loss occurred and the facts and cir- without paying a fee. cumstances surrounding the loss, in- (i) Automobiles and other vehicles. cluding supporting documentation, Claims may not be allowed for damage e.g., a police report. to, or loss of, automobiles and other (2) Transportation losses. A copy of or- vehicles unless: ders authorizing the travel, transpor- (1) The vehicles were required to be used for official Government business tation or shipment, or a certificate ex- (official Government business, as used plaining the absence of such orders and here, does not include travel between stating their substance; all bills of lad- quarters and place of duty, parking of ing and inventories of property vehicles incident to such travel, or use shipped; and a statement indicating of vehicles for the convenience of the the condition of the property when owner); or turned over to the carrier and when re- (2) Shipment of motor vehicles to, ceived from the carrier. from, or between overseas areas was
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§ 1261.108 Recovery from carriers, in- ducting the recovery from the amount surers, and other third parties. of total loss subject to the maximum (a) General. NASA is not an insurer set forth in § 1261.102. and does not underwrite all personal (e) Transfer of rights. The claimant property losses that an employee may shall assign to the United States, to sustain. Employees are encouraged to the extent of any payment accepted on carry private insurance to the max- a claim, all rights, title, and interest in imum extent practicable to avoid large any claim he/she may have against any losses or losses which may not be re- carrier, insurer, or other party arising coverable from NASA. The procedures out of the accident or incident on set forth in this section are designed to which the claim against the United enable the claimant to obtain the max- States is based. The claimant shall imum amount of compensation for per- also, upon request, furnish such evi- sonal property loss or damage. Failure dence and other cooperation as may be of the claimant to comply with these required to enable the United States to procedures may reduce or preclude pay- enforce the claim. After payment on ment of the claim. the claim by the United States, the (b) Demand on carrier, contractor, claimant shall, upon receipt of any warehouse owner/operator, or insurer. payment from a carrier, insurer, or When it appears that property has been other party, notify the Admininstrator damaged or lost under circumstances or designee and pay the proceeds to the in which a carrier, warehouse owner/ United States to the extent required operator, contractor or insurer may be under the provisions of paragraph (d). responsible, the claimant shall make a written demand on such party, either § 1261.109 Computation of allowance. before or after submitting a claim (a) The amount allowed for damage against NASA. The Administrator or to or loss of any item of property may designee, if requested, will assist in not exceed the cost of the item (either making demand on the third party. No the price paid in cash or property, or such demand need be made if, in the the value at the time of acquisition if opinion of the Administrator or des- not acquired by purchase or exchange). ignee, it would be impracticable or any There will be no allowance for replace- recovery would be insignificant, or if ment cost or for appreciation in the circumstances preclude the claimant value of the property. Subject to these from making timely demand. limitations, the amount allowable is (c) Action subsequent to demand. A either: copy of the demand and of any related (1) The depreciated value, imme- correspondence shall be submitted to diately prior to the loss or damage of the Administrator or designee. If the property lost or damaged beyond eco- carrier, insurer, or other third party nomical repair, less any salvage value; offers a settlement which is less than or the amount of the demand, the claim- (2) The reasonable cost of repairs, ant shall consult with the Adminis- when property is economically repair- trator or designee before accepting the able: Provided, That the cost of repairs amount offered. The claimant shall does not exceed the amount allowable also notify the Administrator or des- under paragraph (a)(1) of this section. ignee promptly of any other action by (b) Depreciation in value is deter- a third party, including settlement, mined by considering the type of arti- partial settlement, or denial of liabil- cle involved, its cost, its condition ity. when damaged or lost, and the time (d) Application of recovery. When the elapsed between the date of acquisition amount recovered from a carrier, in- and the date of damage or loss, with surer, or other third party is greater appropriate recognition of current re- than or equal to the claimant’s total placement value. loss as determined under this subpart, (c) Limitation on agent or attorney fees. no compensation is allowable under No more than 10 per centum of the this subpart. When the amount recov- amount paid in settlement of each in- ered is less than such total loss, the al- dividual claim submitted and settled lowable amount is determined by de- shall be paid or delivered to or received
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by an agent or attorney on account of whether by full or partial allowance or services rendered in connection with disallowance, is final and conclusive. that claim, any contract to the con- trary notwithstanding (31 U.S.C. 243). Subpart 1261.2 [Reserved] § 1261.110 Settlement of claims. Subpart 1261.3—Claims Against (a) Settlement officials. (1) Claims in NASA or Its Employees for the amount of $5,000 or more will be Damage to or Loss of Property acted upon by the General Counsel. or Personal Injury or Death— Claims less than $5,000 will be acted Accruing On or After January upon by the Chief Counsel of the NASA Field Installation where the employee 18, 1967 was assigned at the time of the loss or damage or the Assistant General Coun- AUTHORITY: 28 U.S.C. 2671–2680, 42 U.S.C. sel for Litigation for NASA Head- 2473(c)(13), and 28 CFR part 14. quarters claims. § 1261.300 Scope of subpart. (2) Claims arising for $5,000 or more This subpart sets forth the proce- shall be investigated by the Chief dures for: Counsel or Assistant General Counsel (a) The submission of, and action by for Litigation, as appropriate, and a re- NASA upon, claims against the United port and recommendation thereon shall States arising out of the activities of be forwarded to the General Counsel. NASA for damage to or loss of property (b) Action by settlement official. (1) For or personal injury or death, and des- each claim, the settlement official ignates the NASA officials authorized shall complete a report in duplicate on to act upon such claims. NASA Form 1204 and retain a claim file (b) The handling of lawsuits against consisting of the original claim, the re- NASA employee(s) for damage to or port, and any other relevant evidence loss of property or personal injury or or documents. death resulting from a NASA employ- (2) When a claim is allowed in an ee’s activities within the scope of his/ amount acceptable to the claimant, the her office or employment. settlement official shall prepare a ‘‘Voucher for Payment of Employees’ § 1261.301 Authority. Personal Property Claims’’ (NASA (a) Under the provisions of the Fed- Form 1220), have it properly executed eral Tort Claims Act, as amended (see by the claimant, and forward it with a 28 U.S.C. 2671–2680), and subject to its copy of the approved claim (NASA limitations, the Administrator or des- Form 1204) to the appropriate NASA ignee is authorized to consider, ascer- fiscal or financial management office tain, adjust, determine, compromise, for payment. and settle any claim for money dam- (3) When a claim is disallowed or is ages against the United States for in- partially allowed in an amount unac- jury or loss of property or personal in- ceptable to the claimant, the settle- jury or death caused by the negligent ment official shall notify the claimant or wrongful act or omission of any in writing of the action taken and the NASA employee while acting within reasons therefor. If not satisfied with the scope of his/her office or employ- the action taken, the claimant may, ment, under circumstances where the within 60 days after receipt of such no- United States, if a private person, tice, request reconsideration of the would be liable to the claimant in ac- claim and may submit any new evi- cordance with the law of the place dence that he/she feels to be pertinent where the act or omission occurred. In to the claim. If such a claim has been exercising such authority, the Admin- disallowed at the field installation istrator or designee is required to act level, the claimant may request recon- in accordance with regulations pre- sideration by the field installation, or scribed by the Attorney General (28 by the General Counsel, or both. CFR part 14). An award, compromise, (c) Final and conclusive. The settle- or settlement in excess of $25,000 may ment of a claim under this subpart, be effected only with the prior written
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approval of the Attorney General or damages against the United States designee. arising out of the activities of NASA, (b) Under sec. 203(c)(13)(A) of the Na- for injury or loss of property, or per- tional Aeronautics and Space Act of sonal injury or death. A claim ‘‘arises’’ 1958, as amended, 42 U.S.C. at the place where the injury, loss, or 2473(c)(13)(A), NASA is authorized to death occurs. consider, ascertain, adjust, determine, settle, and pay, on behalf of the United § 1261.303 Claimant. States, in full satisfaction thereof, any claim for $25,000 or less against the (a) A claim for damage to or loss of United States for bodily injury, death property may be presented by the or damage to or loss of real or personal owner of the property, duly authorized property resulting from the conduct of agent or legal representative. NASA’s functions as specified in 42 (b) A claim for personal injury may U.S.C. 2473(a). At the discretion of be presented by the injured person, NASA, a claim may be settled and paid duly authorized agent, or legal rep- under this authority even though the resentative. United States could not be held legally (c) A claim based on death may be liable to the claimant. presented by the executor(rix) or ad- (c) Under 42 U.S.C. 2473(c)(13)(B), if ministrator(rix) of the decedent’s es- NASA considers that a claim in excess tate, or by any other person legally en- of $25,000 is meritorious and would oth- titled to assert such a claim in accord- erwise be covered by 42 U.S.C. ance with applicable State law. 2473(c)(13)(A), NASA may report the (d) A claim for loss wholly com- facts and circumstances of the claim to pensated by an insurer with the rights the Congress for its consideration or to of a subrogee may be presented by the the Comptroller General as provided in insurer. A claim for loss partially com- the ‘‘Supplemental Appropriations Act, 1978,’’ Pub. L. 95–240 (92 Stat. 107), 31 pensated by an insurer with the rights U.S.C. 724a. of a subrogee may be presented by the (d) Under 28 U.S.C. 2679, the Attorney parties individually as their respective General of the United States shall de- interests appear, or jointly. fend any civil action or proceeding (e) A claim presented by an agent or brought in any court against a Govern- legal representative shall be presented ment employee for injury or loss of in the name of the claimant, be signed property or personal injury or death, by the agent or legal representative, resulting from the operation of a motor show the title or legal capacity of the vehicle by the Government employee person signing and be accompanied by while acting within the scope of office evidence of the agent’s or legal rep- or employment. In effect, this legisla- resentative’s authority to present a tion is designed to protect an employee claim on behalf of the claimant as driving a motor vehicle on Government agent, executor(rix), administrator business by converting such a civil (rix), parent, guardian, or other rep- court action or proceeding against the resentative. employee into a claim against the United States: Provided, That the em- § 1261.304 Place of filing claim. ployee was acting within the scope of employment at the time of the acci- A claim arising in the United States dent. The remedy against the United should be submitted to the Chief Coun- States provided by 28 U.S.C. 2672 (ad- sel of the NASA Installation whose ac- ministrative adjustment of claims) and tivities are believed to have given rise 28 U.S.C. 1346(b) (civil action against to the claimed injury, loss, or death. If the United States) then becomes the the identity of such installation is not plaintiff’s exclusive remedy. known, or if the claim arose in a for- eign country, the claim should be sub- § 1261.302 Claim. mitted to the General Counsel, Na- Unless the context otherwise re- tional Aeronautics and Space Adminis- quires, claim means a claim for money tration, Washington, DC 20546.
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§ 1261.305 Form of claim. accident, accompanied by a claim in a (a) The official designated in § 1261.308 sum certain. shall, prior to acting on a claim, re- § 1261.308 NASA officials authorized to quire the claimant to submit a com- act upon claims. pleted Standard Form 95—‘‘Claim for Damage, Injury or Death.’’ (a) Claims in the amount of $10,000 or (b) NASA installations will furnish more will be acted upon as directed by copies of Standard Form 95 upon re- the General Counsel; quest. (b) Claims less than $10,000 will be acted upon by the Chief Counsel of the § 1261.306 Evidence and information NASA Field Installation where the em- required. ployee was assigned at the time of the (a) The circumstances alleged to loss or damage or the Assistant Gen- have given rise to the claim, and the eral Counsel for Litigation for NASA amount claimed, should, so far as pos- Headquarters claims. sible, be substantiated by competent (c) Claims of $10,000 or more, pursu- evidence. Supporting statements, esti- ant either to the Federal Tort Claims mates, and the like should, if possible, Act, or 42 U.S.C. 2473(c)(13), shall be be obtained from disinterested parties. acted upon only with the prior ap- For specific guidance as to Federal proval of the General Counsel. Such Tort Claims Act claims, see Depart- claims shall be forwarded to the Gen- ment of Justice regulations on ‘‘Ad- eral Counsel for approval, if the Chief ministrative Claims under Federal Counsel or the Assistant General Coun- Tort Claims Act’’ at 28 CFR part 14. sel for Litigation is of the opinion that (b) In addition to the evidence and in- the claim may be meritorious and oth- formation required under paragraph erwise suitable for settlement under (a), any claimant shall be required to any authority. A claim so forwarded submit information as to the amount should be accompanied by a report of of money or other property received as the facts of the claim, based upon such damages or compensation, or which the investigation as may be appropriate, claimant may be entitled to receive, by and a recommendation as to the action reason of the claimed injury, loss, or to be taken. death from persons other than NASA (d) Claims acted upon by NASA offi- or NASA employees. (Such persons in- cials pursuant to this section shall be clude, but are not limited to, insurers, acted upon pursuant to the Federal employers, and persons whose conduct Tort Claims Act, or 42 U.S.C. was a cause of the accident or inci- 2473(c)(13)(A) or (B), as the NASA offi- dent.) (c) Any document in other than the cial deems appropriate. English language should be accom- § 1261.309 Action under the Federal panied by an English translation. Tort Claims Act. § 1261.307 Time limitations. Where a claim is to be acted upon (a) A claim may not be acted upon pursuant to the Federal Tort Claims pursuant to the Federal Tort Claims Act, action shall be taken in accord- Act unless it is presented to NASA ance with 28 U.S.C. 2672, other provi- within 2 years after it accrued. sions of the Federal Tort Claims Act as (b) A claim may not be acted upon may be applicable (e.g., 28 U.S.C. 2680), pursuant to 42 U.S.C. 2473(c)(13)(A) or and regulations prescribed by the At- (B) unless it is presented to NASA torney General which appear at 28 CFR within 2 years after the occurrence of part 14. the accident or incident out of which the claim arose. § 1261.310 Investigation of claims. (c) A claim shall be deemed to have The officials designated in § 1261.308 been presented to NASA when NASA shall conduct such investigation of a receives from a claimant or duly au- claim as deemed appropriate. The offi- thorized agent or legal representative cials may request any NASA office or an executed Standard Form 95 or other other Federal agency to assist in the written notification of an incident or investigation.
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§ 1261.311 Claims requiring Depart- release of any claim against the United ment of Justice approval or con- States and against any employee of the sultation. Government whose act or omission (a) When in the opinion of the NASA gave rise to the claim, by reason of the official designated in § 1261.308, Depart- same subject matter. ment of Justice approval or consulta- tion may be required, pursuant to 28 § 1261.313 Required notification in the event of denial. CFR part 14, in connection with a claim being acted upon under the Fed- Final denial of a claim shall be in eral Tort Claims Act, the following pa- writing and shall be sent to the claim- pers shall be forwarded to the General ant, the attorney, or legal representa- Counsel: tive by certified or registered mail. (1) A short and concise statement of The notification of final denial may in- the facts of the claim. clude a statement of the reasons for (2) Copies of all relevant portions of the denial and shall include a state- the claim file. ment that if the claimant is dissatis- (3) A statement of the recommenda- fied with NASA’s action, the claimant tions or views of the forwarding offi- may file suit in an appropriate U.S. cial. District Court not later than 6 months (b) A claim forwarded to the General after the date of mailing the notifica- Counsel in accordance with paragraph tion. (a) of this section, or upon which the General Counsel is acting pursuant to § 1261.314 [Reserved] § 1261.308(c), shall be referred to the De- § 1261.315 Procedures for the handling partment of Justice when, in the opin- of lawsuits against NASA employees ion of the General Counsel, Depart- arising within the scope of their of- ment of Justice approval or consulta- fice or employment. tion is required or may be appropriate. The following procedures shall be fol- lowed in the event that a civil action § 1261.312 Action on approved claims. or proceeding is brought, in any court, (a) Upon settlement of a claim, the against any employee of NASA (or official designated in § 1261.308 will pre- against the estate) for injury or loss of pare and have executed by the claim- property or personal injury or death, ant a Voucher for Payment of Tort resulting from the NASA employee’s Claims (NASA Form 616) if the claim activities while acting within the scope has been acted upon pursuant to 42 of office or employment: U.S.C. 2473(c)(13), or a Voucher for Pay- (a) After being served with process or ment under Federal Tort Claims Act pleadings in such an action or pro- (Standard Form 1145) if the claim has ceeding, the employee (or the execu- been acted upon pursuant to the Fed- tor(rix) or administrator(rix) of the es- eral Tort Claims Act. The form will tate) shall immediately deliver all such then be referred to the cognizant NASA process and pleadings or an attested installation fiscal or financial manage- true copy thereof, together with a fully ment office for appropriate action. detailed report of the circumstances of (b) When a claimant is represented by the accident giving rise to the court an attorney, both the claimant and at- action or proceeding, to the following torney will be designated as ‘‘payees’’ officials: on the voucher, and the check will be (1) The Assistant General Counsel for delivered to the attorney whose ad- Litigation insofar as actions or pro- dress shall appear on the voucher. ceedings against employees of NASA (c) Acceptance by the claimant, Headquarters are concerned; or agent, or legal representative, of any (2) The Chief Counsel of the NASA In- award, compromise, or settlement stallation at which the employee is made pursuant to this subpart shall be employed, insofar as actions against final and conclusive on the claimant, other than NASA Headquarters em- agent or legal representative and any ployees are concerned. other person on whose behalf or for (b) Upon receipt of such process and whose benefit the claim has been pre- pleadings, the Assistant General Coun- sented, and shall constitute a complete sel for Litigation or the Chief Counsel
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of the NASA Installation receiving the (b) The National Aeronautics and same shall furnish to the U.S. Attorney Space Administration may settle or for the district embracing the place compromise a personal damage claim where the action or proceeding is against a present or former NASA em- brought and, if appropriate, the Direc- ployee by the payment of available tor, Torts Branch, Civil Division, De- funds, at any time, provided the al- partment of Justice, the following: leged conduct giving rise to the per- (1) Copies of all such process and sonal damage claim was taken within pleadings in the action or proceeding the employee’s scope of employment promptly upon receipt thereof; and and that such settlement or com- (2) A report containing a statement promise is in the interest of the Na- of the circumstances of the incident tional Aeronautics and Space Adminis- giving rise to the action or proceeding, tration, as determined by the Adminis- and all data bearing upon the question trator or designee. of whether the employee was acting (c) Absent exceptional circumstances within the scope of office or employ- as determined by the Administrator or ment with NASA at the time of the in- designee, the agency will not entertain cident, at the earliest possible date, or a request either to agree to indemnify within such time as shall be fixed by or to settle a personal damage claim the U.S. Attorney upon request. before entry of an adverse verdict, (c) The Assistant General Counsel for judgment, or award. Litigation or a Chief Counsel acting (d) A present or past NASA employee pursuant to paragraph (b) of this sec- may request indemnification to satisfy tion shall submit the following docu- a verdict, judgment, or award entered ments to the General Counsel, who is against that employee. The employee hereby designated to receive such docu- shall submit a written request, with ments on behalf of the Administrator: appropriate documentation including (1) Copies of all process and pleadings copies of the verdict, judgment, appeal submitted to a U.S. Attorney in ac- bond, award, or settlement proposal to cordance with paragraph (b). the General Counsel, who shall make a (2) In addition, where the action or recommended disposition of the re- proceeding is for damages in excess of quest. Where appropriate, the agency $25,000, or where (in the opinion of the shall seek the views of the Department Chief Counsel) such action or pro- of Justice. The General Counsel shall ceeding involves a new precedent, a forward the request, the accompanying new point of law, or a question of pol- documentation, and the General Coun- icy, copies of reports and all other pa- sel’s recommendation to the Adminis- pers submitted to the U.S. Attorney. trator for decision. (e) Any payment under this section § 1261.316 Policy. either to indemnify a National Aero- (a) The National Aeronautics and nautics and Space Administration em- Space Administration may indemnify a ployee or to settle a personal damage present or former NASA employee, who claim shall be contingent upon the is personally named as a defendant in availability of appropriated funds of any civil suit in state or Federal court, the National Aeronautics and Space or in an arbitration proceeding or Administration. other proceeding seeking damages against that employee personally, for [53 FR 27482, July 21, 1988] any verdict, judgment, appeal bond, or other monetary award which is ren- § 1261.317 Attorney-client privilege. dered against such employee, provided (a) Attorneys employed by the Na- that the conduct giving rise to the ver- tional Aeronautics and Space Adminis- dict, judgment, appeal bond, or award tration participate in the process uti- was taken within the scope of his or lized for the purpose of determining her employment and that such indem- whether the agency should request the nification is in the interest of the Na- Department of Justice to provide rep- tional Aeronautics and Space Adminis- resentation to a present or former tration, as determined by the Adminis- agency employee sued, subpoenaed, or tration or designee. charged in his/her individual capacity,
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and attorneys employed by the Na- (3) Require compliance with the GAO/ tional Aeronautics and Space Adminis- DJ joint regulations at 4 CFR parts 101 tration provide assistance in obtaining through 105 and the Office of Personnel representation of such an agency em- Management (OPM) regulations at 5 ployee. In these roles, agency attor- CFR part 550, subpart K. neys undertake a full and traditional (b) Failure to comply with any provi- attorney-client relationship with the sion of the GAO/DJ or OPM regulations employee with respect to application of shall not be available as a defense to the attorney-client privilege. If rep- any debtor (4 CFR 101.8). resentation is authorized, National (c) These regulations do not include Aeronautics and Space Administration any claim based in whole or in part on attorneys who assist in the representa- violation of the anti-trust laws; any tion of a present or former employee claim as to which there is an indica- also undertake a full and traditional tion of fraud, the presentation of a attorney-client relationship with that false claim, or misrepresentation on employee with respect to the attorney- the part of the debtor or any party hav- client privilege. ing an interest in the claim; tax (b) Any adverse information commu- claims; or Federal interagency claims nicated by the client-employee to an (4 CFR 101.3). agency attorney during the course of such attorney-client relationship shall § 1261.401 Definitions. not be disclosed to anyone, either in- (a) Claim and debt. The terms denote side or outside the National Aero- a civil claim arising from the activities nautics and Space Administration, of NASA for an amount of money, or other than attorneys resonsible for rep- return or value of property (see 4 CFR resentation of the employee, unless 101.5), owing to the United States from such disclosure is authorized by the any person, organization, or entity, ex- employee. Such adverse information cept another Federal agency. The shall continue to be fully protected words claim and debt have been used whether or not representation is pro- interchangeably and are considered vided and even though representation synonymous. may be denied or discontinued. (b) Delinquent debt. The debt is delin- [53 FR 27483, July 21, 1988] quent if it has not been paid by the date specified in the initial written notifica- Subpart 1261.4—Collection of Civil tion (e.g., § 1261.407) or applicable con- Claims of the United States tractual agreement, unless other ac- ceptable (to NASA) payment arrange- Arising Out of the Activities of ments have been made by that date, or the National Aeronautics and if, at any time thereafter, the debtor Space Administration (NASA) fails to satisfy an obligation under the payment agreement. SOURCE: 52 FR 19487, May 26, 1987, unless (c) Referral for litigation. Referral otherwise noted. through the NASA installation’s legal counsel to the Department of Justice § 1261.400 Scope of subpart. (Main Justice or the United States At- (a) These regulations do the fol- torney, as appropriate) for legal pro- lowing: ceedings. (1) Prescribe standards for the admin- istrative collection, compromise, sus- § 1261.402 Delegation of authority. pension or termination of collection, The following NASA officials are del- and referral to the General Accounting egated authority, as qualified by Office (GAO), and/or to the Department § 1261.403, to take such action as is au- of Justice (DJ) for litigation, of civil thorized by these regulations to col- claims as defined by 31 U.S.C. 3701(b), lect, compromise, suspend/terminate arising out of the activities of NASA; collection, and upon consultation with (2) Designate the responsible NASA and through legal counsel, to refer the officials authorized to effect actions claim (as applicable) to the GAO or De- hereunder; and partment of Justice:
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(a) For field installations, with re- amount of the claim, as appropriate, gard to subpart 1261.4 and subpart and the financial management officers 1261.5: The Director of the Installation of the installation concerned. or a designee who reports directly to (3) With respect to claims against the Installation Director. A copy of employees of NASA incident to their such designation, if any, shall be sent employment—the personnel officer and to the Director, Financial Management the financial management officer of Division, NASA Headquarters. the installation concerned. (b) For Headquarters, with regard to (b) The appropriate counsel’s office subpart 1261.4 and subpart 1261.5: The shall review and concur in the fol- Associate Administrator for Manage- lowing: ment or a designee who reports di- rectly to the Associate Administrator (1) All communications to and agree- for Management. A copy of such des- ments with debtors relating to claims ignation, if any, shall be sent to the Di- collection. rector, Financial Management Divi- (2) All determinations to compromise sion, NASA Headquarters. a claim, or to suspend or terminate col- (c) With respect to the analysis re- lection action. quired by § 1261.413: The NASA Comp- (3) All referrals of claims, other than troller or designee. referrals to the Department of Justice (d) NASA wide, with regard to sub- pursuant to § 1261.404(b)(1). part 1261.6: The NASA Comptroller or (4) All documents releasing debtors designee. from liability to the United States. (e) NASA wide, for complying with (5) All other actions relating to the pertinent provisions under these regu- collection of a claim which in the opin- lations for agency hearing or review ion of the official designated in or pur- (see §§ 1261.408(b), 1261.503, and suant to § 1261.402 may affect the rights 1261.603(c)): The NASA General Counsel of the United States. or designee. § 1261.404 Services of the Inspector § 1261.403 Consultation with appro- priate officials; negotiation. General. (a) The authority pursuant to (a) At the request of an official des- § 1261.402 to determine to forego collec- ignated in or pursuant to § 1261.402, the tion of interest, to accept payment of a Office of the Inspector General will, claim in installments, or, as to claims where practicable, conduct such inves- which do not exceed $20,000, exclusive tigations as may assist in the collec- of interest and related charges, to com- tion, compromise, or referral of claims promise a claim or to refrain from of the United States, including inves- doing so, or to refrain from, suspend or tigations to determine the location and terminate collection action, shall be financial resources of the debtors. exercised only after consultation with (b) Any claim which, in the opinion legal counsel for the particular instal- of an official designated in or pursuant lation and the following NASA officials to § 1261.402 or § 1261.403, may indicate or designees, who may also be re- fraud, presentation of a false claim, or quested to negotiate the appropriate misrepresentation, on the part of the agreements or arrangements with the debtor or any other party having an in- debtor: terest in the claim, shall be referred by (1) With respect to claims against the designated official to the Inspector contractors or grantees arising in con- General (IG), NASA Headquarters, or nection with contracts or grants—the to the nearest office of the NASA IG. contracting officer and the financial management officer of the installation After an investigation as may be ap- concerned. propriate, the IG shall: (2) With respect to claims against (1) Notice the official, from whom the commercial carriers for loss of or dam- claim was received, of the findings and age to NASA freight shipment—the refer the claim to the Department of cognizant transportation officers or Justice in accordance with the provi- the official who determined the sions of 4 CFR 101.3; or
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(2) If it were found that there is no be futile and the debtor’s response does such indication of fraud, the presen- not require rebuttal. In determining tation of a false claim, or misrepresen- the timing of demand letters, NASA tation, return the claim to the official will give due regard to the need to act from whom it was received. promptly so that, as a general rule, if necessary to refer the debt to the De- § 1261.405 Subdivision of claims not partment of Justice for litigation, such authorized; other administrative proceedings. referral can be made within one year of the agency’s final determination of the (a) Subdivision of claims. Claims may fact and the amount of the debt. When not be subdivided to avoid the $20,000 necessary to protect the Government’s ceiling, exclusive of interest, penalties, interests (for example, to prevent the and administrative costs, for purposes of compromise (§ 1261.414) or suspension statute of limitations, 28 U.S.C. 2415, or termination of collection (§ 1261.416). from expiring), written demand may be The debtor’s liability arising from a preceded by other appropriate actions, particular transaction or contract including immediate referral for litiga- shall be considered a single claim (4 tion. CFR 101.6). (b) The initial demand letter should (b) Required administrative pro- inform the debtor of: ceedings. Nothing contained in these (1) The basis for the indebtedness and regulations is intended to require whatever rights the debtor may have NASA to omit, foreclose, or duplicate to seek review within the agency; administrative proceedings required by (2) The applicable standards for as- contract or other applicable laws and sessing interest, penalties, and admin- implementing regulations (4 CFR istrative costs (§ 1261.412); and 101.7). (3) The date by which payment is to be made, which normally should be not § 1261.406 Aggressive collection action; documentation. more than 30 days from the date that the initial demand letter was mailed or (a) NASA shall take aggressive ac- hand delivered. The responsible official tion, on a timely basis with effective should exercise care to ensure that de- followup, to collect all claims of the United States for money or property mand letters are mailed or hand deliv- arising out of NASA activities, and to ered on the same day that they are ac- cooperate with the other Federal agen- tually dated. Apart from these require- cies in debt collection activities. ments, there is no prescribed format (b) All administrative collection ac- for demand letters. However, as appro- tion shall be documented and the bases priate to the circumstances, the re- for compromise, or for termination or sponsible official may consider includ- suspension of collection action, should ing, either in the initial demand letter be set out in detail. Such documenta- or in subsequent letters, such items the tion, including the Claims Collection NASA’s willingness to discuss alter- Litigation Report under § 1261.417(e), native methods of payment, or inten- should be retained in the appropriate tions with respect to referral of the claims file. debt to the Department of Justice for litigation. § 1261.407 Demand for payment; limi- (c) NASA should respond promptly to tation periods. communications from the debtor, with- (a) Appropriate written demands in 30 days whenever feasible, and shall be made promptly upon a debtor should advise debtors who dispute the of the United States in terms which in- debt to furnish available evidence to form the debtor of the consequences of support their contentions. failure to cooperate. A total of three (d) If either prior to the initiation of, progressively stronger written de- mands at not more than 30-day inter- any time during, or after completion of vals will normally be made unless a re- the demand cycle, a determination to sponse to the first or second demand pursue offset is made, then the proce- indicates that a further demand would dures specified in subparts 1261.5 and
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1261.6, as applicable, should be fol- party to get the information from a lowed. The availability of funds for off- consumer reporting agency. set and NASA’s determination to pur- (b) NASA Headquarters Financial sue it release the agency from the ne- Management Division, shall be the cessity of further compliance with focal contact between NASA and con- paragraphs (a), (b), and (c) of this sec- sumer reporting agencies. The fol- tion. If the agency has not already sent lowing procedures shall apply when the first demand letter, the agency’s such agencies are employed by NASA: written notification of its intent to off- (1) After the appropriate notice pur- set must give the debtor the oppor- suant to 5 U.S.C. 552a(e)(4) has been tunity to make voluntary payment, a published, NASA may disclose, in ac- requirement which will be satisfied by cordance with 5 U.S.C. 552a(b)(12), in- compliance with the notice require- formation about a debtor to a con- ments of § 1261.502 or § 1261.603(a), as ap- sumer reporting agency. Such informa- plicable. tion may include: (e) NASA should undertake personal (i) That a claim has been determined interviews with its debtors whenever to be valid and is overdue (including this is feasible, having regard for the violation by debtor of a repayment amounts involved and the proximity of plan or other claim settlement agree- agency representatives to such debtors; ment); and may attempt to effect compromise (ii) The name, address, taxpayer iden- of the claim in accordance with tification number, and any other infor- § 1261.414. mation necessary to establish the iden- (f) When a debtor is employed by the tity of the individual responsible for Federal government or is a member of the claim; the military establishment or the (iii) Amount, status, and history of Coast Guard, and collection by offset the claim; cannot be accomplished in accordance (iv) Program or pertinent activity with subpart 1261.6, the employing under which the claim arose. agency will be contacted for the pur- (2) Before disclosing the information pose of arranging with the debtor for specified in paragraph (b)(1) of this sec- payment of the indebtedness by allot- tion, NASA shall comply with 31 U.S.C. ment or otherwise in accordance with 3711(f) by: section 206 of Executive Order 11222, (i) Taking reasonable action to lo- May 8, 1965, 30 FR 6469, which provides cate the individual if a current address that: ‘‘An employee is expected to meet is not available; all just financial obligations, espe- (ii) If a current address is available, cially those—such as Federal, State, or noticing the individual by certified local taxes—which are imposed by law’’ mail, return receipt requested, that: (4 CFR 102.81). The designated NASA official has re- viewed the claim and determined that § 1261.408 Use of consumer reporting agency. it is valid and overdue; within not less than 60 days after sending this notice, (a) The term consumer reporting agen- NASA intends to disclose to a con- cy has the meaning provided in the sumer reporting agency the specific in- Federal Claims Collection Act of 1966, formation to be disclosed under para- as amended (31 U.S.C. 3701(a)(3)): graph (b)(1) of this section; the indi- (1) A consumer reporting agency as vidual may request a complete expla- that term is defined in section 603(f) of nation of the claim, dispute the infor- the Fair Credit Reporting Act (15 mation in the records of NASA about U.S.C. 1681a(f); or the claim, and file for an administra- (2) A person that, for money or on a tive review or repeal of the claim or for cooperative basis, regularly— reconsideration of the initial decision (i) Gets information on consumers to on the claim. give the information to a consumer re- (3) If an administrative review or re- porting agency; or consideration is requested, the respon- (ii) Serves as a marketing agent sible official or designee shall refer the under an arrangement allowing a third request to the appropriate NASA legal
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counsel for an impartial review and de- (b) Funding of collection service con- termination by counsel or designee tracts: based on the entire written record. If (1) NASA may fund a collection serv- the reviewer cannot resolve the ques- ice contract on a fixed-fee basis—that tion of indebtedness based upon the is, payment of a fixed fee determined available documentary evidence, without regard to the amount actually verified written statements by the collected under the contract. However, debtor or the responsible official may such contract may be entered into only be requested on any pertinent matter if and to the extent provided in the ap- not addressed by the available record. propriation act or other legislation, ex- (c) If the information is to be sub- cept that this requirement does not mitted to a consumer reporting agen- apply to the use of a revolving fund au- cy, the responsible official shall obtain thorized by statute. Accordingly, pay- a verified statement from such agency ment of the fixed-fee must be charged which gives satisfactory assurances to available agency appropriations. See that the particular agency is com- 4 CFR 102.6(b)(1) and (3). plying with all laws of the United (2) NASA may also fund a collection States related to providing consumer service contract on a contingent-fee credit information; and thereafter en- basis—that is, by including a provision sure that the consumer reporting agen- in the contract permitting the con- cy is promptly informed of any sub- tractor to deduct its fee from amounts stantial change in the condition or collected under the contract. The fee amount of the claim, or, on request of should be based on a percentage of the such agency, promptly verify or cor- amount collected, consistent with pre- rect information about the claim. vailing commercial practice. See 4 CFR 102.6(b)(2). § 1261.409 Contracting for collection (3) Except as authorized under para- services. graph (b)(2) of this section, or unless (a) When NASA determines that otherwise specifically provided by law, there is a need to contract for collec- NASA must deposit all amounts recov- tion services, the following conditions ered under collection service contracts must attach: (or by NASA employees on behalf of (1) The authority to resolve disputes, the agency) in the Treasury Depart- compromise claims, suspend or termi- ment as miscellaneous receipts pursu- nate collection action, and refer the ant to 31 U.S.C. 3302. See 4 CFR matter for litigation must be retained 102.6(b)(4). by NASA. (2) The contractor shall be subject to § 1261.410 Suspension or revocation of the Privacy Act of 1974, as amended, to license or eligibility; liquidation of the extent specified in 5 U.S.C. 552a(m), collateral. and to applicable Federal and State (a) In seeking the collection of statu- laws and regulations pertaining to debt tory penalties, forfeitures, or debts collection practices—for example, the provided for as an enforcement aid or Fair Debt Collection Practices Act (15 for compelling compliance, NASA will U.S.C. 1692), and 26 U.S.C. 6103(p)(4) and give serious consideration to the sus- applicable regulations of the Internal pension or revocation of licenses or Revenue Service; other privileges for any inexcusable, (3) The contractor must be required prolonged, or repeated failure of a to account strictly for all amounts col- debtor to pay such a claim. In the case lected; and of a contractor under 48 CFR chapter (4) The contractor must agree to pro- 18, NASA will comply with the debar- vide any data contained in its files re- ment, suspension, and ineligibility re- lating to collection actions and related quirements of the NASA Federal Ac- reports, current address of debtor, and quisition Regulation Supplement reasonably current credit information (NASA/FAR Supplement) at 48 CFR upon returning an account to NASA for 1809.4. Likewise, in making, guaran- subsequent referral to the Department teeing, insuring, acquiring, or partici- of Justice for litigation. pating in loans, NASA will give serious
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consideration to suspending or dis- agrees to accept payment in regular in- qualifying any lender, contractor, stallments, it will obtain a legally en- broker, borrower, or other debtor from forceable written agreement from the doing further business with it or engag- debtor which specifies all of the terms ing in programs sponsored by it if such of the arrangement and which contains a debtor fails to pay its debts to the a provision accelerating the debt in the Government within a reasonable time. event the debtor defaults. The size and The failure of any surety to honor its frequency of installment payments obligations in accordance with 31 should bear a reasonable relation to U.S.C. 9305 must be reported to the the size of the debt and the debtor’s Treasury Department at once. Notifi- cation that a surety’s certificate of au- ability to pay. If possible, the install- thority to do business with the Federal ment payments should be sufficient in Government has been revoked or for- size and frequency to liquidate the feited by the Treasury Department will Government’s claim in not more than 3 be forwarded by that Department to all years. Installment payments of less interested agencies. than $50 per month should be accepted (b) If NASA is holding security or only if justifiable on the grounds of fi- collateral which may be liquidated and nancial hardship or for some other rea- the proceeds applied on debts due it sonable cause. If the claim is unse- through the exercise of a power of sale cured, an executed confess-judgment in the security instrument or a non- note, comparable to the Department of judicial foreclosure, it should do so by Justice Form USA–70a, should be ob- such procedures if the debtor fails to tained from a debtor when the total pay the debt within a reasonable time amount of the deferred installments after demand, unless the cost of dis- will exceed $750. Such notes may be posing of the collateral will be dis- sought when an unsecured obligation of proportionate to its value or special a lesser amount is involved. When at- circumstances require judicial fore- tempting to obtain confess-judgment closure. NASA will provide the debtor with reasonable notice of the sale, an notes, the debtor should be provided accounting of any surplus proceeds, with written explanation of the con- and any other procedures required by sequences of signing the note, and doc- applicable contract or law. Collection umentation should be maintained suffi- from other sources, including liquida- cient to demonstrate that the debtor tion of security or collateral, is not a has signed the note knowingly and vol- prerequisite to requiring payment by a untarily. Security for deferred pay- surety or insurance concern unless ments other than a confess-judgment such action is expressly required by note may be accepted in appropriate statute or contract. cases. NASA, at its option, may accept installment payments notwithstanding § 1261.411 Collection in installments. the refusal of a debtor to execute a (a) Whenever feasible, and except as confess-judgment note or to give other otherwise provided by law, debts owed security. to the United States, together with in- (b) If the debtor owes more than one terest penalties, and administrative debt and designates how a voluntary costs as required by § 1261.412, should be installment payment is to be applied as collected in full in one lump sum. This among those debts, that designation is true whether the debt is being col- must be followed. If the debtor does not lected by administrative offset or by designate the application of the pay- another method, including voluntary ment, agencies should apply payments payment. However, if the debtor is fi- to the various debts in accordance with nancially unable to pay the indebted- ness in one lump sum, payment may be the best interests of the United States, accepted in regular installments. Debt- as determined by the facts and cir- ors who represent that they are unable cumstances of the particular case, pay- to pay the debt in one lump sum must ing special attention to applicable submit financial statements. If NASA statutes of limitations.
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§ 1261.412 Interest, penalties, and ad- be paid under a new repayment agree- ministrative costs. ment. (a) Pursuant to 31 U.S.C. 3717, NASA (d) NASA shall assess against a debt- shall assess interest, penalties, and ad- or charges to cover administrative ministrative costs on debts owed to the costs incurred as a result of a delin- United States. Before assessing these quent debt—that is, the additional charges, NASA must mail or hand de- costs incurred in processing and han- liver a written notice to the debtor ex- dling the debt because it became delin- plaining the requirements concerning quent as defined in § 1261.401(b). Cal- the charges (see § 1261.407(b)). culations of administrative costs (b) Interest shall accrue from the should be based upon actual costs in- date on which notice of the debt and curred or upon cost analyses estab- the interest requirements is first lishing an average of actual additional mailed or hand delivered to the debtor costs incurred by the agency in proc- (on or after October 25, 1982), using the essing and handling claims against most current address that is available other debtors in similar stages of delin- to the agency. If an ‘‘advance billing’’ quency. Administrative costs may in- procedure is used—that is, a bill is clude costs incurred in obtaining a mailed before the debt is actually credit report or in using a private debt owed—it can include the required in- collector, to the extent they are attrib- terest notification in the advance bill- utable to delinquency. ing, but interest may not start to ac- (e) NASA shall assess a penalty crue before the debt is actually owed. charge, not to exceed 6 percent a year, Designated officials should exercise on any portion of a debt that is delin- care to ensure that the notices re- quent as defined in § 1261.401(b) for quired by this section are dated and more than 90 days. This charge need mailed or hand delivered on the same not be calculated until the 91st day of day. delinquency, but shall accrue from the (c) The rate of interest assessed shall date that the debt became delinquent. be the rate of the current value of (f) When a debt is paid in partial or funds to the United States Treasury installment payments, amounts re- (i.e., the Treasury tax and loan account ceived by the agency shall be applied rate), as prescribed and published by first to outstanding penalty and ad- the Secretary of the Treasury in the ministrative cost charges, second to FEDERAL REGISTER and the Treasury accrued interest, and third to out- Fiscal Requirements Manual Bulletins standing principal. annually or quarterly, in accordance (g) NASA must waive the collection with 31 U.S.C. 3717. NASA may assess a of interest on the debt or any portion higher rate of interest if it reasonably of the debt which is paid within 30 days determines that a higher rate is nec- after the date on which interest began essary to protect the interests of the to accrue. NASA may extend this 30- United States. The rate of interest, as day period, on a case-by-case basis, if it initially assessed, shall remain fixed reasonably determines that such action for the duration of the indebtedness, is appropriate. Also, NASA may waive, except that where a debtor has de- in whole or in part, the collection of in- faulted on a repayment agreement and terest, penalties, and/or administrative seeks to enter into a new agreement, costs (assessed under this section) NASA may set a new interest rate under the criteria specified in § 1261.414 which reflects the current value of relating to the compromise of claims funds to the Treasury Department at (without regard to the amount of the the time the new agreement is exe- debt), or if NASA determines that col- cuted. Interest should not be assessed lection of these charges would be on interest, penalties, or administra- against equity and good conscience or tive costs required by this section. not in the best interests of the United However, if the debtor defaults on a States. See 4 CFR 101.13(g). Such op- previous repayment agreement, tional waivers should be handled on a charges which accrued but were not case-by-case basis, in consultation with collected under the defaulted agree- officials designated under § 1261.403. Ex- ment shall be added to the principal to amples of situations in which NASA
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may consider waiving interest and which costs of further collection efforts other related charges are: are likely to exceed recoveries, and as- (1) Pending consideration of a request sist in evaluating offers in com- for reconsideration or administrative promise. review; (b) Consider the need, feasibility, and (2) Acceptance of an installment plan cost effectiveness of automated debt or other compromise agreement, where collection operation. there is no indication of lack of good (c) Establish internal controls to faith on the part of the debtor in not identify causes, if any, of overpay- repaying the debt, and the debtor has ments, delinquencies, and defaults, and provided substantiating information of establish procedures for corrective ac- inability to pay or other unavoidable tions as needs dictate. hardship which reasonably prevented the debt from being repaid. § 1261.414 Compromise of claims. (h) Where a mandatory waiver or re- (a) Designated NASA officials (see view statute applies, interest and re- §§ 1261.402 and 1261.403) may com- lated charges may not be assessed for those periods during which collection promise claims for money or property action must be suspended under arising out of the activities of the § 1261.416(c)(3). agency where the claim, exclusive of (i) Exemptions. (1) The provisions of 31 interest, penalties, and administrative U.S.C. 3717 do not apply: costs, does not exceed $20,000, prior to (i) To debts owed by any State or the referral of such claims to the Gen- local government; eral Accounting Office, or to the De- (ii) To debts arising under contracts partment of Justice for litigation. The which were executed prior to, and were Comptroller General may exercise such in effect on (i.e., were not completed as compromise authority with respect to of) October 25, 1982; claims referred to the General Ac- (iii) To debts where an applicable counting Office (GAO) prior to their statute, regulation required by statute, further referral for litigation. Only the loan agreement, or contract either pro- Comptroller General may effect the hibits such charges or explicitly fixes compromise of a claim that arises out the charges that apply to the debts in- of an exception made by the GAO in volved; or the account of an accountable officer, (iv) Debts arising under the Social including a claim against the payee, Security Act, the Internal Revenue prior to its referral by the GAO for liti- Code of 1954, or the tariff laws of the gation. United States. (b) When the claim, exclusive of in- (2) NASA may, however, assess inter- terest, penalties, and administrative est and related charges on debts which costs, exceeds $20,000, the authority to are not subject to 31 U.S.C. 3717 to the accept the compromise rests solely extent authorized under the common with the Department of Justice. NASA law or other applicable statutory au- should evaluate the offer, using the thority. factors set forth in paragraphs (c) through (f) of this section, and may § 1261.413 Analysis of costs; automa- recommend compromise for reasons tion; prevention of overpayments, under one, or more than one, of those delinquencies, or defaults. paragraphs. If NASA then wishes to ac- The Office of the NASA Comptroller cept the compromise, it must refer the will: matter to the Department of Justice, (a) Issue internal procedures to pro- using the Claims Collection Litigation vide for periodic comparison of costs Report. See § 1261.417(e) or 4 CFR incurred and amounts collected. Data 105.2(b). Claims for which the gross on costs and corresponding recovery amount is over $200,000 shall be re- rates for debts of different types and in ferred to the Commercial Litigation various dollar ranges should be used to Branch, Civil Division, Department of compare the cost effectiveness of alter- Justice, Washington, DC 20530. Claims native collection techniques, establish for which the gross original amount is guidelines with respect to points at $200,000 or less shall be referred to the
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United States Attorney in whose judi- Government’s ability to prove its case cial district the debtor can be found. in court for the full amount claimed, The referral should specify the reasons either because of the legal issues in- for the agency’s recommendation. If volved or a bona fide dispute as to the NASA has a debtor’s firm written offer facts. The amount accepted in com- of compromise which is substantial in promise in such cases should fairly re- amount and the agency is uncertain as flect the probability of prevailing on to whether the offer should be accept- the legal question involved, the prob- ed, it may refer the offer, the sup- abilities with respect to full or partial porting data, and particulars con- recovery of a judgment, paying due re- cerning the claim to the General Ac- gard to the availability of witnesses counting Office or to the Department and other evidentiary support for the of Justice. The General Accounting Of- Government claim, and related prag- fice or the Department of Justice may act upon such an offer or return it to matic considerations. In determining the agency with instructions or advice. the litigative risks involved, propor- If NASA wishes to reject the com- tionate weight should be given to the promise, GAO or Department of Justice probable amount of court costs and at- approval is not required. torney fees pursuant to the Equal Ac- (c) A claim may be compromised pur- cess to Justice Act which may be as- suant to this section if NASA cannot sessed against the Government if it is collect the full amount because of the unsuccessful in litigation. See 28 U.S.C. debtor’s inability to pay the full 2412. amount within a reasonable time, or (e) A claim may be compromised if the refusal of the debtor to pay the the cost of collecting the claim does claim in full and the Government’s in- not justify the enforced collection of ability to enforce collection in full the full amount. The amount accepted within a reasonable time by enforced in compromise in such cases may re- collection proceedings. In determining flect an appropriate discount for the the debtor’s inability or refusal to pay, administrative and litigative costs of the following factors, among others, collection, paying heed to the time may be considered: which it will take to effect collection. (1) Age and health of the debtor; Costs of collecting may be a substan- (2) Present and potential income; tial factor in the settlement of small (3) Inheritance prospects; claims, but normally will not carry (4) The possibility that assets have great weight in the settlement of large been concealed or improperly trans- ferred by the debtor; claims. In determining whether the (5) The availability of assets or in- cost of collecting justifies enforced col- come which may be realized by en- lection of the full amount, it is legiti- forced collection proceedings; and mate to consider the positive effect (6) The applicable exemptions avail- that enforced collection of some claims able to the debtor under State and Fed- may have on the collection of other eral law in determining the Govern- claims. Since debtors are more likely ment’s ability to enforce collection. to pay when first requested to do so if Uncertainty as to the price which col- an agency has a policy of vigorous col- lateral or other property will bring at lection of all claims, the fact that the forced sale may properly be considered cost of collection of any one claim may in determining the Government’s abil- exceed the amount of the claim does ity to enforce collection. The com- not necessarily mean that the claim promise should be for an amount which should be compromised. The practical bears a reasonable relation to the benefits of vigorous collection of a amount which can be recovered by en- small claim may include a demonstra- forced collection procedures, having re- tion to other debtors that resistance to gard for the exemptions available to payment is not likely to succeed. the debtor and the time which collec- (f) Enforcement policy. Statutory pen- tion will take. alties, forfeitures, or debts established (d) A claim may be compromised if as an aid to enforcement and to compel there is a real doubt concerning the
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compliance may be compromised pur- with one such debtor does not release suant to this part if the agency’s en- the agency’s claim against the remain- forcement policy in terms of deter- ing debtors. The amount of a com- rence and securing compliance, both promise with one such debtor shall not present and future, will be adequately be considered a precedent or as morally served by acceptance of the sum to be binding in determining the amount agreed upon. Mere accidental or tech- which will be required from other debt- nical violations may be dealt with less ors jointly and severally liable on the severely than willful and substantial claim. violations. (g) Compromises payable in install- § 1261.415 Execution of releases. ments are to be discouraged. However, Upon receipt of full payment of a if payment of a compromise by install- claim, or the amount in compromise of ments is necessary, a legally enforce- a claim as determined pursuant to able agreement for the reinstatement § 1261.414, the official designated in of the prior indebtedness less sums paid § 1261.402 will prepare and execute, on thereon and acceleration of the balance behalf of the United States, an appro- due upon default in the payment of any priate release, which shall include the installment should be obtained, to- provision that it shall be void if pro- gether with security in the manner set cured by fraud, misrepresentation, the forth in § 1261.411, in every case in presentation of a false claim, or mu- which this is possible. tual mistake of fact. (h) If the agency’s files do not con- tain reasonably up-to-date credit infor- § 1261.416 Suspending or terminating mation as a basis for assessing a com- collection action. promise proposal, such information may be obtained from the individual (a) The standards set forth in this debtor by obtaining a statement exe- section apply to the suspension or ter- cuted under penalty of perjury showing mination of collection action pursuant the debtor’s assets and liabilities, in- to 31 U.S.C. 3711(a)(3) on claims which come, and expenses. Forms such as De- do not exceed $20,000, exclusive of in- partment of Justice Form OBD–500 or terest, penalties, and administrative OBD–500B may be used for this purpose. costs, after deducting the amount of Similar data may be obtained from partial payments or collections, if any. corporate debtors using a form such as NASA may suspend or terminate col- Department of Justice Form OBD–500C lection action under this part with re- or by resort to balance sheets and such spect to claims for money or property additional data as seems required. arising out of activities of the agency, Samples of the Department of Justice prior to the referral of such claims to forms are available from the Office of the General Accounting Office or to the the NASA General Counsel. Neither a Department of Justice for litigation. percentage of a debtor’s profits nor The Comptroller General (or designee) stock in a debtor corporation will be may exercise such authority with re- accepted in compromise of a claim. In spect to claims referred to the General negotiating a compromise with a busi- Accounting Office prior to their further ness concern, consideration should be referral for litigation. given to requiring a waiver of the tax- (b) If, after deducting the amount of loss-carry-back rights of the debtor. partial payments or collections, if any, (i) Joint and several liability. When two a claim exceeds $20,000, exclusive of in- or more debtors are jointly and sever- terest, penalties, and administrative ally liable, collection action will not be costs, the authority to suspend or ter- withheld against one such debtor until minate rests solely with the Depart- the other or others pay their propor- ment of Justice. If the designated offi- tionate shares. NASA will not attempt cial believes suspension or termination to allocate the burden of paying such may be appropriate, the matter should claims as between the debtors but will be evaluated using the factors set forth proceed to liquidate the indebtedness in paragraphs (c) and (d) of this sec- as quickly as possible. Care should be tion. If the agency concludes that sus- taken that a compromise agreement pension or termination is appropriate,
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it must refer the matter, with its rea- (i) The applicable statute of limita- sons for the recommendation, to the tions has been tolled or started run- Department of Justice, using the ning anew; or Claims Collection Litigation Report. (ii) Future collection can be effected See § 1261.417(e) or 4 CFR 105.2(b). If by offset, notwithstanding the statute NASA decides not to suspend or termi- of limitations, with due regard to the nate collection action on the claim, 10-year limitation prescribed by 31 Department of Justice approval is not U.S.C. 3716(c)(1); or required; or if it determines that its (iii) The debtor agrees to pay interest claim is plainly erroneous or clearly on the amount of the debt on which without legal merit, it may terminate collection action will be temporarily collection action regardless of the suspended, and such temporary suspen- amount involved, without the need for sion is likely to enhance the debtor’s Department of Justice concurrence. ability to fully pay the principle (c) Suspension of collection activity—(1) amount of the debt with interest at a Inability to locate debtor. Collection ac- later date. tion may be suspended temporarily on (3) Request for waiver or administra- a claim when the debtor cannot be lo- tive review. If the statute under which cated after diligent effort and there is waiver or administrative review is reason to believe that future collection sought is ‘‘mandatory,’’ that is, if it action may be sufficiently productive prohibits the agency from collecting to justify periodic review and action on the debt prior to the agency’s consider- the claim, with due consideration for ation of the request for waiver or re- the size and amount which may be re- view (see Califano v. Yamasaki, 422 U.S. alized thereon. The following sources 682 (1979)), then collection action must may be of assistance in locating miss- be suspended until either: The agency ing debtors: Telephone directories; city has considered the request for waiver/ directories; postmasters; drivers’ li- review; or the applicable time limit for cense records; automobile title and making the waiver/review request, as registration records; state and local prescribed in a written notice, has ex- government agencies; the Internal Rev- pired and the debtor, upon notice, has enue Service (see 4 CFR 102.18); other not made such a request. If the applica- Federal agencies; employers, relatives, ble waiver/review statute is ‘‘permis- friends; credit agency skip locate re- sive,’’ that is, if it does not require all ports, and credit bureaus. Suspension requests for waiver/review to be consid- as to a particular debtor should not ered, and if it does not prohibit collec- defer the early liquidation cf security tion action pending consideration of a for the debt. Every reasonable effort waiver/request (for example, 5 U.S.C. should be made to locate missing debt- 5584), collection action may be sus- ors sufficiently in advance of the bar of pended pending agency action on a the applicable statute of limitations, waiver/review request based upon ap- such as 28 U.S.C. 2415, to permit the propriate consideration, on a case-by- timely filing of suit if such action is case basis, as to whether: warranted. If the missing debtor has (i) There is a reasonable possibility signed a confess-judgment note and is that waiver will be granted or that the in default, referral of the note for the debt (in whole or in part) will be found entry of judgment should not be de- not owing from the debtor; layed because of the debtor’s missing (ii) The Government’s interests status. would be protected, if suspension were (2) Financial condition of debtor. Col- granted, by reasonable assurance that lection action may also be suspended the debt could be recovered if the debt- temporarily on a claim when the debt- or does not prevail; and or owns no substantial equity in realty (iii) Collection of the debt will cause or personal property and is unable to undue hardship. make payments on the Government’s (4) If the applicable statutes and reg- claim or effect a compromise at the ulations would not authorize refund by time, but the debtor’s future prospects the agency to the debtor of amounts justify retention of the claim for peri- collected prior to agency consideration odic review and action, and: of the debtor’s waiver/review request
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(in the event the agency acts favorably the evidence necessary to prove the on it), collection action should ordi- claim cannot be produced or the nec- narily be suspended, without regard to essary witnesses are unavailable and the factors specified for permissive efforts to reduce voluntary payment waivers, unless it appears clear, based are unavailing. on the request and the surrounding cir- (e) Transfer of claim. When NASA has cumstances, that the request is frivo- doubt as to whether collection action lous and was made primarily to delay should be suspended or terminated on a collection. See 4 CFR 104.2. claim, it may refer the claim to the (d) Termination of collection activity. General Accounting Office for advice. Collection activity may be terminated When a significant enforcement policy and NASA may close its file on the is involved in reducing a statutory pen- claim based on the following: alty or forfeiture to judgment, or re- (1) Inability to collect any substan- covery of a judgment is a prerequisite tial amount. Collection action may be to the imposition of administrative terminated on a claim when it becomes sanctions, such as the suspension or clear that the Government cannot col- revocation of a license or the privilege lect or enforce collection of any signifi- of participating in a Government spon- cant sum from the debtor, having due sored program, NASA may refer such a regard for the judicial remedies avail- claim for litigation even though termi- able to the Government, the debtor’s nation of collection activity might future financial prospects, and the ex- otherwise be given consideration under emptions available to the debtor under paragraphs (d)(1) and (2) of this section. State and Federal law. In determining Claims on which NASA holds a judg- the debtor’s inability to pay, the fol- ment by assignment or otherwise will lowing factors, among others, may be be referred to the Department of Jus- considered: Age and health of the debt- tice for further action if renewal of the or; present and potential income; in- judgment lien or enforced collection heritance prospects; the possibility proceedings are justified under the cri- that assets have been concealed or im- teria discussed in this section. properly transferred by the debtor; the availability of assets or income which § 1261.417 Referral to Department of may be realized by enforced collection Justice (DJ) or General Accounting proceedings. Office (GAO). (2) Inability to locate debtor. Collection (a) Prompt referral. Except as provided action may be terminated on a claim in paragraphs (b) and (c) of this sec- when the debtor cannot be located, and tion, claims on which aggressive col- either: lection action has been taken in ac- (i) There is no security remaining to cordance with § 1261.406 and which can- be liquidated; or not be compromised, or on which col- (ii) The applicable statute of limita- lection action cannot be suspended or tions has run and the prospects of col- terminated, in accordance with lecting by offset, notwithstanding the §§ 1261.414 and 1261.416, shall be prompt- bar of the statute of limitations, are ly referred to the Department of Jus- too remote to justify retention of the tice for litigation. claim. (1) Claims for which the gross origi- (3) Cost will exceed recovery. Collection nal amount is over $200,000 shall be re- action may be terminated on a claim ferred to the Commercial Litigation when it is likely that the cost of fur- Branch, Civil Division, Department of ther collection action will exceed the Justice, Washington, DC 20530. amount recoverable thereby. (2) Claims for which the gross origi- (4) Claim legally without merit. Collec- nal amount is $200,000 or less shall be tion action should be terminated im- referred to the United States Attorney mediately on a claim whenever it is de- in whose judicial district the debtor termined that the claim is legally can be found. Referrals should be made without merit. as early as possible, consistent with ag- (5) Claim cannot be substantiated by gressive agency collection action and evidence. Collection action should be the observance of the regulations con- terminated when it is determined that tained in this subpart, and in any
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event, well within the period for bring- counting Office, the Claims Collection ing a timely suit aqainst the debtor. Litigation Report (CCLR), which was Ordinarily, referrals should be made officially implemented by NASA, effec- within l year of the agency’s final de- tive March 1, 1983, shall be used with termination of the fact and the amount all referrals of administratively of the debt. uncollectible claims. As required by (3) Minimum amount. NASA is not to the CCLR, the following information refer claims of less than $600, exclusive must be included: of interest, penalties, and administra- (1) Report of prior collection actions. A tive costs, for litigation unless: checklist or brief summary of the ac- (i) Referral is important to a signifi- tions previously taken to collect or cant enforcement policy; or compromise the claim. If any of the ad- (ii) The debtor not only has the clear ministrative collection actions have ability to pay the claim but the Gov- been omitted, the reason for their ernment can effectively enforce pay- omission must be provided. GAO, the ment, having due regard for the exemp- United States Attorney, or the Civil tions available to the debtor under Division of the Department of Justice State and Federal law and the judicial may return claims at their option remedies available to the Government. when there is insufficient justification (b) Claims arising from audit excep- for the omission of one or more of the tions taken by the GAO to payments administrative collection actions enu- made by agencies must be referred to merated in this subpart (see 4 CFR part the GAO for review and approval prior 102). to referral to the Department of Jus- (2) Current address of debtor. The cur- tice for litigation, unless NASA has rent address of the debtor, or the name been granted an exception by the GAO. and address of the agent for a corpora- Referrals shall comply with instruc- tion upon whom service may be made. tions, including monetary limitations, Reasonable and appropriate steps will contained in the GAO Policy and Pro- be taken to locate missing parties in cedures Manual for Guidance to Fed- all cases. Referrals to the Department eral Agencies and paragraphs (e) and (f) of Justice for the commencement of of this section. foreclosure of other proceedings, in (c) When the merits of the claim, the which the current address of any party amount owed on the claim, or the pro- is unknown, will be accompanied by a priety of acceptance of a proposed com- listing of the prior known addresses of promise, suspension, or termination such party and a statement of the steps are in doubt, the designated official taken to locate that party. should refer the matter to the General (3) Credit data. Reasonably current Accounting Office for resolution and credit data which indicates that there instructions prior to proceeding with is a reasonable prospect of effecting en- collection action and/or referral to the forced collection from the debtor, hav- Department of Justice for litigation. ing due regard for the exemptions (d) Once a claim has been referred to available to the debtor under State and GAO or to the Department of Justice Federal law and the judicial remedies pursuant to this section, NASA shall available to the Government. Such refrain from having any contact with credit data may take the form of: the debtor about the pending claim and (i) A commercial credit report; shall direct the debtor to GAO or to (ii) An agency investigative report the DJ, as appropriate, when questions showing the debtor’s assets, liabilities, concerning the claim are raised by the income, and expenses; debtor. GAO or the DJ, as appropriate, (iii) The individual debtor’s own fi- shall be immediately notified by NASA nancial statement executed under pen- of any payments which are received alty of perjury reflecting the debtor’s from the debtor subsequent to referral assets, liabilities, income, and ex- of a claim under this section. penses; or (e) Claims Collection Litigation Report (iv) An audited balance sheet of a (CCLR). Unless an exception has been corporate debtor. granted by the Department of Justice (4) Reasons for credit data omissions. in consultation with the General Ac- The credit data may be omitted if:
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(i) A surety bond is available in an (b) Whether collection by administra- amount sufficient to satisfy the claim tive offset is feasible is a determina- in full; tion to be made by NASA on a case-by- (ii) The forced sale value of the secu- case basis, in the exercise of sound dis- rity available for application to the cretion. NASA will consider not only Government’s claim is sufficient to whether administrative offset can be satisfy the claim in full; accomplished, both practically and le- (iii) NASA wishes to liquidate loan gally, but also whether offset is best collateral through judicial foreclosure suited to further and protect all of the but does not desire a deficiency judg- Government’s interests. In appropriate ment; circumstances, NASA may give due (iv) The debtor is in bankruptcy or consideration to the debtor’s financial receivership; condition; or whether offset would tend (v) The debtor’s liability to the Gov- to substantially interfere with or de- ernment is fully covered by insurance, feat the purposes of the program au- in which case NASA will furnish such thorizing the payments against which information as it can develop con- offset is contemplated. For example, cerning the identity and address of the under a grant program in which pay- insurer and the type and amount of in- ments are made in advance of the surance coverage; or grantee’s performance, offset will nor- (vi) The status of the debtor is such mally be inappropriate. that credit data is not normally avail- (c) NASA is not authorized by 31 able or cannot reasonably be obtained, U.S.C. 3716 to use administrative offset for example, a unit of State or local with respect to: government. (1) Debts owed by any State or local (f) Preservation of evidence. Care will Government; be taken to preserve all files, records, (2) Debts arising under or payments and exhibits on claims referred or to be made under the Social Security Act, referred to the Department of Justice the Internal Revenue Code of 1954, or for litigation. Under no circumstances the tariff laws of the United States; or should original documents be sent to (3) Any case in which collection of the Department of Justice or the the type of debt involved by adminis- United States Attorney without spe- trative offset is explicitly provided for cific prior approval to do so. Copies of or prohibited by another statute. How- relevant documents should be sent ever, unless otherwise provided by con- whenever necessary. tract or law, debts or payments which are not subject to administrative offset Subpart 1261.5—Administrative under 31 U.S.C. 3716 may be collected Offset of Claims by administrative offset under the common law or other applicable statu- SOURCE: 52 FR 19487, May 26, 1987, unless tory authority. otherwise noted. § 1261.501 Definition. § 1261.500 Scope of subpart. Administrative offset—the term, as de- (a) This subpart applies to collection fined in 31 U.S.C. 3701(a)(1), means of claims by administrative offset ‘‘withholding money payable by the under section 5 of the Federal Claims United States Government to, or held Collection Act of 1966 as amended by by the Government for, a person to sat- the Debt Collection Act of 1982 (31 isfy a debt the person owes the Govern- U.S.C. 3716), other statutory authority, ment.’’ or the common law; it does not include ‘‘Salary Offset,’’ which is governed by § 1261.502 Notification procedures. subpart 1261.6, infra. Consistent with 4 (a) Before collecting any claims CFR 102.3, collection by administrative through administrative offset, a 30-day offset will be undertaken by NASA on written notice must be sent to the all liquidated or certain in amount debtor by certified mail, return receipt claims in every instance in which such requested. The notice must include: collection is determined to be feasible (1) The nature and amount of the and not otherwise prohibited. debt;
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(2) NASA’s intention to collect by ad- § 1261.503 Agency records inspection; ministrative offset; and hearing or review. (3) An explanation of the debtor’s (a) NASA shall provide the debtor rights under 31 U.S.C. 3716(a), or other with a reasonable opportunity for an relied upon statutory authority, which ‘‘oral hearing’’ when: must include a statement that the (1) An applicable statute authorizes debtor has the opportunity, within the or requires the agency to consider 30-day notice period, to: waiver of the indebtedness involved, (i) Inspect and copy records of NASA the debtor requests waiver of the in- with respect to the debt; debtedness, and the waiver determina- (ii) Request a review by NASA of its tion turns on an issue of credibility or decision related to the claim; and veracity; or (iii) Enter into a written agreement (2) The debtor requests reconsider- with the designated official (see ation of the debt and the agency deter- § 1261.402) to repay the amount of the mines that the question of the indebt- claim. However, sound judgment edness cannot be resolved by review of should be exercised in determining the documentary evidence, for exam- whether to accept a repayment agree- ple, when the validity of the debt turns ment in lieu of offset. The determina- on an issue of credibility or veracity. tion should balance the Government’s Unless otherwise required by law, an oral hearing under this section is not interest in collecting the debt against required to be a formal evidentiary- fairness to the debtor. If the debt is de- type hearing, although significant mat- linquent and the debtor has not dis- ters discussed at the hearing should be puted its existence or amount, NASA carefully documented. See 4 CFR should accept a repayment agreement 102.3(c)(1). Such hearing may be an in- in lieu of offset only if the debtor is formal discussion/interview with the able to establish that offset would re- debtor, face-to-face meeting between sult in undue financial hardship or debtor and cognizant NASA personnel, would be against equity and good con- or written formal submission by the science. debtor and response by the NASA cog- (b) NASA may effect administrative nizant personnel with an opportunity offset against a payment to be made to for oral presentation. The hearing will a debtor prior to the completion of the be conducted before or in the presence procedures required by paragraph (a) of of an official designated by the NASA this section if: General Counsel or designee on a case- (1) Failure to take the offset would by-case basis. The decision of the re- substantially prejudice the Govern- viewing/hearing official should be com- ment’s ability to collect the debt; and municated in writing (no particular (2) The time before the payment is to form is required) to the affected par- be made does not reasonably permit ties, and will constitute the final ad- the completion of those procedures. ministrative decision of the agency. Such prior offset must be promptly fol- (b) Paragraph (a) of this section does lowed by the completion of those pro- not require an oral hearing with re- cedures. Amounts recovered by offset spect to debt collection systems in but later found not to be owed to the which determinations of indebtedness Government shall be promptly re- or waiver rarely involve issues of credi- funded. bility or veracity and NASA has deter- (3) In cases where the procedural re- mined that review of the written quirements of paragraph (a) of this sec- record is ordinarily an adequate means tion had previously been provided to to correct prior mistakes. In admin- the debtor in connection with the same istering such a system, the agency is debt under some other statutory or not required to sift through all of the regulatory authority, such as pursuant requests received in order to accord to a notice of audit disallowance or sal- oral hearings in those few cases which ary offset under § 1261.603, the agency is may involve issues of credibility or ve- not required to duplicate those require- racity. See 4 CFR 102.3(c)(2). ments before taking administrative (c) In those cases where an oral hear- offset. ing is not required or granted, NASA
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will nevertheless accord the debtor a (d) Requests from or to NASA must ‘‘paper hearing’’—that is, the agency be accompanied by a certification that will make its determination on the re- the debtor owes the debt (including the quest for waiver or reconsideration amount) and that the provisions of (or based upon a review of the available comparable to) subpart 1261.5 or sub- written record. See 4 CFR 102.3(c)(3). In part 1261.6, as applicable, have been such case, the responsible official or fully complied with. NASA will cooper- designee shall refer the request to the ate with other agencies in effecting appropriate NASA legal counsel for re- collection. view and determination by counsel or designee. § 1261.505 Multiple debts. (d) A request to inspect and/or copy When collecting multiple debts by the debtor’s own debt records or re- administrative offset, NASA will apply lated files, and/or for a hearing or re- the recovered amounts to those debts view accompanied by a statement of in accordance with the best interests of the basis or grounds for such hearing or the United States, as determined by review, must be submitted within 30 the facts and circumstances of the par- calendar days of the receipt of the ticular case, paying special attention written notice under § 1261.502(a). A to applicable statutes of limitations. reasonable time to inspect and copy records will be provided during official § 1261.506 Limitation periods. working hours, but not to exceed 5 NASA may not initiate administra- business days, unless a verified state- tive offset to collect a debt under 31 ment showing good cause requires a U.S.C. 3716 more than 10 years after the longer period. Any suspension of collec- Government’s right to collect the debt tion or other charges during the period first accrued, unless facts material to of the inspection, or hearing or review, the Government’s right to collect the shall comply with §§ 1261.412 and debt were not known and could not rea- 1261.416. Requests for or consideration sonably have been known by the offi- of compromising the debt must comply cial or officials of the Government who with § 1261.414. were charged with the responsibility to discover and collect such debts. Deter- § 1261.504 Interagency requests. mination of when the debt first accrued (a) Requests to NASA by other Fed- is to be made in accordance with exist- eral agencies for administrative offset ing law regarding the accrual of debts, should be in writing and forwarded to such as under 28 U.S.C. 2415. See 4 CFR the Office of the NASA Comptroller, 102.3(b)(3). NASA Headquarters, Washington, DC 20546. § 1261.507 Civil Service Retirement (b) Requests by NASA to other Fed- and Disability Fund. eral agencies holding funds payable to (a) Unless otherwise prohibited by the debtor should be in writing and for- law, NASA may request that moneys warded, certified return receipt, as which are due and payable to a debtor specified by that agency in its regula- from the Civil Service Retirement and tions; however, if such rule is not read- Disability Fund be administratively ily available or identifiable, the re- offset in reasonable amounts in order quest should be submitted to that to collect in one full payment or a agency’s office of legal counsel with a minimal number of payments debts request that it be processed in accord- owed to the United States by the debt- ance with their internal procedures. or. Such requests shall be made to the (c) Requests to and from NASA appropriate officials of the Office of should be processed within 30 calendar Personnel Management (OPM) in ac- days of receipt. If such processing is cordance with the OPM regulations impractical or not feasible, notice to (see 5 CFR 831.1801, et seq.). extend the time period for another 30 (b) When making a request for ad- calendar days should be forwarded 10 ministrative offset under paragraph (a) calendar days prior to the expiration of of this section, NASA shall include a the first 30-day period. written certification that:
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(1) The debtor owes the United States Subpart 1261.6—Collection by a debt, including the amount of the Offset From Indebted Govern- debt; ment Employees (2) NASA has complied with the ap- plicable statutes, regulations, and pro- cedures of the Office of Personnel Man- SOURCE: 52 FR 19487, May 26, 1987, unless otherwise noted. agement; and (3) NASA has complied with the re- § 1261.600 Purpose of subpart. quirements of this subpart 1261.5 which This subpart implements 5 U.S.C. implements 4 CFR 102.3, including any 5514 in accordance with the OPM regu- required hearing or review. lation and establishes the procedural (c) Once NASA has decided to request requirements for recovering pre-judg- administrative offset under this sec- ment debts from the current pay ac- tion, the request should be made as count of an employee through what is soon as practical after completion of commonly called salary offset, includ- the applicable procedures in order that ing a situation where NASA (the cur- the Office of Personnel Management rent paying agency) is not the employ- may identify and ‘‘flag’’ the debtor’s ee’s creditor agency. Salary offset to account in anticipation of the time satisfy a judgment or a court deter- when the debtor requests or becomes mined debt is governed by section 124 eligible to receive payments from the of Pub. L. 97–276 (October 2, 1982), 5 Fund. This will satisfy any require- U.S.C. 5514 note. ment that offset be initiated prior to expiration of the applicable statute of § 1261.601 Scope of subpart. limitations. At such time as the debtor (a) Coverage. This subpart applies to makes a claim for payments from the agencies and employees as defined in Fund, if at least a year has elapsed § 1261.602. since the offset request was originally (b) Applicability. This subpart and 5 made, the debtor should be permitted U.S.C. 5514 apply in recovering certain to offer a satisfactory repayment plan prejudgment debts by administrative in lieu of offset upon establishing that offset except where the employee con- changed financial circumstances would sents to the recovery, from the current render the offset unjust. pay account of an employee. Because it (d) If NASA collects part or all of the is an administrative offset, debt collec- debt by other means before deductions tion procedures for salary offset which are made or completed pursuant to are not specified in 5 U.S.C. 5514 and paragraph (a) of this section, the des- this subpart should be consistent with ignated official should act promptly to subpart 1261.5. modify or terminate the agency’s re- (1) Excluded debts or claims. The proce- quest to OPM for offset. dures contained in this subpart do not (e) OPM is not required or authorized apply to debts or claims arising under by 4 CFR 102.4 to review the merits of the Internal Revenue Code of 1954 as NASA’s determination with respect to: amended (26 U.S.C. 1 et seq.), the Social (1) The amount and validity of the Security Act (42 U.S.C. 301 et seq.), or debt; the tariff laws of the United States; or to any case where collection of a debt (2) Waiver under an applicable stat- by salary offset is explicitly provided ute; or for or prohibited by another statute (3) Provide or not provide an oral (e.g., travel advances in 5 U.S.C. 5705, hearing. employee training expenses in 5 U.S.C. 4108, and debts determined by a court § 1261.508 Offset against a judgment. as provided in 5 U.S.C. 5514 note). Collection by offset against a judg- (2) Waiver requests and claims to the ment obtained by a debtor against the General Accounting Office. This subpart United States shall be accomplished in does not preclude an employee from re- accordance with 31 U.S.C. 3728. questing waiver of a salary overpay- ment under 5 U.S.C. 5584, 10 U.S.C. 2774,
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or 32 U.S.C. 716, or in any way ques- (e) Employee means a current em- tioning the amount or validity of a ployee of an agency, including a cur- debt by submitting a subsequent claim rent member of the Armed Forces or a to the General Accounting Office in ac- Reserve of the Armed Forces (Re- cordance with procedures prescribed by serves). the General Accounting Office. Simi- (f) Paying agency means the agency larly, in the case of other types of employing the individual and author- debts, it does not preclude an employee izing the payment of his or her current from requesting waiver, if waiver is pay. available under any statutory provi- (g) Salary offset means an administra- sion pertaining to the particular debt tive offset to collect a debt under 5 being collected. U.S.C. 5514 by deduction(s) at one or more officially established pay inter- § 1261.602 Definitions. vals from the current pay account of For purposes of this subpart: an employee without his or her con- (a) Agency means: sent. (1) An Executive agency as defined in (h) Waiver means the cancellation, section 105 of title 5, United States remission, forgiveness, or nonrecovery Code, including U.S. Postal Service and of a debt allegedly owed by an em- the U.S. Postal Rate Commission; ployee to an agency as permitted or re- (2) A military department as defined quired by 5 U.S.C. 8346(b), or any other in section 102 of Title 5, United States law. Code; (3) An agency or court in the judicial § 1261.603 Procedures for salary offset. branch, including a court as defined in If NASA is both the paying and cred- section 610 of Title 28, United States itor agency, the following require- Code, the District Court for the North- ments must be met before a deduction ern Mariana Islands, and the Judicial is made from the current pay account Panel on Multidistrict Litigation; of an employee. (4) An agency of the legislative (a) Written notice. The employee must branch, including the U.S. Senate and be sent a minimum of 30 days written the U.S. House of Representatives; and notice, which specifies: (5) Other independent establishments (1) The origin, nature and amount of that are entities of the Federal Govern- the indebtedness, and the official to ment. contact within the agency (ordinarily, (b) Creditor agency means the agency the designated financial management to which the debt is owed. official for the particular installation); (c) Debt means an amount owed to (2) The intention of the agency to ini- the United States from sources which tiate collection of the debt through sal- include loans insured or guaranteed by ary offset by deductions from the em- the United States and all other ployee’s current disposable pay, stating amounts due the United States from the amount, frequency, proposed begin- fees, leases, rents, royalties, services, ning date, and duration of intended de- sales of real or personal property, over- ductions (the amount to be deducted payments, penalties, damages, interest, for any period, without the consent of fines and forfeitures (except those aris- the employee, may not exceed 15 per- ing under the Uniform Code of Military cent of disposable pay); Justice), and all other similar sources. (3) An explanation of any interest, (d) Disposable pay means that part of penalties, or administrative costs in- current basic pay, special pay, incen- cluded in the amount, and that such tive pay, retired pay, retainer pay, or assessment must be made unless ex- in the case of an employee not entitled cused in accordance with 14 CFR to basic pay, other authorized pay re- 1261.412; maining after the deduction of any (4) The right for an opportunity amount required by law to be withheld. (which does not toll the running of the NASA must exclude deductions listed 30-day period) to inspect and copy in OPM’s garnishment regulations at 5 NASA records relating to the debt or CFR 581.105 (b) through (f) to determine to request and receive (if reasonable) a disposable pay subject to salary offset. copy of such records, provided that
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such opportunity must be exercised on the following provisions, which may be or before the 15th day following receipt copied and attached to the notice. of the notice and can be conducted only (1) The employee may petition for a during official working hours for a rea- hearing, but such petition must be in sonable period of time not to exceed 5 writing and received by NASA on or be- working days; fore the 15th day following receipt of (5) If not previously provided, the op- the notice, and include a statement of portunity (under terms agreeable to the reasons for such hearing. No par- NASA) to establish a schedule for the ticular form is required, and a timely, voluntary repayment of the debt or to legible letter request (with the stated enter into a written agreement to es- reasons) will suffice; however, the em- tablish a schedule for repayment of the ployee must sign the petition and in- debt in lieu of offset. The agreement clude with it, with reasonable speci- must be in writing, signed by both the ficity, all the supporting facts and evi- employee and the authorized agency of- dence, including a list of the witnesses, ficial (see 14 CFR 1261.402) and docu- if any. mented in NASA’s files (see 14 CFR (2) The petition should be addressed 1261.407(d)); to the agency counsel designated in the (6) An opportunity for a hearing, as notice, but the hearing will be con- provided in paragraph (c) of this sec- ducted by an official not under the su- tion, on the agency’s determination pervision or control of the NASA Ad- concerning the existence and amount ministrator or by appointment of an of the debt, and the terms of the repay- administrative law judge. Notice of the ment schedule (in the case of an em- name and address of the hearing offi- ployee whose repayment schedule is es- cial will be sent to the employee within tablished other than by written agree- 10 days of receipt of petition. A hearing ment); official will be designated on a case-by- (7) The hearing request should be ad- case basis under reimbursable arrange- dressed to the Office of the NASA Gen- ments or through direct payment as eral Counsel or to the Office of Chief events may warrant. Counsel of the NASA installation in- (3) The timely filing of the petition volved, as appropriate; counsel’s name will stay the commencement of collec- and address will be as stated in the no- tion; and the final decision on the hear- tice. ing will be issued at the earliest prac- (8) Any other rights and remedies ticable date, but not later than 60 days available to the employee under stat- after the filing of the petition request- utes or regulations governing the pro- ing the hearing unless the employee re- gram for which the collection is being quests and the hearing official grants a made; and delay in the proceedings. (9) Unless there are applicable con- (4) Any knowingly false or frivolous tractual or statutory provisions to the statements, representations, or evi- contrary, that amounts paid on or de- dence may subject the employee to: ducted for the debt which are later (i) Disciplinary procedures appro- waived or found not owed to the United priate under Chapter 75 of Title 5, States will be promptly refunded to the United States Code, 5 CFR part 752, or employee. any other applicable statutes or regu- (b) Exception to entitlement to written lations; notice. NASA is not required to comply (ii) Penalties under the False Claims with paragraph (a) of this section for Act, sections 3729 through 3731 of Title any adjustment to pay arising out of 31, United States Code, or any other an employee’s election of coverage or a applicable statutory authority; or change in coverage under a Federal (iii) Criminal penalties under sec- benefits program requiring periodic de- tions 286, 287, 1001, and 1002 of Title 18, ductions from pay, if the amount to be United States Code, or any other appli- recovered was accumulated over four cable statutory authority. pay periods or less. (5) The form and content of the hear- (c) Petition filing; hearing; decision and ing will be determined by the hearing review. The notice described in para- official depending on the nature and graph (a) of this section should include complexity of the transaction giving
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rise to the debt. The hearing is not an (e) Limitation on amount and duration adversarial adjudication, and need not of deductions. Ordinarily, debts must be take the form of an evidentiary hear- collected in one lump-sum payment. ing. However, depending on the par- However, if the employee is financially ticular facts and circumstances, the unable to pay in one lump sum or if the hearing may be analogous to a fact- amount of the debt exceeds 15 percent finding proceeding with oral presen- of disposable pay for an officially es- tations; or an informal meeting with or tablished pay interval, collection must interview of the employee; or formal be made in installments. The size of in- written submissions, with an oppor- stallment deductions must bear a rea- tunity for oral presentation, and deci- sonable relationship to the size of the sion based on the available written debt and the employee’s ability to pay record. Ordinarily, hearings may con- (see 14 CFR 1261.411), but the amount sist of informal conferences before the deducted for any period must not ex- hearing official in which the employee ceed 15 percent of the disposable pay and agency officials will be given full from which the deduction is made (un- opportunity to present evidence, wit- less the employee has agreed in writing nesses, and argument. The employee to the deduction of a greater amount). may represent himself or herself or be Deduction must commence with the represented by an individual of his or next full pay interval (ordinarily, the her choice. The hearing official must next biweekly pay period). Such in- maintain a summary record of the stallment deductions must be made hearing provided under this subpart. over a period not greater than the an- For additional guidance, see 14 CFR ticipated period of active duty or em- 1261.503. ployment, as the case may be, except (6) The decision will be in writing and as provided in paragraph (f) of this sec- state: tion. (i) The facts purported to evidence the nature and origin of the alleged (f) Determining ability to pay. An off- debt; set may produce an extreme financial (ii) The respective positions of the hardship for an employee if it prevents agency and of the employee; the employee from meeting costs nec- (iii) The hearing official’s analysis essarily incurred for essential subsist- (which address the employee’s/agency’s ence expenses for food, reasonable grounds, the amount and validity of housing, clothing, transportation, and the alleged debt, and, where applicable, medical care. In determining whether the repayment schedule); and an offset would prevent the employee (iv) The hearing official’s findings from meeting the essential subsistence and conclusions. expenses, the employee may be re- (7) The hearing official will notify quired to show income from all sources the employee, the NASA Comptroller (including spouse and dependents, if ap- or designee, and the designated agency plicable), list all known assets, explain counsel of the decision. exceptional expenses, and produce any (8) The decision of the hearing offi- other relevant factors. cial shall constitute the Final Admin- (g) Liquidation from final check; other istrative Decision of the agency. recovery. If the employee retires or re- (d) Petition after time expiration. No signs from Federal service, or if his or petition for a hearing is to be granted her employment or period of active if made after the 15-day period pre- duty ends before collection of the debt scribed in paragraph (c)(1) of this sec- is completed, the balance may be de- tion, unless the employee can show to ducted from the final salary payment the satisfaction of the agency official and any remaining balance from the indicated on the notice that the delay lump-sum leave, if applicable. If the was caused by circumstances beyond debt is not fully paid by offset from his or her control (for example, proven any final payment due the former em- incapacity, illness, or hospitalization), ployee as of the date of separation, off- or that the agency did not give notice set may be made from later payments of the time limit and the employee was of any kind due the former employee otherwise unaware of such limit. from the United States (as provided in
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14 CFR part 1261 subpart 1261.5, includ- (2) If the collection must be made in ing offset from the Civil Service Re- installments, the creditor agency must tirement and Disability Fund under 14 also advise NASA of the number of in- CFR 1261.507). stallments to be collected, the amount (h) Interest, penalties, and administra- of each installment, and the com- tive costs. Assessment of interest, pen- mencing date of the first installment, alties, and administrative costs, on if a date other than the next officially debts being collected under this sub- established pay period is required; and part, shall be in accordance with 14 (3) Unless the employee has con- CFR 1261.412 which implements 4 CFR sented to the salary offset in writing or 102.13. signed a statement acknowledging re- § 1261.604 Nonwaiver of rights by in- ceipt of the required procedures and voluntary setoff. the writing or statement is attached to the debt claim request, the creditor The employee’s involuntary payment agency must also indicate the action(s) of all or any portion of the debt, being collected under this subpart, must not taken under 5 U.S.C. 5514(a)(2) and give be construed as a waiver of any rights the date(s) the action(s) was/were which the employee may have under an taken. existing written contract applicable to (b) Limitation period. The creditor the specific debt or under any other agency may not initiate offset to col- pertinent statutory authority for the lect a debt more than 10 years after the collection of claims of the United Government’s right to collect the debt States or the agency. first accrued, except as provided in 14 CFR 1261.506, which implements 4 CFR § 1261.605 Refunds. 102.3(b)(3). (a) NASA will promptly refund to the (c) Employees who are separating or employee amounts paid or deducted have separated—(1) Employees who are in under this subpart when: the process of separating. If the em- (1) A debt is waived or otherwise ployee is in the process of separating, found not owing the United States (un- the creditor agency must submit its less expressly prohibited by statute or debt claim to the employee’s paying regulation); or agency for collection as provided in 5 (2) The employee’s paying agency is CFR 550.1104(1) of the OPM regulations directed by an administrative or judi- (14 CFR 1261.603(f)) for ‘‘liquidation cial order to refund amounts deducted from final check.’’ NASA must then from his or her current pay. certify the total amount of its collec- (b) Refunds are not to bear any inter- tion and notify the creditor agency and est unless the law applicable to that the employee as provided in paragraph particular debt specifically requires or (c)(3) of this section. If NASA is aware permits a stated interest amount on re- that the employee is entitled to pay- funds. ments from the Civil Service Retire- § 1261.606 Salary offset request by a ment and Disability Fund, or other creditor agency other than NASA similar payments, it should notify the (the current paying agency). creditor agency and forward the copy (a) Format of the request. Upon com- of the debt claim and certification to pletion of the procedures established the agency responsible for making such by the creditor agency under 5 U.S.C. payments as notice that a debt is out- 5514, the creditor agency must: standing. However, the creditor agen- (1) Certify, in writing, that the em- cy, not NASA, must submit a properly ployee owes the debt, the amount and certified claim to the agency respon- basis of the debt, the date on which sible for making such payments before payment(s) is/are due, the date the collection can be made. Government’s right to collect the debt (2) Employees who have already sepa- first accrued, and that the creditor rated. If the employee is already sepa- agency’s regulations implementing 5 rated and all payments due from NASA U.S.C. 5514 have been approved by have been paid, NASA must return the OPM; claim to the creditor agency for any
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further collection, indicating the em- (3) NASA is not required or author- ployee’s date of separation and the cur- ized to review the merits of the cred- rent employment and mailing ad- itor agency’s determination with re- dress(es), if known. spect to the amount or validity of the (3) Employee who transfers from debt as stated in the debt claim re- NASA to another Federal agency. quest. (i) Certification of amount collected. If, after the creditor agency has sub- § 1261.607 Obtaining the services of a mitted the debt claim to NASA, the hearing official. employee transfers to another Federal (a) When the debtor does not work agency before the debt is collected in for the creditor agency and the cred- full, NASA must then certify the total itor agency cannot provide a prompt amount of the collection made on the debt. A copy of the certification should and appropriate hearing before an ad- be furnished the employee, and another ministrative law judge or before a copy furnished to the creditor agency hearing official furnished pursuant to along with notice of the employee’s another lawful arrangement, the cred- transfer. itor agency may contact an agent of (ii) Official personnel folder insertion; the paying agency designated in appen- new paying agency. Information on the dix A of 5 CFR part 581 to arrange for debt claim must be inserted in the em- a hearing official, and the paying agen- ployee’s official personnel folder along cy must then cooperate as provided by with a copy of the certification of the 4 CFR 102.1 and provide a hearing offi- amount which has been collected. Upon cial. receiving the official personnel folder, (b) When the debtor works for the the new paying agency must resume creditor agency, the creditor agency the collection from the employee’s cur- may contact any agent (of another rent pay account and notify the em- agency) designated in appendix A of 5 ployee and the creditor agency of the CFR part 581 to arrange for a hearing resumption. It will not be necessary for official. Agencies must then cooperate the creditor agency to repeat the due as required by 4 CFR 102.1 and provide process procedures described by 5 a hearing official. U.S.C. 5514 of this subpart in order to resume the collection. However, it will be the responsibility of the creditor PART 1262—EQUAL ACCESS TO agency to review the debt upon receiv- JUSTICE ACT IN AGENCY PRO- ing NASA’s notice of the employee’s CEEDINGS transfer to make sure the collection is resumed by the new paying agency. Subpart 1262.1—General Provisions (d) Processing the debt claim upon re- ceipt—(1) Incomplete claim. If NASA re- Sec. ceives incomplete debt claim informa- 1262.101 Purpose of these rules. tion, it must return the request with a 1262.102 When the Act applies. notice that procedures under 5 U.S.C. 1262.103 Proceedings covered. 5514 and this subpart must be provided 1262.104 Eligibility of applicants. and complete debt claim information 1262.105 Standards for awards. received before action will be taken to 1262.106 Allowable fees and expenses. collect from the employee’s current 1262.107 Rulemaking on maximum rates for pay account. attorney fees. (2) Complete claim. If NASA receives a 1262.108 Awards against other agencies. 1262.109 Delegations of authority. properly documented debt claim, de- ductions should be scheduled to begin Subpart 1262.2—Information Required prospectively at the next officially es- From Applicants tablished pay interval. A copy of the debt claim request must be given to 1262.201 Contents of application. the debtor, along with notice of the 1262.202 Net worth exhibit. date deductions will commence if dif- 1262.203 Documentation of fees and ex- ferent from that stated on the debt penses. claim request. 1262.204 When an application may be filed.
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Subpart 1262.3—Procedures for edies Act of 1986 (Pub. L. 99–509, 100 Considering Applications Stat. 1948, Oct. 21, 1986), 31 U.S.C. 3801, et seq., as amended); and 1262.301 Filing and service of documents. (iv) The Religious Freedom Restora- 1262.302 Answer to application. 1262.303 Reply. tion Act (RFRA) of 1993 (added by sec- 1262.304 Comments by other parties. tion 4(b), of RFRA (Pub. L. 103–141, 107 1262.305 Settlement. Stat. 1489, Nov. 16, 1993), 42 U.S.C. 1262.306 Further proceedings. 2000bb). 1262.307 Decision. (2) Adjudicative officer means the de- 1262.308 Agency review. ciding official, without regard to 1262.309 Judicial review. whether the official is designated an 1262.310 Payment of award. administrative law judge, a hearing of- AUTHORITY: 5 U.S.C. 504; 42 U.S.C. 2473(c)(1). ficer or examiner, or otherwise, who SOURCE: 51 FR 15311, Apr. 23, 1986, unless presided at the adversary adjudication; otherwise noted. (3) Position of the agency means, in ad- dition to the position taken by the Subpart 1262.1—General agency in the adversary adjudication, Provisions the action or failure to act by the agency upon which the adversary adju- § 1262.101 Purpose of these rules. dication is based; (4) Party, as defined in 5 U.S.C. 551(3), (a) The pertinent provisions of the includes a person or agency named or Equal Access to Justice Act at 5 U.S.C. admitted as a party, or properly seek- 504 (hereinafter ‘‘the Act’’) provide for ing and entitled as of right to be ad- the award of attorney fees and other mitted as a party, in an agency pro- expenses to eligible individuals and en- ceeding, and a person or agency admit- tities who are parties to certain admin- ted by an agency as a party for limited istrative proceedings (called ‘‘adver- purposes, and who meets the eligibility sary adjudications’’). An eligible party requirements of § 1262.104; and may receive an award when it prevails, (5) Agency with a capital A denotes unless it has unreasonably protracted the NASA. the proceedings, or the Agency’s posi- (c) Determination of Substantially jus- tion in the proceeding was substan- tified. Whether or not the position of tially justified, or special cir- the agency was substantially justified cumstances make an award unjust. The shall be determined on the basis of the rules in this part describe the parties administrative record, as a whole, eligible for awards and the proceedings which is made in the adversary adju- that are covered. They also explain dication for which fees and other ex- how to apply for awards, and the proce- penses are sought. dures and standards that the National Aeronautics and Space Administration [51 FR 15311, Apr. 23, 1986, as amended at 60 (NASA) will use in determining awards. FR 12668, Mar. 8, 1995] (b) As used in this part: (1) Adversary adjudication means: § 1262.102 When the Act applies. (i) An adjudication under 5 U.S.C. 554 The Act applies to any adversary ad- in which the position of the United judication pending or commenced be- States is represented by counsel or oth- fore NASA on or after August 5, 1985. It erwise, but excludes an adjudication also applies to any adversary adjudica- for the purpose of establishing or fixing tion commenced on or after October 1, a rate or for the purpose of granting or 1984, and finally disposed of before Au- renewing a license; gust 5, 1985, provided that an applica- (ii) Any appeal of a decision made tion for fees and expenses, as described pursuant to section 6 of the Contract in subpart 1262.2, had been filed with Disputes Act (CDA) of 1978, as amended the Agency within 30 days after August (41 U.S.C. 605) before an agency board 5, 1985, and to any adversary adjudica- of contract appeals as provided in sec- tion pending on or commenced on or tion 8 of the CDA (41 U.S.C. 607); after October 1, 1981, in which an appli- (iii) Any hearing conducted under cation for fees and other expenses was Chapter 38 of Title 31 (added by section timely filed and was dismissed for lack 6104 of the Program Fraud Civil Rem- of jurisdiction.
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§ 1262.103 Proceedings covered. § 1262.104 Eligibility of applicants. (a) The Act applies to the following (a) To be eligible for an award of at- adversary adjudications conducted by torney fees and other expenses, the ap- the Agency: plicant must be a ‘‘party’’ to the adver- (1) Adjudications under 5 U.S.C. 554 sary adjudication for which an award is in which the position of NASA or any sought. The applicant must show that other agency of the United States, or it meets all conditions of eligibility set out in this subpart and in subpart any component of an agency, is pre- 1262.2. sented by an attorney or other rep- (b) The types of eligible applicants resentative who enters an appearance are as follows: and participates in the proceedings; (1) An individual with a net worth of (2) Appeals of decisions made pursu- not more than $2 million; ant to section 6 of the Contract Dis- (2) Any owner of an unincorporated putes Act of 1978 (41 U.S.C. 605) before business who has a net worth of not the Board of Contract Appeals (BCA) as more than $7 million, including both provided in Section 8 of that Act (41 personal and business interests, and U.S.C. 607); not more than 500 employees; (3) Any hearing conducted under (3) A charitable or other tax-exempt Chapter 38 of Title 31 (31 U.S.C. 3801, et organizaiton described in section seq., as amended); and 501(c)(3) of the Internal Revenue Code (4) Adjudications under the Religious (26 U.S.C. 501(c)(3)) with not more than 500 employees; Freedom Restoration Act of 1993 (42 (4) A cooperative association as de- U.S.C. 2000bb). fined in section 15(a) of the Agricul- (b) The Act does not apply to: tural Marketing Act (12 U.S.C. 1141j(a)) (1) Any proceeding in which this with not more than 500 employees; and Agency may prescribe a lawful present (5) Any other partnership, corpora- or future rate; tion, association, unit of local govern- (2) Proceedings to grant or renew li- ment, or organization with a net worth censes (note, however, that proceedings of not more than $7 million and not to modify, suspend, or revoke licenses more than 500 employees. are covered if they are otherwise adver- (c) For the purpose of eligibility, the sary adjudications); and net worth and number of employees of (3) Proceedings which are covered by an applicant shall be determined as of a compromise or settlement agree- the date the proceeding was initiated. ment, unless specifically consented to (d) An applicant who owns an unin- in such agreement. corporated business will be considered (c) NASA may also designate a pro- as an ‘‘individual’’ rather than as a ‘‘sole owner of an unincorporated busi- ceeding as an adversary adjudication ness’’ if the issues on which the appli- for purposes of the Act by so stating in cant prevails are related primarily to an order initiating the proceeding or personal interests rather then to busi- designating the matter for hearing. ness interests. The Agency’s failure to designate a (e) The employees of an applicant in- proceeding as an adversary adjudica- clude all persons who regularly per- tion shall not preclude the filling of an form services for remuneration for the application by a party who believes the applicant, under the applicant’s direc- proceeding is covered by the Act; tion and control. Part-time employees whether the proceeding is covered will shall be included on a proportional then be an issue for resolution in pro- basis. ceedings on the application. (f) The net worth and number of em- (d) If a proceeding includes both mat- ployees of the applicant and all of its ters covered by the Act and matters affiliates shall be aggregated to deter- specifically excluded from coverage, mine eligibility. Any individual, cor- any award made will include only fees poration, or other entity that directly and expenses related to covered issues. or indirectly controls or owns a major- ity of the voting shares or other inter- [60 FR 12668, Mar. 8, 1995] est of the applicant, or any corporation
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or other entity of which the applicant pensate an expert witness may exceed directly or indirectly owns or controls the highest rate at which this Agency a majority of the voting shares or pays expert witnesses, which is $20 an other interest, will be considered an af- hour (5 hours maximum) or maximum filiate for purposes of this part, unless daily rate of $100 (3 days maximum). the adjudicative officer determines However, an award may also include that such treatment would be unjust the reasonable expenses of the attor- and contrary to the purposes of the Act ney, agent, or witness as a separate in light of the actual relationship be- item, if the attorney, agent, or witness tween the affiliated entities. In addi- ordinarily charges clients separately tion, the adjudicative officer may de- for such expenses. termine that financial relationships of (c) In determining the reasonableness the applicant other than those de- of the fee sought for an attorney, scribed in this paragraph constitute agent, or expert witness, the adjudica- special circumstances that would make tive officer shall consider the fol- an award unjust. lowing: (g) An applicant that participates in (1) If the attorney, agent, or witness a proceeding primarily on behalf of one is in private practice, his or her cus- or more other persons or entities that tomary fee for similar service, or, if an would be ineligible is not itself eligible employee of the applicant, the fully al- for an award. located cost of the services; [51 FR 15311, Apr. 23, 1986, as amended at 60 (2) The prevailing rate for similar FR 12668, Mar. 8, 1995] services in the community in which the attorney, agent, or witness ordinarily § 1262.105 Standards for awards. performs services; (a) A prevailing applicant may re- (3) The time actually spent in the ceive an award subject to paragraph (b) representation of the application; of this section, for fees and expenses in- (4) The time reasonably spent in light curred in connection with a proceeding, of the difficulty or complexity of the or in a significant and discrete sub- issues in the proceeding; and stantive portion of the proceeding, un- (5) Such other factors as may bear on less the position of the agency over the value of the services provided. which the applicant has prevailed was (d) The reasonable cost of any study, substantially justified. No presumption analysis, engineering report, test, arises that the agency’s position was project, or similar matter prepared on not substantially justified simply be- behalf of a party may be awarded, to cause the agency did not prevail. The the extent that the charge for the serv- burden of proof that an award should ice does not exceed the prevailing rate not be made to an eligible prevailing for similar services, and the study or applicant is on the agency. other matter was necessary for prepa- (b) An award, for any portion of the ration of the applicant’s case. adversary adjudication, will be denied if the applicant has unreasonably pro- § 1262.107 Rulemaking on maximum tracted the proceedings, or denied or rates for attorney fees. reduced if special circumstances make (a) If warranted by an increase in the the award sought unjust. cost of living or by special cir- cumstances (such as limited avail- § 1262.106 Allowable fees and ex- ability of attorneys qualified to handle penses. certain types of proceedings), the (a) Awards will be based on rates cus- Agency may adopt regulations pro- tomarily charged by persons engaged viding that attorney fees may be in the business of acting as attorneys, awarded at a rate higher then $75 per agents, and expert witnesses, even if hour in some or all of the types of pro- the services were made available with- ceedings covered by this part. This out charge or at a reduced rate to the Agency will conduct any rulemaking applicant. proceedings for this purpose under the (b) No award for the fee of an attor- informal rulemaking procedures of the ney or agent under these rules may ex- Administrative Procedure Act (5 U.S.C. ceed $75 per hour. No award to com- 553).
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(b) Any person may file with the employees of the applicant and de- Agency a petition for rulemaking to in- scribe briefly the type and purpose of crease the maximum rate for attorney its organization or business. fees. The petition should be addressed (b) The application shall also include to the General Counsel, NASA Head- a statement that the applicant’s net quarters, Washington, DC 20546; should worth does not exceed $2 million (if an identify the rate the petitioner be- individual) or $7 million (for all other lieves the Agency should establish and applicants, including their affiliates). the types of proceedings in which the However, an applicant may omit this rate should be used; and should also ex- statement if the applicant: plain fully the reasons why the higher (1) Attaches a copy of a ruling by the rate is warranted. The Agency will re- Internal Revenue Service that it quali- spond to the petition within 60 days fies as an organization described in sec- after it is filed, by initiating a rule- tion 501(c)(3) of the Internal Revenue making proceeding or denying the peti- Code (26 U.S.C. 501(c)(3)), or, in the case tion, or taking other appropriate ac- of a tax-exempt organization not re- tion. quired to obtain a ruling from the In- § 1262.108 Awards against other agen- ternal Revenue Service on its exempt cies. status, a statement that describes the If an applicant is entitled to an basis for the applicant’s belief that it award because it prevails over another qualifies under such section; or agency of the United States that par- (2) States that it is a cooperative as- ticipates in a proceeding before NASA, sociation as defined in section 15(a) of the award or an appropriate portion of the Agricultural Marketing Act (12 the award shall be made against that U.S.C. 1141j(a)). agency, subject to § 1262.105(b), if it had (c) The application shall state the taken a position that is not substan- amount of fees and expense for which tially justified. an award is sought. (d) The application may also include § 1262.109 Delegations of authority. any other matters that the applicant (a) The NASA Administrator hereby wishes this Agency to consider in delegates authority to the General determing whether and in what Counsel or designee to take final ac- amount an award should be made. tion on matters pertaining to the Act, (e) The application shall be signed by other than the authority for final fee the applicant or an authorized officer determination after Agency review or attorney of the applicant. It shall pursuant to § 1262.308. also contain or be accompanied by a (b) The NASA Administrator may, in written verification under oath or particularly specified matters under under penalty of perjury that the infor- the Act, delegate authority to officials mation provided in the application is other than those designated in para- true and correct. graph (a) of this section. § 1262.202 Net worth exhibit. Subpart 1262.2—Information (a) Each applicant except a qualified Required From Applicants tax-exempt organization or cooperative association must provide with its ap- § 1262.201 Contents of application. plication a detailed exhibit showing (a) An application for an award of the net worth of the applicant and any fees and expenses under the Act shall affiliates (as defiined in § 1262.104(f) identify the applicant and the pro- when the proceeding was initiated. The ceeding for which an award is sought. exhibit may be in any form convenient The application shall show that the ap- to the applicant that provides full dis- plicant has prevailed and identify the closure of the applicant’s and its affili- position of an agency or agencies in the ates’ assets and liabilities and is suffi- proceeding that the applicant alleges cient to determine whether the appli- was not substantially justified. Unless cant qualifies under the standards in the applicant is an individual, the ap- this part. The adjudicative officer may plication shall also state the number of require an applicant to file additional
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information to determine its eligibility imbursement is sought, the total for an award. amount paid or payable by the appli- (b) Ordinarily, the net worth exhibit cant or by any other person or entity will be included in the public records of for the services provided. The adjudica- the proceeding. However, an applicant tive officer may, in addition, require that objects to public disclosure of in- the applicant to provide vouchers, re- formation in any portion of the exhibit ceipts, or other substantiation for any and believes there are legal grounds for expenses claimed. withholding it from disclosure may submit that portion of the exhibit di- § 1262.204 When an application may be rectly to the adjudicative officer in a filed. sealed envelope labeled ‘‘Confidential (a) An application may be filed when- Financial Information,’’ accompanied ever the applicant has prevailed in the by a motion to withhold the informa- proceeding or in a significant and dis- tion from public disclosure. The mo- crete substantive portion of the pro- tion shall describe the information ceeding, but in no case later than 30 sought to be withheld and explain, in days after the Agency’s final disposi- detail, why it falls within one or more tion of the proceeding. of the specific exemptions from manda- (b) If review or reconsideration is tory disclosure under the Freedom of sought or taken of a decision as to Information Act, 5 U.S.C. 552(b)(1)–(9), which an applicant believes it has pre- why public disclosure of the informa- vailed, proceedings for the award of tion would adversely affect the appli- fees shall be stayed pending final dis- cant, and why disclosure is not re- position of the underlying controversy. quired in the public interest. The mate- (c) For purposes of this rule, final rials in question shall be served on disposition means the latter of: counsel representing the agency (1) The date on which the last ‘‘ini- against which the applicant seeks an tial decision’’, in a bifurcated pro- award, but need not be served on any ceeding, or other recommended disposi- other party to the proceeding. If the tion of the merits (both as to liability adjudicative officer finds that the in- and amount, if applicable) of the pro- formation should not be withheld from ceeding, by an adjudicative officer or disclosure, it shall be placed in the intermediate reviewer, becomes admin- public record of the proceeding. Other- istratively final; wise, any request to inspect or copy (2) The date on which an order is the exhibit shall be disposed of in ac- issued disposing of any petitions for re- cordance with the Agency’s regulations consideration; under the Freedom of Information Act, (3) If no petition for reconsideration at 14 CFR part 1206. is filed, the last date on which such a petition could have been filed; or § 1262.203 Documentation of fees and (4) The date of a final order or any expenses. other final resolution of the pro- The application shall be accompanied ceeding, such as a settlement or a vol- by full documentation of the fees and untary dismissal, which is not subject expenses, including the cost of any to a petition for reconsideration. study, analysis, engineering report, test, project, or similar matter for Subpart 1262.3—Procedures for which an award is sought. A separate Considering Applications itemized statement, accompanied by an oath of affirmation under penalty of § 1262.301 Filing and service of docu- perjury (28 U.S.C. 1746), shall be sub- ments. mitted for each professional firm or in- Any application for an award or dividual whose services are covered by other pleading or document related to the application, showing the hours an application shall be filed and served spent in connection with the pro- on all parties to the proceeding in the ceeding by each individual, a descrip- same manner as other pleadings in the tion of the specific services performed, proceeding, except as provided in the rate at which each fee has been § 1262.202(b) for confidential financial computed, any expenses for which re- information.
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§ 1262.302 Answer to application. § 1262.305 Settlement. (a) Within 30 calendar days after The applicant and agency counsel service of an application, counsel rep- may agree on a proposed settlement of resenting the agency against which an the award before final action on the ap- award is sought may file an answer to plication, either in connection with a the application. Unless agency counsel settlement of the underlying pro- requests an extension of time for filing ceeding, or after the underlying pro- or files a statement of intent to nego- ceeding has been concluded. If a pre- tiate under paragraph (b) of this sec- vailing party and agency counsel agree tion, failure to file an answer within on a proposed settlement of an award the 30-day period may be treated as a before an application has been filed, consent to the award requested. the application shall be filed with the (b) If agency counsel and the appli- proposed settlement. cant believe that the issues in the fee application can be settled, they may § 1262.306 Further proceedings. jointly file a statement of their intent (a) Ordinarily, the determination of to negotiate a settlement. The filing of an award will be made on the basis of this statement shall extend the time the written record. However, on re- for filing an answer for an additional 30 quest of either the applicant or agency calendar days, and further extensions counsel, or on his or her own initiative, may be granted by the adjudicative of- the adjudicative officer may order fur- ficer upon request by agency counsel ther proceedings, such as an informal and the applicant. conference, oral argument, additional (c) The answer shall explain in detail written submissions, or, as to issues any objections to the award requested other than substantial justification and identify the facts relied on in sup- (such as the applicant’s eligibility or port of agency counsel’s position. If the substantiation of fees and expenses), answer is based on any alleged facts pertinent discovery or an evidentiary not already in the record of the pro- hearing. Such further proceedings shall ceeding, agency counsel shall include be held only when necessary for full with the answer either supporting affi- and fair resolution of the issues arising davits or a request for further pro- from the application, and shall be con- ceedings under § 1262.306. ducted as promptly as possible. (b) A request that the adjudicative § 1262.303 Reply. officer order further proceedings under Within 15 calendar days after service this section shall specifically identify of an answer, the applicant may file a the information sought or the disputed reply. If the reply is based on any al- issues and shall explain why the addi- leged facts not already in the record of tional proceedings are necessary to re- the proceeding, the applicant shall in- solve the issues. clude with the reply either supporting affidavits or a request for further pro- § 1262.307 Decision. ceedings under § 1262.306. (a) The adjudicative officer shall issue an initial decision on the applica- § 1262.304 Comments by other parties. tion with 90 calendar days after com- Any party to a proceeding other than pletion of proceedings on the applica- the applicant and agency counsel may tion. The decision shall include written file comments about an application findings and conclusions on such of the within 30 calendar days after it is following as are relevant to the deci- served, or about an answer within 15 sion: calendar days after it is served. A com- (1) The applicant’s eligibility and menting party may not participate fur- status as a prevailing party; ther in proceedings on the application (2) Whether the Agency’s position unless the adjudicative officer deter- was substantially justified; mines that the public interest requires (3) Whether the applicant unreason- such participation in order to permit ably protracted the proceedings, or full exploration of matters raised in whether special circumstances make the comments. an award unjust; and
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(4) The amounts, if any, awarded for party other than the United States is fees and expenses with an explanation dissatisfied with a determination of of the reasons for any difference be- fees and other expenses made under tween the amount requested and the [this part], that party may, within 30 amount awarded. Further, if the appli- days after the [final administrative] cant has sought an award against more determination is made, appeal the de- than one agency, the decision shall al- termination to the court of the United locate responsibility for payment of States having jurisdiction to review any award made among the agencies, the merits of the underlying decision of and shall explain the reasons for the al- the agency adversary adjudication. The location made. court’s determination of any appeal (b) When the Agency appeals the un- heard under this [authority] shall be derlying merits of an adversary adju- based solely on the factual record made dication, no decision on an application before the agency. The court may mod- for fees and other expenses in connec- ify the determination of fees and other tion with that adversary adjudication expenses only if the court finds that shall be made until a final and the failure to make an award of fees unreviewable decision is rendered by and other expenses, or the calculation the court on the appeal or until the un- of the amount of the award, was unsup- derlying merits of the case have been ported by the substantial evidence. finally determined pursuant to the ap- [51 FR 15311, Apr. 23, 1986, as amended at 60 peal. FR 12669, Mar. 8, 1995] [51 FR 15311, Apr. 23, 1986, as amended at 60 FR 12669, Mar. 8, 1995] § 1262.310 Payment of award. (a) An applicant seeking payment of § 1262.308 Agency review. an award shall submit to the paying (a) Within 30 calendar days of the re- agency a copy of the Agency’s final de- ceipt of the adjudicative officer’s ini- cision granting the award, accom- tial decision on the fee application, ei- panied by a statement that the appli- ther the applicant or agency counsel cant will not seek review of the deci- may seek Agency review of the deci- sion in the United States courts. The sion; or, the NASA Administrator, submission to NASA should be ad- upon the recommendation of the Gen- dressed as follows: eral Counsel or other designee, may de- Director, Financial Management Division, cide to review the decision based on the NASA Headquarters, Washington, DC 20546. record. Whether to review a decision is solely a matter within the discretion of (b) The Agency will pay the amount the NASA Administrator. A 15-day no- awarded to the applicant within 60 tice of such review will be given the ap- days, if feasible, unless judicial review plicant and agency counsel, and a de- of the award or of the underlying deci- termination made not later than 45 sion of the adversary adjudication has days from the date of notice. The Ad- been sought by the applicant or any ministrator may make a final deter- other party to the proceeding. mination concerning the application or remand the application to the adju- PART 1263—DEMAND FOR INFOR- dicative officer for further proceedings. MATION OR TESTIMONY SERVED (b) If neither the applicant nor agen- ON AGENCY EMPLOYEES; PRO- cy counsel seek review, and the NASA CEDURES Administrator does not on own initia- tive take a review, the adjudicative of- Sec. ficer’s initial decision on the fee appli- 1263.100 Purpose and scope. cation shall be the final administrative 1263.101 Definitions. decision of the Agency 45 days after it 1263.102 Procedure when a demand is issued is issued. in a legal proceeding involving the United States. § 1262.309 Judicial review. 1263.103 Procedure when a demand is issued in a legal proceeding not involving the Judicial review of final Agency deci- United States. sions on awards may be sought under 5 1263.104 Production, disclosure, or testi- U.S.C. 504(c)(2), which provides: If a mony prohibited unless approved.
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1263.105 Considerations in determining (d) Legal proceeding—Includes any whether production or disclosure should proceeding before a court of law or eq- be made. uity, administrative board or commis- 1263.106 Final decision of the General Coun- sion, hearing officer, or other body con- sel as to production, disclosure, or ap- pearance. ducting a legal or administrative pro- 1263.107 Procedure to be followed when re- ceeding. sponse to a demand is required before the (e) Legal proceeding involving the General Counsel or designate has reached United States—Any proceeding before a a final decision. court of law or equity brought on be- 1263.108 Procedure in the event of an ad- half of, or against the United States, verse ruling. NASA or NASA employees, and result- 1263.109 Considerations in determining whether these procedures should be ing from alleged NASA operations. waived. (f) Official information—All informa- 1263.110 Intention to provide guidance. tion of any kind, however stored, that is in the custody and control of NASA AUTHORITY: 5 U.S.C. 301, 42 U.S.C. 2473(c)(1). or was acquired by NASA personnel as SOURCE: 55 FR 28370, July 11, 1990, unless part of official duties or because of offi- otherwise noted. cial status while such personnel were employed by or on behalf of the NASA. § 1263.100 Purpose and scope. (a) This part sets forth procedures to § 1263.102 Procedure when a demand be followed with respect to the produc- is issued in a legal proceeding in- tion or disclosure of official informa- volving the United States. tion or records and/or the testimony of Whenever an employee or former em- present or former employees of the Na- ployee of NASA receives a demand for tional Aeronautics and Space Adminis- production of materials or the disclo- tration relating to any official infor- sure of information, or for appearance mation acquired by any employee of and testimony as a witness in a legal NASA as part of the performance of proceeding in which NASA or the that employee’s official duties or by United States is a party, the employee virtue of that employee’s official sta- shall immediately notify in writing the tus, where a demand for such produc- Installation Chief Counsel for Installa- tion, disclosure, or testimony is issued tion employees, the General Counsel in a federal, state, or other legal pro- for Headquarters employees, or the At- ceeding. torney-Adviser to the Inspector Gen- (b) This part does not apply to any eral (IG) for IG employees. This notice legal proceeding in which an employee must include copies of all pertinent is to testify, while in leave status, as legal documents and a summary of the to facts or events that are in no way employee’s knowledge concerning the related to the official duties of that legal proceeding in question. When nec- employee or to the functions of the essary, this information may be re- NASA. ported orally, followed by a written confirmation. § 1263.101 Definitions. (a) Agency—As referred to in this reg- § 1263.103 Procedure when a demand ulation, Agency means the National is issued in a legal proceeding not Aeronautics and Space Administration. involving the United States. (b) Demand—A subpoena, order, or Whenever an employee or former em- authorized request for official informa- ployee of the Agency receives a de- tion, or for the appearance and testi- mand for production or disclosure of of- mony of NASA personnel, issued as the ficial information in a legal proceeding result of a legal proceeding. not involving the United States, the (c) Employee—Includes all present and employee shall immediately notify the former officers and employees of the General Counsel or designate. In addi- National Aeronautics and Space Ad- tion, the party causing the demand to ministration who are or have been ap- be issued shall furnish the Office of pointed by, or subject to the super- General Counsel a written, detailed vision, jurisdiction, or control of the statement of the information sought Administrator of the agency. and its relevance to the proceeding in
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connection with which it is requested. § 1263.106 Final decision of the Gen- The General Counsel or designate may eral Counsel as to production, dis- waive the requirement that a written closure, or appearance. summary be furnished where he/she After consideration of the factors deems it unnecessary. The election to enumerated in § 1263.105 (a) through (f), waive the requirement of a written the General Counsel or designate may summary in no way constitutes a waiv- authorize the testimony, disclosure, or er of any other requirements set forth production as demanded; limit the sub- in this section. ject matter or extent of any testimony, disclosure, or production through writ- § 1263.104 Production, disclosure, or ten instruction to the employee; or testimony prohibited unless ap- deny permission for any testimony, proved. disclosure, or production. Where appro- If an employee or former employee priate, the General Counsel or des- receives a demand to produce or dis- ignate may seek withdrawal of the de- close official information, that em- mand by the authorizing party. Any ployee may not disclose such materials decision of the General Counsel or des- or information or testify regarding ignate shall be final and shall be com- same without the prior approval of the municated to the employee and the General Counsel or designate. party causing the demand to be issued.
§ 1263.105 Considerations in deter- § 1263.107 Procedure to be followed mining whether production or dis- when response to a demand is re- closure should be made. quired before the General Counsel or designate has reached a final de- The General Counsel or designate cision. shall direct employees to honor all If a response to a demand is required valid demands. In deciding whether a before the General Counsel or des- particular demand is valid, the General ignate can render a decision, the em- Counsel or designate may consider: ployee subpoenaed, or an agency attor- (a) Whether such disclosure or ap- ney or other government attorney des- pearance is appropriate under the rules ignated for that purpose, shall appear of procedure governing the legal pro- on behalf of the employee and shall fur- ceeding in which the demand arose. nish the authority which issued the de- (b) Whether disclosure is appropriate mand a copy of these regulations, and under the relevant substantive law inform the authority that the demand concerning privilege. has been referred for the prompt con- (c) Whether disclosure might improp- sideration of the General Counsel, and erly reveal trade secrets, or commer- shall respectfully request the authority cial or financial information that is to stay the demand until the General confidential or privileged. Counsel or designate has rendered a final decision. (d) Whether disclosure might reveal classified information. § 1263.108 Procedure in the event of an (e) Whether disclosure would violate adverse ruling. a specific applicable constitutional If the court or other authority which provision, federal statute or regula- caused the demand to be issued de- tion, or executive order. clines to stay the effect of the demand (f) Whether appearance of the re- pending a final decision by the General quested employee would seriously im- Counsel or designate; or if the General plicate an interest of the Agency such Counsel or designate directs that the as conservation of employee time for employee may not comply with the de- conducting official business, avoidance mand, and a court or other authority of expending appropriated monies for rules that the demand must be com- non-federal purposes, or avoidance of plied with irrespective of that decision, involving the agency in controversial the employee upon whom the demand issues not related to its mission. has been made, or an agency or other
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governmental attorney, shall respect- 1264.121 Exchange of witness lists, state- fully decline to comply with the de- ments, and exhibits. mand and shall cite, ‘‘United States ex 1264.122 Subpoena for attendance at hear- ing. rel. Touhy v. Ragen, et al., 340 U.S. 462 1264.123 Protective order. (1951).’’ 1264.124 Fees. 1264.125 Form, filing, and service of papers. § 1263.109 Considerations in deter- 1264.126 Computation of time. mining whether these procedures 1264.127 Motions. should be waived. 1264.128 Sanctions. The General Counsel or designate 1264.129 The hearing and burden of proof. may grant permission to deviate from 1264.130 Determining the amount of pen- alties and assessments. the policy or procedure established in 1264.131 Location of hearing. these regulations. Permission to devi- 1264.132 Witnesses. ate will be granted when the deviation 1264.133 Evidence. will not interfere with matters of oper- 1264.134 The record. ational necessity and when: 1264.135 Post-hearing briefs. (a) It is necessary to prevent a mis- 1264.136 Initial decision. carriage of justice; or 1264.137 Reconsideration of initial decision. 1264.138 Appeal to authority head. (b) The deviation is in the best inter- 1264.139 Stays ordered by the Department of ests of NASA or the United States. Justice. 1264.140 Stay pending appeal. § 1263.110 Intention to provide guid- 1264.141 Judicial review. ance. 1264.142 Collection of civil penalties and as- This part is intended to provide guid- sessments. ance for the internal operation of 1264.143 Right to administrative offset. 1264.144 Deposit in Treasury of United NASA and is not intended to, does not, States. and may not be relied upon to create 1264.145 Compromise or settlement. any right of benefit—substantive or 1264.146 Limitations. procedural—enforceable at law against APPENDIX A TO PART 1264—NOTICE TO CON- the United States or NASA. SENT TO THE CHAIRPERSON, NASA BOARD OF CONTRACT APPEALS (BCA), OR DES- PART 1264—IMPLEMENTATION OF IGNEE, AS PRESIDING OFFICER THE PROGRAM FRAUD CIVIL AUTHORITY: 31 U.S.C. 3809, 42 U.S.C. PENALTIES ACT OF 1986 2473(c)(1). SOURCE: 52 FR 39498, Oct. 22, 1987, unless Sec. otherwise noted. 1264.100 Basis and purpose. 1264.101 Definitions. § 1264.100 Basis and purpose. 1264.102 Basis for civil penalties and assess- (a) Basis. This part implements the ments. Program Fraud Civil Remedies Act of 1264.103 Investigation. 1264.104 Review by the reviewing official. 1986, Pub. L. 99–509, sections 6101–6104, 1264.105 Prerequisites for issuing a com- 100 Stat. 1874 (October 21, 1986), to be plaint. codified at 31 U.S.C. 3801–3812. 31 U.S.C. 1264.106 Complaint. 3809 of the statute requires each au- 1264.107 Service of complaint. thority head to promulgate regulations 1264.108 Answer. necessary to implement the provisions 1264.109 Default upon failure to file an an- of the statute. swer. 1264.110 Referral of complaint and answer to (b) Purpose. This part does the fol- the presiding officer. lowing: 1264.111 Notice of hearing. (1) Establishes administrative proce- 1264.112 Parties to the hearing. dures for imposing civil penalties and 1264.113 Separation of functions. assessments against persons who make, 1264.114 Ex parte contacts. submit, or present, or cause to be 1264.115 Disqualification of reviewing offi- made, submitted, or presented, false, cial or presiding officer. fictitious, or fraudulent claims or writ- 1264.116 Rights of parties. 1264.117 Authority of the presiding officer. ten statements to authorities or to 1264.118 Prehearing conferences. their agents; and 1264.119 Disclosure of documents. (2) Specifies the hearing and appeal 1264.120 Discovery. rights of persons subject to allegations
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of liability for such penalties and as- (f) Complaint means the administra- sessments. tive complaint served by the reviewing official on the defendant under § 1264.101 Definitions. § 1264.106. (a) ALJ means an Administrative (g) Consent hearing means that the Law Judge in the authority appointed authority and the defendant consent, pursuant to 5 U.S.C. 3105 or detailed to as provided in § 1264.106(c), that the pre- the authority pursuant to 5 U.S.C. 3344. siding officer be the Chairperson of the For purposes of this part, the ALJ shall NASA Board of Contract Appeals be referred to as the presiding officer. (BCA). The Chairperson may designate (b) Authority means the National Aer- another administrative judge of the onautics and Space Administration NASA BCA as presiding officer in a (NASA). consent hearing. (c) Authority head means the NASA (h) Defendant means any person al- Administrator or Deputy Adminis- leged in a complaint under § 1264.106 to trator or designee. For purposes of this be liable for a civil penalty or assess- regulation, the NASA General Counsel ment under § 1264.102. or Deputy General Counsel is des- (i) Government means the United ignated legal counsel to the Authority States Government. head. (j) Individual means a natural person. (d) Benefit means, in the context of (k) Initial decision means the written statement, anything of value, including decision of the ALJ or presiding officer but not limited to any advantage, pref- required by § 1264.109 or § 1264.136, and erence, privilege, license, permit, fa- includes a revised initial decision vorable decision, ruling, status, or loan issued following a remand or a motion guarantee. for reconsideration. (e) Claim means any request, demand, (l) Investigating official means the or submission— NASA Inspector General, or designee (1) Made to the authority for prop- who is serving in a position for which erty, services, or money (including the rate of basic pay is not less than money representing grants, loans, in- the minimum rate of basic pay for surance, or benefits); grade GS–16 under the General Sched- (2) Made to a recipient of property, ule. services, or money from the authority (m) Knows or has reason to know, or to a party to a contract with the au- means that a person with respect to a thority— claim or statement— (i) For property or services if the (1) Has actual knowledge that the United States— claim or statement is false, fictitious, (A) Provided such property or serv- or fraudulent; ices; (2) Acts in deliberate ignorance of the (B) Provided any portion of the funds truth or falsity of the claim or state- for the purchase of such property or ment; or services; or (3) Acts in reckless disregard of the (C) Will reimburse such recipient or truth or falsity of the claim or state- party for the purchase of such property ment. or services; or (n) Makes, wherever it appears, shall (ii) For the payment of money (in- include the terms presents, submits, cluding money representing grants, and causes to be made, presented, or loans, insurance, or benefits) if the submitted. As the context requires, United States— making or made shall likewise include (A) Provided any portion of the the corresponding forms of such terms. money requested or demanded; or (o) Person means any individual, (B) Will reimburse such recipient or partnership, corporation, association, party for any portion of the money or private organization, and includes paid on such request or demand; or the plural of that term. (iii) Made to the authority which has (p) Presiding officer, except as pro- the effect of decreasing an obligation vided for pursuant to consent trial no- to pay or account for property, serv- tice, means (if the authority is not sub- ices, or money. ject to the provisions of Subchapter II
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of Chapter 5, Title 5, U.S.C.) an officer under such contract or for such grant, or employee of the authority who— loan, or benefit, or if the Government (1) Is selected under Chapter 33 of will reimburse such State, political Title 5 pursuant to the competitive ex- subdivision, or party for any portion of amination process applicable to admin- the money or property under such con- istrative law judges; tract or for such grant, loan, or ben- (2) Is appointed by the authority efit. head to conduct hearings under this [52 FR 39498, Oct. 22, 1987, as amended at 54 part; FR 599, Jan. 9, 1989] (3) Is assigned to cases in rotation so far as practicable; § 1264.102 Basis for civil penalties and (4) May not perform duties incon- assessments. sistent with the duties and responsibil- (a) Claims. (1) Any person who makes ities of a presiding officer; a claim that the person knows or has (5) Is entitled to pay prescribed by reason to know— the Office of Personnel Management (i) Is false, fictitious, or fraudulent; independently of ratings and rec- (ii) Includes or is supported by any ommendations made by the authority written statement which asserts a ma- and in accordance with Chapter 51 of terial fact which is false, fictitious, or such Title and Subchapter III of Chap- fraudulent; ter 53 of such Title; (iii) Includes or is supported by any (6) Is not subject to performance ap- written statement that— praisal pursuant to Chapter 43 of such (A) Omits a material fact; Title; and (B) Is false, fictitious, or fraudulent (7) May be removed, suspended, fur- as a result of such omission; and loughed, or reduced in grade or pay (C) Is a statement in which the per- only for good cause established and de- son making such statement has a duty termined by the Merit Systems Protec- to include such material fact; or tion Board on the record after oppor- (iv) Is for payment for the provision tunity for hearing by such Board. of property or services which the per- (q) Representative means an attorney son has not provided as claimed— who is in good standing of the bar of Shall be subject, in addition to any any State, Territory, or possession of other remedy that may be prescribed the United States, or of the District of by law, to a civil penalty of not more Columbia, or of the Commonwealth of than $5,000 for each such claim. Puerto Rico. (2) Each voucher, invoice, claim (r) Reviewing official means the NASA form, or other individual request or de- Associate Administrator for Manage- mand for property, services, or money ment. For purposes of this regulation, constitutes a separate claim. the Associate General Counsel (Gen- (3) A claim shall be considered made eral) or designee is designated legal to the authority, recipient, or party counsel to the Reviewing official. when such claim is actually made to an (s) Statement means any representa- agent, fiscal intermediary, or other en- tion, certification, affirmation, docu- tity, including any State or political ment, record, or accounting or book- subdivision thereof, acting for or on be- keeping entry made— half of the authority, recipient, or (1) With respect to a claim or to ob- party. tain the approval or payment of a (4) Each claim for property, services, claim (including relating to eligibility or money is subject to a civil penalty to make a claim); or regardless of whether such property, (2) With respect to (including relat- services, or money is actually delivered ing to eligibility for)— or paid. (i) A contract with, or a bid or pro- (5) If the Government has made any posal for a contract with; or payment (including transferred prop- (ii) A grant, loan, or benefit from the erty or provided services) on a claim, a authority, or any State, political sub- person subject to a civil penalty under division of a State, or other party, if paragraph (a)(1) of this section shall the United States Government provides also be subject to an assessment of not any portion of the money or property more than twice the amount of such
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claim or that portion thereof that is authority conferred by 31 U.S.C. 3804(a) determined to be in violation. Such as- is warranted— sessment shall be in lieu of damages (1) The subpoena so issued shall no- sustained by the Government because tify the person to whom it is addressed of such claim. of the authority under which the sub- (b) Statements. (1) Any person who poena is issued and shall identify the makes a written statement that— records or documents sought; (i) The person knows or has reason to (2) The subpoena may designate the know— person, to act on the investigating offi- (A) Asserts a material fact which is cial’s behalf, to receive the documents false, fictitious, or fraudulent; or sought; and (B) Is false, fictitious, or fraudulent (3) The person receiving such sub- because it omits a material fact that poena shall be required to tender to the the person making the statement has a investigating official or the person des- duty to include in such statement; and ignated to receive the documents a cer- (ii) Contains or is accompanied by an tification that the documents sought express certification or affirmation of have been produced, or that such docu- the truthfulness and accuracy of the ments are not available and the rea- contents of the statement— sons therefor, or that such documents, Shall be subject, in addition to any suitably identified, have been withheld other remedy that may be prescribed based upon the assertion of an identi- by law, to a civil penalty of not more fied privilege. than $5,000 for each such statement. (b) If the investigating official con- (2) Each written representation, cer- cludes that an action under the Pro- tification, or affirmation constitutes a gram Fraud Civil Remedies Act may be separate statement. warranted, the investigating official (3) A statement shall be considered shall submit a report containing the made to the authority when such state- findings and conclusions of such inves- ment is actually made to an agent, fis- tigation to the reviewing official. cal intermediary, or other entity, in- (c) Nothing in this section shall pre- cluding any State or political subdivi- clude or limit the investigating offi- sion thereof, acting for or on behalf of cial’s discretion to refer allegations di- the authority. rectly to the Department of Justice for (c) No proof of specific intent to de- suit under the False Claims Act or fraud is required to establish liability other civil relief, or to defer or post- under this section. pone a report of referral to the review- (d) In any case in which it is deter- ing official to avoid interference with a mined that more than one person is lia- criminal investigation or prosecution. ble for making a claim or statement (d) Nothing in this section modifies under this section, each such person any responsibility of the investigating may be held liable for a civil penalty official to report violations of criminal under this section. law to the Attorney General. (e) In any case in which it is deter- [52 FR 39498, Oct. 22, 1987, as amended at 54 mined that more than one person is lia- FR 599, Jan. 9, 1989] ble for making a claim under this sec- tion on which the Government has § 1264.104 Review by the reviewing of- made payment (including transferred ficial. property or provided services), an as- (a) If, based on the report of the in- sessment may be imposed against any vestigating official under § 1264.103(b), such person or jointly and severally the reviewing official determines that against any combination of such per- there is adequate evidence to believe sons. that a person is liable under § 1264.102 [52 FR 39498, Oct. 22, 1987, as amended at 54 of this part, the reviewing official shall FR 599, Jan. 9, 1989] transmit to the Attorney General a written notice of the reviewing offi- § 1264.103 Investigation. cial’s intention to issue a complaint (a) If an investigating official con- under § 1264.106. cludes that a subpoena pursuant to the (b) Such notice shall include—
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(1) A statement of the reviewing offi- taneously, regardless of the amount of cial’s reasons for issuing a complaint; money or the value of property or serv- (2) A statement specifying the evi- ices demanded or requested. dence that supports the allegations of liability; § 1264.106 Complaint. (3) A description of the claims or (a) On or after the date the Depart- statements upon which the allegations ment of Justice approves the issuance of liability are based; of a complaint in accordance with 31 (4) An estimate of the amount of U.S.C. 3803(b)(1), the reviewing official money or the value of property, serv- may serve a complaint on the defend- ices, or other benefits requested or de- ant, as provided in § 1264.107. manded in violation of § 1264.102 of this (b) The complaint shall state— part; (1) The allegations of liability (5) A statement of any exculpatory or against the defendant, including the mitigating circumstances that may re- statutory basis for liability, an identi- late to the claims or statements known fication of the claims or statements by the reviewing official or the inves- that are the basis for the alleged liabil- tigating official; and ity, and the reasons why liability alleg- (6) A statement that there is a rea- edly arises from such claims or state- sonable prospect of collecting an ap- ments; propriate amount of penalties and as- (2) The maximum amount of pen- sessments. Such a statement may be alties and assessments for which the based upon information then known or defendant may be held liable; an absence of any information indi- (3) Instructions for filing an answer cating that the person may be unable to request a hearing, including a spe- to pay such an amount. cific statement of the defendant’s right to request a hearing by filing an an- § 1264.105 Prerequisites for issuing a complaint. swer and to be represented by a rep- resentative; and (a) The reviewing official may issue a (4) That failure to file an answer complaint under § 1264.106 only if— within 30 days of service of the com- (1) The Department of Justice ap- plaint will result in the imposition of proves the issuance of a complaint in a the maximum amount of penalties and written statement described in 31 assessments without right to appeal as U.S.C. 3803(b)(1); and provided in § 1264.109. (2) In the case of allegations of liabil- (c) At the same time the defendant is ity under § 1264.102(a) with respect to a served with the complaint, he or she claim, the reviewing official deter- shall also be served with a— mines that, with respect to such claim (1) Notice to Consent to the Chair- or a group of related claims submitted person of the NASA Board of Contract at the same time such claim is sub- Appeals (BCA), or Designee, as pre- mitted (as defined in paragraph (b) of siding officer; this section), the amount of money or (2) Copy of this part 1264 of 14 CFR. the value of property or services de- manded or requested in violation of [52 FR 39498, Oct. 22, 1987, as amended at 54 § 1264.102(a) does not exceed $150,000. FR 599, Jan. 9, 1989] (b) For the purposes of this section, a related group of claims submitted at § 1264.107 Service of complaint. the same time shall include only those (a) Service of a complaint must be claims arising from the same trans- made by certified or registered mail or action (e.g., grant, loan, application, or by delivery in any manner authorized contract) that are submitted simulta- by Rule 4(d) of the Federal Rules of neously as part of a single request, de- Civil Procedure. mand, or submission. (b) Proof of service, stating the name (c) Nothing in this section shall be and address of the person on whom the construed to limit the reviewing offi- complaint was served, and the manner cial’s authority to join in a single com- and date of service, may be made by— plaint against a person claims that are (1) Affidavit of the individual serv- unrelated or were not submitted simul- icing the complaint by delivery;
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(2) A United States Postal Service re- § 1264.109 Default upon failure to file turn receipt card acknowledging re- an answer. ceipt; or (a) If the defendant does not file an (3) Written acknowledgment of re- answer within the time prescribed in ceipt by the defendant or his/her rep- § 1264.108(a), the reviewing official may resentative. refer the complaint to the presiding of- ficer. [52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989] (b) Upon the referral of the com- plaint, the presiding officer shall § 1264.108 Answer. promptly serve on defendant, in the manner prescribed in § 1264.107, a notice (a) The defendant may request a that an initial decision will be issued hearing by filing an answer with the under this section. reviewing official within 30 days of (c) If the defendant fails to answer, service of the complaint. An answer the presiding officer shall assume the shall be deemed to be a request for facts alleged in the complaint to be hearing. true and, if such facts establish liabil- (b) In the answer, the defendant— ity under § 1264.102, the presiding offi- (1) Shall admit or deny each of the cer shall issue an initial decision im- allegations of liability made in the posing the maximum amount of complaint; penalities and assessments allowed (2) Shall state any defense on which under the statute. the defendant intends to rely; (d) Except as otherwise provided in (3) May state any reasons why the de- this section, by failing to file a timely fendant contends that the penalties answer, the defendant waives any right and assessments should be less than to further review of the penalties and the statutory maximum; and assessments imposed under paragraph (c) of this section, and the initial deci- (4) Shall state the name, address, and sion shall become final and binding telephone number of the person author- upon the parties 30 days after it is ized by the defendant to act as defend- issued. ant’s representative, if any. (e) If, before such an initial decision (c) If the defendant is unable to file becomes final, the defendant files a an answer meeting the requirements of motion with the presiding officer seek- paragraph (b) of this section within the ing to reopen on the grounds that ex- time provided, the defendant may, be- traordinary circumstances prevented fore the expiration of 30 days from the defendant from filing an answer, service of the complaint, file with the the initial decision shall be stayed reviewing official a general answer de- pending the presiding officer’s decision nying liability and requesting a hear- on the motion. ing, and a request for an extension of (f) If, on such motion, the defendant time within which to file an answer can demonstrate extraordinary cir- meeting the requirements of paragraph cumstances excusing the failure to file (b) of this section. The reviewing offi- a timely answer, the presiding officer cial, as provided in § 1264.110, shall file shall withdraw the initial decision promptly with the presiding officer the under paragraph (c) of this section, if complaint, the general answer denying such a decision has been issued, and liability, and the request for an exten- shall grant the defendant an oppor- sion of time. For good cause shown, the tunity to answer the complaint. presiding officer may grant the defend- (g) A decision of the presiding officer ant up to 30 additional days within denying a defendant’s motion under paragraph (e) of this section is not sub- which to file an answer meeting the re- ject to reconsideration under § 1264.137. quirements of paragraph (b) of this sec- (h) The defendant may appeal to the tion. authority head the decision denying a [52 FR 39498, Oct. 22, 1987, as amended at 54 motion to reopen by filing a notice of FR 600, Jan. 9, 1989] appeal with the authority head within
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15 days after the presiding officer de- (4) A description of the precedures for nies the motion. The timely filing of a the conduct of the hearing; notice of appeal shall stay the initial (5) The name, address, and telephone decision until the authority head de- number of the representative of the au- cides the issue. thority and of the defendant; (i) If the defendant files a timely no- (6) An opportunity for a settlement tice of appeal with the authority head, conference or proposals of adjustment the presiding officer shall forward the through alternative dispute resolu- record of the proceeding to the author- tions, if not already explored; and ity head. (7) Such other matters as the pre- (j) The authority head shall decide siding officer deems appropriate. expeditiously whether extraordinary circumstances excuse the defendant’s § 1264.112 Parties to the hearing. failure to file a timely answer based (a) The parties to the hearing shall solely on the record before the pre- be the defendant and the authority. siding officer. (b) Pursuant to 31 U.S.C. 3730(c)(5), a (k) If the authority head decides that private plaintiff under the False extraordinary circumstances excused Claims Act, as amended, may partici- the defendant’s failure to file a timely pate in these proceedings to the extent answer, the authority head shall re- authorized by the provisions of that mand the case to the presiding officer Act. (See section 3 of the False Claims with instructions to grant the defend- Amendments Act of 1986, Pub. L. 99–562, ant an opportunity to answer. October 27, 1986.) (l) If the authority head decides that the defendant’s failure to file a timely § 1264.113 Separation of functions. answer is not excused, the authority (a) The investigating official, the re- head shall reinstate the initial decision viewing official, and any employee or of the presiding officer, which shall be- agent of the authority who takes part come final and binding upon the par- in investigating, preparing, or pre- ties 30 days after the authority head senting a particular case may not, in issues such decision. such case or a factually related case— (1) Participate in the hearing as the § 1264.110 Referral of complaint and presiding officer; answer to the presiding officer. (2) Participate or advise in the initial Upon receipt of an answer, the re- decision or the review of the initial de- viewing official shall file the complaint cision by the authority head, except as and answer with the presiding officer, a witness or as the authority rep- and include the name and address of resentative in the administrative or ju- the attorney who will represent the au- dicial proceedings; or thority before the presiding officer. (3) Make the collection of penalties and assessments under 31 U.S.C. 3806. § 1264.111 Notice of hearing. (b) The presiding officer shall not be (a) When the presiding officer re- responsible to, or subject to the super- ceives the complaint and answer, the vision or direction of, the investigating presiding officer shall promptly serve a official or the reviewing official. notice of hearing upon the defendant in (c) Except as provided in paragraph the manner prescribed by § 1264.107. At (a) of this section, the representative the same time, the presiding officer for the Government must be a member shall send a copy of such notice to the of the legal staff of the authority. representative of the authority. Nothing in this paragraph is intended (b) Such notice shall include— to prevent assistance to the Govern- (1) The tentative time and place, and ment representative by attorneys in the nature of the hearing; the NASA organization or other gov- (2) The legal authority and jurisdic- ernmental entities. tion under which the hearing is to be held; § 1264.114 Ex parte contacts. (3) The matters of fact and law as- No party or person (except employees serted; of the presiding officer’s office) shall
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communicate in any way with the pre- § 1264.116 Rights of parties. siding officer on any matter at issue in Except as otherwise limited by this a case, unless on notice and oppor- part, all parties may— tunity for all parties to participate. (a) Be accompanied, represented, and This provision does not prohibit a per- advised by a representative; son or party from inquiring about the (b) Paticipate in any conference held status of a case or asking routine ques- by the presiding officer; tions concerning administrative func- (c) Conduct discovery; tions or procedures. (d) Agree to stipulations of fact or [54 FR 600, Jan. 9, 1989] law, which shall be made part of the record; § 1264.115 Disqualification of review- (e) Present evidence relevant to the ing official or presiding officer. issues at the hearing; (a) A reviewing official or presiding (f) Present and cross-examine wit- officer in a particular case may dis- nesses; qualify himself or herself at any time. (g) Present oral arguments at the (b) A party may file with the pre- hearing as permitted by the presiding siding officer a motion for disqualifica- officer; and tion of a reviewing official or a pre- (h) Submit written briefs and pro- siding officer. Such motion shall be ac- posed findings of fact and conclusions companied by an affidavit alleging per- of law after the hearing. sonal bias or other reason for disquali- § 1264.117 Authority of the presiding fication. officer. (c) Such motion and affidavit shall be (a) The presiding officer shall con- filed promptly upon the party’s dis- duct a fair and impartial hearing, avoid covery of reasons for disqualification, delay, maintain order, and assure that or such objections shall be deemed a record of the proceeding is made. waived. (b) The presiding officer has the au- (d) Such affidavit shall state specific thority to— facts that support the party’s belief (1) Set and change the date, time, that personal bias or other reason for and place of the hearing upon reason- disqualification exists and the time able notice to the parties; and circumstances of the party’s dis- (2) Continue or recess the hearing in covery of such facts. It shall be accom- whole or in part for a reasonable period panied by a certificate of the rep- of time; resentative of record that it is made in (3) Hold conferences to identify or good faith. simplify the issues, or to consider (e) Upon the filing of such a motion other matters, including settlement and affidavit, the presiding officer conferences or other alternative dis- shall proceed no further in the case pute resolution, that may aid in the until the matter of disqualification is fair and expeditious disposition of the resolved in accordance with paragraph proceeding; (f) of this section. (4) Administer oaths and affirma- (f)(1) If the presiding officer deter- tions; mines that a reviewing official is dis- (5) Issue subpoenas, requiring the at- qualified, the presiding officer shall tendance of witnesses and the produc- dismiss the complaint without preju- tion of documents at depositions or at dice. hearings, which the presiding officer (2) If the presiding officer disqualifies considers relevant and material; himself or herself, the case shall be re- (6) Rule on motions and other proce- assigned promptly to another presiding dural matters; officer. (7) Regulate the scope and timing of (3) If the presiding officer denies a discovery; motion to disqualify, the authority (8) Regulate the course of the hearing head may determine the matter only as and the conduct of representatives and part of his or her review of the initial parties; decision upon appeal, if any. (9) Examine witnesses;
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(10) Receive, rule on, exclude, or the fair and just disposition of the pro- limit evidence; ceedings. (11) Upon motion of a party, take of- (d) The presiding officer may issue an ficial notice of facts; order containing all matters agreed (12) Upon motion of a party, decide upon by the parties or ordered by the cases, in whole or in part, by summary presiding officer at a prehearing con- judgment where there is no genuine ference. issue as to any material fact; [52 FR 39498, Oct. 22, 1987, as amended at 54 (13) Conduct any conference, argu- FR 600, Jan. 9, 1989] ment, or hearing on motions in person or by telephone; and § 1264.119 Disclosure of documents. (14) Exercise such other authority as (a) Upon written request to the re- is necessary to carry out the respon- viewing official, the defendant may re- sibilities of the presiding officer under view any relevant and material docu- this part. ments, transcripts, records, and other (c) The presiding officer does not materials that relate to the allegations have the authority to find Federal set out in the complaint and upon statutes or regulations invalid. which the findings and conclusions of the investigating official under [52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989] § 1264.103(b) are based unless such docu- ments are subject to a privilege under § 1264.118 Prehearing conferences. Federal law. Upon payment of a rea- sonable fee for duplication, the defend- (a) The presiding officer may sched- ant may obtain copies of such docu- ule prehearing conferences as appro- ments. priate. (b) Upon written request to the re- (b) Upon the motion of any party, the viewing official, the defendant also presiding officer shall schedule at least may obtain a copy of all exculpatory one prehearing conference at a reason- information in the possession of the re- able time in advance of the hearing. viewing official or investigating offi- (c) The presiding officer may use pre- cial relating to the allegations in the hearing conferences to discuss the fol- complaint, even if it is contained in a lowing: document that would otherwise be (1) Simplification of the issues; privileged. If the document would oth- (2) The necessity or desirability of erwise be privileged, only that portion amendments to the pleadings, includ- containing exculpatory information ing the need for a more definite state- must be disclosed. ment; (c) The notice sent to the Attorney (3) Stipulations and admissions of General from the reviewing official as fact or as to the contents and authen- described in § 1264.104 is not discover- ticity of documents; able under any circumstances. (4) Whether the parties can agree to (d) The defendant may file a motion submission of the case on a stipulated to compel disclosure of the documents record; subject to the provisions of this sec- (5) Whether a party chooses to waive tion. Such a motion may only be filed appearance at an oral hearing and to with the presiding officer following the submit only documentary evidence filing of an answer pursuant to (subject to the objections of other par- § 1264.108. ties) and written arguments; (6) Limitation of the number of wit- § 1264.120 Discovery. nesses; (a) The following types of discovery (7) Scheduling dates for the exchange are authorized: of witness lists and of proposed exhib- (1) Requests for production of docu- its; ments for inspection and copying; (8) Discovery; (2) Requests for admissions of the au- (9) The time and place for the hear- thenticity of any relevant document or ing; and of the truth of any relevant fact; (10) Such other matters, including (3) Written interrogatories; and settlement, as may tend to expedite (4) Depositions.
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(b) For the purpose of this section (4) The party seeking to depose shall and §§ 1264.121 and 1264.122, the term provide for the taking of a verbatim documents includes information, docu- transcript of the deposition, which it ments, reports, answers, records, ac- shall make available to all other par- counts, papers, and other data and doc- ties for inspection and copying. umentary evidence which the presiding (f) Each party shall bear its own officer considers relevant and material costs of discovery. to the hearing. Nothing contained herein shall be interpreted to require § 1264.121 Exchange of witness lists, the creation of a document. statements, and exhibits. (c) Unless mutually agreed to by the (a) At least 15 days before the hear- parties, discovery is available only as ing or at such other time as may be or- ordered by the presiding officer. The dered by the presiding officer, the par- presiding officer shall regulate the tim- ties shall exchange witness lists, copies ing of discovery. of prior statements of proposed wit- (d) Motions for discovery. (1) A party nesses, and copies of proposed hearing seeking discovery may file a motion exhibits, including copies of any writ- with the presiding officer. Such a mo- ten statements that the party intends tion shall be accompanied by a copy of to offer in lieu of live testimony in ac- the discovery request or, in the case of cordance with paragraph (b) of depositions, a summary of the scope of § 1264.132. At the time the above docu- the proposed deposition. ments are exchanged, any party that (2) Within 10 days of service, a party intends to rely on the transcript of may file an opposition to the motion deposition testimony in lieu of live tes- and/or a motion for protective order as timony at the hearing, if permitted by provided in § 1264.123. the presiding officer, shall provide each (3) The presiding officer may grant a party with a copy of the specific pages motion for discovery only if he/she of the transcript it intends to intro- finds that the discovery sought— duce into evidence. (i) Is necessary for the expeditious, (b) If a party objects, the presiding fair, and reasonable consideration of officer shall not admit into evidence the issues; the testimony of any witness whose name does not appear on the witness (ii) Is not unduly costly or burden- list or any exhibit not provided to the some; opposing party, in accordance with (iii) Will not unduly delay the pro- paragraph (a) of this section, unless the ceeding; and presiding officer finds goods cause for (iv) Does not seek privileged informa- the failure or that there is no prejudice tion. to the objecting party. (4) The burden of showing that dis- (c) Unless another party objects covery should be allowed is on the within the time set by the presiding of- party seeking discovery. ficer, documents exchanged in accord- (5) The presiding officer may grant ance with paragraph (a) of this section discovery subject to a protective order shall be deemed to be authentic for the under § 1264.123. purpose of admissibility at the hearing. (e) Depositions. (1) If a motion for dep- osition is granted, the presiding officer § 1264.122 Subpoena for attendance at shall issue a subpoena for the depo- hearing. nent, which may require the deponent (a) A party wishing the appearance to produce documents. The subpoena and testimony of any individual at the shall specify the time and place at hearing may request that the presiding which the deposition will be held. officer issue a subpoena. (2) The party seeking to depose shall (b) A subpoena requiring the attend- serve the subpoena in the manner pre- ance and testimony of an individual scribed in § 1264.107. may also require the individual to (3) The deponent may file with the produce documents at the hearing. presiding officer a motion to quash the (c) A party seeking a subpoena shall subpoena or a motion for a protective file a written request therefor not less order within 10 days of service. than 15 days before the date fixed for
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the hearing unless otherwise allowed (7) That a deposition after being by the presiding officer for good cause sealed be opened only by order of the shown. Such request shall specify any presiding officer; documents to be produced and shall (8) That a trade secret or other con- designate the witnesses and describe fidential research, development, com- the address and location thereof with mercial information, or facts per- sufficient particularity to permit such taining to any criminal investigation, witnesses to be found. proceeding, or other administrative in- (d) The subpoena shall specify the vestigation not be disclosed or be dis- time and place at which the witness is closed only in a designated way; or to appear and any documents the wit- (9) That the parties simultaneously ness is to produce. file specified documents or information (e) The party seeking the subpoena enclosed in sealed envelopes to be shall serve it in the manner prescribed opened as directed by the presiding of- in § 1264.107. A subpoena on a party or ficer. upon an individual under the control of a party may be served by first class § 1264.124 Fees. mail. The party requesting a supoena shall (f) A party or the individual to whom pay the cost of the fees and mileage of the subpoena is directed may file with any witness supoenaed in the amounts the presiding officer a motion to quash that would be payable to a witness in a the subpoena within 10 days after serv- proceeding in United States District ice or on or before the time specified in Court. A check for witness fees and the subpoena for compliance if it is less mileage shall accompany the subpoena than 10 days after service. when served, except that when a sub- poena is issued on behalf of the author- § 1264.123 Protective order. ity, a check for witness fees and mile- (a) A party or a prospective witness age need not accompany the subpoena. or deponent may file a motion for a protective order with respect to dis- § 1264.125 Form, filing, and service of covery sought by an opposing party or papers. with respect to the hearing, seeking to (a) Form. (1) Documents filed with the limit the availability or disclosure of presiding officer shall include an origi- evidence. nal and two copies. (b) In issuing a protective order, the (2) Every pleading and paper filed in presiding officer may make any order the proceeding shall contain a caption which justice requires to protect a setting forth the title of the action, the party or person from annoyance, em- case number assigned by the presiding barrassment, oppression, or undue bur- officer, and a designation of the paper den or expense, including one or more (e.g., motion to quash subpoena). of the following: (3) Every pleading and paper shall be (1) That the discovery not be had; signed by, and shall contain the ad- (2) That the discovery may be had dress and telephone number of the only on specified terms and conditions, party or the person on whose behalf the including a designation of the time or paper was filed, or his or her represent- place; ative. (3) That the discovery may be had (4) Papers are considered filed when only through a method of discovery they are mailed. Date of mailing may other than that requested; be established by a certificate from the (4) That certain matters not be in- party or its representative or by proof quired into, or that the scope of dis- that the document was sent by cer- covery be limited to certain matters; tified or registered mail. (5) That discovery be conducted with (b) Service. A party filing a document no one present except persons des- with the presiding officer shall, at the ignated by the presiding officer; time of filing, serve a copy of such doc- (6) That the contents of discovery or ument on every other party. Service evidence be sealed; upon any party of any document other
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than those required to be served as pre- (d) The presiding officer may not scribed in § 1264.107 shall be made by de- grant a written motion before the time livering a copy or by placing a copy of for filing responses thereto has expired, the document in the U.S. mail, postage except upon consent of the parties or prepaid, and addressed to the party’s following a hearing on the motion, but last known address. When a party is may overrule or deny such motion represented by a representative, serv- without awaiting a response. ice shall be made upon such representa- (e) The presiding officer shall make a tive. reasonable effort to dispose of all out- (c) Proof of service. A certificate of standing motions prior to the begin- the individual serving the document by ning of the hearing. personal delivery or by mail, setting forth the manner of service, shall be § 1264.128 Sanctions. proof of service. (a) The presiding officer may sanc- [52 FR 39498, Oct. 22, 1987, as amended at 54 tion a person, including any party or FR 600, Jan. 9, 1989] representative for— (1) Failing to comply with an order, § 1264.126 Computation of time. rule, or procedure governing the pro- (a) In computing any period of time ceeding; under this part or in an order issued (2) Failing to prosecute or defend an thereunder, the time begins with the action; or day following the act, event, or default, (3) Engaging in other misconduct and includes the last day of the period, that interferes with the speedy, or- unless it is a Saturday, Sunday, or derly, or fair conduct of the hearing. legal holiday observed by the Federal (b) Any such sanction, including but government, in which event it includes not limited to those listed in para- the next business day. graphs (c), (d), and (e) of this section, (b) When the period of time allowed shall reasonably relate to the severity is less than 7 days, intermediate Satur- and nature of the failure or mis- days, Sundays, and legal holidays ob- conduct. served by the Federal government shall (c) When a party fails to comply with be excluded from the computation. an order, including an order for taking (c) Where a document has been served a deposition, the production of evi- or issued by placing it in the mail, an dence within the party’s control, or a additional 5 days will be added to the request for admission, the presiding of- time permitted for any response. ficer may— [52 FR 39498, Oct. 22, 1987, as amended at 54 (1) Draw an inference in favor of the FR 600, Jan. 9, 1989] requesting party with regard to the in- formation sought; § 1264.127 Motions. (2) In the case of requests for admis- (a) Any application to the presiding sion, deem each matter of which an ad- officer for an order or ruling shall be mission is requested to be admitted; by motion. Motions shall state the re- (3) Prohibit the party failing to com- lief sought, the authority relied upon, ply with such order from introducing and the facts alleged, and shall be filed evidence concerning, or otherwise rely- with the presiding officer and served on ing upon testimony relating to, the in- all other parties. formation sought; and (b) Except for motions made during a (4) Strike any part of the pleadings prehearing conference or at the hear- or other submissions of the party fail- ing, all motions shall be in writing. ing to comply with such request. The presiding officer may require that (d) If a party fails to prosecute or de- oral motions be reduced to writing. fend an action under this part com- (c) Within 15 days after a written mo- menced by service of a notice of hear- tion is served, or such other time as ing, the presiding officer may dismiss may be fixed by the presiding officer, the action or may issue an initial deci- any party may file a response to such sion imposing penalties and assess- motion. ments.
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(e) The presiding officer may refuse (3) The degree of the defendant’s cul- to consider any motion, request, re- pability with respect to the mis- sponse, brief, or other document which conduct; is not filed in a timely fashion. (4) The amount of money or the value of the property, services, or benefit § 1264.129 The hearing and burden of falsely claimed; proof. (5) The value of the Government’s ac- (a) The presiding officer shall con- tual loss as a result of the misconduct, duct a hearing on the record in order to including foreseeable consequential determine whether the defendant is lia- damages and the costs of investigation; ble for a civil penalty or assessment (6) The relationship of the amount imposed as civil penalties to the under § 1264.102 and, if so, the appro- amount of the Government’s loss; priate amount of any such civil penalty (7) The potential or actual impact of or assessment considering any aggra- the misconduct upon national defense, vating or mitigating factors. public health or safety, or public con- (b) The authority shall prove defend- fidence in the management of Govern- ant’s liability and any aggravating fac- ment programs and operations, includ- tors by a preponderance of the evi- ing particularly the impact on the in- dence. tended beneficiaries of such programs; (c) The defendant shall prove any af- (8) Whether the defendant has en- firmative defenses and any mitigating gaged in a pattern of the same or simi- factors by a preponderance of the evi- lar misconduct; dence. (9) Whether the defendant attempted (d) The hearing shall be open to the to conceal the misconduct; public unless otherwise ordered by the (10) The degree to which the defend- presiding officer for good cause shown. ant has involved others in the mis- conduct or in concealing it; § 1264.130 Determining the amount of (11) Where the misconduct of employ- penalties and assessments. ees or agents is imputed to the defend- (a) In determining an appropriate ant, the extent to which the defend- amount of civil penalties and assess- ant’s practices fostered or attempted ments, the presiding officer, and the to preclude such misconduct; authority head upon appeal, should (12) Whether the defendant cooper- evaluate any circumstances that miti- ated in or obstructed an investigation gate or aggravate the violation and of the misconduct; should articulate in their opinions the (13) Whether the defendant assisted reasons that support the penalties and in identifying and prosecuting other assessments they impose. Because of wrongdoers; the intangible costs of fraud, the ex- (14) The complexity of the program pense of investigating such conduct, or transaction, and the degree of the defendant’s sophistication with respect and the need to deter others who might to it, including the extent of the de- be similarly tempted, ordinarily double fendant’s prior participation in the damages and a significant civil penalty program or in similar transactions; should be imposed. (15) Whether the defendant has been (b) Although not exhaustive, the fol- found, in any criminal, civil, or admin- lowing factors are among those that istrative proceeding to have engaged in may influence the presiding officer and similar misconduct or to have dealt the authority head in determining the dishonestly with the Government of amount of penalties and assessments to the United States or of a State, di- impose with respect to the misconduct rectly or indirectly; and (i.e., the false, fictitious, or fraudulent (16) The need to deter the defendant claims or statements) charged in the and others from engaging in the same complaint: or similar misconduct. (1) The number of false, fictitious, or (c) Nothing in this section shall be fraudulent claims or statements; construed to limit the presiding officer (2) The time period over which such or the authority head from considering claims or statements were made; any other factors that in any given
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case may mitigate or aggravate the of- extent permitted by the presiding offi- fense for which penalties and assess- cer, cross-examination on matters out- ments are imposed. side the scope of direct examination shall be conducted in the manner of di- § 1264.131 Location of hearing. rect examination and may proceed by (a) The hearing may be held— leading questions only if the witness is (1) In any judicial district of the a hostile witness, an adverse party, or United States in which the defendant a witness identified with an adverse resides or transacts business; party. (2) In any judicial district of the (f) Upon motion of any party, the United States in which the claim or presiding officer shall order witnesses statement in issue was made; or excluded so that they cannot hear the (3) In such other place as may be testimony of other witnesses. This rule agreed upon by the defendant and the does not authorize exclusion of— presiding officer. (1) A party who is an individual; (b) Each party shall have the oppor- (2) In the case of a party that is not tunity to present argument with re- an individual, an officer or employee of spect to the location of the hearing. the party appearing for the entity pro (c) The hearing shall be held at the se or designated by the party’s rep- place and at the time ordered by the resentative; or presiding officer. (3) An individual whose presence is shown by a party to be essential to the § 1264.132 Witnesses. presentation of its case, including an (a) Except as provided in paragraph individual employed by the Govern- (b) of this section, testimony at the ment engaged in assisting the rep- hearing shall be given orally by wit- resentative for the Government. nesses under oath or affirmation. (b) At the discretion of the presiding [52 FR 39498, Oct. 22, 1987, as amended at 54 officer, testimony may be admitted in FR 600, Jan. 9, 1989] the form of a written statement or dep- § 1264.133 Evidence. osition. Any such written statement must be provided to all other parties (a) The presiding officer shall deter- along with the last known address of mine the admissibility of evidence. such witness, in a manner which allows (b) Except as provided herein, the sufficient time for other parties to sub- presiding officer shall not be bound by poena such witness for cross-examina- the Federal Rules of Evidence. How- tion at the hearing. Prior written ever, the presiding officer may apply statements of witnesses proposed to the Federal Rules of Evidence where testify at the hearing and deposition appropriate, e.g., to exclude unreliable transcripts shall be exchanged as pro- evidence. vided in § 1264.121(a). (c) The presiding officer shall exclude (c) The presiding officer shall exer- irrelevant and immaterial evidence. cise reasonable control over the mode (d) Although relevant, evidence may and order of interrogating witnesses be excluded if its probative value is and presenting evidence so as to make substantially outweighed by the danger the interrogation and presentation ef- of unfair prejudice, confusion of the fective for the ascertainment of the issues, or by considerations of undue truth, avoid needless consumption of delay or needless presentation of cumu- time, and protect witnesses from har- lative evidence. assment or undue embarrassment. (e) Although relevant, evidence may (d) The presiding officer shall permit be excluded if it is privileged under the parties to conduct such cross-ex- Federal law. amination as may be required for a full (f) Evidence concerning offers of com- and true disclosure of the facts. promise or settlement shall be inad- (e) At the discretion of the presiding missible to the extent provided in Rule officer, a witness may be cross-exam- 408 of the Federal Rules of Evidence. ined on matters relevant to the pro- (g) The presiding officer shall permit ceeding without regard to the scope of the parties to introduce rebuttal wit- his or her direct examination. To the nesses and evidence.
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(h) All documents and other evidence ments considering any mitigating or offered or taken for the record shall be aggravating factors found in the case, open to examination by all parties, un- such as those described in § 1264.130. less otherwise ordered by the presiding (c) The presiding officer shall officer pursuant to § 1264.123. promptly serve the initial decision on all parties within 90 days after the § 1264.134 The record. time for submission of post-hearing (a) The hearing will be recorded and briefs and reply briefs (if permitted) transcribed. Transcripts may be ob- has expired or upon notification that tained following the hearing from the the record is now closed. The presiding presiding officer at a cost not to exceed officer shall at the same time serve all the actual cost of duplication. (b) The transcript of testimony, ex- parties with a statement describing the hibits, and other evidence admitted at right of any defendant determined to the hearing, and all papers and re- be liable for a civil penalty or assess- quests filed in the proceeding con- ment to file a motion for reconsider- stitute the record for the decision by ation with the presiding officer or a no- the presiding officer and the authority tice of appeal with the authority head. head. If the presiding officer fails to meet the (c) The record may be inspected and deadline contained in this paragraph, copied (upon payment of a reasonable he or she shall notify the parties of the fee) by anyone, unless otherwise or- reason for the delay and shall set a new dered by the presiding officer pursuant deadline. to § 1264.123. (d) Unless the initial decision of the presiding officer is timely appealed to § 1264.135 Post-hearing briefs. the authority head, or a motion for re- The presiding officer may require the consideration of the initial decision is parties to file post-hearing briefs. In timely filed, the initial decision shall any event, upon approval of the pre- constitute the final decision of the au- siding officer, any party may file a thority head and shall be final and post-hearing brief. The presiding offi- binding on the parties 30 days after it cer shall fix the time for filing such is issued by the presiding officer. briefs, not to exceed 60 days from the date the parties receive the transcript [52 FR 39498, Oct. 22, 1987, as amended at 54 of the hearing or, if applicable, the FR 600, Jan. 9, 1989] stipulated record. Such briefs may be accompanied by proposed findings of § 1264.137 Reconsideration of initial fact and conclusions of law. The pre- decision. siding officer may permit the parties to (a) Except as provided in paragraph file reply briefs, and may grant an ex- (d) of this section, any party may file a tension of the 60-day time period or motion for reconsideration of the ini- other time for good cause shown. tial decision within 20 days of receipt of the initial decision. If service was § 1264.136 Initial decision. made by mail, receipt will be presumed (a) The presiding officer shall issue to be 5 days from the date of mailing in an initial decision based solely on the the absence of contrary proof. record, which shall contain findings of (b) Every such motion must set forth fact, conclusions of law, and the the matters claimed to have been erro- amount of any penalties and assess- neously decided and the nature of the ments imposed. (b) The findings of fact shall include alleged errors. Such motion shall be a finding on each of the following accompanied by a supporting brief. issues: (c) Responses to such motions shall (1) Whether the claims or statements be allowed only upon request of the identified in the complaint, or any por- presiding officer. tions thereof, violate § 1264.102; (d) No party may file a motion for re- (2) If the person is liable for penalties consideration of an initial decision or assessments, the appropriate that has been revised in response to a amount of any such penalties or assess- previous motion for reconsideration.
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(e) The presiding officer may dispose an extension within the initial 30-day of a motion for reconsideration by de- period and shows good cause. nying it or by issuing a revised initial (c) If the defendant files a timely no- decision. tice of appeal with the authority head (f) If the presiding officer denies a and the time for filing motions for re- motion for reconsideration, the initial consideration under § 1264.137 has ex- decision shall constitute the final deci- pired, the presiding officer shall for- sion of the authority head and shall be ward the record of the proceeding to final and binding on the parties 30 days the authority head. after the presiding officer denies the (d) A notice of appeal shall be accom- motion, unless the initial decision is panied by a written brief specifying ex- timely appealed to the authority head ceptions to the initial decision and rea- in accordance with § 1264.138. sons supporting the exceptions. (g) If the presiding officer issues a re- (e) The representative for the Gov- vised initial decision, the revised deci- ernment may file a brief in opposition sion shall constitute the final decision to exceptions within 30 days of receiv- of the authority head and shall be final ing the notice of appeal and accom- and binding on the parties 30 days after panying brief. it is issued, unless it is timely appealed (f) There is no right to appear person- to the authority head in accordance ally before the authority head. with § 1264.138. (g) There is no right to appeal any in- terlocutory ruling by the presiding of- [52 FR 39498, Oct. 22, 1987, as amended at 54 ficer. FR 600, Jan. 9, 1989] (h) In reviewing the initial decision, § 1264.138 Appeal to authority head. the authority head shall not consider any objection that was not raised be- (a) Any defendant who has filed a fore the presiding officer unless a dem- timely answer and who is determined onstration is made of extraordinary in an initial decision to be liable for a circumstances causing the failure to civil penalty or assessment may appeal raise the objection. such decision to the authority head by (i) If any party demonstrates to the filing a notice of appeal with the au- satisfaction of the authority head that thority head in accordance with this additional evidence not presented at section. such hearing is material and that there (b) The time for appeal to the author- were reasonable grounds for the failure ity head is as follows: to present such evidence at such hear- (1) A notice of appeal may be filed at ing, the authority head shall remand any time within 30 days after the pre- the matter to the presiding officer for siding officer issues an initial decision. consideration of such additional evi- However, if any other party files a mo- dence. tion for a reconsideration under (j) The authority head may affirm, § 1264.137, consideration of the appeal reduce, reverse, compromise, remand, shall be stayed automatically pending or settle any penalty or assessment, resolution of the motion for reconsider- determined by the presiding officer in ation. any initial decision. (2) If a motion for reconsideration is (k) The authority head shall prompt- timely filed, a notice of appeal must be ly serve each party to the appeal with filed within 30 days after the presiding a copy of the decision of the authority officer denies the motion or issues a re- head. At the same time the authority vised initial decision, whichever ap- head shall serve the defendant with a plies. statement describing the defendant’s (3) If no motion for reconsideration is right to seek judicial review. timely filed, a notice of appeal must be (l) Unless a petition for review is filed within 30 days after the presiding filed as provided in 31 U.S.C. 3805, after officer issues the initial decision. a defendant has exhausted all adminis- (4) The authority head may extend trative remedies under this part and the initial 30-day period for an addi- within 60 days after the date on which tional 30 days if the defendant files the authority head serves the defend- with the authority head a request for ant with a copy of the authority head’s
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decision, a determination that a de- § 1264.143 Right to administrative off- fendant is liable under § 1264.102 is final set. and is not subject to judicial review. The amount of any penalty or assess- [52 FR 39498, Oct. 22, 1987, as amended at 54 ment which has become final, or for FR 600, Jan. 9, 1989] which a judgment has been entered under § 1264.141 or § 1264.142, or any § 1264.139 Stays ordered by the De- amount agreed upon in a compromise partment of Justice. or settlement under § 1264.145, may be collected by administrative offset If at any time the Attorney General under 31 U.S.C. 3716, except that an ad- or an Assistant Attorney General des- ministrative offset may not be made ignated by the Attorney General trans- under this subsection against a refund mits to the authority head a written of an overpayment of Federal taxes, finding that continuation of the admin- then or later owing by the United istrative process described in this part States to the defendant. with respect to a claim or statement may adversely affect any pending or § 1264.144 Deposit in Treasury of potential criminal or civil action re- United States. lated to such claim or statement, the All amounts collected pursuant to authority head shall stay the process this part shall be deposited as miscella- immediately. If the process is before neous receipts in the Treasury of the the presiding officer, the authority United States, except as provided in 31 head shall promptly transmit the find- U.S.C. 3806(g). ing to the presiding officer, who, in § 1264.145 Compromise or settlement. turn, must stay the proceeding and give notice to all parties and their rep- (a) Parties may make offers of com- resentatives. The authority head may promise or settlement at any time, in- cluding proposals for alternative dis- order the process resumed only upon pute resolution. receipt of the written authorization of (b) The reviewing official has the ex- the Attorney General. clusive authority to compromise or settle a case under this part at any § 1264.140 Stay pending appeal. time after the date on which the re- (a) An initial decision is stayed auto- viewing official is permitted to refer matically pending disposition of a mo- allegations of liability to a presiding tion for reconsideration or of an appeal officer and before the date on which to the authority head. the presiding officer issues an initial (b) No administrative stay is avail- decision. able following a final decision of the (c) The authority head has exclusive authority head. authority to compromise or settle a case under this part at any time after § 1264.141 Judicial review. the date on which the presiding officer issues an initial decision, except during Section 3805 of Title 31, United States the pendency of any judicial review Code, authorizes judicial review by an under § 1264.141 or during the pendency appropriate United States District of any civil action to collect penalties Court of a final decision of the author- and assessments under § 1264.142. ity head imposing penalties or assess- (d) The Attorney General has exclu- ments under this part and specifies the sive authority to compromise or settle procedures for such review. a case under this part during the pend- ency of any judicial review under 31 § 1264.142 Collection of civil penalties U.S.C. 3805 or of any civil action to re- and assessments. cover penalties and assessments under Sections 3806 and 3808(b) of Title 31, 31 U.S.C. 3806. United States Code, authorize actions (e) The investigating official may for collection of civil penalties and as- recommend settlement terms to the re- sessments imposed under this part and viewing official, the authority head, or specify the procedures for such actions. the Attorney General, as appropriate. The reviewing official may recommend
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settlement terms to the authority PART 1265—GOVERNMENTWIDE head, or the Attorney General, as ap- DEBARMENT AND SUSPENSION propriate. (NONPROCUREMENT) AND GOV- (f) Any compromise or settlement ERNMENTWIDE REQUIREMENTS must be in writing. FOR DRUG-FREE WORKPLACE § 1264.146 Limitations. (GRANTS) (a) The notice of hearing with respect Subpart A—General to a claim or statement must be served in the manner specified in § 1264.107 Sec. within 6 years after the date on which 1265.100 Purpose. such claim or statement is made. 1265.105 Definitions. 1265.110 Coverage. (b) If the defendant fails to file a 1265.115 Policy. timely answer, service of a notice under § 1264.109(b) shall be deemed a no- Subpart B—Effect of Action tice of hearing for purposes of this sec- tion. 1265.200 Debarment or suspension. 1265.205 Ineligible persons. (c) The statute of limitations may be 1265.210 Voluntary exclusion. extended by agreement of the parties. 1265.215 Exception provision. 1265.220 Continuation of covered trans- APPENDIX A TO PART 1264—NOTICE TO actions. CONSENT TO THE CHAIRPERSON, 1265.225 Failure to adhere to restrictions. NASA BOARD OF CONTRACT APPEALS (BCA), OR DESIGNEE, AS PRESIDING Subpart C—Debarment OFFICER 1265.300 General. In accordance with the provisions of 14 1265.305 Causes for debarment. CFR 1264.106, you are hereby notified that 1265.310 Procedures. the Chairperson, NASA Board of Contract 1265.311 Investigation and referral. Appeals (BCA), or designee, in addition to 1265.312 Notice of proposed debarment. other duties, upon your consent, may con- 1265.313 Opportunity to contest proposed de- duct any or all proceedings as the presiding barment. officer, pursuant to 14 CFR part 1264 which 1265.314 Debarring official’s decision. 1265.315 Settlement and voluntary exclu- implements the Program Fraud Civil Pen- sion. alties Act of 1986. 1265.320 Period of debarment. You should be aware that your decision to 1265.325 Scope of debarment. consent, or not to consent, to the referral of this case to the NASA/BCA must be entirely Subpart D—Suspension voluntary. Only if you and the authority head consent to this reference will either the 1265.400 General. Chairperson or the designee to whom the 1265.405 Causes for suspension. case may be assigned be informed of your de- 1265.410 Procedures. cision. 1265.411 Notice of suspension. An appeal from a decision by the presiding 1265.412 Opportunity to contest suspension. officer under this consent procedure may be 1265.413 Suspending official’s decision. taken in the same manner as an appeal from 1265.415 Period of suspension. a decision by any other presiding officer, as 1265.420 Scope of suspension. provided in 14 CFR 1264.136(d), 1264.137, 1264.138, and 1264.141. Subpart E—Responsibilities of GSA, Agency If you consent, you must sign, date, and re- and Participants turn this form within the 30-day period pro- vided for your answer (see 14 CFR 1264.108, 1265.500 GSA responsibilities. 1264.109). 1265.505 NASA responsibilities. 1265.510 Participants’ responsibilities. consent: lllllllllllllllllll (Signature of person alleged to be liable) Subpart F—Drug-Free Workplace llllllllllllllllllllllll Requirements (Grants) (Print name) llllllllllllllllllllllll 1265.600 Purpose. 1265.605 Definitions. (Date of signature) 1265.610 Coverage.
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1265.615 Grounds for suspension of pay- (1) Prescribing the programs and ac- ments, suspension or termination of tivities that are covered by the govern- grants, or suspension or debarment. mentwide system; 1265.620 Effect of violation. (2) Prescribing the governmentwide 1265.625 Exception provision. criteria and governmentwide minimum 1265.630 Certification requirements and pro- due process procedures that each agen- cedures. cy shall use; 1265.635 Reporting of and employee sanc- (3) Providing for the listing of tions for convictions of criminal drug of- debarred and suspended participants, fenses. participants declared ineligible (see APPENDIX A TO PART 1265—CERTIFICATION RE- definition of ‘‘ineligible’’ in § 1265.105), GARDING DEBARMENT, SUSPENSION, AND and participants who have voluntarily OTHER RESPONSIBILITY MATTERS—PRI- excluded themselves from participation MARY COVERED TRANSACTIONS APPENDIX B TO PART 1265—CERTIFICATION RE- in covered transactions; GARDING DEBARMENT, SUSPENSION, INELI- (4) Setting forth the consequences of GIBILITY AND VOLUNTARY EXCLUSION— a debarment, suspension, determina- LOWER TIER COVERED TRANSACTIONS tion of ineligibility, or voluntary ex- APPENDIX C TO PART 1265—CERTIFICATION RE- clusion; and GARDING DRUG-FREE WORKPLACE RE- (5) Offering such other guidance as QUIREMENTS necessary for the effective implementa-
AUTHORITY: E.O. 12549; Secs. 5151–5160 of tion and administration of the govern- the Drug-Free Workplace Act of 1988 (Pub. L. mentwide system. 100–690, Title V, Subtitle D; 41 U.S.C. 701 et (c) These regulations also implement seq.); National Aeronautics and Space Act, Executive Order 12689 (3 CFR, 1989 Pub. L. 85–568, July 29, 1958, as amended, sec. Comp., p. 235) and 31 U.S.C. 6101 note 203(c)(1). (Public Law 103–355, sec. 2455, 108 Stat.
CROSS REFERENCE: See also Office of Man- 3327) by— agement and Budget notice published at 55 (1) Providing for the inclusion in the FR 21679, May 25, 1990, and 60 FR 33036, June List of Parties Excluded from Federal Pro- 26, 1995. curement and Nonprocurement Programs all persons proposed for debarment, SOURCE: 53 FR 19177, 19204, May 26, 1988, un- debarred or suspended under the Fed- less otherwise noted. eral Acquisition Regulation, 48 CFR EDITORIAL NOTE: For additional informa- part 9, subpart 9.4; persons against tion, see related documents published at 52 which governmentwide exclusions have FR 20360, May 29, 1987, 53 FR 19160, May 26, been entered under this part; and per- 1988, and 53 FR 34474 September 6, 1988. sons determined to be ineligible; and (2) Setting forth the consequences of Subpart A—General a debarment, suspension, determina- tion of ineligibility, or voluntary ex- § 1265.100 Purpose. clusion. (a) Executive Order (E.O.) 12549 pro- (d) Although these regulations cover vides that, to the extent permitted by the listing of ineligible participants law, Executive departments and agen- and the effect of such listing, they do cies shall participate in a government- not prescribe policies and procedures wide system for nonprocurement debar- governing declarations of ineligibility. ment and suspension. A person who is [60 FR 33040, 33044, June 26, 1995] debarred or suspended shall be excluded from Federal financial and non- § 1265.105 Definitions. financial assistance and benefits under The following definitions apply to Federal programs and activities. De- this part: barment or suspension of a participant Adequate evidence. Information suffi- in a program by one agency shall have cient to support the reasonable belief governmentwide effect. that a particular act or omission has (b) These regulations implement sec- occurred. tion 3 of E.O. 12549 and the guidelines Affiliate. Persons are affiliates of promulgated by the Office of Manage- each other if, directly or indirectly, ei- ment and Budget under section 6 of the ther one controls or has the power to E.O. by: control the other, or, a third person
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controls or has the power to control portunity acts and executive orders, or both. Indicia of control include, but are the environmental protection acts and not limited to: interlocking manage- executive orders. A person is ineligible ment or ownership, identity of inter- where the determination of ineligi- ests among family members, shared fa- bility affects such person’s eligibility cilities and equipment, common use of to participate in more than one cov- employees, or a business entity orga- ered transaction. nized following the suspension or de- Legal proceedings. Any criminal pro- barment of a person which has the ceeding or any civil judicial proceeding same or similar management, owner- to which the Federal Government or a ship, or principal employees as the sus- State or local government or quasi- pended, debarred, ineligible, or volun- governmental authority is a party. The tarily excluded person. term includes appeals from such pro- Agency. Any executive department, ceedings. military department or defense agency List of Parties Excluded from Federal or other agency of the executive Procurement and Nonprocurement Pro- branch, excluding the independent reg- grams. A list compiled, maintained and ulatory agencies. distributed by the General Services Ad- Civil judgment. The disposition of a ministration (GSA) containing the civil action by any court of competent names and other information about jurisdiction, whether entered by ver- persons who have been debarred, sus- dict, decision, settlement, stipulation, pended, or voluntarily excluded under or otherwise creating a civil liability Executive Orders 12549 and 12689 and for the wrongful acts complained of; or these regulations or 48 CFR part 9, sub- a final determination of liability under part 9.4, persons who have been pro- the Program Fraud Civil Remedies Act posed for debarment under 48 CFR part of 1988 (31 U.S.C. 3801–12). 9, subpart 9.4, and those persons who Conviction. A judgment or conviction have been determined to be ineligible. of a criminal offense by any court of NASA. National Aeronautics and competent jurisdiction, whether en- tered upon a verdict or a plea, includ- Space Administration. ing a plea of nolo contendere. Notice. A written communication Debarment. An action taken by a de- served in person or sent by certified barring official in accordance with mail, return receipt requested, or its these regulations to exclude a person equivalent, to the last known address from participating in covered trans- of a party, its identified counsel, its actions. A person so excluded is agent for service of process, or any ‘‘debarred.’’ partner, officer, director, owner, or Debarring official. An official author- joint venturer of the party. Notice, if ized to impose debarment. The debar- undeliverable, shall be considered to ring official is either: have been received by the addressee (1) The agency head, or five days after being properly sent to (2) An official designated by the the last address known by the agency. agency head. Participant. Any person who submits Indictment. Indictment for a criminal a proposal for, enters into, or reason- offense. An information or other filing ably may be expected to enter into a by competent authority charging a covered transaction. This term also in- criminal offense shall be given the cludes any person who acts on behalf of same effect as an indictment. or is authorized to commit a partici- Ineligible. Excluded from participa- pant in a covered transaction as an tion in Federal nonprocurement pro- agent or representative of another par- grams pursuant to a determination of ticipant. ineligibility under statutory, executive Person. Any individual, corporation, order, or regulatory authority, other partnership, association, unit of gov- than Executive Order 12549 and its ernment or legal entity, however orga- agency implementing regulations; for nized, except: foreign governments or example, excluded pursuant to the foreign governmental entities, public Davis-Bacon Act and its implementing international organizations, foreign regulations, the equal employment op- government owned (in whole or in part)
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or controlled entities, and entities con- Program Fraud Civil Remedies Act sisting wholly or partially of foreign proceedings as may ensue. A person so governments or foreign governmental excluded is ‘‘suspended.’’ entities. Voluntary exclusion or voluntarily ex- Preponderance of the evidence. Proof cluded. A status of nonparticipation or by information that, compared with limited participation in covered trans- that opposing it, leads to the conclu- actions assumed by a person pursuant sion that the fact at issue is more prob- to the terms of a settlement. ably true than not. [53 FR 19176, 19204, May 26, 1988, as amended Principal. Officer, director, owner, at 60 FR 33041, 33044, June 26, 1995] partner, key employee, or other person within a participant with primary § 1265.110 Coverage. management or supervisory respon- (a) These regulations apply to all per- sibilities; or a person who has a critical sons who have participated, are cur- influence on or substantive control rently participating or may reasonably over a covered transaction, whether or be expected to participate in trans- not employed by the participant. Per- actions under Federal nonprocurement sons who have a critical influence on or programs. For purposes of these regula- substantive control over a covered tions such transactions will be referred transaction are: to as ‘‘covered transactions.’’ (1) Principal investigators. (1) Covered transaction. For purposes (2) [Reserved] of these regulations, a covered trans- Proposal. A solicited or unsolicited action is a primary covered transaction bid, application, request, invitation to or a lower tier covered transaction. consider or similar communication by Covered transactions at any tier need or on behalf of a person seeking to par- not involve the transfer of Federal ticipate or to receive a benefit, directly funds. or indirectly, in or under a covered (i) Primary covered transaction. Except transaction. as noted in paragraph (a)(2) of this sec- Respondent. A person against whom a tion, a primary covered transaction is debarment or suspension action has any nonprocurement transaction be- been initiated. tween an agency and a person, regard- State. Any of the States of the United less of type, including: grants, coopera- States, the District of Columbia, the tive agreements, scholarships, fellow- Commonwealth of Puerto Rico, any ships, contracts of assistance, loans, territory or possession of the United loan guarantees, subsidies, insurance, States, or any agency of a State, exclu- payments for specified use, donation sive of institutions of higher education, agreements and any other nonprocure- hospitals, and units of local govern- ment transactions between a Federal ment. A State instrumentality will be agency and a person. Primary covered considered part of the State govern- transactions also include those trans- ment if it has a written determination actions specially designated by the from a State government that such U.S. Department of Housing and Urban State considers that instrumentality Development in such agency’s regula- to be an agency of the State govern- tions governing debarment and suspen- ment. sion. Suspending official. An official au- (ii) Lower tier covered transaction. A thorized to impose suspension. The sus- lower tier covered transaction is: pending official is either: (A) Any transaction between a par- (1) The agency head, or ticipant and a person other than a pro- (2) An official designated by the curement contract for goods or serv- agency head. ices, regardless of type, under a pri- Suspension. An action taken by a sus- mary covered transaction. pending official in accordance with (B) Any procurement contract for these regulations that immediately ex- goods or services between a participant cludes a person from participating in and a person, regardless of type, ex- covered transactions for a temporary pected to equal or exceed the Federal period, pending completion of an inves- procurement small purchase threshold tigation and such legal, debarment, or fixed at 10 U.S.C. 2304(g) and 41 U.S.C.
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253(g) (currently $25,000) under a pri- pant or organizational elements of a mary covered transaction. participant would be automatically in- (C) Any procurement contract for cluded within a debarment or suspen- goods or services between a participant sion action, and the conditions under and a person under a covered trans- which affiliates or persons associated action, regardless of amount, under with a participant may also be brought which that person will have a critical within the scope of the action. influence on or substantive control (c) Relationship to Federal procurement over that covered transaction. Such activities. In accordance with E.O. 12689 persons are: and section 2455 of Public Law 103–355, (1) Principal investigators. any debarment, suspension, proposed (2) Providers of federally-required debarment or other governmentwide audit services. (2) Exceptions. The following trans- exclusion initiated under the Federal actions are not covered: Acquisition Regulation (FAR) on or (i) Statutory entitlements or manda- after August 25, 1995 shall be recog- tory awards (but not subtier awards nized by and effective for Executive thereunder which are not themselves Branch agencies and participants as an mandatory), including deposited funds exclusion under this regulation. Simi- insured by the Federal Government; larly, any debarment, suspension or (ii) Direct awards to foreign govern- other governmentwide exclusion initi- ments or public international organiza- ated under this regulation on or after tions, or transactions with foreign gov- August 25, 1995 shall be recognized by ernments or foreign governmental en- and effective for those agencies as a de- tities, public international organiza- barment or suspension under the FAR. tions, foreign government owned (in whole or in part) or controlled entities, [53 FR 19176, 19204, May 26, 1988, as amended entities consisting wholly or partially at 60 FR 33041, 33044, June 26, 1995] of foreign governments or foreign gov- § 1265.115 Policy. ernmental entities; (iii) Benefits to an individual as a (a) In order to protect the public in- personal entitlement without regard to terest, it is the policy of the Federal the individual’s present responsibility Government to conduct business only (but benefits received in an individual’s with responsible persons. Debarment business capacity are not excepted); and suspension are discretionary ac- (iv) Federal employment; tions that, taken in accordance with (v) Transactions pursuant to national Executive Order 12549 and these regula- or agency-recognized emergencies or tions, are appropriate means to imple- disasters; ment this policy. (vi) Incidental benefits derived from (b) Debarment and suspension are se- ordinary governmental operations; and rious actions which shall be used only (vii) Other transactions where the ap- in the public interest and for the Fed- plication of these regulations would be eral Government’s protection and not prohibited by law. for purposes of punishment. Agencies (b) Relationship to other sections. This may impose debarment or suspension section describes the types of trans- for the causes and in accordance with actions to which a debarment or sus- pension under the regulations will the procedures set forth in these regu- apply. Subpart B, ‘‘Effect of Action,’’ lations. § 1265.200, ‘‘Debarment or suspension,’’ (c) When more than one agency has sets forth the consequences of a debar- an interest in the proposed debarment ment or suspension. Those con- or suspension of a person, consider- sequences would obtain only with re- ation shall be given to designating one spect to participants and principals in agency as the lead agency for making the covered transactions and activities the decision. Agencies are encouraged described in § 1265.110(a). Sections to establish methods and procedures 1265.325, ‘‘Scope of debarment,’’ and for coordinating their debarment or 1265.420, ‘‘Scope of suspension,’’ govern suspension actions. the extent to which a specific partici-
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Subpart B—Effect of Action (7) Other transactions where the ap- plication of these regulations would be § 1265.200 Debarment or suspension. prohibited by law. (a) Primary covered transactions. Ex- [60 FR 33041, 33044, June 26, 1995] cept to the extent prohibited by law, persons who are debarred or suspended § 1265.205 Ineligible persons. shall be excluded from primary covered Persons who are ineligible, as defined transactions as either participants or in § 1265.105(i), are excluded in accord- principals throughout the Executive ance with the applicable statutory, ex- Branch of the Federal Government for ecutive order, or regulatory authority. the period of their debarment, suspen- sion, or the period they are proposed § 1265.210 Voluntary exclusion. for debarment under 48 CFR part 9, Persons who accept voluntary exclu- subpart 9.4. Accordingly, no agency sions under § 1265.315 are excluded in shall enter into primary covered trans- accordance with the terms of their set- actions with such excluded persons tlements. NASA shall, and participants during such period, except as permitted may, contact the original action agen- pursuant to § 1265.215. cy to ascertain the extent of the exclu- (b) Lower tier covered transactions. Ex- sion. cept to the extent prohibited by law, § 1265.215 Exception provision. persons who have been proposed for de- barment under 48 CFR part 9, subpart NASA may grant an exception per- 9.4, debarred or suspended shall be ex- mitting a debarred, suspended, or vol- cluded from participating as either untarily excluded person, or a person participants or principals in all lower proposed for debarment under 48 CFR tier covered transactions (see part 9, subpart 9.4, to participate in a particular covered transaction upon a § 1265.110(a)(1)(ii)) for the period of their written determination by the agency exclusion. head or an authorized designee stating (c) Exceptions. Debarment or suspen- the reason(s) for deviating from the sion does not affect a person’s eligi- Presidential policy established by Ex- bility for— ecutive Order 12549 and § 1265.200. How- (1) Statutory entitlements or manda- ever, in accordance with the Presi- tory awards (but not subtier awards dent’s stated intention in the Execu- thereunder which are not themselves tive Order, exceptions shall be granted mandatory), including deposited funds only infrequently. Exceptions shall be insured by the Federal Government; reported in accordance with (2) Direct awards to foreign govern- § 1265.505(a). ments or public international organiza- tions, or transactions with foreign gov- [60 FR 33041, 33044, June 26, 1995] ernments or foreign governmental en- § 1265.220 Continuation of covered tities, public international organiza- transactions. tions, foreign government owned (in (a) Notwithstanding the debarment, whole or in part) or controlled entities, suspension, proposed debarment under and entities consisting wholly or par- 48 CFR part 9, subpart 9.4, determina- tially of foreign governments or for- tion of ineligibility, or voluntary ex- eign governmental entities; clusion of any person by an agency, (3) Benefits to an individual as a per- agencies and participants may con- sonal entitlement without regard to tinue covered transactions in existence the individual’s present responsibility at the time the person was debarred, (but benefits received in an individual’s suspended, proposed for debarment business capacity are not excepted); under 48 CFR part 9, subpart 9.4, de- (4) Federal employment; clared ineligible, or voluntarily ex- (5) Transactions pursuant to national cluded. A decision as to the type of ter- or agency-recognized emergencies or mination action, if any, to be taken disasters; should be made only after thorough re- (6) Incidental benefits derived from view to ensure the propriety of the pro- ordinary governmental operations; and posed action.
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(b) Agencies and participants shall ered in making any debarment deci- not renew or extend covered trans- sion. actions (other than no-cost time exten- sions) with any person who is debarred, § 1265.305 Causes for debarment. suspended, proposed for debarment Debarment may be imposed in ac- under 48 CFR part 9, subpart 9.4, ineli- cordance with the provisions of gible or voluntary excluded, except as §§ 1265.300 through 1265.314 for: provided in § 1265.215. (a) Conviction of or civil judgment for: [60 FR 33041, 33044, June 26, 1995] (1) Commission of fraud or a criminal § 1265.225 Failure to adhere to restric- offense in connection with obtaining, tions. attempting to obtain, or performing a public or private agreement or trans- (a) Except as permitted under action; § 1265.215 or § 1265.220, a participant (2) Violation of Federal or State anti- shall not knowingly do business under trust statutes, including those pro- a covered transaction with a person scribing price fixing between competi- who is— tors, allocation of customers between (1) Debarred or suspended; competitors, and bid rigging; (2) Proposed for debarment under 48 (3) Commission of embezzlement, CFR part 9, subpart 9.4; or theft, forgery, bribery, falsification or (3) Ineligible for or voluntarily ex- destruction of records, making false cluded from the covered transaction. statements, receiving stolen property, (b) Violation of the restriction under making false claims, or obstruction of paragraph (a) of this section may re- justice; or sult in disallowance of costs, annul- (4) Commission of any other offense ment or termination of award, issuance indicating a lack of business integrity of a stop work order, debarment or sus- or business honesty that seriously and pension, or other remedies as appro- directly affects the present responsi- priate. bility of a person. (c) A participant may rely upon the (b) Violation of the terms of a public certification of a prospective partici- agreement or transaction so serious as pant in a lower tier covered trans- to affect the integrity of an agency action that it and its principals are not program, such as: debarred, suspended, proposed for de- (1) A willful failure to perform in ac- barment under 48 CFR part 9, subpart cordance with the terms of one or more 9.4, ineligible, or voluntarily excluded public agreements or transactions; from the covered transaction (See ap- (2) A history of failure to perform or pendix B of these regulations), unless it of unsatisfactory performance of one or knows that the certification is erro- more public agreements or trans- neous. An agency has the burden of actions; or proof that a participant did knowingly (3) A willful violation of a statutory do business with a person that filed an or regulatory provision or requirement erroneous certification. applicable to a public agreement or transaction. [60 FR 33041, 33044, June 26, 1995] (c) Any of the following causes: (1) A nonprocurement debarment by Subpart C—Debarment any Federal agency taken before Octo- ber 1, 1988, the effective date of these § 1265.300 General. regulations, or a procurement debar- The debarring official may debar a ment by any Federal agency taken pur- person for any of the causes in suant to 48 CFR subpart 9.4; § 1265.305, using procedures established (2) Knowingly doing business with a in §§ 1265.310 through 1265.314. The exist- debarred, suspended, ineligible, or vol- ence of a cause for debarment, how- untarily excluded person, in connection ever, does not necessarily require that with a covered transaction, except as the person be debarred; the seriousness permitted in § 1265.215 or § 1265.220; of the person’s acts or omissions and (3) Failure to pay a single substantial any mitigating factors shall be consid- debt, or a number of outstanding debts
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(including disallowed costs and over- (e) Of the potential effect of a debar- payments, but not including sums owed ment. the Federal Government under the In- ternal Revenue Code) owed to any Fed- § 1265.313 Opportunity to contest pro- eral agency or instrumentality, pro- posed debarment. vided the debt is uncontested by the (a) Submission in opposition. Within 30 debtor or, if contested, provided that days after receipt of the notice of pro- the debtor’s legal and administrative posed debarment, the respondent may remedies have been exhausted; submit, in person, in writing, or (4) Violation of a material provision through a representative, information of a voluntary exclusion agreement en- and argument in opposition to the pro- tered into under § 1265.315 or of any set- tlement of a debarment or suspension posed debarment. action; or (b) Additional proceedings as to dis- (5) Violation of any requirement of puted material facts. (1) In actions not subpart F of this part, relating to pro- based upon a conviction or civil judg- viding a drug-free workplace, as set ment, if the debarring official finds forth in § 1265.615 of this part. that the respondent’s submission in op- (d) Any other cause of so serious or position raises a genuine dispute over compelling a nature that it affects the facts material to the proposed debar- present responsibility of a person. ment, respondent(s) shall be afforded [53 FR 19177, 19204, May 26, 1988, as amended an opportunity to appear with a rep- at 54 FR 4950, 4954, Jan. 31, 1989] resentative, submit documentary evi- dence, present witnesses, and confront § 1265.310 Procedures. any witness the agency presents. NASA shall process debarment ac- (2) A transcribed record of any addi- tions as informally as practicable, con- tional proceedings shall be made avail- sistent with the principles of funda- able at cost to the respondent, upon re- mental fairness, using the procedures quest, unless the respondent and the in §§ 1265.311 through 1265.314. agency, by mutual agreement, waive the requirement for a transcript. § 1265.311 Investigation and referral. Information concerning the existence § 1265.314 Debarring official’s decision. of a cause for debarment from any (a) No additional proceedings necessary. source shall be promptly reported, in- In actions based upon a conviction or vestigated, and referred, when appro- civil judgment, or in which there is no priate, to the debarring official for con- genuine dispute over material facts, sideration. After consideration, the de- the debarring official shall make a de- barring official may issue a notice of cision on the basis of all the informa- proposed debarment. tion in the administrative record, in- § 1265.312 Notice of proposed debar- cluding any submission made by the re- ment. spondent. The decision shall be made within 45 days after receipt of any in- A debarment proceeding shall be ini- formation and argument submitted by tiated by notice to the respondent ad- vising: the respondent, unless the debarring (a) That debarment is being consid- official extends this period for good ered; cause. (b) Of the reasons for the proposed (b) Additional proceedings necessary. debarment in terms sufficient to put (1) In actions in which additional pro- the respondent on notice of the con- ceedings are necessary to determine duct or transaction(s) upon which it is disputed material facts, written find- based; ings of fact shall be prepared. The de- (c) Of the cause(s) relied upon under barring official shall base the decision § 1265.305 for proposing debarment; on the facts as found, together with (d) Of the provisions of § 1265.311 any information and argument sub- through § 1265.314, and any other NASA mitted by the respondent and any procedures, if applicable, governing de- other information in the administra- barment decisionmaking; and tive record.
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(2) The debarring official may refer § 1265.320 Period of debarment. disputed material facts to another offi- (a) Debarment shall be for a period cial for findings of fact. The debarring commensurate with the seriousness of official may reject any such findings, the cause(s). If a suspension precedes a in whole or in part, only after specifi- debarment, the suspension period shall cally determining them to be arbitrary be considered in determining the de- and capricious or clearly erroneous. barment period. (3) The debarring official’s decision (1) Debarment for causes other than shall be made after the conclusion of those related to a violation of the re- the proceedings with respect to dis- quirements of subpart F of this part puted facts. generally should not exceed three (c)(1) Standard of proof. In any debar- years. Where circumstances warrant, a ment action, the cause for debarment longer period of debarment may be im- must be established by a preponderance posed. of the evidence. Where the proposed de- (2) In the case of a debarment for a barment is based upon a conviction or violation of the requirements of sub- civil judgment, the standard shall be part F of this part (see § 1265.305(c)(5)), deemed to have been met. the period of debarment shall not ex- (2) Burden of proof. The burden of ceed five years. proof is on the agency proposing debar- (b) The debarring official may extend ment. an existing debarment for an addi- (d) Notice of debarring official’s deci- tional period, if that official deter- sion. (1) If the debarring official decides mines that an extension is necessary to to impose debarment, the respondent protect the public interest. However, a shall be given prompt notice: debarment may not be extended solely (i) Referring to the notice of proposed on the basis of the facts and cir- debarment; cumstances upon which the initial de- barment action was based. If debar- (ii) Specifying the reasons for debar- ment for an additional period is deter- ment; mined to be necessary, the procedures (iii) Stating the period of debarment, of §§ 1265.311 through 1265.314 shall be including effective dates; and followed to extend the debarment. (iv) Advising that the debarment is (c) The respondent may request the effective for covered transactions debarring official to reverse the debar- throughout the executive branch of the ment decision or to reduce the period Federal Government unless an agency or scope of debarment. Such a request head or an authorized designee makes shall be in writing and supported by the determination referred to in documentation. The debarring official § 1265.215. may grant such a request for reasons (2) If the debarring official decides including, but not limited to: not to impose debarment, the respond- (1) Newly discovered material evi- ent shall be given prompt notice of dence; that decision. A decision not to impose (2) Reversal of the conviction or civil debarment shall be without prejudice judgment upon which the debarment to a subsequent imposition of debar- was based; ment by any other agency. (3) Bona fide change in ownership or management; § 1265.315 Settlement and voluntary (4) Elimination of other causes for exclusion. which the debarment was imposed; or (a) When in the best interest of the (5) Other reasons the debarring offi- Government, NASA may, at any time, cial deems appropriate. settle a debarment or suspension ac- [53 FR 19177, 19204, May 26, 1988, as amended tion. at 54 FR 4950, 4954, Jan. 31, 1989] (b) If a participant and the agency agree to a voluntary exclusion of the § 1265.325 Scope of debarment. participant, such voluntary exclusion (a) Scope in general. (1) Debarment of shall be entered on the Nonprocure- a person under these regulations con- ment List (see subpart E). stitutes debarment of all its divisions
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and other organizational elements duct shall be evidence of such knowl- from all covered transactions, unless edge, approval, or acquiescence. the debarment decision is limited by its terms to one or more specifically Subpart D—Suspension identified individuals, divisions or other organizational elements or to § 1265.400 General. specific types of transactions. (a) The suspending official may sus- (2) The debarment action may in- pend a person for any of the causes in clude any affiliate of the participant § 1265.405 using procedures established that is specifically named and given in §§ 1265.410 through 1265.413. notice of the proposed debarment and (b) Suspension is a serious action to an opportunity to respond (see be imposed only when: §§ 1265.311 through 1265.314). (1) There exists adequate evidence of (b) Imputing conduct. For purposes of one or more of the causes set out in determining the scope of debarment, § 1265.405, and conduct may be imputed as follows: (2) Immediate action is necessary to (1) Conduct imputed to participant. The protect the public interest. fraudulent, criminal or other seriously (c) In assessing the adequacy of the improper conduct of any officer, direc- evidence, the agency should consider tor, shareholder, partner, employee, or how much information is available, other individual associated with a par- how credible it is given the cir- ticipant may be imputed to the partici- cumstances, whether or not important pant when the conduct occurred in con- allegations are corroborated, and what nection with the individual’s perform- inferences can reasonably be drawn as ance of duties for or on behalf of the a result. This assessment should in- participant, or with the participant’s clude an examination of basic docu- knowledge, approval, or acquiescence. ments such as grants, cooperative The participant’s acceptance of the agreements, loan authorizations, and benefits derived from the conduct shall contracts. be evidence of such knowledge, ap- proval, or acquiescence. § 1265.405 Causes for suspension. (2) Conduct imputed to individuals asso- (a) Suspension may be imposed in ac- ciated with participant. The fraudulent, cordance with the provisions of criminal, or other seriously improper §§ 1265.400 through 1265.413 upon ade- conduct of a participant may be im- quate evidence: puted to any officer, director, share- (1) To suspect the commission of an holder, partner, employee, or other in- offense listed in § 1265.305(a); or dividual associated with the partici- (2) That a cause for debarment under pant who participated in, knew of, or § 1265.305 may exist. had reason to know of the participant’s (b) Indictment shall constitute ade- conduct. quate evidence for purposes of suspen- (3) Conduct of one participant imputed sion actions. to other participants in a joint venture. The fraudulent, criminal, or other seri- § 1265.410 Procedures. ously improper conduct of one partici- (a) Investigation and referral. Informa- pant in a joint venture, grant pursuant tion concerning the existence of a to a joint application, or similar ar- cause for suspension from any source rangement may be imputed to other shall be promptly reported, inves- participants if the conduct occurred for tigated, and referred, when appro- or on behalf of the joint venture, grant priate, to the suspending official for pursuant to a joint application, or consideration. After consideration, the similar arrangement may be imputed suspending official may issue a notice to other participants if the conduct oc- of suspension. curred for or on behalf of the joint ven- (b) Decisionmaking process. NASA ture, grant pursuant to a joint applica- shall process suspension actions as in- tion, or similar arrangement or with formally as practicable, consistent the knowledge, approval, or acquies- with principles of fundamental fair- cence of these participants. Acceptance ness, using the procedures in § 1265.411 of the benefits derived from the con- through § 1265.413.
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§ 1265.411 Notice of suspension. and made available at cost to the re- When a respondent is suspended, no- spondent, upon request, unless the re- tice shall immediately be given: spondent and the agency, by mutual (a) That suspension has been im- agreement, waive the requirement for a posed; transcript. (b) That the suspension is based on an indictment, conviction, or other § 1265.413 Suspending official’s deci- adequate evidence that the respondent sion. has committed irregularities seriously The suspending official may modify reflecting on the propriety of further or terminate the suspension (for exam- Federal Government dealings with the ple, see § 1265.320(c) for reasons for re- respondent; ducing the period or scope of debar- (c) Describing any such irregularities ment) or may leave it in force. How- in terms sufficient to put the respond- ever, a decision to modify or terminate ent on notice without disclosing the the suspension shall be without preju- Federal Government’s evidence; dice to the subsequent imposition of (d) Of the cause(s) relied upon under suspension by any other agency or de- § 1265.405 for imposing suspension; (e) That the suspension is for a tem- barment by any agency. The decision porary period pending the completion shall be rendered in accordance with of an investigation or ensuing legal, de- the following provisions: barment, or Program Fraud Civil Rem- (a) No additional proceedings necessary. edies Act proceedings; In actions: based on an indictment, (f) Of the provisions of § 1265.411 conviction, or civil judgment; in which through § 1265.413 and any other NASA there is no genuine dispute over mate- procedures, if applicable, governing rial facts; or in which additional pro- suspension decisionmaking; and ceedings to determine disputed mate- (g) Of the effect of the suspension. rial facts have been denied on the basis of Department of Justice advice, the § 1265.412 Opportunity to contest sus- suspending official shall make a deci- pension. sion on the basis of all the information (a) Submission in opposition. Within 30 in the administrative record, including days after receipt of the notice of sus- any submission made by the respond- pension, the respondent may submit, in ent. The decision shall be made within person, in writing, or through a rep- 45 days after receipt of any information resentative, information and argument and argument submitted by the re- in opposition to the suspension. (b) Additional proceedings as to dis- spondent, unless the suspending official puted material facts. (1) If the sus- extends this period for good cause. pending official finds that the respond- (b) Additional proceedings necessary. ent’s submission in opposition raises a (1) In actions in which additional pro- genuine dispute over facts material to ceedings are necessary to determine the suspension, respondent(s) shall be disputed material facts, written find- afforded an opportunity to appear with ings of fact shall be prepared. The sus- a representative, submit documentary pending official shall base the decision evidence, present witnesses, and con- on the facts as found, together with front any witness the agency presents, any information and argument sub- unless: mitted by the respondent and any (i) The action is based on an indict- other information in the administra- ment, conviction or civil judgment, or tive record. (ii) A determination is made, on the (2) The suspending official may refer basis of Department of Justice advice, matters involving disputed material that the substantial interests of the facts to another official for findings of Federal Government in pending or con- fact. The suspending official may re- templated legal proceedings based on ject any such findings, in whole or in the same facts as the suspension would part, only after specifically deter- be prejudiced. (2) A transcribed record of any addi- mining them to be arbitrary or capri- tional proceedings shall be prepared cious or clearly erroneous.
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(c) Notice of suspending official’s deci- when more than one name is involved sion. Prompt written notice of the sus- in a single action; pending official’s decision shall be sent (2) The type of action; to the respondent. (3) The cause for the action; (4) The scope of the action; § 1265.415 Period of suspension. (5) Any termination date for each (a) Suspension shall be for a tem- listing; and porary period pending the completion (6) The agency and name and tele- of an investigation or ensuing legal, de- phone number of the agency point of barment, or Program Fraud Civil Rem- contact for the action. edies Act proceedings, unless termi- nated sooner by the suspending official § 1265.505 NASA responsibilities. or as provided in paragraph (b) of this (a) The agency shall provide GSA section. with current information concerning (b) If legal or administrative pro- debarments, suspension, determina- ceedings are not initiated within 12 tions of ineligibility, and voluntary ex- months after the date of the suspension clusions it has taken. Until February notice, the suspension shall be termi- 18, 1989, the agency shall also provide nated unless an Assistant Attorney GSA and OMB with information con- General or United States Attorney re- cerning all transactions in which quests its extension in writing, in NASA has granted exceptions under which case it may be extended for an § 1265.215 permitting participation by additional six months. In no event may debarred, suspended, or voluntarily ex- a suspension extend beyond 18 months, cluded persons. unless such proceedings have been ini- (b) Unless an alternative schedule is tiated within that period. agreed to by GSA, the agency shall ad- (c) The suspending official shall no- vise GSA of the information set forth tify the Department of Justice of an in § 1265.500(b) and of the exceptions impending termination of a suspension, granted under § 1265.215 within five at least 30 days before the 12-month pe- working days after taking such ac- riod expires, to give that Department tions. an opportunity to request an exten- (c) The agency shall direct inquiries sion. concerning listed persons to the agency that took the action. § 1265.420 Scope of suspension. (d) Agency officials shall check the The scope of a suspension is the same Nonprocurement List before entering as the scope of a debarment (see covered transactions to determine § 1265.325), except that the procedures of whether a participant in a primary §§ 1265.410 through 1265.413 shall be used transaction is debarred, suspended, in- in imposing a suspension. eligible, or voluntarily excluded (Tel. #). Subpart E—Responsibilities of GSA, (e) Agency officials shall check the Agency and Participants Nonprocurement List before approving principals or lower tier participants § 1265.500 GSA responsibilities. where agency approval of the principal (a) In accordance with the OMB or lower tier participant is required guidelines, GSA shall compile, main- under the terms of the transaction, to tain, and distribute a list of all persons determine whether such principals or who have been debarred, suspended, or participants are debarred, suspended, voluntarily excluded by agencies under ineligible, or voluntarily excluded. Executive Order 12549 and these regula- tions, and those who have been deter- § 1265.510 Participants’ responsibil- mined to be ineligible. ities. (b) At a minimum, this list shall in- (a) Certification by participants in pri- dicate: mary covered transactions. Each partici- (1) The names and addresses of all pant shall submit the certification in debarred, suspended, ineligible, and appendix A to this part for it and its voluntarily excluded persons, in alpha- principals at the time the participant betical order, with cross-references submits its proposal in connection with
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a primary covered transaction, except § 1265.600 Purpose. that States need only complete such (a) The purpose of this subpart is to certification as to their principals. carry out the Drug-Free Workplace Act Participants may decide the method of 1988 by requiring that— and frequency by which they determine the eligibility of their principals. In (1) A grantee, other than an indi- addition, each participant may, but is vidual, shall certify to the agency that not required to, check the Nonprocure- it will provide a drug-free workplace; ment List for its principals (Tel. #). (2) A grantee who is an individual Adverse information on the certifi- shall certify to the agency that, as a cation will not necessarily result in de- condition of the grant, he or she will nial of participation. However, the cer- not engage in the unlawful manufac- tification, and any additional informa- ture, distribution, dispensing, posses- tion pertaining to the certification sion or use of a controlled substance in submitted by the participant, shall be conducting any activity with the considered in the administration of grant. covered transactions. (b) Requirements implementing the (b) Certification by participants in Drug-Free Workplace Act of 1988 for lower tier covered transactions. (1) Each contractors with the agency are found participant shall require participants at 48 CFR subparts 9.4, 23.5, and 52.2. in lower tier covered transactions to include the certification in appendix B § 1265.605 Definitions. to this part for it and its principals in (a) Except as amended in this sec- any proposal submitted in connection tion, the definitions of § 1265.105 apply with such lower tier covered trans- to this subpart. actions. (b) For purposes of this subpart— (2) A participant may rely upon the (1) Controlled substance means a con- certification of a prospective partici- trolled substance in schedules I pant in a lower tier covered trans- action that it and its principals are not through V of the Controlled Substances debarred, suspended, ineligible, or vol- Act (21 U.S.C. 812), and as further de- untarily excluded from the covered fined by regulation at 21 CFR 1308.11 transaction by any Federal agency, un- through 1308.15; less it knows that the certification is (2) Conviction means a finding of guilt erroneous. Participants may decide the (including a plea of nolo contendere) or method and frequency by which they imposition of sentence, or both, by any determine the eligiblity of their prin- judicial body charged with the respon- cipals. In addition, a participant may, sibility to determine violations of the but is not required to, check the Non- Federal or State criminal drug stat- procurement List for its principals and utes; for participants (Tel. ). (3) Criminal drug statute means a Fed- (c) Changed circumstances regarding eral or non-Federal criminal statute certification. A participant shall provide involving the manufacture, distribu- immediate written notice to NASA if tion, dispensing, use, or possession of at any time the participant learns that any controlled substance; its certification was erroneous when (4) Drug-free workplace means a site submitted or has become erroneous by for the performance of work done in reason of changed circumstances. Par- connection with a specific grant at ticipants in lower tier covered trans- which employees of the grantee are actions shall provide the same updated prohibited from engaging in the unlaw- notice to the participant to which it ful manufacture, distribution, dis- submitted its proposals. pensing, possession, or use of a con- trolled substance; Subpart F—Drug-Free Workplace (5) Employee means the employee of a Requirements (Grants) grantee directly engaged in the per- formance of work under the grant, in- SOURCE: 55 FR 21688, 21692, May 25, 1990, un- cluding: less otherwise noted. (i) All direct charge employees;
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(ii) All indirect charge employees, un- er education, hospitals, and units of less their impact or involvement is in- local government. A State instrumen- significant to the performance of the tality will be considered part of the grant; and, State government if it has a written (iii) Temporary personnel and con- determination from a State govern- sultants who are directly engaged in ment that such State considers the in- the performance of work under the strumentality to be an agency of the grant and who are on the grantee’s State government. payroll. This definition does not include work- § 1265.610 Coverage. ers not on the payroll of the grantee (a) This subpart applies to any grant- (e.g., volunteers, even if used to meet a ee of the agency. matching requirement; consultants or (b) This subpart applies to any grant, independent contractors not on the except where application of this sub- payroll; or employees of subrecipients part would be inconsistent with the or subcontractors in covered work- international obligations of the United places); States or the laws or regulations of a (6) Federal agency or agency means foreign government. A determination any United States executive depart- of such inconsistency may be made ment, military department, govern- only by the agency head or his/her des- ment corporation, government con- ignee. trolled corporation, any other estab- lishment in the executive branch (in- (c) The provisions of subparts A, B, C, cluding the Executive Office of the D and E of this part apply to matters President), or any independent regu- covered by this subpart, except where latory agency; specifically modified by this subpart. (7) Grant means an award of financial In the event of any conflict between assistance, including a cooperative provisions of this subpart and other agreement, in the form of money, or provisions of this part, the provisions property in lieu of money, by a Federal of this subpart are deemed to control agency directly to a grantee. The term with respect to the implementation of grant includes block grant and entitle- drug-free workplace requirements con- ment grant programs, whether or not cerning grants. exempted from coverage under the § 1265.615 Grounds for suspension of grants management government-wide payments, suspension or termi- common rule on uniform administra- nation of grants, or suspension or tive requirements for grants and coop- debarment. erative agreements. The term does not include technical assistance that pro- A grantee shall be deemed in viola- vides services instead of money, or tion of the requirements of this sub- other assistance in the form of loans, part if the agency head or his or her of- loan guarantees, interest subsidies, in- ficial designee determines, in writing, surance, or direct appropriations; or that— any veterans’ benefits to individuals, (a) The grantee has made a false cer- i.e., any benefit to veterans, their fami- tification under § 1265.630; lies, or survivors by virtue of the serv- (b) With respect to a grantee other ice of a veteran in the Armed Forces of than an individual— the United States; (1) The grantee has violated the cer- (8) Grantee means a person who ap- tification by failing to carry out the plies for or receives a grant directly requirements of paragraphs (A)(a)–(g) from a Federal agency (except another and/or (B) of the certification (alter- Federal agency); nate I to appendix C) or (9) Individual means a natural person; (2) Such a number of employees of (10) State means any of the States of the grantee have been convicted of vio- the United States, the District of Co- lations of criminal drug statutes for lumbia, the Commonwealth of Puerto violations occurring in the workplace Rico, any territory or possession of the as to indicate that the grantee has United States, or any agency of a failed to make a good faith effort to State, exclusive of institutions of high- provide a drug-free workplace.
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(c) With respect to a grantee who is time drug-free workplace certification an individual— for a non-automatic continuation of (1) The grantee has violated the cer- such a grant made on or after March tification by failing to carry out its re- 18, 1989. quirements (alternate II to appendix (b) Except as provided in this section, C); or all grantees shall make the required (2) The grantee is convicted of a certification for each grant. For man- criminal drug offense resulting from a datory formula grants and entitle- violation occurring during the conduct ments that have no application proc- of any grant activity. ess, grantees shall submit a one-time certification in order to continue re- § 1265.620 Effect of violation. ceiving awards. (a) In the event of a violation of this (c) A grantee that is a State may subpart as provided in § 1265.615, and in elect to make one certification in each accordance with applicable law, the Federal fiscal year. States that pre- grantee shall be subject to one or more viously submitted an annual certifi- of the following actions: cation are not required to make a cer- (1) Suspension of payments under the tification for Fiscal Year 1990 until grant; June 30, 1990. Except as provided in (2) Suspension or termination of the paragraph (d) of this section, this cer- grant; and tification shall cover all grants to all (3) Suspension or debarment of the State agencies from any Federal agen- grantee under the provisions of this cy. The State shall retain the original part. of this statewide certification in its (b) Upon issuance of any final deci- Governor’s office and, prior to grant sion under this part requiring debar- award, shall ensure that a copy is sub- ment of a grantee, the debarred grant- mitted individually with respect to ee shall be ineligible for award of any each grant, unless the Federal agency grant from any Federal agency for a has designated a central location for period specified in the decision, not to submission. exceed five years (see § 1265.320(a)(2) of (d)(1) The Governor of a State may this part). exclude certain State agencies from the statewide certification and author- § 1265.625 Exception provision. ize these agencies to submit their own The agency head may waive with re- certifications to Federal agencies. The spect to a particular grant, in writing, statewide certification shall name any a suspension of payments under a State agencies so excluded. grant, suspension or termination of a (2) A State agency to which the grant, or suspension or debarment of a statewide certification does not apply, grantee if the agency head determines or a State agency in a State that does that such a waiver would be in the pub- not have a statewide certification, may lic interest. This exception authority elect to make one certification in each cannot be delegated to any other offi- Federal fiscal year. State agencies that cial. previously submitted a State agency certification are not required to make § 1265.630 Certification requirements a certification for Fiscal Year 1990 and procedures. until June 30, 1990. The State agency (a)(1) As a prior condition of being shall retain the original of this State awarded a grant, each grantee shall agency-wide certification in its central make the appropriate certification to office and, prior to grant award, shall the Federal agency providing the ensure that a copy is submitted indi- grant, as provided in appendix C to this vidually with respect to each grant, part. unless the Federal agency designates a (2) Grantees are not required to make central location for submission. a certification in order to continue re- (3) When the work of a grant is done ceiving funds under a grant awarded by more than one State agency, the before March 18, 1989, or under a no- certification of the State agency di- cost time extension of such a grant. rectly receiving the grant shall be However, the grantee shall make a one- deemed to certify compliance for all
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workplaces, including those located in the conduct of any grant activity shall other State agencies. report the conviction, in writing, with- (e)(1) For a grant of less than 30 days in 10 calendar days, to his or her Fed- performance duration, grantees shall eral agency grant officer, or other des- have this policy statement and pro- ignee, unless the Federal agency has gram in place as soon as possible, but designated a central point for the re- in any case by a date prior to the date ceipt of such notices. Notification shall on which performance is expected to be include the identification number(s) completed. for each of the Federal agency’s af- (2) For a grant of 30 days or more per- fected grants. formance duration, grantees shall have (Approved by the Office of Management and this policy statement and program in Budget under control number 0991–0002) place within 30 days after award. (3) Where extraordinary cir- APPENDIX A TO PART 1265—CERTIFI- cumstances warrant for a specific CATION REGARDING DEBARMENT, grant, the grant officer may determine SUSPENSION, AND OTHER RESPONSI- a different date on which the policy BILITY MATTERS—PRIMARY COVERED statement and program shall be in TRANSACTIONS place. Instructions for Certification § 1265.635 Reporting of and employee 1. By signing and submitting this proposal, sanctions for convictions of crimi- the prospective primary participant is pro- nal drug offenses. viding the certification set out below. (a) When a grantee other than an in- 2. The inability of a person to provide the certification required below will not nec- dividual is notified that an employee essarily result in denial of participation in has been convicted for a violation of a this covered transaction. The prospective criminal drug statute occurring in the participant shall submit an explanation of workplace, it shall take the following why it cannot provide the certification set actions: out below. The certification or explanation (1) Within 10 calendar days of receiv- will be considered in connection with the de- ing notice of the conviction, the grant- partment or agency’s determination whether ee shall provide written notice, includ- to enter into this transaction. However, fail- ure of the prospective primary participant to ing the convicted employee’s position furnish a certification or an explanation title, to every grant officer, or other shall disqualify such person from participa- designee on whose grant activity the tion in this transaction. convicted employee was working, un- 3. The certification in this clause is a ma- less a Federal agency has designated a terial representation of fact upon which reli- central point for the receipt of such no- ance was placed when the department or tifications. Notification shall include agency determined to enter into this trans- the identification number(s) for each of action. If it is later determined that the pro- spective primary participant knowingly ren- the Federal agency’s affected grants. dered an erroneous certification, in addition (2) Within 30 calendar days of receiv- to other remedies available to the Federal ing notice of the conviction, the grant- Government, the department or agency may ee shall do the following with respect terminate this transaction for cause or de- to the employee who was convicted. fault. (i) Take appropriate personnel action 4. The prospective primary participant against the employee, up to and includ- shall provide immediate written notice to the department or agency to which this pro- ing termination, consistent with re- posal is submitted if at any time the pro- quirements of the Rehabilitation Act spective primary participant learns that its of 1973, as amended; or certification was erroneous when submitted (ii) Require the employee to partici- or has become erroneous by reason of pate satisfactorily in a drug abuse as- changed circumstances. sistance or rehabilitation program ap- 5. The terms covered transaction, debarred, proved for such purposes by a Federal, suspended, ineligible, lower tier covered trans- State, or local health, law enforce- action, participant, person, primary covered transaction, principal, proposal, and volun- ment, or other appropriate agency. tarily excluded, as used in this clause, have (b) A grantee who is an individual the meanings set out in the Definitions and who is convicted for a violation of a Coverage sections of the rules implementing criminal drug statute occurring during Executive Order 12549. You may contact the
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department or agency to which this proposal Certification Regarding Debarment, Suspension, is being submitted for assistance in obtain- and Other Responsibility Matters—Primary ing a copy of those regulations. Covered Transactions 6. The prospective primary participant (1) The prospective primary participant agrees by submitting this proposal that, certifies to the best of its knowledge and be- should the proposed covered transaction be lief, that it and its principals: entered into, it shall not knowingly enter (a) Are not presently debarred, suspended, into any lower tier covered transaction with proposed for debarment, declared ineligible, a person who is proposed for debarment or voluntarily excluded by any Federal de- under 48 CFR part 9, subpart 9.4, debarred, partment or agency; suspended, declared ineligible, or voluntarily (b) Have not within a three-year period excluded from participation in this covered preceding this proposal been convicted of or transaction, unless authorized by the depart- had a civil judgment rendered against them ment or agency entering into this trans- for commission of fraud or a criminal offense action. in connection with obtaining, attempting to obtain, or performing a public (Federal, 7. The prospective primary participant fur- State or local) transaction or contract under ther agrees by submitting this proposal that a public transaction; violation of Federal or it will include the clause titled ‘‘Certifi- State antitrust statutes or commission of cation Regarding Debarment, Suspension, embezzlement, theft, forgery, bribery, fal- Ineligibility and Voluntary Exclusion-Lower sification or destruction of records, making Tier Covered Transaction,’’ provided by the false statements, or receiving stolen prop- department or agency entering into this cov- erty; ered transaction, without modification, in (c) Are not presently indicted for or other- all lower tier covered transactions and in all wise criminally or civilly charged by a gov- solicitations for lower tier covered trans- ernmental entity (Federal, State or local) actions. with commission of any of the offenses enu- 8. A participant in a covered transaction merated in paragraph (1)(b) of this certifi- may rely upon a certification of a prospec- cation; and tive participant in a lower tier covered (d) Have not within a three-year period transaction that it is not proposed for debar- preceding this application/proposal had one ment under 48 CFR part 9, subpart 9.4, or more public transactions (Federal, State debarred, suspended, ineligible, or volun- or local) terminated for cause or default. (2) Where the prospective primary partici- tarily excluded from the covered trans- pant is unable to certify to any of the state- action, unless it knows that the certification ments in this certification, such prospective is erroneous. A participant may decide the participant shall attach an explanation to method and frequency by which it deter- this proposal. mines the eligibility of its principals. Each participant may, but is not required to, [60 FR 33042, 33044, June 26, 1995] check the List of Parties Excluded from Fed- eral Procurement and Nonprocurement Pro- APPENDIX B TO PART 1265—CERTIFI- grams. CATION REGARDING DEBARMENT, 9. Nothing contained in the foregoing shall SUSPENSION, INELIGIBILITY AND VOL- be construed to require establishment of a UNTARY EXCLUSION—LOWER TIER system of records in order to render in good COVERED TRANSACTIONS faith the certification required by this Instructions for Certification clause. The knowledge and information of a participant is not required to exceed that 1. By signing and submitting this proposal, which is normally possessed by a prudent the prospective lower tier participant is pro- person in the ordinary course of business viding the certification set out below. dealings. 2. The certification in this clause is a ma- 10. Except for transactions authorized terial representation of fact upon which reli- under paragraph 6 of these instructions, if a ance was placed when this transaction was entered into. If it is later determined that participant in a covered transaction know- the prospective lower tier participant know- ingly enters into a lower tier covered trans- ingly rendered an erroneous certification, in action with a person who is proposed for de- addition to other remedies available to the barment under 48 CFR part 9, subpart 9.4, Federal Government the department or suspended, debarred, ineligible, or volun- agency with which this transaction origi- tarily excluded from participation in this nated may pursue available remedies, includ- transaction, in addition to other remedies ing suspension and/or debarment. available to the Federal Government, the de- 3. The prospective lower tier participant partment or agency may terminate this shall provide immediate written notice to transaction for cause or default. the person to which this proposal is sub- mitted if at any time the prospective lower
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tier participant learns that its certification dition to other remedies available to the was erroneous when submitted or had be- Federal Government, the department or come erroneous by reason of changed cir- agency with which this transaction origi- cumstances. nated may pursue available remedies, includ- 4. The terms covered transaction, debarred, ing suspension and/or debarment. suspended, ineligible, lower tier covered trans- action, participant, person, primary covered Certification Regarding Debarment, Suspension, transaction, principal, proposal, and volun- Ineligibility an Voluntary Exclusion—Lower tarily excluded, as used in this clause, have Tier Covered Transactions the meaning set out in the Definitions and (1) The prospective lower tier participant Coverage sections of rules implementing Ex- certifies, by submission of this proposal, that ecutive Order 12549. You may contact the neither it nor its principals is presently person to which this proposal is submitted debarred, suspended, proposed for debarment, for assistance in obtaining a copy of those declared ineligible, or voluntarily excluded regulations. from participation in this transaction by any 5. The prospective lower tier participant Federal department or agency. agrees by submitting this proposal that, (2) Where the prospective lower tier partic- should the proposed covered transaction be ipant is unable to certify to any of the state- entered into, it shall not knowingly enter ments in this certification, such prospective into any lower tier covered transaction with participant shall attach an explanation to a person who is proposed for debarment this proposal. under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily [60 FR 33042, 33044, June 26, 1995] excluded from participation in this covered transaction, unless authorized by the depart- APPENDIX C TO PART 1265—CERTIFI- ment or agency with which this transaction CATION REGARDING DRUG-FREE originated. WORKPLACE REQUIREMENTS 6. The prospective lower tier participant further agrees by submitting this proposal Instructions for Certification that it will include this clause titled ‘‘Cer- 1. By signing and/or submitting this appli- tification Regarding Debarment, Suspension, cation or grant agreement, the grantee is Ineligibility and Voluntary Exclusion-Lower providing the certification set out below. Tier Covered Transaction,’’ without modi- 2. The certification set out below is a ma- fication, in all lower tier covered trans- terial representation of fact upon which reli- actions and in all solicitations for lower tier ance is placed when the agency awards the covered transactions. grant. If it is later determined that the 7. A participant in a covered transaction grantee knowingly rendered a false certifi- may rely upon a certification of a prospec- cation, or otherwise violates the require- tive participant in a lower tier covered ments of the Drug-Free Workplace Act, the transaction that it is not proposed for debar- agency, in addition to any other remedies ment under 48 CFR part 9, subpart 9.4, available to the Federal Government, may debarred, suspended, ineligible, or volun- take action authorized under the Drug-Free tarily excluded from covered transactions, Workplace Act. unless it knows that the certification is erro- 3. For grantees other than individuals, Al- neous. A participant may decide the method ternate I applies. and frequency by which it determines the 4. For grantees who are individuals, Alter- eligibility of its principals. Each participant nate II applies. may, but is not required to, check the List of 5. Workplaces under grants, for grantees Parties Excluded from Federal Procurement other than individuals, need not be identified and Nonprocurement Programs. on the certification. If known, they may be 8. Nothing contained in the foregoing shall identified in the grant application. If the be construed to require establishment of a grantee does not identify the workplaces at system of records in order to render in good the time of application, or upon award, if faith the certification required by this there is no application, the grantee must clause. The knowledge and information of a keep the identity of the workplace(s) on file participant is not required to exceed that in its office and make the information avail- which is normally possessed by a prudent able for Federal inspection. Failure to iden- person in the ordinary course of business tify all known workplaces constitutes a vio- dealings. lation of the grantee’s drug-free workplace 9. Except for transactions authorized under requirements. paragraph 5 of these instructions, if a partic- 6. Workplace identifications must include ipant in a covered transaction knowingly en- the actual address of buildings (or parts of ters into a lower tier covered transaction buildings) or other sites where work under with a person who is proposed for debarment the grant takes place. Categorical descrip- under 48 CFR part 9, subpart 9.4, suspended, tions may be used (e.g., all vehicles of a mass debarred, ineligible, or voluntarily excluded transit authority or State highway depart- from participation in this transaction, in ad- ment while in operation, State employees in
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each local unemployment office, performers (2) The grantee’s policy of maintaining a in concert halls or radio studios). drug-free workplace; 7. If the workplace identified to the agency (3) Any available drug counseling, rehabili- changes during the performance of the grant, tation, and employee assistance programs; the grantee shall inform the agency of the and change(s), if it previously identified the (4) The penalties that may be imposed workplaces in question (see paragraph five). upon employees for drug abuse violations oc- 8. Definitions of terms in the Nonprocure- curring in the workplace; ment Suspension and Debarment common (c) Making it a requirement that each em- rule and Drug-Free Workplace common rule ployee to be engaged in the performance of apply to this certification. Grantees’ atten- the grant be given a copy of the statement tion is called, in particular, to the following required by paragraph (a); definitions from these rules: (d) Notifying the employee in the state- Controlled substance means a controlled ment required by paragraph (a) that, as a substance in Schedules I through V of the condition of employment under the grant, Controlled Substances Act (21 U.S.C. 812) and the employee will— as further defined by regulation (21 CFR (1) Abide by the terms of the statement; 1308.11 through 1308.15); and Conviction means a finding of guilt (includ- (2) Notify the employer in writing of his or ing a plea of nolo contendere) or imposition her conviction for a violation of a criminal of sentence, or both, by any judicial body drug statute occurring in the workplace no charged with the responsibility to determine later than five calendar days after such con- violations of the Federal or State criminal viction; drug statutes; (e) Notifying the agency in writing, within Criminal drug statute means a Federal or ten calendar days after receiving notice non-Federal criminal statute involving the under paragraph (d)(2) from an employee or manufacture, distribution, dispensing, use, otherwise receiving actual notice of such or possession of any controlled substance; conviction. Employers of convicted employ- Employee means the employee of a grantee ees must provide notice, including position directly engaged in the performance of work title, to every grant officer or other designee under a grant, including: (i) All direct charge on whose grant activity the convicted em- employees; (ii) All indirect charge employees ployee was working, unless the Federal agen- unless their impact or involvement is insig- cy has designated a central point for the re- nificant to the performance of the grant; ceipt of such notices. Notice shall include and, (iii) Temporary personnel and consult- the identification number(s) of each affected ants who are directly engaged in the per- grant; formance of work under the grant and who (f) Taking one of the following actions, are on the grantee’s payroll. This definition within 30 calendar days of receiving notice does not include workers not on the payroll under paragraph (d)(2), with respect to any of the grantee (e.g., volunteers, even if used employee who is so convicted— (1) Taking appropriate personnel action to meet a matching requirement; consult- against such an employee, up to and includ- ants or independent contractors not on the ing termination, consistent with the require- grantee’s payroll; or employees of subrecipi- ments of the Rehabilitation Act of 1973, as ents or subcontractors in covered work- amended; or places). (2) Requiring such employee to participate Certification Regarding Drug-Free Workplace satisfactorily in a drug abuse assistance or Requirements rehabilitation program approved for such purposes by a Federal, State, or local health, Alternate I. (GRANTEES OTHER THAN law enforcement, or other appropriate agen- INDIVIDUALS) cy; (g) Making a good faith effort to continue A. The grantee certifies that it will or will to maintain a drug-free workplace through continue to provide a drug-free workplace implementation of paragraphs (a), (b), (c), by: (d), (e) and (f). (a) Publishing a statement notifying em- B. The grantee may insert in the space pro- ployees that the unlawful manufacture, dis- vided below the site(s) for the performance of tribution, dispensing, possession, or use of a work done in connection with the specific controlled substance is prohibited in the grant: grantee’s workplace and specifying the ac- tions that will be taken against employees Place of Performance (Street address, city, for violation of such prohibition; county, state, zip code) (b) Establishing an ongoing drug-free llllllllllllllllllllllll awareness program to inform employees llllllllllllllllllllllll about— llllllllllllllllllllllll (1) The dangers of drug abuse in the work- Check b if there are workplaces on file that place; are not identified here.
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Alternate II. (GRANTEES WHO ARE Intergovernmental Agreement and the INDIVIDUALS) memoranda of understanding between (a) The grantee certifies that, as a condi- the U.S. and its respective inter- tion of the grant, he or she will not engage national partners on Space Station in the unlawful manufacture, distribution, Freedom. The provisions at § 1266.103 of dispensing, possession, or use of a controlled this part provide the regulatory basis substance in conducting any activity with for cross-waiver clauses to be incor- the grant; (b) If convicted of a criminal drug offense porated in agreements for Shuttle resulting from a violation occurring during launch services that do not involve ac- the conduct of any grant activity, he or she tivities in connection with Space Sta- will report the conviction, in writing, within tion Freedom. The provisions at 10 calendar days of the conviction, to every § 1266.104 of this part provide the regu- grant officer or other designee, unless the latory basis for cross-waiver clauses to Federal agency designates a central point for be incorporated in agreements for the receipt of such notices. When notice is made to such a central point, it shall include NASA ELV program launches that do the identification number(s) of each affected not involve activities in connection grant. with Space Station Freedom. [55 FR 21690, 21692, May 25, 1990] § 1266.102 Cross-waiver of liability for Space Station Freedom activities. PART 1266—CROSS-WAIVER OF (a) The objective of this section is to LIABILITY establish a cross-waiver of liability (‘‘cross-waiver’’) by the Partner States Sec. and related entities in the interest of 1266.100 Purpose. encouraging participation in explo- 1266.101 Scope. 1266.102 Cross-waiver of liability for Space ration, exploitation, and use of outer Station Freedom activities. space through the Space Station. This 1266.103 Cross-waiver of liability during cross-waiver of liability shall be broad- Shuttle operations. ly construed to achieve this objective. 1266.104 Cross-waiver of liability for NASA (b) For the purposes of this section: expendable launch vehicle (ELV) pro- (1)(i) A Partner State is each con- gram launches. tracting Party for which the ‘‘Agree- AUTHORITY: 42 U.S.C. 2473 (c)(1) and (c)(5). ment among the Government of the SOURCE: 56 FR 48430, Sept. 25, 1991, unless United States of America, Govern- otherwise noted. ments of Member States of the Euro- pean Space Agency, the Government of § 1266.100 Purpose. Japan, and the Government of Canada The purpose of this regulation is to on Cooperation in the Detailed Design, ensure that consistent cross-waivers of Development, Operation, and Utiliza- liability are included in NASA agree- tion of the Permanently Manned Civil ments for Space Station Freedom ac- Space Station’’ (the ‘‘Intergovern- tivities, Shuttle launch services, and mental Agreement’’) has entered into NASA Expendable Launch Vehicle force, in accordance with Article 25 of (ELV) program launches. the Intergovernmental Agreement. (ii) A Partner State includes its Co- § 1266.101 Scope. operating Agency. The National Aero- These provisions at § 1266.102, con- nautics and Space Administration tained in Article 16 of the ‘‘Intergov- (NASA) for the United States, the Eu- ernmental Agreement among the ropean Space Agency (ESA) for the Eu- United States, the Governments of ropean Governments, the Canadian Member States of the European Space Space Agency (CSA) for the Govern- Agency, the Government of Japan, and ment of Canada, and the Science and the Government of Canada on Coopera- Technology Agency of Japan (STA) are tion in the Detailed Design, Develop- the Cooperating Agencies responsible ment, Operation and Utilization of the for implementing Space Station co- Permanently Manned Civil Space Sta- operation. A Partner State also in- tion,’’ form the regulatory basis for cludes any entity specified in the cross-waivers to be incorporated in Memorandum of Understanding (MOU) NASA agreements implementing the between NASA and the Government of
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Japan to assist the Government of Ja- Station to develop further a payload’s pan’s Cooperating Agency in the imple- product or process for use other than mentation of that MOU. for Space Station-related activities in (2) The term related entity means: implementation of this Agreement. (i) A contractor or subcontractor of a (c)(1) Each Partner State agrees to a Partner State at any tier; cross-waiver of liability pursuant to (ii) A user or customer of a Partner which each Partner State waives all State at any tier; or claims against any of the entities or (iii) A contractor or subcontractor of persons listed in paragraphs (c)(1)(i) a user or customer of a Partner State through (c)(1)(iii) of this section based at any tier. ‘‘Contractors’’ and ‘‘sub- on damage arising out of Protected contractors’’ include suppliers of any Space Operations. This cross-waiver kind. shall apply only if the person, entity, (3) The term damage means: or property causing the damage is in- (i) Bodily injury to, or other impair- volved in Protected Space Operations ment of health of, or death of, any per- and the person, entity, or property is son; damaged by virtue of its involvement (ii) Damage to, loss of, or loss of use in Protected Space Operations. The of any property; cross-waiver shall apply to any claims (iii) Loss of revenue or profits; or for damage, whatever the legal basis (iv) Other direct, indirect, or con- for such claims, including but not lim- sequential damage. ited to delict and tort (including neg- (4) The term launch vehicle means an ligence of every degree and kind) and object (or any part thereof) intended contract, against: for launch, launched from Earth, or re- (i) Another Partner State; turning to Earth which carries pay- (ii) A related entity of another Part- loads or persons, or both. ner State; (5) The term payload means all prop- (iii) The employees of any of the en- erty to be flown or used on or in a tities identified in paragraphs (c)(1)(i) launch vehicle or the Space Station. and (c)(1)(ii) of this section. (6) The term Protected Space Oper- (2) In addition, each Partner State ations means all launch vehicle activi- shall extend the cross-waiver of liabil- ties, Space Station Freedom activities, ity as set forth in paragraph (c)(1) of and payload activities on Earth, in this section to its own related entities outer space, or in transit between by requiring them, by contract or oth- Earth and outer space done in imple- erwise, to agree to waive all claims mentation of this Agreement, the against the entities or persons identi- MOU’s, and implementing arrange- fied in paragraphs (c)(1)(i) through ments. It includes, but is not limited (c)(1)(iii) of this section. to: (3) For avoidance of doubt, this cross- (i) Research, design, development, waiver of liability includes a cross- test, manufacture, assembly, integra- waiver of liability arising from the Li- tion, operation, or use of launch or ability Convention where the person, transfer vehicles (for example, the Or- entity, or property causing the damage bital Maneuvering Vehicle), the Space is involved in Protected Space Oper- Station, or a payload, as well as re- ations, and the person, entity, or prop- lated support equipment and facilities erty damaged is damaged by virtue of and services; its involvement in Protected Space Op- (ii) All activities related to ground erations. support, test, training, simulation, or (4) Notwithstanding the other provi- guidance and control equipment, and sions of this section, this cross-waiver related facilities or services. Protected of liability shall not be applicable to: Space Operations also includes all ac- (i) Claims between a Partner State tivities related to evolution of the and its own related entity or between Space Station, as provided for in Arti- its own related entities; cle 14 of the Intergovernmental Agree- (ii) Claims made by a natural person, ment. Protected Space Operations ex- his/her estate, survivors, or subrogees cludes activities on Earth which are for injury or death of such natural per- conducted on return from the Space son;
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(iii) Claims for damage caused by tion, operation, or use of: the Space willful misconduct; Shuttle, transfer vehicles, payloads, re- (iv) Intellectual property claims. lated support equipment, and facilities (5) Nothing in this section shall be and services; construed to create the basis for a (ii) All activities related to ground claim or suit where none would other- support, test, training, simulation, or wise exist. guidance and control equipment and related facilities or services. Protected § 1266.103 Cross-waiver of liability Space Operations excludes activities on during Shuttle operations. Earth which are conducted on return (a) The purpose of this section is to from space to develop further a pay- establish a cross-waiver of liability be- load’s product or process for use other tween the parties to Shuttle launch than for Shuttle-related activities nec- services agreements and to other essary to complete implementation of NASA agreements that involve Shuttle the agreement. flights, and the parties’ related enti- (c)(1) Each Party agrees to a cross- ties, in the interest of encouraging par- waiver of liability pursuant to which ticipation in space exploration, exploi- each Party waives all claims against tation, and investment. The cross- any of the entities or persons listed in waiver of liability shall be broadly con- paragraphs (c)(1)(i) through (c)(1)(iv) of strued to achieve this objective. this section based on damage arising (b) As used in this cross-waiver, the out of Protected Space Operations. term: This cross-waiver shall apply only if (1) Party means a person or entity the person, entity, or property causing that signs an agreement involving a the damage is involved in Protected Shuttle flight; Space Operations and the person, enti- (2) Related Entity means: ty, or property damaged is damaged by (i) A contractor or subcontractor of a virtue of its involvement in Protected Party at any tier; Space Operations. The cross-waiver (ii) A user or customer of a Party at shall apply to any claims for damage, any tier; or whatever the legal basis for such (iii) A contractor or subcontractor of claims, including but not limited to de- a user or customer of a Party at any lict and tort (including negligence of tier. Contractors and Subcontractors in- every degree and kind) and contract, clude suppliers of any kind; against: (3) Damage means: (i) Another Party; (i) Bodily injury to, or other impair- (ii) Any Party who has signed a ment of health of, or death of, any per- NASA agreement that includes a Shut- son; tle flight; (ii) Damage to, loss of, or loss of use (iii) A related entity of any party in of any property; paragraph (c)(1)(ii) of this section; (iii) Loss of revenue or profits; or (iv) The employees of any of the enti- (iv) Other direct, indirect, or con- ties identified in (c)(1)(i) through sequential damage; (c)(1)(iii) of this section. (4) Payload means any property to be (2) In addition, each Party shall ex- flown or used on or in the Shuttle; and tend the cross-waiver of liability as set (5) Protected Space Operations means forth in paragraph (c)(1) of this section all Space Shuttle and payload activi- to its own related entities by requiring ties on Earth, in outer space, or in them, by contract or otherwise, to transit between Earth and outer space agree to waive all claims against the done in implementation of an agree- entities or persons identified in para- ment for Shuttle launch services. Pro- graphs (c)(1)(i) through (c)(1)(iv) of this tected Space Operations begin at the section. signature of the agreement and ends (3) For avoidance of doubt, this cross- when all activities done in implemen- waiver includes a cross-waiver of liabil- tation of the agreement are completed. ity arising from the Convention on It includes, but is not limited to: International Liability for Damage (i) Research, design, development, Caused by Space Objects, (Mar. 29, 1972, test, manufacture, assembly, integra- 24 United States Treaties and other
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International Agreements (U.S.T.) 2389, (i) Bodily injury to, or other impair- Treaties and Other International Acts ment to health of, or death of, any per- Series (T.I.A.S.) No. 7762) where the son; person, entity, or property causing the (ii) Damage to, loss of, or loss of use damage is involved in Protected Space of any property; Operations and the person, entity, or (iii) Loss of revenue or profits; or property damaged is damaged by virtue (iv) Other direct, indirect, or con- of its involvement in Protected Space sequential damage; Operations. (4) Payload means any property to be (4) Notwithstanding the other provi- flown or used on or in an ELV; and sions of this section, this cross-waiver (5) Protected Space Operations means of liability shall not be applicable to: all expendable launch vehicle and pay- (i) Claims between a Party and its load activities on Earth, in outer own related entity or between its own space, or in transit between Earth and related entities; outer space in implementation of the (ii) Claims made by a natural person, agreement. Protected Space Operations his/her estate, survivors, or subrogees begins at the signature of the agree- for injury or death of such natural per- ment and ends when all activities done son; in implementation of the agreement (iii) Claims for damage caused by are completed. It includes, but is not willful misconduct; limited to: (iv) Intellectual property claims; (i) Research, design, development, (v) Contract claims between the Par- test, manufacture, assembly, integra- ties based on the express contractual tion, operation, or use of: expendable provisions of the agreement; launch vehicles (ELV), transfer vehi- (vi) Claims for damage based on a cles, payloads, related support equip- failure of the Parties or their related ment, and facilities and services; entities to flow down the cross-waiver. (ii) All activities related to ground (5) Nothing in this section shall be support, test, training, simulation, or construed to create the basis for a guidance and control equipment, and claim or suit where none would other- related facilities or services. Protected wise exist. Space Operations excludes activities on Earth which are conducted on return § 1266.104 Cross-waiver of liability for from space to develop further a pay- NASA expendable launch vehicle load’s product or process for use other (ELV) program launches. than for ELV-related activities nec- (a) The purpose of this section is to essary to complete implementation of establish a cross-waiver of liability be- the agreement. tween the parties to agreements for (c)(1) Each Party agrees to a cross- NASA ELV program launches, and the waiver of liability pursuant to which parties’ related entities, in the interest each Party waivers all claims against of encouraging space exploration and any of the entities or persons listed in investment. The cross-waiver of liabil- paragraphs (c)(1)(i) through (c)(1)(iii) of ity shall be broadly construed to this section based on damage arising achieve this objective. out of Protected Space Operations. (b) As used in this section, the term: This cross-waiver shall apply only if (1) Party means a person or entity the person, entity, or property causing that signs an agreement involving an the damage is involved in Protected ELV launch; Space Operations and the person, enti- (2) Related Entity means: ty, or property damaged is damaged by (i) A contractor or subcontractor of a virtue of its involvement in Protected Party at any tier; Space Operations. The cross-waiver (ii) A user or customer of a Party at shall apply to any claims for damage, any tier; or whatever the legal basis for such (iii) a contractor or subcontractor of claims, including but not limited to de- a user or customer of a Party at any lict and tort (including negligence of tier. Contractors and ‘‘Subcontractors’’ every degree and kind) and contract, include suppliers of any kind. against: (3) Damage means: (i) Another Party;
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(ii) A related entity of another Party; PART 1271—NEW RESTRICTIONS ON (iii) The employees of any of the en- LOBBYING tities identified in paragraphs (c)(1)(i) and (ii) of this section. Subpart A—General (2) In addition, each Party shall ex- tend the cross-waiver of liability as set Sec. 1271.100 Conditions on use of funds. forth in paragraph (c)(1) of this section 1271.105 Definitions. to its own related entities by requiring 1271.110 Certification and disclosure. them, by contract or otherwise, to agree to waive all claims against the Subpart B—Activities by Own Employees entities or persons identified in para- 1271.200 Agency and legislative liaison. graphs (c)(1)(i) through (c)(1)(iii) of this 1271.205 Professional and technical services. section. 1271.210 Reporting. (3) For avoidance of doubt, this cross- waiver of liability includes a cross- Subpart C—Activities by Other Than Own waiver of liability arising from the Employees Convention on International Liability 1271.300 Professional and technical services. for Damage Caused by Space Objects (Mar. 29, 1972, 24 United States Treaties Subpart D—Penalties and Enforcement and other International Agreements 1271.400 Penalties. (U.S.T.) 2389, Treaties and other Inter- 1271.405 Penalty procedures. national Acts Series (T.I.A.S.) No. 7762) 1271.410 Enforcement. where the person, entity, or property causing the damage is involved in Pro- Subpart E—Exemptions tected Space Operations and the per- 1271.500 Secretary of Defense. son, entity, or property damaged is damaged by virtue of its involvement Subpart F—Agency Reports in Protected Space Operations. 1271.600 Semi-annual compilation. (4) Notwithstanding the other provi- 1271.605 Inspector General report. sions of this section, this cross-waiver APPENDIX A TO PART 1271—CERTIFICATION RE- shall not be applicable to: GARDING LOBBYING (i) Claims between a Party and its APPENDIX B TO PART 1271—DISCLOSURE FORM own related entity or between its own TO REPORT LOBBYING related entities; AUTHORITY: Section 319, Pub. L. 101–121 (31 (ii) Claims made by a natural person, U.S.C. 1352); Pub. L. 97–258 (31 U.S.C. 6301 et seq.) his/her estate, survivors, or subrogees for injury or death of such natural per- CROSS REFERENCE: See also Office of Man- son; agement and Budget notice published at 54 FR 52306, December 20, 1989. (iii) Claims for damage caused by willful misconduct; SOURCE: 55 FR 6737, 6748, Feb. 26, 1990, un- (iv) Intellectual property claims; less otherwise noted. (v) Contract claims between the Par- ties based on the express contractual Subpart A—General provisions of the agreement; § 1271.100 Conditions on use of funds. (vi) Claims for damage based on a failure of the Parties or their related (a) No appropriated funds may be ex- pended by the recipient of a Federal entities to flow-down the cross-waiver. contract, grant, loan, or cooperative (5) Nothing in this section shall be ageement to pay any person for influ- construed to create the basis for a encing or attempting to influence an claim or suit where none would other- officer or employee of any agency, a wise exist. Member of Congress, an officer or em- (6) This cross-waiver shall not be ap- ployee of Congress, or an employee of a plicable when the Commercial Space Member of Congress in connection with Launch Act cross-waiver (49 U.S.C. app. any of the following covered Federal 2615) is applicable. actions: the awarding of any Federal contract, the making of any Federal
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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. any Federal contract, grant, loan, or (c) Each person who requests or re- cooperative agreement. ceives from an agency a Federal con- Covered Federal action does not in- tract, grant, loan, or a cooperative clude receiving from an agency a com- agreement shall file with that agency a mitment providing for the United disclosure form, set forth in appendix States to insure or guarantee a loan. B, if such person has made or has Loan guarantees and loan insurance agreed to make any payment using are addressed independently within nonappropriated funds (to include prof- this part. its from any covered Federal action), (c) Federal contract means an acquisi- which would be prohibited under para- tion contract awarded by an agency, graph (a) of this section if paid for with including those subject to the Federal appropriated funds. Acquisition Regulation (FAR), and any (d) Each person who requests or re- other acquisition contract for real or ceives from an agency a commitment personal property or services not sub- providing for the United States to in- ject to the FAR. sure or guarantee a loan shall file with (d) Federal cooperative agreement that agency a statement, set forth in means a cooperative agreement en- appendix A, whether that person has tered into by an agency. made or has agreed to make any pay- (e) Federal grant means an award of ment to influence or attempt to influ- financial assistance in the form of ence an officer or employee of any money, or property in lieu of money, agency, a Member of Congress, an offi- by the Federal Government or a direct cer or employee of Congress, or an em- appropriation made by law to any per- ployee of a Member of Congress in con- son. The term does not include tech- nection with that loan insurance or nical assistance which provides serv- guarantee. ices instead of money, or other assist- (e) Each person who requests or re- ance in the form of revenue sharing, ceives from an agency a commitment loans, loan guarantees, loan insurance, providing for the United States to in- interest subsidies, insurance, or direct sure or guarantee a loan shall file with United States cash assistance to an in- that agency a disclosure form, set forth dividual. in appendix B, if that person has made (f) Federal loan means a loan made by or has agreed to make any payment to an agency. The term does not include influence or attempt to influence an of- loan guarantee or loan insurance. ficer or employee of any agency, a (g) Indian tribe and tribal organization Member of Congress, an officer or em- have the meaning provided in section 4 ployee of Congress, or an employee of a of the Indian Self-Determination and Member of Congress in connection with Education Assistance Act (25 U.S.C. that loan insurance or guarantee. 450B). Alaskan Natives are included under the definitions of Indian tribes in § 1271.105 Definitions. that Act. For purposes of this part: (h) Influencing or attempting to influ- (a) Agency, as defined in 5 U.S.C. ence means making, with the intent to 552(f), includes Federal executive de- influence, any communication to or ap- partments and agencies as well as inde- pearance before an officer or employee
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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 con- fined 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 zation, or any other Indian organiza- interstate entity having governmental tion with respect to expenditures spe- duties and powers. cifically permitted by other Federal law. § 1271.110 Certification and disclosure. (m) Reasonable compensation means, (a) Each person shall file a certifi- with respect to a regularly employed cation, and a disclosure form, if re- officer or employee of any person, com- quired, with each submission that ini- pensation that is consistent with the tiates agency consideration of such normal compensation for such officer person for: or employee for work that is not fur- (1) Award of a Federal contract, nished to, not funded by, or not fur- grant, or cooperative agreement ex- nished in cooperation with the Federal ceeding $100,000; or Government. (2) An award of a Federal loan or a (n) Reasonable payment means, with commitment providing for the United respect to perfessional and other tech- States to insure or guarantee a loan nical services, a payment in an amount exceeding $150,000.
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(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 be shared by any tier to which the er- Unless such person previously filed a roneous representation is forwarded. certification, and a disclosure form, if Submitting an erroneous certification required, under paragraph (a) of this or disclosure constitutes a failure to section. file the required certification or disclo- (c) Each person shall file a disclosure sure, respectively. If a person fails to form at the end of each calendar quar- file a required certification or disclo- ter in which there occurs any event sure, the United States may pursue all that requires disclosure or that materi- available remedies, including those au- ally affects the accuracy of the infor- thorized by section 1352, title 31, U.S. mation contained in any disclosure Code. form previously filed by such person (g) For awards and commitments in under paragraphs (a) or (b) of this sec- process prior to December 23, 1989, but tion. An event that materially affects not made before that date, certifi- the accuracy of the information re- cations shall be required at award or ported includes: commitment, covering activities oc- (1) A cumulative increase of $25,000 or curring between December 23, 1989, and more in the amount paid or expected to the date of award or commitment. be paid for influencing or attempting However, for awards and commitments to influence a covered Federal action; in process prior to the December 23, or 1989 effective date of these provisions, (2) A change in the person(s) or indi- but not made before December 23, 1989, vidual(s) influencing or attempting to disclosure forms shall not be required influence a covered Federal action; or, at time of award or commitment but (3) A change in the officer(s), em- shall be filed within 30 days. ployee(s), or Member(s) contacted to (h) No reporting is required for an ac- influence or attempt to influence a tivity paid for with appropriated funds covered Federal action. if that activity is allowable under ei- (d) Any person who requests or re- ther subpart B or C. ceives from a person referred to in paragraphs (a) or (b) of this section: Subpart B—Activities by Own (1) A subcontract exceeding $100,000 Employees at any tier under a Federal contract; (2) A subgrant, contract, or sub- § 1271.200 Agency and legislative liai- contract exceeding $100,000 at any tier son. under a Federal grant; (a) The prohibition on the use of ap- (3) A contract or subcontract exceed- propriated funds, in § 1271.100 (a), does ing $100,000 at any tier under a Federal not apply in the case of a payment of loan exceeding $150,000; or, reasonable compensation made to an (4) A contract or subcontract exceed- officer or employee of a person request- ing $100,000 at any tier under a Federal ing or receiving a Federal contract, cooperative agreement, grant, loan, or cooperative agreement Shall file a certification, and a disclo- if the payment is for agency and legis- sure form, if required, to the next tier lative liaison activities not directly re- above. lated to a covered Federal action. (e) All disclosure forms, but not cer- (b) For purposes of paragraph (a) of tifications, shall be forwarded from this section, providing any information tier to tier until received by the person specifically requested by an agency or referred to in paragraphs (a) or (b) of Congress is allowable at any time.
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(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: (b) For purposes of paragraph (a) of (1) Discussing with an agency (in- this section, ‘‘professional and tech- cluding individual demonstrations) the nical services’’ shall be limited to ad- qualities and characteristics of the per- vice and analysis directly applying any son’s products or services, conditions professional or technical discipline. or terms of sale, and service capabili- For example, drafting of a legal docu- ties; and, ment accompanying a bid or proposal (2) Technical discussions and other by a lawyer is allowable. Similarly, activities regarding the application or technical advice provided by an engi- adaptation of the person’s products or neer on the performance or operational services for an agency’s use. (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 Law 95–507 and other subsequent his or her client’s proposal, but gen- amendments. erally advocate one proposal over an- (e) Only those activities expressly au- other are not allowable under this sec- thorized by this section are allowable tion because the lawyer is not pro- under this section. viding professional legal services. Similarly, communications with the § 1271.205 Professional and technical services. intent to influence made by an engi- neer providing an engineering analysis (a) The prohibition on the use of ap- prior to the preparation or submission propriated funds, in § 1271.100(a), does of a bid or proposal are not allowable not apply in the case of a payment of under this section since the engineer is reasonable compensation made to an officer or employee of a person request- providing technical services but not di- ing or receiving a Federal contract, rectly in the preparation, submission grant, loan, or cooperative agreement or negotiation of a covered Federal ac- or an extension, continuation, renewal, tion. amendment, or modification of a Fed- (c) Requirements imposed by or pur- eral contract, grant, loan, or coopera- suant to law as a condition for receiv- tive agreement if payment is for pro- ing a covered Federal award include fessional or technical services rendered those required by law or regulation, or directly in the preparation, submis- reasonably expected to be required by sion, or negotiation of any bid, pro- law or regulation, and any other re- posal, or application for that Federal quirements in the actual award docu- contract, grant, loan, or cooperative ments.
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(d) Only those services expressly au- rectly applying their professional or thorized by this section are allowable technical expertise and unless the ad- under this section. vice or analysis is rendered directly and solely in the preparation, submis- § 1271.210 Reporting. sion or negotiation of a covered Fed- No reporting is required with respect eral action. Thus, for example, commu- to payments of reasonable compensa- nications with the intent to influence tion made to regularly employed offi- made by a lawyer that do not provide cers or employees of a person. legal advice or analysis directly and solely related to the legal aspects of Subpart C—Activities by Other his or her client’s proposal, but gen- Than Own Employees erally advocate one proposal over an- other are not allowable under this sec- § 1271.300 Professional and technical tion because the lawyer is not pro- services. viding professional legal services. (a) The prohibition on the use of ap- Similarly, communications with the propriated funds, in § 1271.100(a), does intent to influence made by an engi- not apply in the case of any reasonable neer providing an engineering analysis payment to a person, other than an of- prior to the preparation or submission ficer or employee of a person request- of a bid or proposal are not allowable ing or receiving a covered Federal ac- under this section since the engineer is tion, if the payment is for professional providing technical services but not di- or technical services rendered directly rectly in the preparation, submission in the preparation, submission, or ne- or negotiation of a covered Federal ac- gotiation of any bid, proposal, or appli- tion. cation for that Federal contract, grant, (d) Requirements imposed by or pur- loan, or cooperative agreement or for suant to law as a condition for receiv- meeting requirements imposed by or ing a covered Federal award include pursuant to law as a condition for re- those required by law or regulation, or ceiving that Federal contract, grant, reasonably expected to be required by loan, or cooperative agreement. law or regulation, and any other re- (b) The reporting requirements in quirements in the actual award docu- § 1271.110 (a) and (b) regarding filing a ments. disclosure form by each person, if re- (e) Persons other than officers or em- quired, shall not apply with respect to ployees of a person requesting or re- professional or technical services ren- ceiving a covered Federal action in- dered directly in the preparation, sub- clude consultants and trade associa- mission, or negotiation of any commit- tions. ment providing for the United States (f) Only those services expressly au- to insure or guarantee a loan. thorized by this section are allowable (c) For purposes of paragraph (a) of under this section. this section, ‘‘professional and tech- nical services’’ shall be limited to ad- vice and analysis directly applying any Subpart D—Penalties and professional or technical discipline. Enforcement For example, drafting or a legal docu- ment accompanying a bid or proposal § 1271.400 Penalties. by a lawyer is allowable. Similarly, (a) Any person who makes an expend- technical advice provided by an engi- iture prohibited herein shall be subject neer on the performance or operational to a civil penalty of not less than capability of a piece of equipment ren- $10,000 and not more than $100,000 for dered directly in the negotiation of a each such expenditure. contract is allowable. However, com- (b) Any person who fails to file or munications with the intent to influ- amend the disclosure form (see appen- ence made by a professional (such as a dix B) to be filed or amended if re- licensed lawyer) or a technical person quired herein, shall be subject to a civil (such as a licensed accountant) are not penalty of not less than $10,000 and not allowable under this section unless more than $100,000 for each such fail- they provide advice and analysis di- ure.
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(c) A filing or amended filing on or Subpart E—Exemptions after the date on which an administra- tive action for the imposition of a civil § 1271.500 Secretary of Defense. penalty is commenced does not prevent (a) The Secretary of Defense may ex- the imposition of such civil penalty for empt, on a case-by-case basis, a cov- a failure occurring before that date. An ered Federal action from the prohibi- administrative action is commenced tion whenever the Secretary deter- with respect to a failure when an inves- mines, in writing, that such an exemp- tigating official determines in writing tion is in the national interest. The to commence an investigation of an al- Secretary shall transmit a copy of each legation of such failure. 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 Subpart F—Agency Reports continue in business, any prior viola- tions by such person, the degree of cul- § 1271.600 Semi-annual compilation. pability of such person, the ability of (a) The head of each agency shall col- the person to pay the penalty, and such lect and compile the disclosure reports other matters as may be appropriate. (see appendix B) and, on May 31 and (e) First offenders under paragraphs November 30 of each year, submit to (a) or (b) of this section shall be subject the Secretary of the Senate and the to a civil penalty of $10,000, absent ag- 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 $10,000 and $100,000, 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 to the Select Committee on Intel- § 1271.405 Penalty procedures. ligence of the Senate, the Permanent Agencies shall impose and collect Select Committee on Intelligence of civil penalties pursuant to the provi- the House of Representatives, and the sions of the Program Fraud and Civil Committees on Appropriations of the Senate and the House of Representa- Remedies Act, 31 U.S.C. sections 3803 tives in accordance with procedures (except subsection (c)), 3804, 3805, 3806, agreed to by such committees. Such in- 3807, 3808, and 3812, insofar as these pro- formation shall not be available for visions are not inconsistent with the public inspection. requirements herein. (d) Information that is classified under Executive Order 12356 or any suc- § 1271.410 Enforcement. cessor order shall be reported only to The head of each agency shall take the Committee on Foreign Relations of such actions as are necessary to ensure the Senate and the Committee on For- that the provisions herein are vigor- eign Affairs of the House of Represent- ously implemented and enforced in atives or the Committees on Armed that agency. Services of the Senate and the House of
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Representatives (whichever such com- (d) The annual report shall include mittees have jurisdiction of matters the following: All alleged violations re- involving such information) and to the lating to the agency’s covered Federal Committees on Appropriations of the actions during the year covered by the Senate and the House of Representa- report, the actions taken by the head tives in accordance with procedures of the agency in the year covered by agreed to by such committees. Such in- the report with respect to those alleged formation shall not be available for violations and alleged violations in public inspection. previous years, and the amounts of (e) The first semi-annual compilation civil penalties imposed by the agency shall be submitted on May 31, 1990, and in the year covered by the report. shall contain a compilation of the dis- closure reports received from Decem- APPENDIX A TO PART 1271— ber 23, 1989 to March 31, 1990. CERTIFICATION REGARDING LOBBYING (f) Major agencies, designated by the Office of Management and Budget Certification for Contracts, Grants, Loans, and Cooperative Agreements (OMB), are required to provide ma- chine-readable compilations to the The undersigned certifies, to the best of his Secretary of the Senate and the Clerk or her knowledge and belief, that: of the House of Representatives no (1) No Federal appropriated funds have later than with the compilations due been paid or will be paid, by or on behalf of on May 31, 1991. OMB shall provide de- the undersigned, to any person for influ- tailed specifications in a memorandum encing or attempting to influence an officer or employee of an agency, a Member of Con- to these agencies. gress, an officer or employee of Congress, or (g) Non-major agencies are requested an employee of a Member of Congress in con- to provide machine-readable compila- nection with the awarding of any Federal tions to the Secretary of the Senate contract, the making of any Federal grant, and the Clerk of the House of Rep- the making of any Federal loan, the entering resentatives. into of any cooperative agreement, and the (h) Agencies shall keep the originals extension, continuation, renewal, amend- of all disclosure reports in the official ment, or modification of any Federal con- files of the agency. tract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appro- § 1271.605 Inspector General report. priated funds have been paid or will be paid to any person for influencing or attempting (a) The Inspector General, or other to influence an officer or employee of any official as specified in paragraph (b) of agency, a Member of Congress, an officer or this section, of each agency shall pre- employee of Congress, or an employee of a pare and submit to Congress each year, Member of Congress in connection with this commencing with submission of the Federal contract, grant, loan, or cooperative President’s Budget in 1991, an evalua- agreement, the undersigned shall complete tion of the compliance of that agency and submit Standard Form–LLL, ‘‘Disclo- sure Form to Report Lobbying,’’ in accord- with, and the effectiveness of, the re- ance with its instructions. quirements herein. The evaluation may (3) The undersigned shall require that the include any recommended changes that language of this certification be included in may be necessary to strengthen or im- the award documents for all subawards at all prove the requirements. tiers (including subcontracts, subgrants, and (b) In the case of an agency that does contracts under grants, loans, and coopera- not have an Inspector General, the tive agreements) and that all subrecipients agency official comparable to an In- shall certify and disclose accordingly. spector General shall prepare and sub- This certification is a material representa- mit the annual report, or, if there is no tion of fact upon which reliance was placed such comparable official, the head of when this transaction was made or entered the agency shall prepare and submit into. Submission of this certification is a prerequisite for making or entering into this the annual report. transaction imposed by section 1352, title 31, (c) The annual report shall be sub- U.S. Code. Any person who fails to file the mitted at the same time the agency required certification shall be subject to a submits its annual budget justifica- civil penalty of not less than $10,000 and not tions to Congress. more than $100,000 for each such failure.
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Statement for Loan Guarantees and Loan to insure or guarantee a loan, the under- Insurance signed shall complete and submit Standard The undersigned states, to the best of his Form–LLL, ‘‘Disclosure Form to Report Lob- or her knowledge and belief, that: bying,’’ in accordance with its instructions. If any funds have been paid or will be paid Submission of this statement is a pre- to any person for influencing or attempting requisite for making or entering into this to influence an officer or employee of any transaction imposed by section 1352, title 31, agency, a Member of Congress, an officer or U.S. Code. Any person who fails to file the employee of Congress, or an employee of a required statement shall be subject to a civil Member of Congress in connection with this penalty of not less than $10,000 and not more commitment providing for the United States than $100,000 for each such failure.
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APPENDIX B TO PART 1271—DISCLOSURE FORM TO REPORT LOBBYING
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PART 1273—UNIFORM ADMINIS- AUTHORITY: 31 U.S.C. 6301 to 6308; 42 U.S.C. TRATIVE REQUIREMENTS FOR 2451, et seq. GRANTS AND COOPERATIVE SOURCE: 60 FR 33694, June 29, 1995, unless AGREEMENTS TO STATE AND otherwise noted. LOCAL GOVERNMENTS Subpart A—General Subpart A—General § 1273.1 Purpose and scope of this Sec. part. 1273.1 Purpose and scope of this part. This subpart establishes uniform ad- 1273.2 Scope of subpart. 1273.3 Definitions. ministrative rules for Federal grants 1273.4 Applicability. and cooperative agreements and sub- 1273.5 Effect on other issuances. awards to State, local and Indian tribal 1273.6 Additions and exceptions. governments.
Subpart B—Pre-Award Requirements § 1273.2 Scope of subpart. 1273.10 Forms for applying for grants. This subpart contains general rules 1273.11 State plans. pertaining to this part and procedures 1273.12 Special grant or subgrant conditions for control of exceptions from this for ‘‘high-risk’’ grantees. part.
Subpart C—Post-Award Requirements § 1273.3 Definitions. FINANCIAL ADMINISTRATION As used in this part: 1273.20 Standards for financial management Accrued expenditures mean the systems. charges incurred by the grantee during 1273.21 Payment. a given period requiring the provision 1273.22 Allowable costs. of funds for: 1273.23 Period of availability of funds. (1) Goods and other tangible property 1273.24 Matching or cost sharing. received; 1273.25 Program income. 1273.26 Non-Federal audit. (2) Services performed by employees, contractors, subgrantees, subcontrac- CHANGES, PROPERTY, AND SUBAWARDS tors, and other payees; and 1273.30 Changes. (3) Other amounts becoming owed 1273.31 Real property. under programs for which no current 1273.32 Equipment. services or performance is required, 1273.33 Supplies. such as annuities, insurance claims, 1273.34 Copyrights. and other benefit payments. 1273.35 Subawards to debarred and sus- Accrued income means the sum of: pended parties. 1273.36 Procurement. (1) Earnings during a given period 1273.37 Subgrants. from services performed by the grantee and goods and other tangible property REPORTS, RECORDS, RETENTION, AND delivered to purchasers, and ENFORCEMENT (2) Amounts becoming owed to the 1273.40 Monitoring and reporting program grantee for which no current services performance. or performance is required by the 1273.41 Financial reporting. grantee. 1273.42 Retention and access requirements for records. Acquisition cost of an item of pur- 1273.43 Enforcement. chased equipment means the net in- 1273.44 Termination for convenience. voice unit price of the property includ- ing the cost of modifications, attach- Subpart D—After-the-Grant Requirements ments, accessories, or auxiliary appa- ratus necessary to make the property 1273.50 Closeout. usable for the purpose for which it was 1273.51 Later disallowances and adjust- ments. acquired. Other charges such as the 1273.52 Collection of amounts due. cost of installation, transportation, taxes, duty or protective in-transit in- Subpart E—Entitlements [Reserved] surance, shall be included or excluded 425
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from the unit acquisition cost in ac- (1) For nonconstruction grants, the cordance with the grantee’s regular ac- SF–269 ‘‘Financial Status Report’’ (or counting practices. other equivalent report); Administrative requirements mean (2) For construction grants, the SF– those matters common to grants in 271 ‘‘Outlay Report and Request for Re- general, such as financial management, imbursement’’ (or other equivalent re- kinds and frequency of reports, and re- port). tention of records. These are distin- Federally recognized Indian tribal gov- guished from ‘‘programmatic’’ require- ernment means the governing body or a ments, which concern matters that can governmental agency of any Indian be treated only on a program-by-pro- tribe, band, nation, or other organized gram or grant-by-grant basis, such as group or community (including any kinds of activities that can be sup- Native village as defined in section 3 of the Alaska Native Claims Settlement ported by grants under a particular Act, 85 Stat. 688) certified by the Sec- program. retary of the Interior as eligible for the Awarding agency means: special programs and services provided (1) With respect to a grant, the Fed- by him through the Bureau of Indian eral agency, and Affairs. (2) With respect to a subgrant, the Government means a State or local party that awarded the subgrant. government or a federally recognized Cash contributions means the grant- Indian tribal government. ee’s cash outlay, including the outlay Grant means an award of financial as- of money contributed to the grantee or sistance, including cooperative agree- subgrantee by other public agencies ments, in the form of money, or prop- and institutions, and private organiza- erty in lieu of money, by the Federal tions and individuals. When authorized Government to an eligible grantee. The by Federal legislation, Federal funds term does not include technical assist- received from other assistance agree- ance which provides services instead of ments may be considered as grantee or money, or other assistance in the form subgrantee cash contributions. of revenue sharing, loans, loan guaran- Contract means (except as used in the tees, interest subsidies, insurance, or definitions for ‘‘grant’’ and ‘‘subgrant’’ direct appropriations. Also, the term in this section and except where quali- does not include assistance, such as a fied by ‘‘Federal’’) a procurement con- fellowship or other lump sum award, tract under a grant or subgrant, and which the grantee is not required to ac- means a procurement subcontract count for. under a contract. Grantee means the government to Cost sharing or matching means the which a grant is awarded and which is value of the third party in-kind con- accountable for the use of the funds tributions and the portion of the costs provided. The grantee is the entire legal entity even if only a particular of a federally assisted project or pro- component of the entity is designated gram not borne by the Federal Govern- in the grant award document. ment. Local government means a county, Cost-type contract means a contract or municipality, city, town, township, subcontract under a grant in which the local public authority (including any contractor or subcontractor is paid on public and Indian housing agency the basis of the costs it incurs, with or under the United States Housing Act of without a fee. 1937) school district, special district, Equipment means tangible, non- intrastate district, council of govern- expendable, personal property having a ments (whether or not incorporated as useful life of more than one year and a nonprofit corporation under state an acquisition cost of $5,000 or more law), any other regional or interstate per unit. A grantee may use its own government entity, or any agency or definition of equipment provided that instrumentality of a local government. such definition would at least include Obligations means the amounts of or- all equipment defined above. ders placed, contracts and subgrants Expenditure report means: awarded, goods and services received,
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and similar transactions during a given the United States, or any agency or in- period that will require payment by strumentality of a State exclusive of the grantee during the same or a future local governments. The term does not period. include any public and Indian housing OMB means the United States Office agency under United States Housing of Management and Budget. Act of 1937. Outlays (expenditures) mean charges Subgrant means an award of financial made to the project or program. They assistance in the form of money, or may be reported on a cash or accrual property in lieu of money, made under basis. For reports prepared on a cash a grant by a grantee to an eligible sub- basis, outlays are the sum of actual grantee. The term includes financial cash disbursement for direct charges assistance when provided by contrac- for goods and services, the amount of tual legal agreement, but does not in- indirect expense incurred, the value of clude procurement purchases, nor does in-kind contributions applied, and the it include any form of assistance which amount of cash advances and payments is excluded from the definition of made to contractors and subgrantees. ‘‘grant’’ in this subpart. For reports prepared on an accrued ex- Subgrantee means the government or penditure basis, outlays are the sum of other legal entity to which a subgrant actual cash disbursements, the amount is awarded and which is accountable to of indirect expense incurred, the value the grantee for the use of the funds of inkind contributions applied, and provided. the new increase (or decrease) in the Supplies means all tangible personal amounts owed by the grantee for goods property other than ‘‘equipment’’ as and other property received, for serv- defined in this part. ices performed by employees, contrac- Suspension means depending on the tors, subgrantees, subcontractors, and context, either other payees, and other amounts be- (1) Temporary withdrawal of the au- coming owed under programs for which thority to obligate grant funds pending no current services or performance are corrective action by the grantee or required, such as annuities, insurance subgrantee or a decision to terminate claims, and other benefit payments. the grant; or Percentage of completion method refers (2) An action taken by a suspending to a system under which payments are official in accordance with agency reg- made for construction work according ulations implementing E.O. 12549 to to the percentage of completion of the immediately exclude a person from work, rather than to the grantee’s cost participating in grant transactions for incurred. a period, pending completion of an in- Prior approval means documentation vestigation and such legal or debar- evidencing consent prior to incurring ment proceedings as may ensue. specific cost. Termination means permanent with- Real property means land, including drawal of the authority to obligate pre- land improvements, structures and ap- viously-awarded grant funds before purtenances thereto, excluding mov- that authority would otherwise expire. able machinery and equipment. It also means the voluntary relinquish- Share, when referring to the awarding ment of that authority by the grantee agency’s portion of real property, or subgrantee. ‘‘Termination’’ does not equipment or supplies, means the same include: percentage as the awarding agency’s (1) Withdrawal of funds awarded on portion of the acquiring party’s total the basis of the grantee’s underesti- costs under the grant to which the ac- mate of the unobligated balance in a quisition cost of the property was prior period; charged. Only costs are to be counted— (2) Withdrawal of the unobligated not the value of third-party in-kind balance as of the expiration of a grant; contributions. (3) Refusal to extend a grant or State means any of the several States award additional funds, to make a com- of the United States, the District of peting or noncompeting continuation, Columbia, the Commonwealth of Puer- renewal, extension, or supplemental to Rico, any territory or possession of award; or
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(4) Voiding of a grant upon deter- Training Partnership Act of 1982 and mination that the award was obtained under the Public Health Services Act fraudulently, or was otherwise illegal (Section 1921), Alcohol and Drug Abuse or invalid from inception. Treatment and Rehabilitation Block Terms of a grant or subgrant mean all Grant and Part C of title V, Mental requirements of the grant or subgrant, Health Service for the Homeless Block whether in statute, regulations, or the Grant). award document. (3) Entitlement grants to carry out Third party in-kind contributions mean the following programs of the Social property or services which benefit a Security Act: federally assisted project or program (i) Aid to Needy Families with De- and which are contributed by non-Fed- pendent Children (Title IV–A of the eral third parties without charge to the Act, not including the Work Incentive grantee, or a cost-type contractor Program (WIN) authorized by section under the grant agreement. 402(a)19(G); HHS grants for WIN are Unliquidated obligations for reports subject to this part); prepared on a cash basis mean the (ii) Child Support Enforcement and amount of obligations incurred by the Establishment of Paternity (Title IV–D grantee that has not been paid. For re- of the Act); ports prepared on an accrued expendi- (iii) Foster Care and Adoption Assist- ture basis, they represent the amount ance (Title IV–E of the Act); of obligations incurred by the grantee (iv) Aid to the Aged, Blind, and Dis- for which an outlay has not been re- abled (Titles I, X, XIV, and XVI-AABD corded. of the Act); and Unobligated balance means the por- (v) Medical Assistance (Medicaid) tion of the funds authorized by the (Title XIX of the Act) not including the Federal agency that has not been obli- State Medicaid Fraud Control program gated by the grantee and is determined authorized by section 1903(a)(6)(B). by deducting the cumulative obliga- (4) Entitlement grants under the fol- tions from the cumulative funds au- lowing programs of The National thorized. School Lunch Act: (i) School Lunch (section 4 of the § 1273.4 Applicability. Act), (a) General. Subparts A through D of (ii) Commodity Assistance (section 6 this part apply to all grants and sub- of the Act), grants to governments, except where (iii) Special Meal Assistance (section inconsistent with Federal statutes or 11 of the Act), with regulations authorized in accord- (iv) Summer Food Service for Chil- ance with the exception provision of dren (section 13 of the Act), and § 1273.6 or: (v) Child Care Food Program (section (1) Grants and subgrants to State and 17 of the Act). local institutions of higher education (5) Entitlement grants under the fol- or State and local hospitals. lowing programs of The Child Nutri- (2) The block grants authorized by tion Act of 1966: the Omnibus Budget Reconciliation (i) Special Milk (section 3 of the Act), Act of 1981 (Community Services; Pre- and ventive Health and Health Services; Al- (ii) School Breakfast (section 4 of the cohol, Drug Abuse, and Mental Health Act). Services; Maternal and Child Health (6) Entitlement grants for State Ad- Services; Social Services; Low-Income ministrative expenses under The Food Home Energy Assistance; States’ Pro- Stamp Act of 1977 (section 16 of the gram of Community Development Act). Block Grants for Small Cities; and Ele- (7) A grant for an experimental, pilot, mentary and Secondary Education or demonstration project that is also other than programs administered by supported by a grant listed in para- the Secretary of Education under Title graph (a)(3) of this section; V, Subtitle D, Chapter 2, Section 583— (8) Grant funds awarded under sub- the Secretary’s discretionary grant section 412(e) of the Immigration and program) and titles I–III of the Job Nationality Act (8 U.S.C. 1522(e)) and
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subsection 501(a) of the Refugee Edu- grant programs which do not require cation Assistance Act of 1980 (Pub. L. applicants to apply for funds on a 96–422, 94 Stat. 1809), for cash assist- project basis. ance, medical assistance, and supple- (2) This section applies only to appli- mental security income benefits to ref- cations to Federal agencies for grants, ugees and entrants and the administra- and is not required to be applied by tive costs of providing the assistance grantees in dealing with applicants for and benefits; subgrants. However, grantees are en- (9) Grants to local education agencies couraged to avoid more detailed or bur- under 20 U.S.C. 236 through 241–1(a), densome application requirements for and 242 through 244 (portions of the Im- subgrants. pact Aid program), except for 20 U.S.C. (b) Authorized forms and instructions 238(d)(2)(c) and 240(f) (Entitlement In- for governmental organizations. (1) In ap- crease for Handicapped Children); and plying for grants, applicants shall only (10) Payments under the Veterans use standard application forms or those Administration’s State Home Per Diem prescribed by the granting agency with Program (38 U.S.C. 641(a)). the approval of OMB under the Paper- (b) Entitlement programs. Entitlement programs enumerated above in work Reduction Act of 1980. § 1273.4(a)(3) through (8) are subject to (2) Applicants are not required to subpart E. submit more than the original and two copies of preapplications or applica- § 1273.5 Effect on other issuances. tions. All other grants administration pro- (3) Applicants must follow all appli- visions of codified program regula- cable instructions that bear OMB tions, program manuals, handbooks clearance numbers. Federal agencies and other nonregulatory materials may specify and describe the programs, which are inconsistent with this part functions, or activities that will be are superseded, except to the extent used to plan, budget, and evaluate the they are required by statute, or au- work under a grant. Other supple- thorized in accordance with the excep- mentary instructions may be issued tion provision in § 1273.6. only with the approval of OMB to the extent required under the Paperwork § 1273.6 Additions and exceptions. Reduction Act of 1980. For any stand- (a) For classes of grants and grantees ard form, except the SF–424 factsheet, subject to this part, Federal agencies Federal agencies may shade out or in- may not impose additional administra- struct the applicant to disregard any tive requirements except in codified line item that is not needed. regulations published in the FEDERAL (4) When a grantee applies for addi- REGISTER. tional funding (such as a continuation (b) Exceptions for classes of grants or or supplemental award) or amends a grantees may be authorized only by previously submitted application, only OMB. the affected pages need be submitted. (c) Exceptions on a case-by-case basis Previously submitted pages with infor- and for subgrantees may be authorized mation that is still current need not be by the affected Federal agencies. resubmitted.
Subpart B—Pre-Award § 1273.11 State plans. Requirements (a) Scope. The statutes for some pro- grams require States to submit plans § 1273.10 Forms for applying for before receiving grants. Under regula- grants. tions implementing Executive Order (a) Scope. (1) This section prescribes 12372, ‘‘Intergovernmental Review of forms and instructions to be used by Federal Programs,’’ States are allowed governmental organizations (except to simplify, consolidate and substitute hospitals and institutions of higher plans. This section contains additional education operated by a government) provisions for plans that are subject to in applying for grants. This section is regulations implementing the Execu- not applicable, however, to formula tive Order.
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(b) Requirements. A State need meet (2) Withholding authority to proceed only Federal administrative or pro- to the next phase until receipt of evi- grammatic requirements for a plan dence of acceptable performance within that are in statutes or codified regula- a given funding period; tions. (3) Requiring additional, more de- (c) Assurances. In each plan the State tailed financial reports; will include an assurance that the (4) Additional project monitoring; State shall comply with all applicable (5) Requiring the grantee or sub- Federal statutes and regulations in ef- grantee to obtain technical or manage- fect with respect to the periods for ment assistance; or which it receives grant funding. For (6) Establishing additional prior ap- this assurance and other assurances re- provals. quired in the plan, the State may: (c) If an awarding agency decides to (1) Cite by number the statutory or impose such conditions, the awarding regulatory provisions requiring the as- official will notify the grantee or sub- surances and affirm that it gives the grantee as early as possible, in writing, assurances required by those provi- of: sions, (1) The nature of the special condi- (2) Repeat the assurance language in tions/restrictions; the statutes or regulations, or (2) The reason(s) for imposing them; (3) Develop its own language to the (3) The corrective actions which must extent permitted by law. be taken before they will be removed (d) Amendments. A State will amend a and the time allowed for completing plan whenever necessary to reflect: the corrective actions; and (1) New or revised Federal statutes or (4) The method of requesting recon- regulations; or sideration of the conditions/restric- (2) A material change in any State tions imposed. law, organization, policy, or State agency operation. The State will ob- Subpart C—Post-Award tain approval for the amendment and Requirements its effective date but need submit for approval only the amended portions of FINANCIAL ADMINISTRATION the plan. § 1273.20 Standards for financial man- § 1273.12 Special grant or subgrant agement systems. conditions for ‘‘high-risk’’ grantees. (a) A State must expand and account (a) A grantee or subgrantee may be for grant funds in accordance with considered ‘‘high risk’’ if an awarding State laws and procedures for expend- agency determines that a grantee or ing and accounting for its own funds. subgrantee: Fiscal control and accounting proce- (1) Has a history of unsatisfactory dures of the State, as well as its sub- performance, or grantees and cost-type contractors, (2) Is not financially stable, or must be sufficient to— (3) Has a management system which (1) Permit preparation of reports re- does not meet the management stand- quired by this part and the statutes au- ards set forth in this part, or thorizing the grant, and (4) Has not conformed to terms and (2) Permit the tracing of funds to a conditions of previous awards, or level of expenditures adequate to es- (5) Is otherwise not responsible; and tablish that such funds have not been if the awarding agency determines that used in violation of the restrictions an award will be made, special condi- and prohibitions of applicable statutes. tions and/or restrictions shall cor- (b) The financial management sys- respond to the high risk condition and tems of other grantees and subgrantees shall be included in the award. must meet the following standards: (b) Special conditions or restrictions (1) Financial reporting. Accurate, cur- may include: rent, and complete disclosure of the fi- (1) Payment on a reimbursement nancial results of financially assisted basis; activities must be made in accordance
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with the financial reporting require- of-credit or electronic transfer of funds ments of the grant or subgrant. methods, the grantee must make (2) Accounting records. Grantees and drawdowns as close as possible to the subgrantees must maintain records time of making disbursements. Grant- which adequately identify the source ees must monitor cash drawdowns by and application of funds provided for fi- their subgrantees to assure that they nancially-assisted activities. These conform substantially to the same records must contain information per- standards of timing and amount as taining to grant or subgrant awards apply to advances to the grantees. and authorizations, obligations, unobli- (c) An awarding agency may review gated balances, assets, liabilities, out- the adequacy of the financial manage- lays or expenditures, and income. ment system of any applicant for fi- (3) Internal control. Effective control and accountability must be maintained nancial assistance as part of a for all grant and subgrant cash, real preaward review or at any time subse- and personal property, and other as- quent to award. sets. Grantees and subgrantees must adequately safeguard all such property § 1273.21 Payment. and must assure that it is used solely (a) Scope. This section prescribes the for authorized purposes. basic standard and the methods under (4) Budget control. Actual expendi- which a Federal agency will make pay- tures or outlays must be compared ments to grantees, and grantees will with budgeted amounts for each grant make payments to subgrantees and or subgrant. Financial information contractors. must be related to performance or pro- (b) Basic standard. Methods and pro- ductivity data, including the develop- cedures for payment shall minimize ment of unit cost information when- the time elapsing between the transfer ever appropriate or specifically re- of funds and disbursement by the quired in the grant or subgrant agree- grantee or subgrantee, in accordance ment. If unit cost data are required, es- with Treasury regulations at 31 CFR timates based on available documenta- part 205. tion will be accepted whenever pos- sible. (c) Advances. Grantees and sub- (5) Allowable cost. Applicable OMB grantees shall be paid in advance, pro- cost principles, agency program regula- vided they maintain or demonstrate tions, and the terms of grant and the willingness and ability to maintain subgrant agreements will be followed procedures to minimize the time elaps- in determining the reasonableness, al- ing between the transfer of the funds lowability, and allocability of costs. and their disbursement by the grantee (6) Source documentation. Accounting or subgrantee. records must be supported by such (d) Reimbursement. Reimbursement source documentation as cancelled shall be the preferred method when the checks, paid bills, payrolls, time and requirements in paragraph (c) of this attendance records, contract and section are not met. Grantees and sub- subgrant award documents, etc. grantees may also be paid by reim- (7) Cash management. Procedures for bursement for any construction grant. minimizing the time elapsing between Except as otherwise specified in regula- the transfer of funds from the U.S. tion, Federal agencies shall not use the Treasury and disbursement by grantees percentage of completion method to and subgrantees must be followed pay construction grants. The grantee whenever advance payment procedures or subgrantee may use that method to are used. Grantees must establish rea- pay its construction contractor, and if sonable procedures to ensure the re- it does, the awarding agency’s pay- ceipt of reports on subgrantees’ cash balances and cash disbursements in ments to the grantee or subgrantee sufficient time to enable them to pre- will be based on the grantee’s or sub- pare complete and accurate cash trans- grantee’s actual rate of disbursement. actions reports to the awarding agen- (e) Working capital advances. If a cy. When advances are made by letter- grantee cannot meet the criteria for
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advance payments described in para- to assure satisfactory completion of graph (c) of this section, and the Fed- work. Payments shall be made by the eral agency has determined that reim- Federal agency when the grantees or bursement is not feasible because the subgrantees actually disburse the with- grantee lacks sufficient working cap- held funds to the contractors or to es- ital, the awarding agency may provide crow accounts established to assure cash on a working capital advance satisfactory completion of work. basis. Under this procedure the award- (h) Cash depositories. (1) Consistent ing agency shall advance cash to the with the national goal of expanding the grantee to cover its estimated dis- opportunities for minority business en- bursement needs for an initial period terprises, grantees and subgrantees are generally geared to the grantee’s dis- encouraged to use minority banks (a bursing cycle. Thereafter, the awarding bank which is owned at least 50 percent agency shall reimburse the grantee for by minority group members). A list of its actual cash disbursements. The minority owned banks can be obtained working capital advance method of from the Minority Business Develop- payment shall not be used by grantees ment Agency, Department of Com- or subgrantees if the reason for using merce, Washington, DC 20230. such method is the unwillingness or in- (2) A grantee or subgrantee shall ability of the grantee to provide timely maintain a separate bank account only advances to the subgrantee to meet the when required by Federal-State agree- subgrantee’s actual cash disburse- ment. ments. (i) Interest earned on advances. Except (f) Effect of program income, refunds, for interest earned on advances of and audit recoveries on payment. (1) funds exempt under the Intergovern- Grantees and subgrantees shall dis- mental Cooperation Act (31 U.S.C. 6501 burse repayments to and interest et seq.) and the Indian Self-Determina- earned on a revolving fund before re- tion Act (23 U.S.C. 450), grantees and questing additional cash payments for subgrantees shall promptly, but at the same activity. least quarterly, remit interest earned (2) Except as provided in paragraph on advances to the Federal agency. The (f)(1) of this section, grantees and sub- grantee or subgrantee may keep inter- grantees shall disburse program in- est amounts up to $100 per year for ad- come, rebates, refunds, contract settle- ministrative expenses. ments, audit recoveries and interest earned on such funds before requesting § 1273.22 Allowable costs. additional cash payments. (g) Withholding payments. (1) Unless (a) Limitation on use of funds. Grant otherwise required by Federal statute, funds may be used only for: awarding agencies shall not withhold (1) The allowable costs of the grant- payments for proper charges incurred ees, subgrantees and cost-type contrac- by grantees or subgrantees unless- tors, including allowable costs in the (i) The grantee or subgrantee has form of payments to fixed-price con- failed to comply with grant award con- tractors; and ditions or (2) Reasonable fees or profit to cost- (ii) The grantee or subgrantee is in- type contractors but not any fee or debted to the United States. profit (or other increment above allow- (2) Cash withheld for failure to com- able costs) to the grantee or sub- ply with grant award condition, but grantee. without suspension of the grant, shall (b) Applicable cost principles. For each be released to the grantee upon subse- kind of organization, there is a set of quent compliance. When a grant is sus- Federal principles for determining al- pended, payment adjustments will be lowable costs. Allowable costs will be made in accordance with § 1273.43(c). determined in accordance with the cost (3) A Federal agency shall not make principles applicable to the organiza- payment to grantees for amounts that tion incurring the costs. The following are withheld by grantees or sub- chart lists the kinds of organizations grantees from payment to contractors and the applicable cost principles.
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For the costs of a Use the principles in:
State, local or Indian tribal government ...... OMB Circular A–87. Private nonprofit organization other than an (1) institution of OMB Circular A–122. higher education, (2) hospital, or (3) organization named in OMB Circular A–122 as not subject to that circular. Educational institutions ...... OMB Circular A–21. For-profit organization other than a hospital and an organiza- 48 CFR part 31, Contract Cost Principles and Procedures, or tion named in OMB Circular A–122 as not subject to that cir- uniform cost accounting standards that comply with cost cular. principles acceptable to the Federal agency.
§ 1273.23 Period of availability of a contract awarded under another Fed- funds. eral grant. (a) General. Where a funding period is (2) General revenue sharing. For the specified, a grantee may charge to the purpose of this section, general revenue award only costs resulting from obliga- sharing funds distributed under 31 tions of the funding period unless car- U.S.C. 6702 are not considered Federal grant funds. ryover of unobligated balances is per- (3) Cost or contributions counted to- mitted, in which case the carryover wards other Federal costs-sharing require- balances may be charged for costs re- ments. Neither costs nor the values of sulting from obligations of the subse- third party in-kind contributions may quent funding period. count towards satisfying a cost sharing (b) Liquidation of obligations. A grant- or matching requirement of a grant ee must liquidate all obligations in- agreement if they have been or will be curred under the award not later than counted towards satisfying a cost shar- 90 days after the end of the funding pe- ing or matching requirement of an- riod (or as specified in a program regu- other Federal grant agreement, a Fed- lation) to coincide with the submission eral procurement contract, or any of the annual Financial Status Report other award of Federal funds. (SF–269). The Federal agency may ex- (4) Costs financed by program income. tend this deadline at the request of the Costs financed by program income, as grantee. defined in § 1273.25, shall not count to- wards satisfying a cost sharing or § 1273.24 Matching or cost sharing. matching requirement unless they are (a) Basic rule: Costs and contributions expressly permitted in the terms of the acceptable. With the qualifications and assistance agreement. (This use of gen- exceptions listed in paragraph (b) of eral program income is described in this section, a matching or cost shar- § 1273.25(g).) ing requirement may be satisfied by ei- (5) Services or property financed by in- ther or both of the following: come earned by contractors. Contractors (1) Allowable costs incurred by the under a grant may earn income from grantee, subgrantee or a cost-type con- the activities carried out under the tractor under the assistance agreement. contract in addition to the amounts This includes allowable costs borne by earned from the party awarding the non-Federal grants or by others cash contract. No costs of services or prop- donations from non-Federal third par- erty supported by this income may ties. count toward satisfying a cost sharing (2) The value of third party in-kind or matching requirement unless other contributions applicable to the period provisions of the grant agreement ex- to which the cost sharing or matching pressly permit this kind of income to requirements applies. be used to meet the requirement. (b) Qualifications and exceptions—(1) (6) Records. Costs and third party in- Costs borne by other Federal grant agree- kind contributions counting towards ments. Except as provided by Federal satisfying a cost sharing or matching statute, a cost sharing or matching re- requirement must be verifiable from quirement may not be met by costs the records of grantees and subgrantee borne by another Federal grant. This or cost-type contractors. These records prohibition does not apply to income must show how the value placed on earned by a grantee or subgrantee from third party in-kind contributions was
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derived. To the extent feasible, volun- fringe benefits may be included in the teer services will be supported by the valuation. same methods that the organization (2) Employees of other organizations. uses to support the allocability of reg- When an employer other than a grant- ular personnel costs. ee, subgrantee, or cost-type contractor (7) Special standards for third party in- furnishes free of charge the services of kind contributions. (i) Third party in- an employee in the employee’s normal kind contributions count towards sat- line of work, the services will be valued isfying a cost sharing or matching re- at the employee’s regular rate of pay quirement only where, if the party re- exclusive of the employee’s fringe ben- ceiving the contributions were to pay efits and overhead costs. If the services for them, the payments would be allow- are in a different line of work, para- able costs. graph (c)(1) of this section applies. (ii) Some third party in-kind con- (d) Valuation of third party donated tributions are goods and services that, supplies and loaned equipment or space. if the grantee, subgrantee, or con- (1) If a third party donates supplies, tractor receiving the contribution had the contribution will be valued at the to pay for them, the payments would market value of the supplies at the have been an indirect costs. Costs shar- time of donation. ing or matching credit for such con- (2) If a third party donates the use of tributions shall be given only if the equipment or space in a building but grantee, subgrantee, or contractor has retains title, the contribution will be established, along with its regular indi- valued at the fair rental rate of the rect cost rate, a special rate for allo- equipment or space. cating to individual projects or pro- (e) Valuation of third party donated grams the value of the contributions. equipment, buildings, and land. If a third party donates equipment, buildings, or (iii) A third party in-kind contribu- land, and title passes to a grantee or tion to a fixed-price contract may subgrantee, the treatment of the do- count towards satisfying a cost sharing nated property will depend upon the or matching requirement only if it re- purpose of the grant or subgrant, as sults in: follows: (A) An increase in the services or (1) Awards for capital expenditures. If property provided under the contract the purpose of the grant or subgrant is (without additional cost to the grantee to assist the grantee or subgrantee in or subgrantee) or the acquisition of property, the market (B) A cost savings to the grantee or value of that property at the time of subgrantee. donation may be counted as cost shar- (iv) The values placed on third party ing or matching, in-kind contributions for cost sharing (2) Other awards. If assisting in the or matching purposes will conform to acquisition of property is not the pur- the rules in the succeeding sections of pose of the grant or subgrant, para- this part. If a third party in-kind con- graphs (e)(2)(i) and (ii) of this section tribution is a type not treated in those apply: sections, the value placed upon it shall (i) If approval is obtained from the be fair and reasonable. awarding agency, the market value at (c) Valuation of donated services—(1) the time of donation of the donated Volunteer services. Unpaid services pro- equipment or buildings and the fair vided to a grantee or subgrantee by in- rental rate of the donated land may be dividuals will be valued at rates con- counted as cost sharing or matching. sistent with those ordinarily paid for In the case of a subgrant, the terms of similar work in the grantee’s or sub- the grant agreement may require that grantee’s organization. If the grantee the approval be obtained from the Fed- or subgrantee does not have employees eral agency as well as the grantee. In performing similar work, the rates will all cases, the approval may be given be consistent with those ordinarily only if a purchase of the equipment or paid by other employers for similar rental of the land would be approved as work in the same labor market. In ei- an allowable direct cost. If any part of ther case, a reasonable amount for the donated property was acquired
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with Federal funds, only the non-fed- Except as otherwise provided in regula- eral share of the property may be tions of the Federal agency, program counted as cost-sharing or matching. income does not include interest on (ii) If approval is not obtained under grant funds, rebates, credits, discounts, paragraph (e)(2)(i) of this section, no refunds, etc. and interest earned on amount may be counted for donated any of them. land, and only depreciation or use al- (b) Definition of program income. Pro- lowances may be counted for donated gram income means gross income re- equipment and buildings. The deprecia- ceived by the grantee or subgrantee di- tion or use allowances for this property rectly generated by a grant supported are not treated as third party in-kind activity, or earned only as a result of contributions. Instead, they are treat- the grant agreement during the grant ed as costs incurred by the grantee or period. ‘‘During the grant period’’ is subgrantee. They are computed and al- the time between the effective date of located (usually as indirect costs) in the award and the ending date of the accordance with the cost principles award reflected in the final financial specified in § 1273.22, in the same way as report. depreciation or use allowances for pur- (c) Cost of generating program income. chased equipment and buildings. The If authorized by Federal regulations or amount of depreciation or use allow- the grant agreement, costs incident to ances for donated equipment and build- the generation of program income may ings is based on the property’s market be deducted from gross income to de- value at the time it was donated. termine program income. (f) Valuation of grantee or subgrantee (d) Governmental revenues. Taxes, spe- donated real property for construction/ac- cial assessments, levies, fines, and quisition. If a grantee or subgrantee do- nates real property for a construction other such revenues raised by a grantee or facilities acquisition project, the or subgrantee are not program income current market value of that property unless the revenues are specifically may be counted as cost sharing or identified in the grant agreement or matching. If any part of the donated Federal agency regulations as program property was acquired with Federal income. funds, only the non-federal share of the (e) Royalties. Income from royalties property may be counted as cost shar- and license fees for copyrighted mate- ing or matching. rial, patents, and inventions developed (g) Appraisal of real property. In some by a grantee or subgrantee is program cases under paragraphs (d), (e) and (f) income only if the revenues are specifi- of this section, it will be necessary to cally identified in the grant agreement establish the market value of land or a or Federal agency regulations as pro- building or the fair rental rate of land gram income. (See § 1273.34). or of space in a building. In these cases, (f) Property. Proceeds from the sale of the Federal agency may require the real property or equipment will be han- market value or fair rental value be set dled in accordance with the require- by an independent appraiser, and that ments of §§ 1273.31 and 1273.32. the value or rate be certified by the (g) Use of program income. Program grantee. This requirement will also be income shall be deducted from outlays imposed by the grantee on subgrantees. which may be both Federal and non- Federal as described below, unless the § 1273.25 Program income. Federal agency regulations or the (a) General. Grantees are encouraged grant agreement specify another alter- to earn income to defray program native (or a combination of the alter- costs. Program income includes income natives). In specifying alternatives, the from fees for services performed, from Federal agency may distinguish be- the use or rental of real or personal tween income earned by the grantee property acquired with grant funds, and income earned by subgrantees and from the sale of commodities or items between the sources, kinds, or amounts fabricated under a grant agreement, of income. When Federal agencies au- and from payments of principal and in- thorize the alternatives in paragraphs terest on loans made with grant funds. (g)(2) and (3) of this section, program
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income in excess of any limits stipu- (1) Determine whether State or local lated shall also be deducted from out- subgrantees have met the audit re- lays. quirements of the Act and whether sub- (1) Deduction. Ordinarily program in- grantees covered by OMB Circular A– come shall be deducted from total al- 110, ‘‘Uniform Administrative Require- lowable costs to determine the net al- ments for Grants and Agreements with lowable costs. Program income shall be Institutions of Higher Education, Hos- used for current costs unless the Fed- pitals, and Other Non-Profit Organiza- eral agency authorizes otherwise. Pro- tions,’’ have met the audit require- gram income which the grantee did not ments of the Act. Commercial contrac- anticipate at the time of the award tors (private for-profit and private and shall be used to reduce the Federal governmental organizations) providing agency and grantee contributions rath- goods and services to State and local er than to increase the funds com- governments are not required to have a mitted to the project. single audit performed. State and local (2) Addition. When authorized, pro- governments should use their own pro- gram income may be added to the cedures to ensure that the contractor funds committed to the grant agree- has complied with laws and regulations ment by the Federal agency and the affecting the expenditure of Federal grantee. The program income shall be funds; used for the purposes and under the (2) Determine whether the sub- conditions of the grant agreement. grantee spent Federal assistance funds (3) Cost sharing or matching. When au- provided in accordance with applicable thorized, program income may be used laws and regulations. This may be ac- to meet the cost sharing or matching complished by reviewing an audit of requirement of the grant agreement. the subgrantee made in accordance The amount of the Federal grant award with the Act, Circular A–110, or remains the same. through other means (e.g., program re- (h) Income after the award period. views) if the subgrantee has not had There are no Federal requirements gov- such an audit; erning the disposition of program in- (3) Ensure that appropriate correc- come earned after the end of the award tive action is taken within six months period (i.e., until the ending date of the after receipt of the audit report in in- final financial report, see paragraph (a) stance of noncompliance with Federal of this section), unless the terms of the laws and regulations; agreement or the Federal agency regu- (4) Consider whether subgrantee au- lations provide otherwise. dits necessitate adjustment of the grantee’s own records; and § 1273.26 Non-Federal audit. (5) Require each subgrantee to permit (a) Basic rule. Grantees and sub- independent auditors to have access to grantees are responsible for obtaining the records and financial statements. audits in accordance with the Single (c) Auditor selection. In arranging for Audit Act Amendments of 1996 (31 audit services, § 1273.36 shall be fol- U.S.C. 7501–7507) and revised OMB Cir- lowed. cular A–133, ‘‘Audits of States, Local [60 FR 33694, June 29, 1995, as amended at 62 Governments, and Non-Profit Organi- FR 45939, 45940, Aug. 29, 1997] zations.’’ The audits shall be made by an independent auditor in accordance CHANGES, PROPERTY, AND SUBAWARDS with generally accepted government auditing standards covering financial § 1273.30 Changes. audits. (a) General. Grantees and subgrantees (b) Subgrantees. State or local govern- are permitted to rebudget within the ments, as those terms are defined for approved direct cost budget to meet purposes of the Single Audit Act unanticipated requirements and may Amendments of 1996, that provide Fed- make limited program changes to the eral awards to a subgrantee, which ex- approved project. However, unless pends $300,000 or more (or other waived by the awarding agency, certain amount as specified by OMB) in Fed- types of post-award changes in budgets eral awards in a fiscal year, shall: and projects shall require the prior
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written approval of the awarding agen- (3) Changes in key persons in cases cy. where specified in an application or a (b) Relation to cost principles. The ap- grant award. In research projects, a plicable cost principles (see § 1273.22) change in the project director or prin- contain requirements for prior ap- cipal investigator shall always require proval of certain types of costs. Except approval unless waived by the award- where waived, those requirements ing agency. apply to all grants and subgrants even (4) Under nonconstruction projects, if paragraphs (c) through (f) of this sec- contracting out, subgranting (if au- tion do not. thorized by law) or otherwise obtaining (c) Budget changes—(1) Nonconstruc- the services of a third party to perform tion projects. Except as stated in other activities which are central to the pur- regulations or an award document, poses of the award. This approval re- grantees or subgrantees shall obtain quirement is in addition to the ap- the prior approval of the awarding proval requirements of § 1273.36 but agency whenever any of the following does not apply to the procurement of changes is anticipated under a non- equipment, supplies, and general sup- construction award: port services. (i) Any revision which would result (e) Additional prior approval require- in the need for additional funding. ments. The awarding agency may not (ii) Unless waived by the awarding require prior approval for any budget agency, cumulative† transfers among revision which is not described in para- direct cost categories, or, if applicable, graph (c) of this section. among separately budgeted programs, (f) Requesting prior approval. (1) A re- projects, functions, or activities which quest for prior approval of any budget exceed or are expected to exceed ten revision will be in the same budget for- percent of the current total approved mat the grantee used in its application budget, whenever the awarding agen- and shall be accompanied by a nar- cy’s share exceeds $100,000. rative justification for the proposed re- (iii) Transfer of funds allotted for vision. training allowances (i.e., from direct payments to trainees to other expense (2) A request for a prior approval categories). under the applicable Federal cost prin- (2) Construction projects. Grantees and ciples (see § 1273.22) may be made by subgrantees shall obtain prior written letter. approval for any budget revision which (3) A request by a subgrantee for would result in the need for additional prior approval will be addressed in funds. writing to the grantee. The grantee (3) Combined construction and non- will promptly review such request and construction projects. When a grant or shall approve or disapprove the request subgrant provides funding for both con- in writing. A grantee will not approve struction and nonconstruction activi- any budget or project revision which is ties, the grantee or subgrantee must inconsistent with the purpose or terms obtain prior written approval from the and conditions of the Federal grant to awarding agency before making any the grantee. If the revision, requested fund or budget transfer from non- by the subgrantee would result in a construction to construction or vice change to the grantee’s approved versa. project which requires Federal prior (d) Programmatic changes. Grantees or approval, the grantee will obtain the subgrantees must obtain the prior ap- Federal agency’s approval before ap- proval of the awarding agency when- proving the subgrantee’s request. ever any of the following actions is an- ticipated: § 1273.31 Real property. (1) Any revision of the scope or objec- (a) Title. Subject to the obligations tives of the project (regardless of and conditions set forth in this section, whether there is an associated budget title to real property acquired under a revision requiring prior approval). grant or subgrant will vest upon acqui- (2) Need to extend the period of avail- sition in the grantee or subgrantee re- ability of funds. spectively.
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(b) Use. Except as otherwise provided § 1273.32 Equipment. by Federal statutes, real property will (a) Title. Subject to the obligations be used for the originally authorized and conditions set forth in this section, purposes as long as needed for that pur- title to equipment acquired under a pose, and the grantee or subgrantee grant or subgrant will vest upon acqui- shall not dispose of or encumber its sition in the grantee or subgrantee re- title or other interests. spectively. (c) Disposition. When real property is (b) States. A State will use, manage, no longer needed for the originally au- and dispose of equipment acquired thorized purpose, the grantee or sub- under a grant by the State in accord- grantee will request disposition in- ance with State laws and procedures. structions from the awarding agency. Other grantees and subgrantees will The instructions will provide for one of follow paragraphs (c) through (e) of the following alternatives: this section. (1) Retention of title. Retain after (c) Use. (1) Equipment shall be used compensating the awarding agency. by the grantee or subgrantee in the The amount paid to the awarding agen- program or project for which it was ac- cy will be computed by applying the quired as long as needed, whether or awarding agency’s percentage of par- not the project or program continues ticipation in the cost of the original to be supported by Federal funds. When purchase to the fair market value of no longer needed for the original pro- the property. However, in those situa- gram or project, the equipment may be tions where a grantee or subgrantee is used in other activities currently or disposing of real property acquired previously supported by a Federal agency. with grant funds and acquiring replace- ment real property under the same pro- (2) The grantee or subgrantee shall also make equipment available for use gram, the net proceeds from the dis- on other projects or programs cur- position may be used as an offset to the rently or previously supported by the cost of the replacement property. Federal Government, providing such (2) Sale of property. Sell the property use will not interfere with the work on and compensate the awarding agency. the projects or program for which it The amount due to the awarding agen- was originally acquired. First pref- cy will be calculated by applying the erence for other use shall be given to awarding agency’s percentage of par- other programs or projects supported ticipation in the cost of the original by the awarding agency. User fees purchase to the proceeds of the sale should be considered if appropriate. after deduction of any actual and rea- (3) Notwithstanding the encourage- sonable selling and fixing-up expenses. ment in § 1273.25(a) to earn program in- If the grant is still active, the net pro- come, the grantee or subgrantee must ceeds from sale may be offset against not use equipment acquired with grant the original cost of the property. When funds to provide services for a fee to a grantee or subgrantee is directed to compete unfairly with private compa- sell property, sales procedures shall be nies that provide equivalent services, followed that provide for competition unless specifically permitted or con- to the extent practicable and result in templated by Federal statute. the highest possible return. (4) When acquiring replacement (3) Transfer of title. Transfer title to equipment, the grantee or subgrantee the awarding agency or to a third- may use the equipment to be replaced party designated/approved by the as a trade-in or sell the property and awarding agency. The grantee or sub- use the proceeds to offset the cost of the replacement property, subject to grantee shall be paid an amount cal- the approval of the awarding agency. culated by applying the grantee or sub- (d) Management requirements. Proce- grantee’s percentage of participation dures for managing equipment (includ- in the purchase of the real property to ing replacement equipment), whether the current fair market value of the acquired in whole or in part with grant property. funds, until disposition takes place
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will, as a minimum, meet the following (f) Federal equipment. In the event a requirements: grantee or subgrantee is provided fed- (1) Property records must be main- erally-owned equipment: tained that include a description of the (1) Title will remain vested in the property, a serial number or other Federal Government. identification number, the source of (2) Grantees or subgrantees will man- property, who holds title, the acquisi- age the equipment in accordance with tion date, and cost of the property, per- Federal agency rules and procedures, centage of Federal participation in the and submit an annual inventory list- cost of the property, the location, use ing. and condition of the property, and any (3) When the equipment is no longer ultimate disposition data including the needed, the grantee or subgrantee will date of disposal and sale price of the request disposition instructions from property. the Federal agency. (2) A physical inventory of the prop- (g) Right to transfer title. The Federal erty must be taken and the results rec- awarding agency may reserve the right onciled with the property records at to transfer title to the Federal Govern- least once every two years. ment or a third party named by the (3) A control system must be devel- awarding agency when such a third oped to ensure adequate safeguards to party is otherwise eligible under exist- prevent loss, damage, or theft of the ing statutes. Such transfers shall be property. Any loss, damage or theft subject to the following standards: shall be investigated. (1) The property shall be identified in (4) Adequate maintenance procedures the grant or otherwise made known to must be developed to keep the property the grantee in writing. in good condition. (2) The Federal awarding agency (5) If the grantee or subgrantee is au- shall issue disposition instruction thorized or required to sell the prop- within 120 calendar days after the end erty, proper sales procedures must be of the Federal support of the project established to ensure the highest pos- for which it was acquired. If the Fed- sible return. eral awarding agency fails to issue dis- (e) Disposition. When original or re- position instructions within the 120 placement equipment acquired under a calendar-day period the grantee shall grant or subgrant is no longer needed follow § 1273.32(e). for the original project or program or (3) When title to equipment is trans- for other activities currently or pre- ferred, the grantee shall be paid an viously supported by a Federal agency, amount calculated by applying the per- disposition of the equipment will be centage of participation in the pur- made as follows: chase to the current fair market value (1) Items of equipment with a current of the property. per-unit fair market value of less than $5,000 may be retained, or sold or other- § 1273.33 Supplies. wise disposed of with no further obliga- tion to the awarding agency. (a) Title. Title to supplies acquired (2) Items of equipment with a current under a grant or subgrant will vest, per unit fair market value in excess of upon acquisition, in the grantee or sub- $5,000 may be retained or sold and the grantee respectively. awarding agency shall have a right to (b) Disposition. If there is a residual an amount calculated by multiplying inventory of unused supplies exceeding the current market value or proceeds $5,000 in total aggregate fair market from sale by the awarding agency’s value upon termination or completion share of the equipment. of the award, and if the supplies are (3) In cases where a grantee or sub- not needed for any other federally grantee fails to take appropriate dis- sponsored programs or projects, the position actions, the awarding agency grantee or subgrantee shall com- may direct the grantee or subgrantee pensate the awarding agency for its to take excess and disposition actions. share.
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§ 1273.34 Copyrights. employee, officer or agent of the grant- The Federal awarding agency re- ee or subgrantee shall participate in se- serves a royalty-free, nonexclusive, and lection, or in the award or administra- irrevocable license to reproduce, pub- tion of a contract supported by Federal lish or otherwise use, and to authorize funds if a conflict of interest, real or others to use, for Federal Government apparent, would be involved. Such a purposes: conflict would arise when: (a) The copyright in any work devel- (i) The employee, officer or agent, oped under a grant, subgrant, or con- (ii) Any member of his immediate tract under a grant or subgrant; and family, (b) Any rights of copyright to which (iii) His or her partner, or a grantee, subgrantee or a contractor (iv) An organization which employs, purchases ownership with grant sup- or is about to employ, any of the port. above, has a financial or other interest in the firm selected for award. The § 1273.35 Subawards to debarred and grantee’s or subgrantee’s officers, em- suspended parties. ployees or agents will neither solicit Grantees and subgrantees must not nor accept gratuities, favors or any- make any award or permit any award thing of monetary value from contrac- (subgrant or contract) at any tier to tors, potential contractors, or parties any party which is debarred or sus- to subagreements. Grantee and sub- pended or is otherwise excluded from or grantees may set minimum rules where ineligible for participation in Federal the financial interest is not substantial assistance programs under Executive or the gift is an unsolicited item or Order 12549, ‘‘Debarment and Suspen- nominal intrinsic value. To the extent sion.’’ permitted by State or local law or reg- § 1273.36 Procurement. ulations, such standards or conduct will provide for penalties, sanctions, or (a) States. When procuring property other disciplinary actions for viola- and services under a grant, a State will tions of such standards by the grant- allow the same policies and procedures ee’s and subgrantee’s officers, employ- it uses for procurements from its non- ees, or agents, or by contractors or Federal funds. The State will ensure their agents. The awarding agency may that every purchase order or other con- tract includes any clauses required by in regulation provide additional prohi- Federal statutes and executive orders bitions relative to real, apparent, or and their implementing regulations. potential conflicts of interest. Other grantees and subgrantees will (4) Grantee and subgrantee proce- follow paragraphs (b) through (i) in dures will provide for a review of pro- this section. posed procurements to avoid purchase (b) Procurement standards. (1) Grant- of unnecessary or duplicative items. ees and subgrantees will use their own Consideration should be given to con- procurement procedures which reflect solidating or breaking out procure- applicable State and local laws and ments to obtain a more economical regulations, provided that the procure- purchase. Where appropriate, an anal- ments conform to applicable Federal ysis will be made of lease versus pur- law and the standards identified in this chase alternatives, and any other ap- section. propriate analysis to determine the (2) Grantees and subgrantees will most economical approach. maintain a contract administration (5) To foster greater economy and ef- system which ensures that contractors ficiency, grantees and subgrantees are perform in accordance with the terms, encouraged to enter into State and conditions, and specifications of their local intergovernmental agreements contracts or purchase orders. for procurement or use of common (3) Grantees an subgrantees will goods and services. maintain a written code of standards of (6) Grantees and subgrantees are en- conduct governing the performance of couraged to use Federal excess and sur- their employees engaged in the award plus property in lieu of purchasing new and administration of contracts. No equipment and property whenever such
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use is feasible and reduces project resolve disputes relating to their pro- costs. curements and shall in all instances (7) Grantees and subgrantees are en- disclose information regarding the pro- couraged to use value engineering test to the awarding agency. A clauses in contracts for construction protestor must exhaust all administra- projects of sufficient size to offer rea- tive remedies with the grantee and sub- sonable opportunities for cost reduc- grantee before pursuing a protest with tions. Value engineering is a system- the Federal agency. Reviews of pro- atic and creative analysis of each con- tests by the Federal agency will be lim- tract item or task to ensure that its es- ited to: sential function is provided at the (i) Violations of Federal law or regu- overall lower cost. lations and the standards of this sec- (8) Grantees and subgrantees will tion (violations of State or local law make awards only to responsible con- will be under the jurisdiction of State tractors possessing the ability to per- or local authorities) and form successfully under the terms and (ii) Violations of the grantee’s or sub- conditions of a proposed procurement. grantee’s protest procedures for failure Consideration will be given to such to review a complaint or protest. Pro- matters as contractor integrity, com- tests received by the Federal agency pliance with public policy, record of other than those specified above will be past performance, and financial and referred to the grantee or subgrantee. technical resources. (c) Competition. (1) All procurement (9) Grantees and subgrantees will transactions will be conducted in a maintain records sufficient to detail manner providing full and open com- the significant history of a procure- petition consistent with the standards ment. These records will include, but of § 1273.36. Some of the situations con- are not necessarily limited to the fol- sidered to be restrictive of competition lowing: rationale for the method of include but are not limited to: procurement, selection of contract (i) Placing unreasonable require- type, contractor selection or rejection, ments on firms in order for them to and the basis for the contract price. qualify to do business, (10) Grantees and subgrantees will (ii) Requiring unnecessary experience use time and material type contracts and excessive bonding, only— (iii) Noncompetitive pricing practices (i) After a determination that no between firms or between affiliated other contract is suitable, and companies, (ii) If the contract includes a ceiling (iv) Noncompetitive awards to con- price that the contractor exceeds at its sultants that are on retainer contracts, own risk. (v) Organizational conflicts of inter- (11) Grantees and subgrantees alone est, will be responsible, in accordance with (vi) Specifying only a ‘‘brand name’’ good administrative practice and sound product instead of allowing ‘‘an equal’’ business judgment, for the settlement product to be offered and describing of all contractual and administrative the performance of other relevant re- issues arising out of procurements. quirements of the procurement, and These issues include, but are not lim- (vii) Any arbitrary action in the pro- ited to source evaluation, protests, dis- curement process. putes, and claims. These standards do (2) Grantees and subgrantees will not relieve the grantee or subgrantee conduct procurements in a manner of any contractual responsibilities that prohibits the use of statutorily or under its contracts. Federal agencies administratively imposed in-State or will not substitute their judgment for local geographical preferences in the that of the grantee or subgrantee un- evaluation of bids or proposals, except less the matter is primarily a Federal in those cases where applicable Federal concern. Violations of law will be re- statutes expressly mandate or encour- ferred to the local, State, or Federal age geographic preference. Nothing in authority having proper jurisdiction. this section preempts State licensing (12) Grantees and subgrantees will laws. When contracting for architec- have protest procedures to handle and tural and engineering (A/E) services,
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geographic location may be a selection obtained from an adequate number of criteria provided its application leaves qualified sources. an appropriate number of qualified (2) Procurement by sealed bids (formal firms, given the nature and size of the advertising). Bids are publicly solicited project, to compete for the contract. and a firm-fixed-price contract (lump (3) Grantees will have written selec- sum or unit price) is awarded to the re- tion procedures for procurement trans- sponsible bidder whose bid, conforming actions. These procedures will ensure with all the material terms and condi- that all solicitations: tions of the invitation for bids, is the (i) Incorporate a clear and accurate lowest in price. The sealed bid method description of the technical require- is the preferred method for procuring ments for the material, product, or construction, if the conditions in service to be procured. Such descrip- § 1273.36(d)(2)(i) apply. tion shall not, in competitive procure- (i) In order for sealed bidding to be ments, contain features which unduly feasible, the following conditions restrict competition. The description should be present: may include a statement of the quali- (A) A complete, adequate, and real- tative nature of the material, product istic specification or purchase descrip- or service to be procured, and when tion is available; necessary, shall set forth those min- (B) Two or more responsible bidders imum essential characteristics and are willing and able to compete effec- standards to which it must conform if tively for the business; and it is to satisfy its intended use. De- (C) The procurement lends itself to a tailed product specifications should be firm fixed price contract and the selec- avoided if at all possible. When it is tion of the successful bidder can be impractical or uneconomical to make a made principally on the basis of price. clear and accurate description of the (ii) If sealed bids are used, the fol- technical requirements, a ‘‘brand name lowing requirements apply: or equal’’ description may be used as a (A) The invitation for bids will be means to define the performance or publicly advertised and bids shall be other salient requirements of a pro- solicited from an adequate number of curement. The specific features of the known suppliers, providing them suffi- named brand which must be met by cient time prior to the date set for offerors shall be clearly stated; and opening the bids; (ii) Identify all requirements which (B) The invitation for bids, which the offerors must fulfill and all other will include any specifications and per- factors to be used in evaluating bids or tinent attachments, shall define the proposals. items or services in order for the bidder (4) Grantees and subgrantees will en- to properly respond; sure that all prequalified lists of per- (C) All bids will be publicly opened at sons, firms, or products which are used the time and place prescribed in the in- in acquiring goods and services are cur- vitation for bids; rent and include enough qualified (D) A firm fixed-price contract award sources to ensure maximum open and will be made in writing to the lowest free competition. Also, grantees and responsive and responsible bidder. subgrantees will not preclude potential Where specified in bidding documents, bidders from qualifying during the so- factors such as discounts, transpor- licitation period. tation cost, and life cycle costs shall be (d) Methods of procurement to be fol- considered in determining which bid is lowed—(1) Procurement by small purchase lowest. Payment discounts will only be procedures. Small purchase procedures used to determine the low bid when are those relatively simple and infor- prior experience indicates that such mal procurement methods for securing discounts are usually taken advantage services, supplies, or other property of: and that do not cost more than the sim- (E) Any or all bids may be rejected if plified acquisition threshold fixed at 41 there is a sound documented reason. U.S.C. 403(11) (currently set at $100,000). (3) Procurement by competitive pro- If small purchase procurements are posals. The technique of competitive used, price or rate quotations shall be proposals is normally conducted with
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more than one source submitting an (C) The awarding agency authorizes offer, and either a fixed-price or cost- noncompetitive proposals; or reimbursement type contract is award- (D) After solicitation of a number of ed. It is generally used when conditions sources, competition is determined in- are not appropriate for the use of adequate. sealed bids. If this method is used, the (ii) Cost analysis, i.e., verifying the following requirements apply: proposed cost data, the projections of (i) Requests for proposals will be pub- the data, and the evaluation of the spe- licized and identify all evaluation fac- cific elements of costs and profit, is re- tors and their relative importance. Any quired. response to publicized requests for pro- (iii) Grantees and subgrantees may posals shall be honored to the max- be required to submit the proposed pro- imum extent practical; curement to the awarding agency for (ii) Proposals will be solicited from pre-award review in accordance with an adequate number of qualified paragraph (g) of this section. sources; (e) Contracting with small and minority (iii) Grantees and subgrantees will firms, women’s business enterprise and have a method for conducting tech- labor surplus area firms. (1) The grantee nical evaluations of the proposals re- and subgrantee will take all necessary ceived and for selecting awardees; affirmative steps to assure that minor- ity firms, women’s business enter- (iv) Awards will be made to the re- prises, and labor surplus area firms are sponsible firm whose proposal is most used when possible. advantageous to the program, with (2) Affirmative steps shall include: price and other factors considered; and (i) Placing qualified small and minor- (v) Grantees and subgrantees may ity businesses and women’s business use competitive proposal procedures enterprises on solicitation lists; for qualifications-based procurement of (ii) Assuring that small and minority architectural/engineering (A/E) profes- businesses, and women’s business en- sional services whereby competitors’ terprises are solicited whenever they qualifications are evaluated and the are potential sources; most qualified competitor is selected, (iii) Dividing total requirements, subject to negotiation of fair and rea- when economically feasible, into small- sonable compensation. The method, er tasks or quantities to permit max- where price is not used as a selection imum participation by small and mi- factor, can only be used in procure- nority business, and women’s business ment of A/E professional services. It enterprises; cannot be used to purchase other types (iv) Establishing delivery schedules, of services though A/E firms are a po- where the requirement permits, which tential source to perform the proposed encourage participation by small and effort. minority business, and women’s busi- (4) Procurement by noncompetitive ness enterprises; proposals is procurement through so- (v) Using the services and assistance licitation of a proposal from only one of the Small Business Administration, source, or after solicitation of a num- and the Minority Business Develop- ber of sources, competition is deter- ment Agency of the Department of mined inadequate. Commerce; and (i) Procurement by noncompetitive (vi) Requiring the prime contractor, proposals may be used only when the if subcontracts are to be let, to take award of a contract is infeasible under the affirmative steps listed in para- small purchase procedures, sealed bids graphs (e)(2)(i) through (v) of this sec- or competitive proposals and one of the tion. following circumstances applies: (f) Contract cost and price. (1) Grant- (A) The item is available only from a ees and subgrantees must perform a single source; cost or price analysis in connection (B) The public exigency or emergency with every procurement action includ- for the requirement will not permit a ing contract modifications. The meth- delay resulting from competitive solic- od and degree of analysis is dependent itation; on the facts surrounding the particular
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procurement situation, but as a start- erally will take place prior to the time ing point, grantees must make inde- the specification is incorporated into a pendent estimates before receiving bids solicitation document. However, if the or proposals. A cost analysis must be grantee or subgrantee desires to have performed when the offeror is required the review accomplished after a solici- to submit the elements of his esti- tation has been developed, the award- mated cost, e.g., under professional, ing agency may still review the speci- consulting, and architectural engineer- fications, with such review usually lim- ing services contracts. A cost analysis ited to the technical aspects of the pro- will be necessary when adequate price posed purchase. competition is lacking, and for sole (2) Grantees and subgrantees must on source procurements, including con- request make available for awarding tract modifications or change orders, agency pre-award review procurement unless price reasonableness can be es- documents, such as requests for pro- tablished on the basis of a catalog or posals or invitations for bids, inde- market price of a commercial product pendent cost estimates, etc., when: sold in substantial quantities to the (i) A grantee’s or subgrantee’s pro- general public or based on prices set by curement procedures or operation fails law or regulation. A price analysis will to comply with the procurement stand- be used in all other instances to deter- ards in this section; or mine the reasonableness of the pro- (ii) The procurement is expected to posed contract price. exceed the simplified acquisition (2) Grantees and subgrantees will ne- threshold and is to be awarded without gotiate profit as a separate element of competition or only one bid or offer is the price for each contract in which received in response to a solicitation; there is no price competition and in all or cases where cost analysis is performed. (iii) The procurement, which is ex- To establish a fair and reasonable prof- pected to exceed the simplified acquisi- it, consideration will be given to the tion threshold, specifies a ‘‘brand complexity of the work to be per- name’’ product; or formed, the risk borne by the con- (iv) The proposed award is more than tractor, the contractor’s investment, the simplified acquisition threshold the amount of subcontracting, the and is to be awarded to other than the quality of its record of past perform- apparent low bidder under a sealed bid ance, and industry profit rates in the procurement; or surrounding geographical area for (v) A proposed contract modification similar work. changes the scope of a contract or in- (3) Costs or prices based on estimated creases the contract amount by more costs for contracts under grants will be than the simplified acquisition thresh- allowable only to the extent that costs old. incurred or cost estimates included in (3) A grantee or subgrantee will be negotiated prices are consistent with exempt from the pre-award review in Federal cost principles (see § 1273.22). paragraph (g)(2) of this section if the Grantees may reference their own cost awarding agency determines that its principles that comply with the appli- procurement systems comply with the cable Federal cost principles. standards of this section. (4) The cost plus a percentage of cost (i) A grantee or subgrantee may re- and percentage of construction cost quest that its procurement system be methods of contracting shall not be reviewed by the awarding agency to de- used. termine whether its system meets (g) Awarding agency review. (1) Grant- these standards in order for its system ees and subgrantees must make avail- to be certified. Generally, these re- able, upon request of the awarding views shall occur where there is a con- agency, technical specifications on pro- tinuous high-dollar funding, and third- posed procurements where the award- party contracts are awarded on a reg- ing agency believes such review is ular basis; needed to ensure that the item and/or (ii) A grantee or subgrantee may self- service specified is the one being pro- certify its procurement system. Such posed for purchase. This review gen- self-certification shall not limit the
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awarding agency’s right to survey the (1) Administrative, contractual, or system. Under a self-certification pro- legal remedies in instances where con- cedure, awarding agencies may wish to tractors violate or breach contract rely on written assurances from the terms, and provide for such sanctions grantee or subgrantee that it is com- and penalties as may be appropriate. plying with these standards. A grantee (Contracts more than the simplified ac- or subgrantee will cite specific proce- quisition threshold) dures, regulations, standards, etc., as (2) Termination for cause and for being in compliance with these require- convenience by the grantee or sub- ments and have its system available grantee including the manner by which for review. it will be effected and the basis for set- (h) Bonding requirements. For con- tlement. (All contracts in excess of struction or facility improvement con- $10,000) tracts or subcontracts exceeding the (3) Compliance with Executive Order simplified acquisition threshold, the 11246 of September 24, 1965, entitled awarding agency may accept the bond- ‘‘Equal Employment Opportunity,’’ as ing policy and requirements of the amended by Executive Order 11375 of grantee or subgrantee provided the October 13, 1967, and as supplemented awarding agency has made a deter- in Department of Labor regulations (41 mination that the awarding agency’s CFR part 60). (All construction con- interest is adequately protected. If tracts awarded in excess of $10,000 by such a determination has not been grantees and their contractors or sub- made, the minimum requirements shall grantees) be as follows: (4) Compliance with the Copeland (1) A bid guarantee from each bidder ‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as equivalent to five percent of the bid supplemented in Department of Labor price. The ‘‘bid guarantee’’ shall con- regulations (29 CFR part 3). (All con- tracts and subgrants for construction sist of a firm commitment such as a or repair) bid bond, certified check, or other ne- (5) Compliance with the Davis-Bacon gotiable instrument accompanying a Act (40 U.S.C. 276a to 276a–7) as supple- bid as assurance that the bidder will, mented by Department of Labor regu- upon acceptance of his bid, execute lations (29 CFR part 5). (Construction such contractual documents as may be contracts in excess of $2000 awarded by required within the time specified. grantees and subgrantees when re- (2) A performance bond on the part of quired by Federal grant program legis- the contractor for 100 percent of the lation) contract price. A ‘‘performance bond’’ (6) Compliance with Sections 103 and is one executed in connection with a 107 of the Contract Work Hours and contract to secure fulfillment of all the Safety Standards Act (40 U.S.C. 327–330) contractor’s obligations under such as supplemented by Department of contract. Labor regulations (29 CFR part 5). (3) A payment bond on the part of the (Construction contracts awarded by contractor for 100 percent of the con- grantees and subgrantees in excess of tract price. A ‘‘payment bond’’ is one $2000, and in excess of $2500 for other executed in connection with a contract contracts which involve the employ- to assure payment as required by law ment of mechanics or laborers) of all persons supplying labor and ma- (7) Notice of awarding agency re- terial in the execution of the work pro- quirements and regulations pertaining vided for in the contract. to reporting. (i) Contract provisions. A grantee’s (8) Notice of awarding agency re- and subgrantee’s contracts must con- quirements and regulations pertaining tain provisions in paragraph (i) of this to patent rights with respect to any section. Federal agencies are permitted discovery or invention which arises or to require changes, remedies, changed is developed in the course of or under conditions, access and records reten- such contract. tion, suspension of work, and other (9) Awarding agency requirements clauses approved by the Office of Fed- and regulations pertaining to copy- eral Procurement Policy. rights and rights in data.
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(10) Access by the grantee, the sub- istering subgrants (whether on a cost grantee, the Federal grantor agency, reimbursement or fixed amount basis) the Comptroller General of the United of financial assistance to local and In- States, or any of their duly authorized dian tribal governments. Grantees representatives to any books, docu- shall: ments, papers, and records of the con- (1) Ensure that every subgrant in- tractor which are directly pertinent to cludes a provision for compliance with that specific contract for the purpose this part; of making audit, examination, ex- (2) Ensure that every subgrant in- cerpts, and transcriptions. cludes any clauses required by Federal (11) Retention of all required records statute and executive orders and their for three years after grantees or sub- implementing regulations; and grantees make final payments and all (3) Ensure that subgrantees are other pending matters are closed. aware of requirements imposed upon (12) Compliance with all applicable them by Federal statutes and regula- standards, orders, or requirements tions. issued under section 306 of the Clear (c) Exceptions. by their own terms, Air Act (42 U.S.C. 1857(h)), section 508 certain provisions of this part do not of the Clean Water Act (33 U.S.C. 1368), apply to the award and administration Executive Order 11738, and Environ- of subgrants: mental Protection Agency regulations (1) Section 1273.10; (40 CFR part 15). (Contracts, sub- (2) Section 1273.11; contracts, and subgrants of amounts in (3) The letter-of-credit procedures excess of $100,000) specified in Treasury Regulations at 31 (13) Mandatory standards and policies CFR part 205, cited in § 1273.21; and relating to energy efficiency which are (4) Section 1273.50. contained in the state energy conserva- REPORTS, RECORDS, RETENTION, AND tion plan issued in compliance with the ENFORCEMENT Energy Policy and Conservation Act (Pub. L. 94–163, 89 Stat. 871). § 1273.40 Monitoring and reporting program performance. § 1273.37 Subgrants. (a) Monitoring by grantees. Grantees (a) States. States shall follow state are responsible for managing the day- law and procedures when awarding and to-day operations of grant and administering subgrants (whether on a subgrant supported activities. Grantees cost reimbursement or fixed amount must monitor grant and subgrant ac- basis) of financial assistance to local tivities to assure compliance with ap- and Indian tribal governments. States plicable Federal requirements and that shall: performance goals are being achieved. (1) Ensure that every subgrant in- Grantee monitoring must cover each cludes any clauses required by Federal program, function or activity. statute and executive orders and their (b) Nonconstruction performance re- implementing regulations; ports. The Federal agency may, if it de- (2) Ensure that subgrantees are cides that performance information aware of requirements imposed upon available from subsequent applications them by Federal statute and regula- contains sufficient information to tion; meet its programmatic needs, require (3) Ensure that a provision for com- the grantee to submit a performance pliance with § 1273.42 is placed in every report only upon expiration or termi- cost reimbursement subgrant; and nation of grant support. Unless waived (4) Conform any advances of grant by the Federal agency this report will funds to subgrantees substantially to be due on the same date as the final Fi- the same standards of timing and nancial Status Report. amount that apply to cash advances by (1) Grantees shall submit annual per- Federal agencies. formance reports unless the awarding (b) All other grantees. All other grant- agency requires quarterly or semi-an- ees shall follow the provisions of this nual reports. However, performance re- part which are applicable to awarding ports will not be required more fre- agencies when awarding and admin- quently than quarterly. Annual reports
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shall be due 90 days after the grant templated, and any assistance needed year, quarterly or semi-annual reports to resolve the situation. shall be due 30 days after the reporting (2) Favorable developments which en- period. The final performance report able meeting time schedules and objec- will be due 90 days after the expiration tives sooner or at less cost than antici- or termination of grant support. If a pated or producing more beneficial re- justified request is submitted by a per- sults than originally planned. formance report. Additionally, require- (e) Federal agencies may make site ments for unnecessary performance re- visits as warranted by program needs. ports may be waived by the Federal (f) Waivers, extensions. (1) Federal agency. agencies may waive any performance (2) Performance reports will contain, report required by this part if not need- for each grant, brief information on the ed. following: (2) The grantee may waive any per- (i) A comparison of actual accom- formance report from a subgrantee plishments to the objectives estab- when not needed. The grantee may ex- lished for the period. Where the output tend the due date for any performance of the project can be quantified, a com- report from a subgrantee if the grantee putation of the cost per unit of output will still be able to meet its perform- may be required if that information ance reporting obligations to the Fed- will be useful. eral agency. (ii) The reasons for slippage if estab- lished objectives were not met. § 1273.41 Financial reporting. (iii) Additional pertinent information (a) General. (1) Except as provided in including, when appropriate, analysis paragraphs (a)(2) and (5) of this section, and explanation of cost overruns or grantees will use only the forms speci- high unit costs. fied in paragraphs (a) through (e) of (3) Grantees will not be required to this section, and such supplementary submit more than the original and two or other forms as may from time to copies of performance reports. time be authorized by OMB, for: (4) Grantees will adhere to the stand- (i) Submitting financial reports to ards in this section in prescribing per- Federal agencies, or formance reporting requirements for (ii) Requesting advances or reim- subgrantees. bursements when letters or credit are (c) Construction performance reports. not used. For the most part, on-site technical in- (2) Grantees need not apply the forms spections and certified percentage-of- prescribed in this section in dealing completion data are relied on heavily with their subgrantees. However, by Federal agencies to monitor grantees shall not impose more burden- progress under construction grants and some requirements on subgrantees. subgrants. The Federal agency will re- (3) Grantees shall follow all applica- quire additional formal performance ble standard and supplemental Federal reports only when considered nec- agency instructions approved by OMB essary, and never more frequently than to the extent required under the Paper- quarterly. work Reduction Act of 1980 for use in (d) Significant developments. Events connection with forms specified in may occur between the scheduled per- paragraphs (b) through (e) of this sec- formance reporting dates which have tion. Federal agencies may issue sub- significant impact upon the grant or stantive supplementary instructions subgrant supported activity. In such only with the approval of OMB. Federal cases, the grantee must inform the agencies may shade out or instruct the Federal agency as soon as the following grantee to disregard any line item that types of conditions become known: the Federal agency finds unnecessary (1) Problems, delays, or adverse con- for its decisionmaking purposes. ditions which will materially impair (4) Grantees will not be required to the ability to meet the objective of the submit more than the original and two award. This disclosure must include a copies of forms required under this statement of the action taken, or con- part.
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(5) Federal agencies may provide Standard Form 272a, unless the terms computer outputs to grantees to expe- of the award exempt the grantee from dite or contribute to the accuracy of this requirement. reporting. Federal agencies may accept (ii) These reports will be used by the the required information from grantees Federal agency to monitor cash ad- in machine usable format or computer vanced to grantees and to obtain dis- printouts instead of prescribed forms. bursement or outlay information for (6) Federal agencies may waive any each grant from grantees. The format report required by this section if not of the report may be adapted as appro- needed. priate when reporting is to be accom- (7) Federal agencies may extend the plished with the assistance of auto- due date of any financial report upon matic data processing equipment pro- receiving a justified request from a vided that the information to be sub- grantee. mitted is not changed in substance. (b) Financial Status Report—(1) Form. (2) Forecasts of Federal cash require- Grantees will use Standard Form 269 or ments. Forecasts of Federal cash re- 269A, Financial Status Report, to re- quirements may be required in the port the status of funds for all non- ‘‘Remarks’’ section of the report. construction grants and for construc- (3) Cash in hands of subgrantees. When tion grants when required in accord- considered necessary and feasible by ance with paragraph § 1273.41(e)(2)(iii) the Federal agency, grantees may be of this section. required to report the amount of cash (2) Accounting basis. Each grantee will advances in excess of three days’ needs report program outlays and program in the hands of their subgrantees or income on a cash or accrual basis as contractors and to provide short nar- prescribed by the awarding agency. If rative explanations of actions taken by the Federal agency requires accrual in- the grantee to reduce the excess bal- formation and the grantee’s accounting ances. records are not normally kept on the (4) Frequency and due date. Grantees accrual basis, the grantee shall not be must submit the report no later than 15 required to convert its accounting sys- working days following the end of each tem but shall develop such accrual in- quarter. However, where an advance ei- formation through and analysis of the ther by letter of credit or electronic documentation on hand. transfer of funds is authorized at an (3) Frequency. The Federal agency annualized rate of one million dollars may prescribe the frequency of the re- or more, the Federal agency may re- port for each project or program. How- quire the report to be submitted within ever, the report will not be required 15 working days following the end of more frequently than quarterly. If the each month. Federal agency does not specify the (d) Request for advance or reimburse- frequency of the report, it will be sub- ment—(1) Advance payments. Requests mitted annually. A final report will be for Treasury check advance payments required upon expiration or termi- will be submitted on Standard Form nation of grant support. 270, Request for Advance or Reimburse- (4) Due date. When reports are re- ment. (This form will not be used for quired on a quarterly or semiannual drawdowns under a letter of credit, basis, they will be due 30 days after the electronic funds transfer or when reporting period. When required on an Treasury check advance payments are annual basis, they will be due 90 days made to the grantee automatically on after the grant year. Final reports will a predetermined basis.) be due 90 days after the expiration or (2) Reimbursements. Requests for reim- termination of grant support. bursement under nonconstruction (c) Federal Cash Transactions Report— grants will also be submitted on Stand- (1) Form. (i) For grants paid by letter or ard Form 270. (For reimbursement re- credit, Treasury check advances or quests under construction grants, see electronic transfer of funds, the grant- paragraph (e)(1) of this section.) ee will submit the Standard Form 272, (3) The frequency for submitting pay- Federal Cash Transactions Report, and ment requests is treated in when necessary, its continuation sheet, § 1273.41(b)(3).
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(e) Outlay report and request for reim- (ii) Otherwise reasonably considered bursement for construction programs. (1) as pertinent to program regulations or Grants that support construction ac- the grant agreement. tivities paid by reimbursement meth- (2) This section does not apply to od. records maintained by contractors or (i) Requests for reimbursement under subcontractors. For a requirement to construction grants will be submitted place a provision concerning records in on Standard Form 271, Outlay Report certain kinds of contracts, see and Request for Reimbursement for § 1273.36(i)(10). Construction Programs. Federal agen- (b) Length of retention period. (1) Ex- cies may, however, prescribe the Re- cept as otherwise provided, records quest for Advance or Reimbursement must be retained for three years from form, specified in § 1273.41(d), instead of the starting date specified in paragraph this form. (c) of this section. (ii) The frequency for submitting re- (2) If any litigation, claim, negotia- imbursement requests is treated in tion, audit or other action involving § 1273.41(b)(3). the records has been started before the (2) Grants that support construction expiration of the 3-year period, the activities paid by letter of credit, elec- records must be retained until comple- tronic funds transfer or Treasury check tion of the action and resolution of all advance. issues which arise from it, or until the end of the regular 3-year period, which- (i) When a construction grant is paid ever is later. by letter of credit, electronic funds (3) To avoid duplicate recordkeeping, transfer or Treasury check advances, awarding agencies may make special the grantee will report its outlays to arrangements with grantees and sub- the Federal agency using Standard grantees to retain any records which Form 271, Outlay Report and Request are continuously needed for joint use. for Reimbursement for Construction The awarding agency will request Programs. The Federal agency will pro- transfer of records to its custody when vide any necessary special instruction. it determines that the records possess However, frequency and due date shall long-term retention value. When the be governed by § 1273.41(b)(3) and (4). records are transferred to or main- (ii) When a construction grant is paid tained by the Federal agency, the 3- by Treasury check advances based on year retention requirement is not ap- periodic requests from the grantee, the plicable to the grantee or subgrantee. advances will be requested on the form (c) Starting date of retention period— specified in § 1273.41(d). (1) General. When grant support is con- (iii) The Federal agency may sub- tinued or renewed at annual or other stitute the Financial Status Report intervals, the retention period for the specified in § 1273.41(b) for the Outlay records of each funding period starts on Report and Request for Reimbursement the day the grantee or subgrantee sub- for Construction Programs. mits to the awarding agency its single (3) Accounting basis. The accounting or last expenditure report for that pe- basis for the Outlay Report and Re- riod. However, if grant support is con- quest for Reimbursement for Construc- tinued or renewed quarterly, the reten- tion Programs shall be governed by tion period for each year’s records § 1273.41(b)(2). starts on the day the grantee submits its expenditure report for the last quar- § 1273.42 Retention and access re- ter of the Federal fiscal year. In all quirements for records. other cases, the retention period starts (a) Applicability. (1) This section ap- on the day the grantee submits its plies to all financial and programmatic final expenditure report. If an expendi- records, supporting documents, statis- ture report has been waived, the reten- tical records, and other records of tion period starts on the day the report grantees or subgrantees which are: would have been due. (i) Required to be maintained by the (2) Real property and equipment terms of this part, program regulations records. The retention period for real or the grant agreement, or property and equipment records starts
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from the date of the disposition or re- not be limited to the required reten- placement or transfer at the direction tion period but shall last as long as the of the awarding agency. records are retained. (3) Records for income transactions (f) Restrictions on public access. The after grant or subgrant support. In some Federal Freedom of Information Act (5 cases grantees must report income U.S.C. 552) does not apply to records after the period of grant support. unless required by Federal, State, or Where there is such a requirement, the local law, grantees and subgrantees are retention period for the records per- not required to permit public access to taining to the earning of the income their records. starts from the end of the grantee’s fis- cal year in which the income is earned. § 1273.43 Enforcement. (4) Indirect cost rate proposals, cost al- (a) Remedies for noncompliance. If a locations plans, etc. This paragraph ap- grantee or subgrantee materially fails plies to the following types of docu- to comply with any term of an award, ments, and their supporting records: whether stated in a Federal statute or indirect cost rate computations or pro- regulation, an assurance, in a State posals, cost allocation plans, and any plan or application, a notice of award, similar accounting computations of or elsewhere, the award agency may the rate at which a particular group of take one or more of the following ac- costs is chargeable (such as computer tions, as appropriate in the cir- usage chargeback rates or composite cumstances: fringe benefit rates). (1) Temporarily withhold cash pay- (i) If submitted for negotiation. If the ments pending correction of the defi- proposal, plan, or other computation is ciency by the grantee or subgrantee or required to be submitted to the Federal more severe enforcement action by the Government (or to the grantee) to form awarding agency. the basis for negotiation of the rate, then the 3-year retention period for its (2) Disallow (that is, deny both use of supporting records starts from the date funds and matching credit for) all or of such submission. part of the cost of the activity or ac- tion not in compliance, (ii) If not submitted for negotiation. If the proposal, plan, or other computa- (3) Wholly or partly suspend or ter- tion is not required to be submitted to minate the current award for the the Federal Government (or to the grantee’s or subgrantee’s program, grantee) for negotiation purposes, then (4) Withhold further awards for the the 3-year retention period for the pro- program, or posal plan, or computation and its sup- (5) Take other remedies that may be porting records starts from end of the legally available. fiscal year (or other accounting period) (b) Hearings, appeals. In taking an en- covered by the proposal, plan, or other forcement action, the awarding agency computation. will provide the grantee or subgrantee (d) Substitution of microfilm. Copies an opportunity for such hearing, ap- made by microfilming, photocopying, peal, or other administrative pro- or similar methods may be substituted ceeding to which the grantee or sub- for the original records. grantee is entitled under any statute (e) Access to records—(1) Records of or regulation applicable to the action grantees and subgrantees. The awarding involved. agency and the Comptroller General of (c) Effects of suspension and termi- the United States, or any of their au- nation. Costs of grantee or subgrantee thorized representatives, shall have the resulting from obligations incurred by right of access to any pertinent books, the grantee or subgrantee during a sus- documents, papers, or other records of pension or after termination of an grantees and subgrantees which are award are not allowable unless the pertinent to the grant, in order to awarding agency expressly authorizes make audits, examinations, excerpts, them in the notice of suspension or ter- and transcripts. mination or subsequently. Other grant- (2) Expiration of right of access. The ee or subgrantee costs during suspen- rights of access in this section must sion or after termination which are
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necessary and not reasonably avoidable (b) Reports. Within 90 days after the are allowable if: expiration or termination of the grant, (1) The costs result from obligations the grantee must submit all financial, which were properly incurred by the performance, and other reports re- grantee or subgrantee before the effec- quired as a condition of the grant. tive date of suspension or termination, Upon request by the grantee, Federal are not in anticipation of it, and, in the agencies may extend this timeframe. case of a termination, are These may include but are not limited noncancellable, and, to: (2) The costs would be allowable if (1) Final performance or progress re- the award were not suspended or ex- port. pired normally at the end of the fund- (2) Financial Status Report (SF 269) ing period which the termination takes or Outlay Report and Request for Re- effect. imbursement for Construction Pro- (d) Relationship to debarment and sus- grams (SF–271) (as applicable). pension. The enforcement remedies (3) Final request for payment (SF– identified in this section, including 270) (if applicable). suspension and termination, do not (4) Invention disclosure (if applica- preclude grantee or subgrantee from ble). being subject to ‘‘Debarment and Sus- (5) Federally-owned property report: pension’’ under E.O. 12549 (see § 1273.35). In accordance with § 1273.32(f), a grant- ee must submit an inventory of all fed- § 1273.44 Termination for convenience. erally owned property (as distinct from Except as provided in § 1273.43 awards property acquired with grant funds) for may be terminated in whole or in part which it is accountable and request dis- only as follows: position instructions from the Federal (a) By the awarding agency with the agency of property no longer needed. consent of the grantee or subgrantee in (c) Cost adjustment. The Federal agen- which case the two parties shall agree cy will, within 90 days after receipt of upon the termination conditions, in- reports in paragraph (b) of this section, cluding the effective date and in the make upward or downward adjust- case of partial termination, the portion ments to the allowable costs. to be terminated, or (d) Cash adjustments. (1) The Federal (b) By the grantee or subgrantee agency will make prompt payment to upon written notification to the award- the grantee for allowable reimbursable ing agency, setting forth the reasons costs. for such termination, the effective (2) The grantee must immediately re- date, and in the case of partial termi- fund to the Federal agency any balance nation, the portion to be terminated. of unobligated (unencumbered) cash However, if, in the case of a partial ter- advanced that is not authorized to be mination, the awarding agency deter- retained for use on other grants. mines that the remaining portion of the award will not accomplish the pur- § 1273.51 Later disallowances and ad- poses for which the award was made, justments. the awarding agency may terminate The closeout of a grant does not af- the award in its entirety under either fect: § 1273.43 or paragraph (a) of this sec- (a) The Federal agency’s right to dis- tion. allow costs and recover funds on the basis of a later audit or other review; Subpart D—After-the-Grant (b) The grantee’s obligation to return Requirements any funds due as a result of later re- funds, corrections, or other trans- § 1273.50 Closeout. actions; (a) General. The Federal agency will (c) Records retention as required in close out the award when it determines § 1273.42; that all applicable administrative ac- (d) Property management require- tions and all required work of the ments in §§ 1273.31 and 1273.32; and grant has been completed. (e) Audit requirements in § 1273.26.
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§ 1273.52 Collection of amounts due. Subpart D—Government Property (a) Any funds paid to a grantee in ex- 1274.401 Government property. cess of the amount to which the grant- ee is finally determined to be entitled Subpart E—Procurement Standards under the terms of the award con- 1274.501 Subcontracts. stitute a debt to the Federal Govern- ment. If not paid within a reasonable Subpart F—Reports and Records period after demand, the Federal agen- cy may reduce the debt by: 1274.601 Retention and access requirements for records. (1) Making an administrative offset against other requests for reimburse- Subpart G—Suspension or Termination ment, (2) Withholding advance payments 1274.701 Suspension or termination. otherwise due to the grantee, or Subpart H—After-the-Award Requirements (3) Other action permitted by law. (b) Except where otherwise provided 1274.801 Purpose. by statutes or regulations, the Federal 1274.802 Closeout procedures. 1274.803 Subsequent adjustments and con- agency will charge interest on an over- tinuing responsibilities. due debt in accordance with the Fed- eral Claims Collection Standards (4 Subpart I—Provisions and Special CFR ch. II). The date from which inter- Conditions est is computed is not extended by liti- gation or the filing of any form of ap- 1274.901 Other provisions and special condi- tions. peal. 1274.902 Purpose. 1274.903 Responsibilities. Subpart E—Entitlements 1274.904 Resource sharing requirements. Reserved 1274.905 Rights in data. [ ] 1274.906 Designation of new technology rep- resentative and patent representative. PART 1274—COOPERATIVE AGREE- 1274.907 Disputes. MENTS WITH COMMERCIAL 1274.908 Milestone payments. 1274.909 Term of this agreement. FIRMS 1274.910 Authority. 1274.911 Patent rights. Subpart A—General 1274.912 Patent rights—retention by the Re- cipient (large business). Sec. 1274.913 Patent rights—retention by the Re- 1274.101 Purpose. cipient (small business). 1274.102 Definitions. 1274.914 Requests for waiver of rights—large 1274.103 Effect on other issuances. business. 1274.104 Deviations. 1274.915 Restrictions on sale or transfer of 1274.105 Approval of Cooperative Agreement technology to foreign firms or institu- Notices (CANs) and cooperative agree- tions. ments. 1274.916 Liability and risk of loss. 1274.917 Additional funds. Subpart B—Pre-Award Requirements 1274.918 Incremental funding. 1274.919 Cost principles and accounting 1274.201 Purpose. standards. 1274.920 Responsibilities of the NASA Tech- 1274.202 Solicitations and proposals. nical Officer. 1274.203 Intellectual property. 1274.921 Publications and reports: Non-pro- 1274.204 Evaluation and selection. prietary research results. 1274.205 Award procedures. 1274.922 Suspension or termination. 1274.206 Document format and numbering. 1274.923 Equipment and other property. 1274.207 Distribution of cooperative agree- 1274.924 Civil rights. ments. 1274.925 Subcontracts. 1274.926 Clean Air-Water Pollution Control Subpart C—Administration Acts. 1274.927 Debarment and suspension and 1274.301 Delegation of administration. Drug-Free Workplace. 1274.302 Transfers, novations, and change of 1274.928 Foreign national employee inves- name agreements. tigative requirements.
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1274.929 Restrictions on lobbying. for authorized purposes and in which 1274.930 Travel and transportation. the Government participates substan- 1274.931 Electronic funds transfer payment tially in the performance of the effort. methods. 1274.932 Retention and examination of This part covers only cooperative records. agreements with commercial firms. Co- 1274.933 Summary of recipient reporting re- operative agreements with universities sponsibilities. and non-profit organizations are cov- 1274.934 Safety. ered by 14 CFR part 1260. APPENDIX TO PART 1274—LISTING OF EXHIBITS Cost sharing or matching. That portion AUTHORITY: 31 U.S.C. 6301 to 6208; 42 U.S.C. of project or program costs not borne 2451 et seq. by the Federal Government except that SOURCE: 65 FR 62934, Oct. 19, 2000, unless the recipient’s contribution may be re- otherwise noted. imbursable under other Government awards as allowable IR&D costs pursu- Subpart A—General ant to 48 CFR (NFS) 1831.205–18. Date of completion. The date on which § 1274.101 Purpose. all work under an award is completed (a) This part establishes uniform ad- or the date on the award document, or ministrative requirements for NASA any supplement or amendment thereto, cooperative agreements awarded to on which NASA sponsorship ends. commercial firms. Cooperative agree- Days. Calendar days, unless other- ments are ordinarily entered into with wise indicated. commercial firms to— Government furnished equipment. (1) Support research and develop- Equipment in the possession of, or ac- ment; quired directly by, the Government and (2) Provide technology transfer from subsequently delivered, or otherwise the Government to the recipient; or made available, to a recipient and (3) Develop a capability among U.S. equipment procured by the recipient firms to potentially enhance U.S. com- with Government funds under a cooper- petitiveness. ative agreement. (b) An award may not be made to a Grant Officer. A Government em- foreign government. Award to foreign ployee who has been delegated the au- firms is not precluded. The approval of thority to negotiate, award, or admin- the Associate Administrator for Pro- ister grants or cooperative agreements. curement is required to exclude foreign A Contracting Officer may serve as a firms from submitting proposals. Grant Officer if authorized by installa- § 1274.102 Definitions. tion procurement regulations. Incremental funding. A method of Administrator. The Administrator or funding a cooperative agreement where Deputy Administrator of NASA. the funds initially allotted to the coop- Associate Administrator for Procure- erative agreement are less than the ment. The head of the Office of Procure- award amount. Additional funding is ment, NASA Headquarters (Code H). added as described in § 1274.918. Cash contributions. The recipient’s cash outlay, including the outlay of Recipient. An organization receiving money contributed to the recipient by financial assistance under a coopera- third parties. tive agreement to carry out a project Closeout. The process by which NASA or program. A recipient may be an in- determines that all applicable adminis- dividual firm, a consortium, a partner- trative actions and all required work of ship, etc. the award have been completed by the Resource contribution. The total value recipient and NASA. of resources provided by either party to Commercial item. The definition in the cooperative agreement including FAR 2.101 is applicable. both cash and non-cash contributions. Cooperative agreement. As defined by Support contractor. A NASA con- 31 U.S.C. 6305, cooperative agreements tractor performing part or all of the are financial assistance instruments NASA responsibilities under a coopera- used to stimulate or support activities tive agreement.
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Suspension. An action by NASA or (c) Requests for authority to deviate the recipient that temporarily discon- from this part will be forwarded to tinues efforts under an award, pending Headquarters, Program Operations Di- corrective action or pending a decision vision (Code HS). Such requests, signed to terminate the award. Suspension of by the Procurement Officer, shall con- an award is a separate action from sus- tain as a minimum: pension under Federal agency regula- (1) A full description of the deviation tions implementing Executive Orders and identification of the regulatory re- 12549 and 12689, ‘‘Debarment and Sus- quirement from which a deviation is pension.’’ sought. Technical officer. The official of the (2) Detailed rationale for the request, cognizant NASA office who is respon- including any pertinent background in- sible for monitoring the technical as- formation. pects of the work under a cooperative (3) The name of the recipient and agreement. A Contracting Officer’s identification of the cooperative agree- Technical Representative may serve as ment affected, including the dollar a Technical Officer. value. Termination. The cancellation of a co- (4) A statement as to whether the de- operative agreement in whole or in viation has been requested previously, part, by either party at any time prior and, if so, circumstances of the pre- to the date of completion. vious request(s). (5) A copy of legal counsel’s concur- § 1274.103 Effect on other issuances. rence or comments. For awards subject to this subpart, the requirements of this subpart apply, § 1274.105 Approval of Cooperative except to the extent that any adminis- Agreement Notices (CANs) and co- trative requirements of codified pro- operative agreements. gram regulations, program manuals, (a) As soon as possible after the ini- handbooks and other nonregulatory tial decision is made by a Headquarters materials are required by statute, or program office or Center procurement are authorized in accordance with the personnel to use the CAN process, the deviations provision in 1274.104. cognizant program office or procure- ment office shall notify the Associate § 1274.104 Deviations. Administrator for Procurement (Code (a) The Associate Administrator for HS) of the intent to use a CAN in all Procurement may grant exceptions for cases where the total Government classes of or individual cooperative funds to be awarded in response to CAN agreements from the requirements of proposals is expected to equal or ex- this part when exceptions are not pro- ceed $10 million. All such notifications, hibited by statute. as described in this section, shall be (b) A deviation is required for any of concurred in by the Procurement Offi- the following: cer. This requirement also applies in (1) When a prescribed provision set those cases where an unsolicited pro- forth in this part for use verbatim is posal is received and a decision is made modified or omitted. to award a cooperative agreement in (2) When a provision is set forth in which the recipient (or one or more this part, but not prescribed for use members of a ‘‘team’’ of recipients) is a verbatim, and the installation sub- commercial firm and the total Govern- stitutes a provision which is incon- ment funds are expected to equal or ex- sistent with the intent, principle, and ceed $10 million. substance of the prescribed provision. (b) The required notification is to be (3) When a NASA form or other form accomplished by sending an electronic is prescribed by this part, and that mail (e-mail) message to the following form is altered or another form is used address at NASA Headquarters: in its place. [email protected]. The notification (4) When limitations, imposed by this must include the following informa- part upon the use of a provision, form, tion, as a minimum: procedure, or any other action, are not (1) Identification of the cognizant adhered to. center and program office,
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(2) Description of the proposed pro- fication, the program office or center gram for which proposals are to be so- may proceed with release of the CAN licited, and award of the cooperative agree- (3) Rationale for decision to use a ments as described. CAN rather than other types of solici- tations, Subpart B—Pre-Award (4) The amount of Government fund- Requirements ing to be available for awards, (5) Estimate of the number of cooper- § 1274.201 Purpose. ative agreements to be awarded as a re- sult of the CAN, Sections 1274.202 through 1274.207 pre- (6) The percentage of cost-sharing to scribe forms and instructions and ad- be required, dress other pre-award matters. (7) Tentative schedule for release of § 1274.202 Solicitations and proposals. CAN and award of cooperative agree- ments, (a) Competition. Consistent with 31 (8) If the term of the cooperative U.S.C. 6301(3), NASA uses competitive agreement is anticipated to exceed 3 procedures to award cooperative agree- years and/or if the Government cash ments whenever possible. An award contribution is expected to exceed will normally be made as a result of a $20M, address anticipated changes, if Cooperative Agreement Notice (CAN) any, to the provisions (see 1274.202(f)), which envisions a cooperative agree- and ment as the award instrument. A Com- (9) If the cooperative agreement is merce Business Daily synopsis or a for programs/projects that provide synopsis on the NASA Acquisition aerospace products or capabilities, (i.e., Internet Service will be used to pub- provide space and aeronautics, flight licize the CAN. and ground systems, technologies and (b) Unsolicited proposals. (1) An award operations), a statement that the re- may be made as a result of an unsolic- quirements of NASA Policy Directive ited proposal. The unsolicited proposal (NPD) 7120.4 and NASA Policy Guid- must evidence a unique and innovative ance (NPG) 7120.5 have been met. This idea or approach which is not the sub- affirmative statement will include a ject of a current or anticipated solici- specific reference to the signed Pro- tation. When a cooperative agreement gram Commitment Agreement. is awarded as a result of an unsolicited (c) Code HS will respond by e-mail proposal, a Commerce Business Daily message to the sender, with a copy of synopsis and a synopsis on the NASA the message to the Procurement Offi- Acquisition Internet Service will be cer and the Office of Small and Dis- used to provide an opportunity for advantaged Business Utilization, with- other firms/consortia to express an in- in 5 working days of receipt of this ini- terest in the agreement unless the ex- tial notification. The response will ad- ception in 48 CFR (FAR) 5.202(a)(8) ap- dress the following: plies. Respondents should be given a (1) Whether Code HS agrees or dis- minimum of thirty days to respond. If agrees with the appropriateness for interest is expressed, a decision must using a CAN for the effort described, be made to proceed with the award or (2) Whether Code HS will require re- to issue a solicitation for competitive view and approval of the CAN before its proposals. issuance, (2) Prior to an award made as the re- (3) Whether Code HS will require re- sult of an unsolicited proposal, the view and approval of the selected award must be approved by the Pro- offeror’s cost sharing arrangement curement Officer if NASA’s total re- (e.g., cost sharing percentage; type of source contribution is below $5 million. contribution (cash, labor, etc.)), and Center Director approval is required if (4) Whether Code HS will require re- NASA’s total resource contribution is view and approval of the resulting co- $5 million or more. For Headquarters operative agreement(s). cooperative agreements, approval by (d) If a response from Code HS is not the Associate Administrator for Pro- received within 5 working days of noti- curement is required if NASA’s total
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resource contribution is $5 million or to such a degree that a share ratio of more. less than 50 percent is warranted. (c) Cost and payment matters. (1) The (3) Cooperative agreements are fund- expenditure of Government funds by ed by NASA in a fixed amount. Pay- the recipient and the allowability of ments in fixed amounts will be made costs recognized as a resource con- by NASA in accordance with ‘‘Mile- tribution by the recipient shall be gov- stone Billings’’ which are discussed in erned by the FAR cost principles, 48 paragraph (c)(4) of this section. If the CFR part 31. If the recipient is a con- recipient completes the final mile- sortium which includes non-commer- stone, final payment is made, and cial entities as members, cost allow- NASA will have completed its financial ability for those members will be de- responsibilities under the agreement. termined as follows: However, if the cooperative agreement (i) Allowability of costs incurred by is terminated prior to achievement of State, local or federally-recognized In- all milestones, NASA’s funding will be dian tribal governments is determined limited to milestone payments already in accordance with the provisions of made plus NASA’s share of costs re- OMB Circular A–87, ‘‘Cost Principles quired by the recipient to meet com- for State and Local Governments.’’ mitments which had in the judgment of (ii) The allowability of costs incurred NASA become firm prior to the effec- by non-profit organizations is deter- tive date of termination and are other- mined in accordance with the provi- wise appropriate. In no event shall sions of OMB Circular A–122, ‘‘Cost these additional costs or payment ex- Principles for Non-Profit Organiza- ceed the amount of the next payable tions.’’ milestone billing amount. (iii) The allowability of costs in- (4) Milestone billings is the method curred by institutions of higher edu- of payment to the recipient under co- cation is determined in accordance operative agreements. Performance with the provisions of OMB Circular A– based milestones are used as the basis 21, ‘‘Cost Principles for Educational In- of establishing a set of verifiable mile- stitutions.’’ stones for payment purposes. Each (iv) The allowability of costs in- milestone payment shall be established curred by hospitals is determined in ac- so that the Government payment is at cordance with the provisions of Appen- the same share ratio as the cooperative dix E of 45 CFR part 74, ‘‘Principles for agreement share ratio. If the recipient Determining Costs Applicable to Re- is a consortium, the Articles of Col- search and Development Under Grants laboration is required to contain an ex- and Contracts with Hospitals.’’ Recipi- tensive list of performance based mile- ent’s method for accounting for the ex- stones that the consortium has agreed penditure of funds must be consistent to. Generally, payments should not be with Generally Accepted Accounting made more than once monthly; ideally, Principles. payments will be made about every 60 (2) A substantial resource contribu- to 90 days but in all cases should be tion on the part of the recipient is re- made on the basis of verifiable, signifi- quired. The recipient is expected to cant events as opposed to the passage contribute at least 50 percent of the of time. The last payment milestone total resources required to accomplish should be large enough to ensure that the cooperative agreement. Recipient the recipient completes its responsibil- contributions may be either cash or ities under the cooperative agreement non-cash or both. In those cases in (or funds should be reserved for pay- which a contribution of less than 50 ment until after completion of the co- percent is anticipated from the recipi- operative agreement). The Government ent, approval of the Associate Adminis- technical officer must verify comple- trator for Procurement (Code HS) is re- tion of each milestone to the Grant Of- quired prior to award. The request for ficer as part of the payment process. approval should address the evaluation (5) Cooperative agreements may be factor in the solicitation and how the incrementally funded subject to the proposal accomplishes those objectives following:
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(i) The total value of the NASA cash for directly by the awarding organiza- contribution is $50,000 or more. tion. (ii) The period of performance over- (d) Consortia as recipients. (1) The use laps the succeeding fiscal year. of consortia as recipients for coopera- (iii) The funds are not available to tive agreements is encouraged. Con- fully fund the cooperative agreement sortia will tend to bring to a coopera- at the time of award. tive agreement a broader range of ca- (6) Cost sharing requirements on co- pabilities and resources. A consortium operative agreements with commercial is a group of organizations that enter firms are based on section 23 of OMB into an agreement to collaborate for Circular A–110. Only cash or certain the purposes of the cooperative agree- non-cash resources are acceptable ment with NASA. The agreement to sources for the recipient contribution collaborate can take the form of a to a cooperative agreement. Acceptable legal entity such as a partnership or non-cash resources include such items joint venture but it is not necessary as purchased equipment, equipment, that such an entity be created. A con- labor, office space, etc. The actual or sortium may be made up of firms which imputed value of intellectual property normally compete for commercial or such as patent rights, data rights, Government business or may be made trade secrets, etc., are not acceptable up of firms which perform complemen- as sources for the recipient contribu- tary functions in a given industry. The tion. The Government’s cost share inclusion of non-profit or educational should fully reflect the total cost of institutions, small businesses, or small the cash and non-cash contributions. disadvantaged businesses in the consor- With respect to the non-cash contribu- tium could be particularly valuable in tion, a fully burdened cost estimate of ensuring that the results of the consor- personnel, facilities, and other ex- tium’s activities are disseminated. penses should be utilized. It is recog- (2) Key to the success of the coopera- nized that this will be an estimate in tive agreement with a consortium is some cases, but the cost principles in the consortium’s Articles of Collabora- section 9091–5 of the NASA Financial tion, which is a definitive description Management Manual should be adhered of the roles and responsibilities of the to. consortium’s members. It should also (7) Recipients shall not be paid a address to the extent appropriate: profit under cooperative agreements. Commitments of financial, personnel, Profit may be paid by the recipient to facilities and other resources, a de- subcontractors, if the subcontractor is tailed milestone chart of consortium not part of the offering team and the activities, accounting requirements, subcontract is an arms-length relation- subcontracting procedures, disputes, ship. term of the agreement, insurance and (8) The recipient’s resource share of liability issues, internal and external the cooperative agreement may be al- reporting requirements, management located as part of its IR&D program. structure of the consortium, obliga- (9) The CAN must provide a descrip- tions of organizations withdrawing tion of the non-cash Government con- from the consortia, allocation of data tribution (personnel, equipment, facili- and patent rights among the consortia ties, etc.) as part of the Government’s members, agreements, if any, to share contribution to the cooperative agree- existing technology and data, the firm ment in addition to funding. The offer- which is responsible for the completion or may propose that additional non- of the consortium’s responsibilities cash Government resources be provided under the cooperative agreement and under two conditions. First, the offeror has the authority to commit the con- is responsible for verifying the avail- sortium and receive payments from ability of the resources and their suit- NASA, employee policy issues, etc. ability for their intended purpose and, (3) An outline of the Articles of Col- second, those resources are part of the laboration should be required as part of Government contribution (which must the proposal and evaluated during the be matched by the recipient) and paid source selection process.
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(e) Metric system of measurement. The tion made under a cooperative agree- Metric Conversion Act, as amended by ment by a large business recipient ini- the Omnibus Trade and Competitive- tially vests with NASA. The recipient ness Act (15 U.S.C. 205) declares that may request a waiver under the NASA the metric system is the preferred Patent Waiver Regulations to obtain measurement system for U.S. trade and title to inventions made under the commerce. NASA’s policy with respect agreement. Such a request may be to the metric measurement system is made in advance of the agreement (or stated in NPD 8010.2, Use of the Metric 30 days thereafter) for all inventions System of Measurement in NASA Pro- made under the agreement. Alter- grams. natively, requests may be made on a (f) Term of agreement. The provisions case by case basis any time an indi- set forth in § 1274.901 are generally con- vidual invention is made. Such waivers sidered appropriate for agreements not are liberally and expeditiously granted exceeding 3 years and/or a Government after review by NASA’s Invention and cash contribution not exceeding $20M. Contribution Board and approval by For cooperative agreements expected NASA’s General Counsel. When a waiv- to be longer than 3 years and/or involve er is granted, any inventions made in a Government cash contribution ex- the performance of work under the ceeding $20M, consideration should be agreement are subject to certain re- given to provisions which place addi- porting, election and filing require- tional restrictions on the recipient in ments, a royalty-free license to the terms of validating performance and Government, march-in rights, and cer- accounting for funds expended. tain other reservations. (ii) A recipient, if a small business or § 1274.203 Intellectual property. nonprofit organization, may elect to (a) A cooperative agreement covers retain title to its inventions. The term the disposition of rights to intellectual ‘‘nonprofit organization’’ is defined in property between NASA and the recipi- 35 U.S.C. 201(i) and includes univer- ent. If the recipient is a consortium or sities and other institutions of higher partnership, rights flowing between education or an organization of the multiple organizations in a consortium type described in section 501(c)(3) of must be negotiated separately and for- the Internal Revenue Code (26 U.S.C.). mally documented, preferably in the The Government obtains an irrev- Articles of Collaboration. ocable, nonexclusive, royalty-free li- (b) Patent rights clauses are required cense. by statute and regulation. The clauses (2) Subcontractor inventions. (i) Large exist for recipients of the agreement business. If a recipient enters a sub- whether they are: contract (or similar arrangement) with (1) Other than small business or non- a large business organization for exper- profit organizations (generally referred imental, developmental, research, de- to as large businesses) or sign or engineering work in support of (2) Small businesses or nonprofit or- the agreement to be done in the United ganizations. States, its possessions, or Puerto Rico, (c) There are five situations in which section 305 of the Space Act applies. inventions may arise under a coopera- The clause applicable to large business tive agreement: recipient inventions, organizations is to be used (suitably subcontractor inventions, NASA inven- modified to identify the parties) in any tions, NASA support contractor inven- subcontract. The subcontractor may tions, and joint inventions with recipi- request a waiver under the NASA Pat- ent. ent Waiver Regulations to obtain (d)(1) Recipient inventions. (i) A recipi- rights to inventions made under the ent, if a large business, is subject to subcontract just as a large business re- Section 305 of the National Aeronautics cipient can (see paragraph (d)(1)(i) of and Space Act of 1958 (42 U.S.C. 2457) this section). It is strongly rec- relating to property rights in inven- ommended that a prospective large tions. The term ‘‘invention’’ includes business subcontractor contact the any invention, discovery, improve- NASA installation Patent Counsel or ment, or innovation. Title to an inven- Intellectual Property Counsel to assure
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that the right procedures are followed. the applicable patent rights clause to Just like the recipient, any inventions subcontractors. Applicable laws and made in the performance of work under regulations require that title to inven- the agreement are subject to certain tions made under a subcontract must reporting, election and filing require- initially reside in either the subcon- ments, a royalty-free license to the tractor or NASA, not the recipient. Government, march-in rights, and cer- This exception does not change that. tain other reservations. The exception does authorize the re- (ii) Non-profit organization or small cipient to negotiate and reach mutual business. In the event the recipient en- agreement with the subcontractor for ters into a subcontract (or similar ar- the grant-back of rights. Such grant- rangement) with a domestic nonprofit back could be an option for an exclu- organization or a small business firm sive license or an assignment, depend- for experimental, developmental, or re- ing on the circumstances. search work to be performed under the (3) NASA inventions. NASA will use agreement, the requirements of 35 reasonable efforts to report inventions U.S.C. 200 et seq. regarding ‘‘Patent made by its employees as a con- Rights in Inventions Made With Fed- sequence of, or which bear a direct re- eral Assistance,’’ apply. The subcon- lation to, the performance of specified tractor has the first option to elect NASA activities under an agreement. title to any inventions made in the per- Upon timely request, NASA will use its formance of work under the agreement, best efforts to grant recipient first op- subject to specific reporting, election tion to acquire either an exclusive or and filing requirements, a royalty-free partially-exclusive, revocable, royalty- license to the Government, march-in bearing license, on terms to be nego- rights, and certain other reservations tiated, for any patent applications and that are specifically set forth. patents covering such inventions. This (iii) Work outside the United States. exclusive or partially-exclusive license If the recipient subcontracts for work to the recipient will be subject to the to be done outside the United States, retention of rights by or on behalf of its possessions or Puerto Rico, the the Government for Government pur- NASA installation Patent Counsel or poses. Intellectual Property Counsel should (4) NASA support contractor inventions. be contacted for the proper patent It is preferred that NASA support con- rights clause to use and the procedures tractors be excluded from performing to follow. any of NASA’s responsibilities under (iv) Notwithstanding paragraphs the agreement since the rights ob- (d)(2)(i), (ii) and (iii), and in recogni- tained by a NASA support contractor tion of the recipient’s substantial con- could work against the rights needed tribution, the recipient is authorized, by the recipient. In the event NASA subject to rights of NASA set forth support contractors are tasked to work elsewhere in the agreement, to: under the agreement and inventions (A) Acquire by negotiation and mu- are made by support contractor em- tual agreement rights to a subcontrac- ployees, the support contractor will tor’s subject inventions as the recipi- normally retain title to its employee ent may deem necessary, or inventions in accordance with 35 U.S.C. (B) If unable to reach agreement pur- 202, 14 CFR part 1245, and Executive suant to paragraph (d)(2)(iv)(A) of this Order 12591. In the event the recipient section, request that NASA invoke ex- decides not to pursue right to title in ceptional circumstances as necessary any such invention and NASA obtains pursuant to 37 CFR 401.3(a)(2) if the title to such inventions, upon timely prospective subcontractor is a small request, NASA will use its best efforts business firm or nonprofit organiza- to grant recipient first option to ac- tion, or for all other organizations, re- quire either an exclusive or partially quest that such rights for the recipient exclusive, revocable, royalty-bearing be included as an additional reserva- license, upon terms to be negotiated, tion in a waiver granted pursuant to 14 for any patent applications and patents CFR 1245.1. The exercise of this excep- covering such inventions. This exclu- tion does not change the flow down of sive or partially-exclusive license to
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the recipient will be subject to the re- provides an opportunity for royalty- tention of rights by or on behalf of the sharing with the employee-inventor, Government for Government purposes. consistent with Government-wide pol- (5) Joint inventions. (i) NASA and the icy under the Federal Technology recipient agree to use reasonable ef- Transfer Act. forts to identify and report to each (2) Upon application in compliance other any inventions made jointly be- with 37 CFR part 404—Licensing of tween NASA employees (or employees Government Owned Inventions, all re- of NASA support contractors) and em- cipients shall be granted a revocable, ployees of recipient. For large busi- nonexclusive, royalty-free license in nesses, the Associate General Counsel each patent application filed in any (Intellectual Property) may agree that country on a subject invention and any the United States will refrain, for a specified period, from exercising its un- resulting patent in which the Govern- divided interest in a manner incon- ment obtains title. Because coopera- sistent with recipient’s commercial in- tive agreements are cost sharing coop- terest. For small business firms and erative arrangements with a purpose of nonprofit organizations, the Associate benefiting the public by improving the General Counsel (Intellectual Prop- competitiveness of the recipient and erty) may agree to assign or transfer the Government receives an irrev- whatever rights NASA may acquire in ocable, nonexclusive, royalty-free li- a subject invention from its employee cense in each recipient subject inven- to the recipient as authorized by 35 tion, it is only equitable that the re- U.S.C. 202(e). The grant officer negoti- cipient receive, at a minimum, a rev- ating the agreement with small busi- ocable, nonexclusive, royalty-free li- ness firms and nonprofit organizations cense in NASA inventions and NASA can agree, up front, that NASA will as- contractor inventions where NASA has sign whatever rights it may acquire in acquired title. a subject invention from its employee (3) Once a recipient has exercised its to the small business firm or nonprofit option to apply for an exclusive or par- organization. Requests under this para- tially exclusive license, a notice, iden- graph shall be made through the Cen- tifying the invention and the recipient, ter Patent Counsel. is published in the FEDERAL REGISTER, (ii) NASA support contractors may providing the public opportunity for be joint inventors. If a NASA support filing written objections for 60 days. contractor employee is a joint inventor with a NASA employee, the same pro- (f) Preference for United States manu- visions apply as those for NASA Sup- facture. Despite any other provision, port Contractor Inventions. The NASA the recipient agrees that any products support contractor will retain or ob- embodying subject inventions or pro- tain nonexclusive licenses to those in- duced through the use of subject inven- ventions in which NASA obtains title. tions shall be manufactured substan- If a NASA support contractor employee tially in the United States. The intent is a joint inventor with a recipient em- of this provision is to support manufac- ployee, the NASA support contractor turing jobs in the United States re- and recipient will become joint owners gardless of the status of the recipient of those inventions in which they have as a domestic or foreign controlled elected to retain title or requested and company. However, in individual cases, have been granted waiver of title. the requirement to manufacture sub- Where the NASA support contractor stantially in the United States, may be has not elected to retain title or has waived by the Associate Administrator not been granted waiver of title, NASA for Procurement (Code HS) upon a will jointly own the invention with the showing by the recipient that under recipient. the circumstances domestic manufac- (e) Licenses to Recipient(s). (1) Any ex- ture is not commercially feasible. clusive or partially exclusive commer- (g) Space Act Agreements. Invention cial licenses are to be royalty-bearing consistent with Government-wide pol- and patent rights in cooperative agree- icy in licensing its inventions. It also ments must comply with statutory and
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regulatory provisions. Where cir- the agreement. NASA can also produce cumstances permit, a Space Act agree- data in carrying out its responsibilities ment is available as an alternative in- under the agreement. Each of these strument which can be more flexible in areas need to be covered. the area of invention and patent rights. (4) For data, including software, first (h) Data rights. Data rights provisions produced by the recipient under the can and should be tailored to best agreement, the recipient may assert achieve the needs and objectives of the copyright. Data exchanged with a no- respective parties concerned. tice showing that the data is protected (1) The data rights clause at § 1274.905 by copyright must include appropriate assumes a substantially equal cost licenses in order for NASA to use the sharing relationship where collabo- data as needed. rative research, experimental, develop- (5) Recognizing that the dissemina- mental, engineering, demonstration, or tion of the results of NASA’s activities design activities are to be carried out, such that it is likely that ‘‘propri- is a primary objective of a cooperative etary’’ information will be developed agreement, the parties should specifi- and/or exchanged under the agreement. cally delineate what results will be If cost sharing is unequal or no exten- published and under what conditions. sive research, experimental, develop- This should be set forth in the clause of mental, engineering, demonstration, or the cooperative agreement entitled design activities are likely, a different ‘‘Publication and Reports.’’ Any such set of clauses may be appropriate. agreement on the publication of results (2) The primary question that must should be stated to take precedence be answered when developing data over any other clause in the coopera- clauses is what does each party need or tive agreement. intend to do with the data developed (6) In accordance with section 303(b) under the agreement. Accordingly, the of the Space Act, any data first pro- data rights clauses may be tailored to duced by NASA under the agreement fit the circumstances. Where con- which embodies trade secrets or finan- flicting goals of the parties result in cial information that would be privi- incompatible data provisions, grant of- leged or confidential if it had been ob- ficers for the Government must recog- tained from a private participant, will nize that private companies entering be marked with an appropriate legend into cooperative agreements bring re- and maintained in confidence for an sources to that relationship and must agreed to period of up to five years (the be allowed to reap an appropriate ben- maximum allowed by law). This does efit for the expenditure of those re- not apply to data other than that for sources. However, since serving a pub- which there has been agreement re- lic purpose is a major objective of a co- garding publication or distribution. operative agreement, care must be ex- The period of time during which data ercised to ensure the recipient is not first produced by NASA is maintained established as a long term sole source in confidence should be consistent with supplier of an item or service and is the period of time determined in ac- not in a position to take unfair advan- cordance with paragraph (h)(2) of this tage of the results of the cooperative section, before which data first pro- agreement. Therefore, a reasonable duced by the recipient will be made time period (depending on the tech- nology, two to five years after produc- public. Also, NASA itself may use the tion of the data) may be established marked data (under suitable protective after which the data first produced by conditions) for agreed-to purposes. the recipient in the performance of the § 1274.204 Evaluation and selection. agreement will be made public. (3) Data can be generated from dif- (a) Evaluation factor. A single tech- ferent sources and can have various re- nical evaluation factor is typically strictions placed on its dissemination. used for CANs. That evaluation factor Recipient data furnished to NASA can should be one of the following: Pro- exist prior to, or be produced outside viding research and development or of, the agreement or be produced under technology transfer, enhancing U.S.
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competitiveness, or developing a capa- official or by the grant/contracting of- bility among U.S. firms. Award to for- ficer. eign firms is not precluded if the eval- (ii) No sensitive information shall be uation factor is satisfied. Subfactors disclosed unless the selecting official could include such things as fostering or the grant/contracting officer has ap- U.S. leadership, potential to advance proved disclosure based upon an un- technologies anticipated to enhance equivocal ‘‘need-to-know’’ and the indi- U.S. competitiveness, timeliness of vidual receiving the information has proposed accomplishments, private sec- signed a Non-Disclosure Certificate tor commitment to commercialization, (Exhibit E to subpart A of 14 CFR part identification of specific potential 1260). All attendees at formal source se- commercial markets, appropriateness lection presentations and briefings of business risk, potential for broad im- shall be required to sign an Attendance pact on the U.S. technology and knowl- Roster. The attendance rosters and cer- edge base, level of commitment (con- tificates shall be maintained in official tribution of private resources to the files for a minimum of six months after project), appropriateness of team mem- award. ber participation and relationships, (iii) The improper disclosure of sen- (this subfactor should include consider- sitive information could result in ation of the participation of an appro- criminal prosecution or an adverse ac- priate mix of small business, small dis- tion. advantaged business, and women- (2) The technical officer will evaluate owned small business concerns, as well proposals in accordance with the cri- as non-profits and educational institu- teria in the CAN. Proposals selected for tions, including historically black col- award will be supported by documenta- leges and universities and minority in- tion as described in paragraph (c)(1) of stitutions) appropriateness of manage- this section. When evaluation results ment planning, relevant experience, in a proposal not being selected, the qualifications and depth of manage- proposer will be notified in accordance ment and technical staff, quality and with the CAN. appropriateness of resources com- (3) The technical evaluation of pro- mitted to the project, performance posals may include peer reviews. Since bench marks, technical approach, busi- the business sense of a cooperative ness approach/resource sharing, past agreement proposal is critical to its performance, the articles of collabora- success, NASA should reserve the right tion, etc. to utilize appropriate outside eval- (b) Technical evaluation. (1) Competi- uators to assist in the evaluation of tive technical proposal information such proposal elements as the business shall be protected in accordance with base projections, the market for pro- 48 CFR (FAR) 15.207, Handling Pro- posed products, and/or the impact of posals and Information. Unsolicited anticipated product price reductions. proposals shall be protected in accord- The use of outside evaluators shall be ance with 48 CFR (FAR) 15.608, Prohibi- approved in accordance with 48 CFR tions, and 48 CFR (FAR) 15.609, Limited (NFS) 1815.207–70(b). A cover sheet with Use of Data. the following legend shall be affixed to (i) Selecting officials and grant/con- data provided to outside evaluators: tracting officers are responsible for protecting sensitive information on the GOVERNMENT NOTICE FOR HANDLING award of a grant or cooperative agree- PROPOSALS ment and for determining who is au- This proposal shall be used and disclosed thorized to receive such information. for evaluation purposes only, and a copy of Sensitive information includes: infor- this Government notice shall be applied to mation contained in proposals; infor- any reproduction or abstract thereof. Any mation prepared for NASA’s evaluation authorized restrictive notices which the sub- of proposals; the rankings of proposals mitter places on this proposal shall also be strictly complied with. for an award; reports and evaluations of source selection panels, boards, or (4) Evaluation of unsolicited pro- advisory councils; and other informa- posals must consider whether: the sub- tion deemed sensitive by the selecting ject of the proposal is available to
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NASA from another source without re- (i) If the recipient’s verified share on striction; the proposal closely resem- a cooperative agreement equals or ex- bles a pending competitive acquisition; ceeds 50 percent of the total cost of the and the research proposed dem- agreement and the total value of the onstrates an innovative and unique agreement is less than $5 million, the method, approach, or concept. Organi- cost evaluation of the offeror’s pro- zations submitting unaccepted pro- posal should focus on the overall rea- posals will be notified in writing. sonableness and timing of the pro- (c) Documentation requirements. For poser’s contribution. Cost or pricing proposals selected for award, the tech- data should not be required and infor- nical officer will prepare and furnish to mation other than cost or pricing data the grant officer the following docu- (defined in 48 CFR (FAR) 15.403–3) mentation: should not normally be required. (1) For a competitively selected pro- (ii) If the recipient’s share is pro- posal, a signed selection statement and jected to be less than 50 percent or the technical evaluation based on the eval- total value of the agreement is more uation criteria stated in the solicita- than $5 million, a more in-depth anal- tion. ysis of the proposed costs should be un- (2) For an unsolicited proposal, a jus- dertaken. Only information other than tification for acceptance of an unsolic- cost or pricing data should be required. ited proposal (JAUP) prepared by the An analysis consistent with 48 CFR cognizant technical office. The JAUP (FAR) 15.404–1 through 15.404–2 should shall be submitted for the approval of be performed. the grant officer after review and con- (2) As part of the evaluation of the currence at a level above the technical cost proposal, the source of the recipi- officer. The evaluator shall consider ent’s contribution should be deter- the following factors, in addition to mined. Each of the cost elements con- any others appropriate for the par- tributed by the recipient and their ticular proposal: amounts should be identified. If the (i) Unique and innovative methods, contribution will consist at least in approaches or concepts demonstrated by the proposal. part of IR&D, the extent to which the IR&D may be recoverable from Govern- (ii) Overall scientific or technical ment awards should be established. merits of the proposal. This will involve using the estimated (iii) The offeror’s capabilities, related Government participation rate of the experience, facilities, techniques, or recipient’s General and Administrative unique combinations of these which are integral factors for achieving the pro- indirect cost base for the period of the posal objectives. cooperative agreement. An analysis (iv) The qualifications, capabilities, consistent with 48 CFR (FAR) 15.404–1 and experience of the proposed key per- and 15.404–2 should be performed. sonnel who are critical in achieving the (e) Consortium. If the cooperative proposal objectives. agreement is to be awarded to a con- (v) Current, open solicitations under sortium, a completed, formally exe- which the unsolicited proposal could be cuted Articles of Collaboration is re- evaluated. quired prior to award. (d) Cost evaluation. (1) The grant offi- (f) Printing, binding, and duplicating. cer and technical team will determine Proposals for effort which involve whether the overall proposed cost of printing, binding, and duplicating in the project is reasonable and that the excess of 25,000 pages are subject to the recipient’s contribution is valid, regulations of the Congressional Joint verifiable, and available. Commitments Committee on Printing. The technical should be obtained and verified to the office will refer such proposals to the extent practical from the offeror or Installation Central Printing Manage- members of the consortia that the pro- ment Officer (ICPMO) to ensure com- posed contributions can and will be pliance with NPD 1490.1. The grant offi- made as specified in the proposal or cer will be advised in writing of the re- statement of work. sults of the ICPMO review.
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§ 1274.205 Award procedures. Programs for recording and retention (a) General. Multiple year cooperative purposes. agreements are encouraged, but nor- (3) NASA cooperative agreements are mally they should not extend beyond subject to the provisions of 14 CFR two years. Part 1265, Government-wide Debarment (b) Award above proposed amount. and Suspension (Nonprocurement) and Awards of cooperative agreements in Government-wide requirements for response to competitive solicitations Drug-Free Workplace (Grants), unless will not result in providing more NASA excepted by 1265.110 and 1265.610. funds or resources than was antici- (4) A Lobbying Certification in ac- pated in the recipient’s proposal. If ad- cordance with 14 CFR part 1271 will be ditional funds or resources are deemed obtained prior to award. necessary, they will be provided by the (f) Indemnification under Public Law recipient and the Government cost 85–804 is not authorized for cooperative share percentage will be adjusted agreements. downward. (g) Notice of significant action. The (c) Changes to cooperative agreements. standard operating procedures for the Cost growth or in-scope changes shall Office of Public Affairs will be followed not increase the amount of NASA’s when notifying Congress and releasing contribution. Additional costs which information to the news media about arise during the performance of the co- operative agreement are the responsi- awards. Grant/Contracting Officers bility of the recipient. Funding for must approve any exceptions to this work required beyond the scope of the policy. cooperative agreement must be sought through the submission of a proposal § 1274.206 Document format and num- bering. which will be treated as an unsolicited proposal. (a) Grant officers are authorized to (d) Bilateral award. All cooperative use the format set forth in Exhibit B to agreements awarded under this part subpart A of 14 CFR part 1260, with will be awarded on a bilateral basis. minimum modification, as the stand- (e) Certifications and representations. ard cooperative agreement cover page (1) Unless prohibited by statute or for the award of all cooperative agree- codified regulation, recipients will be ments. encouraged to submit certifications (b) Cooperative agreement num- and representations required by stat- bering prior to Integrated Financial ute, executive order, or regulation on Management Project (IFMP) imple- an annual basis, if the recipients have mentation shall conform to 48 CFR ongoing and continuing relationships (NFS) 1804.7102–3, except that a NCC with the agency. Annual certifications prefix will be used in lieu of the NAS and representations shall be signed by prefix. responsible officials with the authority (c) There will be a phase-in term for to ensure recipients’ compliance with Center implementation of the IFMP. the pertinent requirements. For Centers using IFMP Performance (2) Civil rights requirements—non- Purchasing, the following cooperative discrimination in certain Federally- agreement numbering system shall be funded programs. Recipients must fur- used for new awards (awards made nish assurances of compliance with civil rights statutes specified in 14 CFR prior to conversation to IFMP will re- parts 1250 through 1252. Such assur- tain previously assigned numbers): ances are not required for each cooper- (1) Document Type for cooperative ative agreement, if they have pre- agreements. Cooperative agreements viously been furnished and remain cur- will use the prefix CO. rent and accurate. Certifications to (2) Agency Identifier. The Agency NASA are normally made on NASA identifier NAS shall follow the docu- Form 1206, which may be obtained from ment number. the grant officer. Upon acceptance, the (3) Center Smart Codes. The Center grant officer will forward assurances to identifier shall follow the document the NASA Office of Equal Opportunity type:
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Installation Smart § 1274.302 Transfers, novations, and Code change of name agreements. Ames Research Center ...... A (a) Transfer of cooperative agreements. Dryden Flight Research Center ...... D Glen Research Center ...... C Novation is the only means by which a Goddard Space Flight Center ...... G cooperative agreement may be trans- Headquarters ...... H ferred from one recipient to another. Johnson Space Center ...... J Kennedy Space Center ...... K (b) Novation and change of name. All Langley Research Center ...... L novation agreements and change of Marshall Space Flight Center ...... M NASA Management Office-JPL ...... P name agreements of the recipient, Stennis Space Center ...... S prior to execution, shall be reviewed by NASA legal counsel for legal suffi- (4) Fiscal Year. The fiscal year shall ciency prior to approval. be represented as two digits. (5) Procurement Code. Cooperative Subpart D—Government Property Agreements will be identified using ‘‘A’’ as the procurement code. § 1274.401 Government property. (6) Serial Numbers. Installations shall number cooperative agreements The accomplishment of a cooperative with commercial firms serially by fis- agreement may require the purchase of cal year, within the same number se- equipment for a wide range of purposes. ries used for grants and cooperative If this equipment is purchased with agreements with non-profit organiza- Government funds, i.e., as part of the tions. The serial number shall be six Government contribution to the coop- digits commencing with ‘‘000001’’ and erative agreement, it becomes Govern- continuing in succession. ment property and must be disposed of in accordance with 48 CFR (FAR) part § 1274.207 Distribution of cooperative 45 at the conclusion of the cooperative agreements. agreement. In some cases, this may Copies of cooperative agreements and meet the needs of the parties. If, how- modifications will be provided to: pay- ever, the recipient may need the equip- ment office, technical officer, adminis- ment to continue commercial efforts trative grant officer when delegation following the cooperative agreement, it has been made, NASA Center for Aero- should be purchased by the recipient space Information (CASI), Attn: Docu- and included as a non-cash contribu- ment Processing Section, 7121 Standard tion of the recipient. In this way, it is Drive, Hanover, MD 21076, and any other appropriate recipient. Copies of not procured, not even in part, with the statement of work, contained in Government funds and the Government the recipient’s proposal and accepted acquires no ownership interest. Pro- by NASA, will be provided to the ad- curement by the recipient may be be- ministrative grant officer and CASI. fore or during the performance of the The cooperative agreement file will cooperative agreement. contain a record of the addresses for distributing agreements and supple- Subpart E—Procurement ments. Standards Subpart C—Administration § 1274.501 Subcontracts. Recipients (individual firms or con- § 1274.301 Delegation of administra- tion. sortia) are not authorized to issue grants or cooperative agreements to Normally, cooperative agreements subrecipients. All contracts, including will be administered by the awarding small purchases, awarded by recipients activity. NASA Form 1678, NASA Tech- and their contractors shall contain the nical Officer Delegation for Coopera- tive Agreements with Commercial procurement provisions of appendix A Firms, will be used to delegate respon- to this part, as applicable and may be sibilities to the NASA Technical Offi- subject to approval requirements cited cer. in § 1274.925.
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Subpart F—Reports and Records ited to the required retention period, but shall last as long as records are re- § 1274.601 Retention and access re- tained. quirements for records. (f) Unless required by statute, NASA (a) This subpart sets forth require- shall not place restrictions on recipi- ments for record retention and access ents that limit public access to the to records for awards to recipients. records of recipients that are pertinent (b) Financial records, supporting doc- to an award, except when NASA can uments, statistical records, and all demonstrate that such records shall be other records pertinent to an award kept confidential and would have been shall be retained for a period of three exempted from disclosure pursuant to years from the date of submission of the Freedom of Information Act (5 the final invoice. The only exceptions U.S.C. 552) if the records had belonged are the following: to NASA. (1) If any litigation, claim, or audit is (g) This paragraph applies to the fol- started before the expiration of the 3- lowing types of documents, and their year period, the records shall be re- supporting records: indirect cost rate tained until all litigation, claims or computations or proposals, cost alloca- audit findings involving the records tion plans, and any similar accounting have been resolved and final action computations of the rate at which a taken. particular group of costs is chargeable (2) Records for real property and (such as computer usage chargeback equipment acquired with Federal funds rates or composite fringe benefit shall be retained for 3 years after final rates). disposition. (3) When records are transferred to or (1) If submitted for negotiation. If maintained by NASA, the 3-year reten- the recipient submits to NASA or the tion requirement is not applicable to subrecipient submits to the recipient the recipient. the proposal, plan, or other computa- (4) Indirect cost rate proposals, cost tion to form the basis for negotiation allocations plans, etc. as specified in of the rate, then the 3-year retention paragraph (g) of this section. period for its supporting records starts (c) Copies of original records may be on the date of such submission. substituted for the original records if (2) If not submitted for negotiation. authorized by NASA. If the recipient is not required to sub- (d) NASA shall request transfer of mit to NASA or the subrecipient is not certain records to its custody from re- required to submit to the recipient the cipients when it determines that the proposal, plan, or other computation records possess long term retention for negotiation purposes, then the 3- value. However, in order to avoid dupli- year retention period for the proposal, cate record keeping, NASA may make plan, or other computation and its sup- arrangements for recipients to retain porting records starts at the end of the any records that are continuously fiscal year (or other accounting period) needed for joint use. covered by the proposal, plan, or other (e) NASA, the Inspector General, computation. Comptroller General of the United States, or any of their duly authorized representatives, have the right of time- Subpart G—Suspension and ly and unrestricted access to any Termination books, documents, papers, or other § 1274.701 Suspension or termination. records of recipients that are pertinent to the awards, in order to make audits, A cooperative agreement provides examinations, excerpts, transcripts and both NASA and the recipient the abil- copies of such documents. This right ity to terminate the agreement if it is also includes timely and reasonable ac- in their best interests to do so. For ex- cess to a recipient’s personnel for the ample, NASA may terminate the agree- purpose of interview and discussion re- ment if the recipient is not making an- lated to such documents. The rights of ticipated technical progress, if the re- access in this paragraph are not lim- cipient materially fails to comply with
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the terms of the agreement, if the re- made a part of all cooperative agree- cipient materially changes the objec- ments. The provisions at §§ 1274.902 tive of the agreement, or if appro- through 1274.909 and the provision at priated funds are not available to sup- § 1274.933 are to be incorporated in full port the program. Similarly, the re- text substantially as stated in this sub- cipient may terminate the agreement part. The provisions at §§ 1274.910 if, for example, technical progress is through 1274.932 and § 1274.934 will be not being made, if the firms are shift- incorporated by reference in an enclo- ing their technical emphasis, or if sure to each cooperative agreement. other technological advances have For inclusion of provisions in sub- made the effort obsolete. NASA or the contracts, see subpart E, Procurement recipient may also suspend the cooper- Standards, of this Part. ative agreement for a short period of time if an assessment needs to be made § 1274.902 Purpose. as to whether the agreement should be PURPOSE terminated. October 2000 Subpart H—After-the-Award The purpose of this cooperative agreement Requirements is to conduct a shared resource project that will lead to llll. This cooperative agree- § 1274.801 Purpose. ment will advance the technology develop- ments and research which have been per- Sections 1274.802 and 1274.803 contain formed on llll. The specific objective is closeout procedures and other proce- to llll. This work will culminate in dures for subsequent disallowances and llll. adjustments. [End of provision]
§ 1274.802 Closeout procedures. § 1274.903 Responsibilities.
(a) Recipients shall submit, within 90 RESPONSIBILITIES calendar days after the date of comple- tion of the cooperative agreement, all October 2000 financial, performance, and other re- (a) This cooperative agreement will in- ports as required by the terms and con- clude substantial NASA participation during ditions of the award. Extensions may performance of the effort. NASA and the Re- be approved when requested by the re- cipient agree to the following Responsibil- ities, a statement of cooperative inter- cipient. actions to occur during the performance of (b) The recipient shall account for this effort. NASA and the Recipient shall any real and personal property ac- exert all reasonable efforts to fulfill the re- quired with Federal funds or received sponsibilities stated below. from the Federal Government in ac- (b) NASA Responsibilities. The following cordance with subpart D of this part. NASA responsibilities are hereby set forth with anticipated start and ending dates, as § 1274.803 Subsequent adjustments appropriate: and continuing responsibilities. Responsibility Start End The closeout of an award does not af- (c) Recipient Responsibilities. The Recipi- fect any of the following: ent shall be responsible for particular as- pects of project performance as set forth in (a) Audit requirements in § 1274.932. the technical proposal dated llll, at- (b) Property management require- tached hereto (or Statement of Work dated ments in subpart D of this part. llll, attached hereto.). The following re- (c) Records retention as required in sponsibilities are hereby set forth with an- § 1274.601. ticipated start and ending dates, as appro- priate: Subpart I—Provisions and Special Responsibility Start End Conditions (d) Since NASA contractors may obtain certain intellectual property rights arising § 1274.901 Other provisions and spe- from work for NASA in support of this agree- cial conditions. ment, NASA will inform Recipient whenever NASA intends to use NASA contractors to The provisions set forth in this sub- perform technical engineering services in part are to be incorporated in and support of this agreement.
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[End of provision] software and documentation thereof, and data comprising commercial and financial § 1274.904 Resource sharing require- information. ments. (b) Data Categories. (1) General: Data exchanged between NASA RESOURCE SHARING REQUIREMENTS and Recipient under this cooperative agree- ment will be exchanged without restriction October 2000 as to its disclosure, use or duplication except (a) NASA and the Recipient will share in as otherwise provided below in this provi- providing the resources necessary to perform sion. the agreement. NASA funding and non-cash (2) Background Data: In the event it is nec- contributions (personnel, equipment, facili- essary for Recipient to furnish NASA with ties, etc.) and the dollar value of the Recipi- Data which existed prior to, or produced out- ent’s cash and/or non-cash contribution will side of, this cooperative agreement, and such be on a ll (NASA)– ll (Recipient) basis. Data embodies trade secrets or comprises Criteria and procedures for the allowability commercial or financial information which and allocability of cash and non-cash con- is privileged or confidential, and such Data tributions shall be governed by Section 23, is so identified with a suitable notice or leg- ‘‘Cost Sharing or Matching,’’ of OMB Cir- end, the Data will be maintained in con- cular A–110. The ‘‘applicable federal cost fidence and disclosed and used by NASA and principles’’ cited in OMB Circular A–110 shall its contractors (under suitable protective be determined in accordance with 1274.919. conditions) only for the purpose of carrying (b) The Recipient’s share shall not be out NASA’s responsibilities under this coop- charged to the Government under this agree- erative agreement. Upon completion of ac- ment or under any other contract, grant, or tivities under this agreement, such Data will cooperative agreement, except to the extent be disposed of as requested by Recipient. that the Recipient’s contribution may be al- (3) Data first produced by Recipient: In the lowable IR&D costs pursuant to 48 CFR event Data first produced by Recipient in (NFS) 1831.205–18. carrying out Recipient’s responsibilities under this cooperative agreement is fur- [End of provision] nished to NASA, and Recipient considers such Data to embody trade secrets or to § 1274.905 Rights in data. comprise commercial or financial informa- (As noted in § 1274.203(h)(1), the following tion which is privileged or confidential, and provision assumes a substantially equal cost such Data is so identified with a suitable no- sharing relationship where collaborative re- tice or legend, the Data will be maintained search, experimental, developmental, engi- in confidence for a period of (insert ‘‘two’’ to neering, demonstration, or design activities ‘‘five’’) years after development of the data are to be carried out, such that it is likely and be disclosed and used by (’’NASA’’ or that ‘‘proprietary’’ information will be de- ‘‘the Government,’’ as appropriate) and its veloped and/or exchanged under the agree- contractors (under suitable protective condi- ment. If cost sharing is unequal or no exten- tions) only for (insert appropriate purpose; sive research, experimental, developmental, for example: experimental; evaluation; re- engineering, demonstration, or design activi- search; development, etc.) by or on behalf of ties are likely, a different set of provisions (’’NASA’’ or ‘‘the Government’’ as appro- may be appropriate. priate) during that period. In order that The grant officer is expected to complete (’’NASA’’ or the ‘‘Government’’, as appro- and/or select the appropriate bracketed lan- priate) and its contractors may exercise the guage under the provision for those para- right to use such Data for the purposes des- graphs dealing with data first produced ignated above, NASA, upon request to the under the cooperative agreement. In addi- Recipient, shall have the right to review and tion, the grant officer may, in consultation request delivery of Data first produced by with the Center’s Patent or Intellectual Recipient. Delivery shall be made within a Property Counsel, tailor the provision to fit time period specified by NASA. the particular circumstances of the program (4) Data first produced by NASA: As to Data and/or the recipient’s need to protect specific first produced by NASA in carrying out proprietary information.) NASA’s responsibilities under this coopera- tive agreement and which Data would em- RIGHTS IN DATA body trade secrets or would comprise com- mercial or financial information that is priv- October 2000 ileged or confidential if it had been obtained (a) Definitions. from the Recipient, will be marked with an ‘‘Data,’’ means recorded information, re- appropriate legend and maintained in con- gardless of form, the media on which it may fidence for an agreed to period of up to ( ) be recorded, or the method of recording. The years (INSERT A PERIOD UP TO 5 YEARS) term includes, but is not limited to, data of after development of the information, with a scientific or technical nature, computer the express understanding that during the
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aforesaid period such Data may be disclosed (ii) Information contained in any Data for and used (under suitable protective condi- which disclosure and use is restricted under tions) by or on behalf of the Government for paragraphs (b)(2) or (3) of this section, if such Government purposes only, and thereafter information is or becomes generally known for any purpose whatsoever without restric- without breach of the above, is known to or tion on disclosure and use. Recipient agrees is generated by NASA independently of car- not to disclose such Data to any third party rying out responsibilities under this agree- without NASA’s written approval until the ment, is rightfully received from a third aforementioned restricted period expires. party without restriction, or is included in (5) Copyright. data which Participant has, or is required to (i) In the event Data is exchanged with a furnish to the U.S. Government without re- notice indicating the Data is protected under striction on disclosure and use. copyright as a published copyrighted work, (c) Marking of data. Any Data delivered or are deposited for registration as a pub- under this cooperative agreement, by NASA lished work in the U.S. Copyright Office, the or the Recipient, shall be marked with a following paid-up licenses shall apply: suitable notice or legend indicating the data (A) If it is indicated on the Data that the was generated under this cooperative agree- Data existed prior to, or was produced out- ment. side of, this agreement, the receiving party (d) Lower tier agreements. The Recipient and others acting on its behalf, may repro- shall include this provision, suitably modi- duce, distribute, and prepare derivative fied to identify the parties, in all sub- works for the purpose of carrying out the re- contracts or lower tier agreements, regard- less of tier, for experimental, developmental, ceiving party’s responsibilities under this co- or research work. operative agreement; and (B) If the furnished Data does not contain [End of provision] the indication of paragraph (b)(5)(i)(A) of this section, it will be assumed that the Data § 1274.906 Designation of new tech- was first produced under this agreement, and nology representative and patent the receiving party and others acting on its representative. behalf, shall be granted a paid up, nonexclu- DESIGNATION OF NEW TECHNOLOGY REP- sive, irrevocable, world-wide license for all RESENTATIVE AND PATENT REPRESENTATIVE such Data to reproduce, distribute copies to the public, prepare derivative works, dis- October 2000 tribute copies to the public, and perform publicly and display publicly, by or on behalf (a) For purposes of administration of the clause of this cooperative agreement entitled of the receiving party. For Data that is com- ‘‘PATENT RIGHTS—RETENTION BY THE puter software, the right to distribute shall CONTRACTOR (LARGE BUSINESS)’’ or be limited to potential users in the United ‘‘PATENT RIGHTS—RETENTION BY THE States. CONTRACTOR (SMALL BUSINESS)’’ the (ii) When claim is made to copyright, the following named representatives are hereby Recipient shall affix the applicable copyright designated by the Grant Officer to admin- notice of 17 U.S.C. 401 or 402 and acknowledg- ister such clause: ment of Government sponsorship to the data when and if the data are delivered to the Title Office Code Address Government. llllllllllllllllllllllll (6) Oral and visual information. If informa- New Technology tion which the Recipient considers to em- Representative body trade secrets or to comprise commer- Patent cial or financial information which is privi- Representative leged or confidential is disclosed orally or (b) Reports of reportable items, and disclo- visually to NASA, such information must be sure of subject inventions, interim reports, reduced to tangible, recorded form (i.e., con- final reports, utilization reports, and other verted into Data as defined herein), identi- reports required by the clause, as well as any fied and marked with a suitable notice or correspondence with respect to such matters, legend, and furnished to NASA within 10 should be directed to the New Technology days after such oral or visual disclosure, or Representative unless transmitted in re- NASA shall have no duty to limit or restrict, sponse to correspondence or request from the and shall not incur any liability for, any dis- Patent Representative. Inquiries or requests closure and use of such information. regarding disposition of rights, election of (7) Disclaimer of liability. Notwithstanding rights, or related matters should be directed the above, NASA shall not be restricted in, to the Patent Representative. This clause nor incur any liability for, the disclosure and shall be included in any subcontract here- use of: under requiring ‘‘PATENT RIGHTS—RE- (i) Data not identified with a suitable no- TENTION BY THE CONTRACTOR (LARGE tice or legend as set in paragraph (b)(2) of BUSINESS)’’ clause or ‘‘PATENT RIGHTS— this section; nor RETENTION BY THE CONTRACTOR
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(SMALL BUSINESS)’’ clause, unless other- (c) Upon submission by the Recipient of in- wise authorized or directed by the Grant Of- voices in accordance with the provisions of ficer. The respective responsibilities and au- the agreement and upon certification by thorities of the above-named representatives NASA of completion of the payable mile- are set forth in 48 CFR (NFS) 1827.305–70. stone, the grant officer shall authorize pay- [End of provision] ment. (d) A payment milestone may be success- § 1274.907 Disputes. fully completed in advance of the date ap- pearing in paragraph (b) of this section. How- DISPUTES ever, payment shall not be made prior to that date without the written consent of the October 2000 Grant Officer. (a) In the event that a disagreement arises, (e) The Recipient is not entitled to partial representatives of the parties shall enter payment for partial completion of a payment into discussions in good faith and in a timely milestone. and cooperative manner to seek resolution. (f) Unless approved by the Grant Officer, If these discussions do not result in a satis- all preceding payment milestones must be factory solution, the aggrieved party may completed before payment can be made for seek a decision from the Dispute Resolution the next payment milestone. Official under paragraph (b) of this provi- (g) Invoices hereunder shall be submitted sion. This request must be presented no more in the original and five copies to the Grant than (3) three months after the events giving Officer for certification. rise to the disagreement have occurred. [End of provision] (b) The aggrieved party may submit a writ- ten request for a decision to § 1274.909 Term of this agreement. thelllll[Suggest this be the Center Om- budsman], who is designated as the Dispute TERM OF THIS AGREEMENT Resolution Official. The written request October 2000 shall include a statement of the relevant facts, a discussion of the unresolved issues, The agreement commences on the effective and a specification of the clarification, re- date indicated on the attached cover sheet lief, or remedy sought. A copy of this written and continues until the expiration date indi- request and all accompanying materials cated on the attached cover sheet unless ter- must be provided to the other party at the minated by either party. If all resources are same time. The other party shall submit a expended prior to the expiration date of the written position on the matters in dispute agreement, the parties have no obligation to within thirty (30) calendar days after receiv- continue performance and may elect to cease ing this notification that a decision has been at that point. The parties may extend the ex- requested. The Dispute Resolution Official piration date if additional time is required shall conduct a review of the matters in dis- to complete the milestones at no increase in pute and render a decision in writing within Government resources. Provisions of this thirty (30) calendar days of receipt of such agreement, which, by their express terms or written position. by necessary implication, apply for periods [End of provision] of time other than that specified as the agreement term, shall be given effect, not- § 1274.908 Milestone payments. withstanding expiration of the term of the agreement. MILESTONE PAYMENTS [End of provision]
October 2000 § 1274.910 Authority. (a) By submission of the first invoice, the Recipient is certifying that it has an estab- AUTHORITY lished accounting system which complies October 2000 with generally accepted accounting prin- ciples, with the requirements of this agree- This is a cooperative agreement as defined ment, and that appropriate arrangements in 31 U.S.C. 6305 (the Chiles Act) and is en- have been made for receiving, distributing, tered into pursuant to the authority of 42 and accounting for Federal funds received U.S.C. 2451, et seq. (the Space Act). under this agreement. [End of provision] (b) Payments will be made upon the fol- lowing milestones: (The schedule for pay- § 1274.911 Patent rights. ments may be based upon the Recipient’s completion of specific tasks, submission of Patent Rights (July 2000) specified reports, or whatever is appro- (a) Definitions. priate.) (1) ‘‘Administrator’’ means the Adminis- Date Payment Milestone Amount trator or Deputy Administrator of NASA.
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(2) ‘‘Invention’’ means any invention or dis- reserved in paragraph (b)(5)(i) of this section. covery which is or may be patentable or oth- Upon application in compliance with 37 CFR erwise protectable under Title 35 of the part 404—Licensing of Government Owned United States Code. Inventions, the Recipient or each Consor- (3) ‘‘Made’’ when used in relation to any in- tium Member (if applicable), shall be granted vention means the conception or first actual a revocable, nonexclusive, royalty-free li- reduction to practice such invention. cense in each patent application filed in any (4) ‘‘Nonprofit organization’’ means a do- country on a subject invention and any re- mestic university or other institution of sulting patent in which the Government ac- higher education or an organization of the quires title. Each nonexclusive license may type described in section 501(c)(3) of the In- extend to subsidiaries and affiliates, if any, ternal Revenue Code of 1954 (26 U.S.C. 501(c)) within the corporate structure of the li- and exempt from taxation under Section censee and includes the right to grant sub- 501(a) of the Internal Revenue Code (26 U.S.C. licenses of the same scope to the extent the 501(a)), or any domestic nonprofit scientific licensee was legally obligated to do so at the or educational organization qualified under a time the cooperative agreement was signed. State nonprofit organization statute. (3) NASA Contractor Inventions. In the event (5) ‘‘Practical application’’ means to manu- NASA contractors are tasked to perform facture, in the case of a composition or prod- work in support of specified NASA activities uct; to practice, in the case of a process or under this cooperative agreement and inven- method; or to operate, in the case of a ma- tions are made by contractor employees, the chine or system; and, in each case, under Recipient will normally retain title to its such conditions as to establish that the in- employee inventions in accordance with 35 vention is being utilized and that its benefits U.S.C. 202, 14 CFR part 1245, and Executive are, to the extent permitted by law or Gov- Order 12591. In the event the Recipient de- ernment regulations, available to the public cides not to pursue right to title in any such on reasonable terms. invention and NASA obtains title to such in- (6) ‘‘Recipient’’ means: ventions, NASA will use reasonable efforts (i) The signatory Recipient party or par- to report such inventions and, upon timely ties or; request, NASA will use its best efforts to (ii) The Consortium, where a Consortium grant the Recipient or designated Consor- has been formed for carrying out Recipient tium Member (if applicable) the first option responsibilities under this agreement. to acquire either an exclusive or partially (7) ‘‘Small Business Firm’’ means a domestic exclusive, revocable, royalty-bearing license, small business concern as defined at 15 upon terms to be subsequently negotiated, U.S.C. 632 and implementing regulations (see for any patent applications and patents cov- 13 CFR 121.401 et seq.) of the Administrator of ering such inventions, and subject to the li- the Small Business Administration. cense reserved in paragraph (b)(5)(ii) of this (8) ‘‘Subject Invention’’ means any inven- section. Upon application in compliance with tion of a Recipient and/or Government em- 37 CFR part 404 — Licensing of Government ployee conceived or first actually reduced to Owned Inventions, the Recipient or each practice in the performance of work under Consortium Member (if applicable), shall be this Agreement. granted a revocable, nonexclusive, royalty- (b) Allocation of Principal Rights. free license in each patent application filed (1) Recipient Inventions. For other than in any country on a subject invention and Small Business Firm or Nonprofit organiza- any resulting patent in which the Govern- tion Recipients, the ‘‘PATENT RIGHTS— ment acquires title. Each nonexclusive li- RETENTION BY RECIPIENT (LARGE BUSI- cense may extend to subsidiaries and affili- NESS)’’ provision applies. For Small Busi- ates, if any, within the corporate structure ness Firm and Nonprofit organization Re- of the licensee and includes the right to cipients, the ‘‘PATENT RIGHTS—RETEN- grant sublicenses of the same scope to the TION BY RECIPIENT (SMALL BUSINESS)’’ extent the licensee was legally obligated to provision applies. do so at the time the cooperative agreement (2) NASA Inventions. NASA will use reason- was signed. able efforts to report inventions made by (4) Joint NASA and Recipient Inventions. NASA employees as a consequence of, or NASA and Recipient agree to use reasonable which bear a direct relation to, the perform- efforts to identify and report to each other ance of specified NASA activities under this any inventions made jointly between NASA cooperative agreement and, upon timely re- employees (or employees of NASA Contrac- quest, NASA will use its best efforts to grant tors) and employees of Recipient. the Recipient or designated Consortium (i) For other than small business firms and Member (if applicable) the first option to ac- nonprofit organizations the Administrator quire either an exclusive or partially exclu- may agree that the United States will re- sive, revocable, royalty-bearing license, on frain from exercising its undivided interest terms to be subsequently negotiated, for any in a manner inconsistent with Recipient’s patent applications and patents covering commercial interest and to cooperate with such inventions, and subject to the license Recipient in obtaining patent protection on
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its undivided interest on any waived inven- fringement by the Recipient under 28 U.S.C. tions subject, however, to the condition that 1498. Recipient makes its best efforts to bring the [End of provision] invention to the point of practical applica- tion at the earliest practicable time. In the § 1274.912 Patent rights—retention by event that the Administrator determines the Recipient (large business). that such efforts are not undertaken, the Ad- ministrator may void NASA’s agreement to PATENT RIGHTS—RETENTION BY THE refrain from exercising its undivided interest RECIPIENT (LARGE BUSINESS) and grant licenses for the practice of the in- vention so as to further its development. In October 2000 the event that the Administrator decides to (a) Definitions. void NASA’s agreement to refrain from exer- (1) Administrator, as used in this clause, cising its undivided interest and grant li- means the Administrator of the National censes for this reason, notice shall be given Aeronautics and Space Administration to the Inventions and Contributions Board as (NASA) or duly authorized representative. to why such action should not be taken. Ei- (2) Invention, as used in this clause, means ther alternative will be subject to the appli- any invention or discovery which is or may cable license or licenses reserved in para- be patentable or otherwise protectable under graph (b)(5) of this section. Title 35 of the United States Code. (ii) For small business firms and nonprofit (3) Made, as used in relation to any inven- organization, NASA may assign or transfer tion, means the conception or first actual re- whatever rights it may acquire in a subject duction to practice such invention. invention from its employee to the Recipient (4) Nonprofit organization, as used in this as authorized by 35 U.S.C. 202(e). clause, means a domestic university or other (5) Minimum rights reserved by the Govern- institution of higher education or an organi- ment. Any license or assignment granted Re- zation of the type described in Section cipient pursuant to paragraphs (b)(2), (3), or 501(c)(3) of the Internal Revenue Code of 1954 (4) of this section will be subject to the res- (26 U.S.C. 501(c)) and exempt from taxation ervation of the following licenses: under Section 501(a) of the Internal Revenue (i) As to inventions made solely or jointly Code (26 U.S.C. 501(a)), or any domestic non- by NASA employees, the irrevocable, roy- profit scientific or educational organization alty-free right of the Government of the qualified under a State nonprofit organiza- United States to practice and have practiced tion statute. (5) Practical application, as used in this the invention by or on behalf of the United clause, means to manufacture, in the case of States; and a composition or product; to practice, in the (ii) As to inventions made solely by, or case of a process or method; or to operate, in jointly with, employees of NASA Contrac- case of a machine or system; and, in each tors, the rights in the Government of the case, under such conditions as to establish United States as set forth in paragraph that the invention is being utilized and that (b)(5)(i) of this section, as well as the rev- its benefits are, to the extent permitted by ocable, nonexclusive, royalty-free license in law or Government regulations, available to the contractor as set forth in 14 CFR 1245.108. the public on reasonable terms. (6) Preference for United States manufacture. (6) Reportable item, as used in this clause, The Recipient agrees that any products em- means any invention, discovery, improve- bodying subject inventions or produced ment, or innovation of the Recipient, wheth- through the use of subject inventions shall er or not the same is or may be patentable or be manufactured substantially in the United otherwise protectable under Title 35 of the States. However, in individual cases, the re- United States Code, conceived or first actu- quirement to manufacture substantially in ally reduced to practice in the performance the United States may be waived by the As- of any work under this contract or in the sociate Administrator for Procurement performance of any work that is reimburs- (Code HS) with the concurrence of the Asso- able under any clause in this contract pro- ciate General Counsel for Intellectual Prop- viding for reimbursement of costs incurred erty upon a showing by the Recipient that prior to the effective date of this contract. under the circumstances domestic manufac- (7) ‘‘Small business firm,’’ as used in this ture is not commercially feasible. clause, means a domestic small business con- (7) Work performed by the Recipient under cern as defined at 15 U.S.C. 632 and imple- this cooperative agreement is considered un- menting regulations (see 13 CFR 121.401 et dertaken to carry out a public purpose of seq.) of the Administrator of the Small Busi- support and/or stimulation rather than for ness Administration. acquiring property or services for the direct (8) ‘‘Subject invention,’’ as used in this benefit or use of the Government. Accord- clause, means any reportable item which is ingly, such work by the Recipient is not con- or may be patentable or otherwise sidered ‘‘by or for the United States’’ and the protectable under Title 35 of the United Government assumes no liability for in- States Code, or any novel variety of plant
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that is or may be protectable under the Agreement. If such a petition is not sub- Plant Variety Protection Act (7 U.S.C. 2321, mitted, or if after submission it is denied, et seq.). the Recipient (or an employee inventor of (b) Allocation of principal rights. the Recipient may petition for waiver of (1) Presumption of title. rights to an identified subject invention (i) Any reportable item that the Adminis- within eight months of first disclosure of in- trator considers to be a subject invention vention in accordance with paragraph (e)(2) shall be presumed to have been made in the of this section or within such longer period manner specified in paragraph (1) or (2) of as may be authorized in accordance with 14 section 305(a) of the National Aeronautics CFR 1245.105. Further procedures are pro- and Space Act of 1958 (42 U.S.C. 2457(a)) vided in the REQUESTS FOR WAIVER OF (hereinafter called ‘‘the Act’’), and the above RIGHTS—LARGE BUSINESS provision. presumption shall be conclusive unless at (c) Minimum rights reserved by the Govern- the time of reporting the reportable item the ment. Recipient submits to the Grant Officer a (1) With respect to each Recipient subject written statement, containing supporting de- invention for which a waiver of rights is ap- tails, demonstrating that the reportable plicable in accordance with 14 CFR part 1245, item was not made in the manner specified subpart 1, the Government reserves — in paragraph (1) or (2) of section 305(a) of the (i) An irrevocable, royalty-free license for Act. the practice of such invention throughout (ii) Regardless of whether title to a given the world by or on behalf of the United subject invention would otherwise be subject States or any foreign government in accord- to an advance waiver or is the subject of a ance with any treaty or agreement with the petition for waiver, the Recipient may never- United States; and theless file the statement described in para- graph (b)(1)(i) of this section. The Adminis- (ii) Such other rights as stated in 14 CFR trator will review the information furnished 1245.107. by the Recipient in any such statement and (2) Nothing contained in this paragraph any other available information relating to shall be considered to grant to the Govern- the circumstances surrounding the making ment any rights with respect to any inven- of the subject invention and will notify the tion other than a subject invention. Recipient whether the Administrator has de- (d) Minimum rights to the Recipient. termined that the subject invention was (1) The Recipient is hereby granted a rev- made in the manner specified in paragraph ocable, nonexclusive, royalty-free license in (1) or (2) of Section 305(a) of the Act. each patent application filed in any country (2) Property rights in subject inventions. Each on a Recipient subject invention and any re- subject invention for which the presumption sulting patent in which the Government ac- of paragraph (b)(1)(i) of this section is con- quires title, unless the Recipient fails to dis- clusive or for which there has been a deter- close the subject invention within the times mination that it was made in the manner specified in paragraph (e)(2) of this section. specified in paragraph (1) or (2) of section The Recipient’s license extends to its domes- 305(a) of the Act shall be the exclusive prop- tic subsidiaries and affiliates, if any, within erty of the United States as represented by the corporate structure of which the Recipi- NASA unless the Administrator waives all or ent is a party and includes the right to grant any part of the rights of the United States, sublicenses of the same scope to the extent as provided in paragraph (b)(3) of this sec- the Recipient was legally obligated to do so tion. at the time the contract was awarded. The (3) Waiver of rights. license is transferable only with the approval (i) Section 305(f) of the Act provides for the of the Administrator except when trans- promulgation of regulations by which the ferred to the successor of that part of the Re- Administrator may waive the rights of the cipient’s business to which the invention United States with respect to any invention pertains. or class of inventions made or that may be (2) The Recipient’s domestic license may made under conditions specified in para- be revoked or modified by the Administrator graph (1) or (2) of section 305(a) of the Act. to the extent necessary to achieve expedi- The promulgated NASA Patent Waiver Regu- tious practical application of the subject in- lations, 14 CFR part 1245, subpart 1, have vention pursuant to an application for an ex- adopted the Presidential memorandum on clusive license submitted in accordance with Government Patent Policy of February 18, 14 CFR part 1245, subpart 2, Licensing of 1983, as a guide in acting on petitions (re- NASA Inventions. This license will not be re- quests) for such waiver of rights. voked in that field of use or the geographical (ii) As provided in 14 CFR part 1245, sub- areas in which the Recipient has achieved part 1, Recipients may petition, either prior practical application and continues to make to execution of the Agreement or within 30 the benefits of the invention reasonably ac- days after execution of the Agreement, for cessible to the public. The license in any for- advance waiver of rights to any or all of the eign country may be revoked or modified at inventions that may be made under an the discretion of the Administrator to the
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extent the Recipient, its licensees, or its do- disclosure to the agency, the Recipient will mestic subsidiaries or affiliates have failed promptly notify the agency of the accept- to achieve practical application in that for- ance of any manuscript describing a subject eign country. invention for publication or of any on sale or (3) Before revocation or modification of the public use planned by the Recipient for such license, the Recipient will be provided a invention. written notice of the Administrator’s inten- (3) The Recipient shall furnish the Grant tion to revoke or modify the license, and the Officer the following: Recipient will be allowed 30 days (or such (i) Interim reports every 12 months (or other time as may be authorized by the Ad- such longer period as may be specified by the ministrator for good cause shown by the Re- Grant Officer) from the date of the Agree- cipient) after the notice to show cause why ment, listing reportable items during that the license should not be revoked or modi- period, and certifying that all reportable fied. The Recipient has the right to appeal, items have been disclosed (or that there are in accordance with 14 CFR 1245.211, any deci- no such inventions) and that the procedures sion concerning the revocation or modifica- tion of its license. required by paragraph (e)(1) of this section (e) Invention identification, disclosures, and have been followed. reports. (ii) A final report, within three months (1) The Recipient shall establish and main- after completion of the work, listing all re- tain active and effective procedures to as- portable items or certifying that there were sure that reportable items are promptly no such reportable items, and listing all sub- identified and disclosed to Recipient per- contracts at any tier containing a patent sonnel responsible for the administration of rights clause or certifying that there were no this clause within six months of conception such subcontracts. and/or first actual reduction to practice, (4) The Recipient agrees, upon written re- whichever occurs first in the performance of quest of the Grant Officer, to furnish addi- work under this contract. These procedures tional technical and other information avail- shall include the maintenance of laboratory able to the Recipient as is necessary for the notebooks or equivalent records and other preparation of a patent application on a sub- records as are reasonably necessary to docu- ject invention and for the prosecution of the ment the conception and/or the first actual patent application, and to execute all papers reduction to practice of the reportable necessary to file patent applications on sub- items, and records that show that the proce- ject inventions and to establish the Govern- dures for identifying and disclosing report- ment’s rights in the subject inventions. able items are followed. Upon request, the (5) The Recipient agrees, subject to 48 CFR Recipient shall furnish the Grant Officer a (FAR) 27.302(j), that the Government may description of such procedures for evaluation duplicate and disclose subject invention dis- and for determination as to their effective- closures and all other reports and papers fur- ness. nished or required to be furnished pursuant (2) The Recipient will disclose each report- to this clause. able item to the Grant Officer within two (f) Examination of records relating to inven- months after the inventor discloses it in tions. writing to Recipient personnel responsible for the administration of this clause or, if (1) The Grant Officer or any authorized earlier, within six months after the Recipi- representative shall, pursuant to the Reten- ent becomes aware that a reportable item tion and Examination of Records provision has been made, but in any event for subject of this cooperative agreement, have the right inventions before any on sale, public use, or to examine any books (including laboratory publication of such invention known to the notebooks), records, and documents of the Recipient. The disclosure to the agency shall Recipient relating to the conception or first be in the form of a written report and shall actual reduction to practice of inventions in identify the Agreement under which the re- the same field of technology as the work portable item was made and the inventor(s) under this contract to determine whether: or innovator(s). It shall be sufficiently com- (i) Any such inventions are subject inven- plete in technical detail to convey a clear tions; understanding, to the extent known at the (ii) The Recipient has established and time of the disclosure, of the nature, pur- maintained the procedures required by para- pose, operation, and physical, chemical, bio- graph (e)(1) of this section; and logical, or electrical characteristics of the (iii) The Recipient and its inventors have reportable item. The disclosure shall also complied with the procedures. identify any publication, on sale, or public (2) If the Grant Officer learns of an unre- use of any subject invention and whether a ported Recipient invention that the Grant manuscript describing such invention has Officer believes may be a subject inventions, been submitted for publication and, if so, the Recipient may be required to disclose the whether it has been accepted for publication invention to the agency for a determination at the time of disclosure. In addition, after of ownership rights.
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(3) Any examination of records under this (ii) Request, in the event of inability to paragraph will be subject to appropriate con- reach agreement pursuant to paragraph ditions to protect the confidentiality of the (g)(5)(i) of this section, that NASA invoke information involved. exceptional circumstances as necessary pur- (g) Subcontracts. suant to 37 CFR 401.3(a)(2) if the prospective (1) Unless otherwise authorized or directed subcontractor is a small business firm or or- by the Grant Officer, the Recipient shall— ganization, or for all other organizations, re- (i) Include this Clause Patent Rights—Re- quest that such rights for the Recipient be tention by the Recipient—(Large Business) included as an additional reservation in a (suitably modified to identify the parties) in waiver granted pursuant to 14 CFR part 1245, any subcontract hereunder (regardless of subpart 1. Any such requests to NASA should tier) with other than a small business firm be prepared in consideration of the following or nonprofit organization for the perform- guidance and submitted to the Contracting ance of experimental, developmental, or re- Officer. search work; and (A) Exceptional circumstances: A request (ii) Include the clause Patent Right—Re- that NASA make an ‘‘exceptional cir- tention by the Recipient—(Small Business) cumstances’’ determination pursuant to 37 (suitably modified to identify the parties) in CFR 401.3(a)(2) must state the scope of rights any subcontract hereunder (regardless of sought by the Recipient pursuant to such de- tier) with a small business firm or nonprofit termination; identify the proposed subcon- organization for the performance of experi- tractor and the work to be performed under mental, developmental, or research work. the subcontract; and state the need for the determination. (2) In the event of a refusal by a prospec- (B) Waiver petition: The subcontractor tive subcontractor to accept such a clause should be advised that unless it requests a the Recipient— waiver of title pursuant to the NASA Patent (i) Shall promptly submit a written notice Waiver Regulations (14 CFR part 1245, sub- to the Grant Officer setting forth the sub- part 1), NASA will acquire title to the sub- contractor’s reasons for such refusal and ject invention (42 U.S.C. 2457, as amended, other pertinent information that may expe- sec. 305). If a waiver is not requested or dite disposition of the matter; and granted, the Recipient may request a license (ii) Shall not proceed with such sub- from NASA (see licensing of NASA inven- contract without the written authorization tions, 14 CFR part 1245, subpart 2). A subcon- of the Grant Officer. tractor requesting a waiver must follow the (3) The Recipient shall promptly notify the procedures set forth in the attached clause Grant Officer in writing upon the award of REQUESTS FOR WAIVER OF RIGHTS— any subcontract at any tier containing a LARGE BUSINESS. patent rights clause by identifying the sub- (h) Preference for United States manufacture. contractor, the applicable patent rights The Recipient agrees that any products em- clause, the work to be performed under the bodying subject inventions or produced subcontract, and the dates of award and esti- through the use of subject inventions shall mated completion. Upon request of the be manufactured substantially in the United Grant Officer, the Recipient shall furnish a States. However, in individual cases, the re- copy of such subcontract, and, no more fre- quirement to manufacture substantially in quently than annually, a listing of the sub- the United States may be waived by the As- contracts that have been awarded. sociate Administrator for Procurement (4) The subcontractor will retain all rights (Code HS) with the concurrence of the Asso- provided for the Recipient in the clause of ciate General Counsel for Intellectual Prop- paragraph (g)(1)(i) or (1)(ii) of this section, erty upon a showing by the Recipient that whichever is included in the subcontract, under the circumstances domestic manufac- and the Recipient will not, as part of the ture is not commercially feasible. consideration for awarding the subcontract, (i) March-in rights. The Recipient agrees obtain rights in the subcontractor’s subject that, with respect to any subject invention inventions. in which it has acquired title, NASA has the (5) Notwithstanding paragraph (g)(4) of this right in accordance with the procedures in 37 section, and in recognition of the Contrac- CFR 401.6 and any supplemental regulations tor’s substantial contribution of funds, fa- of the agency to require the Recipient, an as- cilities and/or equipment to the work per- signee or exclusive licensee of a subject in- formed under this cooperative agreement, vention to grant a nonexclusive, partially the Recipient is authorized, subject to the exclusive, or exclusive license in any field of rights of NASA set forth elsewhere in this use to a responsible applicant or applicants, clause, to: upon terms that are reasonable under the (i) Acquire by negotiation and mutual circumstances, and if the subcontractor, as- agreement rights to a subcontractor’s sub- signee, or exclusive licensee refuses such a ject inventions as the Recipient may deem request NASA has the right to grant such a necessary to obtaining and maintaining of license itself if the Federal agency deter- such private support; and mines that—
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(1) Such action is necessary because the conceived or first actually reduced to prac- Recipient or assignee has not taken, or is tice in the performance of work under this not expected to take within a reasonable Agreement. time, effective steps to achieve practical ap- (b) Allocation of principal rights. The Recipi- plication of the subject invention in such ent may retain the entire right, title, and in- field of use; terest throughout the world to each subject (2) Such action is necessary to alleviate invention subject to the provisions of this health or safety needs which are not reason- clause and 35 U.S.C. 203. With respect to any ably satisfied by the Recipient, assignee, or subject invention in which the Recipient re- their licensees; tains title, the Federal Government shall (3) Such action is necessary to meet re- have a nonexclusive, nontransferable, irrev- quirements for public use specified by Fed- ocable, paid-up license to practice or have eral regulations and such requirements are practiced for or on behalf of the United not reasonably satisfied by the Recipient, as- States the subject invention throughout the signee, or licensees; or world. (4) Such action is necessary because the (c) Invention disclosure, election of title, and agreement required by paragraph (i) of this filing of patent application by Recipient. clause has not been obtained or waived or be- (1) The Recipient will disclose each subject cause a licensee of the exclusive right to use invention to NASA within two months after or sell any subject invention in the United the inventor discloses it in writing to Recipi- States is in breach of such agreement. ent personnel responsible for patent matters. [End of provision] The disclosure to the agency shall be in the form of a written report and shall identify § 1274.913 Patent rights—retention by the contract under which the invention was the Recipient (small business). made and the inventor(s). It shall be suffi- ciently complete in technical detail to con- PATENT RIGHTS—RETENTION BY THE vey a clear understanding to the extent RECIPIENT (SMALL BUSINESS) known at the time of the disclosure, of the nature, purpose, operation, and the physical, October 2000 chemical, biological or electrical character- (a) Definitions. istics of the invention. The disclosure shall (1) ‘‘Invention,’’ as used in this clause, also identify any publication, on sale or pub- means any invention or discovery which is or lic use of the invention and whether a manu- may be patentable or otherwise protectable script describing the invention has been sub- under title 35 of the U.S.C. mitted for publication and, if so, whether it (2) Made, as used in this clause, when used has been accepted for publication at the time in relation to any invention means the con- of disclosure. In addition, after disclosure to ception or first actual reduction to practice the agency, the Recipient will promptly no- such invention. tify the agency of the acceptance of any (3) Nonprofit organization, as used in this manuscript describing the invention for pub- clause, means a university or other institu- lication or of any sale or public use planned tion of higher education or an organization by the Recipient. of the type described in Section 501(c)(3) of (2) The Recipient will elect in writing the Internal Revenue Code of 1954 (26 U.S.C. whether or not to retain title to any such in- 501(c)) and exempt from taxation under Sec- vention by notifying NASA within two years tion 501(a) of the Internal Revenue Code (26 of disclosure to the Federal agency. How- U.S.C. 501(a)) or any nonprofit scientific or ever, in any case where publication, on sale educational organization qualified under a or public use has initiated the one-year stat- state nonprofit organization statute. utory period wherein valid patent protection (4) Practical application, as used in this can still be obtained in the United States, clause, means to manufacture, in the case of the period for election of title may be short- a composition of product; to practice, in the ened by the agency to a date that is no more case of a process or method, or to operate, in than 60 days prior to the end of the statutory the case of a machine or system; and, in each period. case, under such conditions as to establish (3) The Recipient will file its initial patent that the invention is being utilized and that application on a subject invention to which its benefits are, to the extent permitted by it elects to retain title within one year after law or Government regulations, available to election of title or, if earlier, prior to the end the public on reasonable terms. of any statutory period wherein valid patent (5) Small business firm, as used in this protection can be obtained in the United clause, means a small business concern as States after a publication, on sale, or public defined at Section 2 of Public Law 85–536 (15 use. The Recipient will file patent applica- U.S.C. 632) and implementing regulations tions in additional countries or international (see 13 CFR 121.401 et seq.) of the Adminis- patent offices within either 10 months of the trator of the Small Business Administration. corresponding initial patent application of (6) Subject invention, as used in this clause, six months from the date permission is means any invention of the subcontractor granted by the Commissioner of Patents and
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Trademarks to file foreign patent applica- reasonable accessible to the public. The li- tions where such filing has been prohibited cense in any foreign country may be revoked by a Secrecy Order. or modified at the discretion of NASA to the (4) Requests for extension of the time for extent the subcontractor, its licensees, or disclosure election, and filing under para- the domestic subsidiaries or affiliates have graphs (c)(1), (2), and (3) of this section may, failed to achieve practical application in at the discretion of the agency, be granted. that foreign country. (d) Conditions when the Government may ob- (3) Before revocation or modification of the tain title. The Recipient will convey to license, NASA will furnish the Recipient a NASA, upon written request, title to any written notice of its intention to revoke or subject invention— modify the license, and the Recipient will be (1) If the Recipient fails to disclose or elect allowed 30 days (or such other time as may title to the subject invention within the be authorized by NASA for good cause shown times specified in paragraph (c) of this sec- by the Recipient) after the notice to show tion, or elects not to retain title; provided, cause why the license should not be revoked that the agency may only request title with- or modified. The Recipient has the right to in 60 days after learning of the failure of the appeal, in accordance with applicable regula- Recipient to disclose or elect within the tions in 37 CFR part 404, concerning the li- specified times. censing of Government-owned inventions, (2) In those countries in which the Recipi- any decision concerning the revocation or ent fails to file patent applications within modification of the license. the times specified in paragraph (c) of this (f) Recipient action to protect the Govern- section; provided, however, that if the Re- ment’s interest. cipient has filed a patent application in a (1) The Recipient agrees to execute or to country after the times specified in para- have executed and promptly deliver to NASA graph (c) of this section, but prior to its re- all instruments necessary to: ceipt of the written request of the Federal agency, the Recipient shall continue to re- (i) Establish or confirm the rights the Gov- tain title in that country. ernment has throughout the world in those (3) In any country in which the Recipient subject inventions to which the Subcon- decides not to continue the prosecution of tractor elects to retain title, and, any application for, to pay the maintenance (ii) Convey title to the Federal agency fees on, or defend in reexamination or oppo- when requested under paragraph (d) of this sition proceeding on, a patent on a subject section and to enable the Government to ob- invention. tain patent protection throughout the world (e) Minimum rights to Recipient and protec- in that subject invention. tion of the Recipient right to file. (2) The Recipient agrees to require, by (1) The Recipient will retain a nonexclu- written agreement, its employees, other sive, royalty-free license throughout the than clerical and nontechnical employees, to world in each subject invention to which the disclose promptly in writing to personnel Government obtains title, except if the Re- identified as responsible for the administra- cipient fails to disclose the invention within tion of patent matters and in a format sug- the times specified in paragraph (c) of this gested by the Recipient each subject inven- section. The Recipient’s license extends to tion made under contract in order that the its domestic subsidiary and affiliates, if any, Recipient can comply with the disclosure within the corporate structure of which the provisions of paragraph (c) of this section, Recipient is a party and includes the right to and to execute all papers necessary to file grant sublicenses of the same scope to the patent applications on subject inventions extent the Recipient was legally obligated to and to establish the Government’s rights in do so at the time the agreement was award- the subject inventions. This disclosure for- ed. The license is transferable only with the mat should require, as a minimum, the infor- approval of NASA, except when transferred mation required by paragraph (c)(1) of this to the successor of that part of the Recipi- section. The Recipient shall instruct such ent’s business to which the invention per- employees, through employee agreements or tains. other suitable educational programs, on the (2) The Contractor’s domestic license may importance of reporting inventions in suffi- be revoked or modified by NASA to the ex- cient time to permit the filing of patent ap- tent necessary to achieve expeditious prac- plications prior to U.S. or foreign statutory tical application of subject invention pursu- bars. ant to an application for an exclusive license (3) The Recipient will notify NASA of any submitted in accordance with applicable pro- decisions not to continue the prosecution of visions at 37 CFR part 404 and agency licens- a patent application, pay maintenance fees, ing regulations (if any). This license will not or defend in a reexamination or opposition be revoked in that field of use or the geo- proceeding on a patent, in any country, not graphical areas in which the subcontractor less than 30 days before the expiration of the has achieved practical application and con- response period required by the relevant pat- tinues to make the benefits of the invention ent office.
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(4) The Recipient agrees to include, within under paragraph (g)(1)(i) or (ii) of this sec- the specification of any United States patent tion, whichever is included in the sub- application and any patent issuing thereon contract, and the Recipient will not, as part covering a subject invention the following of the consideration for awarding the sub- statement, ‘‘This invention was made with contract, obtain rights in the subcontrac- Government support under (identify the tor’s subject inventions. agreement) awarded by NASA. The Govern- (5) Notwithstanding paragraph (g)(4) of this ment has certain rights in the invention.’’ section, and in recognition of the Contrac- (5) The Recipient shall provide the Grant tor’s substantial contribution of funds, fa- Officer the following: cilities and/or equipment to the work per- (i) A listing every 12 months (or such formed under this cooperative agreement, longer period as the Grant Officer may speci- the Recipient is authorized, subject to the fy) from the date of the Agreement, of all rights of NASA set forth elsewhere in this subject inventions required to be disclosed clause, to— during the period. (i) Acquire by negotiation and mutual (ii) A final report prior to closeout of the agreement rights to a subcontractor’s sub- Agreement listing all subject inventions or ject inventions as the Recipient may deem certifying that there were none. necessary to obtaining and maintaining of (iii) Upon request, the filing date, serial such private support; and number, and title, a copy of the patent appli- (ii) Request, in the event of inability to cation, and patent number and issue date for reach agreement pursuant to paragraph any subject invention in any country in (g)(5)(i) of this section that NASA invoke ex- which the Recipient has applied for patents. ceptional circumstances as necessary pursu- (iv) An irrevocable power to inspect and ant to 37 CFR 401.3(a)(2) if the prospective make copies of the patent application file, by the Government, when a Federal Govern- subcontractor is a small business firm or or- ment employee is a co-inventor. ganization, or for all other organizations, re- (g) Subcontracts. quest that such rights for the Recipient be (1) Unless otherwise authorized or directed included as an additional reservation in a by the Grant Officer, the Recipient shall— waiver granted pursuant to 14 CFR part 1245, (i) Include this clause (Patent Rights—Re- subpart 1. Any such requests to NASA should tention by the Recipient (Small Business)), be prepared in consideration of the following suitably modified to identify the parties, in guidance and submitted to the Contracting all subcontracts, regardless of tier, for exper- Officer. imental, developmental, or research work to (A) Exceptional circumstances: A request be performed by a small business firm or do- that NASA make an ‘‘exceptional cir- mestic nonprofit organization; and cumstances’’ determination pursuant to 37 (ii) Include in all other subcontracts, re- CFR 401.3(a)(2) must state the scope of rights gardless of tier, for experimental, develop- sought by the Recipient pursuant to such de- mental, or research work the patent rights termination; identify the proposed subcon- clause (Patent Rights—Retention by the Re- tractor and the work to be performed under cipient (Large Business)). the subcontract; and state the need for the (2) In the event of a refusal by a prospec- determination. tive subcontractor to accept such a clause (B) Waiver petition: The subcontractor the Recipient— should be advised that unless it requests a (i) Shall promptly submit a written notice waiver of title pursuant to the NASA Patent to the Grant Officer setting forth the sub- Waiver Regulations (14 CFR part 1245, sub- contractor’s reasons for such refusal and part 1), NASA will acquire title to the sub- other pertinent information that may expe- ject invention (42 U.S.C. 2457, as amended, dite disposition of the matter; and sec. 305). If a waiver is not requested or (ii) Shall not proceed with such sub- granted, the Recipient may request a license contract without the written authorization from NASA (see licensing of NASA inven- of the Grant Officer. tions, 14 CFR part 1245, subpart 2). A subcon- (3) The Recipient shall promptly notify the tractor requesting a waiver must follow the Grant Officer in writing upon the award of procedures set forth in the REQUESTS FOR any subcontract at any tier containing a WAIVER OF RIGHTS—LARGE BUSINESS patent rights clause by identifying the sub- provision. contractor, the applicable patent rights (h) Reporting on utilization of subject inven- clause, the work to be performed under the tions. The Recipient agrees to submit, on re- subcontract, and the dates of award and esti- quest, periodic reports no more frequently mated completion. Upon request of the than annually on the utilization of a subject Grant Officer, the Recipient shall furnish a invention or on efforts at obtaining such uti- copy of such subcontract, and, no more fre- lization that are being made by the Recipi- quently than annually, a listing of the sub- ent or its licensees or assignees. Such re- contracts that have been awarded. ports shall include information regarding the (4) The subcontractor will retain all rights status of development, date of first commer- provided for the Recipient in the clause cial sale or use, gross royalties received by
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the Recipient, and such other data and infor- (1) Rights to a subject invention in the mation as the agency may reasonably speci- United States may not be assigned without fy. The Recipient also agrees to provide addi- the approval of NASA, except where such as- tional reports as may be requested by the signment is made to an organization which agency in connection with any march-in pro- has one of its primary functions the manage- ceeding under-taken by the agency in ac- ment of inventions; provided, that such as- cordance with paragraph (i) of this section. signee will be subject to the same provisions As required by 35 U.S.C. 202(c)(5), the agency as the Recipient; agrees it will not disclose such information (2) The Recipient will share royalties col- to persons outside the Government without lected on a subject invention with the inven- permission of the Recipient. tor, including Federal employee co-inventors (i) Preference for United States manufacture. (when NASA deems it appropriate) when the The Recipient agrees that any products em- subject invention is assigned in accordance bodying subject inventions or produced with 35 U.S.C. 202(e) and 37 CFR 401.10; through the use of subject inventions shall (3) The balance of any royalties or income be manufactured substantially in the United earned by the Recipient with respect to sub- States. However, in individual cases, the re- ject inventions, after payment of expenses quirement to manufacture substantially in (including payments to inventors) incidental the United States may be waived by the As- to the administration of subject inventions sociate Administrator for Procurement will be utilized for the support of scientific (Code HS) with the concurrence of the Asso- research or education; and ciate General Counsel for Intellectual Prop- (4) It will make efforts that are reasonable erty upon a showing by the Recipient that under the circumstances to attract licensees under the circumstances domestic manufac- of subject inventions that are small business ture is not commercially feasible. firms, and that it will give a preference to a small business firm when licensing a subject (j) March-in rights. The Recipient agrees invention if the Recipient determines that that, with respect to any subject invention the small business firm has a plan or pro- in which it has acquired title, NASA has the posal for marketing the invention which, if right in accordance with the procedures in 37 executed, is equally as likely to bring the in- CFR 401.6 and any supplemental regulations vention to practical application as any plans of the agency to require the Recipient, an as- or proposals from applicants that are not signee or exclusive licensee of a subject in- small business firms; provided that the Re- vention to grant a nonexclusive, partially cipient is also satisfied that the small busi- exclusive, or exclusive license in any field of ness firm has the capability and resources to use to a responsible applicant or applicants, carry out its plan or proposal. The decision upon terms that are reasonable under the whether to give a preference in any specific circumstances, and if the subcontractor, as- case will be at the discretion of the Recipi- signee, or exclusive licensee refuses such a ent. However, the Recipient agrees that the request NASA has the right to grant such a Secretary of Commerce may review the Con- license itself if the Federal agency deter- tractor’s licensing program and decisions re- mines that— garding small business applicants, and the (1) Such action is necessary because the Recipient will negotiate changes to its li- Recipient or assignee has not taken, or is censing policies, procedures, or practices not expected to take within a reasonable with the Secretary of Commerce when the time, effective steps to achieve practical ap- Secretary’s review discloses that the Recipi- plication of the subject invention in such ent could take reasonable steps to more ef- field of use; fectively implement the requirements of this (2) Such action is necessary to alleviate paragraph. health or safety needs which are not reason- (l) A copy of all submissions or requests re- ably satisfied by the Recipient, assignee, or quired by this clause, plus a copy of any re- their licensees; ports, manuscripts, publications, or similar (3) Such action is necessary to meet re- material bearing on patent matters, shall be quirements for public use specified by Fed- sent to the installation Patent Counsel in eral regulations and such requirements are addition to any other submission require- not reasonably satisfied by the Recipient, as- ments in the cooperative agreement. If any signee, or licensees; or reports contain information describing a (4) Such action is necessary because the ‘‘subject invention’’ for which the Recipient agreement required by paragraph (i) of this has elected or may elect title, NASA will use section has not been obtained or waived or reasonable efforts to delay public release by because a licensee of the exclusive right to NASA or publication by NASA in a NASA use or sell any subject invention in the technical series, in order for a patent appli- United States is in breach of such agree- cation to be filed, provided that the Recipi- ment. ent identify the information and the ‘‘sub- (k) Special provisions for Agreements with ject invention’’ to which it relates at the nonprofit organizations. If the Recipient is a time of submittal. If required by the Grant nonprofit organization, it agrees that— Officer, the Recipient shall provide the filing
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date, serial number and title, a copy of the then to the Inventions and Contributions patent application, and a patent number and Board. The Board will consider these peti- issue date for any ‘‘subject invention’’ in any tions and where the Board makes the find- country in which the Recipient has applied ings to support the waiver, the Board will for patents. recommend to the Administrator that waiv- [End of provision] er be granted, and will notify the petitioner and the Grant Officer of the Administrator’s § 1274.914 Requests for waiver of determination. The Grant Officer will be in- rights—large business. formed by the Board whenever there is insuf- ficient time or information or other reasons REQUESTS FOR WAIVER OF RIGHTS—LARGE to permit a decision to be made without un- BUSINESS duly delaying the execution of the agree- October 2000 ment. In the latter event, the petitioner will be so notified by the Grant Officer. All other (a) In accordance with the NASA Patent Waiver Regulations, 14 CFR part 1245, sub- petitions will be processed by installation part 1, waiver of rights to any or all inven- Patent Counsel and forwarded to the Board. tions made or that may be made under a The Board shall notify the petitioner of its NASA agreement, contract or subcontract action and if waiver is granted, the condi- with other than a small business firm or a tions, reservations, and obligations thereof domestic nonprofit organization may be re- will be included in the Instrument of Waiver. quested at different time periods. Advance Whenever the Board notifies a petitioner of a waiver of rights to any or all inventions that recommendation adverse to, or different may be made under a contract or sub- from, the waiver requested, the petitioner contract may be requested prior to the exe- may request reconsideration under proce- cution of the agreement, contract or sub- dures set forth in the Regulations. contract, or within 30 days after execution [End of provision] by the selected Recipient. In addition, waiv- er of rights to an identified invention made and reported under a agreement, contract or § 1274.915 Restrictions on sale or subcontract may be requested, even though a transfer of technology to foreign request for an advance waiver was not made firms or institutions. or, if made, was not granted. (b) Each request for waiver of rights shall RESTRICTIONS ON SALE OR TRANSFER OF TECH- be by petition to the Administrator and shall include an identification of the petitioner; NOLOGY TO FOREIGN FIRMS OR INSTITUTIONS place of business and address; if petitioner is October 2000 represented by counsel, the name, address, and telephone number of the counsel; the (a) The parties agree that access to tech- signature of the petitioner or authorized rep- nology developments under this Agreement resentative; and the date of signature. No by foreign firms or institutions must be specific forms need be used, but the request carefully controlled. For purposes of this should contain a positive statement that clause, a transfer includes a sale of the com- waiver of rights is being requested under the pany, or sales or licensing of the technology. NASA Patent Waiver Regulations; a clear in- Transfers do not include— dication of whether the request is for an ad- (1) Sales of products or components; vance waiver or for a waiver of rights for an individual identified invention; whether for- (2) Licenses of software or documentation eign rights are also requested and, if so, the related to sales of products or components; countries, and a citation of the specific sec- or tion or sections of the regulations under (3) Transfers to foreign subsidiaries of the which such rights are requested; and the Recipient for purposes related to this Agree- name, address, and telephone number of the ment. party with whom to communicate when the (b) The Recipient shall provide timely no- request is acted upon. Requests for advance tice to the Grant Officer in writing of any waiver of rights should, preferably, be in- proposed transfer of technology developed cluded with the proposal, but in any event in under this Agreement. If NASA determines advance of negotiations. that the transfer may have adverse con- (c) Petitions for advance waiver, prior to sequences to the national security interests agreement execution, must be submitted to of the United States, or to the establishment the Grant Officer. All other petitions will be of a robust United States industry, NASA submitted to the Patent Representative des- and the Recipient shall jointly endeavor to ignated in the contract. find alternatives to the proposed transfer (d) Petitions submitted with proposals se- lected for negotiation of an agreement will which obviate or mitigate potential adverse be forwarded by the Grant Officer to the in- consequences of the transfer. stallation Patent Counsel for processing and [End of provision]
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§ 1274.916 Liability and risk of loss. § 1274.919 Cost principles and account- ing standards. LIABILITY AND RISK OF LOSS COST PRINCIPLES AND ACCOUNTING STANDARDS October 2000 October 2000 (a) With regard to activities undertaken The expenditure of Government funds by pursuant to this agreement, neither party the Recipient and the allowability of costs shall make any claim against the other, em- ployees of the other, the other’s related enti- recognized as a resource contribution by the ties (e.g., Contractors, subcontractors, etc.), Recipient (See clause entitled ‘‘Resource or employees of the other’s related entities Sharing Requirements’’) shall be governed for any injury to or death of its own employ- by the FAR cost principles, 48 CFR part 31. ees or employees of its related entities, or (If the Recipient is a consortium which in- for damage to or loss of its own property or cludes non-commercial firm members, cost that of its related entities, whether such in- allowability for those members will be deter- jury, death, damage or loss arises through mined as follows: Allowability of costs in- negligence or otherwise, except in the case of curred by State, local or federally-recognized willful misconduct. Indian tribal governments is determined in (b) To the extent that a risk of damage or accordance with the provisions of OMB Cir- loss is not dealt with expressly in this agree- cular A–87, ‘‘Cost Principles for State and ment, each party’s liability to the other Local Governments.’’ The allowability of party arising out of this Agreement, whether costs incurred by non-profit organizations is or not arising as a result of an alleged breach determined in accordance with the provi- of this Agreement, shall be limited to direct sions of OMB Circular A–122, ‘‘Cost Prin- damages only, and shall not include any loss ciples for Non-Profit Organizations.’’ The al- of revenue or profits or other indirect or con- lowability of costs incurred by institutions sequential damages. of higher education is determined in accord- ance with the provisions of OMB Circular A– [End of provision] 21, ‘‘Cost Principles for Educational Institu- tions.’’ The allowability of costs incurred by § 1274.917 Additional funds. hospitals is determined in accordance with the provisions of appendix E of 45 CFR part 74, ‘‘Principles for Determining Costs Appli- ADDITIONAL FUNDS cable to Research and Development Under October 2000 Grants and Contracts with Hospitals.’’) Re- cipient’s method for accounting for the ex- Pursuant to this agreement, NASA is pro- penditure of funds must be consistent with viding a fixed amount of funding for activi- Generally Accepted Accounting Principles. ties to be undertaken under the terms of this [End of provision] cooperative agreement. NASA is under no obligation to provide additional funds. Under no circumstances shall the Recipient under- § 1274.920 Responsibilities of the NASA take any action which could be construed to Technical Officer. imply an increased commitment on the part of NASA under this cooperative agreement. RESPONSIBILITIES OF THE NASA TECHNICAL [End of provision] OFFICER October 2000 § 1274.918 Incremental funding. (a) The NASA Grant Administrator and Technical Officer for this cooperative agree- INCREMENTAL FUNDING ment are identified on the cooperative agree- October 2000 ment cover sheet. (b) The Grant Specialist shall serve as (a) Of the award amount indicated on the NASA’s authorized representative for the ad- cover page of this agreement, only the obli- ministrative elements of all work to be per- gated amount indicated on the cover page of formed under the agreement. this agreement is available for payment. (c) The Technical Officer shall have the au- NASA anticipates making additional allot- thority to issue written Technical Advice ments of funds as required, which suggests redirecting the project work (b) These funds will be obligated as appro- (e.g., by changing the emphasis among dif- priated funds become available without any ferent tasks), or pursuing specific lines of in- action required of the Recipient. NASA is quiry likely to assist in accomplishing the not obligated to make payments in excess of effort. The Technical Officer shall have the the total funds obligated. authority to approve or disapprove those [End of provision] technical reports, plans, and other technical
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information the Recipient is required to sub- (4) Name and address of the Recipient’s or- mit to NASA for approval. The Technical Of- ganization. ficer is not authorized to issue and the Re- (5) Cooperative agreement number. cipient shall not follow any Technical Ad- (f) An original and two copies, one of which vice which constitutes work which is not shall be of suitable quality to permit micro- contemplated under this agreement; which reproduction, shall be sent as follows: in any manner causes an increase or decrease (1) Original—Grant Officer. in the resource sharing or in the time re- (2) Copy—Technical Officer. quired for performance of the project; which (3) Micro-reproducible copy—NASA Center has the effect of changing any of the terms for Aerospace Information (CASI), Parkway or conditions of the cooperative agreement; Center, Attn: Document Processing Section, or which interferes with the Recipient’s 7121 Standard Drive, Hanover, MD 21076. right to perform the project in accordance (g) The requirements set forth under this with the terms and conditions of this cooper- provision may be modified by the Grant Offi- ative agreement. cer based on specific report needs for the par- [End of provision] ticular grant or cooperative agreement. [End of provision] § 1274.921 Publications and reports: Non-proprietary research results. § 1274.922 Suspension or termination.
PUBLICATIONS AND REPORTS: NON- SUSPENSION OR TERMINATION PROPRIETARY RESEARCH RESULTS October 2000 October 2000 (a) This cooperative agreement may be (a) NASA encourages the widest prac- suspended or terminated in whole or in part ticable dissemination of research results at by the Recipient or by NASA after consulta- all times during the course of the investiga- tion with the other party. NASA may termi- tion consistent with the other terms of this nate the agreement, for example, if the Re- agreement. cipient is not making anticipated technical (b) All information disseminated as a re- progress, if the Recipient materially fails to sult of the cooperative agreement shall con- comply with the terms of the agreement, if tain a statement which acknowledges the Recipient materially changes the objec- NASA’s support and identifies the coopera- tive of the agreement, or if appropriated tive agreement by number. funds are not available to support the pro- (c) Prior approval by the NASA Technical gram. Officer is required only where the Recipient (b) Upon fifteen (15) days written notice to requests that the results of the research be the other party, either party may tempo- published in a NASA scientific or technical rarily suspend the cooperative agreement, publication. Two copies of each draft publi- pending corrective action or a decision to cation shall accompany the approval re- terminate the cooperative agreement. The quest. notice should express the reasons why the (d) Reports shall contain full bibliographic agreement is being suspended. references, abstracts of publications and lists (c) In the event of termination by either of all other media in which the research was party, the Recipient shall not be entitled to discussed. The Recipient shall submit the additional funds or payments except as may following technical reports: be required by the Recipient to meet NASA’s (1) A progress report for every year of the share of commitments which had in the judg- cooperative agreement (except the final ment of NASA become firm prior to the ef- year). Each report is due 60 days before the fective date of termination and are otherwise anniversary date of the cooperative agree- appropriate. In no event, shall these addi- ment and shall describe research accom- tional funds or payments exceed the amount plished during the report period. of the next payable milestone billing (2) A summary of research is due by 90 days amount. after the expiration date of the cooperative agreement, regardless of whether or not sup- [End of provision] port is continued under another cooperative agreement. This report is intended to sum- § 1274.923 Equipment and other prop- marize the entire research accomplished dur- erty. ing the duration of the cooperative agree- ment. EQUIPMENT AND OTHER PROPERTY (e) Progress reports and summaries of re- October 2000 search shall display the following on the first page: (a) NASA cooperative agreements permit (1) Title of the cooperative agreement. acquisition of special purpose equipment re- (2) Type of report. quired for the conduct of research. Acquisi- (3) Period covered by the report. tion of special purpose equipment costing in
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excess of $5,000 and not included in the ap- port is required within 30 days after expira- proved proposal budget requires the prior ap- tion of the agreement. proval of the Grant Officer unless the item is [End of provision] merely a different model of an item shown in the approved proposal budget. § 1274.924 Civil rights. (b) Recipients may not purchase, as a di- rect cost to the cooperative agreement, CIVIL RIGHTS items of general purpose equipment, exam- ples of which include but are not limited to October 2000 office equipment and furnishings, air condi- Work on NASA cooperative agreements is tioning equipment, reproduction and print- subject to the provisions of Title VI of the ing equipment, motor vehicles, and auto- Civil Rights Act of 1964 (Pub. L. 88–352; 42 matic data processing equipment. If the Re- U.S.C. 2000d–1), Title IX of the Education cipient requests an exception, the Recipient Amendments of 1972 (20 U.S.C. 1680 et seq.), shall submit a written request for Grant Of- section 504 of the Rehabilitation Act of 1973, ficer approval, prior to purchase by the Re- as amended (29 U.S.C. 794), the Age Discrimi- cipient, stating why the Recipient cannot nation Act of 1975 (42 U.S.C. 6101 et seq.), and charge the general purpose equipment to in- the NASA implementing regulations (14 CFR direct costs. parts 1250, 1251, 1252 and 1253). (c) Under no circumstances shall coopera- tive agreement funds be used to acquire land [End of provision] or any interest therein, to acquire or con- struct facilities (as defined in 48 CFR (FAR) § 1274.925 Subcontracts. 45.301), or to procure passenger carrying ve- SUBCONTRACTS hicles. (d) The government shall have title to October 2000 equipment and other personal property ac- quired with government funds. Such prop- (a) Recipients are not authorized to issue erty shall be disposed of pursuant to 48 CFR grants or cooperative agreements. (FAR) 45.603. The Recipient shall have title (b) NASA Grant Officer consent is required to equipment and other personal property for subcontracts over $100,000, if not accepted acquired with Recipient funds. Such prop- by NASA in the original proposal. The Re- erty shall remain with the Recipient at the cipient shall provide the following informa- conclusion of the cooperative agreement. tion to the Grant Officer: (e) Title to Government furnished equip- (1) A copy of the proposed subcontract. ment (including equipment, title to which (2) Basis for subcontractor selection. has been transferred to the Government (3) Justification for lack of competition prior to completion of the work) will remain when competitive bids or offers are not ob- with the Government. tained. (f) The Recipient shall establish and main- (4) Basis for award cost or award price. tain property management standards for (c) The Recipient shall utilize small busi- Government property and otherwise manage ness concerns, small disadvantaged business such property as set forth in 48 CFR (FAR) concerns, Historically Black Colleges and 45.5 and 48 CFR (NFS) 1845.5. Universities, minority educational institu- (g) Recipients shall submit annually a tions, and women-owned small business con- NASA Form 1018, NASA Property in the Cus- cerns as subcontractors to the maximum ex- tody of Contractors, in accordance with the tent practicable. instructions on the form, the provisions of 18 [End of provision] CFR (NFS) 1845.71 and any supplemental in- structions that may be issued by NASA for § 1274.926 Clean Air-Water Pollution the current reporting period. The original Control Acts. NF 1018 shall be submitted to the center Dep- uty Chief Financial Officer (Finance) with CLEAN AIR-WATER POLLUTION CONTROL ACTS three copies sent concurrently to the center October 2000 Industrial Property Officer. The annual re- porting period shall be from October 1 of If this cooperative agreement or supple- each year through September 30 of the fol- ment thereto is in excess of $100,000, the Re- lowing year. The report shall be submitted in cipient agrees to notify the Grant Officer time to be received by October 31. Negative promptly of the receipt, whether prior or reports (i.e. no reportable property) are re- subsequent to the Recipient’s acceptance of quired. The information contained in the re- this cooperative agreement, of any commu- ports in entered into the NASA accounting nication from the Director, Office of Federal system to reflect current asset values for Activities, Environmental Protection Agen- agency financial statement purposes. There- cy (EPA), indicating that a facility to be uti- fore, it is essential that required reports be lized under or in the performance of this co- received no later than October 31. A final re- operative agreement or any subcontract
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thereunder is under consideration to be list- print card may be obtained from the NASA ed on the EPA ‘‘List of Violating Facilities’’ Installation Security Office. published pursuant to 40 CFR part 15. By ac- (b) The Installation Security Office will re- ceptance of a cooperative agreement in ex- quest from NASA Headquarters, Office of Ex- cess of $100,000, the Recipient— ternal Relations (Code I), approval for each (a) Stipulates that any facility to be uti- foreign national’s access to the Installation lized thereunder is not listed on the EPA prior to providing access to the Installation. ‘‘List of Violating Facilities’’ as of the date If the access approval is obtained from NASA of acceptance; Headquarters prior to completion of the NAC (b) Agrees to comply with all requirements and performance of the cooperative agree- of section 114 of the Clean Air Act, as amend- ment requires a foreign national to be given ed (42 U.S.C. 1857 et seq. as amended by Pub. access immediately, the Technical Officer L. 91–604) and section 308 of the Federal may submit an escort request to the Instal- Water Pollution Control Act, as amended (33 lation’s Chief of Security. U.S.C. 1251 et seq. as amended by Pub. L. 92– [End of provision] 500) relating to inspection, monitoring, entry, reports and information, and all other § 1274.929 Restrictions on lobbying. requirements specified in the aforemen- tioned sections, as well as all regulations RESTRICTIONS ON LOBBYING and guidelines issued thereunder after award of and applicable to the cooperative agree- October 2000 ment; and This award is subject to the provisions of (c) Agrees to include the criteria and re- 14 CFR Part 1271 ‘‘New Restrictions on Lob- quirements of this clause in every sub- bying.’’ contract hereunder in excess of $100,000, and [End of provision] to take such action as the Grant Officer may direct to enforce such criteria and require- ments. § 1274.930 Travel and transportation. [End of provision] TRAVEL AND TRANSPORTATION
§ 1274.927 Debarment and suspension October 2000 and Drug-Free Workplace. (a) For travel funded by the government under this agreement, section 5 of the Inter- DEBARMENT AND SUSPENSION AND DRUG-FREE national Air Transportation Fair Competi- WORKPLACE tive Practices Act of 1974 (49 U.S.C. 40118) October 2000 (Fly America Act) requires the Recipient to use U.S.-flag air carriers for international NASA cooperative agreements are subject air transportation of personnel and property to the provisions of 14 CFR Part 1265, Gov- to the extent that service by those carriers ernment-wide Debarment and Suspension is available. (Nonprocurement) and Government-wide re- (b) Department of Transportation regula- quirements for Drug-Free Workplace, unless tions, 49 CFR part 173, govern Recipient ship- excepted by 14 CFR 1265.110 or 1265.610. ment of hazardous materials and other [End of provision] items. [End of provision] § 1274.928 Foreign national employee investigative requirements. § 1274.931 Electronic funds transfer payment methods. FOREIGN NATIONAL EMPLOYEE INVESTIGATIVE REQUIREMENTS ELECTRONIC FUNDS TRANSFER PAYMENT METHODS October 2000 October 2000 (a) The Recipient shall submit a properly executed Name Check Request (NASA Form Payments under this cooperative agree- 531) and a completed applicant fingerprint ment will be made by the Government by card (Federal Bureau of Investigation Card electronic funds transfer through the Treas- FD–258) for each foreign national employee ury Fedline Payment System (FEDLINE) or requiring access to a NASA Installation. the Automated Clearing House (ACH), at the These documents shall be submitted to the option of the Government. After award, but Installation’s Security Office at least 75 days no later than 14 days before an invoice is prior to the estimated duty date. The NASA submitted, the Recipient shall designate a fi- Installation Security Office will request a nancial institution for receipt of electronic National Agency Check (NAC) for foreign na- funds transfer payments, and shall submit tional employees requiring access to NASA this designation to the Grant Officer or facilities. The NASA Form 531 and finger- other Government official, as directed.
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(a) For payment through FEDLINE, the payee bank account information may delay Recipient shall provide the following infor- payments of amounts otherwise properly mation: due. (1) Name, address, and telegraphic abbre- [End of provision] viation of the financial institution receiving payment. (2) The American Bankers Association 9- § 1274.932 Retention and examination digit identifying number for wire transfers of of records. the financing institution receiving payment RETENTION AND EXAMINATION OF RECORDS if the institution has access to the Federal Reserve Communication System. October 2000 (3) Payee’s account number at the finan- cial institution where funds are to be trans- Financial records, supporting documents, ferred. statistical records, and all other records (or (4) If the financial institution does not microfilm copies) pertinent to this coopera- have access to the Federal Reserve Commu- tive agreement shall be retained for a period nications System, name, address, and tele- of 3 years, except that records for non-ex- graphic abbreviation of the correspondent fi- pendable property acquired with cooperative nancial institution through which the finan- agreement funds shall be retained for 3 years cial institution receiving payment obtains after its final disposition and, if any litiga- wire transfer activity. Provide the tele- tion, claim, or audit is started before the ex- graphic abbreviation and American Bankers piration of the 3-year period, the records Association identifying number for the cor- shall be retained until all litigation, claims, respondent institution. or audit findings involving the records have (b) For payment through ACH, the Recipi- been resolved. The retention period starts ent shall provide the following information: from the date of the submission of the final (1) Routing transit number of the financial invoice. The Administrator of NASA, the institution receiving payment (same as Comptroller General of the United States, American Bankers Association identifying the Office of Inspector General, or any of number used for FEDLINE). their duly authorized representatives, shall (2) Number of account to which funds are have access to any pertinent books, docu- to be deposited. ments, papers, and records of the Recipient (3) Type of depositor account (‘‘C’’ for and of subcontractors to make audits, ex- checking, ‘‘S’’ for savings). aminations, excerpts, and transcripts. All (4) If the Recipient is a new enrollee to the provisions of this clause shall apply to any ACH system, a ‘‘Payment Information subcontractor performing substantive work Form,’’ SF 3881, must be completed before under this cooperative agreement. payment can be processed. [End of provision] (c) In the event the Recipient, during the performance of this cooperative agreement, elects to designate a different financial insti- § 1274.933 Summary of recipient re- tution for the receipt of any payment made porting responsibilities. using electronic funds transfer procedures, SUMMARY OF RECIPIENT REPORTING notification of such change and the required RESPONSIBILITIES information specified above must be received by the appropriate Government official 30 October 2000 days prior to the date such change is to be- come effective. This cooperative agreement requires the (d) The documents furnishing the informa- recipient to submit a number of reports. tion required in this clause must be dated These reporting requirements are summa- and contain the signature, title, and tele- rized below. In the event of a conflict be- phone number of the Recipient official au- tween this provision and other provisions of thorized to provide it, as well as the Recipi- the cooperative agreement requiring report- ent’s name and contract number. ing, the other provisions take precedence. (e) Failure to properly designate a finan- [The Grant Officer may add/delete report- cial institution or to provide appropriate ing requirements as appropriate.]
Report Frequency Reference
Report of Joint NASA/Recipient As required ...... § 1274.911 Patent Rights (Paragraph (b)(4)). Inventions. Interim Report of Reportable Every 12 months ...... Patent Rights—Retention by the Recipient (Large Business) Items. (Paragraph (e)(3)(i)). Final Report of Reportable 3 months after completion ...... § 1274.912 Patent Rights—Retention by the Recipient (Large Items. Business) (Paragraph (e)(3)(ii)). Disclosure of Subject Inventions Within 2 months after inventor Patent Rights—Retention by the Recipient (Large Business) discloses it to Recipient. (Paragraph (e)(2)) or § 1274.913 Patent Rights—Retention by the Recipient (SmallBusiness) (Paragraph (c)(1)).
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Report Frequency Reference
Election of Title to a Subject In- 1 year after disclosure of the Patent Rights—Retention by the Recipient (Small Business) vention. subject invention if a statu- (Paragraph (c)(2)). tory bar exists, otherwise within 2 years. Listing of Subject Inventions ..... Every 12 months from the Patent Rights—Retention by the Recipient (Small Business) date of the agreement. (Paragraph (f)(5)(i)). Subject Inventions Final Report Prior to close-out of the agree- § 1274.913 Retention by the Recipient (Small Business) ment. (Paragraph (f)(5)(ii). Notification of Decision to Fore- 30 days before expiration of Patent Rights—Retention by the Recipient (Small Business) go Patent Protection. the response period. (Paragraph (f)(3)). Notification of a Subcontract Promptly upon award of a Patent Rights—Retention by the Recipient (Large Business) Award. subcontract. (Paragraph (g)(3)) or § 1274.913 Patent Rights—Retention by the Recipient (Small Business) (Paragraph (g)(3). Utilization of Subject Invention Annually ...... Patent Rights—Retention by the Recipient (Small Business) (Paragraph (h)). Notice of Proposed Transfer of Prior to transferring technology § 1274.915 Restrictions on Sale or Transfer of Technology to Technology. to foreign firm or institution. Foreign Firms or Institutions (Paragraph (b)). Progress Report ...... 60 days prior to the anniver- Publications and Reports: Non-Proprietary Research Results sary date of the agreement (Paragraph (d)(1)). (except final year). Summary of Research ...... 90 days after completion of Publications and Reports: Non-Proprietary Research Results agreement. (Paragraph (d)(2)). NASA Form 1018 Property in Annually by October 31 ...... Equipment and Other Property (Paragraph (g)). the Custody of Contractors. NASA Form 1018 Property in 60 days after expiration date Equipment and Other Property (Paragraph (g)). the Custody of Contractors. of agreement.
[End of provision] 1. Equal Employment Opportunity. All con- tracts shall contain a provision requiring § 1274.934 Safety. compliance with Executive Order 11246, ‘‘Equal Employment Opportunity,’’ as SAFETY amended by Executive Order 11375, ‘‘Amend- ing Executive Order 11246 Relating to Equal October 2000 Employment Opportunity,’’ and as supple- (a) The Recipient shall act responsibly in mented by regulations at 41 CFR Chapter 60, matters of safety and shall take all reason- ‘‘Office of Federal Contract Compliance Pro- able safety measures in performing under grams, Equal Employment Opportunity, De- this grant or cooperative agreement. The Re- partment of Labor.’’ cipient shall comply with all applicable fed- 2. Copeland ‘‘Anti-Kickback’’ Act (18 U.S.C. eral, state, and local laws relating to safety. 874 and 40 U.S.C. 276c). All contracts in excess The Recipient shall maintain a record of, of $50,000 for construction or repair awarded and will notify the NASA Grant Officer of by recipients and subrecipients shall include any accident involving death, disabling in- a provision for compliance with the Copeland jury or substantial loss of property in per- ‘‘Anti-Kickback’’ Act (18 U.S.C. 874), as sup- forming this grant or cooperative agreement. plemented by Department of Labor regula- The Recipient will advise NASA of hazards tions (29 CFR part 3, ‘‘Contractors and Sub- that come to its attention as a result of the contractors on Public Building or Public work performed. Work Financed in Whole or in Part by Loans (b) Where the work under this grant or co- or Grants from the United States’’). The Act operative agreement involves flight hard- provides that each recipient or subrecipient ware, the hazardous aspects, if any, of such shall be prohibited from inducing, by any hardware will be identified, in writing, by means, any person employed in the construc- the recipient. Compliance with this provi- tion, completion, or repair of public work, to sion by subcontractors shall be the responsi- give up any part of the compensation to bility of the Recipient. which he is otherwise entitled. The recipient shall report all suspected or reported viola- [End of provision] tions to NASA. 3. Contract Work Hours and Safety Standards APPENDIX TO PART 1274—LISTING OF Act (40 U.S.C. 327–333). Where applicable, all EXHIBITS contracts awarded by recipients in excess of $2,000 for construction contracts and in ex- EXHIBIT A TO PART 1274—CONTRACT cess of $50,000 for other contracts, other than PROVISIONS contracts for commercial items, that involve All contracts awarded by a recipient, in- the employment of mechanics or laborers cluding small purchases, shall contain the shall include a provision for compliance with following provisions if applicable: Sections 102 and 107 of the Contract Work
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Hours and Safety Standards Act (40 U.S.C. person or organization for influencing or at- 327–333), as supplemented by Department of tempting to influence an officer or employee Labor regulations (29 CFR part 5). Under of any agency, a member of Congress, officer subsection 102 of the Act, each recipient or employee of Congress, or an employee of a shall be required to compute the wages of member of Congress in connection with ob- every mechanic and laborer on the basis of a taining any Federal contract, grant or any standard work week of 40 hours. Work in ex- other award covered by 31 U.S.C. 1352. Each cess of the standard work week is permis- tier shall also disclose any lobbying with sible provided that the worker is com- non-Federal funds that takes place in con- pensated at a rate of not less than 11⁄2 times nection with obtaining any Federal award. the basic rate of pay for all hours worked in Such disclosures are forwarded from tier to excess of 40 hours in the work week. Section tier up to the recipient. 107 of the Act is applicable to construction 7. Debarment and Suspension (Executive Or- work and provides that no laborer or me- ders 12549 and 12689). No contract shall be chanic shall be required to work in sur- made to parties listed on the General Serv- roundings or under working conditions ices Administration’s List of Parties Ex- which are unsanitary, hazardous or dan- cluded from Federal Procurement or Non- gerous. These requirements do not apply to procurement Programs in accordance with the purchases of supplies or materials or ar- Executive Orders 12549 and 12689, ‘‘Debar- ticles ordinarily available on the open mar- ment and Suspension.’’ This list contains the ket, or contracts for transportation or trans- names of parties debarred, suspended, or oth- mission of intelligence. erwise excluded by agencies, and contractors 4. Rights to Inventions Made Under a Con- declared ineligible under statutory or regu- tract or Agreement. Contracts or agreements latory authority other than Executive Order for the performance of experimental, devel- 12549. Contractors with awards that exceed opmental, or research work shall provide for the small purchase threshold shall provide the rights of the Federal Government and the required certification regarding its ex- the recipient in any resulting invention in clusion status and that of its principal em- accordance with 37 CFR part 401, ‘‘Rights to ployees. Inventions Made by Nonprofit Organizations and Small Business Firms Under Govern- EXHIBIT B TO PART 1274—REPORTS ment Grants, Contracts and Cooperative 1. Individual procurement action report Agreements,’’ and any implementing regula- (NASA Form 507). The grant officer is respon- tions issued by the awarding agency. sible for submitting NASA Form 507 for all 5. Clean Air Act (42 U.S.C. 7401 et seq.) and cooperative agreement actions. the Federal Water Pollution Control Act (33 2. Property reporting. As provided in para- U.S.C. 1251 et seq.), as amended. Contracts, graph (g) of § 1274.923, an annual NASA Form other than contracts for commercial items, (NF) 1018, NASA Property in the Custody of of amounts in excess of $100,000 shall contain Contractors, will be submitted by October 31 a provision that requires the recipient to of each year. Negative annual reports are re- agree to comply with all applicable stand- quired. A final report is required within 30 ards, orders or regulations issued pursuant days after expiration of the agreement. to the Clean Air Act (42 U.S.C. 7401 et seq.) 3. Disclosure of lobbying activities (SFLLL). and the Federal Water Pollution Control Act (a) Grant officers shall provide one copy of as amended (33 U.S.C. 1251 et seq.). Violations each SF LLL furnished under 14 CFR 1271.110 shall be reported to NASA and the Regional to the procurement officer for transmittal to Office of the Environmental Protection the Director, Analysis Division (Code HC). Agency (EPA). (b) Suspected violations of the statutory 6. Byrd Anti-Lobbying Amendment (31 prohibitions implemented by 14 CFR part U.S.C.1352). Contractors who apply or bid for 1271 shall be reported to the Director, Con- an award of $100,000 or more shall file the re- tract Management Division (Code HK). quired certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any PARTS 1275–1299 [RESERVED]
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Part Page 1300 Aviation disaster relief—air carrier guarantee loan program ...... 491
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note, bond, debenture, or other debt ob- more borrowers to issue Federal credit ligation issued by a borrower in con- instruments only if the Board deter- nection with financing under the pro- mines, in its discretion and in accord- gram. ance with the minimum requirements (j) Guarantee means the written set forth in this part, that— agreement between the Board and one (1) The borrower is an air carrier for or more lenders, pursuant to which the which credit is not reasonably avail- Federal government guarantees repay- able at the time of the transaction; ment of a specified percentage of the (2) The intended obligation by the principal of and/or interest on the loan. borrower is prudently incurred; and Unless otherwise specified, guarantee includes any other pledge issued under (3) Such agreement is a necessary a Federal credit instrument. part of maintaining a safe, efficient, (k) Lender means any non-Federal and viable commercial aviation system qualified institutional buyer, as de- in the United States. fined in Section 102(a)(3) of the Act, (b) In accordance with section that funds a financial obligation sub- 102(c)(2)(A) of the Act, the Board shall ject to a guarantee issued by the enter into an agreement to issue a Fed- Board. With respect to a guarantee of a eral credit instrument in such form single loan to which more than one and on such terms and conditions and lender is a party, the term lender subject to such covenants, representa- means agent. tions, warranties, and requirements (l) Loan, unless otherwise specified, (including requirements for audits) as includes any financial obligation (i.e., the Board determines are appropriate note, bond, debenture, or other debt ob- for satisfying the requirements of this ligation) issued by a borrower. part and any supplemental require- (m) Loan documents mean the loan ments issued by the Board under sec- agreement and all other instruments, tion 102(c)(2)(B) of the Act. and all documentation between the (c) In accordance with section lender and the borrower evidencing the 102(d)(1) of the Act, in entering into making, disbursing, securing, col- agreements to issue Federal credit in- lecting, or otherwise administering of struments, the Board shall, to the ex- the loan. (References to loan docu- tent feasible and practicable and in ac- ments also include comparable agree- cordance with the requirements in this ments, instruments, and documenta- tion for other financial obligations for part, ensure that the Federal Govern- which a guarantee is requested or ment is compensated for the risk as- issued.) sumed in making guarantees. (n) Program means the air carrier (d) In accordance with Section guarantee loan program established by 102(d)(2) of the Act, the Board is au- section 101(a)(1) and the related provi- thorized to enter into contracts under sions of Title I of the Act. which the Federal Government, contin- (o) Security means all property, real gent on the financial success of the air or personal, required by the provisions carrier, would participate in the gains of the guarantee or by the loan docu- of the air carrier or its security holders ments to secure repayment of any in- through the use of such instruments as debtedness of the borrower under the warrants, stock options, common or loan documents or guarantee. preferred stock, or other appropriate equity instruments, except that the Subpart B—Minimum Require- Board shall not accept an equity inter- ments and Application Proce- est in an air carrier that gives the Fed- dures eral Government voting rights. (e) In accordance with Section 104(a) § 1300.10 General standards for Board of the Act, the Board may only issue a issuance of Federal credit instru- Federal credit instrument to an air ments. carrier after the air carrier enters into (a) In accordance with section a legally binding agreement with the 102(c)(1) of the Act, the Board may Board regarding certain employee com- enter into agreements with one or pensation.
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§ 1300.11 Eligible borrower. quirements to be an eligible lender. An (a) An eligible borrower must be an application for a guarantee of a single air carrier that can demonstrate, to loan, for which there is more than one the satisfaction of the Board, that: lender, must identify one of the insti- (1) It has incurred (or is incurring) tutions to act as agent for all. This losses as a result of the terrorist at- agent is responsible for administering tacks on the United States that oc- the loan and shall have those duties curred on September 11, 2001, which and responsibilities required of an may include losses due to the unavail- agent, as set forth in the guarantee. ability of credit or the decrease in de- (c) Each lender, irrespective of any mand for that air carrier’s services; indemnities or other agreements be- (2) It is not under bankruptcy protec- tween the lenders and the agent, shall tion or receivership when the applica- be bound by all actions, and/or failures tion is submitted or when the Board to act, of the agent. The Board shall be issues the guarantee, unless the guar- entitled to rely upon such actions and/ antee and the underlying financial ob- or failures to act of the agent as bind- ligation is to be part of a bankruptcy ing the lenders. court-certified reorganization plan; (d) Status as an eligible lender under (3) It has agreed to permit such au- this section does not assure that the dits and reviews prior to the issuance Board will issue the guarantee sought, of a guarantee, as the Board may deem or otherwise preclude the Board from appropriate, by an independent auditor declining to issue a guarantee. acceptable to the Board; § 1300.13 Guarantee amount. (4) It has agreed to permit such au- dits and reviews during the period the (a) Under Section 101(a)(1) of the Act, loan is outstanding and three years the Board is authorized to enter into after payment in full of the guaranteed agreements to issue Federal credit in- loan, as the Board may deem appro- struments that, in the aggregate, do priate, by an independent auditor ac- not exceed $10 billion. ceptable to the Board or by the Comp- (b) The loan amount guaranteed to a troller General; single air carrier may not exceed that (5) In conducting audits and reviews amount that, in the Board’s sole dis- pursuant to paragraphs (a) (3) and (4) of cretion, the air carrier (or its suc- this section, it has agreed to provide cessor) needs in order for it to provide access to the officers and employees, commercial air services. books, records, accounts, documents, correspondence, and other information § 1300.14 Guarantee percentage. of the borrower, its subsidiaries, affili- A guarantee issued by the Board ates, financial advisers, consultants, must be less than 100 percent of the and independent certified accountants amount of principal and accrued inter- that the Board or the Comptroller Gen- est of the loan guaranteed. eral consider necessary. (b) Status as an eligible borrower § 1300.15 Loan terms. under this section does not ensure that (a) A loan guaranteed under the pro- the Board will issue the guarantee gram shall be due and payable in full sought or preclude the Board from de- no later than seven years from the date clining to issue a guarantee. on which the first disbursement of the loan is made. § 1300.12 Eligible lender. (b) Loans guaranteed under the pro- (a) A lender eligible to receive a Fed- gram must bear a rate of interest de- eral credit instrument approved by the termined by the Board to be reason- Board must be a non-Federal qualified able. In determining the reasonable- institutional buyer as defined in Sec- ness of an interest rate, the Board shall tion 102(a)(3) of the Act. consider the percentage of the guar- (b) If more than one institution par- antee, any collateral, other loan terms, ticipates as a lender in a single loan for and current average yields on out- which a Federal credit instrument is standing obligations of the United requested, each one of the institutions States with maturity comparable to on the application must meet the re- the term of the loan guaranteed. The
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Board may reject an application to (5) A statement that the borrower is guarantee a loan if it determines the not under bankruptcy protection or re- interest rate on such loan to be unrea- ceivership when the application is sub- sonable. mitted, unless the guarantee and the (c) An eligible lender may assess and underlying financial obligation is to be collect from the borrower such other part of a bankruptcy court-certified re- fees and costs associated with the ap- organization plan; plication and origination of the loan as (6) Consolidated financial statements are reasonable and customary, taking of the borrower for the previous five into consideration the amount and years that have been audited by an complexity of the credit. The Board independent certified public account- may take such other fees and costs ant, including any associated notes, as into consideration when determining well as any interim financial state- whether to offer a guarantee to the ments and associated notes for the cur- lender. rent fiscal year; (7) Copies of the financial evaluations § 1300.16 Application process. and forecasts concerning the air car- rier’s air service operations that were (a) Applications are to be submitted prepared by or for the air carrier with- by the borrower. Borrowers may sub- in the three months prior to September mit applications to the Board any time 11, 2001; after October 12, 2001 through June 28, (8) The borrower’s business plan on 2002. All applications must be received which the loan is based that includes by the Board no later than 5 p.m. EDT, the following: June 28, 2002, in the Board’s offices. (i) A description of how the loan fits Borrowers should submit an original within the borrower’s business plan, application and four copies. Applica- the purposes for which the borrower tions will not be accepted via facsimile will use the loan, and an analysis show- machine transmission or electronic ing that the loan is prudently incurred. mail. No application will be accepted If loan funds are to be used to purchase for review if it is not received by the an existing firm (or the substantial as- Board on or before June 28, 2002. sets of an existing firm), the business (b) Applications shall contain the fol- plan of the combined entity shall con- lowing: tain a discussion of the way in which (1) A completed Form ‘‘Application any required regulatory or judicial ap- for Air Carrier Guaranteed Loan’; provals will be obtained, including (2) All loan documents that will be antitrust approval for any proposed ac- signed by the lender and the borrower, quisition; if the application is approved, includ- (ii) A discussion of a complete cost ing all terms and conditions of, and se- accounting and a range of revenue, op- curity or additional security (if any), erating cost, and credit assumptions; to assure the borrower’s performance (iii) A discussion of the financing under, the loan; plan on which the loan is based, show- (3) A certification by the borrower ing that the operational needs of the that the borrower meets each of the re- borrower will be met during the term quirements of the program as set forth of the plan; in the Act, the regulations in this part, (iv) An analysis demonstrating that, and any supplemental requirements at the time of the application, there is issued by the Board; a reasonable assurance that the bor- (4) A certification by the lender that rower will be able to repay the loan ac- the lender meets each of the require- cording to its terms, and a complete ments of the program as set forth in description of the operational and fi- the Act, the regulations in this part, nancial assumptions on which this and any supplemental requirements demonstration is based; issued by the Board, and that the lend- (v) A discussion of the borrower’s er will provide the loan under the five-year history and five-year projec- terms outlined in the loan documents tion for revenue, cash flow, average re- if the Board approves the requested alized prices, and average realized op- guarantee; erating costs and a demonstration that
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the borrower will be able to continue (c) The collections of information in operations if the requested guarantee this section and elsewhere in this part is approved; and that are subject to the Paperwork Re- (vi) If appropriate, a description of a duction Act (44 U.S.C. 3501 et seq.) have plan to restructure the borrower’s obli- been approved by OMB and assigned gations, contracts, and costs. In pre- control number 0348–0059. Under the paring this description, the borrower Paperwork Reduction Act, an agency shall jointly develop, with its existing may not conduct or sponsor, and a per- secured and unsecured creditors, em- son is not required to respond to, a col- ployees, or vendors, an agreed-upon lection of information unless it dis- plan to restructure the borrower’s obli- plays a currently valid OMB control gations, contracts and costs and incor- number. porate this into the business plan sub- mitted; § 1300.17 Application evaluation. (9) A description of the losses that (a) Eligibility screening. Applica- the borrower incurred (or is incurring) tions will be reviewed to determine as a result of the terrorist attacks on whether the lender and borrower are el- the United States that occurred on igible, the information required under September 11, 2001, including losses due § 1300.16(b) is complete, and the pro- to the unavailability of credit on rea- posed loan complies with applicable sonable terms or a decrease in demand statutes and regulations. The Board for the air carrier’s services; may at any time reject an application (10) An analysis that demonstrates that does not meet these requirements. that the issuance of the guaranteed (b) Evaluation criteria. Applications loan is a necessary part of maintaining that are determined to be eligible pur- a safe, efficient, and viable commercial suant to paragraph (a) of this section shall be subject to a substantive review aviation system in the United States by the Board. In addition to the gen- and that credit is not reasonably avail- eral standards for Board issuance of able at the time of the transaction; Federal credit instruments set forth in (11) A description of all security (if § 1300.10, the Board shall consider the any) for the loan, including, as applica- following evaluation factors: ble, current appraisals of real and per- (1) Reasonable assurance that the sonal property, copies of any appro- borrower will be able to repay the loan priate environmental site assessments, by the date specified in the loan docu- and current personal and corporate fi- ment, which shall be no later than nancial statements of any guarantors seven years from the date on which the for the same period as required for the first disbursement of the loan is made; borrower. Appraisals of real property (2) The adequacy of the proposed pro- shall be prepared by State licensed or visions to protect the Federal Govern- certified appraisers, and be consistent ment, including sufficiency of any se- with the ‘‘Uniform Standards of Profes- curity provided by the borrower and sional Appraisal Practice,’’ promul- the percentage of guarantee requested; gated by the Appraisal Standards (3) The ability of the lender to ad- Board of the Appraisal Foundation. Fi- minister the loan in full compliance nancial statements of guarantors shall with the requisite standard of care. In be prepared by independent certified making this determination, the Board public accountants; will assess: (12) If appropriate, a description of (i) The lender’s level of regulatory the Federal government’s ability to capital, in the case of banking institu- participate, contingent on the finan- tions, or net worth, in the case of other cial success of the borrower, in the institutions; gains of the borrower or its security (ii) Whether the lender possesses the holders through the use of such instru- ability to administer the loan, includ- ments as warrants, stock options, com- ing its experience with loans to air car- mon or preferred stock, or other appro- riers; and priate equity instruments; and (iii) Any other matter the Board (13) Any other information requested deems material to its assessment of the by the Board. lender; and
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(4) The ability of the borrower to tors’ agreement to subordinate their demonstrate, to the Board’s satisfac- debts as a condition of the loan guar- tion, one or more of the following cri- antee; teria. The Board shall give preference (E) Limitation of the borrower’s to applications that satisfy one or issuance of dividends and/or the bor- more of these criteria, giving greater rower’s payments to its parent or sub- preference to those applications that sidiaries or related companies; meet the greatest number of these cri- (F) Limitation of the borrower’s abil- teria, as follows: ity to incur additional debt, and/or the (i) A demonstration that the air car- borrower’s ability to incur capital ex- rier has presented a plan dem- penditures, beyond that set forth in the onstrating that its business plan is fi- business and financial plans that the nancially sound; Borrower submitted with the applica- (ii) A demonstration of greater par- tion; ticipation in the loan by non-Federal (G) A demonstration of reasonable li- entities; quidity; (iii) A demonstration of greater par- (H) A demonstration of favorable ticipation in the loan by private enti- debt ratios; and ties, as opposed to public non-Federal (I) A demonstration that any pro- entities; ceeds raised from private sector financ- (iv) A demonstration that the pro- ing subsequent to disbursement of the posed instruments would ensure that federally guaranteed loan be used to the Federal Government will, contin- repay the federally guaranteed loan. gent on the financial success of the air (c) No guarantee will be made if ei- carrier, participate in the gains of the ther the borrower or lender has an out- air carrier and its security holders; standing delinquent Federal debt, in- (v) A demonstration of concessions cluding tax liabilities, until: by the air carrier’s security holders, (1) The delinquent debt has been paid other creditors, or employees that will in full; improve the financial condition of the (2) A negotiated repayment schedule air carrier in a manner that will enable is established; or it to repay the loan in accordance with (3) Other arrangements, satisfactory its terms and provide commercial air to the agency responsible for collecting services on a financially sound basis the debt are made. after repayment; (d) Decisions by the Board. The (vi) A demonstration that guaranteed Board shall approve or deny applica- loan proceeds will be used for a purpose tions received on or before June 28, other than the payment or refinancing 2002, in a timely manner as such appli- of existing debt; cations are received. The Board may (vii) A demonstration that the pro- limit the amount of a loan guarantee posed instruments contain financial made to initial applicants to ensure structures that minimize the Federal that sufficient funds remain available government’s risk and cost associated for subsequent applicants. The Board with making loan guarantees. Exam- shall notify the borrower in writing of ples include, but are not limited to, re- the approval or denial of an applica- quests for guarantees that contain the tion. Approvals for loan guarantees following: shall be conditioned upon compliance (A) A maturity period that is less with § 1300.18. than the maximum permitted under the rules in this part; § 1300.18 Issuance of the guarantee. (B) Pledges of collateral; (a) The Board’s decisions to approve (C) Agreements by the borrower’s any application for a guarantee under parent or other entities to reimburse § 1300.17 is conditioned upon: the Federal government for any pay- (1) The lender and borrower obtaining ments that the Federal government any required regulatory or judicial ap- may make under the guarantee; provals; (D) A grant to the Federal govern- (2) Evidence showing, to the Board’s ment of favorable priority in the event satisfaction, that the lender and bor- of bankruptcy reflecting other credi- rower are legally authorized to enter
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into the loan under the terms and con- out the prior written approval of the ditions submitted to the Board in the Board. application; (3) The Board’s receipt of the loan § 1300.20 Lender responsibilities. documents and any related instru- The lender shall have such obliga- ments, in form and substance satisfac- tions and duties to the Board as are set tory to the Board, and the guarantee, forth in the guarantee. all properly executed by the lender, borrower, and any other required party § 1300.21 Guarantee. other than the Board; and The Board shall adopt a form of guar- (4) No material adverse change in the antee to be used by the Board under borrower’s ability to repay the loan or the program. Modifications to the pro- any of the representations and warran- visions of the form of guarantee must ties made in the application between be approved and adopted by the Board. the date of the Board’s approval and the date the guarantee is to be issued. § 1300.22 Termination of obligations. (b) The Board may withdraw its ap- The Board shall have such rights to proval of an application and rescind its terminate the guarantee as are set offer of guarantee if the Board deter- forth in the guarantee. mines that the lender or the borrower § 1300.23 Participation in guaranteed cannot, or is unwilling to, provide ade- loans. quate documentation and proof of com- pliance with paragraph (a) of this sec- (a) Subject to paragraph (b) of this tion within the time provided for in the section, a lender may distribute the offer. risk of a portion of a loan guaranteed under the program by sale of participa- (c) Only after receipt of all the docu- tions therein if: mentation required by this section, (1) Neither the loan note nor the will the Board sign and deliver the guarantee is assigned, conveyed, sold, guarantee. or transferred in whole or in part; (d) A borrower receiving a loan guar- (2) The lender remains solely respon- anteed by the Board under this pro- sible for the administration of the gram shall pay an annual fee, in an loan; and amount and payable as determined by (3) The Board’s ability to assert any the Board. At the time that the guar- and all defenses available to it under antee is issued, the Board shall ensure the guarantee and the law is not ad- that this annual fee will escalate for versely affected. each year that the loan is outstanding (b) The following categories of enti- and that such annual escalation re- ties may purchase participations in flects the borrower’s potential ability loans guaranteed under the program: to obtain credit in the private credit (1) Eligible lenders; markets, in addition to any other fac- (2) Private investment funds and in- tors the Board may deem appropriate. surance companies that do not usually invest in commercial loans; § 1300.19 Assignment or transfer of (3) Air Carrier company suppliers or loans. customers, who are interested in par- Neither the loan documents nor the ticipating as a means of commencing guarantee of the Board, or any interest or solidifying the supplier or customer therein, may be modified, assigned, relationship with the borrower; or conveyed, sold or otherwise transferred (4) Any other entity approved by the by the lender, in whole or in part, with- Board on a case-by-case basis.
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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet- ical 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 sepa- rately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected
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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) IV Miscellaneous Agencies (Parts 400—500)
Title 2—[Reserved]
Title 3—The President
I Executive Office of the President (Parts 100—199)
Title 4—Accounts
I General Accounting Office (Parts 1—99)
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) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VII Advisory Commission on Intergovernmental Relations (Parts 1700—1799) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201)
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XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) 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 (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)
Title 6—[Reserved]
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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) 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) XIII Northeast Dairy Compact Commission (Parts 1300—1399) 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) 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, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099)
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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 Cooperative State Research, Education, and Extension Service, Department of 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)
Title 8—Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice (Parts 1—599)
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) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
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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) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) 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—499) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Office of Management and Budget (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)
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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 Export Administration, 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) XI Technology Administration, Department of Commerce (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)
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 United States Customs Service, Department of the Treasury (Parts 1—199)
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II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399)
Title 20—Employees’ Benefits
I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Employment Standards Administration, 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, 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 Regulations (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) 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)
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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) 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—999) 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)
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XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) 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—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) 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 (Part 1200)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1— 899)
Title 27—Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (Parts 1—299)
Title 28—Judicial Administration
I Department of Justice (Parts 0—199) 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)
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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 Pension and Welfare Benefits 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 Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VI Bureau of Mines, Department of the Interior (Parts 600—699) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)
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 International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999)
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) 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 Transportation (Parts 1—199) II Corps of Engineers, Department of the Army (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) 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)
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IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)
Title 35—Panama Canal
I Panama Canal Regulations (Parts 1—299)
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) 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 (Part 1501) 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 Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
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I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099)
Title 40—Protection of Environment
I Environmental Protection Agency (Parts 1—799) 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)
Title 41—Public Contracts and Property Management
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) 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) 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) SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [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 303–70)
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304 Payment from a Non-Federal Source for Travel Expenses (Parts 304–1—304–99)
Title 42—Public Health
I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)
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 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10005)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency (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) 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)
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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 Office of Human Development Services, 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 on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) 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 Transportation (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Transpor- tation (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)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99) 2 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 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899)
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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 Ben- efits 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) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 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) 54 Defense Logistics Agency, Department of Defense (Part 5452) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 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 Research and Special Programs Administration, Department of Transportation (Parts 100—199)
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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 Transportation (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, Department of Transportation (Parts 1000—1399) XI Bureau of Transportation Statistics, Department of Transpor- tation (Parts 1400—1499) XII Transportation Security Administration, Department of Trans- portation (Parts 1500—1599)
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) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)
CFR Index and Finding Aids
Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR
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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Commission on Intergovernmental Relations 5, VII Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 5, LXXIII 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 Cooperative State Research, Education, and Extension 7, XXXIV Service Economic Research Service 7, XXXVII Energy, Office of 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 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 32, VII Federal Acquisition Regulation Supplement 48, 53 Alcohol, Tobacco and Firearms, Bureau of 27, I AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX Architectural and Transportation Barriers Compliance Board 36, XI
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1986 14 CFR—Continued 52 FR Page 14 CFR 51 FR Chapter V—Continued Page 1201.300 (a)(3) and (c)(3) revised...... 31986 Chapter V 1201.402 Revised ...... 31986 1203 Subpart authority citation 1204.509 Added ...... 35538 removed ...... 33241 1206 Authority citation re- 1203.800—1203.802 (Subpart H) Re- vised...... 18905 vised...... 33241 Revised...... 41407 1203.900—1203.904 (Subpart I) Re- 1206.101 (g) through (o) added; in- vised...... 32784 terim...... 18905 1204.500—1204.508 (Subpart 5) Au- 1206.601 (c) revised; interim...... 18906 thority citation revised ...... 26860, 1206.603 (c) revised; interim...... 18906 26861, 27528 1206.700—1206.706 (Subpart 7) Re- 1204.501 Revised ...... 26862 vised; interim ...... 18906 1204.502 Removed...... 24652 1207 Revised ...... 22755 1204.503 Revised ...... 26860 1207.405 (a)(4) correctly revised .....36234 1204.504 Revised ...... 27528 1208 Revised; interim; eff. 1–19– 1204.507 Removed...... 24653 88...... 48017 1208 Added ...... 7010, 7022 1213 Revised ...... 45936 1209.300—1209.305 (Subpart 3) Re- 1215 Appendix A revised ...... 10881 vised...... 28924 1221.100—1221.118 (Subpart 1221.1) 1209.400—1209.405 (Subpart 4) Re- Revised ...... 45811 vised ...... 3945 1245.100—1245.118 (Subpart 1) Re- 1210 Revised ...... 34083 vised...... 43748 1215 Appendix A revised...... 7261 1260.104 (b) revised ...... 12378 1240.100—1240.109 (Subpart 1) Re- vised ...... 3947 1260.105 (a) and (b) revised ...... 12378 1240.200—1240.206 (Subpart 2) Re- 1260.109 Added ...... 12378 vised ...... 3946 1260.406 (a) and undesignated cen- 1251 Revised ...... 26862 ter heading revised ...... 12378 1260 Revised ...... 2626 1260.420 (e) added...... 12378 1262 Revised; interim...... 15311 (e) correctly designated...... 13375 1260.514 (d) amended...... 12379 1260.602 Revised ...... 12379 1987 1260.603 Amended...... 12379 14 CFR 52 FR 1261.400—1261.417 (Subpart 1261.4) Page Revised ...... 19487 Chapter V 1261.500—1261.508 (Subpart 1261.5) 1201.200 Revised ...... 31986 Added ...... 19495
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14 CFR—Continued 52 FR 14 CFR—Continued 53 FR Page Page Chapter V—Continued Chapter V—Continued 1261.600—1261.606 (Subpart 1261.6) 1216.313 (b) revised; flush text fol- Added ...... 19497 lowing (b) designated as (c) and 1264 Added; interim ...... 39498 revised ...... 9762 1216.315 Revised ...... 9762 1988 1216.316 Revised ...... 9762 1216.318 Revised ...... 9763 14 CFR 53 FR Page 1216.319 Revised ...... 9763 Chapter V 1216.320 (a)(3) and (b) revised ...... 9763 1216.321 (a)(3) and (5) and (c) 1201.200 (a)(1) and (3) and (c)(8) re- through (f) revised...... 9763 vised...... 33110 1251 Authority citation re- 1201.400 (c) revised ...... 33110 1203.202 (f) and (g) revised ...... 41318 vised...... 25882 1203.604 (c)(2)(ii) revised...... 41318 1251.501—1251.570 (Subpart 1251.5) 1203.800—1203.802 (Subpart H) Re- Added ...... 25882, 25885 vised...... 45259 1251.570 (c) revised ...... 25882 1206.300 (b)(7) correctly revised...... 5765 1260.107 (f) revised...... 38286 1206.401 (c), (f), (j), (k), and (l) cor- 1260.110 Added ...... 38286 rectly revised...... 2738 1260.202 (b)(1) through (4) and (c) 1206.500 Introductory text cor- revised ...... 38286 rectly revised...... 2738 1260.210 Added ...... 38286 1206.503 (a)(4) correctly revised...... 2738 1260.420 (f) added; interim ...... 29328 1207.403 (b)(2) revised...... 4606 (d) amended; (g) added ...... 38286 1207.405 (a)(4) redesignated as 1261.316 Added ...... 27482 (a)(5); new (a)(4) added ...... 4606 1261.317 Added ...... 27483 (a)(2)(v) and (vi) correctly des- 1265 Added; nomenclature ignated and revised ...... 5765 change...... 19177, 19204 1214.1600—1214.1606 (Subpart 1265.105 (w) added...... 19177 1214.16) Removed ...... 47949 1215 Appendix A revised ...... 26235 1989 1216.100—1216.103 (Subpart 1216.1) 14 CFR 54 FR Authority citation added ...... 9760 Page 1216.103 (a) introductory text, Chapter V (b)(2) and (3), and (c)(2) re- vised ...... 9760 1203.900—1203.904 (Subpart I) Re- 1216.200—1216.205 (Subpart 1216.2) vised ...... 6881 Authority citation added ...... 9760 1204.1000—1204.1003 (Subpart 1216.202 Revised ...... 9760 1204.10) Revised...... 2099 1216.204 (a), (e)(2), and (f) re- 1204.1200—1204.1202 (Subpart vised ...... 9760 1204.12) Removed ...... 14955 1216.205 (b)(9) revised...... 9760 1206.101 (p) and (q) added ...... 13518 1216.300—1216.321 (Subpart 1216.3) 1206.401 (j) revised...... 49750 Authority citation added ...... 9760 1206.500 Heading and introduc- 1216.301 (b) revised...... 9760 tory text revised ...... 49750 1216.302 (a) introductory text re- 1206.502 (a)(3) revised ...... 49750 vised; (a)(4) and (f) added...... 9761 1206.503 (a)(4) revised ...... 49750 1216.303 (a) introductory text and 1206.600 Revised ...... 49750 (c) revised ...... 9761 1206.601 (a) revised ...... 49750 1216.304 Introductory text, (a)(1), 1206.602 Revised ...... 49750 and (b)(1) revised ...... 9761 1206.603 (a) and (b) revised ...... 49750 1216.305 (d)(1), (4), (5), and (6) re- 1206.604 Revised ...... 49750 vised ...... 9761 1206.610 Added ...... 13518 1216.306 (a), (b), and (c) revised ...... 9761 (b) introductory text heading 1216.308 (a) and (b) revised...... 9761 amended ...... 49750 1216.309 Revised ...... 9762 1207 Authority citation re- 1216.310 (a) revised...... 9762 vised ...... 4002 1216.311 Revised ...... 9762 (Subpart F) heading added ...... 4003
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14 CFR—Continued 54 FR 14 CFR—Continued 54 FR Page Page Chapter V—Continued Chapter V—Continued 1207.700—1207.704 (Subpart G) 1264.136 (c) revised ...... 600 Added ...... 4003 1264.137 (f) revised; (g) added...... 600 1207.800—1207.801 (Subpart H) 1264.138 (b)(1), (c), and (l) re- Added ...... 4003 vised...... 600 1208 Regulations at 52 FR 48017 1265 Heading and authority cita- confirmed; see regulation codi- tion revised ...... 4954 fied at 49 CFR 24 ...... 8912 Technical correction...... 6363 1214.300—1214.306 (Subpart 1214.3) 1265.305 (c)(3) and (4) amended; Revised ...... 48587 (c)(5) added; interim...... 4950, 4954 1214.1000—1214.1107 (Subpart 1265.320 (a) revised; interim.....4950, 4954 1214.11) Revised ...... 37940 1265.600—1265.630 (Subpart F) 1215 Appendix A revised ...... 10627 Added; interim ...... 4950, 4954 1221.110 (d) revised ...... 32963 1265 Appendix C added; in- 1221.113 (b)(1) revised ...... 32963 terim...... 4950, 4954 Correctly amended ...... 53799 1232 Added; interim ...... 35870 1990 1259 Added ...... 19880 14 CFR 55 FR 1260.103 (a) amended...... 43050 Page 1260.105 (d) amended...... 43050 Chapter V 1260.106 (a)(9) added; (b), and (c) introductory text amended...... 43050 1201 Revised ...... 37222 1207.80 Correctly removed ...... 9250 1260.109 (d) added ...... 43050 1214.500—1214.505 (Subpart 1214.5) 1260.201 (a) introductory text and Revised ...... 53289 (1) amended ...... 43050 1214.1000—1214.1003 (Subpart 1260.203 (a)(1), (3) and (b) intro- 1214.10) Removed ...... 30689 ductory text, (b)(1)(i), (v) and 1215 Appendix A revised ...... 20593 (vi) amended; (vii) added ...... 43050 1221.111 (a)(5) revised...... 1404 1260.204 (a) and (b) amended...... 43051 1240 Revised ...... 614 1260.209 Revised ...... 43051 1245.208 Revised ...... 51276 1260.210 Revised ...... 43051 1251.302 (c) revised; eff. 1–18–91...... 52138, 1260.302 Amended...... 43051 52140 1260.305 (b)(2) amended...... 43051 1263 Added ...... 28370 1260.306 (a)(2) revised ...... 43051 1265.600—1265.635 (Subpart F) 1260.307 (b) revised ...... 43051 Regulation at 54 FR 4950, 4954 1260.310 Added ...... 43052 confirmed; revised ...... 21688, 21692 1260.420 (f) revised ...... 9427 1265 Appendix C regulation at 54 (b) amended; (h) added ...... 43052 FR 4950, 4954 confirmed; re- 1260 Exhibit G revised ...... 43052 vised...... 21690, 21692 1261.100—1261.110 (Subpart 1261.1) 1271 Added; interim ...... 6737, 6748 Authority citation revised...... 35456 1261.102 Revised ...... 35456 1264.101 (d), (m)(3), (o) and (q) re- 1991 vised...... 599 14 CFR 56 FR 1264.102 (a)(3) and (b)(3) revised...... 599 Page 1264.103 (c) revised ...... 599 Chapter V 1264.106 (b)(4) revised ...... 599 1204.501 (a) revised ...... 57592 1264.107 (b)(1), (2), and (3) re- 1204.503 (b), (f)(3)(i)(D), (ii), (g) vised...... 600 and (i) revised ...... 57592 1264.108 (c) added...... 600 1204.504 (a), (e)(3)(ii)(B), (iii), (f) 1264.114 Revised ...... 600 and (h) revised ...... 57592 1264.115 Heading revised...... 600 1204.1400—1204.1407 (Subpart 14) 1264.117 (c) revised ...... 600 Revised ...... 35812 1264.118 (c)(3) and (5) revised ...... 600 1205 Removed ...... 14191 1264.125 (b) revised ...... 600 1209.100—1209.104 (Subpart 1) Re- 1264.126 (c) revised ...... 600 vised ...... 8910 1264.132 (f)(2) revised ...... 600 1211 Removed ...... 19259
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14 CFR—Continued 56 FR 14 CFR—Continued 56 FR Page Page Chapter V—Continued Chapter V—Continued 1213.102 (a) introductory text re- 1216.303 (c) revised ...... 50507 vised...... 66787 1216.309 (a) revised ...... 50507 1213.103 (a) and (b) revised ...... 66787 1217 Redesignated from 1213.104 (a), (b)(1), (2) and (3) re- 1214.1500—1214.1506 (Subpart vised...... 66787 1214.15) and republished ...... 47148 1213.105 (d) revised ...... 66788 1230 Added ...... 28012, 28019 1214 Heading revised; interim ...... 47146 1230.101 (b)(5) corrected...... 29756 1214.600—1214.610 (Subpart 1214.6) 1230.103 (f) corrected ...... 29756 Revised ...... 31074 1245.502 Heading and introduc- 1214.700—1214.704 (Subpart 1214.7) tory text revised ...... 19797 Heading revised ...... 27899 1245.503 (a) revised ...... 19797 1214.700 Revised ...... 27899 1266 Added ...... 48430 1214.701 (a), (c) and (f) revised ...... 27899 1214.702 Heading, (a), (c) and (d) 1992 revised ...... 27900 14 CFR 57 FR 1214.703 (a), (c) and (d) revised...... 27900 Page 1214.704 (a) revised ...... 27900 Chapter V 1214.900 Revised; interim ...... 47146 1214.901 Revised; interim ...... 47146 1203b Added...... 4926 1212 Revised ...... 4928 1214.904 (b)(2) and (3) revised; in- 1214 Authority citation re- terim...... 47146 vised...... 61794 1214.905 (b) introductory text and 1214.100—1214.119 (Subpart 1214.1) (f) revised; interim...... 47146 Revised; interim ...... 4545 1214.906 (a) and (e) revised; (f) Regulation at 57 FR 4545 con- added; interim ...... 47146 firmed...... 41854 1214.907 Revised; interim ...... 47147 1214.900 Regulation at 56 FR 47146 1214.909 Revised; interim ...... 47147 confirmed...... 41077 1214.910 Heading, (a), (b) and (c) 1214.901 Regulation at 56 FR 47146 revised; interim...... 47147 confirmed...... 41077 1214.911 (l) and (m) revised; in- 1214.904 Regulation at 56 FR 47146 terim...... 47147 confirmed...... 41077 1214.912 Revised; interim ...... 47147 1214.905 Regulation at 56 FR 47146 1214.1500—1214.1506 (Subpart confirmed...... 41077 1214.15) Redesignated as Part 1214.906 Regulation at 56 FR 47146 1217 and republished...... 47148 confirmed...... 41077 1214.1700 Revised ...... 47148 1214.907 Regulation at 56 FR 47147 1214.1703 Revised ...... 47148 confirmed...... 41077 1214.1704 (a) and (d) revised...... 47148 1214.909 Regulation at 56 FR 47147 1215.100 Revised ...... 28048 confirmed...... 41077 1215.101 Revised ...... 28048 1214.910 Regulation at 56 FR 47147 1215.104 Revised ...... 28048 confirmed...... 41077 1215.105 (b) and (d) revised ...... 28049 1214.911 Regulation at 56 FR 47147 1215.107 Revised ...... 28049 confirmed...... 41077 1215.108 (a) revised ...... 28049 1214.912 Regulation at 56 FR 47147 1215.109 (b)(2)(i) and (6) introduc- confirmed...... 41077 tory text revised ...... 28049 1214.1000—1214.1004 (Subpart 1215.111 Revised ...... 28049 1214.10) Revised ...... 61794 1215.113 (a) and (c) revised ...... 28049 1215 Appendix A revised ...... 20747 1215.114 (b) revised ...... 28049 1215 Appendixes A and C re- vised...... 28049 1993 1216.202 (b) revised ...... 50506 14 CFR 58 FR 1216.204 (a), (e)(1), (2), and (f) re- Page vised...... 50506 Chapter V 1216.205 (b)(1), (2), (6), and (9) re- 1203b.107 (a)(3) and (c)(1) re- vised...... 50506 vised ...... 5263
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14 CFR—Continued 58 FR 1995 Page Chapter V—Continued 14 CFR 60 FR Page 1203b.108 (d)(2) revised ...... 5263 Chapter V 1204.400—1204.403 (Subpart 4) Re- vised...... 43554 1204.1401 (a)(3) and (4) added ...... 37567 1204.1403 (c) and (d) revised; (e) 1215 Appendix A revised ...... 50516 and (f) added ...... 37568 1221.100—1221.116 (Subpart 1221.1) 1204.1404 (a)(3) added ...... 37568 Revised ...... 58944 1204.1405 (c) added ...... 37568 1260 Revised ...... 53640 1215 Appendix A revised ...... 25843 1241 Removed ...... 11022 1994 1245.200—1245.214 (Subpart 2) Re- moved ...... 21042 14 CFR 59 FR 1260.102 Regulation at 59 FR 36355 Page confirmed...... 16045 Chapter V 1260.201 Regulation at 59 FR 36355 1207 Authority citation re- confirmed...... 16045 vised...... 49338 1260.302 Regulation at 59 FR 36355 1207.100 Removed...... 49338 confirmed...... 16045 1207.101 Revised ...... 49338 1260.303 Regulation at 59 FR 36355 1207.102 Removed; new 1207.102 re- confirmed...... 16045 designated from 1207.403...... 49338 1260.422 Regulation at 59 FR 36355 1207.103 Removed...... 49338 confirmed...... 16045 1207.104 Removed...... 49338 1262 Authority citation re- vised...... 12668 1207.200—1207.203 (Subpart B) Re- 1262.101 (b)(1) revised ...... 12668 moved; new 1207.201—1207.202 1262.103 Revised ...... 12668 (Subpart B) redesignated from 1262.104 (b)(4) amended...... 12668 1207.800—1207.801...... 49338 1262.307 (a) introductory text re- 1207.202 Introductory text and vised...... 12669 (a)(1) amended ...... 49338 1262.309 Amended...... 12669 1207.300—1207.306 (Subpart C) Re- 1265.100 Revised ...... 33040, 33044 moved ...... 49338 1265.105 Amended...... 33041, 33044 1207.400—1207.405 (Subpart D) Re- 1265.110 (c) revised ...... 33041, 33044 moved ...... 49338 1265.200 Revised ...... 33041, 33044 1207.403 Redesignated as 1265.215 Revised ...... 33041, 33044 1207.102 ...... 49338 1265.220 Revised ...... 33041, 33044 1207.700—1207.704 (Subpart G) Re- 1265.225 Revised ...... 33041, 33044 moved ...... 49338 1265 Appendixes A and B re- 1207.800—1207.801 (Subpart H) Re- vised...... 33042, 33044 designated as 1207.201—1207.202 1273 Added ...... 33694 (Subpart B)...... 49338 1209.100—1209.104 (Subpart 1) Re- 1996 moved ...... 18730 14 CFR 61 FR 1209.402 (c)(1) revised ...... 35623 Page 1209.403 Revised ...... 35623 Chapter V 1215 Appendix A revised ...... 54385 1215 Appendix A revised ...... 46713 1260.102 Revised; interim ...... 36355 1260 Revised; interim...... 38059 1260.201 Amended; interim ...... 36355 1274 Added ...... 13398 1260.302 (d) introductory text re- vised; interim ...... 36355 1997 1260.303 (i) added; interim ...... 36355 14 CFR 62 FR 1260.408 Amended; interim ...... 38901 Page 1260.422 (i) added; interim ...... 36355 Chapter V 1260.604 Revised; interim ...... 38901 1203 Authority citation revised ...... 54380
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14 CFR—Continued 62 FR 2000 Page Chapter V—Continued 14 CFR 65 FR 1203.800—1203.802 (Subpart H) Re- Page vised...... 54380 Chapter V 1217 Revised ...... 6467 1204 Revised ...... 47663 1260.2 Amended ...... 63452 1204.1000—1204.1006 (Subpart 10) 1260.11 (d) and (e)(1) revised; (e)(3) Revised; interim ...... 2866 added...... 63452 1206.610 (e)(4) removed ...... 19647 1260.13 Revised ...... 63452 1214 Heading revised; interim ...... 80303 1260.32 Amended...... 63453 1214.400—1214.404 (Subpart 1214.4) 1260.126 (a), (b) and (c) revised; in- Added; interim ...... 80303 terim...... 45939, 45940 1253 Added ...... 52865, 52876 1273.26 (a), (b) introductory text 1253.105 Amended...... 52876 and (1) revised; interim ....45939, 45940 1253.605 Added ...... 52877 1260 Authority citation re- vised...... 14409 1998 Revised...... 62900 14 CFR 63 FR 1260.136 (c) revised; (d) and (e) re- Page designated as (e) and (f); new (d) Chapter V added; new (d)(1) amended; in- 1274.105 (b)(8) added ...... 12993 terim...... 14407, 14409 1274.202 (c)(6) amended; (f) 1274 Revised ...... 62934 added...... 12993 1274.204 (b)(1) revised; (b)(3) and 2001 (d)(2) amended ...... 12993 14 CFR 66 FR 1274.301 Amended ...... 12993 Page 1274.901 Amended ...... 12993 Chapter V 1274.933 Added ...... 12993 1207 Authority citation re- vised...... 59137 1999 1207.102 Revised ...... 59137 14 CFR 64 FR 1207.103 Added ...... 59138 Page 1214.900—1214.912 (Subpart 1214.9) Chapter V Added ...... 37411 1203 Authority citation re- 1260.10 (c)(1) and (4) revised ...... 54121 vised...... 72535 1260.11 (b) amended ...... 54121 1203.100 (a) revised ...... 72535 1260.22 Introductory text amend- 1203.202 (g) revised ...... 72535 ed ...... 54121 1203.900 Revised ...... 72535 1260.26 Amended ...... 54121 1203.902 Introductory text and (a) 1260.1—1260.77 (Subpart A) Ap- revised ...... 72535 pendix amended...... 54121 1206 Revised ...... 39404 1260.134 (a) amended...... 54125 1214.900—1214.912 (Subpart 1214.9) 1260.152 (b) removed; (c) redesig- Removed; interim...... 19886 nated as new (b)...... 54125 1214.1000—1214.1004 (Subpart Chapter VI 1214.10) Removed; ...... 19887 Chapter VI Established ...... 52272 Æ
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