Title 14 Aeronautics and Space Part 1200 to End

Revised as of January 1, 2020

Containing a codification of documents of general applicability and future effect

As of January 1, 2020

Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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

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

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

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Page Explanation ...... v

Title 14:

Chapter V—National Aeronautics and Space Administration ...... 3

Chapter VI—Air Transportation System Stabilization ...... 357

Finding Aids:

Table of CFR Titles and Chapters ...... 373

Alphabetical List of Agencies Appearing in the CFR ...... 393

List of CFR Sections Affected ...... 403

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To cite the regulations in this volume use title, part and section number. 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 agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, January 1, 2020), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cutoff date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\250050.XXX 250050 Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. PAST PROVISIONS OF THE CODE Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949- 1963, 1964-1972, 1973-1985, and 1986-2000. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not dropped in error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume.

VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\250050.XXX 250050 The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Publishing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Publishing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.govinfo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866- 512-1800 (toll-free). E-mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) website for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s website at www.archives.gov/federal-register. The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

OLIVER A. POTTS, Director, Office of the Federal Register January 1, 2020

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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, 60–109, 110–199, 200– 1199, and part 1200–End. The first three volumes containing parts 1–199 are comprised 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—Air Transportation System Stabilization. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2020.

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

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(This book contains part 1200 to end)

Part

CHAPTER V—National Aeronautics and Space Administra- tion ...... 1201

CHAPTER VI—Air Transportation System Stabilization ...... 1300

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Part Page 1200 [Reserved] 1201 Statement of organization and general information 5 1203 Information Security Program ...... 6 1203a NASA security areas ...... 21 1203b Security programs; arrest authority and use of force by NASA security force personnel ...... 23 1204 Administrative authority and policy ...... 26 1205 [Reserved] 1206 Procedures for disclosure of records under the Freedom of Information Act (FOIA) ...... 44 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 1210–1211 [Reserved] 1212 Privacy Act—NASA regulations ...... 71 1213 Release of information to news and information media ...... 84 1214 Space flight...... 89 1215 Tracking and Data Relay Satellite System (TDRSS) ...... 98 1216 Environmental quality...... 103 1217 Duty-free entry of space articles ...... 111 1221 The NASA Seal and other devices, and the Con- gressional Space Medal of Honor ...... 114 1230 Protection of human subjects ...... 124 1232 Care and use of animals in the conduct of NASA activities ...... 142 1240 Inventions and contributions ...... 142 1241 [Reserved] 1245 Patents and other intellectual property rights ...... 147 1250 Nondiscrimination in federally-assisted programs of NASA—effectuation of Title VI of the Civil Rights Act of 1964 ...... 160 3

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Part Page 1251 Nondiscrimination on basis of disability ...... 171 1252 Nondiscrimination on the basis of age in programs or activities receiving Federal financial assistance ...... 190 1253 Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance ...... 197 1259 National Space Grant College and Fellowship Pro- gram ...... 213 1260 [Reserved] 1261 Processing of monetary claims (general) ...... 220 1262 Equal Access to Justice Act in agency proceedings 252 1263 Demand for information or testimony served on agency employees; procedures ...... 259 1264 Implementation of the Program Fraud Civil Pen- alties Act of 1986 ...... 261 1266 Cross-waiver of liability ...... 278 1271 New restrictions on lobbying ...... 282 1273 [Reserved] 1274 Cooperative agreements with commercial firms ..... 294 1275 Research misconduct...... 349 1276–1299 [Reserved]

VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00014 Fmt 8008 Sfmt 8008 Y:\SGML\250050.XXX 250050 PART 1200 [RESERVED] § 1201.102 Functions. In order to carry out the purpose of PART 1201—STATEMENT OF ORGA- the Act, NASA is authorized to con- NIZATION AND GENERAL INFOR- duct research for the solution of prob- MATION lems of flight within and outside the Earth’s atmosphere; to develop, con- Subpart 1—Introduction struct, test, and operate aeronautical and space vehicles for research pur- Sec. poses; to operate a space transpor- 1201.100 Creation and authority. tation system including the space shut- 1201.101 Purpose. tle, upper stages, space program, space 1201.102 Functions. station, and related equipment; and to 1201.103 Administration. perform such other activities as may be required for the exploration of Subpart 2—Organization space. The term aeronautical and space vehicles means aircraft, missiles, sat- 1201.200 General. ellites, and other space vehicles, to- Subpart 3—Boards and Committees gether with related equipment, devices, components, and parts. It conducts ac- 1201.300 Boards and committees. tivities required for the exploration of space with manned and unmanned ve- Subpart 4 [Reserved] hicles and arranges for the most effective utilization of the scientific and en- 1201.400 NASA procurement program. gineering resources of the United 1201.401 Special document depositories. States with other nations engaged in 1201.402 NASA Industrial Applications Cen- ters. aeronautical and space activities for peaceful purposes. AUTHORITY: 51 U.S.C. 20112(h).

SOURCE: 55 FR 37222, Sept. 10, 1990, unless § 1201.103 Administration. otherwise noted. (a) NASA is headed by an Adminis- trator, who is appointed from civilian Subpart 1—Introduction life by the President by and with the advice and consent of the Senate. The § 1201.100 Creation and authority. Administrator is responsible, under the supervision and direction of the Presi- The National Aeronautics and Space dent, for exercising all powers and dis- Administration was established by the charging all duties of NASA. National Aeronautics and Space Act (51 (b) The Deputy Administrator of U.S.C. 20111), as amended (hereafter NASA is also appointed by the Presi- called the ‘‘Act’’). dent from civilian life by and with the [55 FR 37222, Sept. 10, 1990, as amended at 79 advice and consent of the Senate. The FR 18444, Apr. 2, 2014] Deputy Administrator acts with or for the Administrator within the full scope § 1201.101 Purpose. of the Administrator’s responsibilities. It is the purpose of the National Aer- In the Administrator’s absence, the onautics and Space Administration to Deputy Administrator serves as Acting carry out aeronautical and space ac- Administrator. tivities of the United States. Such activities shall be the responsibility of, Subpart 2—Organization and shall be directed by, the National Aeronautics and Space Administration, § 1201.200 General. except that activities peculiar to or NASA’s basic organization consists primarily associated with the develop- of the Headquarters, nine field Centers, ment of weapons systems, military op- the Jet Propulsion Laboratory (a Fed- erations, or the defense of the United erally Funded Research and Develop- States shall be the responsibility of, ment Center), and several component and shall be directed by, the Depart- installations which report to Center ment of Defense. Directors. Responsibility for overall

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planning, coordination, and control of 1203.203 Degree of protection. NASA programs is vested in NASA Headquarters located in Washington, Subpart C—Classification Principles and DC. For additional information, visit Considerations http://www.nasa.gov/about/ 1203.300 General. orglindex.html. 1203.301 Identification of information requiring protection. [79 FR 18444, Apr. 2, 2014] 1203.302 Compilation. 1203.303 Distribution controls. Subpart 3—Boards and 1203.304 Internal effect. Committees 1203.305 Restricted data. § 1201.300 Boards and committees. Subpart D—Guides for Original Classification (a) NASA’s Contract Adjustment Board (CAB) and Inventions and Con- 1203.400 Specific classifying guidance. tributions Board (ICB) were established 1203.401 Effect of open publication. as part of the permanent organization 1203.402 Classifying material other than documentation. structure of NASA. Charters for both 1203.403 [Reserved] Boards are set forth in part 1209 of this 1203.404 Handling of unprocessed data. chapter. Procedures for the CAB are 1203.405 Proprietary information. set out in 48 CFR part 1850, and proce- 1203.406 Additional classification factors. dures for the ICB are set out in 14 CFR 1203.407 Duration of classification. parts 1240 and 1245. 1203.408 Assistance by Information Security (b) The Armed Services Board of Con- Specialist in the Center Protective Serv- ices Office. tract Appeals (ASBCA) is a neutral, 1203.410 Limitations. independent forum whose primary 1203.411 Restrictions. function is to hear and decide post- 1203.412 Classification guides. award contract disputes between government contractors and those entities Subpart E—Derivative Classification with whom the ASBCA has entered 1203.500 Use of derivative classification. into agreement to provide services 1203.501 Applying derivative classification (NASA is one of those entities). The markings. ASBCA functions in accordance with the Contract Disputes Act (41 U.S.C. Subpart F—Declassification and 7101–7109), its Charter, or other remedy- Downgrading granting provisions. Information about 1203.600 Policy. the ASBCA can be obtained by mail at 1203.601 Responsibilities. ASBCA, Skyline 6, Suite 700, 5109 Lees- 1203.602 Authorization. burg Pike, Falls Church, Virginia 1203.603 Systematic review for declassifica- 22041–3208, by phone at 703–681–8500, or tion. from the Web at www.asbca.mil. 1203.604 Mandatory review for declassification. [79 FR 18444, Apr. 2, 2014] Subpart G [Reserved] Subpart 4 [Reserved] Subpart H—Delegation of Authority To Make Determinations in Original Clas- PART 1203—INFORMATION sification Matters SECURITY PROGRAM 1203.800 Establishment. Subpart A—Scope 1203.801 Responsibilites 1203.802 Membership. Sec. 1203.803 Ad hoc committees. 1203.100 Legal basis. 1203.804 Meetings. 1203.101 Other applicable NASA regulations. Subpart I—NASA Information Security Subpart B—NASA Information Security Program Committee Program 1203.900 Establishment. 1203.200 Background and discussion. 1203.901 Responsibilities. 1203.201 Information security objectives. 1203.902 Membership. 1203.202 Responsibilities. 1203.903 Ad hoc committees.

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1203.904 Meetings. Information obtained or developed by the Administrator in the performance of his Subpart J—Special Access Programs (SAP) functions under this Act shall be made avail- and Sensitive Compartmented Infor- able for public inspection, except (i) informa- mation (SCI) Programs tion authorized or required by Federal statute to be withheld, and (ii) information clas- 1203.1000 General. sified to protect the national security: Pro- 1203.1001 Membership. vided, That nothing in this Act shall author- 1203.1002 Ad hoc committees. ize the withholding of information by the 1203.1003 Meetings. Administrator from the duly authorized committees of the Congress. AUTHORITY: E.O. 13526, E.O. 12968, E.O. 13549, E.O. 12829, 32 CFR part 2001, and 51 [44 FR 34913, June 18, 1979, as amended at 48 U.S.C., 20132, 20133. FR 5889, Feb. 9, 1983; 64 FR 72535, Dec. 28, 1999; 78 FR 5117, Jan. 24, 2013] SOURCE: 44 FR 34913, June 18, 1979, unless otherwise noted. § 1203.101 Other applicable NASA regulations. Subpart A—Scope (a) Subpart H of this part, ‘‘Delega- tion of Authority to Make Determina- § 1203.100 Legal basis. tions in Original Security Classifica- (a) Executive Order 13526 (hereinafter tion Matters.’’ referred to as ‘‘the Order’’). The respon- (b) Subpart I of this part, ‘‘NASA In- sibilities and authority of the Adminis- formation Security Program Com- trator of NASA with respect to the mittee.’’ original classification of official infor- (c) NASA Procedural Requirements mation or material requiring protec- (NPR) 1600.2, NASA Classified National tion against unauthorized disclosure in Security Information (CNSI). the interest of national defense or foreign relations of the United States [44 FR 34913, June 18, 1979, as amended at 78 FR 5117, Jan. 24, 2013] (hereinafter collectively termed ‘‘national security’’), and the standards for such classification, are established by Subpart B—NASA Information the ‘‘the Order’’ and the Information Security Program Security Oversight Office Directive No. § 1203.200 Background and discussion. 1, as amended (32 CFR part 2001, ‘‘Clas- sified National Security Information’’); (a) In establishing a civilian space (b) E.O. 10865. Executive Order 10865 program, the Congress required NASA (24 FR 1583) requires the Administrator to ‘‘provide for the widest practicable to prescribe by regulation such specific and appropriate dissemination of infor- requirements, restrictions and other mation concerning its activities and safeguards as the Administrator may the results thereof,’’ and for the with- consider necessary to protect: holding from public inspection of that (1) Releases of classified information information that is classified to pro- to or within United States industry tect the national security. that relate to contracts with NASA; (b) The Order was promulgated in and recognition of the essential require- (2) Other releases of classified infor- ment for an informed public con- mation to industry that NASA has re- cerning the activities of its Govern- sponsibility for safeguarding. ment, as well as the need to protect (c) The National Aeronautics and Space certain national security information Act. (1) The National Aeronautics and from unauthorized disclosure. It dele- Space Act (51 U.S.C. 20113) (Hereafter gates to NASA certain responsibility referred to as, ‘‘The Space Act’’), for matters pertaining to national se- states: curity and confers on the Adminis- trator of NASA, or such responsible of- The Administrator shall establish such se- ficers or employees as the Adminis- curity requirements, restrictions, and safe- trator may designate, the authority for guards as he deems necessary in the interest original classification of official infor- of the national security * * * mation or material which requires pro- (2) Section 303 of the Space Act tection in the interest of national secu- states: rity. It also provides for:

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(1) Basic classification, downgrading § 1203.202 Responsibilities. and declassification guidelines; (a) The Chairperson, NASA Informa- (2) The issuance of directives pre- tion Security Program Committee scribing the procedures to be followed (NISPC) (Subpart I of this part), who is in safeguarding classified information the Assistant Administrator for Pro- or material; tective Services, or designee, is respon- (3) A monitoring system to ensure sible for: the effectiveness of the Order; (1) Directing the NASA Information (4) Appropriate administrative sanc- Security Program (NISP) in accord- tions against officers and employees of ance with NASA policies and objectives the United States Government who are and applicable laws and regulations. found to be in violation of the Order or (2) Ensuring effective compliance implementing directive; and with and implementation of ‘‘the (5) Classification limitations and re- Order’’ and the Information Security strictions as discussed in §§ 1203.410 and Oversight Office Directive No. 1 relat- 1203.411. ing to security classification matters. (c) The Order requires the timely (3) Reviewing, in consultation with identification and protection of that the NASA Information Security Pro- NASA information the disclosure of gram Committee NISPC, questions, which would be contrary to the best in- suggestions, appeals and compliance terest of national security. Accord- concerning the NISP and making de- ingly, the determination in each case terminations concerning them. must be based on a judgment as to (4) Coordinating NASA security clas- whether disclosure of information sification matters with NASA Centers could reasonably be expected to result and component facilities and other in damage to the national security. Government agencies. (5) Ensuring Security Classification [44 FR 34913, June 18, 1979, as amended at 48 Guides for NASA are developed for FR 5889, Feb. 9, 1983; 78 FR 5117, Jan. 24, 2013] NASA programs and projects. (6) Developing, maintaining and rec- § 1203.201 Information security objec- ommending to the Administrator tives. guidelines for the systematic review The objectives of the NASA Informa- covering all classified information tion Security Program are to: under NASA’s jurisdiction. (a) Ensure that information is classi- (7) Reviewing and coordinating with fied only when a sound basis exists for appropriate offices all appeals of deni- such classification and only for such als of requests for records under sec- period as is necessary. tions 552 and 552a of Title 5, United (b) Prevent both the unwarranted States Code (Freedom of Information classification and the overclassifica- and Privacy Acts) when the denials are tion of NASA information. based on the records’ continued classi- (c) Ensure the greatest practicable fication. uniformity within NASA in the classi- (8) Recommending to the Adminis- fication of information. trator appropriate administrative action to correct abuse or violations of (d) Ensure effective coordination and any provision of the NISP, including reasonable uniformity with other Gov- notifications by warning letter, formal ernment departments and agencies, reprimand and to the extent permitted particularly in areas where there is an by law, suspension without pay and re- exchange or sharing of information, moval. techniques, hardware, software, or (b) All NASA employees are respon- other technologies. sible for bringing to the attention of (e) Provide a timely and effective the Chairperson of the NISPC any in- means for downgrading or declassifying formation security problems in need of information when the circumstances resolution, any areas of interest where- necessitating the original classifica- in information security guidance is tion change or no longer exist. lacking, and any other matters likely [44 FR 34913, June 18, 1979, as amended at 78 to impede achievement of the objec- FR 5117, Jan. 24, 2013] tives prescribed in this section.

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(c) Each NASA official to whom the marking) and for ensuring that such authority for original classification is procedures are systematically redelegated shall be accountable for the viewed; and those which are duplica- propriety of each classification (see tive or unnecessary are eliminated. subpart H) and is responsible for: (1) Ensuring that classification deter- [44 FR 34913, June 18, 1979, as amended at 45 minations are consistent with the pol- FR 3888, Jan. 21, 1980; 48 FR 5890, Feb. 9, 1983; icy and objectives prescribed above, 53 FR 41318, Oct. 21, 1988; 64 FR 72535, Dec. 28, 1999; 78 FR 5117, Jan. 24, 2013] and other applicable guidelines. (2) Bringing to the attention of the § 1203.203 Degree of protection. Chairperson, NISPC, for resolution, any disagreement with classification (a) General. Upon determination that determinations made by other NASA information or material must be classi- officials. fied, the degree of protection commen- (3) Ensuring that information and surate with the sensitivity of the infor- material which no longer requires its mation must be determined. If there is present level of protection is promptly reasonable doubt about the need to downgraded or declassified in accord- classify information, it shall be safe- ance with applicable guidelines within guarded as if it were classified pending a reasonable period. a determination by an original classi- (d) Other supervisors of NASA offices fication authority, who shall make this are responsible for: determination within 30 days. If there (1) Ensuring that classified informa- is reasonable doubt about the appro- tion or material prepared within their priate level of classification, it shall be respective offices is appropriately safeguarded at the higher level of clas- marked. sification pending a determination by (2) Ensuring that material proposed an original classification authority, for public release is reviewed to redact who shall make this determination classified information contained there- within 30 days. in. (b) Authorized categories of classifica- (e) Chiefs of Protective Services at NASA Centers are responsible for: tion. The three categories of classifica- (1) Developing proposed Security tion, as authorized and defined in ‘‘the Classification Guides and submitting Order,’’ are set out below. No other re- the guide to the Office of Protective strictive markings are authorized to be Services for review and approval. placed on NASA classified documents (2) Ensuring that classified informa- or materials except as expressly pro- tion or material prepared in their re- vided by statute or by NASA Direc- spective Center is appropriately tives. marked. (1) Top Secret. Top Secret is the des- (3) Ensuring that material proposed ignation applied to information or ma- for public release is reviewed to redact terial, the unauthorized disclosure of classified information. which could reasonably be expected to (4) Coordinating all security classi- cause exceptionally grave damage to fication actions with the Center’s Pro- the national security. tective Services Office. (2) Secret. Secret is the designation (f) The Director of the Office of Pro- applied to information or material, the tective Services, NASA Headquarters, unauthorized disclosure of which could who serves as a member and Executive reasonably be expected to cause serious Secretary of the NISPC, is responsible damage to the national security. for the NASA-wide coordination of se- (3) Confidential. Confidential is the curity classification matters. designation applied to that informa- (g) The Information Security Pro- tion or material for which the unau- gram Manager, Office of Protective thorized disclosure could reasonably be Services (OPS), is responsible for es- expected to cause damage to the na- tablishing procedures for the safe- tional security. guarding of classified information or material (e.g., accountability, control, [44 FR 34913, June 18, 1979, as amended at 48 access, storage, transmission, and FR 5890, Feb. 9, 1983; 78 FR 5117, Jan. 24, 2013]

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Subpart C—Classification § 1203.305 Restricted data. Principles and Considerations Restricted Data or Formerly Re- stricted Data is so classified when § 1203.300 General. originated or by operation of the law, In general, the types of NASA-gen- as required by the Atomic Energy Act erated information and material re- of 1954, as amended. Specific guidance quiring protection in the interest of for the classification of Restricted national security lie in the areas of ap- Data and Formerly Restricted Data is plied research, technology or oper- provided in ‘‘Classification Guides’’ ations. published by the Department of Energy and or Department of Defense. § 1203.301 Identification of informa- [44 FR 34913, June 18, 1979, as amended at 78 tion requiring protection. FR 5118, Jan. 24, 2013] Classifiers shall identify the level of classification of each classified portion Subpart D—Guides for Original of a document (including subject and Classification titles), and those portions that are not classified. § 1203.400 Specific classifying guidance. § 1203.302 Compilation. Technological and operational infor- A compilation of items that are indi- mation and material, and in some ex- vidually unclassified may be classified ceptional cases scientific information if the compiled information reveals an falling within any one or more of the additional association or relationship following categories, must be classified that meets the standards of classifica- if its unauthorized disclosure could tion under the Order; and is not other- reasonably be expected to cause some wise revealed in the individual items of degree of damage to the national secu- information. As used in the Order, rity. In cases where it is believed that compilations mean an aggregate of pre- a contrary course of action would bet- existing unclassified items of informa- ter serve the national interests, the tion. matter should be referred to the Chair- person, NISPC, for a determination. It [78 FR 5118, Jan. 24, 2013] is not intended that this list be exclusive; original classifiers are responsible § 1203.303 Distribution controls. for initially classifying any other type NASA shall establish controls over of information which, in their judg- the distribution of classified informa- ment, requires protection under § 1.4 of tion to ensure that it is dispersed only ‘‘the Order.’’ to organizations or individuals eligible (a) Military plans, weapons systems, for access to such information and with or operations; a need-to-know the information. (b) Foreign government information; [78 FR 5118, Jan. 24, 2013] (c) Intelligence activities (including covert activities), intelligence sources § 1203.304 Internal effect. or methods, or cryptology; (d) Foreign relations or foreign ac- The effect of security protection on tivities of the United States, including program progess and cost and on other confidential sources; functional activities of NASA should (e) Scientific, technological, or eco- be considered. Impeditive effects and nomic matters relating to the national added costs inherent in a security clas- security; sification must be assessed and (f) United States Government pro- weighed against the detrimental ef- grams for safeguarding nuclear mate- fects on the national security interests rials or facilities; which would result from failure to clas- (g) Vulnerabilities or capabilities of sify. systems, installations, infrastructures, [44 FR 34913, June 18, 1979, as amended at 78 projects, plans, or protection services FR 5118, Jan. 24, 2013] relating to the national security; or

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(h) The development, production, or § 1203.403 [Reserved] plans relating to the use of weapons of mass destruction. § 1203.404 Handling of unprocessed data. [78 FR 5118, Jan. 24, 2013] It is the usual practice to withhold § 1203.401 Effect of open publication. the release of raw scientific data re- Public disclosure, regardless of ceived from spacecraft until it can be source or form, of information cur- calibrated, correlated and properly in- rently classified or being considered for terpreted by the experimenter under classification does not preclude initial the monitorship of the cognizant NASA or continued classification. However, office. During this process, the data are such disclosure requires an immediate withheld through administrative meas- reevaluation to determine whether the ures, and it is not necessary to resort information has been compromised to to security classification to prevent the extent that downgrading or declas- premature release. However, if at any sification is indicated. Similar consid- time during the processing of raw data eration must be given to related items it becomes apparent that the results of information in all programs, projects, or items incorporating or per- require protection under the criteria taining to the compromised items of set forth in this subpart D, it is the re- information. In these cases, if a release sponsibility of the cognizant NASA of- were made or authorized by an official fice to obtain the appropriate security Government source, classification of classification. clearly identified items may no longer be warranted. Questions as to the pro- § 1203.405 Proprietary information. priety of continued classification Proprietary information made avail- should be referred to the Chairperson, able to NASA is subject to examination NASA Information Security Program for classification purposes under the Committee. criteria set forth in this subpart D. Where the information is in the form of § 1203.402 Classifying material other than documentation. a proposal and accepted by NASA for support, it should be categorized in ac- Items of equipment or other physical cordance with the criteria of § 1203.400. objects may be classified only where classified information may be derived If NASA does not support the proposal by visual observation of internal or ex- but believes that security classifica- ternal appearance, structure, oper- tion would be appropriate under the ation, test, application or use. The criteria of § 1203.400 if it were under overall classification assigned to equip- Government jurisdiction, the con- ment or objects shall be at least as tractor should be advised of the rea- high as the highest classification of sons why safeguarding would be appro- any of the items of information which priate, unless security considerations may be revealed by the equipment or preclude release of the explanation to objects, but may be higher if the the contractor. NASA should identify classifying authority determines that the Government department, agency or the sum of classified or unclassified in- activity whose national security inter- formation warrants such higher classi- ests might be involved and the con- fication. In every instance where clas- tractor should be instructed to protect sification of an item of equipment or the proposal as though classified pend- object is determined to be warranted, ing further advisory classification such determination must be based on a opinion by the Government activity finding that there is at least one aspect whose interests are involved. If such a of the item or object which requires Government activity cannot be identi- protection. If mere knowledge of the existence of the equipment or object fied, the contractor should be advised would compromise or nullify the rea- that the proposal is not under NASA son or justification for its classifica- jurisdiction for classification purposes, tion, the fact of its existence should be and that the information should be classified. sent, under proper safeguards, to the

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Director, Information Security Over- declassification 10 years from the date sight Office for a determination. of the original decision, unless the original classification authority other- [44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013] wise determines that the sensitivity of the information requires that it be § 1203.406 Additional classification fac- marked for declassification for up to 25 tors. years from the date of the original de- In determining the appropriate clas- cision. sification category, the following addi- (c) An original classification author- tional factors should be considered: ity may extend the duration of classi- (a) Uniformity within government ac- fication up to 25 years from the date of tivities. The effect classification will origin of the document, change the have on technological programs of level of classification, or reclassify spe- other Government departments and cific information only when the stand- agencies should be considered. Classi- ards and procedures for classifying in- fication of official information must be formation under this Order are fol- reasonably uniform within the Govern- lowed. ment. (d) No information may remain clas- (b) Applicability of classification direc- sified indefinitely. Information that is tives of other Government agencies. It is marked for an indefinite duration of necessary to determine whether au- classification under predecessor orders, thoritative classification guidance ex- for example, information marked as ists elsewhere for the information ‘‘Originating Agency’s Determination under consideration which would make Required,’’ or classified information it necessary to assign a higher classi- that contains either incomplete or no fication than that indicated by the ap- declassification instructions, shall plicable NASA guidance. The Office of have appropriate declassification infor- Protective Services will coordinate mation applied in accordance with part with the Information Security Over- 3 of this order. sight Office (ISOO) Committee and the [78 FR 5118, Jan. 24, 2013] National Declassification Center to determine what classification guides are § 1203.408 Assistance by Information current. Security Specialist in the Center Protective Services Office. [44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013] Center Security Classification Offi- cers, as the Center point-of-contact, § 1203.407 Duration of classification. will assist Center personnel in: (a) At the time of original classifica- (a) Interpreting security classification, the original classification author- tion guides and classification assign- ity shall establish a specific date or ments for the Center. event for declassification based on the (b) Answering questions and consid- duration of the national security sensi- ering suggestions concerning security tivity of the information. Upon reach- classification matters. ing the date or event, the information (c) Ensuring a continuing review of shall be automatically declassified. Ex- classified information for the purpose cept for information that should clear- of declassifying or downgrading in ac- ly and demonstrably be expected to re- cordance with subpart E of this part. veal the identity of a confidential (d) Reviewing and approving, as the human source or a human intelligence representative of the contracting offi- source or key design concepts of weap- cer, the DD Form 254, Contract Secu- ons of mass destruction, the date or rity Classification Specification, issued event shall not exceed the timeframe to contractors by the Center. established in paragraph (b) of this sec- (e) Forwarding all security classification. tion guides to the Office of Protective (b) If the original classification au- Services, NASA Headquarters, for final thority cannot determine an earlier approval. specific date or event for declassifica- [44 FR 34913, June 18, 1979, as amended at 78 tion, information shall be marked for FR 5118, Jan. 24, 2013]

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§ 1203.409 Exceptional cases. proved in writing by the Adminis- (a) In those cases where a person not trator, the Deputy Administrator, or authorized to classify information the Assistant Administrator for Pro- originates or develops information tective Services. All reclassification which is believed to require classifica- actions will be coordinated with the In- tion, that person must contact the formation Security Oversight Office Center’s or installation’s Information before final approval; the information Security Officer in the Protective may be reasonably recovered without Services Office to arrange for proper bringing undue public attention to the review and safeguarding. Persons other information; the reclassification action than NASA employees should forward is reported promptly to the Assistant the information to the NASA Central to the President for National Security Registry at 300 E Street SW., Wash- Affairs (the National Security Advisor) ington, DC 20546, Attention: Office of and the Director of the Information Se- Protective Services. curity Oversight Office; and for docu- (b) Information in which NASA does ments in the physical and legal cus- not have primary interest shall be re- tody of the National Archives and turned promptly, under appropriate Records Administration (National Ar- safeguards, to the sender in accordance chives) that have been available for with § 1203.405. public use, the Administrator, the Dep- (c) Material received from another uty Administrator, or the Assistant agency for a NASA security classifica- Administrator for Protective Services, tion determination shall be processed after making the determinations re- within 90 days. If a classification can- quired by this paragraph, shall notify not be determined during that period, the material shall be sent, under appro- the Archivist of the United States priate safeguards, to the Director, In- (hereafter, Archivist), who shall sus- formation Security Oversight Office, pend public access pending approval of for a determination. the reclassification action by the Di- rector of the Information Security [44 FR 34913, June 18, 1979, as amended at 78 Oversight Office. Any such decision by FR 5118, Jan. 24, 2013] the Director may be appealed by the § 1203.410 Limitations. agency head to the President through the National Security Advisor. Public (a) In no case shall information be access shall remain suspended pending classified, continue to be maintained a prompt decision on the appeal. as classified, or fail to be declassified in order to: (d) Information that has not pre- (1) Conceal violations of law, ineffi- viously been disclosed to the public ciency, or administrative error; under proper authority may be classi- (2) Prevent embarrassment to a per- fied or reclassified after an agency has son, organization, or agency; received a request for it under the (3) Restrain competition; or Freedom of Information Act (5 U.S.C. (4) Prevent or delay the release of in- 552), the Presidential Records Act, 44 formation that does not require protec- U.S.C. 2204(c)(1), the Privacy Act of tion in the interest of the national se- 1974 (5 U.S.C. 552a), or the mandatory curity. review provisions of section 3.5 of this (b) Basic scientific research informa- Order only if such classification meets tion not clearly related to the national the requirements of this Order and is security may not be classified. accomplished by document-by-docu- (c) Information may not be reclassi- ment review with the personal partici- fied after declassification after being pation or under the direction of the Ad- released to the public under proper au- ministrator, the Deputy Adminis- thority unless: The reclassification is trator, or the Assistant Administrator based on a document-by-document re- for Protective Services. The require- view by NASA and a determination ments in this paragraph also apply to that reclassification is required to pre- those situations in which information vent at least significant damage to the has been declassified in accordance national security and personally ap-

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with a specific date or event deter- for declassification, information shall mined by an original classification au- be marked for declassification 10 years thority in accordance with section 1.5 from the date of the original decision, of this Order. unless the original classification au- (e) Compilations of items of informa- thority otherwise determines that the tion that are individually unclassified sensitivity of the information requires may be classified if the compiled infor- it be marked for declassification for up mation reveals an additional associa- to 25 years from the date of the origi- tion or relationship that: nal decision. (1) Meets the standards for classifica- (4) Indicate specifically that the des- tion under this Order; and ignations, time limits, markings and (2) Is not otherwise revealed in the other requirements of ‘‘the Order’’ are individual items of information. to be applied to information classified pursuant to the guide. [44 FR 34913, June 18, 1979, as amended at 48 FR 5890, Feb. 9, 1983; 78 FR 5119, Jan. 24, 2013] (5) All security classification guides should be forwarded to the Office of § 1203.411 Restrictions. Protective Services for review and (a) Except as provided by directives final approval. The Office of Protective issued by the President through the Services will maintain a list of all clas- National Security Council, classified sification guides in current use. information originating in one agency (b) Review of classification guides. may not be disseminated outside any Classification guides shall be reviewed other agency to which it has been made by the originator for currency and ac- available without the consent of the curacy not less than once every five originating agency. For purposes of years. Changes shall be in strict con- this section, the Department of De- formance with the provisions of this fense shall be considered one agency. part 1203 and shall be issued promptly. (b) Classified information shall not If no changes are made, the originator be disseminated outside the Executive shall so annotate the record copy and Branch except under conditions that show the date of the review. ensure the information will be given [44 FR 34913, June 18, 1979, as amended at 48 protection equivalent to that afforded FR 5891, Feb. 9, 1983; 78 FR 5119, Jan. 24, 2013] within the Executive Branch. [48 FR 5890, Feb. 9, 1983] Subpart E—Derivative Classification § 1203.412 Classification guides. (a) General. A classification guide, § 1203.500 Use of derivative classifica- based upon classification determination. tions made by appropriate program and (a) Persons who reproduce, extract, classification authorities, shall be or summarize classified information, or issued for each classified system, pro- who apply classification markings de- gram or project. Classification guides rived from source material or as di- shall: rected by a classification guide, need (1) Identify the information elements not possess original classification au- to be protected, using categorization thority. and subcategorization to the extent (b) Persons who apply derivative necessary to ensure that the informa- classification markings shall: tion involved can be readily and uni- (1) Be identified by name and posi- formly identified. tion or by personal identifier, in a (2) State which of the classification manner that is immediately apparent designations (i.e., Top Secret, Secret or for each derivative classification ac- Confidential) apply to the identified in- tion; formation elements. (2) Observe and respect original clas- (3) State the duration of each speci- sification decisions; and fied classification in terms of a period (3) Carry forward to any newly cre- of time or future event. If the original ated documents the pertinent classi- classification authority cannot deter- fication markings. For information de- mine an earlier specific date or event rivatively classified based on multiple

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sources, the derivative classifier shall ments classified on the basis of mul- carry forward: tiple sources. (i) The date or event for declassifica- [44 FR 34913, June 18, 1979, as amended at 48 tion that corresponds to the longest pe- FR 5891, Feb. 9, 1983] riod of classification among the sources or the marking established Subpart F—Declassification and pursuant to section 1.6(a)(4)(D) of the Downgrading Order; and (ii) A listing of the source materials. § 1203.600 Policy. (c) Derivative classifiers shall, when- Information shall be declassified or ever practicable, use a classified adden- downgraded as soon as national secu- dum when classified information con- rity considerations permit. NASA re- stitutes a small portion of an otherwise views of classified information shall be unclassified document or prepare a coordinated with other agencies that product to allow for dissemination at have a direct interest in the subject the lowest level of classification pos- matter. Information that continues to sible or in unclassified form. meet the classification requirements (d) Persons who apply derivative prescribed by § 1203.400 despite the pas- classification markings shall receive sage of time will continue to be pro- training in the proper application of tected in accordance with ‘‘the Order.’’ the derivative classification principles [48 FR 5891, Feb. 9, 1983] of the Order, with an emphasis on avoiding over-classification, at least § 1203.601 Responsibilities. once every two years. Derivative clas- Authorized officials with Declas- sifiers who do not receive such training sification Authority (DCA) may declas- at least once every two years shall sify or downgrade information that is have their authority to apply deriva- subject to the final classification juris- tive classification markings suspended diction of NASA and shall take such until they have received such training. action in accordance with the provi- A waiver may be granted by the Ad- sions of this subpart F. ministrator, the Deputy Adminis- trator, or the Assistant Administrator [44 FR 34913, June 18, 1979, as amended at 78 for Protective Services if an individual FR 5120, Jan. 24, 2013] is unable to receive such training due § 1203.602 Authorization. to unavoidable circumstances. When- ever a waiver is granted, the individual Information shall be declassified or shall receive such training as soon as downgraded by an authorized DCA offi- practicable. cial. If that official is still serving in the same position, the originator’s suc- [78 FR 5119, Jan. 24, 2013] cessor, a supervisory official of either, or officials delegated such authority in § 1203.501 Applying derivative classi- writing by the Administrator or the fication markings. Chairperson, NISPC, may also make a Persons who apply derivative classi- decision to declassify or downgrade in- fication markings shall: formation. (a) Observe and respect original clas- [78 FR 5120, Jan. 24, 2013] sification decisions: (b) Verify the information’s current § 1203.603 Systematic review for de- level of classification so far as prac- classification: ticable before applying the markings; (a) General. (1) NASA must establish and and conduct a program for systematic (c) Carry forward to newly created declassification review of NASA-origi- documents any assigned authorized nated records of permanent historical markings. The declassification date or value exempted from automatic declas- event that provides the longest period sification under section 3.3 of this of classification shall be used for docu- Order. The NASA Office of Protective Services shall prioritize the review of

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such records in coordination with the (NARA). All security classified records Center Protective Service Offices. exempt from automatic declassifica- (2) The Archivist shall conduct a sys- tion, whether held in storage areas tematic declassification review pro- under installation control or in Federal gram for classified records: Records Centers, will be surveyed to (i) Accessioned into the National Ar- identify those requiring scheduling for chives; future disposition. (ii) Transferred to the Archivist pur- (A) Classified information or mate- suant to 44 U.S.C. 2203; and rial over which NASA exercises exclu- (iii) For which the National Archives sive or final original classification au- serves as the custodian for an agency thority and which is to be declassified or organization that has gone out of in accordance with the systematic re- existence. view guidelines shall be so marked. (3) The Chairperson, NISPC, shall (B) Classified information or mate- designate experienced personnel to as- rial over which NASA exercises exclu- sist the Archivist in the systematic re- sive or final original classification au- view of U.S. originated information thority and which, in accordance with and foreign information exempted from the systematic review guidelines is to automated declassification. Such per- be kept protected, shall be listed by sonnel shall: category by the responsible custodian (i) Provide guidance and assistance and referred to the Chairperson, NASA to the National Archives and Records Information Security Program Com- Service in identifying and separating mittee. This listing shall: documents and specific categories of (1) Identify the information or mate- information within documents which rial involved. are deemed to require continued classi- (2) Recommend classification beyond fication; and 25 years to a specific event scheduled (ii) Develop reports of information or to happen or a specific period of time document categories so separated, with in accordance with the Order. recommendations concerning contin- (3) The Administrator shall delegate ued classification. to the Senior Agency Official the au- (iii) Develop, in coordination with thority to determine which category NASA organizational elements, guide- shall be kept classified and the dates or lines for the systematic review for de- event for declassification. classification of classified information (4) Declassification by the Director of under NASA’s jurisdiction. The guide- the Information Security Oversight Of- lines shall state specific limited cat- fice (DISOO). If the Director deter- egories of information which, because mines that NASA information is classi- of their national security sensitivity, fied in violation of the Order, the Di- should not be declassified automati- rector may require the information to cally, but should be reviewed to deter- be declassified. Any such decision by mine whether continued protection be- the Director may be appealed through yond 25 years is needed. These guide- the NASA ISPC to the National Secu- lines are authorized for use by the Ar- rity Council. The information shall re- chivist and the Director of the Infor- main classified pending a prompt deci- mation Security Oversight Office, with sion on the appeal. the approval of the Senior Agency Offi- (b) [Reserved] cial, which is the Assistant Adminis- [78 FR 5120, Jan. 24, 2013] trator, Office of Protective Services, for categories listed in section 3.3 of § 1203.604 Mandatory review for de- the Order. These guidelines shall be reclassification. viewed at least every five years and re- (a) Information covered. Except as pro- vised as necessary, unless an earlier re- vided in paragraph (b) of this section, view for revision is requested by the all information classified under the Archivist. Copies of the declassifica- Order or predecessor orders shall be tion guidelines promulgated by NASA subject to a review for declassification will be provided to the Information Se- by the originating agency if: curity Oversight Office, National Ar- (1) The request for a review describes chives and Records Administration the document or material containing

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the information with sufficient speci- Registry, 300 E Street SW., Washington ficity to enable the agency to locate it DC 20546, Attention: Office of Protec- in a reasonably timely manner; tive Services/Information Security (2) The document or material con- Program Manager. The phrase, ‘‘Man- taining the information responsive to datory Declassification Review,’’ must the request is not contained within an be stated in the request. operational file exempted from search (d) Requirement for processing. (1) Re- and review, publication, and disclosure quests which are submitted under the under 5 U.S.C. 552 in accordance with Freedom of Information Act cannot be law; and processed under the MDR process. (3) The information is not the subject (2) The request describes the docu- of pending litigation. ment or material containing the infor- (b) Presidential papers. Information mation with sufficient specificity, such originated by the President or Vice as accession numbers, box titles or President; the President’s White House numbers, date and title of document, in Staff, or the Vice President’s Staff; any combination, to enable NASA to committees, commissions, or boards locate it with a reasonable amount of appointed by the President; or other effort, not to exceed 30 days. If more entities within the Executive Office of time is required, NASA will notify the the President that solely advise and as- requester. After review, the informa- sist the President are exempted from tion or any portion thereof that no the provisions of paragraph (a) of this longer requires protection shall be de- section. However, the Archivist shall classified and released unless with- have the authority to review, down- holding is otherwise warranted under grade, and declassify papers or records applicable law. of former Presidents and Vice Presi- (e) Processing of requests. Requests dents under the control of the Archi- that meet the requirements of para- vist pursuant to 44 U.S.C. 2107, 2111, graph (d)(2) of this section will be proc- 2111 note, or 2203. Procedures developed essed as follows: by the Archivist shall provide for con- (1) The NASA Office of Protective sultation with agencies having primary Services review upon receiving the ini- subject matter interest and shall be tial request shall be completed within consistent with the provisions of appli- 365 days. cable laws or lawful agreements that (2) Receipt of the request shall be ac- pertain to the respective Presidential knowledged promptly. The NASA Of- papers or records. Agencies with pri- fice of Protective Services shall deter- mary subject matter interest shall be mine whether, under the declassifica- notified promptly of the Archivist’s de- tion provisions of this part 1203, the re- cision. Any final decision by the Archi- quested information may be declas- vist may be appealed by the requester sified and, if so, shall make such infor- or an agency to the Panel. The information available to the requestor, un- mation shall remain classified pending less withholding is otherwise war- a decision on the appeal. ranted under applicable law. If the in- (c) Submission of requests for review. formation may not be released in whole Requests for mandatory review of clas- or in part, the requestor shall be given sified information shall be submitted a brief statement of the reasons for de- in accordance with the following: nial, a notice of the right to appeal the (1) Requests originating within determination to the Chairperson, NASA shall, in all cases, be submitted NASA Information Security Program directly to the NASA Office of Protec- Committee, National Aeronautics and tive Services. Space Administration, Washington, DC (2) For the most expeditious action, 20546, and a notice that such an appeal requests from other Governmental must be filed within 60 days in order to agencies or from members of the public be considered. should be submitted directly to the (3) All appeals of denials of requests NASA Office of Protective Services for declassification shall be acted upon only. The requestor may submit the re- and determined finally within 120 quest to: National Aeronautics and working days after receipt, and the re- Space Administration (NASA), Central quester shall be advised that the appeal

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determination is final. If the requester downgraded or declassified, NASA shall is dissatisfied with NASA’s appeal deci- be deemed to be the originating agency sion, the requester may initiate an ap- for the purpose of declassifying or peal to the Interagency Security Clas- downgrading such material. NASA will sification Appeals Panel (ISCAP), with- consult with the Information Security in the Information Security Oversight Oversight Office to assist in final dis- Office. If continued classification is re- position of the information. quired under the provisions of this part (3) Transfer for storage or retirement. 1203, the requester shall be notified of (i) Insofar as practicable, classified the reasons thereof. documents shall be reviewed to deter- (4) The declassification and release of mine whether or not they can be down- foreign government information that is graded or declassified prior to being subjected to mandatory review under forwarded to records centers or to the this section shall be determined only in National Archives for storage. Any accordance with § 1203.703. downgrading or declassification deter- (5) When the NASA Office of Protec- mination shall be indicated on each tive Services receives any request for document by appropriate markings. declassification of information in docu- (ii) Classified information transferred ments in its custody that was classified to the General Services Administration by another Government agency, it for accession into the Archives of the shall refer copies of the request and the United States shall be downgraded or requested documents to the originating declassified by the Archivist of the agency for processing and may, after United States in accordance with ‘‘the consultation with the originating agen- Order,’’ the directives of the Informa- cy, inform the requester of the referral. tion Security Oversight Office, GSA, (f) Neutral response. In response to a and NASA guidelines. request for information under the Free- dom of Information Act, the Privacy (h) Downgrading and declassification Act of 1974, or the mandatory review actions—(1) Notification of changes in provisions of ‘‘the Order,’’ NASA shall classification or declassification. When refuse to confirm or deny the existence classified material has been marked or non-existence of requested informa- with specific dates or events for down- tion whenever the fact of its existence grading or declassification, it is not or non-existence is itself classifiable necessary to issue notices of such ac- under ‘‘the Order.’’ tions to any holders. However, when (g) Declassification of transferred docu- such actions are taken earlier than ments or material—(1) Material officially originally scheduled, or the duration of transferred. In the case of classified in- classification is shortened, the author- formation or material transferred by or ity making such changes shall, to the pursuant to statute or Executive Order extent practicable, ensure prompt noti- to NASA in conjunction with a transfer fication to all addressees to whom the of functions (not merely for storage information or material was originally purposes) for NASA’s use and as part of transmitted. The notification shall its official files or property, as distin- specify the marking action to be taken, guished from transfers merely for pur- the authority therefor, and the effec- poses of storage, NASA shall be deemed tive date. Upon receipt of notification, to be the original classifying authority recipients shall effect the proper over such material for purposes of changes and shall notify addressees to downgrading and declassification. whom they have transmitted the clas- (2) Material not officially transferred. sified information or material. When NASA has in its possession clas- (2) Posted notice. If prompt remarking sified information or material origi- of large quantities would be unduly nated by an agency which has since burdensome, the custodian may attach ceased to exist and that information declassification, downgrading, or up- has not been officially transferred to grading notices to the storage unit in another department or agency or when lieu of the remarking action otherwise it is impossible for NASA to identify required. Each notice shall indicate the the originating agency and a review of change, the authority for the action, the material indicates that it should be the date of the action, and the storage

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units to which it applies. Items with- Services, is designated to act as the drawn from such storage units shall be Committee Executive Secretary. promptly remarked. However, when in- [78 FR 5121, Jan. 24, 2013] formation subject to a posted downgrading or declassification notice is § 1203.801 Responsibilities. withdrawn from one storage unit solely for transfer to another, or a storage (a) The Chairperson reports to the unit containing such information is Administrator concerning the manage- transferred from one place to another, ment and direction of the NASA Infor- the transfer may be made without re- mation Security Program as provided marking if the notice is attached to or for in subpart B of this part. In this remains with each shipment. connection, the Chairperson is sup- (i) Foreign Relations Series. In order to ported and advised by the Committee. permit the State Department editors of (b) The Committee shall act on all Foreign Relations of the United States to appeals from denials of declassification meet their mandated goal of publishing requests and on all suggestions and 20 years after the event, NASA shall complaints with respect to administra- assist these editors by facilitating action of the NASA Information Security cess to appropriate classified materials Program as provided for in subpart B of in its custody and by expediting declas- this part. sification review of items from its files (c) The Executive Secretary of the selected for publication. Committee shall maintain all records (ii) [Reserved] produced by the Committee, its sub- committees, and its ad hoc panels. [44 FR 34913, June 18, 1979, as amended at 45 (d) The Office of Protective Services FR 3888, Jan. 21, 1980; 48 FR 5892, Feb. 9, 1983; will provide staff assistance and inves- 53 FR 41318, Oct. 21, 1988; 78 FR 5120, Jan. 24, 2013] tigative and support services for the Committee. EDITORIAL NOTE: At 78 FR 5120, Jan. 24, 2013, § 1203.604 was amended in part by revis- [78 FR 5121, Jan. 24, 2013] ing paragraphs (d)(3) and (4); however, the amendatory instruction could not be incor- § 1203.802 Membership. porated completely because (d)(3) and (4) did The Committee membership will con- not exist. sist of the Chairperson, the Executive Secretary, and one person nominated Subpart G [Reserved] by each of the following NASA officials: Subpart H—Delegation of Author- (a) The Associate Administrators for: ity To Make Determinations in (1) Aeronautics. Original Classification Matters (2) Science Missions Directorate. (3) Human Explorations and Oper- SOURCE: 62 FR 54380, Oct. 20, 1997, unless ations. otherwise noted. (4) International and Interagency Re- lations. § 1203.800 Establishment. (b) The Associate Administrator. Pursuant to Executive Order 13526, (c) The General Counsel. ‘‘Classified National Security Informa- (d) The Chief Information Officer. tion,’’ and The Space Act, in accord- (e) Other members may be designated ance with U.S.C. Title 51, National and upon specific request of the Chair- Commercial Space Program Sections person. 20132 and 20133, there is established a [78 FR 5121, Jan. 24, 2013] NASA Information Security Program Committee (as part of the permanent § 1203.803 Ad hoc committees. administrative structure of NASA). The Chairperson is authorized to es- The NASA Assistant Administrator for tablish such ad hoc panels or sub- Protective Services, or designee, shall committees as may be necessary in the be the Chairperson of the Committee. conduct of the Committee’s work. The Information Security Program Manager, NASA Office of Protective [78 FR 5121, Jan. 24, 2013]

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§ 1203.804 Meetings. tigative and support services for the Committee. (a) Meetings will be held at the call of the Chairperson. [54 FR 6881, Feb. 15, 1989, as amended at 78 (b) Records produced by the Com- FR 5122, Jan. 24, 2013] mittee and the minutes of each meet- § 1203.902 Membership. ing will be maintained by the Execu- tive Secretary. The Committee will consist of the Chairperson and Executive Secretary. [78 FR 5121, Jan. 24, 2013] In addition, each of the following NASA officials will nominate one per- Subpart I—NASA Information son to Committee membership: Security Program Committee (a) Associate Administrator for: (1) Aero-Space Technology. (2) Space Science. SOURCE: 54 FR 6881, Feb. 15, 1989, unless (3) Space Flight. otherwise noted. (4) External Relations. § 1203.900 Establishment. (5) Life and Microgravity Sciences and Applications. Pursuant to Executive Order 13526, (b) Associate Deputy Administrator. ‘‘Classified National Security Informa- (c) General Counsel. tion,’’ and The Space Act, in accord- Other members may be designated ance with U.S.C. Title 51, National and upon specific request of the Chair- Commercial Space Program Sections person. 20132 and 20133, there is established a NASA Information Security Program [54 FR 6881, Feb. 15, 1989, as amended at 64 Committee (as part of the permanent FR 72535, Dec. 28, 1999] administrative structure of NASA. The § 1203.903 Ad hoc committees. NASA Assistant Administrator for Protective Services, or designee, shall The Chairperson is authorized to es- be the Chairperson of the Committee. tablish such ad hoc panels or sub- The Information Security Program committees as may be necessary in the conduct of the Committee’s work. Manager, NASA Office of Protective Services, is designated to act as the § 1203.904 Meetings. Committee Executive Secretary. (a) Meetings will be held at the call [78 FR 5122, Jan. 24, 2013] of the Chairperson. (b) Records produced by the Com- § 1203.901 Responsibilities. mittee and the minutes of each meet- (a) The Chairperson reports to the ing will be maintained by the Execu- Administrator concerning the manage- tive Secretary. ment and direction of the NASA Infor- mation Security Program as provided Subpart J—Special Access Pro- for in subpart B of this part. In this grams (SAP) and Sensitive connection, the Chairperson is sup- Compartmented Information ported and advised by the Committee. (SCI) Programs (b) The Committee shall act on all appeals from denials of declassification SOURCE: 78 FR 5122, Jan. 24, 2013, unless requests and on all suggestions and otherwise noted. complaints with respect to administration of the NASA Information Security § 1203.1000 General. Program as provided for in subpart B of A SAP or SCI program shall be cre- this part. ated within NASA only upon specific (c) The Executive Secretary of the written approval of the Administrator Committee shall maintain all records and must be coordinated with the As- produced by the Committee, its sub- sistant Administrator for Protective committees, and its ad hoc panels. Services, or designee, to ensure re- (d) The Office of Protective Services, quired security protocols are imple- will provide staff assistance, and inves- mented and maintained.

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§ 1203.1001 Membership. appropriate and adequate protection The Committee membership will con- for facilities, property, or classified/ proprietary information and material sist of the Chairperson, the Executive in the possession of NASA or NASA Secretary, and one person nominated contractors located at NASA Centers by each of the following NASA offi- and Component Facilities. cials: (b) This part sets forth: (a) The Associate Administrators for: (1) The designation and maintenance (1) Aeronautics. of security areas, (2) Science Missions Directorate. (2) The responsibilities and proce- (3) Human Explorations and Oper- dures in connection therewith, and ations. (3) The penalties that may be en- (4) International and Interagency Re- forced through court actions against lations. unauthorized persons entering security (b) The Associate Administrator. areas. (c) The General Counsel. (d) The Chief Information Officer. [38 FR 8056, Mar. 28, 1973, as amended at 78 (e) Other members may be designated FR 5123, Jan. 24, 2013] upon specific request of the Chair- person. § 1203a.101 Definitions. For the purpose of this part, the fol- § 1203.1002 Ad hoc committees. lowing definitions apply: The Chairperson is authorized to es- (a) Security area. A physically defined tablish such ad hoc panels or sub- area, established for the protection or committees as may be necessary in the security of facilities, property, or conduct of the Committee’s work. classfied/proprietary information and material in the possession of NASA or § 1203.1003 Meetings. a NASA contractor located at a NASA (a) Meetings will be held at the call Center or Component Facility, entry to of the Chairperson. which is subject to security measures, (b) Records produced by the Com- procedures, or controls. Security areas mittee and the minutes of each meet- which may be established are: ing will be maintained by the Execu- (1) Controlled area. An area in which tive Secretary. security measures are taken to safeguard and control access to property and hazardous materials or other sen- PART 1203a—NASA SECURITY sitive material or to protect operations AREAS that are vital to the accomplishment of the mission assigned to a Center or Sec. Component Facility. The controlled 1203a.100 Purpose and scope. 1203a.101 Definitions. area shall have a clearly defined perim- 1203a.102 Establishment, maintenance, and eter, but permanent physical barriers revocation of security areas. are not required. 1203a.103 Access to security areas. (2) Limited area. An area in which se- 1203a.104 Violation of security areas. curity measures are taken to safeguard 1203a.105 Implementation by field and com- or control access to classified material ponent installations. or unclassified property warranting AUTHORITY: The National Aeronautics and special protection or property and haz- Space Act of 1958, as amended, 51 U.S.C. 20101 ardous materials or to protect oper- et seq. ations that are vital to the accomplish- SOURCE: 38 FR 8056, Mar. 28, 1973, unless ment of the mission assigned to a Cen- otherwise noted. ter or Component Facility. A Limited Area shall also have a clearly defined § 1203a.100 Purpose and scope. perimeter, but differs from a Con- (a) To insure the uninterrupted and trolled Area in that permanent phys- successful accomplishment of the ical barriers and access control de- NASA mission, certain designated se- vices, including walls and doors with curity areas may be established and locks or access devices, are emplaced maintained by NASA Centers and Com- to assist the occupants in keeping out ponent Facilities in order to provide unauthorized personnel. All facilities

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designated as NASA Critical Infra- lishment of each permanent security structure or a key resource will be des- area: ignated at a minimum as ‘‘Limited’’ (a) The name and specific location of areas. the NASA Center or Component Facil- (3) Exclusion area. An area that is a ity, or property to be protected. permanent facility dedicated solely to (b) A statement that the property is the safeguarding and use of Classified owned by, or leased to, the United National Security Information. It is States for use by NASA or is the prop- used when vaults are unsuitable or im- erty of a NASA contractor located on a practical and where entry to the area NASA Center or Component Facility. alone provides visible or audible access (c) Designation desired: i.e., con- to classified material. To prevent un- trolled, limited, or Exclusion. authorized access to an exclusion area, (d) Specific purpose(s) for the estab- visitors will be escorted or other inter- lishment of a security area. nal restrictions implemented, as determined by the Center Security Office. (ii) For those areas currently designated by the Center as ‘‘permanent (b) Temporary security area. A des- security areas,’’ the information set ignated interim security area, the need forth in paragraph (d)(3)(i) of this sec- for which will not exceed 30 days from tion will be furnished to the Assistant date of establishment. A temporary security area may also be established, Administrator for Protective Services , pending approval of its establishment NASA Headquarters, within 30 work- as a permanent security area. days of the effective date of this part. (c) Permanent security area. A des- (b) Maintenance. The security meas- ignated security area, the need for ures which may be utilized to protect which will exceed 30 days from date of such areas will be determined by the establishment. requirements of individual situations. At a minimum, such security measures [38 FR 8056, Mar. 28, 1973, as amended at 78 will: FR 5123, Jan. 24, 2013] (1) Provide for the posting of signs at entrances and at such intervals along § 1203a.102 Establishment, maintenance, and revocation of security the perimeter of the designated area as areas. to provide reasonable notice to persons about to enter thereon. The Assistant (a) Establishment. (1) Directors of Administrator for Protective Services, NASA Centers, including Component NASA Headquarters, upon request, Facilities and Technical and Service may approve the use of signs that are Support Centers, and the Executive Di- now being used pursuant to a State rector for Headquarters Operations at statute. NASA Headquarters may establish, (2) Regulate authorized personnel maintain, and protect such areas des- entry and movement within the area. ignated as Controlled, Limited, or Ex- clusion, depending upon their assess- (3) Deny entry of unauthorized per- ment of the potential for unauthorized sons or property. persons either to: (4) Prevent unauthorized removal of (i) Obtain knowledge of classified in- classified information and material or formation, property from a NASA Center or Com- (ii) Damage or remove property, or to ponent Facility. (iii) Disrupt NASA or NASA con- (c) Revocation. Once the need for an tractor operations. established permanent security area no (2) The concurrence of the Assistant longer exists, the area will be returned Administrator for Protective Services immediately to normal controls and NASA Headquarters, shall be obtained procedures or as soon as practicable. prior to the establishment of a perma- The Assistant Administrator for Pro- nent security area. tective Services will be informed of (3)(i) At a minimum, the following permanent security area revocations information will be submitted to the within 15 workdays. Assistant Administrator for Protective [38 FR 8056, Mar. 28, 1973, as amended at 78 Services 15 workdays prior to estab- FR 5124, Jan. 24, 2013]

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§ 1203a.103 Access to security areas. ments or procedures for authorized entry into an area designated con- (a) Only those NASA employees, trolled, limited, or exclusion pursuant NASA contractor employees, and visi- to the provisions of this part may be tors who have a need for such access subject to prosecution under 18 U.S.C. and who meet the following criteria 799 which provides penalties for a fine may enter a security area: of not more than $5,000 or imprison- (1) Controlled area. Be authorized to ment for not more than 1 year, or both. enter the area alone or be escorted by or under the supervision of a NASA [38 FR 8056, Mar. 28, 1973, as amended at 78 employee or NASA contractor em- FR 5124, Jan. 24, 2013] ployee who is authorized to enter the area. § 1203a.105 Implementation by field and component installations. (2) Limited area. Possess a security clearance equal to the level of the clas- If a Director of a NASA Centers and sified information or material held, Component Facilities, finds it nec- discussed, or disseminated on site or is essary to issue supplemental instruc- the holder of a positive national agen- tions to any provision of this part, the cy check if classified material or infor- instructions must first be published in mation is not involved. Personnel who the FEDERAL REGISTER. Therefore, the do not meet the requirements for proposed supplemental instructions unescorted access may be escorted by a will be sent to the Assistant Adminis- NASA employee or NASA contractor trator for Protective Services, NASA employee who meets the access re- Headquarters, in accordance with quirements and has been authorized to NASA Policy Directive 1400.2, Pub- enter the area. lishing NASA Documents in the FED- (3) Exclusion area. Possess a security ERAL REGISTER and Responding to Reg- clearance equal to the classified infor- ulatory Actions for processing. mation or material involved. [38 FR 8056, Mar. 28, 1973, as amended at 78 (b) The Center Directors, including FR 5124, Jan. 24, 2013] Component Facilities and Technical and Service Support Centers, and the PART 1203b—SECURITY PRO- Executive Director for Headquarters GRAMS; ARREST AUTHORITY AND Operations, NASA Headquarters, may rescind previously granted authoriza- USE OF FORCE BY NASA SECU- tions to enter a security area when an RITY FORCE PERSONNEL individual’s access is no longer required, threatens the security of the Sec. 1203b.100 Purpose. property, or is disruptive of Govern- 1203b.101 Scope. ment operations. 1203b.102 Definitions. 1203b.103 Arrest authority. [38 FR 8056, Mar. 28, 1973, as amended at 78 1203b.104 Exercise of arrest authority—gen- FR 5124, Jan. 24, 2013] eral guidelines. 1203b.105 Use of non-deadly physical force § 1203a.104 Violation of security areas. when making an arrest. (a) Removal of unauthorized persons. 1203b.106 Use of deadly force. The Center Directors, including Com- 1203b.107 Use of firearms. ponent Facilities and Technical and 1203b.108 Management oversight. Service Support Centers, and the Exec- 1203b.109 Disclaimer. utive Director for Headquarters, NASA AUTHORITY: The National and Commercial Headquarters may order the removal or Space Program (51 U.S.C.). Sections 20132 eviction of any person whose presence and 20133 et seq. in a designated security area is in vio- SOURCE: 57 FR 4926, Feb. 11, 1992, unless lation of the provisions of this part or otherwise noted. any regulation or order established pursuant to the provisions of this part. § 1203b.100 Purpose. (b) Criminal penalties for violation. This regulation implements 51 U.S.C. Whoever willfully violates, attempts to National and Commercial Space Pro- violate, or conspires to violate any reg- grams, sections 20133 and 20134, by es- ulation or order establishing require- tablishing guidelines for the exercise of

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arrest authority and for the exercise of one of its contractors or subcontrac- physical force, including deadly force, tors, at facilities owned by or con- in conjunction with such authority. tracted to NASA; and [57 FR 4926, Feb. 11, 1992, as amended at 78 (2) The person to be arrested has FR 5124, Jan. 24, 2013] committed in the arresting officer’s presence an offense against the United § 1203b.101 Scope. States Government, NASA, or a NASA This part applies to only those NASA contractor; or and NASA contractor security force (3) The arresting officer has reason- personnel who are authorized to exer- able grounds to believe that the person cise arrest authority in accordance to be arrested has committed or is with 51 U.S.C. 20134 and this regulation. committing any felony cognizable [57 FR 4926, Feb. 11, 1992, as amended at 78 under the laws of the United States. FR 5124, Jan. 24, 2013] (c) The Office of the General Counsel, NASA Headquarters, or the Center § 1203b.102 Definitions. Chief Counsel’s Office, as appropriate, Accredited Course of Training. A shall provide guidance as to the appli- course of instruction offered by the cability of these regulations. NASA Protective Services Training Academy, or an equivalent course of [57 FR 4926, Feb. 11, 1992, as amended at 78 FR 5125, Jan. 24, 2013] instruction offered by another Federal agency. See § 1203b.103(a)(1). § 1203b.104 Exercise of arrest author- Arrest. An act, resulting in the re- ity—general guidelines. striction of a person’s movement, other than a brief detention for purposes of (a) In making an arrest, the security questioning concerning a person’s iden- force personnel should announce their tity and requesting identification, ac- authority and that the person is under complished by means of force or show arrest prior to taking the person into of authority under circumstances that custody. If the circumstances are such would lead a reasonable person to be- that making such an announcement lieve that he/she was not free to leave would be useless or dangerous to the the presence of the officer. security force personnel or others, the Contractor. NASA contractors and security force personnel may dispense subcontractors at all levels. with these announcements, but must [57 FR 4926, Feb. 11, 1992, as amended at 78 subsequently identify themselves and FR 5125, Jan. 24, 2013] their arrest authority to the arrested person(s) as soon as reasonably pos- § 1203b.103 Arrest authority. sible. (a) NASA security force personnel (b) The security force personnel at may exercise arrest authority, pro- the time and place of arrest may vided that: search the arrested person and the area (1) They have graduated from an ac- immediately surrounding the arrested credited training course (see person for weapons and criminal evi- § 1203b.102(a)); and dence. This is to protect the arresting (2) They have been certified in writ- officer and to prevent the destruction ing by the Assistant Administrator for of evidence. Protective Services, or designee, as (c) Custody of the person arrested specifically authorized to exercise ar- should be transferred to other Federal rest authority. law enforcement personnel (e.g., United (b) The authority of NASA security States Marshals or FBI agents) or to force personnel to make a warrantless local law enforcement agency per- arrest is subject to the following condi- sonnel, as appropriate, as soon as pos- tions: sible, in order to ensure the person is (1) The arresting officer must be brought before a magistrate without guarding and protecting property unnecessary delay. owned or leased by, or under the control of, the United States under the ad- [57 FR 4926, Feb. 11, 1992, as amended at 78 ministration and control of NASA or FR 5125, Jan. 24, 2013]

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§ 1203b.105 Use of non-deadly physical (2) Do not fire if shots are likely to force when making an arrest. harm innocent bystanders. When a security force personnel has (3) Shoot to stop. the right to make an arrest, as dis- (b) Warning shots are not authorized. cussed in § 1203b.103, the officer may (c) In the event that a security force use only that non-deadly physical force personnel discharges a weapon while in which is reasonable and necessary to a duty status: apprehend and arrest the offender; to (1) The incident shall be reported to prevent the escape of the offender; or the Center Chief of Security who, in to defend himself/herself or a third per- turn, will report it to the NASA Assist- son from what the security force offi- ant Administrator for Protective Serv- cer reasonably believes to be the use or ices as expeditiously as possible, with threat of imminent use of non-deadly as many details supplied as are avail- physical force by the offender. Verbal able. abuse alone by the offender cannot be (2) The officer shall be promptly sus- the basis under any circumstances for pended from duty with pay or reas- use of non-deadly physical force by a signed to other duties not involving security force officer. the use of a firearm, as the Center Di- rector or the Assistant Administrator [57 FR 4926, Feb. 11, 1992, as amended at 78 for Protective Services deems appro- FR 5125, Jan. 24, 2013] priate, pending investigation of the incident. § 1203b.106 Use of deadly force. (3) The cognizant Center Director, or NASA security force personnel may for incidents occurring at NASA Head- use deadly force only when necessary, quarters, the Executive Director for that is, when the officer has a reason- Headquarters Operations, shall appoint able belief that the subject of such an investigating officer to conduct a force poses an imminent danger of thorough investigation of the incident. death or serious physical injury to the Additional personnel may also be ap- officer or to another person. pointed, as needed to assist the inves- (a) Deadly force may not be used tigating officer. Upon conclusion of the solely to prevent the escape of a fleeing investigation, the investigating officer suspect. shall submit a written report of find- (b) Firearms may not be fired solely ings and recommendations to the ap- to disable moving vehicles. propriate Installation Director or the (c) If feasible and if to do so would Assistant Administrator for Protective not increase the danger to the officer Services. or others, a verbal warning to submit (4) Upon conclusion of the investiga- to the authority of the officer shall be tion, the Center Director or the Assist- given prior to the use of deadly force. ant Administrator for Protective Serv- (d) Warning shots are not permitted ices, with the advice of Counsel, shall outside of the prison context. determine the disposition appropriate (e) Officers will be trained in alter- to the case. native methods and tactics for han- (d) Firearms will be periodically in- dling resisting subjects which must be spected and kept in good working order used when the use of deadly force is not by a qualified gunsmith. Ammunition, authorized by this policy. holsters, and related equipment will be periodically inspected for deterioration [78 FR 5125, Jan. 24, 2013] and kept in good working order. Fire- arms and ammunition will be securely § 1203b.107 Use of firearms. stored separately in locked containers. (a) If it becomes necessary to use a Firearms will not be stored in a loaded firearm in any of the circumstances de- condition. Neither firearms nor ammu- scribed in § 1203b.106, NASA security nition will be stored in the same con- force personnel shall comply with the tainers as money, drugs, precious ma- following precautions whenever pos- terials, or classified information. sible: NASA Headquarters and each Installa- (1) Give an order to halt or desist be- tion shall adopt procedures for the fore firing. maintenance of records with respect to

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the issuance of firearms and ammuni- matter, civil or criminal, and they do tion. not place any limitations on otherwise lawful activities of security force per- [57 FR 4926, Feb. 11, 1992, as amended at 58 FR 5263, Jan. 21, 1993; 78 FR 5125, Jan. 24, sonnel or the National Aeronautics and 2013] Space Administration.

§ 1203b.108 Management oversight. [57 FR 4926, Feb. 11, 1992, as amended at 58 FR 5263, Jan. 21, 1993; 78 FR 5125, Jan. 24, (a) The Administrator shall establish 2013] a committee to exercise management oversight over the implementation of PART 1204—ADMINISTRATIVE arrest authority. AUTHORITY AND POLICY (b) The Administrator shall establish a reporting requirement for NASA Headquarters and NASA Centers. Subparts 1–3 [Reserved] (c) The Assistant Administrator for Subpart 4—Small Business Policy Protective Services, or designee, will ensure that all persons who are author- Sec. ized to exercise arrest authority will, 1204.400 Scope of subpart. before performing these duties: 1204.401 Policy. (1) Receive instructions on regula- 1204.402 Responsibilities. tions regarding the use of force, includ- 1204.403 General policy. ing deadly force; and (2) Demonstrate requisite knowledge Subpart 5—Delegations and Designations and skill in the use of unarmed defense 1204.500 Scope of subpart. techniques and their assigned firearms. 1204.501 Delegation of authority—to take (d) The Associate Assistant Adminis- actions in real estate and related mat- trator for Protective Services, or des- ters. ignee, will also: 1204.502 [Reserved] (1) Ensure periodic refresher training 1204.503 Delegation of authority to grant to maintain continued proficiency and easements. current knowledge of unarmed defense 1204.504 Delegation of authority to grant techniques; leaseholds, permits, and licenses in real (2) Require security force personnel property. 1204.505 Delegation of authority to execute exercising arrest authority to requalify certificates of full faith and credit. semiannually with their assigned fire- 1204.506–1204.507 [Reserved] arms; and 1204.508 Delegation of authority of certain (3) Require periodic refresher train- civil rights functions to Department of ing to ensure continued familiarity Education. with regulations. 1204.509 Delegation of authority to take ac- (e) The Executive Director for Head- tion regarding ‘‘liquidated damage’’ as- quarters Operations, and Center Direc- sessments under the Contract Work tors shall issue local policies and pro- Hours and Safety Standards Act, and as- cedural requirements, subject to prior sociated labor statutes. NASA Headquarters approval, which Subparts 6–9 [Reserved] will supplement this regulation for NASA Headquarters or NASA Center- Subpart 10—Inspection of Persons and Per- specific concerns. sonal Effects at NASA Installations or [57 FR 4926, Feb. 11, 1992, as amended at 58 on NASA Property; Trespass or Unau- FR 5263, Jan. 21, 1993; 78 FR 5125, Jan. 24, thorized Introduction of Weapons or 2013] Dangerous Materials § 1203b.109 Disclaimer. 1204.1000 Scope of subpart. These regulations are set forth solely 1204.1001 Policy. 1204.1002 Responsibility. for the purpose of internal National 1204.1003 Procedures. Aeronautics and Space Administration 1204.1004 Trespass. guidance. They are not intended to, 1204.1005 Unauthorized introduction of fire- and may not be relied upon to create arms or weapons, explosives, or other any rights, substantive or procedural, dangerous materials. enforceable at law by any party in any 1204.1006 Violations.

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Subpart 11—Enforcing Traffic Laws at NASA Subpart 4—Small Business Policy Centers and Component Facilities

1204.1100 Scope of subpart. AUTHORITY: 42 U.S.C. 2473(c)(5); 42 U.S.C. 1204.1101 Policy. 2473b; Public Law 101–507, the VA/HUD/Indep. 1204.1102 Responsibilities. Agencies Appropriation Act for FY 1991, at 1204.1103 Procedures. 104 Stat. 1380 (Nov. 5, 1990); and 15 U.S.C. 631– 1204.1104 Violations. 650.

Subparts 12–13 [Reserved] SOURCE: 58 FR 43554, Aug. 17, 1993, unless otherwise noted. Subpart 14—Use of NASA Airfield Facilities by Aircraft Not Operated for the Ben- § 1204.400 Scope of subpart. efit of the Federal Government This subpart establishes NASA’s small business policy and outlines the 1204.1400 Scope. 1204.1401 Definitions. delegation of authority in imple- 1204.1402 Policy. menting this policy as required by Fed- 1204.1403 Available airport facilities. eral law. 1204.1404 Requests for use of NASA airfield facilities. § 1204.401 Policy. 1204.1405 Approving authority. 1204.1406 Procedures in the event of a de- (a) It is NASA’s policy to enable clared in-flight emergency. small businesses (including small dis- 1204.1407 Procedure in the event of an unau- advantaged businesses, small women- thorized use. owned businesses, HUBZone small businesses, veteran-owned small businesses Subpart 15—Intergovernmental Review of and service disabled veteran-owned National Aeronautics and Space Ad- small businesses), historically black ministration Programs and Activities colleges and universities, and other mi- 1204.1501 Purpose. nority educational institutions the op- 1204.1502 Definitions. portunity to participate equitably and 1204.1503 Programs and activities subject to proportionately in its total purchases these regulations. and contracts that are consistent with 1204.1504 [Reserved] 1204.1505 Federal interagency coordination. the Agency’s needs to execute its mis- 1204.1506 Procedures for selecting programs sion. and activities under these regulations. (b) In carrying out the NASA pro- 1204.1507 Communicating with State and curement program, the primary consid- local officials concerning the Agency’s eration shall be that of securing con- programs and activities. tract performance, including obtaining 1204.1508 Time limitations for receiving comments on proposed direct Federal de- deliveries of required items or services velopment. at the time, in the quantity and of the 1204.1509 Receiving and responding to com- quality prescribed. In the area of re- ments. search and development (R&D) con- 1204.1510 Efforts to accommodate intergov- tracts, the general policy of NASA is to ernmental concerns. award such contracts to those organi- 1204.1511 Coordination in interstate situations. zations determined by responsible per- 1204.1512 [Reserved] sonnel to have a high degree of com- 1204.1513 Waivers of provisions of these reg- petence in the specific branch of ulations. science or technology required for the successful conduct of the work. It is in Subpart 16—Temporary Duty Travel— the interest of the civilian space pro- Issuance of Motor Vehicle for Home- gram that the number of firms engaged to-Work Transportation inR&D, work for NASA be expanded 1204.1600 Issuance of motor vehicle for and that there be an increase in the ex- home-to-work. tent of participation in such work by APPENDIX A TO PART 1204—ITEMS TO COVER competent small business firms. IN MEMORANDA OF AGREEMENT [58 FR 43554, Aug. 17, 1993, as amended at 78 Subparts 1–3 [Reserved] FR 77353, Dec. 23, 2013] 27

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§ 1204.402 Responsibilities. CFR part 1852, Solicitation Provisions and Contract; and NASA Policy Direc- (a) Office of Small Business Programs tive 5000.2C, Small Business Subcon- (OSBP). The Associate Administrator tracting Goals (http:// for Small Business Programs, NASA nodis3.gsfc.nasa.gov/ Headquarters, is responsible for the ac- displayDir.cfm?t=NPD&c=5000&s=2). tivities described in NASA Policy Di- rective 1000.3, The NASA Organization. [78 FR 77353, Dec. 23, 2013] The Associate Administrator is also responsible for representing NASA before Subpart 5—Delegations and other Government agencies on matters Designations primarily affecting small businesses. (b) NASA Headquarters and NASA Cen- AUTHORITY: 51 U.S.C. 20113. ters. Center Directors (including the Executive Director for the NASA § 1204.500 Scope of subpart. Shared Services Center and the Direc- This subpart establishes various dele- tor for the NASA Management Office, gations of authority to, and designa- but excluding the Director for the Jet tions of, National Aeronautics and Propulsion Laboratory) along with the Space Administration officials and Associate Administrator for the Office other Government officials acting on of Small Business Programs shall behalf of the agency to carry out pre- nominate a qualified individual in scribed functions of the National Aero- their contracting office as a small busi- nautics and Space Administration. ness specialist to provide a central point of contact to which small busi- [30 FR 3378, Mar. 13, 1965] ness concerns may direct inquiries concerning small business matters and § 1204.501 Delegation of authority—to take actions in real estate and re- participation in NASA acquisitions. lated matters. When a Center Director determines that the volume of acquisitions or the (a) Delegation of authority. The Assist- functions relating to acquisitions at ant Administrator for Strategic Infra- the Center do not warrant a full-time structure and the Director, Integrated small business specialist, these duties Asset Management Division, are dele- may be assigned to procurement per- gated authority, in accordance with ap- sonnel on a part-time basis, with the plicable laws and regulations, and sub- concurrence of the Associate Adminis- ject to conditions imposed by imme- trator for the Office of Small Business diate superiors, to: Programs. NASA Centers shall estab- (1) Prescribe agency real estate poli- lish and maintain liaison with the cies, procedures, and regulations; Small Business Administration (SBA) (2) Enter into and take other actions Procurement Center Representative including, but not limited to, the fol- (PCR) or the appropriate SBA Regional lowing; Office in matters relating to NASA (i) Acquire (by purchase, lease, con- Center procurement activities. Small demnation, or otherwise) fee and lesser Business Specialists shall perform the interests in real property and, in the duties delineated in NASA FAR Sup- case of acquisition by condemnation, plement 1819.201(e)(ii). The Associate to sign declarations of taking. Administrator for Small Business Pro- (ii) Use, with their consent, the fa- grams shall assign a Small Business cilities of Federal and other agencies Technical Advisor to each contracting with or without reimbursement. activity within the Agency to which (iii) Determine entitlement to and the SBA has assigned a PCR, pursuant quantum of, financial compensation to FAR 19.201(d)(8). under, and otherwise exercise the authority contained in the Uniform Relo- [78 FR 77353, Dec. 23, 2013] cation Assistance and Real Property Acquisition Policies Act of 1970, as § 1204.403 General policy. amended (42 U.S.C. 4601), and regula- NASA’s general policy for small busi- tions in implementation thereof. ness programs is described in 48 CFR (iv) Grant easements, leaseholds, li- part 1819, Small Business Programs; 48 censes, permits, or other interests

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(wherever located) controlled by sions as the head of the agency deems NASA. necessary to protect the interests of (v) Grant the use of NASA-controlled the United States. real property and approve the acquisi- (b) Delegation of authority. The Assist- tion and use of nongovernment owned ant Administrator for Strategic Infra- real property for any NASA-related, structure and the Director, Integrated nonappropriated fund activity purpose Asset Management Division, are dele- with the concurrence of the NASA gated authority to take actions in con- Comptroller. nection with the granting of ease- (vi) Sell and otherwise dispose of real ments. property in accordance with the provi- (c) Definitions. The following defini- sions of the Federal Property and Ad- tions will apply: ministrative Services Act of 1949, as (1) State means the States of the amended (40 U.S.C. 471, et seq). Union, the District of Columbia, the (vii) Exercise control over the acqui- Commonwealth of Puerto Rico, and the sition, utilization, and disposal of mov- possessions of the United States. able/relocatable structures including (2) Person includes any corporation, prefabricated buildings, commercial partnership, firm, association, trust, packaged accommodations, trailers, estate, or other entity. and other like items used as facility (d) Determination. It is hereby deter- substitutes. mined that grants of easements made (viii) Request other government in accordance with the provisions of agencies to act as real estate agent for this section will not be adverse to the NASA. interests of the United States. (ix) Authorize other NASA officials (e) Redelegation. (1) NASA Center Di- to take specific implementing action rectors with respect to real property with regard to any real property trans- under their supervision and manage- action included in the scope of author- ment may, subject to the restrictions ity delegated in paragraph (a)(2) of this in paragraph (f) of this section, exer- section. cise the authority of the National Aer- (b) Redelegation. (1) The authority onautics and Space Act of 1958, as delegated in paragraph (a)(1) of this amended, and 40 U.S.C. 319 to 319C to section may not be redelegated. authorize or grant easements in, over, (2) The authority delegated in para- or upon real property of the United graph (a)(2) of this section may be re- States controlled by NASA as will not delegated with power of further redele- be adverse to the interests of the gation. United States. (c) Reporting. The officials to whom authority is delegated in this section (2) NASA Center Directors may re- shall ensure that feedback is provided delegate this authority to only two to keep the Administrator fully and senior management officials of the ap- currently informed of significant ac- propriate Center. tions, problems, or other matters of (f) Restrictions. Except as otherwise substance related to the exercise of the specifically provided, no such easement authority delegated hereunder. shall be authorized or granted under the authority stated in paragraph (e) of [51 FR 26862, July 28, 1986, as amended at 56 this section unless: FR 57592, Nov. 13, 1991; 79 FR 11319, Feb. 28, (1) The appropriate Center Director 2014] determines: § 1204.502 [Reserved] (i) That the interest in real property to be conveyed is not required for a § 1204.503 Delegation of authority to NASA program. grant easements. (ii) That the grantee’s exercise of (a) Scope. 40 U.S.C. 319 to 319C author- rights under the easement will not izes executive agencies to grant, under interfere with NASA operations. certain conditions, the easements as (2) Monetary or other benefit, includ- the head of the agency determines will ing any interest in real property, is re- not be adverse to the interests of the ceived by the government as consider- United States and subject to the provi- ation for the granting of the easement.

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(3) The instrument granting the ease- NASA, grants of easements in real ment provides: property, as authorized in this section, (i) For the termination of the ease- provided that the conditions set forth ment, in whole or in part, and without in paragraphs (f) and (g) of this section cost to the government, if there has are complied with. been: (i) Distribution of documents. One copy (A) A failure to comply with any of each document granting an ease- term or condition of the grant; ment interest under this authority, in- (B) A nonuse of the easement for a cluding instruments executed by the consecutive 2-year period for the pur- Corps of Engineers, will be forwarded pose for which granted; or for filing in the Central Depository for (C) An abandonment of the easement; Real Property Documents to: National or Aeronautics and Space Administration, (D) A determination by the Assistant Office of Strategic Infrastructure, Inte- Administrator for Strategic Infrastruc- grated Asset Management Division, ture, the Director, Integrated Asset Management Division, or the appro- Washington, DC 20546. priate Center Director that the inter- [51 FR 26860, July 28, 1986, as amended at 56 ests of the national space program, the FR 57592, Nov. 13, 1991; 79 FR 11319, Feb. 28, national defense, or the public welfare 2014] require the termination of the easement; and a 30-day notice, in writing, § 1204.504 Delegation of authority to to the grantee that the determination grant leaseholds, permits, and li- has been made. censes in real property. (ii) That written notice of the termi- (a) Delegation of authority. The Na- nation shall be given to the grantee, or tional Aeronautics and Space Act of its successors or assigns, by the Assist- 1958, as amended, authorizes NASA to ant Administrator for Strategic Infra- grant leaseholds, permits, and licenses structure , the Director, Integrated in real property. This authority is dele- Asset Management Division, or the ap- gated to the Assistant Administrator propriate Center Director, and that for Strategic Infrastructure and the Di- termination shall be effective as of the rector, Facilities Engineering and Real date of the notice. Property Division. (iii) For any other reservations, ex- (b) Definition. Real Property means ceptions, limitations, benefits, bur- 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 Center Director determines that a with the provisions of this section will waiver from any of the restrictions in paragraph (f) of this section is appro- not be adverse to the interests of the priate, authority for the waiver may be United States. requested from the Assistant Adminis- (d) Redelegation. (1) Center Directors trator for Strategic Infrastructure or with respect to real property under the Director, Integrated Asset Manage- their supervision and management ment Division. may, subject to the restrictions in (h) Services of the Corps of Engineers. paragraph (e) of this section, grant a In exercising the authority herein leasehold, permit, or license to any granted, the Center Directors, under person or organization, including other the applicable provisions of any coop- Government agencies, a State, or polit- erative agreement between NASA and ical subdivision or agency thereof. This the Corps of Engineers (in effect at authority may not be exercised with that time), may: respect to real property which is pro- (1) Utilize the services of the Corps of posed for use by a NASA exchange and Engineers, U.S. Army. subject to the provisions of NASA Pol- (2) Delegate authority to the Corps of icy Directive 9050.6, NASA Exchange Engineers to execute, on behalf of and Morale Support Activities.

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(2) Center Directors may redelegate ture or the Director, Integrated Asset this authority to only two senior man- Management Division. agement officials of the NASA Center (g) Services of the Corps of Engineers. concerned. In exercising the authority herein (e) Restrictions. Except as otherwise granted, NASA Center Directors, pur- specifically provided, no leasehold, per- suant to the applicable provisions of mit, or license shall be granted under any cooperative agreement between the authority stated in paragraph (d) of NASA and the Corps of Engineers (in this section unless: effect at the time), may: (1) The Director of the Center Direc- (1) Utilize the services of the Corps of tor concerned determines: Engineers, U.S. Army. (i) That the interest to be granted is (2) Delegate authority to the Corps of not required for a NASA program. Engineers to execute, on behalf of (ii) That the grantee’s exercise of NASA, any grants of interests in real rights granted will not interfere with property as authorized in this section NASA operations. provided that the conditions set forth (2) Fair value in money is received by in paragraphs (e) and (f) of this section NASA on behalf of the Government as are complied with. consideration. (h) Distribution of Documents. One (3) The instrument provides: copy of each document granting an in- (i) For a term not to exceed 5 years. terest in real property, including in- (ii) For the termination thereof, in struments executed by the Corps of En- whole or in part, and without cost to gineers, will be forwarded for filing in the Government if there has been: the Central Depository for Real Prop- erty Documents to: National Aero- (A) A failure to comply with any nautics and Space Administration, Of- term or condition of the grant; or fice of Strategic Infrastructure, Wash- (B) A determination by the Assistant ington, DC 20546. Administrator for Strategic Infrastruc- ture, the Director, Integrated Asset [51 FR 27528, Aug. 1, 1986, as amended at 56 Management Division, or the Center FR 57592, Nov. 13, 1991; 79 FR 11319, Feb. 28, Director concerned that the interests 2014] of the national space program, the national defense, or the public welfare re- § 1204.505 Delegation of authority to execute certificates of full faith and quire the termination of the interest credit. granted; and a 30-day notice, in writing, to the grantee that such deter- (a) Scope. This section designates mination has been made. NASA officials authorized to certify (iii) That written notice of termi- NASA documents to be submitted in nation shall be given to the grantee, or evidence in Federal Courts. its successors or assigns, by the Assist- (b) Delegation of authority. The fol- ant Administrator for Strategic Infra- lowing NASA Headquarters officials structure, the Director, Integrated are delegated authority to execute cer- Asset Management Division, or the tificates of full faith and credit certi- Center Director concerned, and that fying the signatures and authority of termination shall be effective as of the employees of the National Aeronautics date specified by such notice. and Space Administration, whenever (iv) For any other reservations, ex- such certification is required to au- ceptions, limitations, benefits, bur- thenticate copies of official records for dens, terms, or conditions necessary to possible admission in evidence in judi- protect the interests of the United cial proceedings pursuant to 28 U.S.C. States. 1733 or any other statute: (f) Waivers. If, in connection with a (1) General Counsel; proposed grant, the Center Director de- (2) Deputy General Counsel; termines that a waiver from any of the (3) [Reserved] restrictions set forth in paragraph (e) (4) Assistant General Counsels. of this section is appropriate, a request [29 FR 6319, May 14, 1964, as amended at 39 may be submitted to the Associate Ad- FR 25229, July 9, 1974; 43 FR 34122, Aug. 3, ministrator for Strategic Infrastruc- 1978; 79 FR 11320, Feb. 28, 2014]

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§§ 1204.506–1204.507 [Reserved] § 1204.509 Delegation of authority to take action regarding ‘‘liquidated § 1204.508 Delegation of authority of damage’’ assessments under the certain civil rights functions to De- Contract Work Hours and Safety partment of Education. Standards Act, and associated labor statutes. It is the National Aeronautics and Space Administration’s (NASA) policy (a) Delegation of authority. The Assist- to comply with the Civil Rights Act of ant Administrator, Office of Strategic 1964 (Pub. L. 88–352) that prohibits dis- Infrastructure, is hereby delegated the crimination in a host of areas, includ- authority to act for the Administrator ing employment and Federally-assisted in all matters where the ‘‘Agency programs and activities. To implement Head’’ is authorized to act under 29 the provisions of this Act, NASA pro- CFR part 5, labor standards provisions mulgated the following internal poli- applicable to contracts covering feder- cies and requirements, and entered into ally financed and assisted construction and labor standards provisions applica- a memorandum of understanding ble to nonconstruction contracts as (MOU) with the Department of Edu- they are subject to the Contract Work cation to ensure compliance: Hours and Safety Standards Act, in re- (a) NASA Policy Directive (NPD) gards to the assessment of liquidated 2081.1, Nondiscrimination in Federally damages. Assisted and Conducted Programs of (b) Redelegation. None authorized ex- NASA, describes the Agency’s policy to cept by virtue of succession. ensure nondiscrimination in Federally- (c) Reporting. The official to whom assisted and conducted programs of authority is delegated in this regula- NASA, nondiscrimination in Federally- tion will assure that feedback is pro- conducted education and training provided to keep the Administrator in- grams, and access for individuals with formed of significant actions, prob- disabilities to Federal electronic and lems, or other matters of substance re- information technology. NPD 2081.1 is lated to the exercise of the authority accessible at http://nodis3.gsfc.nasa.gov/; delegated hereunder. (b) NASA Procedural Requirements (NPR) 2081.1, Nondiscrimination in [52 FR 35538, Sept. 22, 1987, as amended at 79 FR 11320, Feb. 28, 2014] Federally Assisted and Conducted Pro- grams, describes the requirements for processing complaints of discrimina- Subparts 6–9 [Reserved] tion, conducting civil rights compliance reviews, and internal functional Subpart 10—Inspection of Persons equal opportunity reviews. NPR 2081.1 and Personal Effects at NASA is accessible at http:// Installations or on NASA Prop- nodis3.gsfc.nasa.gov/; and erty; Trespass or Unauthorized (c) Memorandum of Understanding Introduction of Weapons or between NASA and the Department of Dangerous Materials Education delegates both the agencies as responsible for specific civil rights AUTHORITY: The National and Commercial compliance duties with respect to ele- Space Program (51 U.S.C.). Sections 20132 mentary and secondary schools, and in- and 20133 et seq. stitutions of higher education. The SOURCE: 65 FR 47663, Aug. 3, 2000, unless MOU can be accessed at http:// otherwise noted. odeo.hq.nasa.gov/documents/DOEd- NASAlMOU.pdf. § 1204.1000 Scope of subpart. [78 FR 76058, Dec. 16, 2013] This subpart establishes NASA policy and prescribes baseline, procedures concerning the inspection of persons and property in their possession while entering, or on, or exiting NASA real property or facilities (including NASA

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Headquarters, NASA Centers, or Com- YOUR CONSENT TO INSPECTION OF ponent Facilities). In addition, it pro- PERSON AND PROPERTY. scribes unauthorized entry or the un- (2) UNAUTHORIZED INTRODUC- authorized introduction of weapons or TION OF WEAPONS OR DANGEROUS other dangerous instruments or mate- MATERIALS IS PROHIBITED UN- rials at any NASA facility. LESS SPECIFICALLY AUTHORIZED BY NASA. YOU MAY NOT CARRY, [65 FR 47663, Aug. 3, 2000, as amended at 78 FR 5125, Jan. 24, 2013] TRANSPORT, INTRODUCE, STORE, OR USE FIREARMS OR OTHER DAN- § 1204.1001 Policy. GEROUS WEAPONS, EXPLOSIVES OR OTHER INCENDIARY DEVICES, OR (a) In the interest of national secu- OTHER DANGEROUS INSTRUMENT rity, NASA will provide appropriate OR MATERIAL LIKELY TO PRODUCE and adequate protection or security for SUBSTANTIAL INJURY OR DAMAGE personnel, property, facilities (includ- TO PERSONS OR PROPERTY UN- ing NASA Headquarters, NASA Cen- LESS AUTHORIZED BY NASA. ters, and Component Facilities), and (b) Only NASA security personnel or information in its possession or cus- members of the facility’s uniformed se- tody. In furtherance of this policy, curity force will conduct inspections NASA reserves the right to conduct an pursuant to this subpart. Such inspec- inspection of any person, including any tions will be conducted in accordance property in the person’s possession or with guidelines established by the As- control, as a condition of admission to, sistant Administrator for Protective continued presence on, or exiting any Services , NASA Headquarters. NASA facility. (c) If an individual does not consent (b) This policy is intended to comply to an inspection, it will not be con- with the heightened security measures ducted, but the individual will be de- for facilities owned or occupied by Fed- nied entry to, or be escorted off the eral agencies (in this case NASA), to facililty. mitigate threats to such facilities and (d) If, during an inspection, an indi- to better protect the persons and prop- vidual is found to be in unauthorized erty thereon. possession of items believed to rep- [65 FR 47663, Aug. 3, 2000, as amended at 78 resent a threat to the safety or secu- FR 5126, Jan. 24, 2013] rity of the facility, the individual will be denied entry to or be escorted off § 1204.1002 Responsibility. the facility, and appropriate law en- The NASA Center Directors and the forcement authorities will be notified Executive Director for Headquarters immediately. Operations are responsible for imple- (e) If, during an inspection conducted menting the provisions of this subpart. pursuant to this subpart, an individual In implementing this subpart, these of- is in possession of U.S. Government ficials will coordinate their action with property without proper authorization, appropriate officials of other affected that person will be required to relin- agencies. quish the property to the security representative pending proper authoriza- [65 FR 47663, Aug. 3, 2000, as amended at 78 tion for the possession of the property FR 5126, Jan. 24, 2013] or its removal from the facility. The individual relinquishing the property § 1204.1003 Procedures. will be provided with a receipt for the (a) All entrances to NASA real prop- property. erty or facilities (including NASA Headquarters, NASA Centers, or Com- [65 FR 47663, Aug. 3, 2000, as amended at 78 ponent Facilities) will be conspicu- FR 5126, Jan. 24, 2013] ously posted with the following no- § 1204.1004 Trespass. tices: (1) CONSENT TO INSPECTION: Unauthorized entry upon any NASA YOUR ENTRY INTO, CONTINUED real property or facility is prohibited. PRESENCE ON, OR EXIT FROM THIS [65 FR 47663, Aug. 3, 2000, as amended at 78 FACILITY IS CONTINGENT UPON FR 5126, Jan. 24, 2013]

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§ 1204.1005 Unauthorized introduction Subpart 11—Enforcing Traffic Laws of firearms or weapons, explosives, at NASA Centers and Compo- or other dangerous materials. nent Facilities (a) Refer to the notice in § 1204.1003, paragraph (a)(2), for a description of AUTHORITY: The National and Commercial the consequences for unauthorized in- Space Program, 51 U.S.C. 20132 and 20133; 5 troduction of firearms or weapons, ex- U.S.C. 301, and 18 U.S.C. 799. plosives, or other dangerous materials. SOURCE: 79 FR 54903, Sept. 15, 2014, unless (b)§ 1204.1003, paragraph (a)(2) shall otherwise noted. not apply to: (1) The lawful performance of official § 1204.1100 Scope of subpart. duties by an officer, agent, or employee This subpart establishes policies pur- of the United States, a State, or a po- suant to the requirements of National litical subdivision thereof, or NASA and Commercial Space Programs (51 contractor, who is authorized to carry U.S.C.) authorizing the NASA Adminis- firearms or other material covered by trator to establish such security requirements, restrictions, and safe- paragraph (a) of this section. guards as he deems necessary in the in- (2) The lawful carrying of firearms or terest of national security, under 5 other dangerous weapons at or on a U.S.C. 301, and 18 U.S.C. 799, providing NASA facility after written prior ap- for the imposition of fines and impris- proval has been obtained from the fa- onment for violating NASA regulations cility Security Office in connection for the protection and security of with sanctioned hunting, range prac- NASA assets or assets that are in tice, or other lawful purpose. NASA’s custody. The provisions of this subpart apply to all NASA installa- [65 FR 47663, Aug. 3, 2000, as amended at 78 FR 5126, Jan. 24, 2013] tions, including NASA Headquarters, NASA Centers, and component facili- § 1204.1006 Violations. ties. NASA installations refers to all NASA-owned, controlled, or leased Anyone violating these regulations property, with exclusive or concurrent may be cited for violating Title 18 of Federal jurisdiction, including non- the United States Code (U.S.C.) Section contiguous or unfenced areas and in- 799, which states that whoever willfully cluding areas otherwise open to the shall violate, attempt to violate, or public at large. These provisions are conspire to violate any regulation or also applicable to all persons who are order promulgated by the Adminis- in or on a NASA installation over trator of the National Aeronautics and which the United States exercises ex- Space Administration for the protec- clusive or concurrent legislative juris- tion or security of any laboratory, sta- diction. tion, base or other facility, or part [80 FR 70152, Nov .13, 2015] thereof, or any aircraft, missile, spacecraft, or similar vehicle, or part there- § 1204.1101 Policy. of, or other property or equipment in (a) It is NASA policy that an effec- the custody of the Administration tive, standardized, and comprehensive [NASA], or any real or personal prop- traffic safety program be established erty or equipment in the custody of and maintained at all NASA Centers, any contractor under any contract and component facilities, as prescribed with the Administration or any sub- in NASA Procedural Requirement contractor of any such contractor, (NPR) 8715.C, NASA General Safety shall be fined under this title [Title 18], Program Requirements. A traffic safe- or imprisoned not more than one year, ty program is essential for the protec- or both. tion and security of NASA laboratories, stations, bases, or other facili- [65 FR 47663, Aug. 3, 2000, as amended at 78 ties of NASA’s aircraft, missiles, space- FR 5126, Jan. 24, 2013] craft, or similar vehicles or part thereof and of NASA’s real and personal property, including property in the

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custody of NASA contractors and sub- establish specific vehicular and pedes- contractors. trian traffic rules and regulations for (b) To ensure a safe and secure work- their installations; to specify max- place and to provide better for preser- imum punishments for violating such vation of life and property, all persons rules and regulations; and to issue cita- on or in a NASA installation or compo- tions, including District Court Viola- nent facility shall comply with the ve- tion Notices to persons who violate hicular and pedestrian traffic require- such rules and regulations. ments of the installation per this Sub- (b) All persons on a NASA Center or part. component facility are responsible for (c) Vehicular and pedestrian traffic. compliance with locally established ve- The following requirements apply to hicular and pedestrian traffic rules and the drivers or all vehicles on or in regulations. NASA-owned, controlled, or leased [79 FR 54903, Sept. 15, 2014, as amended at 80 property: FR 70152, Nov. 13, 2015] (1) A driver shall be in possession of a current and valid state- or territory- § 1204.1103 Procedures. issued driver’s license and vehicle reg- The Center Directors and the Execu- istration, and the vehicle shall display tive Director for Headquarters Oper- all current and valid tags and licenses ations shall issue local policies and required by the jurisdiction in which it procedural requirements, which will is registered. implement this regulation for their re- (2) A driver who has had his or her spective NASA Centers and component privilege or license to drive suspended facilities. or revoked by any state or territory shall not drive any vehicle in or on [80 FR 70152, Nov. 13, 2015] such property during such period of suspension or revocation. § 1204.1104 Violations. (3) Drivers shall drive in a careful As authorized by and consistent with and safe manner at all times and shall 18 U.S.C. 799, local policies and proce- comply with the signals and directions dural requirements issued under sec- of security personnel and other author- tion 1204.1103 may provide for punish- ized individuals; all posted traffic ments for offenses, which shall be clas- signs, including speed limits; and all sified in accordance with 18 U.S.C. rules implemented under section 3559(a)(6)–(9). A person found in viola- 1204.1102. tion, in or on a NASA installation, of (4) Drivers shall not block entrances, any vehicular or pedestrian traffic law, driveways, walks, loading platforms, or or local installation vehicular or pedes- fire hydrants. trian traffic rule or regulation made (5) Drivers shall not park without au- applicable to the installation under the thority, park in unauthorized locations provisions of this subpart, is subject to or in locations reserved for other per- punishment as provided for by the ap- sons, park continuously in excess of 18 plicable local policies and procedural hours without permission, or park in requirements that a Center Director or any manner contrary to the direction the Executive Director for Head- of posted signs. quarters Operations has issued under (d) A copy of this subpart shall be section 1204.1102 and in accordance posted in an appropriate place at each with section 1204.1103. NASA Center or component facility. [80 FR 70152, Nov. 13, 2015] [80 FR 70152, Nov. 13, 2015]

§ 1204.1102 Responsibilities. Subparts 12–13 [Reserved] (a) Consistent with this subpart and Subpart 14—Use of NASA Airfield applicable statutes, Center Directors of NASA installations and the Executive Facilities by Aircraft Not Oper- Director for Headquarters Operations, ated for the Benefit of the over which the United States has ex- Federal Government clusive or concurrent legislative jurisdiction, are delegated the authority to AUTHORITY: 42 U.S.C. 2473(c)(1).

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SOURCE: 56 FR 35812, July 29, 1991, unless other items pertaining to itinerant op- otherwise noted. erations is not considered official business. § 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 Field, California, and is located at company representative (or a facsimile 122°03′ west longitude and 37°25′ north of an insurance policy) evidencing that latitude. insurance is then in force with respect (4) Crows Landing Airport. The aero- to any aircraft not operated for the nautical facility which is a part of the benefit of the Federal Government, the Crows Landing Flight Facility (CLEF) user of which is requesting permission and is located at 121°06′ west longitude to use a NASA airfield facility (see and 37°25′ north latitude, 45 miles east § 1204.1404(b)). of the Ames Research Center. (b) Aircraft not Operated for the Benefit [56 FR 35812, July 29, 1991, as amended at 60 of the Federal Government. Aircraft FR 37567, July 21, 1995] which are not owned or leased by the United States Government or aircraft § 1204.1402 Policy. carrying crew members or passengers (a) NASA airfields are not normally who do not have official business re- available to the general public; hence, quiring the use of a NASA airfield fa- any use of airfield facilities by aircraft cility in the particular circumstance in not operated for the benefit of the Fed- question. eral Government shall be within the (c) Official Business. Business, in the sole discretion of the approving au- interest of the U.S. Government, which thorities. personnel aboard an aircraft must (b) Except in the event of a declared transact with U.S. Government per- in-flight emergency (see § 1204.1406) or sonnel or organizations at or near a as otherwise determined by an approv- NASA facility. The use of a NASA air- ing authority, aircraft not operated for field facility by transient aircraft to the benefit of the Federal Government petition for U.S. Government business are not permitted to land or otherwise or to obtain clearance, servicing, or use NASA airfield facilities.

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(c) Any use of a NASA airfield facil- § 1204.1403 Available airport facilities. ity by aircraft not operated for the The facilities available vary at each benefit of the Federal Government NASA Installation having an airfield. shall be free of charge and no consider- The airport facilities available are: ation (monetary or otherwise) shall be (a) Shuttle Landing Facility—(1) Run- exacted or received by NASA for such ways. Runway 15–33 is 15,000 feet long use. However, each user, as a condition and 300 feet wide with 1,000-foot over- of receiving permission to use such air- runs. The first 3,500 feet at each end of field facility, shall agree to become fa- the runway have been modified for miliar with the physical condition of smoothness. The center 8,000 feet of the the airfield; abide by the conditions runway is grooved for improved brak- placed upon such use; subject the air- ing under wet conditions. craft, the user, and those accom- (2) Parking Areas and Hangar Space. panying the user to any requirements No hangar space is available. Limited imposed by NASA in the interest of se- available concrete parking ramp space curity and safety while the aircraft or makes precoordination necessary. persons are on a NASA facility; use the (3) Control Tower. The control tower facilities entirely at the user’s own is normally in operation from 0800 to risk; hold the Federal Government 1600 local time, Monday through Fri- harmless with respect to any and all li- day. Additional hours of operation are abilities which may arise as a result of filed with the St. Petersburg Flight the use of the facilities; and carry in- Service Station (FSS). The tower may surance covering liability to others in be contacted on 128.55 MHz or 284.0 amounts not less than those listed in MHz. FAA regulations pertaining to the Hold Harmless Agreement. the operation of aircraft at airports (d) Permission to use a NASA airfield with an operating control tower (§ 91.87 facility will be granted only in accord- of this title) will apply. When the ance with the limitations and proce- tower is not in operation, the FAA reg- dures established by an approving au- ulations pertaining to the operation of thority and then only when such use aircraft at airports without an oper- will not compete with another airport ating control tower (§ 91.89 of this title) in the vicinity which imposes landing will apply. fees or other user charges. (4) Navigation aids. A Microwave Scanning Beam Landing System (e) In no event, except for an in-flight (MSBLS) and a Tactical Airborne Navi- emergency (see § 1204.1406), will permis- gation System (TACAN) are installed sion to use NASA airfield facilities be at the Facility. There are two pub- granted to an aircraft arriving directly lished TACAN approaches and an ap- from, or destined for, any location out- proved and published nondirectional side the continental United States un- beacon (NDB) approach available from less previously arranged and approved Titusville. Runway approach lighting by the authorized approving official. (similar to Category II ALSF–2) and (f) Permission to use NASA airfields edge lights are available by prior ar- may be granted only to those users rangement. having the legal capacity to contract (5) Hazards. There are towers and and whose aircraft are in full compli- buildings south, southeast, and north- ance with applicable Federal Aviation east of the facility as high as 550 feet Administration (FAA) or other cog- that could pose hazards to air naviga- nizant regulatory agency require- tion. All are marked with obstruction ments. lights. (g) Permission to use NASA airfields, (6) Emergency Equipment. Aircraft except in connection with a declared Rescue and Fire-fighting (ARFF) in-flight emergency, will consist only equipment will be provided in accord- of the right to land, park an aircraft, ance with 14 CFR part 139. and subsequently take off. NASA is not (b) Wallops Airport—(1) Runways. equipped to provide any other services There are three hard surfaced runways such as maintenance or fuel and such in satisfactory condition. The runways services will not be provided except fol- and taxiways are concrete and/or as- lowing an in-flight emergency. phalt. Runway 10–28 is 8,000 feet long,

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200 feet wide with maximum wheel load (6) Emergency Equipment. Aircraft res- of 57,500 pounds; runway 04–22 is 8,750 cue and fire-fighting equipment is nor- feet long, 150 feet wide with maximum mally available on a continuous basis. wheel load of 57,500 pounds; and runway (c) Moffett Federal Airfield—(1) Run- 17–35 is 4,820 feet long, 150 feet wide ways. There are two parallel runways, with maximum wheel load of 14,700 32–14, both in satisfactory to good con- pounds. dition. The runways and taxiways are (2) Parking Areas and Hangar Space. concrete and/or asphalt. Runway 32R– No hangar space is available. However, 14L is 9,200 feet long, 200 feet wide; 32L– limited concrete parking ramp space is 14R is 8,125 feet long, 200 feet wide with available as directed by the control a 600 foot displaced threshold on 32L. tower. (2) Parking areas and hangar space. (3) Control Tower. This control tower Hangar space is not available; concrete is normally in operation from 0630 to parking ramp space is available as di- 1830 local time, Monday through Fri- rected by the control tower. day, excluding Federal holidays. The (3) Control tower. The control tower tower may be contacted on 126.5 MHz normally operates from 0700 to 2300 or 394.3 MHz. When the tower is in op- local time, 7 days a week, excluding eration, FAA regulations pertaining to Federal holidays. The tower fre- the operation of aircraft at airports quencies are 126.2 Mhz, 353.2 Mhz, and with an operating tower (§ 91.87 of this 340.2 Mhz. When the tower is operating, title) will apply. When the tower is not FAA regulations pertaining to the operation 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 UNICOM before landings, takeoffs, and ILS/DME approach to runway 32R and taxiing. Civil aircraft operations are an LOC/DME approach to runway 14L normally confined to daylight hours. are published in DOD Flight Informa- (4) Navigation Aids. All runways, 04– tion Publication (Terminal), Low Alti- 22, 10–28, and 17–35 are lighted. Both ac- tude United States, Volume 2. ILS fre- tive taxiways, parallels 04–22 and 10–28, quency is 110.35 Mhz, identifiers are are lighted. Airfield lighting is avail- Runway 32R, I-NUQ; Runway 14L, I- able upon request. All runway ap- MNQ; Tactical Airborne Navigation proaches are equipped with operating (TACAN) (DME) is Channel 123, identi- precision approach path indicator fier is NUQ. Precision Approach Path (PAPI) systems and are available on re- Indicators (PAPI) are to be installed by quest. All airfield obstructions are July 1, 1995, to provide visual reference equipped with red obstruction lights. for the ILS and LOC approaches to run- (5) Hazards. Numerous towers in air- ways 32R and 14L. A TACAN with ap- port vicinity up to 241 feet above proved and published approaches is ground level. Existing tree obstruc- operational at the facility (identifica- tions are located 1500 feet west of run- tion is NUQ, Channel 123). A Radio Con- way 10 threshold. High shore bird popu- trolled Lighting System (RCLS) is lation exists in the Wallops area. Deer operational for the runway lights on occasionally venture across runways. 32R–14L; 3 clicks within 5 seconds, low Light-controlled traffic crossovers are intensity; 5 clicks, medium intensity; 7 in existence. Potential radio frequency clicks, high intensity (tower frequency, (RF) hazards exist from tracking ra- 126.2 Mhz). Lights automatically extin- dars. Hazards involving aircraft and guish after 15 minutes. rocket launch operations exist when (5) Hazards. Large blimp hangars (ap- Restricted Area R–6604 is active. proximately 200 feet high) bracket the

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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. aircraft at airports with an operating (b) Such requests will: tower (§ 91.87 of this title) will apply. (1) Fully identify the prospective When the tower is not operating, all user and aircraft. aircraft operations will be conducted (2) State the purpose of the proposed with Crows Landing UNICOM on the use and the reason why the use of the primary tower frequency. FAA regula- NASA airfield is proposed rather than tions pertaining to the operation of a commercial airport. aircraft at airports without an oper- (3) Indicate the expected annual use, ating control tower (§ 91.89 of this title) to include number and approximate will apply. date(s) and time(s) of such proposed (4) Navigation aids. Crows Landing use. Airport is a VFR facility. No certified (4) State that the prospective user is NAVAIDS or published approach proce- prepared to fully comply with the dures exist. terms of this subpart 14 and the use (5) Hazards. Crows Landing Airport is permit which may be issued. located in an agricultural area. No ob- (c) Upon receipt of the written re- structions exist within or immediately quest for permission to use the airport, adjacent to the airspace. The most per- the NASA official designated by each sistent potential hazard is that of agri- facility will request additional infor- cultural aircraft (crop dusters) without mation, if necessary, and forward both radios which transit the airspace. this regulation and the required Hold (6) Emergency equipment. Aircraft Res- Harmless Agreement for execution by cue and Fire Fighting (ARFF) equip- the requestor or forward, where appro- ment and services are provided by the priate, a denial of the request. California Air National Guard only (d) The signed original of the Hold during published hours of operation. Harmless Agreement shall be returned

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to the designated NASA official, and a § 1204.1406 Procedures in the event of copy retained in the aircraft at all a declared in-flight emergency. times. Such copy shall be exhibited (a) Any aircraft involved in a de- upon proper demand by any designated clared in-flight emergency that endan- NASA official. gers the safety of its passengers and (e) At the same time that the pro- aircraft may land at a NASA airfield. spective user returns the executed In such situations, the requirements original of the Hold Harmless Agree- for this subpart for advance authoriza- ment, the user shall forward to the des- tions, do not apply. ignated NASA official the required Cer- (b) NASA personnel may use any tificate of Insurance and waiver of method or means to clear the aircraft rights to subrogation. Such certificate or wreckage from the runway after a shall evidence that during any period landing following an in-flight emer- for which a permit to use is being re- gency. Care will be taken to preclude quested, the prospective user has in unnecessary damage in so doing. How- force a policy of insurance covering li- ever, the runway will be cleared as ability in amounts not less than those soon as possible for appropriate use. listed in the Hold Harmless Agreement. (c) The emergency user will be billed (f) When the documents (in form and for all costs to the Government that substance) required by paragraphs b result from the emergency landing. No through e of this section have been re- landing fee will be charged, but the ceived, they will be forwarded with a charges will include the labor, mate- proposed use permit to the approving rials, parts, use of equipment, and tools required for any service rendered under authority for action. these circumstances. (g) The designated NASA official will (d) In addition to any report required forward the executed use permit or no- by the Federal Aviation Administra- tification of denial thereof to the pro- tion, a complete report covering the spective user after the approving au- landing and the emergency will be filed thority has acted. with the airfield manager by the pilot [56 FR 35812, July 29, 1991, as amended at 60 or, if the pilot is not available, any FR 37568, July 21, 1995] other crew member or passenger. (e) Before an aircraft which has made § 1204.1405 Approving authority. an emergency landing is permitted to The authority to establish limita- take off (if the aircraft can and is to be tions and procedures for use of a NASA flown out) the owner or operator there- airfield, as well as the authority to ap- of shall make arrangements acceptable prove or disapprove the use of the to the approving authority to pay any charges assessed for services rendered NASA airfield facilities subject to the and execute a Hold Harmless Agree- terms and conditions of this subpart ment. The owner or operator may also and any supplemental rules or proce- be required to furnish a certificate of dures established for the facility is insurance, as provided in § 1204.1404, vested in: covering such takeoff. (a) Shuttle Landing Facility. Director of Center Support Operations, Kennedy § 1204.1407 Procedure in the event of Space Center, NASA. an unauthorized use. (b) Wallops Airport. Director of Sub- Any aircraft not operated for benefit orbital Projects and Operations, God- of the Federal Government which lands dard Space Flight Center, Wallops at a NASA airfield facility without ob- Flight Facility, NASA. taining prior permission from the ap- (c) Moffett Federal Airfield and Crows proving authority, except in a bona Landing Flight Facility. Chief, Airfield fide emergency, is in violation of this Management Office, Ames Research subpart. Such aircraft will experience Center, NASA. delays while authorization for departure is obtained pursuant to this sub- [56 FR 35812, July 29, 1991, as amended at 60 part and may, contrary to the other FR 37568, July 21, 1995] provisions of this subpart, be required,

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at the discretion of the approving au- and Space Administration or an offi- thority, to pay a user fee of not less cial or employee of the Agency acting than $100. Before the aircraft is per- for the Administrator under a delega- mitted to depart, the approving au- tion of authority. thority will require full compliance Agency means the U.S. National Aer- with this subpart 1204.14, including the onautics and Space Administration. filing of a complete report explaining Order means Executive Order 12372, the reasons for the unauthorized land- issued July 14, 1982, and amended April ing. Violators could also be subject to 8, 1983, and titled ‘‘Intergovernmental legal liability for unauthorized use. Review of Federal Programs.’’ When it appears that the violation of State means any of the 50 states, the this subpart was deliberate or is a re- District of Columbia, the Common- peated violation, the matter will be re- wealth of Puerto Rico, the Common- ferred to the Aircraft Management Of- wealth of the Northern Mariana Is- fice, NASA Headquarters, which will lands, Guam, American Samoa, the then grant any departure authoriza- U.S. Virgin Islands, or the Trust Terri- tion. tory of the Pacific Islands. § 1204.1503 Programs and activities Subpart 15—Intergovernmental subject to these regulations. Review of National Aero- The Administrator publishes in the nautics and Space Adminis- FEDERAL REGISTER a description of the tration Programs and Activi- Agency’s programs and activities that ties are subject to these regulations. § 1204.1504 [Reserved] AUTHORITY: E.O. 12372, July 14, 1982, 47 FR 30959, as amended April 8, 1983, 48 FR 15887; § 1204.1505 Federal interagency co- sec. 401 of the Intergovernmental Coopera- ordination. tion Act of 1968, as amended (31 U.S.C. 6506). The Administrator to the extent SOURCE: 48 FR 29340, June 24, 1983, unless otherwise noted. practicable, consults with and seeks advice from all other substantially af- § 1204.1501 Purpose. fected federal departments and agencies in an effort to assure full coordina- (a) The regulations in this part im- tion between such agencies and the plement Executive Order 12372, ‘‘Inter- Agency regarding programs and activi- governmental Review of Federal Pro- ties covered under these regulations. grams,’’ issued July 14, 1982, and amended on April 8, 1983. These regula- § 1204.1506 Procedures for selecting tions also implement applicable provi- programs and activities under these sions of section 401 of the Intergovern- regulations. mental Cooperation Act of 1968, as (a) A state may select any program amended. or activity published in the FEDERAL (b) These regulations are intended to REGISTER in accordance with § 1204.1503 foster an intergovernmental partner- of this part for intergovernmental re- ship and a strengthened federalism by view under these regulations. Each relying on state processes and on state, state, before selecting programs and areawide, regional and local coordina- activities shall consult with local tion for review of proposed direct Fed- elected officials. eral development. (b) Each state that adopts a process (c) These regulations are intended to shall notify the Administrator of the aid the internal management of the Agency’s programs and activities se- Agency, and are not intended to create lected for that process. any right or benefit enforceable at law (c) A state may notify the Adminis- by a party against the agency or its of- trator of changes in its selections at ficers. any time. For each change, the state shall submit to the Administrator an § 1204.1502 Definitions. assurance that the state has consulted Administrator means the Adminis- with local elected officials regarding trator of the U.S. National Aeronautics the change. The Agency may establish

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deadlines by which states are required § 1204.1509 Receiving and responding to inform the Administrator of changes to comments. in their program selections. (a) The Administrator follows the (d) The Administrator uses a state’s procedures in § 1204.1510 if: process as soon as feasible, depending (1) A state office or official is des- on individual programs and activities, ignated to act as a single point of con- after the Administrator is notified of tact between a state process and all its selections. federal agencies; and (2) That office or official transmits a § 1204.1507 Communicating with State state process recommendation for a and local officials concerning the program selected under § 1204.1506. Agency’s programs and activities. (b)(1) The single point of contact is (a) For those programs and activities not obligated to transmit comments covered by a state process under from state, areawide, regional or local § 1204.1506 the Administrator, to the ex- officials and entities where there is no tent permitted by law: state process recommendation. (1) Uses the official state process to (2) If a state process recommendation determine views of state and local is transmitted by a single point of con- elected officials; and; tact, all comments from state, (2) Communicates with state and areawide, regional, and local officials local elected officials, through the offi- and entities that differ from it must cial state process, as early in a pro- also be transmitted. gram planning cycle as is reasonably (c) If a state has not established a feasible to explain specific plans and process, or is unable to submit a state process recommendation, state, actions. areawide, regional and local officals (b) The Administrator provides no- and entities may submit comments to tice to directly affected state, the Agency. areawide, regional, and local entities (d) If a program or activity is not se- in a state of proposed direct Federal lected for a state process, state, development if: areawide, regional and local officials (1) The state has not adopted a proc- and entities may submit comments to ess under the Order; or the Agency. In addition, if a state proc- (2) The development involves a pro- ess recommendation for a nonselected gram or activity not selected for the program or activity is transmitted to state process. the Agency by the single point of con- This notice may be made by publica- tact, the Administrator follows the tion in a periodical of general circula- procedures of § 1204.1510 of this part. tion in the area likely to be affected or (e) The Administrator considers com- other appropriate means, which the ments which do not constitute a state Agency in its discretion deems appro- process recommendation submitted under these regulations and for which priate. the Administrator is not required to § 1204.1508 Time limitations for receiv- apply the procedures of § 1204.1510 of ing comments on proposed direct this part, when such comments are pro- Federal development. vided by a single point of contact, or directly to the Agency by a com- (a) Except in unusual circumstances, menting party. the Administrator gives state processes or state, areawide, regional and local § 1204.1510 Efforts to accommodate officials and entities at least 60 days intergovernmental concerns. from the date established by the Ad- (a) If a state provides a state process ministrator to comment on proposed recommendation to the Agency direct Federal development. through its single point of contact, the (b) This section also applies to com- Administrator either: ments in cases in which the review, co- (1) Accepts the recommendation; ordination, and communication with (2) Reaches a mutally agreeable solu- the Agency has been delegated. tion with the state process; or

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(3) Provides the single point of con- 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 paragraph (a)(3) of this section, the Admin- Subpart 16—Temporary Duty Trav- istrator informs the single point of el—Issuance of Motor Vehicle contact that: for Home-to-Work Transpor- (1) The Agency will not implement tation its decision for a least ten days after the single point of contact receives the explanation; or AUTHORITY: 31 U.S.C. 1344 note, 40 U.S.C. 486(c). (2) The Administrator has reviewed the decision and determined that, be- § 1204.1600 Issuance of motor vehicle cause of unusual circumstances, the for home-to-work. waiting period of at least ten days is not feasible. When a NASA employee on temporary duty travel is authorized to (c) For purposes of computing the travel by Government motor vehicle waiting period under paragraph (b)(1) and the official authorizing the travel of this section, a single point of con- determines that there will be a signifi- tact is presumed to have received writ- cant savings in time, a Government ten notification five days after the date motor vehicle may be issued at the of mailing of such notification. close of the preceding working day and § 1204.1511 Coordination in interstate taken to the employee’s residence prior situations. to the commencement of official travel. Similarly, when a NASA employee (a) The Administrator is responsible is scheduled to return from temporary for— duty travel after the close of working (1) Identifying proposed direct Fed- hours and the official authorizing the eral development that has an impact travel determines that there will be a on interstate areas; significant savings in time, the motor (2) Notifying appropriate officials vehicle may be taken to the employee’s and entities in states which have residence and returned the next regular adopted a process and which select the working day. Agency’s program or activity. (3) Making efforts to identify and no- [68 FR 60847, Oct. 24, 2003] tify the affected state, areawide, regional, and local officials and entities in those states that have not adopted a process under the Order or do not se- APPENDIX A TO PART 1204—ITEMS TO lect the Agency’s program or activity; COVER IN MEMORANDA OF AGREEMENT (4) Responding pursuant to § 1204.1510 The items to be covered in Memoranda of of this part if the Administrator re- Agreement between NASA Installations and ceives a recommendation from a des- state and areawide OMB Circular A–95 clear- ignated areawide agency transmitted inghouses for coordinating NASA and civil- by a single point of contact, in cases in ian planning: which the review, coordination, and 1. Clearinghouses will be contacted at the communication with the Agency have earliest practicable point in project plan- been delegated. ning. Generally, this will be during the preparation of Preliminary Engineering Reports, (b) The Administrator uses the proce- or possibly earlier if meaningful information dures in § 1204.1510 if a state process is available that could practically serve as provides a state process recommenda- an input in the decision-making process. It

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should be noted that clearinghouses are gen- 1206.305 Responding to requests. erally comprehensive planning agencies. As 1206.306 Granting a request. such, they are often the best repositories of 1206.307 Denying a request. information required for development plan- 1206.308 Referrals and consultations within ning and constitute a resource that can often NASA or other Federal agencies. save Federal planners substantial time and effort, if consulted early enough. In addition Subpart D—Procedures and Time Limits for to providing information necessary for pre- Responding to Requests liminary engineering, clearinghouses can make useful inputs to the development of en- 1206.400 Procedures for processing queues vironmental impact statements, as well as in and expedited processing. reviewing draft statements. Thus, consulta- 1206.401 Procedures and time limits for action at the earliest stage in planning can knowledgement letters and initial deter- have substantial payoffs in installation de- minations. velopment. 1206.402 Suspending the basic time limit. 2. Clearinghouses will be afforded a min- 1206.403 Time extensions. imum time of 30 days in which to review and comment on a proposed project and a max- Subpart E—Fees Associated With imum time of 45 days in which to complete Processing Requests such review. 3. The minimum information to be pro- 1206.500 Search. vided to the clearinghouse will consist of 1206.501 Review. project description, scope and purpose, sum- 1206.502 Duplication. mary technical data, maps and diagrams 1206.503 Restrictions on charging fees. where relevant, and any data which would 1206.504 Charging fees. show the relationship of the proposed project 1206.505 Advance payments. or action to applicable land use plans, poli- 1206.506 Requirements for a waiver or reduc- cies, and controls for the affected area. tion of fees. 4. Establish procedures for notifying clear- 1206.507 Categories of requesters. inghouses of the actions taken on projects, 1206.508 Aggregation of requests. such as implementation, timing, postpone- 1206.509 Form of payment. ment, abandonment, and explaining, where 1206.510 Nonpayment of fees. appropriate, actions taken contrary to clear- 1206.511 Other rights and services. inghouse recommendations. Subpart F—Commercial Information PART 1205 [RESERVED] 1206.600 General policy. 1206.601 Notice to submitters. PART 1206—PROCEDURES FOR DIS- 1206.602 Opportunity to object to disclosure. CLOSURE OF RECORDS UNDER 1206.603 Notice of intent to disclose. THE FREEDOM OF INFORMATION ACT (FOIA) Subpart G—Appeals 1206.700 How to submit an appeal. Subpart A—Basic Policy 1206.701 Actions on appeals. Sec. 1206.702 Litigation. 1206.100 Scope. 1206.101 General policy. Subpart H—Responsibilities 1206.800 Delegation of authority. Subpart B—Types of Records To Be Made 1206.801 Chief FOIA Officer. Available 1206.802 General Counsel. 1206.200 Publishing of records. 1206.803 NASA Headquarters. 1206.201 Proactive disclosure of Agency 1206.804 NASA Centers and Components. records. 1206.805 Inspector General. 1206.202 Records that have been published. 1206.203 Incorporation by reference. Subpart I—Location for Inspection and Request of Agency Records Subpart C—Procedures 1206.900 FOIA offices and electronic librar- 1206.300 How to make a request for Agency ies. records. AUTHORITY: 5 U.S.C. 552, 552a; 51 U.S.C. 1206.301 Describing records sought. 20113(a) 1206.302 Fee agreements. 1206.303 Format of records disclosed. SOURCE: 79 FR 46678, Aug. 11, 2014, unless 1206.304 Expedited processing. otherwise noted.

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Subpart A—Basic Policy (1) Description of NASA Head- quarters and NASA Centers and the es- § 1206.100 Scope. tablished places at which, the employees from whom, and the methods This part 1206 establishes the poli- whereby, the public may secure infor- cies, responsibilities, and procedures mation, make submittals or requests, for the release of Agency records which or obtain decisions; are under the jurisdiction of the Na- (2) Statements of the general course tional Aeronautics and Space Adminis- and method by which NASA’s functions tration, hereinafter NASA, to members are channeled and determined, includ- of the public. This part applies to infor- ing the nature and requirements of all mation and Agency records located at formal and informal procedures avail- NASA Headquarters, and NASA Cen- able; ters, including Component Facilities (3) Rules of procedure, descriptions of and Technical and Service Support forms available or the places at which Centers, herein NASA Headquarters forms may be obtained, and instruc- and Centers, as defined in this part. tions regarding the scope and contents § 1206.101 General policy. of all papers, reports, or examinations; (4) Substantive rules of general appli- (a) In compliance with the Freedom cability adopted as authorized by law, of Information Act (FOIA), as amended and statements of general policy or in- 5 U.S.C. 552, a positive and continuing terpretations of general applicability obligation exists for NASA, herein formulated and adopted by NASA; Agency, to make available to the full- (5) Each amendment, revision, or re- est extent practicable upon request by peal of the foregoing. members of the public, all Agency (b) Agency opinions, orders, statements, records under its jurisdiction, as de- and manuals. (1) Unless they are ex- scribed in this regulation. empt from disclosure in accordance (b) Part 1206 does not entitle any per- with the FOIA, or unless they are son to any service or to the disclosure promptly published and copies offered of any record that is not required for sale, NASA shall make available under the FOIA. the following records for public inspec- (c) The disclosure of exempt records, tion in an electronic format or pur- without authorization by the appro- chase: priate NASA official, is not an official (i) All final opinions (including con- release of information; accordingly, it curring and dissenting opinions) and is not a FOIA release. Such a release all orders made in the adjudication of does not waive the authority of NASA cases; to assert FOIA exemptions to withhold (ii) Those statements of NASA policy the same records in response to a FOIA and interpretations which have been request. In addition, while the author- adopted by NASA and are not pub- ity may exist to disclose records to in- lished in the FEDERAL REGISTER; dividuals in their official capacity, the (iii) Administrative staff manuals (or provisions of this part apply if the similar issuances) and instructions to same individual seeks the records in a staff that affect a member of the pub- private or personal capacity. lic; (iv) Copies of all records, regardless [79 FR 46678, Aug. 11, 2014, as amended at NASA–2019–0005, 84 FR 54774, Oct. 11, 2019] of form or format, that have been released to any person under Subpart C of this part and that, because of the na- Subpart B—Types of Records To ture of their subject matter, the Agen- Be Made Available cy determines have become or are likely to become the subject of subsequent § 1206.200 Publishing of records. requests for substantially the same (a) Records required to be published in records (frequently requested docu- the Federal Register. The following ments or documents that have been re- records are required to be published in quested 3 or more times). the FEDERAL REGISTER, for codification (2) A general index of records referred to in Title 14, Chapter V, of the CFR. under paragraph (b)(1)(iv) of this section.

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(i) For records created after Novem- Public Liaison who can assist individ- ber 1, 1996, which are covered by para- uals in locating records particular to a graphs (b)(1)(i) through (iv) of this sec- Center. A list of the Agency’s FOIA tion, such records shall be available Public Liaisons is available at http:// electronically, through an electronic www.hq.nasa.gov/office/pao/FOIA/agency/ library and in electronic forms or for- . mats. [79 FR 46678, Aug. 11, 2014, as amended at (ii) In connection with all records re- NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] quired to be made available or published under this paragraph (b), identi- § 1206.202 Records that have been pub- fying details shall be deleted to the ex- lished. tent required to prevent a clearly un- Publication in the FEDERAL REGISTER warranted invasion of personal privacy. is a means of making certain Agency However, in each case, the justification records are available to the public in for the deletion shall be explained fully accordance with 5 U.S.C.552(a)(2) within writing. The extent of such deletion out requiring the filing of a FOIA re- shall be indicated on the portion of the quest. NASA has a FOIA Electronic Li- record which is made available or pub- brary Web site at NASA Headquarters lished, unless including that indication and each of its Centers. The would harm an interest protected by an FedBizOpps (FBO) (formerly Commerce exemption in the FOIA. If technically Business Daily), is also a source of in- feasible, the extent of the deletion formation concerning Agency records shall be indicated at the place in the or actions. Various other NASA publi- record where the deletion is made. cations and documents, and indexes (c) Other Agency records. (1) In addi- thereto, are available from other tion to the records made available or sources, such as the U.S. Super- published under paragraphs (a) and (b) intendent of Documents and the Earth of this section, NASA shall, upon re- Resources Observation and Science quest for other records made in accord- Center (Department of the Interior). ance with this part, make such records Such publications and documents are promptly available to any person, un- not required to be made available or re- less they are exempt from disclosure, produced in response to a request un- or unless they may be purchased by the less they cannot be purchased readily public from other readily available from available sources. sources, i.e., books. (2) Furthermore, at a minimum, § 1206.203 Incorporation by reference. NASA will maintain records in its elec- Records reasonably available to the tronic library that were created after members of the public affected thereby November 1, 1996, under paragraph shall be deemed published in the FED- (b)(1)(iv) of this section and a guide for ERAL REGISTER when incorporated by requesting records or information from reference in material published in the NASA. FEDERAL REGISTER (pursuant to the [79 FR 46678, Aug. 11, 2014, as amended at FEDERAL REGISTER regulation on incor- NASA–2019–0005, 84 FR 54774, Oct. 11, 2019] poration by reference, 1 CFR Part 51). § 1206.201 Proactive disclosure of Subpart C—Procedures Agency records. Records that are required by the § 1206.300 How to make a request for FOIA to be made available for public Agency records. inspection and copying in an electronic (a) A requester submitting a request format are accessible on the Agency’s for records must include his/her name, Web site, http://www.nasa.gov. Each and an email or mailing address in Center is responsible for determining order for the Agency to be able to send which of its records are required to be responsive records and/or to be able to made publicly available, as well as contact the requester to obtain addi- identifying additional records of inter- tional information or clarification of est to the public that are appropriate the request sought (see § 1206.301). The for public disclosure, and for posting request must also address fees or pro- such records. Each Center has a FOIA vide justification for a fee waiver (see

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§ 1206.302) as well as address the fee cat- written request in person to the FOIA egory in accordance with § 1206.507. The office having responsibility over the request should also include a telephone record requested or to the NASA Head- number in case the FOIA office needs quarters (HQ) FOIA Office. A requester to contact the requester regarding the may also submit a request online via request; however, this information is the NASA FOIA website. optional when submitting a request if (e) When a requester is unable to dean email or mailing address is pro- termine the proper NASA FOIA Office vided. A requester may also submit a to direct a request to, the requester request online via the NASA FOIA may send the request to the NASA HQ website, https://www.nasa.gov/FOIA/Con- FOIA Office, 300 E. Street SW., Wash- tacts.html. Do not include a social secu- ington, DC 20546–0001. The HQ FOIA Of- rity number on any correspondence with the FOIA office. If the FOIA unit fice will forward the request to the determines processing fees will exceed Center(s) that it determines to be most the fee category entitlement, the unit likely to maintain the records that are will require a personal mailing address sought. for billing purposes or for commercial (1) For locations, mailing/email ad- use requesters, a business mailing addresses of NASA FOIA Centers, visit dress. our website at https://www.nasa.gov/ (b) NASA does not have a central lo- FOIA/Contacts.html. cation for submitting FOIA requests (2) A misdirected request may take and it does not maintain a central up to ten (10) additional working index or database of records in its pos- (meaning all days except Saturdays, session. Instead, Agency records are de- Sundays and all Federal legal holidays) centralized and maintained by various days to reroute to the proper FOIA of- Centers and offices throughout the fice. country. All NASA Centers have the (f) A requester who is making a re- capability to receive requests elec- quest for records about himself or her- tronically, either through email or a self (a Privacy Act request) must com- Web portal. To make a request for any ply with the verification of identity of the NASA Center records, a re- provisions set forth in 14 CFR 1212.202. quester should write directly to the FOIA office of the Center that main- (g) Where a request pertains to a tains the records being sought. A re- third party, a requester may receive quest will receive the quickest possible greater access by submitting either a response if it is addressed to the FOIA notarized authorization signed by the office of the Center that maintains the individual who is the subject of the records requested. If a requester does record requested, or a declaration by not know which Center(s) may have that individual made in compliance the requested records, he/she may send with the requirements set forth in 28 his/her request(s) to the NASA’s Head- U.S.C. 1746, authorizing disclosure of quarters (HQ) FOIA Public Liaison, 300 the records to the requester, or submit E Street SW, Room 5L19, Washington, proof that the individual is deceased DC 20546, Fax number: (202) 358–4332, (e.g., a copy of a death certificate or a email address: [email protected], and verifiable obituary). the HQ FOIA unit will forward the re- (h) As an exercise of its administra- quest to the Center(s) that it deter- tive discretion, each Center FOIA of- mines to be most likely to maintain fice may require a requester to supply the records that are sought. additional information if necessary, (c) NASA has not yet implemented a i.e., a notarized statement from the records management application for subject of the file, in order to verify automated capture and control of e- that a particular individual has con- records; therefore, official files are pri- sented to a third party disclosure. In- marily paper files. (d) A member of the public may sub- formation will only be released on a mit a FOIA request for an Agency case-by-case basis to third party re- record by mail, facsimile (FAX), elec- questers if they have independently tronic mail (email), or by submitting a

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provided authorization from the indi- mail regardless of the method used by vidual who is the subject of the re- NASA to transmit the request for addi- quest. tional information. In order to be con- [79 FR 46678, Aug. 11, 2014, as amended at sidered timely, responses to requests NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] for additional information must be postmarked or received by electronic § 1206.301 Describing records sought. mail within twenty (20) working days In view of the time limits under 5 of the postmark date or date of the U.S.C. 552(a)(6) for an initial deter- electronic mail request for additional mination on a request for an Agency information or received by electronic record, a request must meet the fol- mail by 11:59:59 p.m. ET on the 20th lowing requirements: working day. If the requester does not (a) The request must be addressed to respond to a request for additional in- an appropriate FOIA office or other- formation within the 20 working days, wise be clearly identified in the letter the request may be administratively as a request for an Agency record closed at NASA’s discretion. This ad- under the ‘‘Freedom of Information ministrative closure does not prejudice Act.’’ the requester’s ability to submit a new (b) Requesters must describe the request for further consideration with records sought in sufficient detail to additional information. enable Agency personnel who are fa- (e) NASA need not comply with a miliar with the subject area of the re- blanket or categorical request (such as quest to identify and locate the record ‘‘all matters relating to’’ a general sub- with a reasonable amount of effort. To ject) where it is not reasonably feasible the extent possible, requesters should to determine what record is sought. include specific information that may (f) NASA will in good faith attempt assist a FOIA office in identifying the to identify and locate the record(s) requested records, such as the date, sought and will consult with the re- title or name, author, recipient, sub- quester when necessary and appro- ject matter of the record, case number, priate for that purpose in accordance file designation, or reference number. with these regulations. In general, requesters should include as (g) NASA is not required to create or much detail as possible about the spe- compile records in response to a FOIA cific records or the types of records request. sought. (c) If NASA, after receiving a re- [79 FR 46678, Aug. 11, 2014, as amended at quest, determines that the request does NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] not reasonably describe the records § 1206.302 Fee agreements. sought, it shall inform the requester what additional information is needed (a) A request must explicitly state a or why the request is otherwise insuffi- willingness to pay all fees associated cient. Requesters who are attempting with processing the request, fees up to to reformulate or modify such a re- a specified amount, or a request for a quest may discuss their request with fee waiver, if processing fees will likely the NASA’s designated FOIA contact exceed the statutory entitlements as or the Principal Agency FOIA Officer, defined in § 1206.507(b) and (c). each of whom is available to assist the (b) If the FOIA office determines that requester in reasonably describing the fees for processing the request will ex- records sought. If a request does not ceed the agreed upon amount or the reasonably describe the records sought, statutory entitlements, the FOIA of- the Agency’s response to the request fice will notify the requester that: may be delayed or NASA may at its (1) He/she must provide assurance of discretion close the request adminis- payment for all anticipated fees or pro- tratively. vide an advance payment if estimated (d) Requests for clarification or more fees are expected to exceed $250.00, or information will be made in writing (2) The FOIA office will not be able to (either via U.S. mail or electronic mail fully comply with the FOIA request un- whenever possible). Requesters may re- less an assurance or advance payment spond by U.S. mail or by electronic as requested has been provided.

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(3) He/she may wish to limit the requester will be notified after the scope of the request to reduce the proc- FOIA office has obtained an estimate essing fees. of associated fees. (c) If the FOIA office does not receive (i) The FOIA office will begin proc- a written response within 20 working essing a request only after the request days after requesting the information, has been properly described in accord- it will presume the requester is no ance with these regulations and fees longer interested in the records re- have been resolved. quested and will administratively close (j) If the requester is required to pay the request without further notifica- a fee and it is later determined on ap- tion. peal that he/she was entitled to a full (d) A commercial-use requester (as or partial fee waiver, a refund will be defined in§ 1206.507(c)(1)) must: sent as appropriate. (1) State a willingness to pay all fess (k) NASA may refuse to consider a associated with processing a request; waiver or reduction of fees for request- or ers (persons or organizations) from (2) State a willingness to pay fees to whom unpaid fees remain owed to the cover the costs of conducting an initial Agency for another information access search for responsive records to deter- request. mine a fee estimate. (e) If a requester is only willing to [79 FR 46678, Aug. 11, 2014, as amended at NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] pay a limited amount for processing a request and it is for more than one doc- § 1206.303 Format of records disclosed. ument, the requester must state the order in which he/she would like the re- (a) The FOIA office will provide the quest for records to be processed. records in the requested format if the (f) If a requester is seeking a fee records can readily be reproduced from waiver, the request must include suffi- the original file to that specific for- cient justification to substantiate a mat. waiver. (See subpart E of this part for (b) The FOIA office may charge di- information on fee waivers.) Failure to rect costs associated with converting provide sufficient justification will re- the records or files into the requested sult in a denial of the fee waiver re- format if they are not maintained in quest. that format. If the costs to convert the (g) If a requester is seeking a fee records exceed the amount the re- waiver, he/she may also choose to state quester has agreed to pay, the FOIA of- a willingness to pay fees in case the fee fice will notify the requester in writ- waiver request is denied in order to ing. If the requester does not agree to allow the FOIA office to begin proc- pay the additional fees for converting essing the request while considering the records, the records may not be the fee waiver. provided in the requested format. (h) If a fee is chargeable for search, § 1206.304 Expedited processing. review, duplication, or other costs incurred in connection with a request for A requester may ask for expedited an Agency record, the requester will be processing of a request. However, infor- billed prior to releasing Agency docu- mation to substantiate the request ments. If the total amount of proc- must be included in accordance with essing fees is under $50.00, the Agency § 1206.400, Criteria for Expedited Proc- will release the records when final essing; otherwise, the request for expe- processing is complete. dited processing will be denied and (1) If the exact amount of the fee processed in the simple or complex chargeable is not known at the time of queue. the request, the requester will be notified in the initial determination (or in § 1206.305 Responding to requests. a final determination in the case of an (a) Except in the instances described appeal) of the amount of fees charge- in paragraphs (e) and (f) of this section, able. the FOIA office that first receives a re- (2) For circumstances in which ad- quest for a record and maintains that vance payment of fees is required, the record is the FOIA office responsible

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for responding to the request. The of- cumstances. The FOIA office will not fice shall acknowledge the request and begin processing a request until all assign it an individualized tracking issues regarding scope and fees have number if it will take longer than ten been resolved. NASA will notify the re- (10) working days to process. The quester of the availability of the FOIA NASA office responding to the request Public Liaison to offer assistance in re- shall include in the acknowledgment a solving these issues. brief description of the records sought (b) If fees are not expected to exceed to allow requesters to more easily keep the minimum threshold of $50.00, and track of their requests. the scope of the request is in accord- (b) In determining what records are ance with § 1206.301, the FOIA office responsive to a request, a FOIA office will begin processing the request. ordinarily will include only records in (c) If the FOIA office contacts the re- its possession as of the date that it be- quester regarding fees or clarification gins its search. If any other date is and the requester has provided a re- used, the FOIA office shall inform the sponse, the FOIA office will notify the requester of that date. requester in writing of the decision to (c) A record that is excluded from the either grant or deny the request. requirements of the FOIA pursuant to 5 U.S.C. 552(c)(1)–(3), shall not be consid- [79 FR 46678, Aug. 11, 2014, as amended at NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] ered responsive to a request. (d) The Head of a Center, or designee, § 1206.307 Denying a request. is authorized to grant or to deny any NASA shall withhold records only requests for records that are main- when it reasonably foresees that disclo- tained by that Center. (e) The FOIA office may refer a re- sure would harm an interest protected quest to or consult with another Cen- by an exemption or disclosure is pro- ter FOIA office or Federal agency in hibited by law. accordance with § 1206.308, if the FOIA (a) If the FOIA office denies records office receives a request for records in response to a request either in full that are in its possession that were not or in part, it will advise the requester created at that Center. If another Cen- in writing that: (1) The requested record(s) is exempt ter within NASA or another Federal in full or in part; or agency has substantial interest in or (2) Records do not exist, cannot be lo- created the records, the request will ei- cated, are not in the Agency’s control, ther be referred or they will consult or the request does not reasonably de- with that FOIA office/agency. scribe the records sought; or (f) If a request for an Agency record (3) A record is not readily reproduc- is received by a FOIA office not having ible in the form or format requested; responsibility of the record (for exam- and or ple, when a request is submitted to one (4) Denial is based on a procedural NASA Center or Headquarters and an- issue only and not access to the under- other NASA Center has responsibility lying records when it makes a decision of the record), the FOIA office receiv- that: ing the request shall promptly forward (i) A fee waiver or another fee-related it to that FOIA office within 10 work- issue will not be granted; or ing days from the date of receipt. The (ii) Expedited processing will not be receiving FOIA office shall acknowl- provided. edge the request and provide the re- (b) The denial notification must in- quester with a tracking number. clude: [79 FR 46678, Aug. 11, 2014, as amended at (1) The name, title, or position of the NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] person(s) responsible for the denial; (2) A brief statement of the reasons § 1206.306 Granting a request. for the denial, including a reference to (a) Ordinarily, NASA shall have any FOIA exemption(s) applied by the twenty (20) working days from when a FOIA office to withhold records in full request is received to determine wheth- or in part; er to grant or deny the request unless (3) An estimate of the volume of any there are unusual or exceptional cir- records or information withheld, i.e.,

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the number of pages or a reasonable (2) Refer the request, along with the form of estimation, unless such an esti- records, to that FOIA office for direct mate would harm an interest protected response. by the exemption(s) used to withhold (c) If the FOIA office that originally the records or information; and received the request refers all or part (4) A statement that the denial may of the request to another FOIA office be appealed under subpart G of this within the Agency for further proc- part and a description of the require- essing, they will notify the requester of ments set forth therein. NASA shall the partial referral and provide that also inform the requester of the avail- FOIA contact information. ability of its FOIA Public Liaison to (d) If while responding to a request, offer assistance and include a state- the FOIA office locates records that ment notifying the requester of the dis- originated with another Federal agen- pute resolution services offered by the cy, it will generally refer the request Office of Government Information and any responsive records to that Services (OGIS). Should the requester other agency for a release determina- elect to mediate any dispute related to tion and direct response. the FOIA request with OGIS, NASA (e) If the FOIA office refers all the will participate in the mediation proc- records to another agency, it will docu- ess in good faith. ment the referral and maintain a copy (c) If the requested records contain of the records that it refers; notify the both exempt and non-exempt material, requester of the referral in writing, un- the FOIA office will: less that identification will itself dis- (1) Segregate and release the non-ex- close a sensitive, exempt fact; and will empt material unless the non-exempt provide the contact information for the material is so intertwined with the ex- other agency and if known, the name of empt material that disclosure of it a contact at the other agency. would leave only meaningless words (f) If the FOIA office locates records and phrases; that originated with another Federal agency while responding to a request, (2) Indicate on the released portion(s) the office will make the release deter- of the records the amount of informa- mination itself (after consulting with tion redacted and the FOIA exemp- the originating agency) when: tion(s) under which the redaction was (1) The record is of primary interest made, unless doing so would harm an to NASA (for example, a record may be interest protected by the FOIA exemp- of primary interest to NASA if it was tion used to withhold the information; developed or prepared according to and Agency regulations or directives, or in (3) If technically feasible, place the response to an Agency request); or exemption at the place of excision. (2) NASA is in a better position than [79 FR 46678, Aug. 11, 2014, as amended at the originating agency to assess wheth- NASA–2019–0005, 84 FR 54775, Oct. 11, 2019] er the record is exempt from disclosure; or § 1206.308 Referrals and consultations (3) The originating agency is not sub- within NASA or other Federal ject to the FOIA; or Agencies. (4) It is more efficient or practical (a) Referrals and consultations can depending on the circumstances. occur within the Agency or outside the (g) If the FOIA office receives a re- Agency. quest for records that another Federal (b) If a FOIA office (other than the agency has classified under any appli- Office of Inspector General) receives a cable executive order concerning request for records in its possession record classification, it must refer the that another NASA FOIA office has re- request to that agency for response. sponsibility over or is substantially (h) If the FOIA office receives a re- concerned with, it will either: quest for records that are under the (1) Consult with the other FOIA of- purview of another Federal agency, the fice before deciding whether to release office will return the request to the re- or withhold the records; or quester and may advise the requester

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to submit it directly to another agen- (i) In most situations, a person pri- cy. The FOIA office will then close the marily engaged in disseminating infor- request. mation will be a representative of the (i) All consultations and referrals re- news media and therefore, will qualify ceived by the Agency will be handled as a person primarily engaged in dis- according to the date that the FOIA re- seminating information. quest initially was received by the first (ii) To substantiate paragraph (c)(2) FOIA office. of this section, the requested information must be the type of information Subpart D—Procedures and Time which has particular value that will be Limits for Responding to Requests lost if not disseminated quickly; this ordinarily refers to a breaking news § 1206.400 Procedures for processing story of general public interest. Infor- queues and expedited processing. mation of historical interest only or (a) The FOIA office will normally information sought for litigation or process requests in the order in which commercial activities would not qual- they are received in each of the proc- ify, nor would a news media deadline essing tracks. unrelated to breaking news; or (b) FOIA offices use three queues for (3) The loss of substantial due process multi-track processing depending on rights. the complexity of the request. Once it (d) A request for expedited processing has been determined the request meets must contain a statement that: the criteria in accordance with subpart (1) Explains in detail how the request C of this part, the FOIA office will meets one or more of the criteria in place the request in one of the fol- paragraph (c) of this section; and lowing tracks: (2) Certifies that the explanation is (1) Simple—A request that can be true and correct to the best of the re- processed within 20 working days. quester’s knowledge and belief. (2) Complex—A request that will take (3) If the request is made referencing over 20 working days to process. (A paragraph (c)(2) of this section, the re- complex request will generally require quester must substantiate the public coordination with more than one office interest. and a legal 10 working day extension (e) A request for expedited processing for unusual circumstances (see may be made at any time. Requests § 1206.403) may be taken either up front must be submitted to the FOIA office or during the first 20 days of processing responsible for processing the re- the request.) quested records. (3) Expedited processing—A request (f) The FOIA office must notify the for expedited processing will be proc- requester of its decision to grant or essed in this track if the requester can deny expedited processing within 10 show exceptional need or urgency that calendar days from the date of receipt. their request should be processed out of (g) If expedited processing is granted, turn in accordance with paragraph (c) the request will be processed on a first- of this section. in, first-out basis in that queue. (c) Requests and appeals will be proc- (h) If expedited processing is denied, essed on an expedited basis whenever it the FOIA office will notify the re- is determined that they involve one or quester and provide information on ap- more of the following: pealing this decision in accordance (1) Circumstances in which the lack with Subpart G of this part and place of expedited treatment could reason- the request in the appropriate proc- ably be expected to pose an imminent essing queue. threat to the life or physical safety of (i) If the FOIA office processing the an individual; request does not provide notification of (2) Circumstances in which there is either granting or denying the request an urgency to inform the public about for expedited processing within 10 cal- an actual or alleged Federal Govern- endar days from the date of receipt, the ment activity if the FOIA request is requester may file an appeal for non-re- made by a person primarily engaged in sponse in accordance with subpart G of disseminating information; this part.

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§ 1206.401 Procedures and time limits fice of Government Information Serv- for acknowledgement letters and ices. initial determinations. [79 FR 46678, Aug. 11, 2014, as amended at (a) Following receipt of a request NASA–2019–0005, 84 FR 54776, Oct. 11, 2019] submitted under the FOIA, the FOIA staff will send an acknowledgement § 1206.402 Suspending the basic time letter providing the case tracking num- limit. ber and processing track within ten (10) (a) In accordance with 5 U.S.C. working days from date of receipt to 552(a)(6)(A)(ii)(I), the FOIA office may the requester. make one request to the requester for (b) An initial determination is a deci- information to clarify a request and sion by a NASA official, in response to temporarily suspend (toll) the time a request by a member of the public for (the 20-day period) while it is awaiting an Agency record, on whether the such information that it has reason- record described in the request can be ably requested from the requester. Re- identified and located after a reason- ceipt of the requester’s response by the able search and, if so, whether the FOIA office to the Agency’s request for record (or portions thereof) will be additional information or clarification made available under this part or will ends the temporary time suspension. be withheld from disclosure under the (b) In accordance with 5 U.S.C. FOIA. 552(a)(6)(A)(ii)(II), the FOIA office may (c) An initial determination on a re- temporarily suspend (toll) the 20-day quest for an Agency record addressed period as many times as is necessary to in accordance with this regulation (to clarify with the requester issues re- include one submitted in person at a garding fees. Receipt of the requester’s FOIA office) shall be made (for exam- response by the FOIA office to the ple, to grant, partially grant or deny a Agency’s request for information re- request), and the requester shall be garding fees ends the temporary time sent an initial determination letter suspension. within 20 working days after receipt of the request, as required by 5 U.S.C. § 1206.403 Time extensions. 552(a)(6) (unless unusual circumstances (a) In ‘‘unusual circumstances’’ as de- exist as defined in § 1206.403). fined in this section, the time limits (d) The basic time limit for a mis- for an initial determination and for a directed FOIA request (not a referral or final determination may be extended, consultation) begins on the date on but not to exceed a total of 10 working which the request is first received by days in the aggregate in the processing the appropriate FOIA office within the of any specific request for an Agency Agency, but in any event no later than record. The extension must be taken ten (10) working days after the date the before the expiration of the 20 working request is first received by a FOIA of- day time limits. The requester will be fice designated to receive FOIA re- notified in writing of: quests. (1) The unusual circumstances sur- (e) Any notification of an initial de- rounding the extension of the time termination that does not comply fully limit; with the request for an Agency record, including those searches that produce (2) The date by which the FOIA office no responsive documents, shall include expects to complete the processing of a statement of the reasons for the ad- the request. verse determination, include the name (b) Unusual circumstances are de- and title of the person making the ini- fined as: tial determination, and notify the re- (1) The need to search for and collect quester of the right to appeal to the the requested records from offices Administrator or the Inspector Gen- other than the office processing the re- eral, as appropriate, pursuant to sub- quest; part G of this part, and the right to (2) The need to search for, collect, seek dispute resolution services from and appropriately examine a volumi- the NASA FOIA Public Liaison or Of- nous number of documents;

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(3) The need to coordinate and/or con- (b) Search charges, as set forth in sult with another NASA office or agen- this part, may be billed even when an cy having a substantial subject-matter Agency record, which has been re- interest in the determination of the requested, cannot be identified or located quest. after a diligent search and consultation (c) If initial processing time will ex- with a professional NASA employee fa- ceed or is expected to exceed 30 work- miliar with the subject area of the re- ing days, the FOIA office will notify quest has been conducted or if located, the requester of the delay in processing cannot be made available under and: § 1206.308. (1) Provide the opportunity to limit (c) In responding to FOIA requests, the scope of the request so that it may FOIA offices shall charge the following be processed within that time limit or fees based on the date the request is re- an opportunity to arrange with the ceived in the NASA FOIA Office unless Agency an alternative time frame for a waiver or reduction of fees has been processing the request or a modified re- granted under § 1206.506. Fees will be quest; determined on October 1st of each year (2) Provide contact information for the NASA FOIA Public Liaison; based on the appropriate General (3) Offer the right of the requester to Schedule (GS) base salary, plus the seek dispute resolution services from District of Columbia locality payment, the OGIS; plus 16 percent for benefits of employ- (4) Provide information regarding the ees. Fees such as search, review, and intended determination; and duplication will be charged in accord- (5) Shall make available its des- ance with the requester’s fee category ignated FOIA contact and its FOIA as defined in § 1206.507. Public Liaison for the purpose of this (d) For each quarter hour spent by paragraph (c). personnel searching for requested (d) The requester’s refusal to reason- records, including electronic searches ably modify the scope of a request or that do not require new programming, arrange an alternative timeframe for the fees will be the average hourly GS- processing a request after being given base salary, plus the District of Colum- the opportunity to do so may be con- bia locality payment, plus 16 percent sidered a factor when determining for benefits of employees in the fol- whether exceptional circumstances lowing three categories, as applicable: exist. A delay that results from a pre- (1) Clerical—Based on a GS–6, Step 5 dictable workload of requests does not (all employees at a GS–7 and below are constitute exceptional circumstances classified as clerical for this purpose). unless the Agency demonstrates rea- (2) Professional—Based on a GS–11, sonable progress in reducing its back- Step 7 pay (all employees at a GS–8 log of pending requests. through GS–12 are classified as profes- [79 FR 46678, Aug. 11, 2014, as amended at sional for this purpose); NASA–2019–0005, 84 FR 54776, Oct. 11, 2019] (3) Managerial—Based on GS–14, Step 2, pay (all employees at a GS–13 and Subpart E—Fees Associated With above are classified as managerial for Processing Requests this purpose). (e) Requesters will be charged the di- § 1206.500 Search. rect costs associated with conducting (a) Search includes all time spent any search that requires the creation looking for material that is responsive of a new program to locate the re- to a request, including page-by-page or quested records. line-by-line identification of material (f) For requests that require the re- within documents. A search will deter- trieval of records stored by an agency mine what specific documents, if any, at a Federal records center operated by are responsive to a request. A search the NARA, additional costs shall be for Agency records responsive to a re- charged in accordance with the Trans- quest may be accomplished by manual actional Billing Rate Schedule estab- or automated means. lished by NARA.

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§ 1206.501 Review. native form or format, the Agency will not process the request any further. (a) Review means the process of ex- amining a document(s) located in re- (c) Where standard-sized photocopies sponse to a request to determine or scans are supplied, the FOIA office whether the document(s) or any por- will provide one copy per request at the tion thereof is disclosable. Review does regular copy rate per page. not include time spent resolving gen- (d) For copies of records produced on eral legal or policy issues regarding the tapes, disks, or other electronic media, application of exemptions. FOIA offices will charge the direct (b) Review fees will be assessed in costs of producing the copy in the form connection with the initial review of or format requested, including the time the record, i.e., the review conducted spent by personnel duplicating the re- by Agency staff to determine whether quested records. For each quarter hour an exemption applies to a particular spent by personnel duplicating the re- record or portion of a record. quested records, the fees will be the (c) Review fees will be charged to same as those charged for a search commercial use requesters. under this subpart. (d) No charge will be made for review (e) If NASA staff must scan paper at the administrative appeal stage of documents in order to accommodate a exemptions applied at the initial re- requester’s preference to receive the view stage. However, when the appel- records in an electronic format, the relate authority determines that a par- quester shall pay the appropriate copy ticular exemption no longer applies, fee charge per page as well as each any costs associated with an additional quarter hour spent by personnel scan- review of the records in order to con- ning the requested records. Fees will be sider the use of other exemptions may the same as those charged for search be assessed as review fees. under this subpart for each quarter (e) Review fees will be charged at the hour spent by personnel scanning the same rates as those charged for a requested records. search under § 1206.500. (f) For other forms of duplication, (f) Review fees can be charged even if FOIA offices will charge the direct the record(s) reviewed ultimately is costs as well as any associated per- not disclosed. sonnel costs. For standard-sized copies (g) Review fees will not include costs of documents such as letters, memo- incurred in resolving issues of law or randa, statements, reports, contracts, policy that may be raised in the course etc., $0.15 per copy of each page; of processing a request under this sec- charges for double-sided copies will be tion. $0.30. For copies of oversized documents, such as maps, charts, etc., fees § 1206.502 Duplication. will be assessed as direct costs. Charges (a) Duplication is reproducing a copy for copies (and scanning) include the of a record or of the information con- time spent in duplicating the docu- tained in it, necessary to respond to a ments. For copies of computer disks, FOIA request. Copies can take the form still photographs, blueprints, video- of paper, audiovisual materials, or tapes, engineering drawings, hard cop- electronic records, among others. ies of aperture cards, etc., the fee (b) FOIA offices shall honor a re- charged will reflect the direct cost to quester’s preference for receiving a NASA of reproducing, copying, or scan- record in a particular form or format ning the record. In circumstances where it is readily reproducible by the where a request for a videotape or FOIA office in the form or format re- other outdated media is requested, and quested. If the records are not readily NASA does not have the capability to reproducible in the requested form or readily reproduce the record in the format, the Agency will so inform the form or format requested and which re- requester. The requester may specify quires the Agency to enlist the services an alternative form or format that is of a private contractor to fulfill the re- available. If in this situation the request, the direct costs of any services quester refuses to specify an alter- by the private contractor will be

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charged to the requester. Specific paragraphs (b)(1) through (3) of this charges will be provided upon request. section. (g) If the request for an Agency (1) If a NASA component has deter- record required to be made available mined that unusual circumstances as under this part requires a computerized defined by the FOIA apply, and the search or printout, the charge for the component provided timely written no- time of personnel involved shall be at tice to the requester in accordance the rates specified in this part or the with the FOIA, a failure to comply direct costs assessed to the Agency. with the time limit shall be excused for The charge for computer time involved an additional 10 days. and for any special supplies or mate- (2) If NASA has determined that un- rials used shall not exceed the direct usual circumstances, as defined by the cost to NASA. FOIA, apply and more than 5,000 pages (h) Reasonable standard fees may be are necessary to respond to the re- charged for additional direct costs in- quest, the Agency may charge search curred in searching for or duplicating fees, or, in the case of requesters dean Agency record in response to a re- scribed in paragraph (a) of this section, quest under this part. Charges made may charge duplication fees, if the fol- under this paragraph include, but are lowing steps are taken. The Agency not limited to, the transportation of must have provided timely written no- NASA personnel to places of record tice of unusual circumstances to the storage for search purposes or freight requester in accordance with the FOIA charges for transporting records to the and the component must have dis- personnel searching for or duplicating cussed with the requester via written a requested record. mail, email, or telephone (or made not (i) Complying with requests for spe- less than three good-faith attempts to cial services such as those listed in this do so) how the requester could effec- section is entirely at the discretion of tively limit the scope of the request in NASA. To the extent that NASA elects accordance with 5 U.S.C. to provide the following services, it 552(a)(6)(B)(ii). If the exception in this will levy a charge equivalent to the paragraph (b)(2) is satisfied, the Agen- full cost of the service provided: cy may charge all applicable fees in- (1) Certifying that records are true curred in the processing of the request. copies. (3) If a court has determined that ex- (2) Sending records by special meth- ceptional circumstances exist, as de- ods such as express mail. fined by the FOIA, a failure to comply (3) Packaging and mailing bulky with the time limits shall be excused records that will not fit into the larg- for the length of time provided by the est envelope carried in the supply in- court order. ventory. (c) No search or review fees will be charged for a quarter-hour period un- [79 FR 46678, Aug. 11, 2014, as amended at less more than half of that period is re- NASA–2019–0005, 84 FR 54776, Oct. 11, 2019] quired for search or review. § 1206.503 Restrictions on charging (d) Except for requesters seeking fees. records for a commercial use, NASA will provide without charge: (a) No search fees will be charged for (1) The first 100 pages of duplication requests by educational institutions, (or the cost equivalent for other noncommercial scientific institutions, media); and or representatives of the news media, unless the records are sought for a (2) The first two hours of search. commercial use. (e) When, after first deducting the 100 (b) If NASA fails to comply with the free pages (or its cost equivalent) and FOIA’s time limits in which to respond the first two hours of search, a total to a request, it may not charge search fee calculated under § 1206.504 is less fees, or, in the instances of requests than $50.00 for any request, no fee will from requesters described in paragraph be charged. (a) of this section, may not charge du- [79 FR 46678, Aug. 11, 2014, as amended at plication fees, except as described in NASA–2019–0005, 84 FR 54776, Oct. 11, 2019]

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§ 1206.504 Charging fees. FOIA office will stop processing the re- (a) NASA shall charge for processing quest and promptly notify the re- requests under the FOIA in accordance quester of the higher amount. The re- with the provisions of this section and quest will be placed on hold until the the OMB Guidelines. NASA will ordi- fee issue has been resolved. If the issue narily use the most efficient and least is not resolved within 20 working days expensive method for processing re- from the date of the notification letter, quested records. In order to resolve any NASA will provide the requester, if the fee issues that arise under this section, requester is a non-commercial use re- NASA may contact a requester for ad- quester, the statutory entitlements of ditional information. A component or- 100 pages of duplication at no charge dinarily will collect all applicable fees and shall advise the requester that his before sending copies of records to a re- statutory entitlements have been pro- quester. The submission of a FOIA re- vided before closing the request. quest shall be considered a firm com- (d) Direct costs, meaning those ex- mitment by the requester to pay all ap- penditures that NASA actually incurs plicable fees charged under this sec- in searching for, duplicating, and tion, up to $50.00, unless the requester seeks a waiver of fees. Requesters must downloading computer files and docu- pay fees by check or money order made ments in response to a FOIA request, payable to the Treasury of the United will be included on the invoice as ap- States. When a FOIA office determines propriate. Direct costs include, for ex- or estimates the fees to be assessed in ample, the salary of the employee who accordance with this section will would ordinarily perform the work (the amount to or exceed $50.00, the FOIA basic rate of pay for the employee plus office shall notify the requester unless 16 percent of that rate to cover bene- the requester has indicated a willing- fits), the cost of operating computers ness to pay fees as high as those antici- and other electronic equipment, such pated. If a portion of the fees can be as photocopiers and scanners, the costs readily estimated, the FOIA office associated with retrieving records shall advise the requester accordingly. stored at a Federal records center oper- (b) In cases in which a requester has ated by the NARA, as well as costs for been notified that actual or estimated CDs and other media tools. fees are in excess of $50.00, the request (e) NASA may charge interest on any shall be placed on hold and further unpaid bill starting on the 31st day fol- work will not be completed until the requester commits in writing to pay lowing the date of billing the re- the actual or estimated fees. Such a quester. Interest charges will be as- commitment must be made by the re- sessed at the rate provided in 31 U.S.C. quester in writing, must indicate a 3717 and will accrue from the billing given dollar amount or a willingness to date until payment is received by the pay all processing fees, and must be re- FOIA office. NASA will follow the pro- ceived by the FOIA office within 20 visions of the Debt Collection Act of working days from the date of the let- 1982 (Pub. L. 97–365, 96 Stat. 1749), as ter providing notification of the fee es- amended, and its administrative proce- timate. If the requester is a non- dures, including the use of consumer commercial use requester, the notice reporting agencies, collection agencies, shall specify that the requester is enti- and offset. tled to the statutory entitlements of (f) If processing fees are less than 100 pages of duplication at no charge $50.00, NASA will send all releaseable and, if the requester is charged search documents (or portions thereof) fol- fees, two hours of search time at no lowing the completion of the initial de- charge, and shall advise the requester termination. If fees are greater than whether those entitlements have been $50.00, the documents will not be re- provided. leased until the invoice has been paid (c) After the FOIA office begins proc- and verified by the FOIA office. essing a request, if it finds that the actual cost will exceed the amount the requester previously agreed to pay, the

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(g) Final billing will be sent when the after the date of the FOIA office’s let- initial determination has been com- ter, the request will be closed without pleted. At that time the case will be further notification. closed. (f) When advance payment is required [79 FR 46678, Aug. 11, 2014, as amended at in order to initiate processing, after a NASA–2019–0005, 84 FR 54776, Oct. 11, 2019] fee estimate has been determined, the FOIA office will require payment be- § 1206.505 Advance payments. fore continuing to process the request. (a) For requests other than those de- (g) The fee schedule of this section scribed in paragraphs (b), (c), and (f) of does not apply to fees charged under this section, a FOIA office shall not re- any statute that specifically requires quire the requester to make an advance an agency to set and collect fees for payment before work is commenced or particular types of records. In in- continued on a request. Payment owed stances where records responsive to a for work already completed (i.e., pay- request are subject to a statutorily- ment for search, review and/or before based fee schedule program, the FOIA records are released to a requester) is office will inform the requester of the not an advance payment. contact information for that source. (b) When a FOIA office determines or [79 FR 46678, Aug. 11, 2014, as amended at estimates that a total fee to be charged NASA–2019–0005, 84 FR 54777, Oct. 11, 2019] under this section will exceed $250.00, it may require that the requester make § 1206.506 Requirements for a waiver an advance payment up to the amount or reduction of fees. of the entire anticipated fee before be- (a) The burden is on the requester to ginning to process the request. A FOIA justify an entitlement to a fee waiver. office may elect to process the request (See § 1206.507 for a discussion on fee prior to collecting fees when it receives a satisfactory assurance of full pay- categories.) ment from a requester. (b) Requests for a waiver or reduction (c) Where a requester has previously of fees shall be considered on a case-by- failed to pay a properly charged FOIA case basis using the criteria in this sec- fee assessed by any FOIA office in the tion. These statutory requirements agency within 30 calendar days of the must be satisfied by the requester be- billing date, a FOIA office may require fore properly assessable fees are waived the requester to pay the full amount or reduced under the statutory stand- due, plus any applicable interest due on ard. the outstanding debt, before the FOIA (c) Records shall be furnished with- office begins to process a new request out charge or at a reduced rate if the or continues to process a pending re- requester has demonstrated, based on quest or any pending remand of an ap- all available information, that disclo- peal. Once the outstanding bill has sure of the information is in the public been paid, the FOIA office may also re- interest because it: quire the requester to make an advance (1) Is likely to contribute signifi- payment of the full amount of any an- cantly to public understanding of the ticipated fee before processing the new operations or activities of the Govern- request. ment; and (d) Where a FOIA office has a reason- (2) Is not primarily in the commer- able basis to believe that a requester cial interest of the requester. has misrepresented his or her identity (d) In deciding whether the standards in order to avoid paying outstanding of paragraph (c)(1) of this section are fees, it may require that the requester satisfied, the Agency must consider the provide further proof of identity. factors described in paragraphs (d)(1) (e) In cases in which a FOIA office re- through (3) of this section: quires advance payment, the request (1) Disclosure of the requested infor- shall not be considered received, and mation would shed light on the oper- further work will not be completed ations or activities of the Government. until the required payment is received. The subject of the request must con- If the requester does not pay the ad- cern identifiable operations or activi- vance payment within 20 working days ties of the Federal Government with a

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connection that is direct and clear, not NASA ordinarily will presume that remote or attenuated. when a news media requester has satis- (2) Disclosure of the requested infor- fied the requirements of paragraphs mation would be likely to contribute (d)(1) and (2) of this section, the re- significantly to public understanding quest is not primarily in the commer- of those operations or activities. The cial interest of the requester. Disclo- factor in this paragraph (d)(2) is satis- sure to data brokers or others who fied when the following criteria are merely compile and market govern- met: ment information for direct economic (i) Disclosure of the requested return will not be presumed to pri- records must be meaningfully inform- marily serve the public interest. ative about Government operations or (4) Where only some of the records to activities. The disclosure of informa- be released satisfy the requirements for tion that already is in the public do- a waiver of fees under this section, a main, in either the same or a substan- waiver shall be granted for those tially identical form, would not be records. meaningfully informative if nothing (5) Requests for a waiver or reduction new would be added to the public’s un- of fees should be made when the re- derstanding. quest is first submitted to NASA and (ii) The disclosure must contribute to should address the criteria referenced the understanding of a reasonably in paragraph (d) of this section. A re- broad audience of persons interested in quester may submit a fee waiver re- the subject, as opposed to the indi- quest at a later time so long as the un- vidual understanding of the requester. derlying record request is pending or A requester’s expertise in the subject on administrative appeal. When a re- area as well as the requester’s ability quester who has committed to pay fees and intention to effectively convey in- subsequently asks for a waiver of those formation to the public must be consid- fees and that waiver is denied, the re- ered. NASA will presume that a rep- quester shall be required to pay any resentative of the news media will sat- costs incurred up to the date the fee isfy the consideration in this para- waiver request was received. graph (d)(2)(ii). (e) FOIA offices may make available (3) The disclosure must not be pri- their FOIA Public Liaison or other marily in the commercial interest of FOIA professional to assist any re- the requester. To determine whether quester in reformulating a request in disclosure of the requested information an effort to reduce fees; however, the is primarily in the commercial interest FOIA staff may not assist a requester of the requester, components will con- in composing a request, advising what sider the following criteria: specific records to request, or how to (i) NASA, and its Centers processing write a request to qualify for a fee requests, must identify whether the re- waiver. quester has any commercial interest (f) Where only some of the records to that would be furthered by the re- be released satisfy the requirements for quested disclosure. A commercial in- a waiver of fees, a partial waiver shall terest includes any commercial, trade, be granted for those records. or profit interest. Requesters must be (g) Requests for a waiver or reduction given an opportunity to provide ex- of fees should be made when the re- planatory information regarding the quest is first submitted to the Agency consideration in this paragraph and should address the criteria ref- (d)(3)(i). erenced above. A requester may submit (ii) If there is an identified commer- a fee waiver request at a later time so cial interest, NASA must determine long as the underlying record request whether that is the primary interest is pending or on administrative appeal. furthered by the request. A waiver or (h) When a requester who has com- reduction of fees is justified when the mitted to pay fees subsequently asks requirements of paragraphs (d)(1) and for a waiver of those fees and that (2) of this section are satisfied and any waiver is denied, the requester will be commercial interest is not the primary required to pay any costs incurred up interest furthered by the request. to the date the fee waiver request was

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received by the office processing the § 1206.507 Categories of requesters. original request. (i) When deciding whether to waive (a) A request should indicate the fee or reduce fees, the FOIA office will rely category. If the requester does not in- on the fee waiver justification sub- dicate a fee category, or it is unclear to mitted in the request letter. If the re- the FOIA office, the FOIA office will quest letter does not include sufficient make a determination of the fee cat- justification, the FOIA office will ei- egory based on the request. If the re- ther deny the fee waiver request or at quester does not agree with their deter- its discretion, ask for additional jus- mination, he/she will be afforded the tification from the requester. opportunity to provide information to (j) FOIA offices may make available support a different fee category. their FOIA Public Liaison or other (b) If the request is submitted on be- FOIA professional to assist any re- half of another person or organization quester in reformulating a request in (e.g., if an attorney is submitting a re- an effort to reduce fees; however, the quest on behalf of a client), the fee cat- FOIA staff may not assist a requester egory will be determined by consid- in composing a request, advising what ering the underlying requester’s iden- specific records to request, or how to tity and intended use of the informa- write a request to qualify for a fee waiver. tion. The following table outlines the basic fee categories and applicable fees: [79 FR 46678, Aug. 11, 2014, as amended at NASA–2019–0005, 84 FR 54777, Oct. 11, 2019]

Requester category Search fees Review fees Duplication fees

Commercial use requester ...... Yes ...... Yes ...... Yes. Educational and non-commercial sci- No ...... No ...... Yes (first 100 pages, or equivalent volume, without entific institutions. charge). Representative of news media re- No ...... No ...... Yes (first 100 pages, or equivalent volume, without quester. charge). All other requesters ...... Yes (first 2 hours No ...... Yes (first 100 pages, or equivalent volume, without without charge). charge).

(c) The FOIA provides for three cat- and duplicating the records sought. egories of requesters. However, for NASA will not consider a commercial- clarity purposes, NASA has broken use request for a waiver or reduction of them down to four for the purposes of fees based upon an assertion that dis- determining fees. These four categories closure would be in the public interest. of FOIA requesters are: Commercial A request from a corporation (not a use requesters; educational and non- news media corporation) may be pre- commercial scientific institutions; rep- sumed to be for commercial use unless resentatives of the news media; and all the requester demonstrates that it other requesters. The Act prescribes qualifies for a different fee category. specific levels of fees for each of these Commercial use requesters are not en- categories, which is indicated in the titled to two (2) hours of search time or FOIA fee table above. to 100 pages of duplication of docu- (1) Commercial use requesters. When NASA receives a request for documents ments without charge. appearing to be for commercial use, (2) Education and non-commercial sci- meaning a request from or on behalf of entific institution requesters. To be eligi- one whom seeks information for a use ble for inclusion in the category in this or purpose that furthers the commer- paragraph (c)(2), requesters must show cial, trade, or profit interests, which that the request being made is author- can include furthering those interests ized by and under the auspices of a through litigation, of either the re- qualifying institution and that the quester or the person on whose behalf records are not being sought for a com- the request is made, it will assess mercial use (not operated for com- charges to recover the full direct costs merce, trade, or profit), but are being of searching for, reviewing for release, sought in furtherance of scholarly (if

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the request is from an educational in- alone, excluding charges for the first stitution) or scientific (if the request is 100 pages. from a non-commercial scientific insti- (ii) Representative of the news media tution) research. is any person or entity that gathers in- (i) Educational institution is any formation of potential interest to a school that operates a program of segment of the public, uses editorial scholarly research. A requester in the skills to turn the raw materials into a fee category in this paragraph (c)(2) distinct work, and distributes that must show that the request is made in work to an audience. The term ‘‘news’’ connection with the requester’s role at means information that is about cur- the educational institution. NASA may rent events or that would be of current seek assurance from the requester that interest to the public. Examples of new the request is in furtherance of schol- media entities include television or arly research and will advise requesters radio stations that broadcast ‘‘news’’ of their placement in the category in to the public at large and publishers of this paragraph (c)(2). A request for educational purposes may be presumed if periodicals that disseminate ‘‘news’’ submitted on the Institution’s letter- and make their products available head and signed by the Dean of the through a variety of means to the gen- School or Department. eral public, including news organiza- (A) Example 1. A request from a pro- tions that disseminate solely on the fessor of geology at a university for internet. These examples are not all in- records relating to soil erosion, written clusive. As methods of news delivery on letterhead of the Department of Ge- evolve, alternative news media entities ology, would be presumed to be from an may come into existence. A request for educational institution. records supporting the news-dissemina- (B) Example 2. A request from the tion function of the requester will not same professor of geology seeking drug be considered to be for a commercial information from the Food and Drug use. ‘‘Freelance’’ journalists who dem- Administration in furtherance of a onstrate a solid basis for expecting murder mystery he is writing would publication through a news media enti- not be presumed to be an institutional ty will be considered as a representa- request, regardless of whether it was tive of the news media. A publishing written on institutional stationery. contract would provide the clearest (C) Example 3. A student, who makes evidence that publication is expected; a request in furtherance of the stu- however, agencies can also consider a dent’s coursework or other school- requester’s past publication record in sponsored activities and provides a making this determination. Agencies copy of a course syllabus or other rea- will advise requesters of their place- sonable documentation to indicate the ment in the category in this paragraph research purpose for the request, would (c)(3). qualify as part of the fee category in (iii) Requesters seeking the fee cat- this paragraph (c)(2). egory in this paragraph (c)(3) who do (ii) For the purposes of a non-com- not articulate sufficient information to mercial scientific institution, it must support their request will not be in- be solely for the purpose of conducting cluded in the fee category in this para- scientific research, the results of which graph (c)(3). Additionally, FOIA staff are not intended to promote any par- may grant a reduction of fees if the re- ticular product or industry. Requests quester can articulate the information must be sent on the letterhead of the of this section for some of the docu- scientific institution and signed by the ments. responsible official-in-charge of the (4) All other requesters. NASA shall project/program associated with the charge requesters who do not fit into subject of the documents that are any of the categories mentioned in this being requested. section fees in accordance with the fee (3) Representative of the news media. (i) table in paragraph (b) of this section. NASA shall provide documents to requesters in the category in this para- [79 FR 46678, Aug. 11, 2014, as amended at graph (c)(3) for the cost of duplication NASA–2019–0005, 84 FR 54778, Oct. 11, 2019]

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§ 1206.508 Aggregation of requests. § 1206.511 Other rights and services. (a) A requester may not file multiple Nothing in this subpart shall be con- requests at the same time, each seek- strued to entitle any person to any ing portions of a document or docu- service or to the disclosure of any ments, solely in order to avoid pay- record that is not required under the ment of fees. FOIA. (b) When NASA has reason to believe that a requester or a group of request- Subpart F—Commercial ers acting in concert is attempting to divide a request into a series of re- Information quests on a single subject or related § 1206.600 General policy. subjects for the purpose of avoiding the assessment of fees, NASA will aggre- (a) Notice shall be given to a sub- gate any such requests and charge ac- mitter whenever the information re- cordingly. quested is commercial information and (c) NASA will consider that multiple has been designated by the submitter requests made within a 30-day period as information deemed protected from were so intended submitted as such to disclosure under Exemption 4 of the avoid fees, unless there is evidence to Act, or the Agency otherwise has rea- the contrary. son to believe that the information (d) NASA will aggregate requests sep- may be protected from disclosure under arated by a longer period of time only Exemption 4. For the purpose of apply- when there is a reasonable basis for de- ing the notice requirements, commer- termining that aggregation is war- cial information is information pro- ranted in view of all the circumstances vided by a submitter and in the posses- involved. sion of NASA, that may arguably be (e) NASA will not aggregate multiple exempt from disclosure under the pro- requests on unrelated subjects from visions of Exemption 4 of the FOIA (5 one requester or organization. U.S.C. 552(b)(4)). The meaning ascribed to this term for the purpose of this no- § 1206.509 Form of payment. tice requirement is separate and should Payment shall be made by check or not be confused with use of this or money order payable to the ‘‘Treasury similar terms in determining whether of the United States,’’ or by credit card information satisfies one of the ele- per instructions in the initial deter- ments of Exemption 4. mination or billing invoice and sent to (b) A submitter is a person or entity NASA. outside the Federal Government from whom the Agency directly or indirectly § 1206.510 Nonpayment of fees. obtains commercial or financial infor- (a) Requesters are advised that mation. The term submitter includes, should they fail to pay the fees as- but is not limited to corporations, sessed, they may be charged interest state governments, individuals, and on the amount billed starting on the foreign governments. 31st day following the day on which the (c) The notice requirements of billing was sent. Interest will be at the § 1206.601 will not apply if: rate prescribed in 31 U.S.C. 3717. (1) The information has been lawfully (b) Applicability of Debt Collection Act published or officially made available of 1982 (Pub. L. 97–365). Requesters are to the public; or advised that if full payment is not re- (2) Disclosure of the information is ceived within 60 days after the billing required by a statute (other than this was sent, the procedures of the Debt part); or Collection Act may be invoked (14 CFR (3) The submitter has received notice 1261.407–1261.409). These procedures in- of a previous FOIA request which en- clude three written demand letters at compassed information requested in not more than 30-day intervals, disclo- the later request, and the Agency insure to a consumer reporting agency, tends to withhold and/or release infor- and the use of a collection agency, mation in the same manner as in the where appropriate. previous FOIA request.

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(d) An additional limited exception sent to the submitter by the FOIA Of- to the notice requirements of § 1206.601, fice or publication of the notice (as set to be used only when all of the fol- forth in § 1206.603(b)) to object to the re- lowing exceptional circumstances are lease and to explain the basis for the found to be present, authorizes the objection; Agency to withhold information that is (5) Notice that the information con- the subject of a FOIA request, based on tained in the submitter’s objections Exemption 4 (5 U.S.C. 552(b)(4)), with- may itself be subject to disclosure out providing the submitter individual under the FOIA; notice when: (6) Notice that the Agency, not the (1) The Agency would be required to submitter, is responsible for deciding provide notice to over ten (10) submit- whether the information shall be re- ters, in which case, notification may be leased or withheld; accomplished by posting or publishing (7) Notice that failing to respond the notice in a place reasonably cal- within the timeframe specified under culated to accomplish notification. § 1206.601(b)(4) will create a presump- (2) Absent any response to the pub- tion that the submitter has no objec- lished notice, the Agency determines tion to the disclosure of the informa- that if it provided notice as is other- tion in question. wise required by § 1206.601, it is reason- (c) Whenever the Agency provides no- able to assume that the submitter tice pursuant to this section, the Agen- would object to disclosure of the infor- cy shall advise the requester that no- mation based on Exemption 4; and, tice and opportunity to comment are (3) If the submitter expressed the an- being provided to the submitter. ticipated objections, the Agency would uphold those objections. § 1206.602 Opportunity to object to dis- (e) The exception shall be used only closure. with the approval of the Chief Counsel (a) If a submitter has any objections of the Center, the Counsel to the In- to the disclosure of commercial infor- spector General, or the Associate Gen- mation, the submitter must provide a eral Counsel responsible for providing detailed written statement to the FOIA advice on the request. This exception office that specifies all factual and/or shall not be used for a class of docu- legal grounds for withholding the par- ments or requests, but only as war- ticular information under any FOIA ranted by an individual FOIA request. exemptions. (b) The submitter must include a § 1206.601 Notice to submitters. daytime telephone number, an email (a) Except as provided in § 1206.603(b) and mailing address, and a fax number and § 1206.603(c), the Agency shall pro- if available on a response to the FOIA vide a submitter with prompt written office. notice of a FOIA request that seeks its (c) A submitter who does not respond commercial information whenever re- within the time period specified under quired under § 1206.600(a). this subpart will be considered to have (b) A notice to a submitter must in- no objection to disclosure of the infor- clude: mation. (1) The exact language of the request (d) Responses received by the FOIA or an accurate description of the re- office after the time period specified in quest; § 1206.601(b)(4) will not be considered by (2) Access to or a description of the the FOIA office. An extension of time responsive records or portions thereof to respond may be granted provided the containing the commercial informa- submitter provides an explanation jus- tion to the submitter; tifying additional time within the time (3) A description of the procedures for period specified in § 1206.601(b)(4). objecting to the release of the possibly confidential information under § 1206.603 Notice of intent to disclose. § 1206.602; (a) The Agency shall carefully con- (4) A time limit for responding to the sider any objections of the submitter in Agency that shall not exceed 10 work- the course of determining whether to ing days from the date of the letter disclose commercial information. The

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Agency, not the submitter, is respon- (4) Include a copy of the initial re- sible for deciding whether the informa- quest for the Agency record and a copy tion will be released or withheld. of the adverse initial determination (b) Whenever the Agency decides to along with any other correspondence disclose commercial information over with the FOIA office; the objection of a submitter, the Agen- (5) To the extent possible, state the cy shall forward to the submitter a reasons the adverse initial determina- written statement which shall include tion should be reversed; and the following: (6) Be sent to the Administrator or (1) A brief explanation as to why the the Inspector General, as appropriate, Agency did not agree with any objec- within 90 days of the date of the initial tions; determination. (2) A description of the commercial (c) An official authorized to make a information to be disclosed, sufficient final determination may waive any of to identify information to the sub- the requirements of paragraph (b) of mitter; and this section, in which case the time (3) A date after which disclosure is limit for the final determination (see expected, which shall be no less than 10 § 1206.701(a)) shall run from the date of working days from the date of the let- such waiver. ter providing notification to the submitter by the FOIA Office (§ 1206.601). [79 FR 46678, Aug. 11, 2014, as amended at (c) The FOIA office will provide noti- NASA–2019–0005, 84 FR 54778, Oct. 11, 2019] fication regarding a FOIA lawsuit: (1) To a submitter, when a requester § 1206.701 Actions on appeals. brings suit seeking to compel disclo- (a) Except as provided in § 1206.403, sure of commercial information; or the Administrator or designee, or in (2) To a requester, when a submitter the case of records as specified in brings suit against the Agency in order § 1206.805, the Inspector General or des- to prevent disclosure of commercial in- ignee, shall make a final determination formation. on an appeal and notify the appellant thereof, within 20 working days after Subpart G—Appeals the receipt of the appeal by the Admin- istrator’s Office. § 1206.700 How to submit an appeal. (b) In ‘‘unusual circumstances’’ as de- (a) A member of the public who has fined in § 1206.403, the time limit for a requested an Agency record in accord- final determination may be extended, ance with subpart C of this part, and but not to exceed a total of 10 working who has received an initial determina- days in the aggregate in the processing tion which does not comply fully with of any specific appeal for an Agency the request, may appeal such an ad- record. The extension must be taken verse initial determination to the Ad- before the expiration of the 20 working ministrator, or, for records as specified day time limit. The appellant will be in § 1206.805, to the Inspector General notified in writing in accordance with within 90 days from the date of the ini- § 1206.403. tial determination letter. (c) If processing time will exceed or (b) The appeal must: is expected to exceed 30 working days, (1) Be in writing; the appellant will be notified of the (2) Be addressed to the Adminis- delay in processing and the reason for trator, NASA Headquarters, Executive the delay. Secretariat, Washington, DC 20546, or, (d) If the final determination re- for records as specified in § 1206.805, to verses in whole or in part the initial the Inspector General, NASA Head- determination, the record requested (or quarters, Room 8U71, 300 E Street, SW, portions thereof) shall be made avail- Washington, DC 20546; able promptly to the requester, as pro- (3) Be identified clearly on the enve- vided in the final determination. lope and in the letter as an ‘‘Appeal (e) If a reversal in whole or in part of under the Freedom of Information the initial determination requires addi- Act;’’ tional document search or production,

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associated fees will be applicable in ac- gated the overall responsibility for de- cordance with fee guidance in this reg- veloping and administering the FOIA ulation. program within NASA to the Principal (f) If the final determination sustains Agency FOIA Officer, located in the Of- in whole or in part an adverse initial fice of Communications. This includes: determination, the notification of the (1) Developing regulations in con- final determination shall: sultation with the Office of General (1) Explain the basis on which the Counsel, providing guidelines, proce- record (or portions thereof) will not be dures, and standards for the Agency’s made available; FOIA program; (2) Include the name and title of the (2) Overseeing all FOIA offices and person making the final determination; programs and ensuring they are in (3) Include a statement that the final compliance with FOIA laws and regula- determination is subject to judicial re- tions; view under 5 U.S.C. 552(a)(4); (3) Ensuring implementation of the (4) Provide a statement regarding the FOIA Programs throughout the Agency mediation services of the Office of Gov- and keeping the Chief FOIA Officer and ernment Information Services (OGIS) the Deputy Associate Administrator as a non-exclusive alternative to litiga- for Communications informed of the tion; and Agency’s FOIA performance; (5) Enclose a copy of 5 U.S.C. (4) Providing program oversight, 552(a)(4). technical assistance, and training to (g) Before seeking a review by a court employees to ensure compliance with of a FOIA office’s adverse initial deter- the Act; mination, a requester must generally submit a timely administrative appeal (5) Preparing the Agency’s FOIA An- in accordance with this part. nual Report to the Department of Jus- tice (DOJ) and Congress, as well as the § 1206.702 Litigation. Chief FOIA Officer’s Report; In any instance in which a requester (6) Preparing all other reports as re- brings suit concerning a request for an quired to DOJ, OGIS, and Congress or Agency record under this part, the within the Agency; matter shall promptly be referred to (7) Developing, conducting, and re- the General Counsel with a report on viewing all internal Agency FOIA the details and status of the request. training for NASA FOIA staff; (8) Directly supervising the Head- Subpart H—Responsibilities quarters FOIA Office. (c) The Chief FOIA Officer is respon- § 1206.800 Delegation of authority. sible for ensuring NASA has appointed FOIA Public Liaisons, who are respon- Authority necessary to carry out the sible for and able to assist in reducing responsibilities specified in this sub- delays, increasing transparency and part is delegated from the Adminis- understanding of the status of re- trator to the officials named in this quests, and assisting in the resolution subpart. of disputes at each Center or Compo- § 1206.801 Chief FOIA Officer. nent. (a) The Associate Administrator, Of- [79 FR 46678, Aug. 11, 2014, as amended at fice of Communications, is designated NASA–2019–0005, 84 FR 54778, Oct. 11, 2019] as the Chief FOIA Officer for the Agen- cy. The Chief FOIA Officer is delegated § 1206.802 General Counsel. authority for administering the FOIA The General Counsel is responsible and all related laws and regulations for the interpretation of 5 U.S.C. 552 within the Agency. The Associate Ad- and of this part, as well as providing ministrator has delegated the day-to- legal guidance with regard to disclo- day oversight of the Agency FOIA Pro- sure of Agency records. The General gram to the Deputy Associate Adminis- Counsel is also responsible for the han- trator for Communications. dling of appeals and litigation in con- (b) The Deputy Associate Adminis- nection with a request for an Agency trator for Communications has dele- record under this part.

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§ 1206.803 NASA Headquarters. § 1206.805 Inspector General. Except as otherwise provided under (a) The Inspector General or designee this subpart, the Deputy Associate Ad- is responsible for making final deter- ministrator for Communications is re- minations under § 1206.701, within the sponsible for the following: time limits specified in subpart G of (a) Delegating the authority for di- this part, concerning audit, inspection rect oversight of the Headquarters and investigative records originating FOIA Office to the Principal Agency in the Office of the Inspector General, FOIA Officer. records from outside the Government (b) When denying records in whole or related to an audit, inspection or inves- in part, ensuring the Headquarters tigation, records prepared in response FOIA Office consults with the General to a request from or addressed to the Counsel charged with providing legal Office of the Inspector General, or advice to Headquarters before releasing other records originating within the an initial determination under Office of the Inspector General, after § 1206.307. consultation with the General Counsel or designee on an appeal of an initial § 1206.804 NASA Centers and Compo- determination to the Inspector Gen- nents. eral. Except as otherwise provided in this (b) The Assistant Inspectors General subpart, in coordination with the Dep- or their designees are responsible for uty Associate Administrator for Com- making initial determinations under munications, the Director of each subpart C concerning Office of Inspec- NASA Center or the Official-in-Charge tor General records originating in the of each Center, is responsible for ensur- Office of the Inspector General, records ing the following: from outside the Government related (a) The Director of Public Affairs or to Office of Inspector General records the Head of the Public Affairs Office at prepared in response to a request from the Center has delegated authority to or addressed to the Office of the Inspec- process all FOIA requests at their re- tor General, or other records origi- spective Center. nating with the Office of the Inspector (b) This delegated authority has fur- General, after consultation with the Counsel to the Inspector General or ther been delegated to the FOIA Offi- designee. cers who are designated to work at NASA Centers and supervised by the (c) The Inspector General or designee Director of Public Affairs or Head of is responsible for ensuring that re- the Public Affairs Office for that Cen- quests for Agency records as specified in paragraphs (a) and (b) of this section ter. If a FOIA Officer working at a par- are processed and initial determina- ticular NASA Center vacates the positions are made within the time limits tion, the Deputy Associate Adminis- specified in subpart D of this part. trator for Communications will designate a new FOIA Officer, supervised (d) The Inspector General or designee is responsible for determining whether by the Principal Chief FOIA Officer, to unusual circumstances exist under process FOIA requests for that par- § 1206.403 that would justify extending ticular Center. the time limit for an initial or final de- (c) When denying records in whole or termination, for records as specified in in part, the FOIA Officer designated to paragraphs (a) and (b) of this section. process records for the Center will con- (e) Records as specified in paragraphs sult with the Chief Counsel or the (a) and (b) of this section include any Counsel charged with providing legal records located at Regional and field advice to that FOIA office before re- Inspector General Offices, as well as leasing an initial determination under records located at the Headquarters Of- § 1206.307. fice of the Inspector General. [79 FR 46678, Aug. 11, 2014, as amended at [79 FR 46678, Aug. 11, 2014, as amended at NASA–2019–0005, 84 FR 54779, Oct. 11, 2019] NASA–2019–0005, 84 FR 54779, Oct. 11, 2019]

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Subpart I—Location for Inspection part 735, and the executive branch-wide and Request of Agency Records financial disclosure regulation at 5 CFR part 2634. § 1206.900 FOIA offices and electronic [59 FR 49338, Sept. 28, 1994] libraries. (a) NASA Headquarters and each § 1207.102 Waiver of prohibition in 18 NASA Center have a FOIA Electronic U.S.C. 208. Library on the Internet. The Elec- (a) Prohibition. Employees are prohib- tronic library addresses are located on ited by criminal statute, 18 U.S.C. the NASA FOIA homepage http:// 208(a), from participating personally www.hq.nasa.gov/office/pao/FOIA/agency/ and substantially in an official capac- (b) In addition, a requester may sub- ity in any particular matter in which, mit a FOIA request electronically. The to their knowledge, they, or any person addresses are located on the NASA whose interests are imputed to them FOIA homepage under each Center under the statute, have a financial in- link. 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 disclosure, and other applicable financial interest is not so substantial regulations. as to be deemed likely to affect the in- 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. AUTHORITY: 5 U.S.C. 7301; 18 U.S.C. 207–208; (i) Employees who are required by 5 42 U.S.C. 2473(c)(1); 5 CFR 2635.102(b); 5 CFR CFR 2634.202 to file Public Financial part 2637; 5 CFR part 2640. Disclosure Reports; SOURCE: 52 FR 22755, June 16, 1987, unless (ii) Employees who are appointed otherwise noted. under authority of section 203(c)(2) (‘‘NASA Excepted Positions’’) or sec- Subpart A—General Provisions tion 203(c)(10) (‘‘Alien Scientists’’) of the National Aeronautics and Space § 1207.101 Cross-references to ethical Act of 1958, as amended (42 U.S.C. conduct, financial disclosure, and 2473(c)(2) and 2473(c)(10)); other applicable regulations. (iii) Astronauts and astronaut can- Employees of the National Aero- didates; nautics and Space Administration (iv) Chief Counsel; and (NASA) should refer to the executive (v) Procurement Officers. branch-wide Standards of Ethnical (2) For all other Headquarters em- Conduct at 5 CFR part 2635, the NASA ployees, the Associate Administrator regulation at 5 CFR part 6901 which for Headquarters Operations may ap- supplements the executive branch-wide prove waivers of 18 U.S.C. 208. This au- standards with respect to prohibitions thority may not be redelegated. and prior approval requirements appli- (3) For all other Center employees, cable to certain outside employment the Center Director or Deputy Center activities, the Office of Personnel Man- Director may approve waivers of 18 agement provisions on employee re- U.S.C. 208. This authority may not be sponsibilities and conduct at 5 CFR redelegated.

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(d) Procedures for specific waiver. The (b) Alternate Designated Agency Ethics employee’s request for a waiver must Official. The Associate General Counsel be in writing. The request must de- (General) is the Alternate Designated scribe the particular matter involved, Agency Ethics Official. the relevant duties of the employee, (c) Deputy Ethics Officials. The fol- and the exact nature and amount of lowing officials are designated as Dep- the disqualifying financial interest. uty Ethics Officials: (1) Headquarters employees. (i) Those (1) The Deputy General Counsel; Headquarters employees described in (2) The Associate General Counsel paragraph (c)(1) of this section must (General); submit their requests to the Official- in-Charge of the Headquarters office in (3) The Senior Ethics Attorney as- which they are employed and to the signed to the Associate General Coun- General Counsel for concurrence. The sel (General); and Official-in-Charge will then submit the (4) The Chief Counsel at each NASA request to the Administrator with rec- Center and Component Facility. ommendations on the proposed waiver. (d) Agency Designee. As used in 5 CFR (ii) Other Headquarters employees part 2635, the term ‘‘Agency Designee’’ must submit their requests to the As- refers to the following: sociate General Counsel (General) for (1) For employees at NASA Head- concurrence, and to the Associate Ad- quarters, or for matters affecting em- ministrator for Headquarters Oper- ployees Agencywide, the Associate ations for approval. Deputy Administrator, the Designated (2) Center employees. (i) Those Center Agency Ethics Official, the Alternate employees described in paragraph (c)(1) Designated Agency Ethics Official, or of this section must submit their re- the Chief of Staff; and quests to the Center Chief Counsel for (2) For Center employees, the Center concurrence and then to the Director Director, who may delegate specific re- of the Center where they are employed. sponsibilities of the Agency Designee The Center Director will provide the to the Center Chief Counsel or to an- request, with recommendations, to the other official who reports directly to appropriate Enterprise Associate Ad- the Center Director. ministrator and to the General Counsel for review and submission to the Ad- (e) Cross-references. For regulations ministrator. on the appointment, responsibilities, (ii) Other Center employees must and authority of the Designated Agen- submit their requests to the Center cy Ethics Official, Alternate Des- Chief Counsel for concurrence, and ignated Agency Ethics Official, and then to their Center Director or Dep- Deputy Ethics Officials, see 5 CFR part uty Center Director for approval. 2638. For the responsibilities of the (3) Copies of approved waivers must Agency Designee, see 5 CFR part 2635. be forwarded to the Associate Adminis- [66 FR 59138, Nov. 27, 2001] trator for Human Resources and Edu- cation, the General Counsel, and the Office of Government Ethics. Subpart B—Post-Employment (e) Cross-references. For regulations Regulations concerning general waiver guidance and exemptions under 18 U.S.C. 208, see SOURCE: 54 FR 4003, Jan. 27, 1989; 55 FR 5 CFR part 2640. 9250, Mar. 12, 1990, unless otherwise noted. Redesignated at 59 FR 49338, Sept. 28, 1994. [66 FR 59137, Nov. 27, 2001]

§ 1207.103 Designations of responsible § 1207.201 Scope of subpart. officials. This subpart provides guidance to (a) Designated Agency Ethics Official. former NASA government employees The General Counsel of NASA is the who are subject to the restrictions of Designated Agency Ethics Official and Title V of the Ethics of Government is delegated the authority to coordi- Act of 1978, as amended, and who want nate and manage NASA’s ethics pro- to communicate scientific or technical gram as set forth in 5 CFR 2638.203. information to NASA.

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§ 1207.202 Exemption for scientific and 246–255, 42 U.S.C. 4601 note) are set technological communications. forth in 24 CFR part 24. (a) Whenever a former government [52 FR 48017, Dec. 17, 1987; 54 FR 8912, Mar. 2, employee who is subject to the con- 1989] straints of post-employment conflict of interest, 18 U.S.C. 207, wishes to com- PART 1209—BOARDS AND municate with NASA under the exemp- COMMITTEES tion in section 207(j)(5) for the making of a communication solely for the pur- Subparts 1–2 [Reserved] pose of furnishing scientific or technological information, he or she shall Subpart 3—Contract Adjustment Board state to the NASA employee contracted, the following information: Sec. (1) That he or she is a former govern- 1209.300 Scope. ment employee subject to the post em- 1209.301 Authority. ployment restrictions of 18 U.S.C. 207 1209.302 Establishment of Board. (a), (c), or (d)—specify which; 1209.303 Functions of Board. 1209.304 Membership. (2) That he or she worked on certain 1209.305 Legal advice and assistance. NASA programs—enumerate which; and Subpart 4—Inventions and Contributions (3) That the communication is solely Board for the purpose of furnishing scientific or technological information. 1209.400 Scope. (b) If the former government em- 1209.401 Establishment. ployee has questions as to whether the 1209.402 Responsibilities. communication comes within the sci- 1209.403 Organizational location. 1209.404 Membership. entific and technological exemption, he 1209.405 Supporting services. or she should contact the General Counsel, the designated agency ethics official. Subparts 1–2 [Reserved] [54 FR 4003, Jan. 27, 1989; 55 FR 9250, Mar. 12, 1990. Redesignated and amended at 59 FR Subpart 3—Contract Adjustment 49338, Sept. 28, 1994] Board

PART 1208—UNIFORM RELOCA- AUTHORITY: Pub. L. 85–804 and 51 U.S.C. TION ASSISTANCE AND REAL 20113. PROPERTY ACQUISITION FOR SOURCE: 51 FR 28924, Aug. 13, 1986, unless FEDERAL AND FEDERALLY AS- otherwise noted. SISTED PROGRAMS § 1209.300 Scope. This subpart continues in effect the AUTHORITY: Sec. 213, Uniform Relocation Contract Adjustment Board (herein- Assistance and Real Property Acquisition after referred to as ‘‘the Board’’) to Policies Act of 1970, Pub. L. 91–646, 84 Stat. consider and dispose of requests for ex- 1894 (42 U.S.C. 4601) as amended by the Sur- face Transportation and Uniform Relocation traordinary contractual adjustments Assistance Act of 1987, Title IV of Pub. L. by contractors of the National Aero- 100–17, 101 Stat. 246–256 (42 U.S.C. 4601 note). nautics and Space Administration (hereinafter referred to as NASA). § 1208.1 Uniform Relocation Assistance and Real Property Acquisition. § 1209.301 Authority. Regulations and procedures for com- (a) The Act of August 28, 1958 (50 plying with the Uniform Relocation U.S.C. 1431–35) (hereinafter referred to Assistance and Real Property Acquisi- as ‘‘the Act’’), empowers the President tion Policies Act of 1970 (Pub. L. 91–646, to authorize departments and agencies 84 Stat. 1894, 42 U.S.C. 4601), as amend- exercising functions in connection with ed by the Surface Transportation and the national defense to enter into con- Uniform Relocation Assistance Act of tracts or into amendments or modifica- 1987 (Title IV of Pub. L. 100–17, 101 Stat. tions of contracts and to make advance

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payments, without regard to other pro- whom shall be appointed by the Admin- visions of law relating to the making, istrator. performance, amendment, or modification of contracts, whenever the Presi- § 1209.305 Legal advice and assistance. dent deems that such action would fa- The General Counsel of NASA shall cilitate the national defense. provide the Board with all necessary (b) Executive Order No. 10789, dated advice and assistance. November 14, 1958 (23 FR 8897), authorizes the Administrator, NASA, to exercise the authority conferred by the Act Subpart 4—Inventions and and to prescribe regulations for the Contributions Board carrying out of such authority. (c) Federal Acquisition Regulation AUTHORITY: 51 U.S.C. 20135(g) and 20136. (FAR), part 50, April 1, 1985, and NASA/ SOURCE: 51 FR 3945, Jan. 31, 1986, unless FAR Supplement 84–2, part 18–50, Octo- otherwise noted. ber 19, 1984, establishes standards and procedures for the disposition of re- § 1209.400 Scope. quests for extraordinary contractual This subpart describes the functions, adjustments by NASA contractors. authority, and membership of the NASA Inventions and Contributions § 1209.302 Establishment of Board. Board (hereafter referred to as ‘‘the The Board was established on May 15, Board’’). 1961, and is continued in effect by this regulation. § 1209.401 Establishment. [51 FR 28924, Aug. 13, 1986, as amended at 78 Pursuant to the authority of the Na- FR 20423, Apr. 5, 2013] 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. contractual adjustments under the Act. Such authority will be exercised § 1209.402 Responsibilities. in accordance with the standards and (a) Waiver of rights in inventions. procedures established by the Adminis- Under the authority of 51 U.S.C. trator, subject to such limitations as 20135(g) and pursuant to 14 CFR part the Administrator may prescribe. 1245 subpart 1, the Board will receive (b) The Board shall have the power to and evaluate petitions for waiver of approve, authorize or direct any ac- rights of the United States to invention, including the modification or re- tions, accord each interested party an lease of any obligations, and to make opportunity for a hearing, and trans- determinations and findings which are mit to the Administrator its findings necessary or appropriate for the con- of fact as to such petitions and its rec- duct of its functions, and may adopt ommendations for action to be taken such rules of procedure as it considers with respect thereto. desirable. (b) Monetary awards for scientific and (c) The concurring vote of a majority technical contributions. (1) Under the au- of the total Board membership shall thority of 51 U.S.C. 20136 and pursuant constitute an action of the Board. De- to 14 CFR part 1240, the Board will re- cisions of the Board shall be final but ceive and evaluate each application for the Board may reconsider and modify, award for any scientific or technical correct or reverse any Board decision contribution to the Administration previously made. which is determined to have significant value in the conduct of aeronautical § 1209.304 Membership. and space activities, will accord each The Board will consist of a chair- applicant an opportunity for a hearing person and four other members, all of upon such application, and will then

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transmit to the Administrator its rec- (2) Establish such panels as may be ommendation as to the amount of the considered necessary to discharge the monetary award and the terms of the responsibilities and perform the func- award, if any, to be made for such con- tions of the Board; and tribution. (3) Issue implementing rules and pro- (2) If the contribution is made by a cedures, and take such other actions as Government employee, the Board is are necessary to perform the Board’s also authorized to consider such con- functions. tribution for award under the Incentive Awards Program and to make an § 1209.405 Supporting services. award, if any, on its own cognizance, (a) The staff of the Board is estab- up to the amount of $10,000, in accord- lished to assist the Board in dis- ance with NASA supplements to Chap- charging its functions and responsibil- ter 451 of the Federal Personnel Man- ities. The staff will: ual covering this subject. (1) Prepare analyses of petitions for [76 FR 44462, July 26, 2011] waiver of rights to inventions for the consideration of the Board; § 1209.403 Organizational location. (2) Prepare evaluation of proposed The Board shall be established within awards; an office or department of NASA as (3) Document Board actions; and designated by the Administrator. (4) Perform such other functions as [76 FR 44462, July 26, 2011] may be required. (b) A full-time director of the staff § 1209.404 Membership. will serve as a nonvoting member of (a) The Board will consist of a full- the Board, and will direct the activities time Chairperson and at least six mem- of the staff of the Board. bers appointed by the Administrator (c) The director of the staff of the from within NASA. One of the mem- Board will report to the Chairperson of bers will be designated by the Chair- the Board. person as Vice-Chairperson. The Chair- person is responsible directly to the PARTS 1210–1211 [RESERVED] Administrator. (b) The Chairperson of the Board is appointed for an unlimited period. All PART 1212—PRIVACY ACT—NASA other Board members normally will be REGULATIONS appointed initially for a period of 3 years. The Chairperson is authorized to Subpart 1212.1—Basic Policy extend the initial appointment of any Sec. Board member for an additional period 1212.100 Scope and purpose. of service. If a member resigns or is 1212.101 Definitions. otherwise unable to participate in the Board’s activities, a replacement may Subpart 1212.2—Requests for Access to be appointed for the remainder of the Records uncompleted term and, with the approval of the Chairperson, may be ap- 1212.200 Procedures for requesting records pointed for a full 3-year term upon the subject to the Privacy Act. expiration of the original term. This 1212.201 Requesting a record. procedure will provide the Board with a 1212.202 Identification procedures. continual infusion of new members 1212.203 Disclosures. with a variety of professional back- 1212.204 Fees. grounds and interests. Duties per- 1212.205 Exceptions to individuals’ rights of access. formed by the members of the Board will be in addition to their regular du- Subpart 1212.3—Amendments to Privacy ties. Act Records (c) The Chairperson is authorized to: (1) Assemble the Board as required to 1212.300 Requesting amendment. discharge the duties and responsibil- 1212.301 Processing the request to amend. ities of the Board; 1212.302 Granting the request to amend.

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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 Centers, and NASA Component Subpart 1212.5—Exemptions to Individuals’ Installations, as defined in part 1201 of Rights of Access this chapter. 1212.500 Exemptions under 5 U.S.C. 552a (j) [57 FR 4928, Feb. 11, 1992, as amended at 77 and (k). FR 60621, Oct. 4, 2012] 1212.501 Record systems determined to be exempt. § 1212.101 Definitions. For the purposes of this part, the fol- Subpart 1212.6—Instructions for NASA lowing definitions shall apply in addi- Employees tion to definitions contained in the 1212.600 General policy. Privacy Act of 1974, as amended (5 1212.601 Maintenance and publication re- U.S.C. 552a): quirements for systems of records. (a) The term individual means a liv- 1212.602 Requirements for collecting infor- ing person who is either a citizen of the mation. United States or an alien lawfully ad- 1212.603 Mailing lists. mitted for permanent residence. 1212.604 Social security numbers. 1212.605 Safeguarding information in sys- (b) The term maintain includes main- tems of records. tain, collect, use or disseminate. 1212.606 Duplicate copies of records or por- (c) The term record means any item, tions of records. collection, or grouping of information about an individual including, but not Subpart 1212.7—NASA Authority and limited to, education, financial trans- Responsibilities actions, medical history, and criminal 1212.700 NASA employees. or employment history, and that con- 1212.701 Associate Deputy Administrator. tains a name, or the identifying num- 1212.702 The Inspector General. ber, symbol, or other identifying par- 1212.703 NASA Chief Information Officer. ticular assigned to the individual, such 1212.704 Headquarters and Field Centers or as a finger or voice print or a photo- Component Facilities. graph. 1212.705 System manager. (d) The term system of records means 1212.706 Assistant Administrator for Pro- curement. a group of any records from which in- 1212.707 Delegation of authority. formation is retrieved by the name of the individual or by some identifying Subpart 1212.8—Failure To Comply With number, symbol or other identifying Requirements of This Part particular assigned to the individual. (e) The term system manager means 1212.800 Civil remedies. the NASA official who is responsible 1212.801 Criminal penalties. for a system of records as designated in AUTHORITY: The National Aeronautics and the system notice of that system of Space Act, as amended, 51 U.S.C. 20101 et seq.; records published in the FEDERAL REG- the Privacy Act of 1974, as amended, 88 Stat. ISTER. When a system of records in- 1896, 5 U.S.C. 552a. cludes portions located at more than SOURCE: 57 FR 4928, Feb. 11, 1992, unless one NASA Center, the term system man- otherwise noted. ager includes any subsystem manager designated in the system notice as Subpart 1212.1—Basic Policy being responsible for that portion of the system of records located at the re- § 1212.100 Scope and purpose. spective Center. This part 1212 implements the Pri- (f) The term systems notice means, vacy Act of 1974, as amended (5 U.S.C. with respect to a system of records the 552a). It establishes procedures for indi- publication of information in the FED- viduals to access their Privacy Act ERAL REGISTER upon establishment or records and to request amendment of revision of the existence and character

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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 Center Privacy Man- (g) The term routine use means, with ager or Freedom of Information Act respect to the disclosure of a record, (FOIA) Office at NASA Headquarters or the use of the record for a purpose Field Center. The request should be which is compatible with the purpose identified clearly on the envelope and for which it was collected. on the letter as a ‘‘Request Under the (h) The term NASA employee or NASA Privacy Act.’’ official, particularly for the purpose of (2) Where possible, requests should § 1212.203(g) relates to the disclosure of contain the following information to a record to those who have a need for ensure timely processing: the record in the performance of their (i) Name and address of subject. official duties, includes employees of a (ii) Identity of the system of records. NASA contractor which operates or maintains a NASA system of records (iii) Nature of the request. for or on behalf of NASA. (iv) Identifying information specified in the applicable system notice to as- [57 FR 4928, Feb. 11, 1992, as amended at 77 sist in identifying the request, such as FR 60621, Oct. 4, 2012] location of the record, if known, full name, birth date, time periods in which Subpart 1212.2—Requests for the records are believed to have been Access to Records compiled, etc. (d) NASA has no obligation to com- § 1212.200 Procedures for requesting ply with a nonspecific request for ac- records subject to the Privacy Act. cess to information concerning an indi- The procedures outlined in this sub- vidual, e.g., a request to provide copies part 1212.2 apply to the following types of ‘‘all information contained in your of requests made by individuals under files concerning me,’’ although a good the Privacy Act concerning records faith effort will be made to locate about themselves: records if there is reason to believe (a) To determine if information on NASA has records on the individual. If the requester is included in a system of the request is so incomplete or incom- records; prehensible that the requested record (b) For access to a record under 5 cannot be identified, additional infor- U.S.C. 552a(d)(1); and mation or clarification will be re- (c) For an accounting of disclosures quested in the acknowledgement, and of the individual’s Privacy Act records under 5 U.S.C. 552a(c)(3). assistance to the individual will be offered as appropriate. [57 FR 4928, Feb. 11, 1992, as amended at 77 (e) If the Center Privacy Manager re- FR 60621, Oct. 4, 2012] ceives a request for access, the Privacy Manager will record the date of receipt § 1212.201 Requesting a record. and immediately forward the request (a) Individuals may request access to to the responsible system manager for their Privacy Act records, either in handling. person or in writing. (f) If the Center FOIA Office receives (b) Individuals may also authorize a a first party request for records or ac- third party to have access to their Pri- cess, the FOIA Office will process the vacy Act records. This authorization request under the Privacy Act pursu- shall be in writing, signed by the indi- ant to this part. vidual and contain the individual’s address as well as the name and address (g) Normally, the system manager of the representative being authorized shall respond to a request for access access. The identities of both the sub- within 10 work days of receipt of the ject individual and the representative request and the access shall be pro- must be verified in accordance with the vided within 30 work days of receipt. procedures set forth in § 1212.202 of this (1) In response to a request for ac- part. cess, the system manager shall:

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(i) Notify the requester that there is (c) Identity procedures more strin- no record on the individual in the sys- gent than those required in this section tem of records and inform the re- may be prescribed in the system notice quester of the procedures to follow for when the records are medical or other- appeal (See § 1212.4); wise sensitive. (ii) Notify the requester that the record is exempt from disclosure, cite § 1212.203 Disclosures. the appropriate exemption, and inform (a) The system manager shall keep a the requester of the procedures to fol- disclosure accounting for each disclo- low for appeal (See § 1212.4); sure to a third party of a record from a (iii) Upon request, promptly provide system of records. This includes copies of the record, subject to the fee records disclosed pursuant to computer requirements (§ 1212.204); or matching programs. (iv) Make the individual’s record (b) Disclosure accountings are not re- available for personal inspection in the quired but are recommended for disclo- presence of a NASA representative. sures made: (2) Unless the system manager agrees (1) With the subject individual’s con- to another location, personal inspec- sent; or tion of the record shall be at the loca- (2) In accordance with § 1212.203(f) (1) tion of the record as identified in the and (2), below. system notice. (c) The disclosure accounting re- (3) When an individual requests quired by paragraph (a) of this section records in a system of records main- shall include: tained on a third party, the request (1) The date, nature, and purpose of shall be processed as a Freedom of In- the disclosure; and formation Act (FOIA) request under 14 (2) The name and address of the re- CFR part 1206. If the records requested cipient person or Agency. are subject to release under FOIA (5 (d) The disclosure accounting shall be U.S.C. 552(b)), then a Privacy Act ex- retained for at least 5 years after the emption may not be invoked to deny disclosure or for the life of the record, access. whichever is longer. (4) When an individual requests (e) The disclosure accounting main- records in a system of records maintained under the requirements of this tained on the individual, the request section is not itself a system of shall be processed under this part. records. NASA will not rely on exemptions con- (f) Records in a NASA system of tained in FOIA to withhold any record records may not be disclosed to third which is otherwise accessible to the in- parties without the consent of the sub- dividual under this part. ject individual. However, in consonance with 5 U.S.C. 552a(b), disclo- [57 FR 4928, Feb. 11, 1992, as amended at 77 sure may be authorized without con- FR 60621, Oct. 4, 2012; 78 FR 8963, Feb. 7, 2013] sent, if disclosure would be: (1) To an officer or employee of § 1212.202 Identification procedures. NASA who has a need for the record in (a) The system manager will release the performance of official duties; records to the requester or representa- (2) Required under the Freedom of In- tive in person only upon production of formation Act (5 U.S.C. 552) and part satisfactory identification which in- 1206 of this chapter; cludes the individual’s name, signa- (3) For a routine use described in the ture, and photograph or physical de- system notice for the system of scription. records; (b) The system manager will release (4) To the Bureau of the Census for copies of records by mail only when the purposes of planning or carrying out a circumstances indicate that the re- census or survey or related activity quester and the subject of the record pursuant to the provisions of Title 13, are the same. The system manager U.S. Code; may require that the requester’s signa- (5) To a recipient who has provided ture be notarized or witnessed by two NASA with advance adequate written individuals unrelated to the requester. assurance that the record will be used

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solely as a statistical research or re- (5) Making a copy of an amended porting record, and the record is to be record to provide evidence of the transferred in a form that is not indi- amendment; or vidually identifiable; (6) Copies of records if this is deter- (6) To the National Archives and mined to be in the best interest of the Records Administration as a record Government. which has sufficient historical or other (b) Fees for the duplication of records value to warrant its continued preser- will be assessed in accordance with vation by the United States Govern- § 1206.700(a) of this chapter. ment or for evaluation by the Archivist (c) Where it appears that duplication of the United States or the Archivist’s fees chargeable under this section will designee to determine whether the exceed $25, the requester shall be pro- record has such value; vided an estimate of the fees before (7) To another agency or to an instru- copies are made. Where possible, the mentality of any governmental juris- requester will be afforded the oppor- diction within or under the control of tunity to confer with Agency personnel the United States for a civil or crimi- in a manner which will reduce the fees, nal law enforcement activity, if the ac- yet still meet the needs of the re- tivity is authorized by law and if the quester. head of the agency or instrumentality (d) Where the anticipated fee charge- has made a written request to NASA able under this section exceeds $25, an specifying the particular portion de- advance deposit of part or all of the an- sired and the law enforcement activity ticipated fee may be required. for which the record is sought; (8) To a person pursuant to a showing § 1212.205 Exceptions to individual’s of compelling circumstances affecting rights of access. the health or safety of an individual if upon such disclosure notification is (a) The NASA Administrator has de- transmitted to the last known address termined that the systems of records of such individual; set forth in § 1212.501 are exempt from (9) To either House of Congress or, to disclosure to the extent provided there- the extent the matter is within its ju- in. risdiction, any committee or sub- (b) Medical records. Normally, an indi- committee, or any joint committee of vidual’s medical record shall be dis- Congress or subcommittee of any such closed to the individual, unless the sys- joint committee; tem manages, in consultation with a (10) To the Comptroller General, or medical doctor, determines that access any of the Comptroller’s authorized to the record could have an adverse ef- representative(s), in the course of the fect upon the individual. In this case, performance of the duties of the Gen- NASA shall allow access to the record eral Accounting Office; by a medical doctor designated in writ- (11) Pursuant to the order of a court ing by the requesting individual. of competent jurisdiction; or (c) Test and qualification materials. (12) To a consumer reporting agency Testing or examination material used in accordance with section 3711(f) of solely to determine individual quali- Title 31. fications for appointment or promotion in the Federal service the disclosure of [57 FR 4928, Feb. 11, 1992, as amended at 77 which would compromise the objec- FR 60621, Oct. 4, 2012] tivity or fairness of the testing or examination process and copies of certifi- § 1212.204 Fees. cates of eligibles and other lists of eli- (a) Fees will not be charged for: gibles, the disclosure of which is pro- (1) Search for a retrieval of the re- scribed by 5 CFR 300.201, shall be requesting individual’s records; moved from an individual’s record con- (2) Review of the records; taining such information before grant- (3) Making a copy of a record when it ing access. is a necessary part of the process of (d) Information compiled for civil ac- making the record available for review; tions or proceedings. Nothing in this (4) Transportation of the record(s); part shall allow an individual access to

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any information compiled in reason- deleted and destroyed. Incomplete in- able anticipation of a civil action or formation shall either be amended or proceeding. deleted and destroyed. The individual shall then be informed in writing that Subpart 1212.3—Amendments to the amendment has been made. If the Privacy Act Records inaccurate, irrelevant, untimely, or incomplete portion of the record has pre- § 1212.300 Requesting amendment. viously been disclosed, then the system manager shall notify those persons or Individuals may request that NASA agencies of the amended information, amend their records maintained in a referencing the prior disclosures (See NASA system of records under the pro- § 1212.402). visions of 5 U.S.C. 552a(d)(2). This request shall be in writing, addressed to the appropriate system manager, and Subpart 1212.4—Appeals and shall contain the following: Related Matters (a) A notation on the envelope and on § 1212.400 Appeals. the letter that it is a ‘‘Request for Amendment of Individual Record under (a) Individuals may appeal when the Privacy Act;’’ they: (b) The name of the system of (1) Have requested amendment of a records; record and have received an adverse (c) Any information necessary to re- initial determination; trieve the record, as specified in the (2) Have been denied access to a system notice for the system of records record; or, (See § 1212.201(c)(2)); (3) Have not been granted access (d) A description of that information within 30 work days of their request. (b) The Associate Deputy Adminis- in the record which is alleged to be in- trator or designee is responsible for accurate, irrelevant, untimely, or in- making final determinations of appeals complete; and, as specified in paragraphs (a)(1) (e) Any documentary evidence or ma- through (3) of this section for all Agen- terial available to support the request. cy records, with the exception of those [57 FR 4928, Feb. 11, 1992, as amended at 77 records originating in the Office of the FR 60621, Oct. 4, 2012] Inspector General for which the Inspec- tor General is responsible for making § 1212.301 Processing the request to final determinations of appeals. amend. (c) An appeal shall: (a) Within 10 work days of receipt by (1) Be in writing and addressed to the NASA of a request to amend a record, Associate Deputy Administrator, the system manager shall provide the NASA, Washington, DC 20546 or to the requester with a written determination Inspector General, NASA Head- or acknowledgement advising when ac- quarters, Washington, DC 20546, for tion may be taken. records as specified in paragraph (b) of (b) When necessary, NASA may uti- this section; lize up to 30 work days after receipt to (2) Be identified clearly on the enve- provide the determination on a request lope and in the letter as an ‘‘Appeal to amend a record. under the Privacy Act;’’ (c) If the request for amendment is (3) Include a copy of any pertinent denied, the determination shall explain documents; and the reasons for the denial and inform (4) State the reasons for the appeal. the requester of the procedures to fol- (d) Appeals from adverse initial de- low for appeal (See § 1212.4)). terminations or denials of access must be submitted within 30 work days of § 1212.302 Granting the request to the date of the requester’s receipt of amend. the initial determination. Appeals in- NASA shall make the requested volving failure to grant access may be amendment clearly on the record itself submitted any time after the 30 work and all information deemed to be inac- day period has expired (See curate, irrelevant, or untimely shall be § 1212.201(f)).

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(e) A final determination on an ap- which an accounting of the disclosure peal shall be made within 30 work days exists under the requirements of after its receipt by the Associate Dep- § 1212.203 of this part, with a copy of the uty Administrator or Inspector Gen- statement of dispute and addendum, eral for appeals concerning records along with a statement referencing the originating in the Office of the Inspec- prior disclosure. The subject individual tor General, unless, for good cause shall be notified as to those individuals shown, the Associate Deputy Adminis- or agencies which are provided with trator or Inspector General extends the statement of dispute and adden- such 30 work day period. Prior to the dum. expiration of the 30 work day period, (b) Any subsequent disclosure of a the requester shall be notified of any disputed record shall clearly note the such extension. portion of the record which is disputed (f) If a denial of a request to amend a and shall be accompanied by a copy of record is upheld, the final determina- the statement of dispute and adden- tion shall: dum. (1) Explain the basis for the detail; (2) Include information as to how the Subpart 1212.5—Exemptions to requester goes about filing a statement Individuals’ Rights of Access of dispute under the procedures of § 1212.401; and, § 1212.500 Exemptions under 5 U.S.C. (3) Include a statement that the final 552a (j) and (k). determination is subject to judicial re- (a) These provisions authorize the view under 5 U.S.C. 552a(g). Administrator of NASA to exempt cer- [57 FR 4928, Feb. 11, 1992, as amended at 77 tain NASA Privacy Act systems of FR 60621, Oct. 4, 2012] records from portions of the requirements of this regulation. § 1212.401 Filing statements of dispute. (b) The Administrator has delegated (a) A statement of dispute shall: this authority to the Associate 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- [57 FR 4928, Feb. 11, 1992, as amended at 77 ager; and, FR 60621, Oct. 4, 2012] (5) Be identified on the envelope and in the letter as a ‘‘Statement of Dis- § 1212.501 Record systems determined pute under the Privacy Act.’’ to be exempt. (b) The system manager shall prepare The Administrator has determined an addendum to the statement explain- that the following systems of records ing the basis for NASA’s refusal to are exempt to the extent provided here- amend the disputed record. A copy of inafter. the addendum shall be provided to the (a) Inspector General Investigations individual. Case Files—(1) Sections of the Act from (c) The system manager shall ensure which exempted. (i) The Inspector Gen- that the statement of dispute and ad- eral Investigations Case Files system dendum are either filed with the dis- of records is exempt from all sections puted record or that a notation appears of the Privacy Act (5 U.S.C. 552a) ex- in the record clearly referencing the cept the following sections: (b) relating statement of dispute and addendum so to conditions of disclosure; (c) (1) and that they may be readily retrieved. (2) relating to keeping and maintaining a disclosure accounting; (e)(4) (A) § 1212.402 Disclosure to third parties through (F) relating to publishing a of disputed records. system notice setting forth name, loca- (a) The system manager shall tion, categories of individuals and promptly provide persons or agencies records, routine uses, and policies re- to whom the disputed portion of a garding storage, retrievability, access record was previously disclosed and for controls, retention and disposal of the

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records; (e) (6), (7), (9), (10), and (11) re- (F) To prevent disclosure of law en- lating to dissemination and mainte- forcement techniques and procedures. nance of records, and (i) relating to (G) To avoid endangering the life or criminal penalties. This exemption ap- physical safety of confidential sources plies to those records and information and law enforcement personnel. contained in the system of records per- (ii) Investigative records within this taining to the enforcement of criminal system of records which are compiled laws. for law enforcement purposes, other (ii) To the extent that noncriminal than material within the scope of sub- investigative files may exist within section (j)(2), are exempt under the this system of records, the Inspector provisions of 5 U.S.C. 552a(k)(2): Pro- General Investigations Case Files sys- vided, however, That if any individual is tem of records is exempt from the fol- denied any right, privilege, or benefit lowing sections of the Privacy Act (5 that they would otherwise be entitled U.S.C. 552a): (c)(3) relating to access to by Federal law, or for which they the disclosure accounting, (d) relating would otherwise be eligible, as a result to access to records, (e)(1) relating to of the maintenance of such material, the type of information maintained in such material shall be provided to such the records; (e)(4) (G), (H), and (I) relat- individual, except to the extent that ing to publishing the system notice in- the disclosure of such material would formation as to agency procedures for reveal the identity of a source who fur- access and amendment and information nished information to the Government as to the categories of sources or under an express promise that the iden- records, and (f) relating to developing tity of the source would be held in con- agency rules for gaining access and fidence, or, prior to January 1, 1975, 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 pertaining to criminal investigations. (C) To avoid unwarranted invasion of This system of records is exempt for personal privacy, by disclosure of infor- one or more of the following reasons: mation about third parties, including (A) To prevent interference with law other subjects of investigation, law en- enforcement proceedings. forcement personnel, and sources of in- (B) To avoid unwarranted invasion of formation. personal privacy, by disclosure of infor- (D) To fulfill commitments made to mation about third parties, including protect the confidentiality of sources. other subjects of investigation, inves- (E) To protect the identity of Federal tigators, and witnesses. employees who furnish a complaint or (C) To protect the identity of Federal information to the OIG, consistent employees who furnish a complaint or with section 7(b) of the Inspector Gen- information to the OIG, consistent eral Act of 1978, as amended, 5 U.S.C. with section 7(b) of the Inspector Gen- App. eral Act of 1978, as amended, 5 U.S.C. (F) To assure access to sources of App. confidential information, including (D) To protect the confidentiality of that contained in Federal, State, and non-Federal employee sources of infor- local criminal law enforcement information. mation systems. (E) To assure access to sources of (G) To prevent disclosure of law en- confidential information, including forcement techniques and procedures. that contained in Federal, State, and (H) To avoid endangering the life or local criminal law enforcement infor- physical safety of confidential sources mation systems. and law enforcement personnel.

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(iii) Records within this system of This system of records is exempt for records comprised of investigatory ma- one or more of the following reasons: terial compiled solely for the purpose (A) To fulfill commitments made to of determining suitability or eligibility protect the confidentiality of sources. for Federal civilian employment or ac- (B) To assure access to sources of cess to classified information, are ex- confidential information, including empt under the provisions of 5 U.S.C. that contained in Federal, State, and 552a(k)(5), but only to the extent that local criminal law enforcement infor- disclosure would reveal the identity of mation systems. a source who furnished information to (ii) Criminal Matter Records are con- the Government under an express tained in the system of records and are promise that the identity of the source exempt under the provisions of 5 U.S.C. would be held in confidence, or prior to 552a(k)(2): Provided, however, That if 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. prior to January 1, 1975, under an im- The Security Records System is ex- plied promise that the identity of the empted from the following sections of sources would be held in confidence. the Privacy Act (5 U.S.C. 552a): (c)(3) This system of records is exempt for relating to access to the disclosure ac- one or more of the following reasons: counting; (d) relating to access to the (A) To prevent interference with law records; (e)(1) relating to the type of enforcement proceedings. information maintained in the records; (B) To protect investigatory material (e)(4) (G), (H), and (I) relating to pub- compiled for law enforcement purposes. lishing the system notice information 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 information. (2) Reason for exemption. (i) Personnel 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 information are exempt under the provi- mation systems. sions of 5 U.S.C. 552a(k)(5), but only to (F) To prevent disclosure of law en- the extent that the disclosure of such forcement techniques and procedures. material would reveal the identity of (G) To avoid endangering the life or the source who furnished information physical safety of confidential sources to the Government under an express and law enforcement personnel. promise that the identity of the source (iii) The system of records includes would be held in confidence, or, prior records subject to the provisions of 5 to January 1, 1975, under an implied U.S.C. 552(b)(1) (required by Executive promise that the identity of the order to be kept secret in the interest sources would be held in confidence. of national defense or foreign policy),

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and such records are exempt under 5 within the scope of an authorized law U.S.C. 552a(k)(1). enforcement activity. (5) Maintain and provide access to [57 FR 4928, Feb. 11, 1992, as amended at 77 FR 60621, Oct. 4, 2012] records of other agencies under NASA’s control consistent with the regulations of this part. Subpart 1212.6—Instructions for (b) Any system of records maintained NASA Employees by NASA which is in addition to or substantially different from a Govern- § 1212.600 General policy. mentwide systems of records described In compliance with the Privacy Act in a systems notice published by an- and in accordance with the require- other agency shall be regarded as a ments and procedures of this regula- NASA system of records subject to the tion, NASA has an obligation to: requirements of this part. (a) Advise individuals, when re- (c) NASA shall provide adequate ad- quested, as to whether any specific sys- vance notice to Congress and OMB of tem of records maintained by NASA any proposal to establish a new system contains records pertaining to them; of records or alter any existing system (b) Prevent records being maintained of records as prescribed by OMB Cir- by NASA in a system of records for a cular No. A–130, appendix I. specific purpose from being used or made available for another purpose [57 FR 4928, Feb. 11, 1992, as amended at 77 without the individual’s consent; and, FR 60621, Oct. 4, 2012] (c) Permit individuals to have access § 1212.602 Requirements for collecting to information about themselves in a information. NASA system of records, to have a 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;

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(2) Whether disclosure is mandatory substantial harm, embarrassment, in- or voluntary; convenience, or unfairness to any indi- (3) The intended official use of the in- vidual on whom information is main- formation; tained. (4) The routine uses which may be (b) When records or copies of records made of the information, as published are distributed within NASA they shall in the system notices; be prominently identified as records (5) The effects, if any, on the indi- protected under the Privacy Act and vidual of not providing all or any part shall be subject to the same safeguard, of the requested information. retention, and disposition require- § 1212.603 Mailing lists. ments applicable to the system of NASA will not sell, rent, or other- records. wise disclose an individual’s name and (c) When records or copies of records address to anyone, unless otherwise are distributed to other Federal agen- specifically authorized by law. This is cies, other than those having custody not to be construed to require the of the systems of records, they shall be withholding of names and addresses prominently identified as records pro- otherwise permitted to be made public. tected under the Privacy Act. [57 FR 4928, Feb. 11, 1992, as amended at 77 (d) Records that are otherwise re- FR 60621, Oct. 4, 2012] quired by law to be released to the public need not be safeguarded or identi- § 1212.604 Social security numbers. fied as Privacy Act records. (a) It is unlawful for NASA to deny to [57 FR 4928, Feb. 11, 1992, as amended at 77 individuals any rights, benefits, or FR 60621, Oct. 4, 2012] privileges provided by law because of the individuals’ refusal to disclose § 1212.606 Duplicate copies of records their social security numbers, except or portions of records. where: (1) The disclosure is required by law; (a) NASA officials may maintain and or use, for official purposes, duplicate (2) The disclosure is from a system of copies of records or portions of records records in existence and operating be- from a system of records maintained fore January 1, 1975, and was required by their own organizational unit. This under statute or regulation adopted be- practice should occur only where there fore that date to verify the identity of are justifiable organizational needs for the individual(s). it, e.g., where geographic distances (b) Any time individuals are re- make use of the system of records time quested to disclose their social security consuming or inconvenient. These du- numbers, NASA shall indicate whether plicate copies shall not be considered a that disclosure is mandatory or vol- separate NASA system of records. For untary, by what authority the numbers example, an office head or designee are requested, and what uses will be may keep duplicate copies of per- made of them. sonnel, training, or similar records on § 1212.605 Safeguarding information in employees within the organization for systems of records. administrative convenience purposes. (b) No disclosure shall be made from (a) Safeguards appropriate for a NASA system of records shall be devel- duplicate copies outside of the organi- oped by the system manager in a writ- zational unit. Any outside request for ten plan approved by the Center Secu- disclosure shall be referred to the ap- rity Officer or Center Information propriate system manager for response. Technology Security Officer for elec- (c) Duplicate copies are subject to tronic records maintained in auto- the same safeguard requirements appli- mated systems. Safeguards must insure cable to the system of records. the security and confidentiality of records and protect against any anticipated threats or hazards to their security or integrity which could result in

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Subpart 1212.7—NASA Authority peal related to records originating with and Responsibilities the Office of the Inspector General (§ 1212.400(e)). § 1212.700 NASA employees. [77 FR 60622, Oct. 4, 2012] (a) Each NASA employee is responsible for adhering to the requirements § 1212.703 NASA Chief Information Of- of the Privacy Act and this regulation. ficer. (b) An employee shall not seek or ob- (a) The NASA Chief Information Offi- tain access to a record in a NASA sys- cer is responsible for the following: tem of records or to copies of any por- (1) Providing overall supervision and tion of such records under false precoordination of NASA’s policies and tenses. Only those employees with an procedures under this regulation; official ‘‘need to know’’ may seek and (2) Approving system notices for pub- obtain access to records pertaining to lication in the FEDERAL REGISTER; others. (3) Assuring that NASA employees (c) Employees shall refrain from dis- and officials are informed of their re- cussing or disclosing personal informa- sponsibilities and that they receive ap- tion about others which they have ob- propriate training for the implementa- tained because of their official need to tion of these requirments; and, know such information in the perform- (4) Preparing and submitting the bi- ance of official duties. ennial report on implementation of the (d) To the extent included in a con- Privacy Act to OMB and special re- tract which provides for the mainte- ports required under this regulation, nance by or on behalf of NASA of a sys- including establishing appropriate re- tem of records to accomplish a func- porting procedures in accordance with tion of NASA, the requirements of this OMB Circular No. A–130. section shall apply to contractor em- (b) The Chief Information Officer ployees who work under the contract. may establish a position of ‘NASA Pri- vacy Act Officer,’designate someone to § 1212.701 Associate Deputy Adminis- function as such an officer, and dele- trator. gate to that officer any of the functions described in paragraph (a) of this The Associate Deputy Administrator section. is responsible for: (a) Making final Agency determina- [57 FR 4928, Feb. 11, 1992. Redesignated and tions on appeals (§ 1212.400), except on amended at 77 FR 60622, Oct. 4, 2012] those related to records originating in the Office of the Inspector General; § 1212.704 Headquarters and Field Centers or Component Facilities. (b) Authorizing exemptions from one or more provisions of the Privacy Act (a) Officials-in-Charge of Head- for NASA systems of records (See quarters Offices, Directors of NASA § 1212.500); and, Field Centers and Officials-in-Charge of (c) Authorizing an extension for mak- Component Facilities are responsible ing a final determination on an appeal for the following with respect to those (§ 1212.400(d)), except for an appeal re- systems of records maintained in their lated to records originating in the Of- organization: fice of the Inspector General. (1) Avoiding the establishment of new systems of records or new routine uses [57 FR 4928, Feb. 11, 1992, as amended at 77 of a system of records without first FR 60621, Oct. 4, 2012] complying with the requirements of this regulation; § 1212.702 The Inspector General. (2) Ensuring that the requirements of The Inspector General is responsible this regulation and the Privacy Act are for: followed by employees; (a) Making final Agency determina- (3) Ensuring that there is appropriate tions on appeals related to records coordination within NASA before a de- originating with the Office of the In- termination is made to disclose infor- spector General (§ 1212.400), and mation without the individual’s con- (b) Authorizing an extension for sent under authority of 5 U.S.C. 552a(b) making a final determination on an ap- (See § 1212.203(f)); and

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(4) Providing appropriate oversight quest for information as to whether the for responsibilities and authorities ex- system contains a record pertaining to ercised by system managers under the individual; their jurisdiction (§ 1212.705). (9) Responding to an individual’s re- (5) Establish a position of Center Pri- quest for access and copying of a vacy Manager to assist in carrying out record, in accordance with subpart the responsibilities listed in this sec- 1212.2 of this part; tion. (10) Amending a record under subpart (b) [Reserved] 1212.3 of this part, or filing in an indi- [57 FR 4928, Feb. 11, 1992. Redesignated and vidual’s record a statement of dispute; amended at 77 FR 60622, Oct. 4, 2012; 78 FR (11) Preparing an addendum to an in- 8964, Feb. 7, 2013] dividual’s statement of dispute to be filed in the individual’s records, in ac- § 1212.705 System manager. cordance with § 1212.401; (a) Each system manager is respon- (12) Maintaining disclosure account- sible for the following with regard to ings in accordance with 5 U.S.C. 552a(c) the system of records over which the and § 1212.203 of this part. This includes system manager has cognizance: records disclosed pursuant to any com- (1) Overall compliance with this part, puter matching programs; NASA Policy Directive (NPD) 1382.17 (13) Notifying persons to whom a and NASA Procedural Requirements record has been disclosed and for which (NPR) 1382.1. an accounting was made as to disputes (2) Ensuring that each person in- and corrections involving the record; volved in the design, development, op- and eration, or maintenance of the system (14) Developing appropriate safe- of records is instructed with respect to guards for the system of records in ac- the requirements of this regulation and cordance with § 1212.605(a). the possible penalties for noncompli- (b) Where a system of records has ance; subsystems described in the system no- (3) Submitting a request to the Asso- tice, the subsystem manager will have ciate Deputy Administrator for an ex- the responsibilities outlined in para- emption of the system under subpart graph (a) of this section. Although the 1212.5 of this part, setting forth in pro- system manager has no line authority posed rulemaking form the reasons for over subsystem managers, the system the exemption and citing the specific manager does have overall functional provision of the Privacy Act which is responsibility for the total system, and believed to authorize the exemption; may issue guidance to subsystem man- (4) After consultation with the Office agers on implementation of this part. of the General Counsel or the Chief When furnishing information for re- Counsel, making reasonable efforts to quired reports, the system manager serve notice on an individual when any will be responsible for reporting the en- record on such individual is made tire system of records, including any available to any person under compul- subsystems. sory legal process when such process (c) Exercise of the responsibilities becomes a matter of public record; and authorities in paragraph (a) of this (5) Making an initial determination section by any system or subsystem on an individual’s request to correct or managers at a NASA Center shall be amend a record, in accordance with subject to any conditions or limita- § 1212.302; tions imposed in accordance with (6) Prior to disclosure of any record § 1212.704(a)(4) and (5). about an individual, assuring that the record is first reviewed for accuracy, [57 FR 4928, Feb. 11, 1992. Redesignated and completeness, timeliness, and rel- amended at 77 FR 60622, Oct. 4, 2012] evance; (7) Authorizing disclosures of a § 1212.706 Assistant Administrator for record without the individual’s consent Procurement. under § 1212.203(f)(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

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and procedures under which NASA contractor with responsibilities for main- tracts requiring the maintenance of a taining a Privacy Act system of system of records in order to accom- records. plish a NASA function are made sub- (b) Section 552a(i)(3). Any person who ject to the requirements of this part. knowingly and willfully requests or ob- [57 FR 4928, Feb. 11, 1992. Redesignated at 77 tains any record concerning an indi- FR 60622, Oct. 4, 2012] vidual from an agency under false pre- tenses shall be guilty of a misdemeanor § 1212.707 Delegation of authority. and fined not more than $5,000. Authority necessary to carry out the responsibilities specified in this regula- PART 1213—RELEASE OF INFORMA- tion is delegated to the officials TION TO NEWS AND INFORMA- named, subject to any conditions or TION MEDIA limitations imposed in accordance with this subpart 1212.7. Sec. [57 FR 4928, Feb. 11, 1992. Redesignated at 77 1213.100 Scope. FR 60622, Oct. 4, 2012] 1213.101 Applicability. 1213.102 Policy. 1213.103 Responsibilities. Subpart 1212.8—Failure To Com- 1213.104 Public information coordination ply With Requirements of This and concurrence. Part 1213.105 Interviews. 1213.106 Preventing release of classified in- § 1212.800 Civil remedies. formation to the media. Failure to comply with the require- 1213.107 Preventing unauthorized release of sensitive but unclassified (SBU) informa- ments of the Privacy Act and this part tion/material to the news media. could subject NASA to civil suit under 1213.108 Multimedia materials. the provisions of 5 U.S.C. 552a(g). 1213.109 News releases concerning international activities. § 1212.801 Criminal penalties. AUTHORITY: 42 U.S.C. 2473(a)(3). (a) A NASA officer or employee may be subject to criminal penalties under SOURCE: 71 FR 49989, Aug. 24, 2006, unless the provisions of 5 U.S.C. 552a(i) (1) and otherwise noted. (2). § 1213.100 Scope. (1) Section 552a(i)(1). Any officer or employee of an agency, who by virtue This part sets forth policy governing of employment or official position, has the release of public information, possession of, or access to, agency which is defined as information in any records which contain individually form provided to news and information identifiable information the disclosure media, especially information that has of which is prohibited by this section the potential to generate significant or by rules or regulations established media or public interest or inquiry. Ex- thereunder, and who knowing that dis- amples include, but are not limited to, closure of the specific material is so press releases, media advisories, news prohibited, willfully discloses the ma- features, and Web postings. Not in- terial in any manner to any person or cluded under this definition are sci- agency not entitled to receive it, shall entific and technical reports, Web post- be guilty of a misdemeanor and fined ings designed for technical or scientific not more than $5,000. interchange, and technical information (2) Section 552a(i)(2). Any officer or presented at professional meetings or employee of any agency who willfully in professional journals. maintains a system of records without meeting the notice requirements of § 1213.101 Applicability. subsection (e)(4) of this section shall be (a) This policy applies to NASA guilty of a misdemeanor and fined not Headquarters, NASA Centers, and Com- more than $5,000. ponent Facilities. (3) These two provisions apply to (b) In the event of any conflict be- NASA civil service employees as well tween this policy and any other NASA as those employees of a NASA con- policy, directive, or regulation, this

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policy shall govern and supersede any oping and administering an integrated previous issuance or directive. Agency-wide communications program, (c) The requirements of this part do establishing Agency public affairs poli- not apply to the Office of Inspector cies and priorities, and coordinating General regarding its activities. and reviewing the performance of all Agency public affairs activities. The § 1213.102 Policy. Assistant Administrator will develop (a) NASA, a scientific and technical criteria to identify which news releases Agency, is committed to a culture of and other types of public information openness with the media and public will be issued nationwide by NASA that values the free exchange of ideas, Headquarters. Decisions to release pub- data, and information as part of sci- lic information nationwide by NASA entific and technical inquiry. Sci- Headquarters will be made by the As- entific and technical information from sistant Administrator for Public Af- or about Agency programs and projects fairs or his/her designee. will be accurate and unfiltered. (b) NASA’s Mission Directorate Asso- (b) Consistent with NASA statutory ciate Administrators and Mission Sup- responsibility, NASA will ‘‘provide for port Office heads have ultimate respon- the widest practicable and appropriate sibility for the technical, scientific, dissemination of information con- and programmatic accuracy of all in- cerning its activities and the results formation that is related to their re- thereof.’’ Release of public information spective programs and released by concerning NASA activities and the re- NASA. sults of NASA activities will be made (c) Under the direction of the Assist- in a timely, equitable, accurate, and ant Administrator for Public Affairs, complete manner. Public Affairs Officers assigned to Mis- (c) To ensure timely release of infor- sion Directorates are responsible for mation, NASA will endeavor to ensure the timely and efficient coordination cooperation and coordination among of public information covering their re- the Agency’s scientific, engineering, spective programs. This coordination and public affairs communities. includes review by appropriate Mission (d) In keeping with the desire for a Directorate officials. It also includes culture of openness, NASA employees editing by public affairs staff to ensure may, consistent with this policy, speak that public information products are to the press and the public about their well written and appropriate for the in- work. tended audience. However, such editing (e) This policy does not authorize or shall not change scientific or technical require disclosure of information that data or the meaning of programmatic is exempt from disclosure under the content. Freedom of Information Act (5 U.S.C. (d) Center Public Affairs Directors 552) or otherwise restricted by statute, are responsible for implementing their regulation, Executive Order, or other portion of the Agency’s communica- Executive Branch policy or NASA pol- tions program, adhering to Agency icy (e.g., OMB Circulars, NASA Policy policies, procedures, and priorities, and Directives). Examples of information coordinating their activities with not releasable under this policy in- Headquarters (and others where appro- clude, without limitation, information priate). They are responsible for the that is, or is marked as, classified in- quality of public information prepared formation, procurement sensitive in- by Center Public Affairs Officers. They formation, information subject to the also are responsible for the day-to-day Privacy Act, other sensitive but un- production of public information cov- classified information, and information ering their respective Center activities, subject to privilege, such as pre- which includes obtaining the necessary decisional information or attorney-cli- Center concurrences and coordinating, ent communications. as necessary, with the appropriate Headquarters Public Affairs Officers. § 1213.103 Responsibilities. (e) Center Directors have ultimate (a) The Assistant Administrator for responsibility for the accuracy of pub- Public Affairs is responsible for devel- lic information that does not require

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the concurrence of Headquarters. See the NASA Assistant Administrator for § 1213.104(d). Public Affairs. (f) All NASA employees are required (b) Coordination. To ensure timely re- to coordinate, in a timely manner, lease of public information, Head- with the appropriate Public Affairs Of- quarters and Center Public Affairs Offi- ficers prior to releasing information cers are required to coordinate to ob- that has the potential to generate sig- tain review and clearance by appro- nificant media or public interest or in- priate officials, keep each other inquiry. formed of changes, delays, or cancella- (g) All NASA Public Affairs Officers tion of releases, and provide advance are required to notify the appropriate notification of the actual release. Headquarters Public Affairs Officers, in (c) All public information shall be co- a timely manner, about activities or ordinated through the appropriate events that have the potential to gen- Headquarters offices, including review erate significant media or public inter- by the appropriate Mission Directorate est or inquiry. Associate Administrator and Mission (h) All NASA public affairs employ- Support Office head, or their designees, ees are expected to adhere to the fol- to ensure scientific, technical, and pro- lowing code of conduct: grammatic accuracy, and review by the (1) Be honest and accurate in all com- Assistant Administrator for Public Af- munications. fairs or his/her designee to ensure that (2) Honor publication embargoes. public information products are well (3) Respond promptly to media re- written and appropriate for the in- quests, and respect media deadlines. tended audience. (4) Act promptly to notify the public (d) Centers may, however, without of, and correct, erroneous information, the full coordination of Headquarters, either internally or externally. issue public information that is insti- (5) Promote the free flow of scientific tutional in nature, of local interest, or and technical information. has been deemed not to be a Head- (6) Protect non-public information. quarters release. These releases must (i) All NASA employees are respon- be coordinated through the appropriate sible for adhering to plans (including Center offices and approved by the Cen- schedules) for activities established by ter Director and Center Public Affairs public affairs offices and senior man- Director. The Center Public Affairs Di- agement for the coordinated release of rector is required to provide proper no- public information. tification to the Office of Public Af- (j) All NASA-funded missions will fairs, NASA Headquarters, prior to re- have a public affairs plan, approved by lease. The Assistant Administrator for the Assistant Administrator for Public Public Affairs or his/her designee will Affairs, which will be managed by determine which public information Headquarters and/or a designated will be issued nationwide by NASA NASA Center. Headquarters and shall publish guide- (k) Public affairs activities for lines for the release of public informa- NASA-funded missions will not be tion that may be issued by Centers managed by non-NASA institutions, without clearance from Headquarters unless authorized by the Assistant Ad- offices. ministrator for Public Affairs. (e) Dispute Resolution. Any dispute arising from a decision to proceed or § 1213.104 Public information coordi- not proceed with the issuance of a news nation and concurrence. release or other type of public informa- (a) General. All NASA employees in- tion will be addressed and resolved by volved in preparing and issuing NASA the Assistant Administrator for Public public information are responsible for Affairs with the appropriate Mission proper coordination among Head- Directorate Associate Administrator, quarters and Center offices to include Mission Support Office head, Center review and clearance by appropriate of- Director, and others, such as Center ficials prior to issuance. Such coordi- Public Affairs Directors, as necessary. nation will be accomplished through However, the appropriate Mission Di- procedures developed and published by rectorate Associate Administrator

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shall be the arbiter of disputes about (e) Appropriated funds may only be the accuracy or characterization of used to support Agency missions and programmatic, technical, or scientific objectives consistent with legislative information. Additional appeals may or presidential direction. Government be made to the Chief of Strategic Com- funds shall not be used for media inter- munications and to the Office of the views or other communication activi- Administrator. When requested by a ties that go beyond the scope of Agen- Center Public Affairs Director, an ex- cy responsibilities and/or an employ- planation of the resolution will be pro- ee’s official area of expertise or respon- vided in writing to all interested Agen- sibility. cy parties. (f) Media interviews will be ‘‘on-the- record’’ and attributable to the person § 1213.105 Interviews. making the remarks, unless the (a) Only spokespersons designated by interviewee is authorized to do other- the Assistant Administrator for Public wise by the Assistant Administrator Affairs, or his/her designee, are author- for Public Affairs or Center Public Af- ized to speak for the Agency in an offi- fairs Director, or their designees. Any cial capacity regarding NASA policy, NASA employee providing material to programmatic, and budget issues. the press will identify himself/herself (b) In response to media interview reas the source. quests, NASA will offer articulate and (g) Audio recordings may be made by knowledgeable spokespersons who can NASA with consent of the interviewee. best serve the needs of the media and (h) NASA employees are not required the American public. However, journal- to speak to the media. ists may have access to the NASA offi- (i) Public information volunteered by cials they seek to interview, provided a NASA official will not be considered those NASA officials agree to be inter- exclusive to any one media source and viewed. will be made available to other (c) NASA employees may speak to sources, if requested. the media and the public about their work. When doing so, employees shall § 1213.106 Preventing release of classi- notify their immediate supervisor and fied information to the media. coordinate with their public affairs of- (a) Release of classified information fice in advance of interviews whenever in any form (e.g., documents, through possible, or immediately thereafter, interviews, audio/visual) to the news and are encouraged, to the maximum media is prohibited. The disclosure of extent practicable, to have a Public Af- classified information to unauthorized fairs Officer present during interviews. individuals may be cause for prosecu- If Public Affairs Officers are present, tion and/or disciplinary action against their role will be to attest to the con- the NASA employee involved. Igno- tent of the interview, support the rance of NASA policy and procedures interviewee, and provide post-interview regarding classified information does follow up with the media, as necessary. not release a NASA employee from re- (d) NASA, as an Agency, does not sponsibility for preventing any unau- take a position on any scientific con- thorized release. See NPR 1600.1, Chap- clusions. That is the role of the broad ter 5, Section 5.23 for internal NASA scientific community and the nature of guidance on management of classified the scientific process. NASA scientists information. For further guidance that may draw conclusions and may, con- applies to all agencies, see Executive sistent with this policy, communicate Order 12958, as amended, ‘‘Classified those conclusions to the media. How- National Security Information,’’ and ever, NASA employees who present its implementing directive at 32 CFR personal views outside their official parts 2001 and 2004. area of expertise or responsibility must (b) Any attempt by news media rep- make clear that they are presenting resentatives to obtain classified infor- their individual views—not the views of mation will be reported through the the Agency—and ask that they be Headquarters Office of Public Affairs sourced as such. or Installation Public Affairs Office to

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the Installation Security Office and Of- information/material may be released. fice of Security and Program Protec- Other organizations that play a part in tion. SBU information identification, ac- (c) For classified operations and/or countability, and release (e.g., General programs managed under the auspices Counsel, External Relations, Procure- of a DD Form 254, ‘‘Contract Security ment) must be consulted for assistance Classification Specification,’’ all inquir- and/or concurrence prior to release. ies concerning this activity will be re- (d) Requests for SBU information sponded to by the appropriate PAO of- from other Government agencies must ficial designated in Item 12 on the DD be referred to the NASA program or Form 254. other office responsible for handling (d) For classified operations and/or the information as SBU. information owned by other Govern- ment agencies (e.g., DOD, DOE), all in- § 1213.108 Multimedia materials. quiries will be referred to the appro- (a) NASA’s multimedia material, priate Agency Public Affairs Officer as from all sources, will be made available established in written agreements. to the information media, the public, and to all Agency Centers and con- § 1213.107 Preventing unauthorized re- tractor installations utilizing contem- lease of sensitive but unclassified porary delivery methods and emerging (SBU) information/material to the digital technology. news media. (b) Centers will provide the media, (a) All NASA SBU information re- the public, and as necessary, NASA quires accountability and approval for Headquarters with: release. Release of SBU information to (1) Selected prints and original or du- unauthorized personnel is prohibited. plicate files of news-oriented imagery Unauthorized release of SBU informa- and other digital multimedia material tion may result in prosecution and/or generated within their respective disciplinary action. Ignorance of NASA areas. policy and procedures regarding SBU (2) Selected video material in the information does not release a NASA highest quality format practical, employee from responsibility for unau- which, in the opinion of the installa- thorized release. See NPR 1600.1, Chap- tions, would be appropriate for use as ter 5, Section 5.24 for guidance on iden- news feed material or features in pre- tification, marking, accountability and produced programs and other presen- release of NASA SBU information. tations. (b) Examples of SBU information in- (3) Audio and/or video files of signifi- clude: proprietary information of oth- cant news developments and other ers provided to NASA under nondisclo- events of historic or public interest. sure or confidentiality agreement; (4) Interactive multimedia features source selection and bid and proposal that can be incorporated into the information; information subject to ex- Agency’s Internet portal for use by in- port control under the International ternal and external audiences, includ- Traffic in Arms Regulations (ITAR) or ing the media and the general public. the Export Administration Regulations (5) To the extent practicable, these (EAR); information subject to the Pri- products will be in forms and media ac- vacy Act of 1974; predecisional mate- cessible to the public at large, as well rials such as national space policy not as to specific user groups requesting yet publicly released; pending reorga- them, if any. nization plans or sensitive travel itineraries; and information that could § 1213.109 News releases concerning constitute an indicator of U.S. Govern- international activities. ment intentions, capabilities, oper- (a) Releases of information involving ations, or activities or otherwise NASA activities, views, programs, or threaten operations security. projects involving another country or (c) Upon request for access to infor- an international organization require mation/material deemed SBU, coordi- prior coordination and approval by the nation must be made with the informa- Headquarters offices of External Rela- tion/material owner to determine if the tions and Public Affairs.

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(b) NASA Centers and Headquarters AUTHORITY: Pub. L. 111–314, sec. 3, 124 Stat. offices will report all visits proposed by 3328 (51 U.S.C. 20101, et seq.). representatives of foreign news media SOURCE: 57 FR 4545, Feb. 6, 1992, unless oth- to the Public Affairs Officer of the Of- erwise noted. fice of External Relations for appropriate handling consistent with all NASA policies and procedures. Subparts 1214.1–1214.3 [Reserved]

PART 1214—SPACE FLIGHT Subpart 1214.4—International Space Station Crew Subparts 1214.1–1214.3 [Reserved] AUTHORITY: Pub. L. 111–314, sec. 3, 124 Stat. Subpart 1214.4—International Space 3328 (51 U.S.C. 20101, et seq.). Station Crew SOURCE: 65 FR 80303, Dec. 21, 2000, unless 1214.400 Scope. otherwise noted. 1214.401 Applicability. 1214.402 International Space Station crew- § 1214.400 Scope. member responsibilities. 1214.403 Code of Conduct for the Inter- (a) This subpart sets forth policy and national Space Station Crew. procedures with respect to Inter- 1214.404 Violations. national Space Station crewmembers provided by NASA for flight to the Subpart 1214.5 [Reserved] International Space Station. Subpart 1214.6—Mementos Aboard NASA (b) In order to provide for the safe op- Missions eration, maintenance of order, and proper conduct of crew aboard the 1214.600 Scope. 1214.601 Definitions. International Space Station, the Janu- 1214.602 Policy. ary 29, 1998, Agreement Among the 1214.603 Official Flight Kit. Government of Canada, Governments 1214.604 Personal Preference Kit. of Member States of the European 1214.605–1214.606 [Reserved] Space Agency, the Government of 1214.607 Media and public inquiries. 1214.608 [Reserved] Japan, the Government of the Russian 1214.609 Loss or theft. Federation, and the Government of the 1214.610 Violations. United States of America Concerning Cooperation on the Civil International Subpart 1214.7—The Authority of the NASA Space Station (hereinafter Agreement), Commander which establishes and governs the 1214.700 Scope. International Space Station, requires 1214.701 Definitions. the development and approval of a 1214.702 Authority and responsibility of the Code of Conduct for International NASA Commander. Space Station crew. Pursuant to Arti- 1214.703 Chain of command. 1214.704 Violations. cle 11 of the Agreement, each Inter- national Space Station partner is Subparts 1214.8–1214.10 [Reserved] obliged to ensure that crewmembers which it provides observe the Code of Subpart 1214.11—NASA Astronaut Can- Conduct. didate Recruitment and Selection Pro- gram § 1214.401 Applicability. 1214.1100 Scope. This subpart applies to all persons 1214.1101 Announcement. provided by NASA for flight to the 1214.1102 Evaluation of applications. 1214.1103 Application cutoff date. International Space Station, including 1214.1104 Evaluation and ranking of highly U.S. Government employees, uni- qualified candidates. formed members of the Armed Serv- 1214.1105 Final ranking. ices, U.S. citizens who are not employ- 1214.1106 Selection of astronaut candidates. ees of the U.S. Government, and for- 1214.1107 Notification. eign nationals. Subparts 1214.12–1214.17 [Reserved] 89

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§ 1214.402 International Space Station § 1214.403 Code of Conduct for the crewmember responsibilities. International Space Station Crew. (a) All NASA-provided International The Code of Conduct for the Inter- Space Station crewmembers are sub- national Space Station Crew, which ject to specified standards of conduct, sets forth minimum standards for including those prescribed in the Code NASA-provided International Space of Conduct for the International Space Station crewmembers, is as follows: Station Crew, set forth as § 1214.403. NASA-provided International Space CODE OF CONDUCT FOR THE INTERNATIONAL Station crew members may be subject SPACE STATION CREW to additional standards and require- I. INTRODUCTION ments, as determined by NASA, which will be made available to those NASA- A. Authority provided crewmembers, as appropriate. (1) NASA-provided International This Code of Conduct for the International Space Station (ISS) crew, hereinafter re- Space Station crewmembers who are ferred to as Crew Code of Conduct (CCOC), is not citizens of the United States will established pursuant to: be required to enter into an agreement (1) Article 11 (Crew) of the intergovern- with NASA in which they agree to mental Agreement Among the Government comply with specified standards of con- of Canada, Governments of Member States of duct, including those prescribed in the the European Space Agency, the Government Code of Conduct for the International of Japan, the Government of the Russian Space Station Crew (§ 1214.403). Any Federation, and the Government of the such agreement will be signed on be- United States of America Concerning Co- half of NASA by the NASA General operation on the Civil International Space Counsel or designee. Station (the IGA) signed by the Partner States on January 29, 1998; and (2) NASA-provided International (2) Article 11 (Space Station Crew) of the Space Station crewmembers who are Memoranda of Understanding between, re- citizens of the United States but are spectively, the National Aeronautics and not employees of the U.S. Government Space Administration of the United States of will be required to enter into an agree- America (NASA) and the Canadian Space ment with NASA in which they agree Agency (CSA), NASA and the European to comply with specified standards of Space Agency (ESA), NASA and the Govern- conduct, including those prescribed in ment of Japan (GOJ), and NASA and the the Code of Conduct for the Inter- Russian Space Agency (RSA) Concerning Co- operation on the Civil International Space national Space Station Crew Station (the MOU’s), which require, inter (§ 1214.403). Any such agreement will be alia, that the crew Code of Conduct be devel- signed on behalf of NASA by the NASA oped by the partners. General Counsel or designee. (3) NASA-provided International B. Scope and Content Space Station crewmembers who are The partners have developed and approved employed by a branch, department, or this CCOC to: establish a clear chain of com- agency of the U.S. Government may, as mand on-orbit; establish a clear relationship determined by the NASA General between ground and on-orbit management; Counsel, be required to enter into an and establish a management hierarchy; set agreement with NASA to comply with forth standards for work and activities in specified standards of conduct, includ- space, and, as appropriate, on the ground; establish responsibilities with respect to ele- ing those prescribed in the Code of Con- ments and equipment; set forth disciplinary duct for the International Space Sta- regulations; establish physical and information Crew (§ 1214.403). Any such agree- tion security guidelines; and define the ISS ment will be signed on behalf of NASA Commander’s authority and responsibility, by the NASA General Counsel or des- on behalf of all the partners, to enforce safe- ignee. ty procedures, physical and information se- (b) All NASA-provided personnel on curity procedures and crew rescue proce- board the International Space Station dures for the ISS. This CCOC and the disciplinary policy referred to in Section IV are additionally subject to the author- shall not limit the application of Article 22 ity of the International Space Station of the IGA. This CCOC succeeds the NASA- Commander and shall comply with RSA Interim Code of Conduct, which was de- Commander’s orders and directions. veloped pursuant to Article 11.2 of the MOU

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between NASA and RSA to cover early as- II. GENERAL STANDARDS sembly prior to other partners’ flight opportunities. A. Responsibilities of ISS Crewmembers This CCOC sets forth the standards of con- ISS Crewmembers shall comply with the duct applicable to all ISS crewmembers dur- CCOC. Accordingly, during preflight, on- ing preflight, on-orbit, and post-flight activi- orbit, and postflight activities, they shall ties, (including launch and return phases). comply with the ISS Commander’s orders, ISS crewmembers are subject to additional all Flight and ISS program Rules, oper- requirements, such as the ISS Flight Rules, ational directives, and management policies, the disciplinary policy, and requirements as applicable. These include those related to imposed by their Cooperating Agency or safety, health, well-being, security, and those relating to the Earth-to-Orbit Vehicle other operational or management matters (ETOV) transporting an ISS crewmember. governing all aspects of ISS elements, equip- Each ISS crewmember has a right to know ment, payloads and facilities, and non-ISS about such additional requirements. ISS facilities, to which they have access. All ap- crewmembers will also abide by the rules of plicable rules, regulations, directives, and the institution hosting the training, and by policies shall be made accessible to ISS standards and requirements defined by the crewmembers through appropriate means, Multilateral Crew Operations Panel (MCOP), coordinated by the MCOP. the Multilateral Space Medicine Board (MSMB) and the Multilateral Medical Oper- B. General Rules of Conduct ations Panel (MMOP). Each ISS crewmember ISS Crewmembers’ conduct shall be such will be informed by the Cooperating Agency as to maintain a harmonious and cohesive providing him or her of the responsibilities relationship among the ISS crewmembers of ISS crewmembers under the IGA, the and an appropriate level of mutual con- MOU’s and this CCOC. Further, each ISS fidence and respect through an interactive, crewmember will be educated by the Cooper- participative, and relationship-oriented ap- ating Agency providing him or her through proach which duly takes into account the the crew training curriculum and normal international and multicultural nature of program operations as to ISS program rules, the crew and mission. operational directives and management poli- No ISS crewmember shall, by his or her cies. Completion of postflight activities shall conduct, act in a manner which results in or not affect an ISS crewmember’s continuing creates the appearance of: (1) Giving undue obligations under Section V of this CCOC. preferential treatment to any person or entity in the performance of ISS activities; and/ C. Definitions or (2) adversely affecting the confidence of For the purposes of the CCOC: the public in the integrity of, or reflecting (1) ‘‘Cooperating Agency’’ means NASA, unfavorably in a public forum on, any ISS CSA, ESA, Rosaviakosmos (formerly RSA) partner, partner state or Cooperating Agen- and, in the case of Japan, the Science and cy. Technology Agency of Japan (STA) and, as ISS crewmembers shall protect and con- appropriate, the National Space Develop- serve all property to which they have access ment Agency of Japan (NASDA), assisting for ISS activities. No such property shall be agency to STA. altered or removed for any purpose other (2) ‘‘Crew Surgeon’’ means a Flight Sur- than those necessary for the performance of geon assigned by the MMOP to any given ex- ISS duties. Before altering or removing any pedition. He or she is the lead medical officer such property, ISS crewmembers shall first and carries primary responsibility for the obtain authorization from the Flight Direc- health and well-being of the entire ISS crew. tor, except as necessary to ensure the imme- (3) ‘‘Disciplinary policy’’ means the policy diate safety of ISS crewmembers or ISS ele- developed by the MCOP to address violations ments, equipment, or payloads. of the CCOC and impose disciplinary measures. C. Use of Position (4) ‘‘ETOV’’ means Earth-to-Orbit Vehicle ISS crewmembers shall refrain from any travelling between Earth and the ISS. use of the position of ISS crewmember that (5) ‘‘Flight Director’’ means the Flight Di- is motivated, or has the appearance of being rector in control of the ISS. motivated, by private gain, including finan- (6) ‘‘Flight Rules’’ means the set of rules cial gain, for himself or herself or other per- used by the Cooperating Agencies to govern sons or entities. Performance of ISS duties flight operations. shall not be considered to be motivated by (7) ‘‘ISS crewmembers’’ means any person private gain. Furthermore, no ISS crew- approved for flight to the ISS, including both member shall use the position of ISS crew- ISS expedition crew and visiting crew, begin- member in any way to coerce, or give the ap- ning upon assignment to the crew for a spe- pearance of coercing, another person to pro- cific and ending upon completion of the vide any financial benefit to himself or her- postflight activities related to the mission. self or other persons or entities.

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D. Mementos and Personal Effects grated team. During preflight activities, the ISS Commander, to the extent of his or her Each ISS crewmember may carry and store authority, leads the ISS crewmembers mementos, including flags, patches, insignia, through the training curriculum and mis- and similar small items of minor value, on- board the ISS, for his or her private use, sub- sion-preparation activities and seeks to en- ject to the following: sure that the ISS crewmembers are ade- (1) mementos are permitted as a courtesy, quately prepared for the mission, acting as not an entitlement; as such they shall be the crew’s representative to the ISS pro- considered as ballast as opposed to a payload gram’s training, medical, operations, and or mission requirement and are subject to utilization authorities. During postflight ac- manifest limitations, on-orbit stowage allo- tivities, the ISS Commander coordinates as cations, and safety considerations; necessary with these authorities to ensure (2) mementos may not be sold, transferred that the ISS crewmembers complete the re- for sale, used or transferred for personal quired postflight activities. gain, or used or transferred for any commer- (2) During On-Orbit Operations cial or fundraising purpose. Mementos which, by their nature, lend themselves to (a) General exploitation by the recipients, or which, in the opinion of the Cooperating Agency pro- The ISS Commander is responsible for and viding the ISS crewmember, engender ques- will, to the extent of his or her authority and tions as to good taste, will not be permitted. the ISS on-orbit capabilities, accomplish the An ISS crewmember’s personal effects, mission program implementation and ensure such as a wristwatch, will not be considered the safety of the ISS crewmembers and the mementos. Personal effects of any nature protection of the ISS elements, equipment, may be permitted, subject to constraints of or payloads. mass/volume allowances for crew personal ef- (b) Main Responsibilities fects, approval of the ISS crewmember’s Co- operating Agency, and approval of the trans- The ISS Commander’s main responsibil- porting Cooperating Agency and consider- ities are to: (1) Conduct operations in or on ations of safety and good taste. the ISS as directed by the Flight Director If a Cooperating Agency carries and stores and in accordance with the Flight Rules, items onboard the ISS in connection with plans and procedures; (2) direct the activities separate arrangements, these items will not of the ISS crewmembers as a single, inte- be considered mementos of the ISS crew- grated team to ensure the successful comple- members. tion of the mission; (3) fully and accurately 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 MANAGE- gency situations); (4) enforce procedures for MENT the physical and information security of operations and utilization data; (5) maintain A. Authority and Responsibilities of the ISS order; (6) ensure crew safety, health and Commander 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 During all phases of on-orbit activity, the among the ISS crewmembers and an appro- ISS Commander, consistent with the author- priate level of mutual confidence and respect ity of the Flight Director, shall have the au- through an interactive, participative, and re- thority to use any reasonable and necessary lationship-oriented approach which duly means to fulfill his or her responsibilities. takes into account the international and This authority, which shall be exercised con- multicultural nature of the crew and mis- sistent with the provisions of Sections II and sion. IV, extends to: (1) the ISS elements, equip- For avoidance of doubt, nothing in this ment, and payloads; (2) the ISS crew- Section shall affect the ability of the MCOP members; (3) activities of any kind occurring to designate the national of any Partner in or on the ISS; and (4) data and personal ef- State as an ISS Commander. fects in or on the ISS where necessary to protect the safety and well-being of the ISS (1) During Preflight and Postflight Activities crewmembers and the ISS elements, equip- The ISS Commander is the leader of the ment, and payloads. Any matter outside the crew and is responsible for forming the indi- ISS Commander’s authority shall be within vidual ISS crewmembers into a single, inte- the purview of the Flight Director.

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Issues regarding the Commander’s use of policy which has been approved by the MCB. such authority shall be referred to the Flight The disciplinary policy is designed to main- Director as soon as practicable, who will tain order among the ISS crewmembers dur- refer the matter to appropriate authorities ing preflight, on-orbit and postflight activi- for further handling. Although other ISS ties. The disciplinary policy is administra- crewmembers may have authority over and tive in nature and is intended to address vio- responsibility for certain ISS elements, lations of the CCOC. Such violations may, equipment, payloads, or tasks, the ISS Com- inter alia, affect flight assignments as an mander remains ultimately responsible, and ISS crewmember. The disciplinary policy solely accountable, to the Flight Director for does not limit a Cooperating Agency’s right the successful completion of the activities to apply relevant laws, regulations, policies, and the mission. 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 authority 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 C. Relationship Between the ISS Commander or by the data owner or provider through (On-Orbit Management) and the Flight Direc- that Cooperating Agency as to the propri- tor (Ground Management) etary or export-controlled nature of the data 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 authority, is entitled to change the daily operational directives, and management routine of the ISS crewmembers where nec- policies designed to further such protections. essary to address contingencies, perform ur- Personal information about ISS crew- gent work associated with crew safety and members, including all medical information, the protection of the ISS elements, equip- private family conference, or other private ment or payloads, or conduct critical flight information, whether from verbal, written, operations. Otherwise, the ISS Commander or electronic sources, shall not be used or should implement the mission as directed by disclosed by other ISS crewmembers for any the Flight Director. Specific roles and re- purpose, without the consent of the affected sponsibilities of the ISS Commander and the ISS crewmember, except as required for the Flight Director are described in the Flight immediate safety of ISS crewmembers or the Rules. The Flight Rules outline decisions protection of ISS elements, equipment, or planned in advance of the mission and are payloads. In particular, all personal medical designed to minimize the amount of real- information, whether derived from medical time discussion required during mission op- monitoring, investigations, or medical con- erations. tingency events, shall be treated as private medical information and shall be trans- IV. DISCIPLINARY REGULATIONS mitted in a private and secure fashion in ac- ISS crewmembers will be subject to the cordance with procedures to be set forth by disciplinary policy developed and revised as the MMOP. Medical data which must be han- necessary by the MCOP and approved by the dled in this fashion includes, for example, Multilateral Coordination Board (MCB). The biomedical telemetry, private medical com- MCOP has developed an initial disciplinary munications, and medical investigation

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data. Nothing in this paragraph shall be in- Subpart 1214.6—Mementos terpreted to limit an ISS crewmember’s access to all medical resources aboard the ISS, Aboard NASA Missions to ground-based medical support services, or to his or her own medical data during pre- AUTHORITY: Pub. L. 111–314, sec. 3, 124 Stat. flight, on-orbit, and postflight activities. 3328 (51 U.S.C. 20101, et seq.).

VI. PROTECTION OF HUMAN RESEARCH SOURCE: 81 FR 43041, July 1, 2016, unless SUBJECTS otherwise noted. No research on human subjects shall be § 1214.600 Scope. conducted which could, with reasonable fore- sight, be expected to jeopardize the life, This subpart establishes policy and health, physical integrity, or safety of the procedures for carrying mementos on subject. the NASA missions, with the exception No research procedures shall be under- of mementos and personal effects car- taken with any ISS crewmember as a human ried onboard the International Space subject without: (1) written approval by the Station (ISS). Human Research Multilateral Review Board (HRMRB) and (2) the full written and in- § 1214.601 Definitions. formed consent of the human subject. Each Mementos. Flags, patches, insignia, such approval and consent shall be obtained medallions, minor graphics, and simi- prior to the initiation of such research, and shall fully comply with the requirements of lar items of little commercial value, the HRMRB. The HRMRB is responsible for especially suited for display by the in- procedures for initiation of new experiments dividuals or groups to whom they have on-orbit when all consent requirements have been presented. been met, but the signature of the human subject cannot be obtained; explicit consent § 1214.602 Policy. of the human subject will nonetheless be re- Premise. Mementos are welcome quired in all such cases. Subjects volun- aboard NASA missions. However, they teering for human research protocols may at are flown as a courtesy—not as an enti- their own discretion, and without providing tlement. All mementos must be ap- a rationale, withdraw their consent for participation at any time, without prejudice, proved by the Associate Administrator and without incurring disciplinary action. In for Human Exploration and Operations addition, approval or consent for any re- and are stowed only in an Official search may be revoked at any time, includ- Flight Kit (OFK) or Personal Pref- ing after the commencement of the research, erence Kit (PPK). by: the HRMRB, the Crew Surgeon, the (a) Economic gain. Items carried in an Flight Director, or the ISS Commander, as OFK or a PPK will not be sold, trans- appropriate, if the research would endanger ferred for sale, used or transferred for the ISS Crew Member or otherwise threaten personal gain, or used or transferred the mission success. A decision to revoke for any commercial or fund-raising consent by the human subject or approval by purpose. Items such as philatelic mate- the other entities listed above will be final. rials and coins that, by their nature, lend themselves to exploitation by the § 1214.404 Violations. recipients, or create problems with re- This subpart is a regulation within spect to good taste; or that are large, the meaning of 18 U.S.C. 799, and who- bulky, or heavy items will not be ap- ever willfully violates, attempts to vio- proved for flight. late, or conspires to violate any provi- (b) [Reserved] sion of this subpart or any order or direction issued under this subpart may § 1214.603 Official Flight Kit. be cited for violating title 18 of the (a) Purpose. The Official Flight Kit U.S. Code and could be fined or impris- (OFK) on a particular mission allows oned not more than 1 year, or both. NASA, and other domestic and friendly foreign countries’ organizations with Subpart 1214.5 [Reserved] NASA approval, to utilize mementos as awards and commendations or preserve them in museums or archives. No personal items will be carried in the OFK.

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(b) Approval of contents. At least 120 (b) Report of loss or theft. Any person days prior to the scheduled launch of a who learns that an item contained in particular mission, an authorized rep- an OFK or a PPK is missing shall im- resentative of each organization desir- mediately report the loss to the John- ing mementos to be carried on a flight son Space Center Security Office and in the OFK must submit a letter or re- the NASA Inspector General. quest describing the item(s) to be flown and the intended purpose or distribu- § 1214.610 Violations. tion. Letters should be directed to the Any items carried in violation of the Associate Administrator for Human Exploration and Operations, NASA requirements of this subpart shall be- Headquarters, Washington DC 20546. come property of the U.S. Government, subject to applicable Federal laws and § 1214.604 Personal Preference Kit. regulations, and the violator may be (a) Purpose. The Personal Preference subject to disciplinary action, includ- Kit (PPK) enables persons on a paring being permanently prohibited from ticular mission to carry personal items use of, or if an individual, from flying for use as mementos. Only those indi- aboard a NASA mission. viduals actually accompanying such flights may request authorization to Subpart 1214.7—The Authority of carry personal items as mementos. the NASA Commander (b) Approval of content. At least 60 days prior to the scheduled launch of a AUTHORITY: Pub. L. 111–314, sec. 3, 124 Stat. particular mission, each person as- 3328 (51 U.S.C. 20101, et seq.). signed to the flight who desires to carry items in a PPK must submit a SOURCE: 81 FR 43041, July 1, 2016, unless proposed list of items and their recipi- otherwise noted. ents to the Associate Director, NASA Johnson Space Center. The Associate § 1214.700 Scope. Director will review the proposed list This subpart establishes the author- of items and, if approved, submit the ity of the NASA Commander of a crew members’ PPK lists through su- NASA mission, excluding missions re- pervisory channels to the Associate lated to the ISS and activities licensed Administrator for Human Exploration under Title 51 U.S.C. Chapter 509, to and Operations for approval. A signed enforce order and discipline during a copy of approval from the Associate mission and to take whatever action in Administrator for Human Exploration his/her judgment is reasonable and nec- and Operations will be returned to the essary for the protection, safety, and Director, NASA Johnson Space Center, well-being of all personnel and on- for distribution. board equipment, including the space- § 1214.605–1214.606 [Reserved] craft and payloads. During the final launch countdown, following crew in- § 1214.607 Media and public inquiries. gress, the NASA Commander has the Information on mementos flown on a authority to enforce order and dis- particular mission will be routinely re- cipline among all on-board personnel. leased by the Associate Administrator During emergency situations prior to of the Office of Communications to the liftoff, the NASA Commander has the media and to the public upon their re- authority to take whatever action in quest, but only after they have been his/her judgment is necessary for the approved for flight. protection or security, safety, and well-being of all personnel on board. § 1214.608 [Reserved] § 1214.701 Definitions. § 1214.609 Loss or Theft. (a) The flight crew consists of the (a) Liability. Neither NASA nor the NASA Commander, astronaut crew U.S. Government will be liable for the members, and [any] other persons loss or theft of, or damage to, items carried in OFKs or PPKs. aboard the spacecraft.

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(b) A mission is the period including ignated to serve as commander on a the flight-phases from launch to land- NASA mission and who shall have the ing on the surface of the Earth—a sin- authority described in § 1214.702 of this gle round trip. (In the case of a forced part. Under normal flight conditions landing, the NASA Commander’s au- (other than emergencies or when other- thority continues until a competent wise designated) the NASA Commander authority takes over the responsibility is responsible to the Mission Flight Di- for the persons and property aboard). rector. (c) The flight-phases consist of (b) Before each flight, the other launch, in orbit/transit, extra- flight crewmembers will be designated terrestrial mission, deorbit, entry, and in the order in which they will assume landing, and post-landing back on the authority of the NASA Commander Earth. under this subpart in the event that (d) A payload is a specific com- the NASA Commander is not able to plement of instruments, space equip- carry out his/her duties. ment, and support hardware/software (c) The determinations, if any, that a carried into space to accomplish a sci- crewmember in the chain of command entific mission or discrete activity. is not able to carry out his or her command duties and is, therefore, to be re- § 1214.702 Authority and responsibility lieved of command, and that another of the NASA Commander. crewmember in the chain of command (a) During all flight phases, the is to succeed to the authority of the NASA Commander shall have the abso- NASA Commander, will be made by the lute authority to take whatever action NASA Administrator or his/her des- is in his/her discretion necessary to: ignee. (1) Enhance order and discipline. (2) Provide for the safety and well- § 1214.704 Violations. being of all personnel on board. (a) All personnel on board the NASA (3) Provide for the protection of the mission are subject to the authority of spacecraft and payloads. the NASA Commander and shall con- The NASA Commander shall have au- form to his/her orders and direction as thority, throughout the mission, to use authorized by this subpart. any reasonable and necessary means, including the use of physical force, to (b) This subpart is a regulation with- achieve this end. in the meaning of 18 U.S.C. 799, and (b) The authority of the NASA Com- whoever willfully violates, attempts to mander extends to any and all per- violate, or conspires to violate any pro- sonnel on board the spacecraft includ- vision of this subpart or any order or ing Federal officers and employees and direction issued under this subpart all other persons whether or not they shall be subject to fines and imprison- are U.S. nationals. ment, as specified by law. (c) The authority of the NASA Com- mander extends to all spaceflight ele- Subparts 1214.8–1214.10 ments, payloads, and activities origi- [Reserved] nating with or defined to be a part of the NASA mission. Subpart 1214.11—NASA Astronaut (d) The NASA Commander may, when he/she deems such action to be nec- Candidate Recruitment and essary for the safety of the spacecraft Selection Program and personnel on board, subject any of the personnel on board to such re- SOURCE: 54 FR 37940, Sept. 14, 1989, unless straint as the circumstances require otherwise noted. until such time as delivery of such individual or individuals to the proper § 1214.1100 Scope. authorities is possible. It is NASA policy to maintain an integrated Astronaut Corps. This subpart § 1214.703 Chain of command. 1214.11 sets forth NASA procedures and (a) The NASA Commander is a trained assigns responsibilities for recruitment NASA astronaut who has been des- and selection of astronaut candidates.

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It applies to all pilot and mission spe- Reference information on those rated cialist astronaut candidate selection ‘‘Highly Qualified’’ will normally be activities conducted by the National obtained. This evaluation process will Aeronautics and Space Administration. be monitored to ensure adherence to applicable policy, laws, and regula- § 1214.1101 Announcement. tions. (a) Astronaut candidate opportuni- (e) Those rated ‘‘Highly Qualified’’ ties Will be announced nationwide and may be required to obtain a Class I or publicized periodically unless specifi- Class II physical. Only medically quali- cally canceled by NASA. fied applicants will be referred for final (b) Civilian applicants may apply at evaluation and possible interview and any time. selection. Those who are not medically (c) Military personnel on active duty qualified will be so informed and will must apply through and be nominated not be eligible for further consider- by the military service with which ation. they are affiliated. Military nominees [54 FR 37940, Sept. 14, 1989, as amended at 68 will not be part of the continuing pool FR 19948, Apr. 23, 2003] of applicants. The military services will convene their internal selection § 1214.1103 Application cutoff date. boards and provide nominees to NASA. (a) The JSC Director, or designee, is The military nominees will be evalu- responsible for identifying the need for ated by NASA and the military serv- additional astronaut candidates and for ices will be notified promptly of those obtaining necessary approval to make nominees who are finalists. (d) The Assistant Administrator for selections. (b) Once such approval has been ob- Equal Opportunity Programs, NASA Headquarters, will provide assistance tained, a cutoff date for the acceptance in the recruiting process. of applications will be established. Ap- plications received after the date of the [54 FR 37940, Sept. 14, 1989, as amended at 68 request will be maintained and proc- FR 19948, Apr. 23, 2003] essed for the next selection. § 1214.1102 Evaluation of applications. [54 FR 37940, Sept. 14, 1989, as amended at 68 FR 19948, Apr. 23, 2003] (a) All incoming applications will be reviewed to determine whether or not § 1214.1104 Evaluation and ranking of applicants meet basic qualifications. highly qualified candidates. Those not meeting the basic qualifica- (a) A selection board consisting of tion requirements will be so notified discipline experts, and such other per- and will not be eligible for further consideration. Those meeting the basic sons as appropriate, will further evalu- qualification requirements will have ate and rank the ‘‘Highly Qualified’’ their applications retained for review applicants. (b) Efforts will be made to assure by a designated rating panel. (b) A rating panel composed of dis- that minorities and females are in- cipline experts will review and rate cluded on this board. qualified applicants as ‘‘Qualified’’ or (c) The ‘‘Highly Qualified’’ applicants ‘‘Highly Qualified.’’ who are determined to be the ‘‘Best (c) Efforts will be made to ensure Qualified’’ will be invited to the John- that minorities and females are in- son Space Center for an interview, ori- cluded among these discipline experts entation, and detailed medical evalua- on the rating panel. tion. (d) The criteria for each level will be (d) Background investigations will developed and will serve as the basis normally be initiated on those appli- for the ratings. The evaluation will be cants rated ‘‘Best Qualified.’’ based on the quality of the individual’s [54 FR 37940, Sept. 14, 1989, as amended at 68 academic background and experience FR 19948, Apr. 23, 2003] and the extent to which the individual’s academic achievements, experi- § 1214.1105 Final ranking. ence, and special qualifications relate Final rankings will be based on a to the astronaut candidate position. combination of the selection board’s

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initial evaluations and the results of STANDARD SERVICES (BASED ON NASA ES- the interview process. Veteran’s pref- CALATION ESTIMATE) erence will be included in this final APPENDIX B TO PART 1215—FACTORS AFFECT- ranking in accordance with applicable ING STANDARD CHARGES regulations. APPENDIX C TO PART 1215—TYPICAL USER AC- TIVITY TIMELINE

§ 1214.1106 Selection of astronaut can- AUTHORITY: Sec. 203, Pub. L. 85–568, 72 Stat. didates. 429, as amended; 42 U.S.C. 2473.

The selection board will recommend SOURCE: 48 FR 9845, Mar. 9, 1983, unless oth- to the JSC Director its selection of erwise noted. candidates from among those finalists who are medically qualified. The number and names of candidates selected to Subpart 1215.1—Use and Reim- be added to the corps will be approved, bursement Policy for Non-U.S. as required, by JSC/ NASA manage- Government Users ment and the Associate Administrator for Space Flight, prior to notifying the § 1215.100 General. individuals or the public. TDRSS represents a major investment by the U.S. Government with the § 1214.1107 Notification. primary goal of providing improved Selectees and the appropriate mili- tracking and data acquisition services tary services will be notified and the to spacecraft in low-Earth orbit or to public informed. All unsuccessful mobile terrestrial users such as air- qualified applicants will be notified of craft or balloons. It is the objective of nonselection and given the opportunity NASA to operate as efficiently as pos- to update their applications and indi- sible with TDRSS, is to the mutual cate their desire to receive consider- benefit of all users. Such user consideration for future selections. ation will permit NASA and non-NASA service to be delivered without compro- Subparts 1214.12–1214.17 mising the mission objectives of any [Reserved] individual user. The reimbursement policy is designed to comply with the PART 1215—TRACKING AND DATA Office of Management and Budget Cir- RELAY SATELLITE SYSTEM (TDRSS) cular A–25 on User Charges, dated Sep- tember 23, 1959, as updated, which re- Subpart 1215.1—Use and Reimbursement quires that a reasonable charge should Policy for Non-U.S. Government Users be made to each identifiable recipient for a measurable unit or amount of Sec. Government service or property from 1215.100 General. which a special benefit is derived. 1215.101 Scope. 1215.102 Definitions. [77 FR 6952, Feb. 10, 2012] 1215.103 Services. 1215.104 Apportionment and assignment of § 1215.101 Scope. services. 1215.105 Delivery of user data. This subpart sets forth the policy 1215.106 User command and tracking data. governing TDRSS services provided to 1215.107 User data security and frequency non-U.S. Government users and the re- authorizations. imbursement for rendering such serv- 1215.108 Defining user service requirements. ices. Cooperative missions are not 1215.109 Scheduling user service. under the purview of this subpart. The 1215.110 User cancellation of all services. arrangements for TDRSS services for 1215.111 User postponement of service. cooperative missions will be covered in 1215.112 User/NASA contractual arrangement. an agreement, as a consequence of ne- 1215.113 User charges. gotiations between NASA and the 1215.114 Service rates. other concerned party. Any agreement 1215.115 Payment and billing. which includes provision for any APPENDIX A TO PART 1215—ESTIMATED SERV- TDRSS service will require signatory ICE RATES IN 1997 DOLLARS FOR TDRSS concurrence by the Deputy Associate

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Administrator for SCaN prior to dedi- and required support services defined cating SCaN resources for support of a above. The associated charges for these cooperative mission. services will be identified and assessed on a case-by-case basis. [77 FR 6952, Feb. 10, 2012] [77 FR 6952, Feb. 10, 2012] § 1215.102 Definitions. (a) User. Any non-U.S. Government § 1215.104 Apportionment and assignment of services. representative or entity that enters into an agreement with NASA to use No user may apportion, assign, or TDRSS services. otherwise convey to any third party its (b) TDRSS. TDRSS, including Track- TDRSS service. Each user may obtain ing and Data Relay Satellites (TDRS), service only through contractual WSC, GRGT, and the necessary TDRSS agreement with the Associate Adminis- operational areas, interface devices, trator for Space Operations. and NASA communication circuits [56 FR 28048, June 19, 1991] that unify the above into a functioning system. It specifically excludes the § 1215.105 Delivery of user data. user ground system/TDRSS interface. (a) As a standard service, NASA will (c) Bit stream. The electronic signals provide to the user its data from acquired by TDRSS from the user craft TDRSS in the form of one or more dig- or the user-generated input commands ital or analog bit streams synchronized for transmission to the user craft. to associated clock streams at WSC or (d) Scheduling service period. One GRGT. scheduled contact utilizing a single (b) User data-handling requirements TDRS, whereby the user, by requesting beyond WSC or GRGT interface will be service, is allotted a block of time for provided as a standard service to the operations between the user satellite user, to the extent that the require- and TDRSS. ments do not exceed NASA’s planned [77 FR 6952, Feb. 10, 2012] standard communications system. Any additional data transport or handling § 1215.103 Services. requirements exceeding NASA’s capa- (a) Standard services. These are serv- bility will be dealt with as a mission- ices which TDRSS is capable of pro- unique service. viding to low-Earth orbital user space- (c) No storage of the user data is pro- craft or other terrestrial users. Data vided in the standard service. NASA are delivered to WSC or GRGT. A de- will provide short-term temporary re- tailed description of services is pro- cording of data at WSC in the event of vided in the GSFC Space Network a NASA Integrated Services Network Users’ Guide, 450–SNUG. Contact the (NISN) link outage. Chief, Networks Integration Manage- (d) NASA will provide TDRSS serv- ment Office, at the address in Section ices on a ‘‘reasonable efforts’’ basis, 1215.108(d) to obtain a copy of the and, accordingly, will not be liable for SNUG. damages of any kind to the user or (1) Tracking service. third parties for any reason, including, (2) Data acquisition service. but not limited to, failure to provide (3) Command transmission service. agreed-to services. The price for (b) Required Support Services. These TDRSS services does not include a con- are support activities that are required tingency or premium for any potential to obtain TDRSS services. damages. The user will assume any (1) Prelaunch support planning, anal- risk of damages or obtain insurance to ysis, and documentation. protect against any risk. (2) Compatibility testing. [77 FR 6952, Feb. 10, 2012] (3) Prelaunch support for data-flow testing and related activities. § 1215.106 User command and tracking (4) User services scheduling. data. (c) Mission-unique services. Other (a) User command data shall enter tracking and data services desired by TDRSS via the NISN interface at WSC the user that are beyond the standard or GRGT.

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(b) NASA is required to have knowl- forming the trade studies. When these edge of the user satellite orbital ele- evaluations have been completed, and ments to sufficient accuracy to permit the user desires to use TDRSS, the user TDRSS to establish and maintain ac- should initiate a request for TDRSS quisition. This can be accomplished in service. two ways: (a) Initial requests for TDRSS service (1) The user can provide the orbital from non-U.S. Government users shall elements in a NASA format to meet be addressed to SCaN at NASA Head- TDRSS operational requirements. quarters, as follows: Deputy Associate (2) The user shall ensure that a suffi- Administrator: Space Communications cient quantity of tracking data is re- and Navigation Division, National Aer- ceived to permit the determination of onautics and Space Administration, the user satellite orbital elements. The Washington, DC 20546. Flight Dynamics Facility (FDF) at (b) Upon review and acceptance of GSFC will provide the orbit determina- the service request, preliminary anal- tion service to these users. The charges yses shall be performed to determine for this service will be negotiated be- the feasibility of meeting the proposed tween the FDF and the user and will be requirements. dependent on user requirements. (c) If the request is determined to be feasible, the user and SCaN shall nego- [77 FR 6952, Feb. 10, 2012] tiate an agreement for provision of the requested services. Acceptance of user § 1215.107 User data security and fre- requests for TDRSS service is the sole quency authorizations. prerogative of NASA. (a) User data security is not provided (d) Upon approval of the agreement by the TDRSS. Responsibility for data by both parties, GSFC will be assigned security resides solely with the user. to produce the detailed requirements, Users desiring data safeguards shall plans, and documentation necessary for provide and operate, external to the support of the mission. Changes to user TDRSS, the necessary equipment or requirements shall be made as far in systems to accomplish data security. advance as possible and shall be sub- Any such user provisions must be committed, in writing, to both SCaN at patible with data flow through TDRSS NASA Headquarters (see Section 108, and not interfere with other users. paragraph (a) for mailing address) and (b) All radio frequency authoriza- GSFC, as follows: Chief: Networks Inte- tions associated with operations pursu- gration Management Office, Code 450.1, ant to this directive are the responsi- NASA Goddard Space Flight Center, M/ bility of the user. If appropriate, au- S 450.1, 8800 Greenbelt Road Greenbelt, thority(ies) must be obtained from the MD 20771. Federal Communications Commission [77 FR 6953, Feb. 10, 2012] (FCC) for operations consistent with U.S. footnote 303 of the National Table § 1215.109 Scheduling user service. of Frequency Allocations, FCC Rules (a) User service shall be scheduled and Regulations, at 47 CFR 2.106. only by NASA. TDRSS services will be [56 FR 28049, June 19, 1991] provided in accordance with operational priorities established by the § 1215.108 Defining user service re- NASA Administrator or his/her des- quirements. ignee. See Appendix A for a description Potential users should become famil- of a typical user activity timeline. iar with TDRSS capabilities and con- (b) Schedule conflict will be resolved straints, which are detailed in the in general by application of principles SNUG, as early as possible. This action of priority to user service require- allows the user to evaluate the trade- ments. Services shall be provided ei- offs available among various TDRSS ther as normally scheduled service or services, spacecraft design, operations as emergency service. Priorities will be planning, and other significant mission different for emergency service than parameters. It is recommended that po- for normal services. tential users contact the NIMO as (1) Normally scheduled service is early as possible for assistance in per- service which is planned and ordered

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under normal operational conditions § 1215.110 User cancellation of all serv- and is subject to schedule conflict reso- ices. lution under normal service priorities. The user has the right to terminate Requests for normally scheduled serv- its service contract with NASA at any ice must be received by the schedulers time. A user who exercises this right at the GSFC WSC Data Services Man- after contracting for service shall pay agement Center (DSMC) no later than the charge agreed upon for services 21 days prior to the requested support previously rendered, and the cost in- time. curred by the Government for support (2) At times, emergency service re- of pre-launch activities, services, and quirements will override normal sched- mission documentation not included in ule priority. Under emergency service that charge. The user will remain re- conditions, disruptions to scheduled sponsible for the charges for any serv- service will occur. ices actually provided. (3) The DSMC reserves the sole right to schedule, reschedule, or cancel § 1215.111 User postponement of serv- TDRSS service. ice. (4) NASA schedulers will exercise The user may postpone the initiation judgment and endeavor to see that of contracted service (e.g., user launch lower-priority users are not excluded date) by delivery of written notifica- from a substantial portion of their con- tion to NASA Headquarters, Code OX. tracted-for service due to the require- Any delay in the contracted start of ments of higher-priority users. service date may affect the quantity of (c) General user service require- service to be provided due to commitments, which will be used for prelimi- ments to other support requirements. nary planning and mission modeling, Therefore, the validity of previous esti- should include all pertinent informa- mates of predicted support availability tion necessary for NASA to determine may no longer be applicable. if the proposed service is achievable. [56 FR 28049, June 19, 1991] Contact NIMO to discuss usage and requirements. § 1215.112 User/NASA contractual ar- (d) Such user service requirements rangement. information typically includes: No service shall be provided without (1) Date of service initiation. an approved agreement. (2) The type of TDRSS services desired (e.g., multiple access, tracking, [77 FR 6953, Feb. 10, 2012] etc.), and the frequency and duration of § 1215.113 User charges. each service. (3) Orbit or trajectory parameters (a) The user shall reimburse NASA and tracking data requirements. the sum of the charges for standard (4) Spacecraft events significant to and mission-unique services. Charges tracking, telemetry or command re- will be based on the service rates appli- quirements. cable at the time of service. (5) Communications systems spe- (b) For standard services, the user cifics, including location of antennas shall be charged only for services ren- and other related information dealing dered, except that if a total cancella- with user tracking, command, and data tion of service occurs, the user shall be systems. charged in accordance with the provi- (6) Special test requirements, data sions of § 1215.110. flows, and simulations, etc. (1) Standard services which are scheduled, and then cancelled by the (7) Identification of terrestrial data user less than 72 hours prior to the transport requirements, interface start of that scheduled service period, points, and delivery locations, includ- will be charged as if the scheduled ing latency and line loss recovery. service actually occurred. (e) To provide for effective planning, (2) The time scheduled by the user reference Appendix A, Typical New project shall include the slew time, set User Activity Timeline. up and/or configuration time, TDRSS [77 FR 6953, Feb. 10, 2012] contact time, and all other conditions

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for which TDRSS services were allo- order for advance planning work and/or cated to the user. travel to take place. The amount of (3) Charges will be accumulated by this partial payment and its receipt the minute, based on the computerized shall be negotiated on an as-needed schedule/configuration messages which basis. Adjustments to the amounts pre- physically set up TDRSS equipment at paid will be made to the succeeding bil- the start of a support period and free lings as the actual services are ren- the equipment for other users at the dered. end of a support period. (3) If the customer fails to make pay- (c) The user shall reimburse NASA ment by the payment due date, NASA for the costs of any mission-unique may terminate the agreement and any services provided by NASA. subagreements for breach of agreement after notice to the customer is given of [77 FR 6953, Feb. 10, 2012] this breach and failure to cure such § 1215.114 Service rates. breach within a time period established by NASA. (a) Rates for TDRSS services will be (b) Late payments by the user will established by the DAA for SCaN. require the user to pay a late payment (b) Per-minute rates will reflect charge. TDRSS total return on investment and operational and maintenance costs. [77 FR 6954, Feb. 10, 2012] (c) The rate per minute by service and type of user is available on the following Web site: https:// www.spacecomm.nasa.gov/spacecomm/pro- APPENDIX A TO PART 1215—ESTIMATED grams/Spacelnetwork.cfm. SERVICE RATES IN 1997 DOLLARS FOR (d) The per-minute charge for TDRSS TDRSS STANDARD SERVICES (BASED service is computed by multiplying the ON NASA ESCALATION ESTIMATE) charge per minute for the appropriate Time: Project conceptualization (at least service by the number of minutes uti- two years before launch; Ref. § 1215.108(a)). lized. Activity: Submit request for access to [77 FR 6953, Feb. 10, 2012] TDRSS. Upon preliminary acceptance of the service requirements by NASA Headquarters, § 1215.115 Payment and billing. communications for the reimbursable development of a Space Act Agreement (SAA) will (a) The procedure for billing and pay- begin. Prior to finalization of the Memo- ment of standard TDRSS services is as randum of Agreement (MOA), an estimate follows: for the services will be issued. After SAA sig- (1) NASA shall be reimbursed by cus- nature, full funding of the effort must be re- tomers in connection with the use of ceived prior to NASA initiating any activities associated with the effort. (Ref. Government property and services pro- § 1215.115(a)(1)). vided under an approved reimbursable Time: 18 months before launch (Ref. agreement. Advance payment for serv- § 1215.109(c). ices is required. Advance payments Activity: After full funding has been re- shall be scheduled to keep pace with ceived and distributed to the executing the rate at which NASA anticipates in- NASA entities, submit general user require- curring costs. NASA will provide a Cus- ments to permit preliminary planning. Con- tomer Budget/Estimate (CBE) for serv- tact will occur to facilitate the integration process for access to TDRSS. If appropriate, ices rendered nominally 60–90 days in initiate action with the Federal Communica- advance, or as otherwise agreed, of the tions Commission for license to commu- first anticipated property use or re- nicate with TDRSS (Ref. § 1215.107(b)). quired service date for each mission. Time: 12 months before launch (earlier if The full cost of the mission shall be possible). paid by the customer not later than 30 Activity: Provide detailed requirements for days prior to the first anticipated prop- technical definition and development of erty use or required service date. operational and interface control documents. (Ref. § 1215.109(d)). (2) In some cases, an advance partial Time: 3 weeks prior to a Scheduled Support payment will be required six—nine Period (SSP). months prior to the first anticipated Activity: Submit scheduling request to property use or required service date in NASA covering a weekly period. Receive

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schedule from NASA based on principles of Time (approximate) Activity priority (Ref. § 1215.109(b)). User confirmation of the schedule is required. Up to 12 hours prior Can cancel an SSP without charge Time: Up to 72 hours prior to an SSP. to an SSP.. (Ref. § 1215.113(a)(1)). Activity: Can cancel an SSP without charge Up to 45 minutes Can schedule an SSP if a time slot is prior to an SPP.. available without impacting another (Ref. § 1215.113(b)(1)). user. Time: Up to 45 minutes prior to an SPP. Between SSP Schedule requests will be charged at Activity: Can schedule an SSP if a time slot minus 45 minutes the disruptive update rate (Ref. is available without impacting another user. and the SSP.. § 1215.109(b)(5)). Time: Up to 10 minutes prior to an SSP. Real-Time...... Emergency service requests will be re- Activity: Can schedule an SSP utilizing sponded to per the priority system TDRSS unused time (TUT). (Ref. § 1215.109(b)(3)) and assessed the emergency service rate. [77 FR 6954, Feb. 10, 2012] [56 FR 28049, June 19, 1991] APPENDIX B TO PART 1215—FACTORS AFFECTING STANDARD CHARGES PART 1216—ENVIRONMENTAL Charges for services shall be determined by QUALITY multiplying the factors below by the base rates for standard services set forth in appendix A. Subpart 1216.1—Policy on Environmental Quality and Control Time or Emer- Flexi- position gency Sec. service, 1216.100 Scope. ble con- disruptive strained updates 1216.101 Applicability. 1216.102 Policy. Single access service ...... 5 1 2 1216.103 Responsibilities of NASA officials. Multiple access forward (command) service ...... 67 1 2 Subpart 1216.2 [Reserved]

Emer- Subpart 1216.3—Procedures for Imple- Normally gency sched- service, menting the National Environmental uled sup- disruptive Policy Act (NEPA) port updates 1216.300 Scope. Multiple access return (telemetry) 1216.301 Applicability. service ...... 1 2 1216.302 Responsibilities. 1216.303 NEPA process in NASA planning APPENDIX C TO PART 1215—TYPICAL and decision making. USER ACTIVITY TIMELINE 1216.304 Categorical exclusions. 1216.305 Actions requiring environmental Time (approximate) Activity assessments. 1216.306 Actions normally requiring an EIS. Project Request NASA Headquarters perform 1216.307 Programmatic EAs, EISs, and conceptualization study to determine availability of (At least 3 years TDRSS. If accepted as a user, begin tiering. before launch; contractual negotiation by submis- 1216.308 Supplemental EAs and EISs. Ref. sion of $25,000 non-refundable 1216.309 Mitigation and monitoring. § 1215.108(a)). charge, and place into mission 1216.310 Classified actions. model. 1216.311 Emergency responses. 3 years before Submit general user requirements to launch (Ref. permit preliminary planning. Begin APPENDIX A TO SUBPART 1216.3 OF PART 1216— § 1215.109(c).. payment for pre-mission activities ACRONYMS AND DEFINITIONS (Ref. § 1215.115(b)(5)). 18 months before Provide detailed requirements for tech- launch (earlier if nical definition and development of Subpart 1216.1—Policy on interfacing is ex- operational documents and ICD’s. Environmental Quality and Control pected).. (Ref. § 1215.109(e)). If appropriate, initiate action with the Federal Com- munications Commission for license AUTHORITY: The National Aeronautics and to communicate with TDRSS at least Space Act of 1958, as amended (42 U.S.C. 2451 18 months prior to launch (Ref. et seq.); the National Environmental Policy § 1215.107(b)). Act of 1969 (NEPA), as amended (42 U.S.C. 3 weeks prior to a Submit scheduling request to GSFC 4321 et seq.); the Environmental Quality Im- scheduled sup- covering a weekly period. Receive port period (SSP). schedule from GSFC based on prin- provement Act of 1970, as amended (42 U.S.C. 2 weeks prior to ciples of priority (Ref. 4371 et seq.); sec. 309 the Clean Air Act, as an SSP. § 1215.109(b)(2)). Acknowledgement amended (42 U.S.C. 7609); E.O. 11514 (Mar. 5, to GSFC required. 1970, as amended by E.O. 11991, May 24, 1977);

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the Council on Environmental Quality NEPA NASA planning and decisionmaking Regulations (40 CFR part 1500–1508); and E.O. processes. 12114, Jan. 4, 1979 (44 FR 1957). SOURCE: 44 FR 44485, July 30, 1979, unless § 1216.103 Responsibilities of NASA of- otherwise noted. ficials. (a) The Associate Administrator for § 1216.100 Scope. Management or designee shall: This subpart sets forth NASA policy (1) Coordinate the formulation and on environmental quality and control revision of NASA policies and positions and the responsibilities of NASA offi- on matters pertaining to environ- cials in carrying out these policies. mental protection and enhancement; § 1216.101 Applicability. (2) Represent NASA in working with other governmental agencies and inter- This subpart is applicable to NASA agency organizations to formulate, re- Headquarters and field installations. vise, and achieve uniform under- § 1216.102 Policy. standing and application of governmentwide policies relating to the envi- NASA policy is to: ronment; (a) Use all practicable means, consistent with NASA’s statutory author- (3) Develop and ensure the implemen- ity, available resources, and the na- tation of agencywide standards, proce- tional policy, to protect and enhance dures, and working relationships for the quality of the environment; protection and enhancement of envi- (b) Provide for proper attention to ronmental quality and compliance with and ensure that environmental amen- applicable laws and regulations; ities and values are given appropriate (4) Develop, as an integral part of consideration in all NASA actions, in- NASA’s basic decision processes, proce- cluding those performed under con- dures to ensure that environmental tract, grant, lease, or permit; factors are properly considered in all (c) Recognize the worldwide and long- proposals and decisions; range character of environmental con- (5) Establish and maintain working cerns and, when consistent with the relationships with the Council on Envi- foreign policy of the United States and ronmental Quality, Environmental its own responsibilities, lend appro- Protection Agency, and other national, priate support to initiatives, resolu- state, and local governmental agencies tions, and programs designed to maxi- concerned with environmental matters; mize international cooperation in an- (6) Acquire information for and en- ticipating and preventing a decline in sure the preparation of appropriate the quality of the world environment; NASA reports on environmental mat- (d) Use systematic and timely ap- ters. proaches which will ensure the inte- (b) Officials-in-Charge of Head- grated use of the natural and social quarters Offices and NASA Field In- sciences and environmental design arts stallation Directors are responsible for: in planning and decisionmaking for ac- (1) Identifying matters under their tions which may have an impact on the human environment; cognizance which may affect protec- (e) Pursue research and development, tion and enhancement of environ- within the scope of NASA’s authority mental quality and for employing the or in response to authorized agencies, proper procedures to ensure that nec- for application of technologies useful essary actions are taken to meet the in the protection and enhancement of requirements of applicable laws and environmental quality; regulations; (f) Initiate and utilize ecological and (2) Coordinating environmental qual- other environmental information in ity-related activities under their cog- the planning and development of re- nizance with the Associate Adminis- source-oriented projects; and trator for Management; and (g) Invite cooperation, where appro- (3) Supporting and assisting the As- priate, from Federal, State, local, and sociate Administrator for Management regional authorities and the public in on request.

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(c) Officials-in-Charge of Head- § 1216.300 Scope. quarters Offices are additionally re- (a) This subpart implements NEPA, sponsible for: setting forth NASA’s policies and pro- (1) Giving high priority, in the pur- cedures for the early integration of en- suit of program objectives, to the iden- vironmental considerations into plan- tification, analysis, and proposal of re- ning and decision making. search and development which, if con- (b) Through this subpart, NASA ducted by NASA or other agencies, adopts the CEQ regulations imple- may contribute to the achievement of menting NEPA (40 CFR parts 1500–1508) beneficial environmental objectives; and supplements those regulations and with this subpart 1216.3, for actions (2) In coordination with the Asso- proposed by NASA that are subject to ciate Administrator for Management, NEPA requirements. This subpart is to making available to other parties, both be used in conjunction with the CEQ governmental and nongovernmental, regulations. Consistent with the CEQ advice and information useful in pro- regulations at 40 CFR part 1500.3, no tecting and enhancing the quality of trivial violation of this part shall give the environment. rise to any independent cause of ac- (d) NASA Field Installation Directors tion. This subpart and NASA’s NEPA are additionally responsible for: policy are available on NASA’s Public (1) Implementing the NASA policies, Portal at http://www.nasa.gov/agency/ standards and procedures for the pro- nepa/ (under NEPA Process). tection and enhancement of environmental quality and supplementing § 1216.301 Applicability. them as appropriate in local circumstances; This subpart applies to all organiza- (2) Specifically assigning responsibil- tional elements of NASA. ities for environmental activities § 1216.302 Responsibilities. under the installation’s cognizance to appropriate subordinates, while pro- (a) The NASA Senior Environmental viding for the coordination of all such Official (SEO) (as defined in Appendix activities; and A to this subpart) is responsible for (3) Establishing and maintaining overseeing and guiding NASA’s inte- working relationships with national, gration of NEPA into the Agency’s state, regional and governmental agen- planning and decision making. The cies responsible for environmental reg- SEO, with the assistance of the Office ulations in localities in which the field of the General Counsel (OGC), is re- installations conduct their activities. sponsible for developing NASA NEPA regulations and maintaining up-to-date [44 FR 44485, July 30, 1979, as amended at 53 Agency-wide NEPA guidance that fully FR 9760, Mar. 25, 1988] integrates NEPA analysis into Agency planning and decision-making proc- Subpart 1216.2 [Reserved] esses. The SEO shall monitor this process to ensure that these regulations Subpart 1216.3—Procedures for and the associated Agency guidance Implementing the National are achieving their purposes. In addi- Environmental Policy Act tion, the NASA SEO is responsible for (NEPA) coordinating with other Federal agencies and the CEQ and consolidating and transmitting NASA’s comments on AUTHORITY: The National Aeronautics and EISs and other NEPA documentation Space Act of 1958, as amended (51 U.S.C. 20101 prepared by other Federal agencies: et seq.); The National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et (1) The NASA Headquarters/Environ- seq.); the Council on Environmental Quality mental Management Division (HQ/ (CEQ) Regulations for Implementing the EMD) is delegated the SEO’s overall re- Procedural Provisions of the National Envi- sponsibility of implementing NEPA ronmental Policy Act (40 CFR parts 1500– functions and guiding NASA’s integra- 1508). tion of NEPA into the Agency’s plan- SOURCE: 77 FR 3103, Jan. 23, 2012, unless ning and decision making for all NASA otherwise noted. activities. The HQ/EMD provides advice

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and consultation to all NASA entities § 1216.303 NEPA process in NASA in implementing their assigned respon- planning and decision making. sibilities under NEPA. Interested per- (a) NEPA requires the systematic ex- sons can obtain information on the sta- amination of the environmental con- tus of EISs and other elements of the sequences of implementing a proposed NEPA process by contacting the NASA Agency action. Full integration of the NEPA Manager at HQ/EMD identified NEPA process with NASA project and at http://www.nasa.gov/agency/nepa/ program planning improves Agency de- NEPATeam.html. cisions and ensures that: (2) Each NASA Center has an envi- (1) Planning and decision making ronmental management office that support NASA’s strategic plan commit- guides and supports the working-level ment to sustainability and environ- functions of the NEPA process, such as mental stewardship and comply with evaluating proposed actions; devel- applicable environmental statutes, reg- oping, reviewing, and approving re- ulations, and policies. quired documentation; and advising (2) The public is appropriately en- project managers. gaged in the decision-making process. (b) The Responsible Official shall en- (3) Procedural risks and delays are sure that planning and decision mak- minimized. ing for each proposed Agency action (b) Determining the appropriate level complies with these regulations and of NEPA review and documentation for with Agency NEPA policy and guid- a proposed NASA action will depend ance provided by the SEO, HQ/EMD, upon the scope of the action and the and the Center’s environmental man- context and intensity of the reasonably foreseeable environmental impacts. agement office. For facility programs (c) The environmental impacts of a and projects, the Responsible Official is proposed Agency action must be con- the individual responsible for estab- sidered, along with technical, eco- lishing, developing, and maintaining nomic, and other factors that are rea- the institutional capabilities required sonably foreseeable, beginning in the for the execution of programs and early planning stage of a proposed ac- projects (e.g., Center Director, facility tion. NASA will take no action which manager). For other programs and would have an adverse environmental projects, (e.g., space flight programs/ impact or limit the choice of reason- projects, R&D programs/projects) the able alternatives prior to completion of Responsible Official is the NASA offi- its NEPA review. cial responsible for the formulation and implementation of the program or § 1216.304 Categorical exclusions. project (e.g., The Associate Adminis- (a) Categorical Exclusions (CatExs) trator for Science Mission Directorate, are categories of Agency actions with Center Director). no individually or cumulatively signifi- (c) NASA must comply with this sub- cant impact on the human environ- part when considering issuance of a ment and for which neither an EA nor permit, lease, easement, or grant to a an EIS is required. The use of a CatEx non-Federal party and may seek such is intended to reduce paperwork, im- non-Federal party’s assistance in ob- prove Government efficiency, and taining necessary information and eliminate delays in the initiation and completing the NEPA process. The Re- completion of proposed actions having sponsible Official(s) for such action(s), no significant impact. in consultation with HQ/EMD and/or (b) A proposed action may be cat- the Center’s environmental manage- egorically excluded if the action fits ment office, will determine the type of within a category of actions eligible environmental information needed for exclusion (such categories are list- from the non-Federal party and the ex- ed in paragraph (d) of this section)), and the proposed action does not intent of the non-Federal party’s partici- volve any extraordinary circumstances pation in the necessary NEPA process. as described in paragraph (c) of this section:

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(c) Extraordinary circumstances that analytical supply and demand studies, will preclude the use of CatExs occur reports and recommendations, master when the proposed action: and strategic plans, and other advisory (1) Has a reasonable likelihood of documents. having (individually or cumulatively) (v) Information-gathering exercises, significant impacts on public health, such as inventories, audits, studies, safety, or the environment. and field studies, including water sam- (2) Imposes uncertain or unique envi- pling, cultural resources surveys, bio- ronmental risks. logical surveys, geologic surveys, mod- (3) Is of significantly greater scope or eling or simulations, and routine data size than is normal for this category of collection and analysis activities. action. (vi) Preparation and dissemination of (4) Has a reasonable likelihood of vio- information, including document mail- lating Federal, federally recognized In- ings, publications, classroom mate- dian tribe, State, and/or local law or rials, conferences, speaking engage- requirements imposed for the protec- ments, Web sites, and other edu- tion of the environment. cational/informational activities. (5) Involves impacts on the quality of (vii) Software development, data the environment that are likely to be analysis, and/or testing, including com- environmentally controversial. puter modeling. (6) May adversely affect environ- (viii) Interpretations, amendments, mentally sensitive resources, such as, and modifications to contracts, grants, but not limited to, federally listed or other awards. threatened or endangered species, their (2) Operations and Management Ac- designated critical habitat, wilderness tivities including: areas, floodplains, wetlands, aquifer re- (i) Routine maintenance, minor con- charge areas, coastal zones, wild and struction or rehabilitation, minor dem- scenic rivers, and significant fish or olition, minor modification, minor re- wildlife habitat, unless the impact has pair, and continuing or altered oper- been resolved through another environ- ations at, or of, existing NASA or mental review process; e.g., the Clean NASA-funded or -approved facilities Water Act (CWA), the Coastal Zone and equipment, such as buildings, Management Act (CZMA). roads, grounds, utilities, communica- (7) May adversely affect known nation systems, and ground support sys- tional natural landmarks, or cultural tems, such as space tracking and data or historic resources, including, but systems. not limited to, property listed on or el- (ii) Installation or removal of equip- igible for the National Register of His- ment, including component parts, at toric Places, unless the impact has existing Government or private facili- been resolved through another environ- ties. mental review process; e.g., the Na- (iii) Contribution of equipment, soft- tional Historic Preservation Act ware, technical advice, exchange of (NHPA). data, and consultation to other agen- (d) Specific NASA actions meeting cies and public and private entities, the criteria for being categorically ex- where such assistance does not control cluded from the requirements for EAs a receiving entity’s program, project, and EISs are as follows: or activity. (1) Administrative Activities includ- (iv) NASA ceremonies, commemora- ing: tive events, and memorial services. (i) Personnel actions, organizational (v) Routine packaging, labeling, stor- changes, and procurement of routine age, and transportation of hazardous goods and services. materials and wastes, in accordance (ii) Issuance of procedural rules, with applicable Federal, federally rec- manuals, directives, and requirements. ognized Indian tribe, State, and/or (iii) Program budget proposals, dis- local law or requirements. bursements, and transfer or reprogram- (3) Research and Development (R&D) ming of funds. Activities including: (iv) Preparation of documents, in- (i) Research, development, and test- cluding design and feasibility studies, ing in compliance with all applicable

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Federal, federally recognized Indian (v) Acquisition of real property (in- tribe, State, and/or local law or re- cluding facilities) where the land use quirements and Executive orders. will not change substantially (REC re- (ii) Use of small quantities of radio- quired). active materials in a laboratory or in (5) Aircraft and Airfield Activities in- the field. Uses include material for including: strument detectors, calibration, and (i) Periodic aircraft flight activities, other purposes. Materials must be li- including training and research and de- censed, as required, and properly con- velopment, which are routine and com- tained and shielded. ply with applicable Federal, federally (iii) Use of lasers for research and de- recognized Indian tribe, State, and/or velopment, scientific instruments and local law or requirements, and Execu- measurements, and distance and rang- tive orders. ing, where such use meets all applica- (ii) Relocation of similar aircraft not ble Federal, federally recognized Indian resulting in a substantial increase in tribe, State, and/or local law or re- total flying hours, number of aircraft quirements, and Executive orders. This operations, operational parameters applies to lasers used in spacecraft, air- (e.g., noise), or permanent personnel or craft, laboratories, watercraft, or out- logistics support requirements at the door activities. receiving installation (REC required). (4) Real and Personal Property Ac- (e) The Responsible Official shall re- tivities including: view the proposed action in its early (i) Acquisition, transfer, or disposal planning stage and will consider the of any personal property, or personal scope of the action and the context and property rights or interests. intensity of any environmental im- (ii) Granting or acceptance of ease- pacts to determine whether there are ments, leases, licenses, rights-of-entry, extraordinary circumstances that and permits to use NASA-controlled could result in environmental impacts. property, or any other real property, If extraordinary circumstances exist, for activities which, if conducted by the Responsible Official will either NASA, would be categorically excluded withdraw the proposed action or ini- in accordance with this section. This tiate an EA or EIS. assumes that NASA has included any (f) The NASA SEO will review the required notices in transfer docu- categorical exclusions at least every mentation and any terms and conditions necessary to ensure protection of seven years, in accordance with CEQ the environment, as applicable (Record guidance, to determine whether modi- of Environmental Consideration (REC) fications, additions, or deletions are required). appropriate, based upon NASA’s experience. Recommendations for modifica- (iii) Transfer or disposal of real prop- tions, additions, or deletions shall be erty or real property rights or interests if the change in use is one which, if submitted to the SEO for consideration conducted by NASA, would be categori- and informal discussion with the CEQ. cally excluded in accordance with this § 1216.305 Actions requiring environ- section (REC required). mental assessments. (iv) Transfer of real property administrative control to another Federal (a) The Responsible Official will pre- agency, including the return of public pare an EA when a proposed action domain lands to the Department of the cannot be categorically excluded, and Interior (DoI) or other Federal agen- the proposed action is not expected to cies, and reporting of property as ex- result in impacts that require analysis cess and surplus to the General Serv- in an EIS. The Responsible Official will ices Administration (GSA) for disposal, consider the scope of the action and when the agency receiving administra- the context and intensity of any envi- tive control (or GSA, following receipt ronmental impacts when determining of a report of excess) will complete any whether to prepare an EA. necessary NEPA review prior to any (b) Typical NASA actions normally change in land use (REC required). requiring an EA include:

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(1) Specific spacecraft development would return samples to Earth from and space flight projects/programs (as solar system bodies (such as asteroids, defined in Appendix A to this subpart). comets, planets, dwarf planets, and (2) Actions altering the ongoing oper- planetary moons), which would likely ations at a NASA Center which could receive a Restricted Earth Return cat- lead directly, indirectly, or cumula- egorization (as defined in Appendix A tively to substantial natural or phys- to this subpart) from the NASA Plan- ical environmental impacts. etary Protection Office or the NASA (3) Construction or modifications of Planetary Protection Subcommittee. facilities which are not minor. (e) Substantial modification of a (4) Proposed actions that are ex- NASA facility’s master plan in a man- pected to result in significant changes ner expected to result in significant ef- to established land use. (5) A space flight project/program fect(s) on the quality of the human en- that would return extraterrestrial sam- vironment. ples to Earth from solar system bodies (f) Substantial construction projects (such as asteroids, comets, planets, expected to result in significant ef- dwarf planets, and planetary moons), fect(s) on the quality of the human en- which would likely receive an Unre- vironment, when such construction and stricted Earth Return categorization its effects are not within the scope of (as defined in Appendix A to this sub- an existing master plan and EIS. part) from NASA’s Planetary Protec- tion Office (PPO) or the NASA Plan- § 1216.307 Programmatic EAs, and etary Protection Subcommittee prior EISs, and tiering. to the return of samples to the Earth. NASA encourages the analysis of actions at the programmatic level for § 1216.306 Actions normally requiring those programs similar in nature or an EIS. broad in scope. Programmatic NEPA (a) NASA will prepare an EIS for ac- analyses may take place in the form of tions with the potential to signifi- an EA or EIS. These documents allow cantly impact the quality of the ‘‘tiering’’ of NEPA documentation for human environment, including actions subsequent or specific actions. for which an EA analysis demonstrates that significant impacts will poten- § 1216.308 Supplemental EAs and EISs. tially occur which will not be reduced or eliminated by changes to the pro- As detailed in CEQ regulations, sup- posed action or mitigation of its poten- plemental documentation may be re- tially significant impacts. quired for previous EAs or EISs (see 40 (b) Typical NASA actions normally CFR 1502.9). If changed circumstances requiring an EIS include: require preparation of a supplemental (1) Development and operation of new EA or EIS, such document will be prelaunch vehicles or space transportation pared following the same general proc- systems. ess as the original EA or EIS. No new (2) [Reserved] scoping is required for a supplemental (c) Development and operation of a EIS; however, NASA may choose to space flight project/program which conduct scoping. would launch and operate a nuclear re- actor or radioisotope power systems § 1216.309 Mitigation and monitoring. and devices using a total quantity of When the analysis proceeds to an EA radioactive material greater than the or EIS and mitigation measures are se- quantity for which the NASA Nuclear Flight Safety Assurance Manager may lected to avoid or reduce environ- grant nuclear safety launch approval mental impacts, such mitigation meas- (i.e., a total quantity of radioactive ures will be identified in the EA/FONSI material for which the A2 Mission Mul- or the EIS Record of Decision (ROD). tiple (see definitions in Appendix A to NASA will implement mitigation this subpart) is greater than 10)). measures (including adaptive manage- (d) Development and operation of a ment strategies, where appropriate) space flight project/program which consistent with applicable FONSIs and/

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or RODs and will monitor their imple- (c) If the Responsible Official pro- mentation and effectiveness. The Re- poses emergency actions which con- sponsible Official will ensure that fund- tinue beyond the urgent actions taken ing requests for such mitigation meas- as a result of the emergency, and these ures are included in the program or actions are not categorically excluded, project budget. the Responsible Official will consult with the SEO to determine the appro- § 1216.310 Classified actions. priate level of NEPA compliance. If (a) Classification does not relieve continuation of the emergency actions NASA of the requirement to assess, will reasonably result in significant en- document, and consider the environ- vironmental impacts, the SEO will mental impacts of a proposed action. consult with the CEQ to ensure compli- (b) When classified information can ance with 40 CFR 1506.11 as soon as is reasonably be separated from other in- reasonable. formation and a meaningful environmental analysis can be produced, un- APPENDIX A TO SUBPART 1216.3 OF PART classified documents will be prepared 1216—ACRONYMS AND DEFINITIONS and processed in accordance with these CatEx Categorical Exclusion regulations. Classified portions will be CEQ Council on Environmental Quality kept separate and provided to properly CFR Code of Federal Regulations cleared reviewers and decision makers CWA Clean Water Act in the form of a properly classified doc- CZMA Coastal Zone Management Act ument that meets the requirements of DoI (U.S.) Department of the Interior EA Environmental Assessment these regulations to the extent per- EMD Environmental Management Division mitted, given such classification. EIS Environmental Impact Statement FONSI Finding of No Significant Impact § 1216.311 Emergency responses. FR Federal Register (a) When the Responsible Official de- GSA General Services Administration termines that an emergency exists that NEPA National Environmental Policy Act NHPA National Historic Preservation Act makes it necessary to take urgently SEO Senior Environmental Official needed actions before preparing a OGC Office of the General Counsel NEPA analysis and any required docu- PPO Planetary Protection Office mentation, in accordance with the pro- REC Record of Environmental Consider- visions in §§ 1216.305 and 1216.307 of this ation subpart, then the following provisions ROD Record of Decision apply: U.S.C. United States Code (1) The Responsible Official may take DEFINITIONS urgently needed actions that are necessary to control the immediate im- 1. A2 Mission Multiple—The A2 Mission Mul- tiple is a calculated value based on the pacts of the emergency needed to miti- total amount of radioactive material being gate harm to life, property, or re- launched. This value is used in defining the sources. When taking such actions, the level of review and approval required for Responsible Official shall, to the ex- launch. tent practical, mitigate foreseeable ad- 2. Earth Return Mission (also known as a verse environmental impacts. Sample Return)—A subcategory of mis- (2) [Reserved] sions that would collect extraterrestrial (b) At the earliest practicable time, materials from solar system bodies and return them to Earth. the Responsible Official shall also no- 3. NASA Senior Environmental Official—The tify the SEO of the emergency situa- Senior NASA Headquarters Official respon- tion and the action(s) taken. The SEO sible for providing executive and func- will determine the appropriate NEPA tional leadership for environmental com- action associated with the urgent ac- pliance. As of January 1, 2011, the SEO is tions taken as a result of the emer- the Assistant Administrator for Strategic gency. If the urgent actions will rea- Infrastructure. sonably result in significant environ- 4. Record of Environmental Consideration— A brief document that is used to describe a mental impacts, the SEO will consult proposed action, identify the applicable with the CEQ to ensure compliance categorical exclusion, and explain why fur- with 40 CFR 1506.11 as soon as is rea- ther environmental analysis is not re- sonable. quired.

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5. Restricted Earth Return—A subcategory § 1217.101 Applicability. of Earth Return Missions which requires additional measures to ensure that any po- This part applies to qualifying arti- tential indigenous life form would be con- cles entered or withdrawn from ware- tained so that it could not impact humans house for consumption in the customs or Earth’s environment. territory of the United States, and to 6. Space Flight Projects/Programs—Those articles brought into the customs terri- NASA actions that develop products in- tory of the United States by NASA tended for use in space and/or that support from space or from foreign country as ground and space operations for products part of the NASA international pro- in space. gram. 7. Unrestricted Earth Return—NASA Proce- dural Requirements define this as a sub- § 1217.102 Background. category of Earth Return Missions that would collect extraterrestrial materials In order to encourage and facilitate from solar system bodies (deemed by sci- the use of NASA’s launch services for entific opinion to have no indigenous life the exploration and use of space, sec- forms) and return those samples to Earth. tion 116 of Public Law 97–446 provided No planetary protection measures are re- for the duty-free entry into the United quired for the inbound (return to Earth) States of certain articles imported by phase of the mission. NASA for its space-related activities or articles imported by another person or PART 1217—DUTY-FREE ENTRY OF entity for the purpose of meeting its SPACE ARTICLES obligations under a launch services agreement with NASA. Such articles Sec. were certified by NASA to the Commis- 1217.100 Scope. sioner of Customs for duty-free entry 1217.101 Applicability. to be launched into space or space 1217.102 Background. parts or necessary and uniquely associ- 1217.103 Authority to certify. ated support equipment for use in con- 1217.104 Certification forms. nection with a launch into space. This 1217.105 Procedures. exemption from duty was provided for 1217.106 Articles brought into the United in Subheading 9808.00.80, Harmonized States by NASA from space. Tariff Schedule of the United States AUTHORITY: 51 U.S.C. 20113; Proclamation (HTSUS) (19 U.S.C. 1202). Also, HTSUS, No. 6780 of March 23, 1995, 60 FR 15845. Chapter VIII, U.S. note 1, pursuant to the same law, provided that return of SOURCE: 62 FR 6467, Feb. 12, 1997, unless articles by NASA from space to the otherwise noted. United States would not be considered an importation, and similarly not be § 1217.100 Scope. subject to a duty. This part sets forth policy and proce- As a result of the Uruguay Round dures with respect to the use of the agreements of the 1994 General Agree- NASA’s authority to certify to the U.S. ment on Tariffs and Trade, this author- Commissioner of Customs duty-free ity was revised and expanded in scope. entry of articles into the United States It now provides that imports of articles for the use of NASA or for implementa- for NASA’s use and articles imported tion of a NASA international program, to implement NASA’s international including articles that will be launched programs, including articles to be into space, spare parts for such arti- launched into space, parts thereof, cles, ground support equipment, or ground support equipment, and unique- uniquely associated equipment for use ly associated equipment for use in con- in connection with a NASA inter- nection with NASA’s international pro- national program or launch service grams and launch service agreements agreement. This part also sets forth would be eligible for duty-free customs NASA’s procedures with respect to the entry upon certification by NASA to use of its authority to bring foreign- the Commissioner of Customs. The re- owned articles and articles from space vised authorities also provided, in U.S. into the customs territory of the note 1 to subchapter VIII of chapter 98 United States, and describes the non- of the HTSUS, that articles brought import status of such articles. into the customs territory of the

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United States by NASA from space or (b) Each certification by the officials from a foreign country as part of a identified in paragraphs (a)(1), (a)(2), NASA’s international programs would and (a)(3) of this section shall receive not be considered imports or subject to the concurrence of the Office of the customs entry requirements. General Counsel. (c) Subject to procedures established § 1217.103 Authority to certify. by the officials identified in paragraphs (a) The following NASA officials, (a)(1), (a)(2), or (a)(3) of this section, as their deputies, and designees within appropriate, the Center Procurement their respective organizations are au- Officer or a Program Manager at a thorized, under the conditions de- NASA Installation who is designated scribed herein, to make the certifi- by an official identified in paragraphs cation to the Commissioner of Customs (a)(1), (a)(2), or (a)(3) of this section required for the duty-free entry of may make the certification to the space articles pursuant to subheading Commissioner of Customs required for HTSUS 9808.00.80. the duty-free entry of space articles (1) The NASA Assistant Adminis- pursuant to subheading HTSUS trator for Procurement is authorized to 9808.00.80. Such procedures shall in- issue the certification for articles im- clude the following requirements: ported into the United States which (1) All such certifications by des- are procured by NASA or by other U.S. ignated Procurement Officers or Pro- Government agencies, or by U.S. Gov- gram Managers shall receive the con- ernment contractors or subcontractors currence of the Chief Counsel of the when title to the articles is or will be issuing NASA Installation; and vested in the U.S. Government pursu- (2) All such certifications by des- ant to the terms of the contract or sub- ignated Procurement Officers or Pro- contract. Requests for certification gram Managers shall be promptly re- should be sent to: Office of Procure- ported to an official identified in para- ment, Attn: Director, Contract and graphs (a)(1), (a)(2), or (a)(3) of this sec- Grant Policy Division, National Aero- tion, as appropriate. nautics and Space Administration, [62 FR 6467, Feb. 12, 1997, as amended at 80 Washington, DC 20546. FR 45865, Aug. 3, 2015] (2) The NASA Associate Adminis- trator for International and Inter- § 1217.104 Certification forms. agency Relations is authorized to issue To the extent an authorized NASA the certification for articles imported official approves a request for certifi- into the United States pursuant to cation, that official shall sign a certifi- international agreements. Requests for cate in the following form: certification should be sent to: Office (a) For articles procured by NASA, a of International and Interagency Rela- Customs Service Form CF 7501 (Entry tions, Attn: Director, Export Control Summary) shall be completed, and the and Interagency Liaison Division, Na- following certification shall be used: tional Aeronautics and Space Adminis- tration, Washington, DC 20546. ARTICLES FOR THE NATIONAL AERONAUTICS (3) The NASA Associate Adminis- AND SPACE ADMINISTRATION trator for Human Exploration and Op- erations is authorized to issue the cer- Item 9808.00.80, Harmonized Tariff Schedule of the United States tification for articles imported into the United States by persons or entities Program: llllllllllllllllll under agreements other than those I hereby certify that the articles identified identified in paragraphs (a)(1) and (a)(2) in [attached invoice] are being imported for of this section, including launch serv- the use of the National Aeronautics and ices agreements. Requests for certifi- Space Administration (NASA) in accordance with 9808.00.80, Harmonized Tariff Schedule cation should be sent to: Human Explo- of the United States. ration and Operations Mission Direc- Name llllllllllllllllllll torate, Attn: Director, International Space Station Office, National Aero- Date lllllllllllllllllllll nautics and Space Administration, (b) For articles imported by NASA to Washington, DC 20546. implement international programs of

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NASA to which NASA will take title, Name llllllllllllllllllll or which remain the property of for- Date lllllllllllllllllllll eign entities under such programs, no With respect to articles represented entry is required pursuant to U.S. note to be: procurements by NASA; or im- 1 to HTSUS subchapter VIII of chapter ports to implement international pro- 98. For such articles, the following cer- grams of NASA to which NASA will tification shall be used: 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 the NASA official issuing the blanket SPACE ADMINISTRATION certificate shall review the proposed articles and approve their eligibility Item 9808.00.80, Harmonized Tariff Schedule of the United States for duty-free entry. A description of these articles shall either be referred Program: llllllllllllllllll to in the blanket certificate and pro- Foreign Owner(s) (if applicable): llllll vided in Form CF 7501 (Entry Sum- In accordance with subheading 9808.00.80 mary) for procurements or attached to and U.S. note 1 to subchapter VIII of chapter the certificate for imports to imple- 98, Harmonized Tariff Schedule of the United ment NASA international programs, as States, I hereby certify that the above-de- appropriate. scribed shipment is being brought into the customs territory of the United States as part of an international program of the Na- § 1217.105 Procedures. tional Aeronautics and Space Administra- (a) Requests for certification shall be tion (NASA). No CF 7501 entry is required for forwarded to an appropriate NASA offi- this shipment. All articles contained in this cial or designee as provided for in shipment are, and shall remain, the property § 1217.103 of this part. of NASA or of the foreign entities identified (b) Each request for certification above. Except for articles consumed in the shall be accompanied by: execution of the above-described Program, none of these articles will be made available (1) A proposed certificate as provided for sale or other disposition to persons or infor in § 1217.104 of this part; stitutions not directly involved in the Pro- (2) The information and documenta- gram identified above. tion required by 19 CFR 10.102(a), in- Name llllllllllllllllllll cluding invoice documentation or a de- Date lllllllllllllllllllll scription of covered articles; and (3) The anticipated date of entry of (c) A blanket certificate for a series entry and port of entry for each arti- of imports under a specific NASA inter- cle. If the article is to be transported national program or procurement is in bond from the port of arrival to an- authorized but shall require written other port of entry in the United verification by a NASA official des- States, identify both ports. ignated by a Director of a receiving (c) The signed certificate and its at- NASA Installation that the articles re- tachment(s) will be forwarded to the ceived meet the conditions of the cer- NASA Installation responsible for tificate. The blanket certificate shall duty-free entry of the materials, unless be in the form of the certifications set issued at such Installation by an au- forth in paragraphs (a) or (b) of this thorized official in accordance with section, as appropriate, but shall in- § 1217.103(c) of this part. These docu- clude the following paragraph at the ments shall be presented to an appro- end thereof: priated Customs official at the port(s) Before this certification is used to obtain of entry. The procedures specified in 19 duty-free entry of these articles, a cognizant CFR 10.102 will be followed by the NASA official at the receiving NASA Instal- NASA Installation in obtaining duty- lation, who is designated by the Installation free entry at the Customs port(s) of Director, shall verify in writing that specifi- entry. The NASA Installation should cally identified articles to be entered on a ensure that, at the time the articles particular date are the articles described in are to be released after Customs entry, this certificate or its attachments. This verification and this certification shall be the custody of the imported articles is presented to the U.S. Customs Service at the transferred directly from the carrier or time entry for the particular articles is from the U.S. Customs Service to the sought. NASA Installation, its agent, or the

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launch service customer in the case of 1221.111 Use of the NASA Logotype. a Launch and Associated Services 1221.112 Use of the NASA Program Identi- Agreement. fiers. 1221.113 Use of the NASA Flags. (d) If articles procured under con- 1221.114 Approval of new or change pro- tract by NASA are imported prior to posals. compliance with these procedures and 1221.115 Violations. it is essential that the articles be re- 1221.116 Compliance and enforcement. leased from Customs custody prior to such compliance, the procedures out- Subpart 1221.2—The Congressional Space lined in 19 CFR 10.101 may be followed Medal of Honor by cognizant NASA officials to secure 1221.200 Scope. the release of the articles from Cus- 1221.201 Basis for award of the medal. toms custody. To the extent applicable, 1221.202 Description of the medal. the procedures in § 1217.105 of this part 1221.203 Nominations. shall be followed when time permits to 1221.204 Proceedings of the NASA Incentive obtain duty-free entry for the articles Awards Board. released from Customs custody. APPENDIX A TO PART 1221—CONGRESSIONAL SPACE MEDAL OF HONOR § 1217.106 Articles brought into the United States by NASA from space. Subpart 1221.1—NASA Seal, NASA Pursuant to U.S. note 1 subchapter Insignia, NASA Logotype, VIII of chapter 98, HTSUS, articles NASA Program Identifiers, brought into the customs territory of NASA Flags, and the Agen- the United States by NASA from space cy’s Unified Visual Commu- shall not be considered an importation, nications System and no certification or entry of such materials through U.S. Customs shall be required. This provision is applica- AUTHORITY: 42 U.S.C. 2472(a) and 2473(c)(1). ble to articles brought to the U.S. from SOURCE: 58 FR 58944, Nov. 5, 1993, unless space whether or not the articles were otherwise noted. launched into space aboard a NASA vehicle. § 1221.100 Scope. This subpart sets forth the policy PART 1221—THE NASA SEAL AND governing the use of the NASA Seal, OTHER DEVICES, AND THE CON- the NASA Insignia, NASA Logotype, GRESSIONAL SPACE MEDAL OF NASA Program Identifiers, and the NASA Flags. This subpart also estab- HONOR lishes and sets forth the concept and scope of the NASA Unified Visual Com- Subpart 1221.1—NASA Seal, NASA Insignia, munications System and prescribes the NASA Logotype, NASA Program Identi- policy and guidelines for implementa- fiers, NASA Flags, and the Agency’s tion of the system. Unified Visual Communications System Sec. § 1221.101 Policy. 1221.100 Scope. (a) The NASA Seal, the NASA Insig- 1221.101 Policy. nia, NASA Logotype, NASA Program 1221.102 Establishment of the NASA Seal. Identifiers, the NASA Flags, and the 1221.103 Establishment of the NASA Insig- nia. Agency’s Unified Visual Communica- 1221.104 Establishment of the NASA Logo- tions System, as prescribed in § 1221.102 type. through § 1221.108 of this subpart, shall 1221.105 Establishment of the NASA Pro- be used exclusively to represent NASA, gram Identifiers. its programs, projects, functions, ac- 1221.106 Establishment of the NASA Flag. tivities, or elements. The use of any de- 1221.107 Establishment of the NASA Admin- vices other than those provided by or istrator’s, Deputy Administrator’s, and subsequently approved in accordance Associate Deputy Administrator’s Flags. 1221.108 Establishment of the NASA Unified with the provisions of this subpart is Visual Communications System. prohibited. 1221.109 Use of the NASA Seal. (b) The use of the devices prescribed 1221.110 Use of the NASA Insignia. in this section shall be governed by the

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provisions of this subpart. The use of § 1221.102 Establishment of the NASA the devices prescribed in this section Seal. for any purpose other than as author- The NASA Seal was established by ized by this subpart is prohibited. Executive Order 10849 (24 FR 9559), No- Their misuse shall be subject to the vember 27, 1959, as amended by Execu- penalties authorized by statute, as set tive Order 10942 (24 FR 4419), May 22, forth in § 1221.115 and shall be reported 1961. The NASA Seal, established by as provided in § 1221.116. the President, is the Seal of the Agen- (c) Any proposal for a new NASA In- cy and symbolizes the achievements signia, NASA Logotype, NASA Pro- and goals of NASA and the United gram Identifier, or for modification to States in aeronautical and space ac- those prescribed in this section shall be tivities. The NASA Seal shall be used processed in accordance with § 1221.114. as set forth in § 1221.109.

§ 1221.103 Establishment of the NASA and the NASA Administrator. It sym- Insignia. bolizes NASA’s role in aeronautics and The NASA Insignia was designed by space and is established by the NASA Administrator as the signature and de- the Army Institute of Heraldry and ap- sign element for visual communica- proved by the Commission of Fine Arts tions formerly reserved for the NASA

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Logotype. The NASA Insignia shall be related NASA directive or specification used as set forth in § 1221.110, the NASA approved by the NASA Administrator Graphics Standards Manual, NASA In- and published subsequent hereto. signia Standards Supplement, and any

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§ 1221.104 Establishment of the NASA NASA Administrator. It symbolizes Logotype. NASA’s role in aeronautics and space from 1975 to 1992 and has been retired. The NASA Logotype was approved by The NASA Logotype shall be used as the Commission of Fine Arts and the set forth in § 1221.111.

§ 1221.105 Establishment of NASA Pro- NASA Program Identifiers shall be gram Identifiers. used as set forth in § 1221.112 pursuant to approval as set forth in § 1221.114. A separate and unique identifier may be designed and approved in connection § 1221.106 Establishment of the NASA with or in commemoration of a major Flag. NASA program. Each approved identi- The NASA Flags for interior and ex- fier shall be officially identified by its terior use were created by the NASA title such as ‘‘Apollo,’’ ‘‘Skylab,’’ ‘‘Vi- Administrator in January 1960. Com- king,’’ ‘‘Space Shuttle,’’ ‘‘Space Sta- plete design, size, and color of the tion,’’ or a major NASA anniversary. NASA interior and exterior flags for

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manufacturing purposes are detailed in Flags shall be used as set forth in U.S. Army QMG Drawing 5–1–269, revi- § 1221.113. sion September 14, 1960. The NASA

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§ 1221.107 Establishment of the NASA NASA Insignia Standards Supplement Administrator’s, Deputy Adminis- which are the official guides for the use trator’s, and Associate Deputy Ad- and application of the NASA Insignia ministrator’s Flags. and the NASA Unified Visual Commu- (a) Concurrently with the establish- nications System. ment of the NASA Flag in January (c) The Associate Administrator for 1960, the NASA Administrator also es- Public Affairs, NASA Headquarters, tablished NASA Flags to represent the has designated a NASA Graphics Coor- NASA Administrator, Deputy Adminis- dinator to implement and monitor trator, and Associate Deputy Adminis- Agencywide design improvements in trator. Each of these flags conforms to consonance with the NASA Graphics the basic design of the NASA Flag ex- Standards Manual, the NASA Insignia cept for the following: Standards Supplement, and the NASA (1) The size of the flag is 3 feet × 4 Unified Visual Communications Sys- feet; tem. The NASA Graphics Coordinator (2) The Administrator’s Flag has four stars; will develop and issue changes and ad- (3) The Deputy Administrator’s Flag ditions to the manual as required and has three stars; and as new design standards and specifica- (4) The Associate Deputy Administra- tions are developed and approved. Cop- tor’s Flag has two stars. ies of the NASA Graphics Standards (b) Flags representing these senior Manual and the NASA Insignia Stand- officials shall be used as set forth in ards Supplement may be obtained di- § 1221.113. rectly from the NASA Graphics Coordi- nator, Office of Public Affairs, NASA § 1221.108 Establishment of the NASA Headquarters. Unified Visual Communications (d) The Director of each Field Instal- System. lation has designated an official to (a) The NASA Administrator directed serve as Graphics Coordinator for his/ the establishment of a NASA Unified her Installation. The Director, HQ Op- Visual Communications System. The erations Division, has designated an of- system was developed under the Fed- ficial to serve as the Headquarters eral Design Improvement Program ini- Graphics Coordinator. Any changes in tiated by the President in May 1972. these assignments shall be reported to This system is the Agencywide pro- the NASA Graphics Coordinator, NASA gram by which NASA projects a con- temporary, business-like, progressive, Headquarters, Code POS. and forward-looking image through the (e) Graphics Coordinators are respon- use of effective design for improved sible for ensuring compliance with the communications. The system provides NASA Graphics Standards Manual, the a professional and cohesive NASA iden- NASA Insignia Standards Supplement, tity by imparting continuity of graph- and the NASA Unified Visual Commu- ics design in all layout, reproduction nications System for their respective art, stationery, forms, publications, Installations. signs, films, video productions, vehicles, aircraft, and spacecraft markings § 1221.109 Use of the NASA Seal. and other items. It creates a unified (a) The Associate Deputy Adminis- image which is representative and sym- trator shall be responsible for custody bolic of NASA’s progressive attitudes of the NASA Impression Seal and cus- and programs. tody of NASA replica (plaques) seals. (b) The Associate Administrator for The NASA Seal is restricted to the fol- Public Affairs is responsible for the de- lowing: velopment and implementation of the (1) NASA award certificates and med- NASA Unified Visual Communications System. With the development of the als. NASA Unified Visual Communications (2) NASA awards for career service. System, the Office of Public Affairs at (3) Security credentials and employee NASA Headquarters created the NASA identification cards. Graphics Standards Manual and the

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(4) NASA Administrator’s docu- stations, and on any required con- ments; the Seal may be used on docu- tractor-owned vehicles used exclu- ments such as interagency or intergov- sively in the performance of these du- ernmental agreements and special re- ties, when authorized by NASA con- ports to the President and Congress, tracting officers. and on other documents, at the discre- (5) Spacecraft, aircraft, automobiles, tion of the NASA Administrator. trucks and similar vehicles owned by, (5) Plaques; the design of the NASA leased to, or contractor-furnished to Seal may be incorporated in plaques NASA, or produced for NASA by con- for display in Agency auditoriums, tractors, but excluding NASA-owned presentation rooms, lobbies, offices of vehicles used and operated by contrac- senior officials, and on the fronts of tors for the conduct of contractor busi- buildings occupied by NASA. A sepa- ness. rate NASA seal in the form of a 15- (6) Equipment and facilities owned inch, round, bronze-colored plaque on a by, leased to, or contractor-furnished walnut-colored wood base is also avail- to NASA, such as machinery, major able, but prohibited for use in the tools, ground handling equipment, of- above representational manner. It is fice and shop furnishings (if appro- restricted to use only as a presentation priate), and similar items of a perma- item by the Administrator and the nent nature, including those produced Deputy Administrator. for NASA by contractors. (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 (2) Limited usage on automobiles. If such use to be appropriate. determined appropriate by the cognizant Installation official, it is ac- § 1221.110 Use of the NASA Insignia. 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- (3) Personal items used in connection cordings produced by or for NASA. with NASA employees’ recreation asso- (3) Wearing apparel and personal ciation activities. property items used by NASA employ- (4) Items for sale through NASA em- ees in the performance of their duties. ployees’ nonappropriated fund activi- (4) Required uniforms of contractor ties subject to paragraph (c) of this sec- employees when performing public af- tion. fairs, guard or fire protection duties, (5) NASA employees shall not use the and similar duties within NASA Instal- NASA Insignia in any manner that lations or at other assigned NASA duty would imply that NASA endorses a

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commercial product, service, or activ- Public Affairs may specifically ap- ity or that material of a nonofficial na- prove. ture represents NASA’s official posi- (b) Specific approval is given for the tion. following uses: (c) Miscellaneous articles. (1) The man- (1) Use of exact reproductions of a ufacture and commercial sale of the badge in the form of a patch made of NASA Insignia as a separate and dis- cloth or other material, or a decal, or tinct device in the form of an emblem, a gummed sticker on articles of wear- patch, insignia, badge, decal, vinylcal, ing apparel and personal property cloth, metal, or other material which items; and would preclude NASA’s control over its (2) Use of exact renderings of a badge use or application is prohibited. on a coin, medal, plaque, or other com- (2) Use of the NASA Uniform Patch- memorative souvenirs. es, which incorporate the NASA Insig- (c) The manufacture and sale or free nia, is authorized only as prescribed in distribution of identifiers for the uses the NASA Graphics Standards Manual approved or that may be approved and the NASA Insignia Standards Sup- under paragraphs (a) and (b) of this sec- plement, for NASA personnel and tion are authorized. NASA contractor personnel identifica- (d) Portrayal of an exact reproduction. tion of a badge in conjunction with the (3) No approval for use of the NASA advertising of any product or service Insignia will be authorized when its use will be approved on a case-by-case can be construed as an endorsement by basis by the Associate Administrator NASA of a product or service. for Public Affairs. (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 only after the NASA Insignia applica- (a) The NASA Flag is authorized for tion has been submitted to, and ap- use only as follows: proved by, the Associate Administrator (1) On or in front of NASA buildings. (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.

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§ 1221.114 Approval of new or change of unauthorized NASA Insignias) or of proposals. questionable usages of the NASA Seal, (a) Except for NASA Astronaut Mis- the NASA Insignia, the NASA Logo- sion Crew Badges/Patches, any pro- type, NASA Program Identifiers, or the posal to change or modify the emblem- NASA Flags, shall be submitted to the atic devices set forth in this subpart or Inspector General, NASA Head- to introduce a new emblematic device quarters, in accordance with NASA other than as prescribed in this subpart Management Instruction 9810.1, ‘‘The requires the written approval of the NASA Investigations Program.’’ NASA Administrator with prior approval and recommendation of the Di- Subpart 1221.2—The Congres- rector, Public Services Division. sional Space Medal of (b) In addition to the written ap- Honor proval of the NASA Administrator, any proposal for a new or for a modification to the design of the NASA Insignia AUTHORITY: Pub. L. 91–76, September 29, 1969. may also be submitted to the Commis- sion of Fine Arts for its advice as to SOURCE: 43 FR 15624, Apr. 14, 1978, unless the merit of the design. If approved in otherwise noted. writing by the NASA Administrator § 1221.200 Scope. and advice received from the Commis- 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 (b) NASA Insignia, NASA Logotype, award a suitable bar or other device. and NASA Program Identifiers. Any per- (c) The Medal may be awarded to any son who uses the NASA Insignia, NASA person who is or has been designated to Logotype, or NASA Program Identifier travel in space and who has distin- in a manner other than as authorized guished himself or herself while under- in this subpart shall be subject to the taking duties in preparation for, execu- provisions of title 18 U.S.C. 701. tion of, or subsequent to, but in connection with, a space flight. § 1221.116 Compliance and enforce- (d) The Medal may be awarded for ac- ment. tions occurring before the effective In order to ensure adherence to the date of this subpart 1221.2, and, when authorized uses of the NASA Seal, the appropriate, posthumously. NASA Insignia, the NASA Logotype, NASA Program Identifiers, and the § 1221.202 Description of the medal. NASA Flags as provided, in this sub- The description of the Congressional part, a report of each suspected viola- Space Medal of Honor, which was de- tion of this subpart (including the use signed by the Institute of Heraldry,

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U.S. Army, is set forth in appendix A APPENDIX A TO PART 1221— to this subpart. Each person awarded CONGRESSIONAL SPACE MEDAL OF HONOR the Medal also shall receive a citation describing the basis for the award. OBVERSE DESCRIPTION § 1221.203 Nominations. A circular green enamel wreath of laurel (a) Formal nominations for award of surmounted by a five-pointed gold star (with the Congressional Space Medal of vertical point downward) and issuing from Honor on behalf of NASA will be made between each point a gold flame, the star by the Administrator to the President. surmounted by a light blue enamel cloud (b) Any person may recommend to bank with five lobes edged in gold bearing a the Administrator that an astronaut be five-pointed dark blue enamel star nominated for award of the Medal. fimbriated gold and charged in center with a diamond; standing upon the wreath at top Such a recommendation must be in center a gold eagle with wings displayed. writing, and must describe in concise detail the events believed to warrant SYMBOLISM award of the Medal. The recommenda- The laurel wreath, a symbol of great tion should, if appropriate, be accom- achievement, with the overlapping star panied by supporting documentation, points, simulates space vehicles moving to such as eyewitness statements, ex- greater accomplishments through space. The tracts from official records, sketches, flames signify the dynamic energy of the photographs, etc. rocket era and the imagination of the men in the space program of the United States. The (c) All recommendations for nomina- stylized glory cloud alludes to the glory in tions submitted to the Administrator the coat of arms of the United States and to or made on his own initiative will be the high esteem of the award. The dark blue referred to the NASA Incentive Awards voided star symbolizes the vast mysteries of Board for the purpose of investigating outer space while the brilliancy of the feat is and making findings of fact and giving represented by a diamond. The eagle with advice to the Administrator. wings raised in the spirit of peace represents (d) Any recommendation involving man’s first landing on another planet. an astronaut who is a member of the REVERSE armed services on active duty or who is employed by another agency of the DESCRIPTION Federal Government but temporarily The reverse bears in center the inscription assigned or detailed to NASA shall also ‘‘CONGRESSIONAL’’ arranged in a semi- be transmitted to the Secretary of De- circle above the inscription ‘‘SPACE MEDAL fense or the head of the employing PRESENTED TO’’; in base is space for the name of the recipient and the date all within agency, as appropriate, for his or her an outer circle of fifty stars. recommendation. (e) The Administrator will forward to SUSPENSION RIBBON the President his recommendation, and DESCRIPTION that of the astronaut’s employing agency, as appropriate. A ribbon 13⁄8 inches in width consisting of the following vertical stripes: gold 1⁄16 inch, § 1221.204 Proceedings of the NASA In- dark blue 1⁄4 inch, light blue 9⁄32 inch, white centive Awards Board. 1⁄16 inch, red 1⁄16 inch, white 1⁄16 inch, light blue 9⁄32 inch, dark blue 1⁄4 inch, gold 1⁄16 inch. The NASA Incentive Awards Board shall thoroughly consider the facts giv- CABLE NOS. OF COLORS ing rise to a recommendation for nomi- Gold ...... 65021 (old gold). nation and shall prepare a report for Dark Blue ...... 70076 (independence blue). the Administrator. The Board should, Blue ...... 65014 (light blue). to the extent practicable, coordinate Red ...... 65006 (scarlet). its efforts with those of the astronaut’s White ...... 65005. employing agency, as appropriate. Its SYMBOLISM final report must take into account any pertinent information submitted The scarlet center line on the white band by the employing agency. symbolizes the courage of the astronauts in the nation’s manned space program and the fire power of rockets that carry the crew through the earth’s atmosphere (light blue);

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the light blue is the same color as the chief 1230.120 Evaluation and disposition of appli- of the shield of the coat of arms of the cations and proposals for research to be United States which appears on the Presi- conducted or supported by a Federal de- dent’s flag. The dark blue symbolizes the partment or agency. hostile environment of space, the gold edge 1230.121 [Reserved] representing success and accomplishment. 1230.122 Use of Federal funds. Red, white and blue are also the national 1230.123 Early termination of research sup- colors of the United States. port: Evaluation of applications and proposals. MINIATURE 1230.124 Conditions.

DESCRIPTION AUTHORITY: 5 U.S.C. 301;42 U.S.C. 300v–1(b). A one-half size replica of the medal and SOURCE: 82 FR 7270, Jan. 19, 2017, unless 5 suspension ribbon approximately 2 ⁄16 inches otherwise noted. in overall length.

LAPEL EMBLEM § 1230.101 To what does this policy apply? DESCRIPTION (a) Except as detailed in § 1230.104, A miniature of the obverse of the medal, this policy applies to all research in- 9⁄16 inch in diameter, all gold with a diamond volving human subjects conducted, in center. supported, or otherwise subject to reg- ROSETTE ulation by any Federal department or agency that takes appropriate adminis- DESCRIPTION trative action to make the policy ap- One-half inch in diameter in the colors of plicable to such research. This includes the ribbon. research conducted by Federal civilian employees or military personnel, ex- PART 1230—PROTECTION OF cept that each department or agency HUMAN SUBJECTS head may adopt such procedural modifications as may be appropriate from Sec. an administrative standpoint. It also 1230.101 To what does this policy apply? includes research conducted, sup- 1230.102 Definitions for purposes of this pol- ported, or otherwise subject to regula- icy. tion by the Federal Government out- 1230.103 Assuring compliance with this pol- side the United States. Institutions icy—research conducted or supported by that are engaged in research described any Federal department or agency. in this paragraph and institutional re- 1230.104 Exempt research. view boards (IRBs) reviewing research 1230.105 [Reserved] that is subject to this policy must com- 1230.106 [Reserved] 1230.107 IRB membership. ply with this policy. 1230.108 IRB functions and operations. (b) [Reserved] 1230.109 IRB review of research. (c) Department or agency heads re- 1230.110 Expedited review procedures for tain final judgment as to whether a certain kinds of research involving no particular activity is covered by this more than minimal risk, and for minor policy and this judgment shall be exer- changes in approved research. cised consistent with the ethical prin- 1230.111 Criteria for IRB approval of re- ciples of the Belmont Report.62 search. 1230.112 Review by institution. (d) Department or agency heads may 1230.113 Suspension or termination of IRB require that specific research activities approval of research. or classes of research activities con- 1230.114 Cooperative research. ducted, supported, or otherwise subject 1230.115 IRB records. to regulation by the Federal depart- 1230.116 General requirements for informed ment or agency but not otherwise cov- consent. ered by this policy comply with some 1230.117 Documentation of informed consent. 1230.118 Applications and proposals lacking 62 The National Commission for the Protec- definite plans for involvement of human tion of Human Subjects of Biomedical and subjects. Behavioral Research.– Belmont Report. 1230.119 Research undertaken without the Washington, DC: U.S. Department of Health intention of involving human subjects. and Human Services. 1979.

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or all of the requirements of this pol- Human Services (HHS), or any suc- icy. cessor office, or to the equivalent office (e) Compliance with this policy re- within the appropriate Federal depart- quires compliance with pertinent fed- ment or agency, and shall also publish eral laws or regulations that provide them in the FEDERAL REGISTER or in additional protections for human sub- such other manner as provided in de- jects. partment or agency procedures. The (f) This policy does not affect any waiver notice must include a state- state or local laws or regulations (in- ment that identifies the conditions cluding tribal law passed by the official under which the waiver will be applied governing body of an American Indian and a justification as to why the waiv- or Alaska Native tribe) that may other is appropriate for the research, in- erwise be applicable and that provide cluding how the decision is consistent additional protections for human sub- with the principles of the Belmont Re- jects. port. (g) This policy does not affect any (j) Federal guidance on the require- foreign laws or regulations that may ments of this policy shall be issued otherwise be applicable and that pro- only after consultation, for the purpose vide additional protections to human of harmonization (to the extent appro- subjects of research. priate), with other Federal depart- (h) When research covered by this ments and agencies that have adopted policy takes place in foreign countries, this policy, unless such consultation is procedures normally followed in the not feasible. foreign countries to protect human (k) [Reserved] subjects may differ from those set forth in this policy. In these cir- (l) Compliance dates and transition cumstances, if a department or agency provisions: head determines that the procedures (1) Pre-2018 Requirements. For pur- prescribed by the institution afford poses of this section, the pre-2018 Re- protections that are at least equivalent quirements means this subpart as pub- to those provided in this policy, the de- lished in the 2016 edition of the Code of partment or agency head may approve Federal Regulations. the substitution of the foreign proce- (2) 2018 Requirements. For purposes of dures in lieu of the procedural require- this section, the 2018 Requirements ments provided in this policy. Except means the Federal Policy for the Pro- when otherwise required by statute, tection of Human Subjects require- Executive Order, or the department or ments contained in this part. The gen- agency head, notices of these actions eral compliance date for the 2018 Re- as they occur will be published in the quirements is January 21, 2019. The FEDERAL REGISTER or will be otherwise compliance date for § 1230.114(b) (coop- published as provided in department or erative research) of the 2018 Require- agency procedures. ments is January 20, 2020. (i) Unless otherwise required by law, (3) Research subject to pre-2018 require- department or agency heads may waive ments. The pre-2018 Requirements shall the applicability of some or all of the apply to the following research, unless provisions of this policy to specific re- the research is transitioning to comply search activities or classes of research with the 2018 Requirements in accord- activities otherwise covered by this ance with paragraph (l)(4) of this sec- policy, provided the alternative proce- tion: dures to be followed are consistent (i) Research initially approved by an with the principles of the Belmont Re- IRB under the pre-2018 Requirements port.63 Except when otherwise required before January 21, 2019; by statute or Executive Order, the de- (ii) Research for which IRB review partment or agency head shall forward was waived pursuant to § 1230.101(i) of advance notices of these actions to the the pre-2018 Requirements before Janu- Office for Human Research Protec- ary 21, 2019; and tions, Department of Health and (iii) Research for which a determination was made that the research was 63 Id. exempt under § 1230.101(b) of the pre-

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2018 Requirements before January 21, any person or circumstance, shall be 2019. construed so as to continue to give (4) Transitioning research. If, on or maximum effect to the provision per- after July 19, 2018, an institution plan- mitted by law, unless such holding ning or engaged in research otherwise shall be one of utter invalidity or unen- covered by paragraph (l)(3) of this sec- forceability, in which event the provi- tion determines that such research in- sion shall be severable from this part stead will transition to comply with and shall not affect the remainder the 2018 Requirements, the institution thereof or the application of the provi- or an IRB must document and date sion to other persons not similarly sit- such determination. uated or to other dissimilar cir- (i) If the determination to transition cumstances. is documented between July 19, 2018, [82 FR 7270, Jan. 19, 2017, as amended at 83 and January 20, 2019, the research FR 2891, Jan. 22, 2018; 83 FR 28511, June 19, shall: 2018] (A) Beginning on the date of such documentation through January 20, § 1230.102 Definitions for purposes of 2019, comply with the pre-2018 Require- this policy. ments, except that the research shall (a) Certification means the official no- comply with the following: tification by the institution to the sup- (1) Section 1230.102(l) of the 2018 Re- porting Federal department or agency quirements (definition of research) (in- component, in accordance with the re- stead of § 1230.102(d) of the pre-2018 Re- quirements of this policy, that a requirements); search project or activity involving (2) Section 1230.103(d) of the 2018 Re- human subjects has been reviewed and quirements (revised certification re- approved by an IRB in accordance with quirement that eliminates IRB review an approved assurance. of application or proposal) (instead of (b) Clinical trial means a research § 1230.103(f) of the pre-2018 Require- study in which one or more human sub- ments); and jects are prospectively assigned to one (3) Section 1230.109(f)(1)(i) and (iii) of or more interventions (which may in- the 2018 Requirements (exceptions to clude placebo or other control) to mandated continuing review) (instead evaluate the effects of the interven- of § 1230.103(b), as related to the re- tions on biomedical or behavioral quirement for continuing review, and health-related outcomes. in addition to § 1230.109, of the pre-2018 (c) Department or agency head means Requirements); and the head of any Federal department or (B) Beginning on January 21, 2019, agency, for example, the Secretary of comply with the 2018 Requirements. HHS, and any other officer or employee (ii) If the determination to transition of any Federal department or agency is documented on or after January 21, to whom the authority provided by 2019, the research shall, beginning on these regulations to the department or the date of such documentation, com- agency head has been delegated. ply with the 2018 Requirements. (d) Federal department or agency refers (5) Research subject to 2018 Require- to a federal department or agency (the ments. The 2018 Requirements shall department or agency itself rather apply to the following research: than its bureaus, offices or divisions) (i) Research initially approved by an that takes appropriate administrative IRB on or after January 21, 2019; action to make this policy applicable (ii) Research for which IRB review is to the research involving human sub- waived pursuant to paragraph (i) of jects it conducts, supports, or other- this section on or after January 21, wise regulates (e.g., the U.S. Depart- 2019; and ment of Health and Human Services, (iii) Research for which a determina- the U.S. Department of Defense, or the tion is made that the research is ex- Central Intelligence Agency). empt on or after January 21, 2019. (e)(1) Human subject means a living (m) Severability: Any provision of individual about whom an investigator this part held to be invalid or unen- (whether professional or student) con- forceable by its terms, or as applied to ducting research:

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

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life or during the performance of rou- public health (including natural or tine physical or psychological exami- man-made disasters). nations or tests. (3) Collection and analysis of infor- (k) Public health authority means an mation, biospecimens, or records by or agency or authority of the United for a criminal justice agency for activi- States, a state, a territory, a political ties authorized by law or court order subdivision of a state or territory, an solely for criminal justice or criminal Indian tribe, or a foreign government, investigative purposes. or a person or entity acting under a (4) Authorized operational activities grant of authority from or contract (as determined by each agency) in sup- with such public agency, including the port of intelligence, homeland secu- employees or agents of such public rity, defense, or other national secu- agency or its contractors or persons or rity missions. entities to whom it has granted au- (m) Written, or in writing, for purposes thority, that is responsible for public of this part, refers to writing on a tan- health matters as part of its official gible medium (e.g., paper) or in an elec- mandate. tronic format. (l) Research means a systematic investigation, including research devel- § 1230.103 Assuring compliance with opment, testing, and evaluation, de- this policy—research conducted or signed to develop or contribute to gen- supported by any Federal depart- eralizable knowledge. Activities that ment or agency. meet this definition constitute re- (a) Each institution engaged in research for purposes of this policy, search that is covered by this policy, whether or not they are conducted or with the exception of research eligible supported under a program that is con- for exemption under § 1230.104, and that sidered research for other purposes. is conducted or supported by a Federal For example, some demonstration and department or agency, shall provide service programs may include research written assurance satisfactory to the activities. For purposes of this part, department or agency head that it will the following activities are deemed not comply with the requirements of this to be research: policy. In lieu of requiring submission (1) Scholarly and journalistic activi- of an assurance, individual department ties (e.g., oral history, journalism, bi- or agency heads shall accept the exist- ography, literary criticism, legal re- ence of a current assurance, appro- search, and historical scholarship), in- priate for the research in question, on cluding the collection and use of infor- file with the Office for Human Re- mation, that focus directly on the spe- search Protections, HHS, or any suc- cific individuals about whom the infor- cessor office, and approved for Federal- mation is collected. wide use by that office. When the exist- (2) Public health surveillance activi- ence of an HHS-approved assurance is ties, including the collection and test- accepted in lieu of requiring submis- ing of information or biospecimens, sion of an assurance, reports (except conducted, supported, requested, or- certification) required by this policy to dered, required, or authorized by a pub- be made to department and agency lic health authority. Such activities heads shall also be made to the Office are limited to those necessary to allow for Human Research Protections, HHS, a public health authority to identify, or any successor office. Federal depart- monitor, assess, or investigate poten- ments and agencies will conduct or tial public health signals, onsets of dis- support research covered by this policy ease outbreaks, or conditions of public only if the institution has provided an health importance (including trends, assurance that it will comply with the signals, risk factors, patterns in dis- requirements of this policy, as provided eases, or increases in injuries from in this section, and only if the institu- using consumer products). Such activi- tion has certified to the department or ties include those associated with pro- agency head that the research has been viding timely situational awareness reviewed and approved by an IRB (if and priority setting during the course such certification is required by of an event or crisis that threatens § 1230.103(d)).

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(b) The assurance shall be executed volvement of human subjects will be in by an individual authorized to act for one or more of the categories in para- the institution and to assume on behalf graph (d) of this section are exempt of the institution the obligations im- from the requirements of this policy, posed by this policy and shall be filed except that such activities must com- in such form and manner as the depart- ply with the requirements of this sec- ment or agency head prescribes. tion and as specified in each category. (c) The department or agency head (b) Use of the exemption categories may limit the period during which any for research subject to the require- assurance shall remain effective or ments of subparts B, C, and D: Applica- otherwise condition or restrict the as- tion of the exemption categories to re- surance. search subject to the requirements of (d) Certification is required when the 45 CFR part 46, subparts B, C, and D, is research is supported by a Federal de- as follows: partment or agency and not otherwise (1) Subpart B. Each of the exemptions waived under § 1230.101(i) or exempted at this section may be applied to re- under § 1230.104. For such research, in- search subject to subpart B if the con- stitutions shall certify that each pro- ditions of the exemption are met. posed research study covered by the as- (2) Subpart C. The exemptions at this surance and this section has been re- section do not apply to research sub- viewed and approved by the IRB. Such ject to subpart C, except for research certification must be submitted as pre- aimed at involving a broader subject scribed by the Federal department or population that only incidentally in- agency component supporting the re- cludes prisoners. search. Under no condition shall re- (3) Subpart D. The exemptions at search covered by this section be initi- paragraphs (d)(1), (4), (5), (6), (7), and (8) ated prior to receipt of the certifi- of this section may be applied to re- cation that the research has been research subject to subpart D if the con- viewed and approved by the IRB. ditions of the exemption are met. Para- (e) For nonexempt research involving graphs (d)(2)(i) and (ii) of this section human subjects covered by this policy only may apply to research subject to (or exempt research for which limited subpart D involving educational tests IRB review takes place pursuant to or the observation of public behavior § 1230.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) when the investigator(s) do not partici- or (8)) that takes place at an institu- pate in the activities being observed. tion in which IRB oversight is con- Paragraph (d)(2)(iii) of this section ducted by an IRB that is not operated may not be applied to research subject by the institution, the institution and to subpart D. the organization operating the IRB (c) [Reserved] shall document the institution’s reli- (d) Except as described in paragraph ance on the IRB for oversight of the re- (a) of this section, the following cat- search and the responsibilities that egories of human subjects research are each entity will undertake to ensure exempt from this policy: compliance with the requirements of (1) Research, conducted in estab- this policy (e.g., in a written agreement lished or commonly accepted edu- between the institution and the IRB, cational settings, that specifically in- by implementation of an institution- volves normal educational practices wide policy directive providing the al- that are not likely to adversely impact location of responsibilities between the students’ opportunity to learn required institution and an IRB that is not af- educational content or the assessment filiated with the institution, or as set of educators who provide instruction. forth in a research protocol). This includes most research on regular (Approved by the Office of Management and and special education instructional Budget under Control Number 0990–0260) strategies, and research on the effectiveness of or the comparison among § 1230.104 Exempt research. instructional techniques, curricula, or (a) Unless otherwise required by law classroom management methods. or by department or agency heads, re- (2) Research that only includes inter- search activities in which the only in- actions involving educational tests

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(cognitive, diagnostic, aptitude, limited IRB review to make the deter- achievement), survey procedures, mination required by § 1230.111(a)(7). interview procedures, or observation of (ii) For the purpose of this provision, public behavior (including visual or au- benign behavioral interventions are ditory recording) if at least one of the brief in duration, harmless, painless, following criteria is met: not physically invasive, not likely to (i) The information obtained is re- have a significant adverse lasting im- corded by the investigator in such a pact on the subjects, and the investi- manner that the identity of the human gator has no reason to think the sub- subjects cannot readily be ascertained, jects will find the interventions offen- directly or through identifiers linked sive or embarrassing. Provided all such to the subjects; criteria are met, examples of such be- (ii) Any disclosure of the human sub- nign behavioral interventions would in- jects’ responses outside the research clude having the subjects play an on- would not reasonably place the sub- line game, having them solve puzzles jects at risk of criminal or civil liabil- under various noise conditions, or hav- ity or be damaging to the subjects’ fi- ing them decide how to allocate a nancial standing, employability, edu- nominal amount of received cash be- cational advancement, or reputation; tween themselves and someone else. or (iii) If the research involves deceiv- ing the subjects regarding the nature (iii) The information obtained is re- or purposes of the research, this ex- corded by the investigator in such a emption is not applicable unless the manner that the identity of the human subject authorizes the deception subjects can readily be ascertained, di- through a prospective agreement to rectly or through identifiers linked to participate in research in cir- the subjects, and an IRB conducts a cumstances in which the subject is in- limited IRB review to make the deter- formed that he or she will be unaware mination required by § 1230.111(a)(7). of or misled regarding the nature or (3)(i) Research involving benign be- purposes of the research. havioral interventions in conjunction (4) Secondary research for which con- with the collection of information from sent is not required: Secondary re- an adult subject through verbal or search uses of identifiable private in- written responses (including data formation or identifiable biospecimens, entry) or audiovisual recording if the if at least one of the following criteria subject prospectively agrees to the is met: intervention and information collec- (i) The identifiable private information and at least one of the following tion or identifiable biospecimens are criteria is met: publicly available; (A) The information obtained is re- (ii) Information, which may include corded by the investigator in such a information about biospecimens, is re- manner that the identity of the human corded by the investigator in such a subjects cannot readily be ascertained, manner that the identity of the human directly or through identifiers linked subjects cannot readily be ascertained to the subjects; directly or through identifiers linked (B) Any disclosure of the human sub- to the subjects, the investigator does jects’ responses outside the research not contact the subjects, and the inves- would not reasonably place the sub- tigator will not re-identify subjects; jects at risk of criminal or civil liabil- (iii) The research involves only infor- ity or be damaging to the subjects’ fi- mation collection and analysis involv- nancial standing, employability, edu- ing the investigator’s use of identifi- cational advancement, or reputation; able health information when that use or is regulated under 45 CFR parts 160 and (C) The information obtained is re- 164, subparts A and E, for the purposes corded by the investigator in such a of ‘‘health care operations’’ or ‘‘re- manner that the identity of the human search’’ as those terms are defined at subjects can readily be ascertained, di- 45 CFR 164.501 or for ‘‘public health ac- rectly or through identifiers linked to tivities and purposes’’ as described the subjects, and an IRB conducts a under 45 CFR 164.512(b); or

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(iv) The research is conducted by, or must be published on this list prior to on behalf of, a Federal department or commencing the research involving agency using government-generated or human subjects. government-collected information ob- (ii) [Reserved] tained for nonresearch activities, if the (6) Taste and food quality evaluation research generates identifiable private and consumer acceptance studies: information that is or will be main- (i) If wholesome foods without addi- tained on information technology that tives are consumed, or is subject to and in compliance with (ii) If a food is consumed that con- section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if all of the tains a food ingredient at or below the identifiable private information col- level and for a use found to be safe, or lected, used, or generated as part of the agricultural chemical or environ- activity will be maintained in systems mental contaminant at or below the of records subject to the Privacy Act of level found to be safe, by the Food and 1974, 5 U.S.C. 552a, and, if applicable, Drug Administration or approved by the information used in the research the Environmental Protection Agency was collected subject to the Paperwork or the Food Safety and Inspection Reduction Act of 1995, 44 U.S.C. 3501 et Service of the U.S. Department of Agri- seq. culture. (5) Research and demonstration (7) Storage or maintenance for sec- projects that are conducted or sup- ondary research for which broad con- ported by a Federal department or sent is required: Storage or mainte- agency, or otherwise subject to the ap- nance of identifiable private informa- proval of department or agency heads tion or identifiable biospecimens for (or the approval of the heads of bureaus potential secondary research use if an or other subordinate agencies that IRB conducts a limited IRB review and have been delegated authority to con- makes the determinations required by duct the research and demonstration § 1230.111(a)(8). projects), and that are designed to (8) Secondary research for which study, evaluate, improve, or otherwise broad consent is required: Research in- examine public benefit or service programs, including procedures for obtain- volving the use of identifiable private ing benefits or services under those information or identifiable biospeci- programs, possible changes in or alter- mens for secondary research use, if the natives to those programs or proce- following criteria are met: dures, or possible changes in methods (i) Broad consent for the storage, or levels of payment for benefits or maintenance, and secondary research services under those programs. Such use of the identifiable private informa- projects include, but are not limited to, tion or identifiable biospecimens was internal studies by Federal employees, obtained in accordance with and studies under contracts or con- § 1230.116(a)(1) through (4), (a)(6), and sulting arrangements, cooperative (d); agreements, or grants. Exempt projects (ii) Documentation of informed con- also include waivers of otherwise man- sent or waiver of documentation of datory requirements using authorities consent was obtained in accordance such as sections 1115 and 1115A of the with § 1230.117; Social Security Act, as amended. (iii) An IRB conducts a limited IRB (i) Each Federal department or agen- review and makes the determination cy conducting or supporting the re- required by § 1230.111(a)(7) and makes search and demonstration projects the determination that the research to must establish, on a publicly accessible Federal Web site or in such other man- be conducted is within the scope of the ner as the department or agency head broad consent referenced in paragraph may determine, a list of the research (d)(8)(i) of this section; and (iv) The in- and demonstration projects that the vestigator does not include returning Federal department or agency conducts individual research results to subjects or supports under this provision. The as part of the study plan. This provi- research or demonstration project sion does not prevent an investigator

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from abiding by any legal requirements (e) An IRB may, in its discretion, in- to return individual research results. vite individuals with competence in (Approved by the Office of Management and special areas to assist in the review of Budget under Control Number 0990–0260) issues that require expertise beyond or in addition to that available on the §§ 1230.105–1230.106 [Reserved] IRB. These individuals may not vote with the IRB. § 1230.107 IRB membership. (a) Each IRB shall have at least five § 1230.108 IRB functions and oper- members, with varying backgrounds to ations. promote complete and adequate review (a) In order to fulfill the require- of research activities commonly con- ments of this policy each IRB shall: ducted by the institution. The IRB (1) Have access to meeting space and shall be sufficiently qualified through sufficient staff to support the IRB’s re- the experience and expertise of its view and recordkeeping duties; members (professional competence), (2) Prepare and maintain a current and the diversity of its members, in- list of the IRB members identified by cluding race, gender, and cultural name; earned degrees; representative backgrounds and sensitivity to such capacity; indications of experience issues as community attitudes, to pro- such as board certifications or licenses mote respect for its advice and counsel sufficient to describe each member’s in safeguarding the rights and welfare chief anticipated contributions to IRB of human subjects. The IRB shall be deliberations; and any employment or able to ascertain the acceptability of other relationship between each mem- proposed research in terms of institu- ber and the institution, for example, tional commitments (including policies full-time employee, part-time em- and resources) and regulations, appli- ployee, member of governing panel or cable law, and standards of professional board, stockholder, paid or unpaid con- conduct and practice. The IRB shall sultant; therefore include persons knowledgeable in these areas. If an IRB regularly (3) Establish and follow written pro- reviews research that involves a cat- cedures for: egory of subjects that is vulnerable to (i) Conducting its initial and con- coercion or undue influence, such as tinuing review of research and for re- children, prisoners, individuals with porting its findings and actions to the impaired decision-making capacity, or investigator and the institution; economically or educationally dis- (ii) Determining which projects re- advantaged persons, consideration quire review more often than annually shall be given to the inclusion of one or and which projects need verification more individuals who are knowledge- from sources other than the investiga- able about and experienced in working tors that no material changes have oc- with these categories of subjects. curred since previous IRB review; and (b) Each IRB shall include at least (iii) Ensuring prompt reporting to one member whose primary concerns the IRB of proposed changes in a re- are in scientific areas and at least one search activity, and for ensuring that member whose primary concerns are in investigators will conduct the research nonscientific areas. activity in accordance with the terms (c) Each IRB shall include at least of the IRB approval until any proposed one member who is not otherwise affili- changes have been reviewed and ap- ated with the institution and who is proved by the IRB, except when nec- not part of the immediate family of a essary to eliminate apparent imme- person who is affiliated with the insti- diate hazards to the subject. tution. (4) Establish and follow written pro- (d) No IRB may have a member par- cedures for ensuring prompt reporting ticipate in the IRB’s initial or con- to the IRB; appropriate institutional tinuing review of any project in which officials; the department or agency the member has a conflicting interest, head; and the Office for Human Re- except to provide information research Protections, HHS, or any suc- quested by the IRB. cessor office, or the equivalent office

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within the appropriate Federal depart- tion a statement of the reasons for its ment or agency of decision and give the investigator an (i) Any unanticipated problems in- opportunity to respond in person or in volving risks to subjects or others or writing. any serious or continuing noncompli- (e) An IRB shall conduct continuing ance with this policy or the require- review of research requiring review by ments or determinations of the IRB; the convened IRB at intervals appro- and priate to the degree of risk, not less (ii) Any suspension or termination of than once per year, except as described IRB approval. in § 1230.109(f). (b) Except when an expedited review (f)(1) Unless an IRB determines oth- procedure is used (as described in erwise, continuing review of research is § 1230.110), an IRB must review proposed research at convened meetings at not required in the following cir- which a majority of the members of the cumstances: IRB are present, including at least one (i) Research eligible for expedited re- member whose primary concerns are in view in accordance with § 1230.110; nonscientific areas. In order for the re- (ii) Research reviewed by the IRB in search to be approved, it shall receive accordance with the limited IRB re- the approval of a majority of those view described in § 1230.104(d)(2)(iii), members present at the meeting. (d)(3)(i)(C), or (d)(7) or (8); (Approved by the Office of Management and (iii) Research that has progressed to Budget under Control Number 0990–0260) the point that it involves only one or both of the following, which are part of § 1230.109 IRB review of research. the IRB-approved study: (a) An IRB shall review and have au- (A) Data analysis, including analysis thority to approve, require modifica- of identifiable private information or tions in (to secure approval), or dis- identifiable biospecimens, or approve all research activities covered (B) Accessing follow-up clinical data by this policy, including exempt re- from procedures that subjects would search activities under § 1230.104 for undergo as part of clinical care. which limited IRB review is a condi- (2) [Reserved.] tion of exemption (under (g) An IRB shall have authority to § 1230.104(d)(2)(iii), (d)(3)(i)(C), and observe or have a third party observe (d)(7), and (8)). the consent process and the research. (b) An IRB shall require that information given to subjects (or legally au- (Approved by the Office of Management and thorized representatives, when appro- Budget under Control Number 0990–0260) priate) as part of informed consent is in accordance with § 1230.116. The IRB § 1230.110 Expedited review proce- may require that information, in addi- dures for certain kinds of research involving no more than minimal tion to that specifically mentioned in risk, and for minor changes in ap- § 1230.116, be given to the subjects when proved research. in the IRB’s judgment the information would meaningfully add to the protec- (a) The Secretary of HHS has estab- tion of the rights and welfare of sub- lished, and published as a Notice in the jects. FEDERAL REGISTER, a list of categories (c) An IRB shall require documenta- of research that may be reviewed by tion of informed consent or may waive the IRB through an expedited review documentation in accordance with procedure. The Secretary will evaluate § 1230.117. the list at least every 8 years and (d) An IRB shall notify investigators amend it, as appropriate, after con- and the institution in writing of its de- sultation with other federal depart- cision to approve or disapprove the pro- ments and agencies and after publica- posed research activity, or of modification in the FEDERAL REGISTER for pub- tions required to secure IRB approval lic comment. A copy of the list is of the research activity. If the IRB de- available from the Office for Human cides to disapprove a research activity, Research Protections, HHS, or any suc- it shall include in its written notifica- cessor office.

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(b)(1) An IRB may use the expedited and benefits, the IRB should consider review procedure to review the fol- only those risks and benefits that may lowing: result from the research (as distin- (i) Some or all of the research ap- guished from risks and benefits of pearing on the list described in para- therapies subjects would receive even if graph (a) of this section, unless the re- not participating in the research). The viewer determines that the study in- IRB should not consider possible long- volves more than minimal risk; range effects of applying knowledge (ii) Minor changes in previously ap- gained in the research (e.g., the pos- proved research during the period for sible effects of the research on public which approval is authorized; or policy) as among those research risks (iii) Research for which limited IRB that fall within the purview of its re- review is a condition of exemption sponsibility. under § 1230.104(d)(2)(iii), (d)(3)(i)(C), (3) Selection of subjects is equitable. and (d)(7) and (8). In making this assessment the IRB (2) Under an expedited review proce- should take into account the purposes dure, the review may be carried out by of the research and the setting in the IRB chairperson or by one or more which the research will be conducted. experienced reviewers designated by The IRB should be particularly cog- the chairperson from among members nizant of the special problems of re- of the IRB. In reviewing the research, search that involves a category of sub- the reviewers may exercise all of the jects who are vulnerable to coercion or authorities of the IRB except that the undue influence, such as children, pris- reviewers may not disapprove the re- oners, individuals with impaired deci- search. A research activity may be dis- sion-making capacity, or economically approved only after review in accord- or educationally disadvantaged per- ance with the nonexpedited procedure sons. set forth in § 1230.108(b). (4) Informed consent will be sought (c) Each IRB that uses an expedited from each prospective subject or the review procedure shall adopt a method subject’s legally authorized representa- for keeping all members advised of re- tive, in accordance with, and to the ex- search proposals that have been ap- tent required by, § 1230.116. proved under the procedure. (5) Informed consent will be appro- (d) The department or agency head priately documented or appropriately may restrict, suspend, terminate, or waived in accordance with § 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 ensure 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- (i) The Secretary of HHS will, after ments are satisfied: consultation with the Office of Man- (1) Risks to subjects are minimized: agement and Budget’s privacy office (i) By using procedures that are con- and other Federal departments and sistent with sound research design and agencies that have adopted this policy, that do not unnecessarily expose sub- issue guidance to assist IRBs in assess- jects to risk, and ing what provisions are adequate to (ii) Whenever appropriate, by using protect the privacy of subjects and to procedures already being performed on maintain the confidentiality of data. the subjects for diagnostic or treat- (ii) [Reserved] ment purposes. (8) For purposes of conducting the (2) Risks to subjects are reasonable limited IRB review required by in relation to anticipated benefits, if § 1230.104(d)(7)), the IRB need not make any, to subjects, and the importance of the determinations at paragraphs (a)(1) the knowledge that may reasonably be through (7) of this section, and shall expected to result. In evaluating risks make the following determinations:

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(i) Broad consent for storage, mainte- projects, each institution is responsible nance, and secondary research use of for safeguarding the rights and welfare identifiable private information or of human subjects and for complying identifiable biospecimens is obtained in with this policy. accordance with the requirements of (b)(1) Any institution located in the § 1230.116(a)(1)–(4), (a)(6), and (d); United States that is engaged in coop- (ii) Broad consent is appropriately erative research must rely upon ap- documented or waiver of documenta- proval by a single IRB for that portion tion is appropriate, in accordance with of the research that is conducted in the § 1230.117; and United States. The reviewing IRB will (iii) If there is a change made for re- be identified by the Federal depart- search purposes in the way the identifi- ment or agency supporting or con- able private information or identifiable ducting the research or proposed by the biospecimens are stored or maintained, lead institution subject to the accept- there are adequate provisions to pro- ance of the Federal department or tect the privacy of subjects and to agency supporting the research. maintain the confidentiality of data. (2) The following research is not sub- (b) When some or all of the subjects ject to this provision: are likely to be vulnerable to coercion (i) Cooperative research for which or undue influence, such as children, more than single IRB review is re- prisoners, individuals with impaired quired by law (including tribal law decision-making capacity, or economi- passed by the official governing body of cally or educationally disadvantaged an American Indian or Alaska Native persons, additional safeguards have tribe); or been included in the study to protect (ii) Research for which any Federal the rights and welfare of these sub- department or agency supporting or jects. conducting the research determines and documents that the use of a single § 1230.112 Review by Institution IRB is not appropriate for the par- Research covered by this policy that ticular context. has been approved by an IRB may be (c) For research not subject to para- subject to further appropriate review graph (b) of this section, an institution and approval or disapproval by officials participating in a cooperative project of the institution. However, those offi- may enter into a joint review arrange- cials may not approve the research if it ment, rely on the review of another has not been approved by an IRB. IRB, or make similar arrangements for avoiding duplication of effort. § 1230.113 Suspension or Termination of IRB Approval of Research. § 1230.115 IRB Records. An IRB shall have authority to sus- (a) An institution, or when appro- pend or terminate approval of research priate an IRB, shall prepare and main- that is not being conducted in accord- tain adequate documentation of IRB ance with the IRB’s requirements or activities, including the following: that has been associated with unex- (1) Copies of all research proposals re- pected serious harm to subjects. Any viewed, scientific evaluations, if any, suspension or termination of approval that accompany the proposals, ap- shall include a statement of the rea- proved sample consent forms, progress sons for the IRB’s action and shall be reports submitted by investigators, and reported promptly to the investigator, reports of injuries to subjects. appropriate institutional officials, and (2) Minutes of IRB meetings, which the department or agency head. shall be in sufficient detail to show at- (Approved by the Office of Management and tendance at the meetings; actions Budget under Control Number 0990–0260) taken by the IRB; the vote on these actions including the number of members § 1230.114 Cooperative Research. voting for, against, and abstaining; the (a) Cooperative research projects are basis for requiring changes in or dis- those projects covered by this policy approving research; and a written sum- that involve more than one institution. mary of the discussion of controverted In the conduct of cooperative research issues and their resolution.

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(3) Records of continuing review ac- biospecimens. Waiver or alteration of tivities, including the rationale for consent in research involving public conducting continuing review of re- benefit and service programs conducted search that otherwise would not re- by or subject to the approval of state quire continuing review as described in or local officials is described in para- § 1230.109(f)(1). graph (e) of this section. General waiv- (4) Copies of all correspondence be- er or alteration of informed consent is tween the IRB and the investigators. described in paragraph (f) of this sec- (5) A list of IRB members in the same tion. Except as provided elsewhere in detail as described in § 1230.108(a)(2). this policy: (6) Written procedures for the IRB in (1) Before involving a human subject the same detail as described in in research covered by this policy, an § 1230.108(a)(3) and (4). investigator shall obtain the legally ef- (7) Statements of significant new fective informed consent of the subject findings provided to subjects, as re- or the subject’s legally authorized rep- quired by § 1230.116(c)(5). resentative. (8) The rationale for an expedited re- (2) An investigator shall seek in- viewer’s determination under § 1230.110(b)(1)(i) that research appear- formed consent only under cir- ing on the expedited review list de- cumstances that provide the prospec- scribed in § 1230.110(a) is more than tive subject or the legally authorized minimal risk. representative sufficient opportunity (9) Documentation specifying the re- to discuss and consider whether or not sponsibilities that an institution and to participate and that minimize the an organization operating an IRB each possibility of coercion or undue influ- will undertake to ensure compliance ence. with the requirements of this policy, as (3) The information that is given to described in § 1230.103(e). the subject or the legally authorized (b) The records required by this pol- representative shall be in language un- icy shall be retained for at least 3 derstandable to the subject or the le- years, and records relating to research gally authorized representative. that is conducted shall be retained for (4) The prospective subject or the le- at least 3 years after completion of the gally authorized representative must research. The institution or IRB may be provided with the information that maintain the records in printed form, a reasonable person would want to or electronically. All records shall be have in order to make an informed de- accessible for inspection and copying cision about whether to participate, by authorized representatives of the and an opportunity to discuss that in- Federal department or agency at rea- formation. sonable times and in a reasonable man- (5) Except for broad consent obtained ner. in accordance with paragraph (d) of (Approved by the Office of Management and this section: Budget under Control Number 0990–0260) (i) Informed consent must begin with a concise and focused presentation of § 1230.116 General Requirements for the key information that is most likely Informed Consent. to assist a prospective subject or le- (a) General. General requirements for gally authorized representative in un- informed consent, whether written or derstanding the reasons why one might oral, are set forth in this paragraph or might not want to participate in the and apply to consent obtained in ac- research. This part of the informed cordance with the requirements set consent must be organized and pre- forth in paragraphs (b) through (d) of sented in a way that facilitates com- this section. Broad consent may be ob- prehension. tained in lieu of informed consent ob- (ii) Informed consent as a whole must tained in accordance with paragraphs present information in sufficient detail (b) and (c) of this section only with re- relating to the research, and must be spect to the storage, maintenance, and organized and presented in a way that secondary research uses of identifiable does not merely provide lists of iso- private information and identifiable lated facts, but rather facilitates the

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

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

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

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component conducting the trial on a § 1230.116. The investigator shall give publicly available Federal Web site either the subject or the subject’s le- that will be established as a repository gally authorized representative ade- for such informed consent forms. quate opportunity to read the informed (2) If the Federal department or agen- consent form before it is signed; alter- cy supporting or conducting the clin- natively, this form may be read to the ical trial determines that certain infor- subject or the subject’s legally author- mation should not be made publicly ized representative. available on a Federal Web site (e.g. (2) A short form written informed confidential commercial information), consent form stating that the elements such Federal department or agency of informed consent required by may permit or require redactions to § 1230.116 have been presented orally to the information posted. the subject or the subject’s legally au- (3) The informed consent form must thorized representative, and that the be posted on the Federal Web site after key information required by the clinical trial is closed to recruit- § 1230.116(a)(5)(i) was presented first to ment, and no later than 60 days after the subject, before other information, the last study visit by any subject, as if any, was provided. The IRB shall ap- required by the protocol. prove a written summary of what is to (i) Preemption. The informed consent be said to the subject or the legally au- requirements in this policy are not in- thorized representative. When this tended to preempt any applicable Fed- method is used, there shall be a witness eral, state, or local laws (including to the oral presentation. Only the tribal laws passed by the official gov- short form itself is to be signed by the erning body of an American Indian or subject or the subject’s legally author- Alaska Native tribe) that require addi- ized representative. However, the wit- tional information to be disclosed in ness shall sign both the short form and order for informed consent to be le- a copy of the summary, and the person gally effective. actually obtaining consent shall sign a (j) Emergency medical care. Nothing in copy of the summary. A copy of the this policy is intended to limit the au- summary shall be given to the subject thority of a physician to provide emer- or the subject’s legally authorized rep- gency medical care, to the extent the resentative, in addition to a copy of physician is permitted to do so under the short form. applicable Federal, state, or local law (c)(1) An IRB may waive the require- (including tribal law passed by the offi- ment for the investigator to obtain a cial governing body of an American In- signed informed consent form for some dian or Alaska Native tribe). or all subjects if it finds any of the fol- (Approved by the Office of Management and lowing: Budget under Control Number 0990–0260) (i) That the only record linking the subject and the research would be the § 1230.117 Documentation of informed informed consent form and the prin- consent. cipal risk would be potential harm re- (a) Except as provided in paragraph sulting from a breach of confiden- (c) of this section, informed consent tiality. Each subject (or legally author- shall be documented by the use of a ized representative) will be asked written informed consent form ap- whether the subject wants documenta- proved by the IRB and signed (includ- tion linking the subject with the re- ing in an electronic format) by the sub- search, and the subject’s wishes will ject or the subject’s legally authorized govern; representative. A written copy shall be (ii) That the research presents no given to the person signing the in- more than minimal risk of harm to formed consent form. subjects and involves no procedures for (b) Except as provided in paragraph which written consent is normally re- (c) of this section, the informed con- quired outside of the research context; sent form may be either of the fol- or lowing: (iii) If the subjects or legally author- (1) A written informed consent form ized representatives are members of a that meets the requirements of distinct cultural group or community

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in which signing forms is not the norm, mitted by the institution to the Fed- that the research presents no more eral department or agency component than minimal risk of harm to subjects supporting the research, and final ap- and provided there is an appropriate al- proval given to the proposed change by ternative mechanism for documenting the Federal department or agency com- that informed consent was obtained. ponent. (2) In cases in which the documentation requirement is waived, the IRB § 1230.120 Evaluation and disposition may require the investigator to provide of applications and proposals for research to be conducted or sup- subjects or legally authorized rep- ported by a Federal department or resentatives with a written statement agency. regarding the research. (a) The department or agency head (Approved by the Office of Management and will evaluate all applications and pro- Budget under Control Number 0990–0260) posals involving human subjects submitted to the Federal department or § 1230.118 Applications and proposals agency through such officers and em- lacking definite plans for involvement of human subjects. ployees of the Federal department or agency and such experts and consult- Certain types of applications for ants as the department or agency head grants, cooperative agreements, or con- determines to be appropriate. This tracts are submitted to Federal depart- evaluation will take into consideration ments or agencies with the knowledge the risks to the subjects, the adequacy that subjects may be involved within of protection against these risks, the the period of support, but definite potential benefits of the research to plans would not normally be set forth the subjects and others, and the impor- in the application or proposal. These tance of the knowledge gained or to be include activities such as institutional gained. type grants when selection of specific (b) On the basis of this evaluation, projects is the institution’s responsi- the department or agency head may bility; research training grants in approve or disapprove the application which the activities involving subjects or proposal, or enter into negotiations remain to be selected; and projects in to develop an approvable one. which human subjects’ involvement will depend upon completion of instru- § 1230.121 [Reserved] ments, prior animal studies, or purifi- cation of compounds. Except for re- § 1230.122 Use of Federal funds. search waived under § 1230.101(i) or ex- Federal funds administered by a Fed- empted under § 1230.104, no human sub- eral department or agency may not be jects may be involved in any project expended for research involving human supported by these awards until the subjects unless the requirements of project has been reviewed and approved this policy have been satisfied. by the IRB, as provided in this policy, and certification submitted, by the in- § 1230.123 Early termination of restitution, to the Federal department or search support: Evaluation of appli- agency component supporting the re- cations and proposals. search. (a) The department or agency head may require that Federal department § 1230.119 Research undertaken with- or agency support for any project be out the intention of involving terminated or suspended in the manner human subjects. prescribed in applicable program re- Except for research waived under quirements, when the department or § 1230.101(i) or exempted under § 1230.104, agency head finds an institution has in the event research is undertaken materially failed to comply with the without the intention of involving terms of this policy. human subjects, but it is later pro- (b) In making decisions about sup- posed to involve human subjects in the porting or approving applications or research, the research shall first be re- proposals covered by this policy the de- viewed and approved by an IRB, as pro- partment or agency head may take vided in this policy, a certification sub- into account, in addition to all other

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eligibility requirements and program under a contract, grant, cooperative criteria, factors such as whether the agreement, memorandum of under- applicant has been subject to a termi- standing, or joint endeavor agreement nation or suspension under paragraph entered into by NASA and another (a) of this section and whether the ap- Government agency, private entity, plicant or the person or persons who non-Federal public entity, or foreign would direct or has/have directed the entity which are included within the scientific and technical aspects of an scope of this part. activity has/have, in the judgment of the department or agency head, mate- § 1232.102 Policy. rially failed to discharge responsibility It is the National Aeronautics and for the protection of the rights and Space Administration’s (NASA) policy welfare of human subjects (whether or to comply with the Animal Welfare Act not the research was subject to federal of 1966 (Pub. L. 89–544) which requires regulation). that minimum standards of care and treatment be provided for certain ani- § 1230.124 Conditions. mals bred for use in research. To imple- With respect to any research project ment the provisions of this Act, NASA or any class of research projects the de- promulgated the following internal partment or agency head of either the policies and requirements: conducting or the supporting Federal (a) NASA Policy Directive (NPD) department or agency may impose ad- 8910.1, Care and Use of Animals, de- ditional conditions prior to or at the scribes the policy and responsibilities time of approval when in the judgment for conducting activities involving of the department or agency head addi- vertebrate animals. NPD 8910.1 is actional conditions are necessary for the cessible at http://nodis3.gsfc.nasa.gov/; protection of human subjects. and (b) NASA Procedural Requirements PART 1232—CARE AND USE OF (NPR) 8910.1, Care and Use of Animals, ANIMALS IN THE CONDUCT OF delineates the responsibilities and implements requirements for the Agen- NASA ACTIVITIES cy’s use of animals in research, testing, teaching, and hardware development Sec. activities. NPR 8910.1 is accessible is 1232.100 Scope. 1232.101 Applicability. access at http://nodis3.gsfc.nasa.gov/. 1232.102 Policy.

AUTHORITY: 51 U.S.C. 20102, 51 U.S.C. 20113; PART 1240—INVENTIONS AND Pub. L. 89–544, as amended; 7 U.S.C. 2131; 39 CONTRIBUTIONS U.S.C. 3001; and Pub. L. 99–158, Sec. 495. Subpart 1—Awards for Scientific and SOURCE: 78 FR 76059, Dec. 16, 2014, unless otherwise noted. Technical Contributions Sec. § 1232.100 Scope. 1240.100 Purpose. This part establishes general policy 1240.101 Scope. for the care and use of vertebrate ani- 1240.102 Definitions mals in the conduct of NASA activi- 1240.103 Criteria. ties. 1240.104 Applications for awards. 1240.105 Special initial awards—NASA and § 1232.101 Applicability. NASA contractor employees. 1240.106 Review and evaluation of contribu- This part applies to NASA Head- tion. quarters and NASA Centers, including 1240.107 Notification by the Board. Component Facilities, and Technical 1240.108 Reconsideration. and Service Support Centers and will 1240.109 Hearing procedure. be followed in all activities using ani- 1240.110 Recommendation to, and action by, the Administrator. mal subjects that are supported by 1240.111 Release. NASA and conducted in NASA facili- 1240.112 Presentation of awards. ties, aircraft, or spacecraft, or activi- 1240.113 Financial accounting. ties, using animal subject conducted 1240.114 Delegation of authority.

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AUTHORITY: Section 20136 of the National ernment Agency on NASA’s behalf, in- Aeronautics and Space Act (51 U.S.C. 20136), cluding any assignment, substitution and the Federal Technology Transfer Act of of parties, or subcontract executed or 1986, sec. 12, 15 U.S.C. 3710b(1). entered into thereunder. SOURCE: 67 FR 31120, May 9, 2002, unless (f) Contractor means the party who otherwise noted. has undertaken to perform work under a contract or subcontract. Subpart 1—Awards for Scientific (g) Innovation means a mathematical, and Technical Contributions engineering or scientific concept, idea, design, process, or product. § 1240.100 Purpose. (h) Innovator means any person listed This subpart prescribes procedures as a contributor, inventor, or author of for submitting applications for mone- an innovation. tary awards to the Administrator of (i) Invention includes any act, meth- NASA for scientific and technical con- od, process, machine, manufacture, de- tributions which have significant value sign, or composition of matter, or any in the conduct of aeronautical and new and useful improvement thereof, space activities pursuant to 51 U.S.C. or any variety of plant, which is or 20136, and establishes the awards pro- may be patentable under the patent gram consistent with the Federal Tech- laws of the United States or any for- nology Transfer Act of 1986, section 12, eign country. 15 U.S.C. 3710b(1). (j) Qualified User means any person that has legally acquired computer [77 FR 27366, May 10, 2012] software and has the right to use it for a legal purpose. § 1240.101 Scope. (k) Verified means passing rigorous This subpart applies to awards for testing to ascertain whether the any scientific or technical contribu- functionality claimed in the innovation, whether or not patentable, which tion’s documentation is realized. is determined by the Administrator after referral to the Inventions and [67 FR 31120, May 9, 2002, as amended at 77 FR 27366, May 10, 2012] Contributions Board to have significant value in the conduct of aero- § 1240.103 Criteria. nautical and space activities, upon sub- (a) Only those contributions to NASA mission of an application for award to which have been: NASA, or upon the Administrator’s (1) Used in a NASA program or adopt- own initiative, under 51 U.S.C. 20136. ed or sponsored or supported by NASA, [77 FR 27366, May 10, 2012] and (2) Found to have significant value in § 1240.102 Definitions. the conduct of aeronautical and space As used in this subpart: activities, will be recommended for (a) Administrator means the Adminis- award under this subpart. trator of the National Aeronautics and (b) In determining the amount, Space Administration. terms, and conditions of any award, (b) Board means the NASA Inven- the following criteria will be consid- tions and Contributions Board. ered: (c) Chairperson means the Chair- (1) The value of the contribution to person of the NASA Inventions and the United States; Contributions Board. (2) The aggregate amount of any (d) Commercial quality refers to com- sums which have been expended by the puter software that is not in an experi- applicant for the development of such mental or beta phase of development, contribution; that performs in accordance with its (3) The amount of any compensation specifications, and includes docu- (other than salary received for services mentation describing the software’s rendered as an officer or employee of form and function. the Government) previously received (e) Contract means any contract, by the applicant for or on account of agreement, understanding, or other ar- the use of such contributions by the rangement with NASA or another Gov- United States; and

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(4) Such other factors as the Admin- (7) Identification of any United istrator shall determine to be material. States and foreign patents applied for or issued relating to the contribution; § 1240.104 Applications for awards. and (a) Eligibility. Applications for award (8) An agreement to surrender all may be submitted by any person in- claims which such applicant may have cluding any individual, partnership, for the use of such contribution by the corporation, association, institution, Government. or other entity. An application for an (c) General. (1) Each contribution will award under this section is separate be made the subject of a separate appli- from application for an award under cation in order that each contribution § 1240.105 and may be submitted wheth- may be evaluated individually. er or not the contribution is also eligi- (2) Material constituting a possible ble for an award under § 1240.105. hazard to safety or requiring unusual (b) Information required. Applications storage facilities should not be sub- for award should be addressed to the mitted, and will not be accepted. Mod- Inventions and Contributions Board els or intricate exhibits demonstrating (herein referred to as the Board), Na- the contribution will not be accepted tional Aeronautics and Space Adminis- unless specifically requested by the tration, Washington, DC 20546–0001, and Board. In those few cases where such will contain: models or exhibits have been submitted (1) The name and address of the ap- pursuant to a request made by the plicant, the person’s relationship to Board, the same will be returned to the the contributor if the contribution is applicant upon written request from made by one other than the applicant, the applicant. and the names and addresses of any (3) It is the policy of the Board to use others having information as to the or disclose information contained in value or usage of the contribution; applications for awards for evaluation (2) A complete written description of purposes only. Applications for awards the contribution, in the English lan- submitted with restrictive legends or guage, using electronic media, accom- statements differing from this policy panied by drawings, sketches, dia- will be treated in accordance with the grams, or photographs illustrating the Board’s policy. nature of the contribution and the [67 FR 31120, May 9, 2002, as amended at 77 technical and scientific principles upon FR 27366, May 10, 2012] which it is based, any available test or performance data or observations of § 1240.105 Special initial awards— pertinent scientific phenomena, and NASA and NASA contractor employ- the aeronautics or space application of ees. the contribution; (a) Patent Application Awards. (1) (3) The date and manner of any pre- When the Board receives written no- vious submittal of the contribution to tice, in the manner prescribed by the any other United States Government Board, from the Agency Counsel for In- agency, and the name of such agency; tellectual Property or the Patent or In- (4) The aggregate amount of any tellectual Property Counsel at a NASA sums which have been expended by the Center that an invention made by an applicant for the development of the employee of NASA or a NASA con- contribution; tractor and reported to NASA in the (5) The nature and extent of any manner prescribed by the Board is eli- known use of the contribution by the gible for a patent application award, United States and by any agency of the the Board may recommend to the Ad- United States Government; ministrator or a designee that an (6) The amount of any compensation award be made, including a specific (other than salary received for services recommended amount and distribution rendered as an officer or employee of thereof for any multiple inventors, so the Government) previously received long as the following eligibility condi- by the applicant for or on account of tions have been met: the use of such contribution by the (i) A nonprovisional U.S. patent ap- United States; plication has been filed covering the

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invention and NASA has either an own- (3) Software release awards for modi- ership interest in the invention or an fications made to software for which irrevocable, royalty-free, license to the innovators have already received practice the invention, or have the in- an initial software release award will vention practiced for or on its behalf, be at the discretion of the Adminis- throughout the world, or the invention trator or his designee, upon rec- has been assigned by NASA to a con- ommendation by the Board. tractor under 35 U.S.C. 202(e); or (c) Tech Briefs Awards. When the (ii) A continuation-in-part or divi- Board receives written notice, in the sional patent has been issued based on manner and format prescribed by the a patent application that is eligible for procedures of the Board, that a NASA an award under paragraph (a)(1)(i) of Center has approved for publication a this section. NASA Tech Brief based on an innova- (2) No additional award will be given tion made by an employee of NASA or for a continuation patent application a NASA contractor and reported to where an award was authorized for the NASA in the manner and form pre- parent application and the parent ap- scribed by the procedures of the Board, plication will be or has been aban- the Board may recommend to the Ad- doned. In addition, awards will not be ministrator or designee that an award granted for provisional applications be made, including a specific amount under 35 U.S.C. 111(b) or reissue appli- and distribution thereof for any mul- cations under 35 U.S.C. 251. tiple innovators. (b) Software Release Awards. (1) When (d) When a Patent Application the Board receives written notice, in Award, a Software Release Award, and the manner prescribed by the proce- a Tech Brief Award have been author- dures of the Board, that a NASA Center ized for the same contribution, the has approved the initial (first) release awards will be cumulative. to a qualified user of a software package based on a software innovation [77 FR 27366, May 10, 2012] made by an employee of NASA or a § 1240.106 Review and evaluation of NASA contractor and reported to contribution. NASA in the manner prescribed by the procedures of the Board, the Board (a) A contribution will be initially re- may recommend to the Administrator viewed by the Board on the basis of the or designee that an award be made, in- material submitted by the applicant cluding a specific amount and distribu- under § 1240.104(b). tion thereof for any multiple (b) If it is determined that the con- innovators, so long as the following tribution has been used in a NASA pro- conditions have been met: gram, or adopted or sponsored or sup- (i) NASA has either an ownership in- ported by NASA, the contribution will terest in the software or an irrev- be evaluated for its significant value in ocable, royalty-free, license to repro- the conduct of aeronautical or space duce, prepare derivative works, dis- activity. tribute, perform and display the soft- (c) The Board will recommend an ware, throughout the world for govern- award for such contribution when, mental purposes; upon evaluation of its scientific and (ii) The software is of commercial technical merits, it is determined to quality as defined in § 1240.102; and warrant an award of at least $500. (iii) The software has been verified to perform the functions claimed in its § 1240.107 Notification by the Board. documentation on the platform for (a) With respect to each completed which it was designed without harm to application where the Board has rec- the systems or data contained within. ommended to the Administrator the (2) Software that is the subject of a granting of an award, and the Adminis- software release award is not eligible trator has approved such award, the to receive a Tech Brief award based Board will notify the applicant of the upon the publication of an announce- amount and terms of the award. In the ment of availability in ‘‘NASA Tech case of NASA employees or employees Briefs.’’ of NASA contractors, such notification

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will normally be made through the ap- (2) The applicant may be represented propriate NASA field installation rep- by an attorney or any other appro- resentative. priately designated person. (b) Except for applications from (3) Hearings will be open to the pub- NASA employees or employees of lic unless the applicant requests that a NASA contractors, where the Board closed hearing be held. does not propose to recommend to the (4) Hearings may be held before the Administrator the granting of an full membership of the Board or before award, a notification will be provided any panel of Board members designated which includes a brief statement of the by the Chairperson. reasons for such decision. (5) Hearings will be conducted in an informal manner with the objective of § 1240.108 Reconsideration. providing the applicant with a full op- (a) With respect to each completed portunity to present evidence and ar- application, in those cases where the guments in support of the application. Board does not recommend an award, Evidence may be presented through the applicant may, within such period means of such witnesses, exhibits, and as the Board may set but in no event visual aids as are arranged for by the less than 30 days from notification, re- applicant. While proceedings will be ex quest reconsideration of the Board’s parte, members of the Board and its decision. counsel may address questions to wit- (b) If reconsideration has been re- nesses called by the applicant, and the quested within the prescribed time, the Board may, at its option, utilize the as- applicant will, within 30 days from the sistance and testimony of technical ad- date of the request for reconsideration, visors or other experts. or within any other time as the Board (6) Subject to the provisions of may set, file its statement setting § 1240.104(c)(2), the applicant will sub- forth the issues, points, authorities, ar- mit a copy of any exhibit or visual aid guments, and any additional material utilized unless otherwise directed by on which it relies. the Board. The Board may, at its dis- (c) Upon filing of the reconsideration cretion, arrange for a written tran- statement by the applicant, the case script of the proceedings and a copy of will be assigned for reconsideration by such transcript will be made available the Board upon the contents of the ap- by the recorder for purchase by the application, the record, and the reconsid- plicant. eration statement submitted by the ap- (7) No funds are available to defray plicant. traveling expenses or any other cost in- (d) If after reconsideration, the Board curred by the applicant. again does not propose to recommend the granting of an award, the appli- § 1240.110 Recommendation to, and ac- cant, after such notification by the tion by, the Administrator. Board, may request an oral hearing (a) Upon a determination by the within the time set by the Board. Board that a contribution merits an (e) An oral hearing without reconsid- award, the Board will recommend to eration may be granted upon deter- the Administrator or a designee the mination of the Chairperson that good terms and conditions of the proposed cause exists to do so. award, including a specific amount and [67 FR 31120, May 9, 2002, as amended at 77 distribution thereof for any multiple FR 27367, May 10, 2012] contributors. The recommendation of the Board to the Administrator or des- § 1240.109 Hearing procedure. ignee will reflect the views of the ma- (a) An Oral hearing held by the Board jority of the Board members. Dis- will be in accordance with the fol- senting views may be transmitted with lowing procedures: the majority opinion. (1) If the applicant requests a hearing (b) The granting, denying or modi- within the time set in accordance with fication of any Board recommended § 1240.108(d) or (e), the Board will set a award under this subpart will be at the place and date for such hearing and no- sole discretion of the Administrator or tify the applicant. his designee, who will determine the

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final terms and conditions of each § 1240.114 Delegation of authority. award after consideration of the cri- (a) The Chairperson, Inventions and teria in § 1240.103. Contributions Board, is delegated au- (c) In addition, the Board may rec- thority to approve and execute grants ommend, and the Administrator or his of awards for significant scientific or designee may grant, non-monetary technical contributions not exceeding awards under other applicable laws and $2,000 per contributor, when in accord- regulations. ance with the recommendation of the Board and in conformity with applica- [67 FR 31120, May 9, 2002, as amended at 77 ble law and regulations. FR 27367, May 10, 2012] (b) The Chairperson, Inventions and § 1240.111 Release Contributions Board, is delegated authority to approve and execute grants Under subsection 20136(c) of the Na- of awards not exceeding $2,000 per tional Aeronautics and Space Act, no awardee, upon the notification that: award will be made to an applicant un- (1) A Patent Application Award has less the applicant submits a duly exe- been recommended by the Board pursu- cuted release, in a form specified by ant to § 1240.105(a); the Administrator, of all claims the ap- (2) A Software Release Award has plicant may have to receive any com- been recommended by the Board pursu- pensation (other than the award rec- ant to § 1240.105(b); or ommended) from the United States (3) A Tech Briefs Award has been rec- Government for use of the contribution ommended by the Board pursuant to or any element thereof at any time by § 1240.105(c). or on behalf of the United States, or by [77 FR 27367, May 10, 2012] or on behalf of any foreign government pursuant to any existing or future PART 1241 [RESERVED] treaty or agreement with the United States, within the United States, or at PART 1245—PATENTS AND OTHER any other place. INTELLECTUAL PROPERTY RIGHTS [77 FR 27367, May 10, 2012] Subpart 1—Patent Waiver Regulations § 1240.112 Presentation of awards. Sec. (a) Written acknowledgments to em- 1245.100 Scope. ployees of NASA receiving awards will 1245.101 Applicability. be provided by the appropriate Official- 1245.102 Definitions and terms. 1245.103 Policy. in-Charge at the Headquarters Office, 1245.104 Advance waivers. by the Director of the cognizant NASA 1245.105 Waiver after reporting inventions. Center, or by a designee. 1245.106 Waiver of foreign rights. (b) Written acknowledgments to em- 1245.107 Reservations. 1245.108 License to contractor. ployees of NASA contractors receiving 1245.109 Assignment of title to NASA. awards will be forwarded to contractor 1245.110 Content of petitions. officials for suitable presentation. 1245.111 Submission of petitions. (c) Monetary awards will be paid by 1245.112 Notice of proposed Board action and check or electronic funds transfer. reconsideration. 1245.113 Hearing procedure. [77 FR 27367, May 10, 2012] 1245.114 Findings and recommendations of the Board. § 1240.113 Financial accounting. 1245.115 Action by the Administrator. 1245.116 Miscellaneous provisions. NASA shall provide for appropriate 1245.117 March-in and waiver revocation database and accounting system(s) to procedures. ensure that award payments are re- 1245.118 Record of decisions. corded and disbursed in an orderly Subpart 2—Claims for Patent and fashion and in the proper amounts to Copyright Infringement proper awardees. 1245.200 Purpose. [77 FR 27367, May 10, 2012] 1245.201 Objectives.

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1245.202 Contents of communication initi- standing, or other arrangement with ating claim. the National Aeronautics and Space 1245.203 Incomplete notice of infringement. Administration (NASA) or another 1245.204 Indirect notice of infringement. Government agency on NASA’s behalf, 1245.205 Processing of administrative claims. including any assignment, substitution of parties, or subcontract executed or Subpart 3—NASA Foreign Patent Program entered into thereunder, and including NASA grants awarded under the au- 1245.300 Scope of subpart. thority of 42 U.S.C. 1891–1893. 1245.301 Inventions under NASA contracts. 1245.302 Inventions by NASA employees. (b) Contractor means the party who 1245.303 Criteria. has undertaken to perform work under 1245.304 Procedures. a contract or subcontract. (c) Invention means any, new and Subparts 4–5 [Reserved] useful process, machine, manufacture, or composition of matter, or any new Subpart 1—Patent Waiver and useful improvement thereof, or any Regulations variety of plant, which is or may be patentable under the Patent Laws of AUTHORITY: 51 U.S.C. 20135, 35 U.S.C. 200 et the United States of America or any seq. foreign country. (d) Class of inventions means inven- SOURCE: 52 FR 43748, Nov. 16, 1987, unless otherwise noted. tions directed to a particular process, machine, manufacture, or composition § 1245.100 Scope. of matter, or to a narrowly drawn, fo- This subpart prescribes regulations cused area of technology. for the waiver of rights of the Govern- (e) Made, when used in relation to ment of the United States to inven- any invention, means the conception or tions made under NASA contract in first actual reduction to practice of conformity with section 20135 of the such invention. National Aeronautics and Space Act (51 (f) Practical application means to U.S.C. Chapter 201). manufacture in the case of a composition or product, to practice in the case [80 FR 19197, Apr. 10, 2015] of a process or method, or to operate in § 1245.101 Applicability. the case of a machine or system; and, in each case, under such conditions as The provisions of the subpart apply to establish that the invention is being to all inventions made or which may be utilized and that its benefits are to the made under conditions enabling the extent permitted by law or Govern- Administrator to determine that the ment regulations available to the pub- rights therein reside in the Govern- lic on reasonable terms. ment of the United States under sec- (g) Board means the NASA Inven- tion 20135(b)(1) of the National Aero- tions and Contributions Board estab- nautics and Space Act, 51 U.S.C. lished by the Administrator of NASA 20135(b)(1). The provisions do not apply within the Administration under sec- to inventions made under any contract, tion 305(f) of the National Aeronautics grant, or cooperative agreement with a and Space Act of 1958, as amended (42 nonprofit organization or small busi- U.S.C. 2457(f)). ness firm that are afforded the disposi- (h) Chairperson means Chairperson of tion of rights as provided in 35 U.S.C. the NASA Inventions and Contribu- 200–204 (Pub. L. 96–517, 94 Stat. 3019, tions Board. 3020, 3022 and 3023; and Pub. L. 98–620, 98 Stat. 3364–3367). (i) Petitioner means a contractor or prospective contractor who requests [80 FR 19197, Apr. 10, 2015] that the Administrator waive rights in an invention or class of inventions § 1245.102 Definitions and terms. made or which may be made under a As used in this subpart: NASA contract. In the case of an iden- (a) Contract means any actual or pro- tified invention, the petitioner may be posed contract, agreement, under- the inventor(s).

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(j) Government agency includes any need to promote healthy competition executive department, independent in industry must be weighed. commission, board, office, agency, ad- (b) Several different situations arise ministration, authority, Government when waiver of all or any part of the corporation, or other Government es- rights of the United States with re- tablishment of the executive branch of spect to an invention or class of inven- the Government of the United States of tion may be requested and are pre- America. scribed in §§ 1245.104 through 1245.106. (k) Administrator means the Adminis- Under § 1245.104, advance waiver of any trator of the National Aeronautics and or all of the rights of the United States Space Administration or the Adminis- with respect to any invention or class trator’s duly authorized representa- of inventions which may be made under tive. a contract may be requested prior to the execution of the contract, or with- [52 FR 43748, Nov. 16, 1987, as amended at 80 in 30 days after execution of the con- FR 19198, Apr. 10, 2015] tract. Waiver of rights to an identified invention made and reported under a § 1245.103 Policy. contract are to be requested under (a) In implementing the provisions of § 1245.105, and may be requested under section 20135(g) of the National Aero- this provision even though a request nautics and Space Act (51 U.S.C. Chap- under § 1245.104 was not made, or if ter 201), and in determining when the made, was not granted. Waiver of for- interests of the United States would be eign rights under § 1245.106 may be reserved by waiver of all or any part of quested concurrently with domestic the rights of the United States in an rights under § 1245.104 or § 1245.105, or invention or class of inventions made may be made independently. in the performance of work under (c) With respect to inventions which NASA contracts, the Administrator may be or are made or conceived in the will be guided by the objectives set course of or under contracts for re- forth in the National Aeronautics and search, development or demonstration Space Act, by the basic policy of the work awarded by NASA on behalf of Presidential Memorandum and State- the Department of Energy (DOE) or in ment of Government Patent Policy to support of a DOE program, on a reim- the Heads of the Executive Depart- bursable basis pursuant to agreement ments and agencies dated February 18, between DOE and NASA, the waiver 1983, by the goals and objectives of its policy, regulations, and procedures of current Authorization Act, Strategic DOE will be applied. NASA will nor- Plan, and other pertinent National mally grant waiver of rights to inven- policies or laws, such as the National tions made under contracts awarded by Space Policy of the United States of NASA on behalf of, or in support of, America. Any such waiver may be programs funded by another Govern- made upon such terms and under such ment agency, unless the funding agen- conditions as the Administrator shall cy recommends and justifies denial of determine to be required for the pro- the waiver. See §§ 1245.110(c) and tection of the interests of the United 1245.111(b). States. Among the most important [52 FR 43748, Nov. 16, 1987, as amended at 80 goals are to provide incentives to fos- FR 19197, Apr. 10, 2015] ter inventiveness and encourage the reporting of inventions made under § 1245.104 Advance waivers. NASA contracts, to provide for the (a) The provisions of this section widest practicable dissemination of apply to petitions for waiver of domes- new technology resulting from NASA tic rights of the United States with re- programs, and to promote early utiliza- spect to any invention or class of in- tion, expeditious development, and ventions which may be made under a continued availability of this new tech- contract. nology for commercial purposes and (b) The NASA Inventions and Con- the public benefit. In applying this reg- tributions Board normally will rec- ulation, both the need for incentives to ommend grant of a request for advance draw forth private initiatives and the waiver of domestic rights submitted

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prior to execution of contract or within to address the particular situation, 30 days after execution of the contract consistent with the policy and goals of unless the Board finds that the inter- § 1245.103. In that event, the waiver ests of the United States will be better grant will be subject to additional res- served by restricting or denying all or ervations as provided for in § 1245.107(c). part of the requested rights in one or (2) To meet the National Aeronautics more of the following situations: and Space Act standard of ‘‘any inven- (1) When the contractor is not lo- tion or class of inventions,’’ for ad- cated in the United States or does not vance waivers, the petition shall iden- have a place of business in the United tify the invention(s) and/or class(es) of States or is subject to the control of a inventions that the Contractor believes foreign government; will be made under the contract and for (2) When a determination has been which waiver of rights is being re- made by Government authority which quested. Therefore, the petition must is authorized by statute or Executive be directed to a specific invention(s) or order to conduct foreign intelligence or to inventions directed to a particular counter-intelligence activities that the process, machine, manufacture, or restriction or denial of the requested composition of matter, or to a nar- rights to any inventions made in the rowly drawn, focused area(s) of tech- performance of work under the con- nology. tract is necessary to protect the secu- (3) An advance waiver, when granted, rity of such activities; or will apply only to inventions reported (3) Where the Board finds that excep- to NASA under the applicable terms of tional circumstances exist, such that the contract and a designation made restriction or denial of the requested within 6 months of the time of report- rights will better promote one or more ing (or a reasonable time thereafter of the following objectives: permitted for good cause shown) that (i) Promoting the utilization of in- the contractor elects title to the inven- ventions arising from federally sup- tion and intends to file or has filed a ported research and development; U.S. patent application. Such election (ii) Encouraging maximum participa- will be made by notification in writing tion of industry in federally-supported research and development; to the patent representative designated (iii) Ensuring that inventions are in the contract. Title to all other in- used in a manner to promote free com- ventions made under the contract are petition and enterprise; subject to section 20135(b)(1) of the Na- (iv) Promoting the commercializa- tional Aeronautics and Space Act, 51 tion and public availability of inven- U.S.C. 20135(b)(1). The granting of the tions made in the United States by advance waiver does not otherwise re- United States industry and labor; and lieve a contractor of any of the inven- (v) Ensuring that the Government re- tion identification or reporting retains sufficient rights in federally sup- quirements set forth in the applicable ported inventions to meet the needs of patent rights clause in the contract. the Government and protect the public (4) The advance waiver shall extend against nonuse or unreasonable use of to the invention claimed in any patent inventions. application filed on the reported inven- (c)(1) An advance waiver, when grant- tion, including any subsequent divi- ed, will be subject to the reservations sional or continuation application set forth in § 1245.107. Normally, the thereof, provided the claims of the sub- reservations of § 1245.107(a), License to sequent application do not substan- the Government, and § 1245.107(b), tially change the scope of the reported March-in rights, will apply. However, invention. should one or more of the situations (d) When a petition for waiver is sub- set forth in paragraphs (b)(1) through mitted under paragraph (b) of this sec- (b)(3), of this section exist, rather than tion, prior to contract execution, it denying the advance waiver request, will be processed expeditiously so that the Board may recommend granting to a decision on the petition may be the contractor only part of the re- reached prior to execution of the con- quested rights, to the extent necessary tract. However, if there is insufficient

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time or insufficient information is pre- country concurrently with the waiver sented, or for other reasons which do of domestic rights when so requested not permit a recommendation to be under § 1245.104 or § 1245.105. made without unduly delaying execu- (b) The Board will also consider a tion of the contract, the Board will in- separate request for foreign rights for form the contracting officer that no an individual identified invention in recommendation can be made prior to any designated country if a request contract execution and the reasons was not made pursuant to paragraph therefor. The contracting officer will (a) of this section, or for countries not then notify the petitioner of the designated pursuant to paragraph (a) of Board’s action. this section. (e) A waiver granted pursuant to a (c) The Board will normally rec- petition submitted under this section ommend the waiver of foreign rights be shall extend to any contract changes, granted under paragraph (a) or para- modifications, or supplemental agree- graph (b) of this section in any des- ments, so long as the purpose of the ignated country unless: contract or the scope of work to be per- (1) The Board finds that exceptional formed is not substantially changed. circumstances exist, such that restriction or denial of the requested foreign [52 FR 43748, Nov. 16, 1987, as amended at 80 FR 19198, Apr. 10, 2015] rights will better promote one or more of the objectives set forth in § 1245.105 Waiver after reporting in- § 1245.104(b)(3)(i) through (v); or ventions. (2) The Board finds that the economic (a) The provisions of this section interests of the United States will not apply to petitions for waiver of domes- be served thereby; or unless tic rights to identified inventions (3) In the case of an individual identi- which have been reported to NASA and fied invention under paragraph (b) of to which a waiver of rights has not this section, NASA has determined, been granted pursuant to § 1245.104. prior to the request, to file a patent ap- (b)(1) When an individual identified plication in the designated country. invention has been reported to NASA (d) If, subsequent to the granting of under the applicable terms of the con- the petition for foreign rights, the peti- tract and waiver of rights has not been tioner requests and designates addi- granted under § 1245.104, the Board nor- tional countries in which it wishes to mally will recommend grant of a re- secure patents, the Chairperson may quest for waiver of domestic rights to recommend such request, in whole or such invention if the request is re- in part, without further action by the ceived within 8 months of first disclo- Board. sure to NASA (or such longer period [52 FR 43748, Nov. 16, 1987, as amended at 80 that the Board may permit for good FR 19199, Apr. 10, 2015] cause shown), unless the Board finds that one or more of the situations set § 1245.107 Reservations. forth in § 1245.104(b)(3)(i) through (v) (a) License to the Government. Any in- exist. When granted, the waiver will be vention for which waiver of domestic subject to the reservations set forth in or foreign rights has been granted § 1245.107 in the same manner as dis- under this subpart shall be subject to cussed in § 1245.104(c)(1). the reservation by the Administrator (2) The waiver shall extend to the in- of an irrevocable, nonexclusive, non- vention claimed in the patent applica- transferable, royalty-free license for tion filed on the reported invention, in- the practice of the invention through- cluding any subsequent divisional or out the world by or on behalf of the continuation application thereof, pro- United States or any foreign govern- vided the claims of the subsequent ap- ment pursuant to any treaty or agree- plication do not substantially change ment with the United States. the scope of the reported invention. (b) March-in rights. For any invention for which waiver of rights has been § 1245.106 Waiver of foreign rights. granted under this subpart, NASA has (a) The Board will consider the waiv- the same right as set forth in 35 U.S.C. er of foreign rights in any designated 203 and 210, with the procedures set

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forth in § 1245.117 and 37 CFR 401.6, to quires title. The license extends to the require the contractor, an assignee, or contractor’s domestic subsidiaries and exclusive licensee of the invention to affiliates, if any, within the corporate grant a nonexclusive, partially exclu- structure of which the contractor is a sive, or exclusive license in any field of party and includes the right to grant use to a responsible applicant or appli- sublicenses of the same scope to the ex- cants, upon terms that are reasonable tent the contractor was legally obli- under the circumstances, and if the gated to do so at the time the contract contractor, assignee, or exclusive li- was awarded. The license and right is censee refuses such a request, NASA transferable only with the approval of has the right to grant such a license the Administrator except when trans- itself if NASA determines that: ferred to the successor of that part of (1) Such action is necessary because the contractor’s business to which the the contractor or assignee has not invention pertains. taken, or is not expected to take with- (b) The contractor’s domestic license in a reasonable time, effective steps to may be revoked or modified by the Ad- achieve practical application of the in- ministrator to the extent necessary to vention in such field of use; achieve expeditious practical applica- (2) Such action is necessary to allevi- tion of the invention pursuant to an ate health or safety needs which are application for an exclusive license not reasonably satisfied by the con- submitted in accordance with the Li- tractor, assignee, or their licensees; censing of Government-Owned Inven- (3) Such action is necessary to meet tions (37 CFR part 404). This license requirements for public use specified will not be revoked in that field of use by Federal regulations and such re- and/or the geographical areas in which quirements are not reasonably satisfied the contractor has achieved practical by the contractor, assignee, or licens- application and continues to make the ees; or benefits of the invention available to (4) Such action is necessary because the public on reasonable terms. The li- the agreement required by the ‘‘Pref- cense in any foreign country may be erence for United States industry’’ has revoked or modified at the discretion not been obtained or waived or because of the Administrator to the extent the a licensee of the exclusive right to use contractor, its licensees, or its domes- or sell any invention in the United tic subsidiaries or affiliates have failed States is in breach of such agreement. to achieve practical application in that (c) Additional reservations. In the foreign country. event one or more of the situations set (c) Before revocation or modification forth in § 1245.104 (b)(1) through (b)(3) of the license, the contractor will be exist, the Board may determine to rec- provided a written notice of the Ad- ommend partial grant of the waiver re- ministrator’s intention to revoke or quest (rather than denial) by making modify the license, and the contractor the grant subject to additional reserva- will be allowed 30 days (or any other tions (than those set forth in (a) and time as may be allowed by the Admin- (b) of this section) to the extent nec- istrator for good cause shown by the essary to address the particular situa- contractor) after the notice to show tion. Such additional reservations may cause why the license should not be re- include, but not be limited to, field-of- voked or modified. The contractor use or terrestrial-use limitations, or shall have the right to appeal, in ac- additions to the march-in rights. cordance with applicable regulations in 37 CFR part 404, any decision con- [52 FR 43748, Nov. 16, 1987, as amended at 80 FR 19199, Apr. 10, 2015] cerning the revocation or modification of its license. § 1245.108 License to contractor. [52 FR 43748, Nov. 16, 1987, as amended at 80 (a) Each contractor reporting an in- FR 19199, Apr. 10, 2015] vention is granted a revocable, nonexclusive, royalty-free license in each § 1245.109 Assignment of title to NASA. patent application filed in any country (a) The instrument of waiver set on the invention and in any resulting forth in § 1245.115(c) shall be voided by patent in which the Government ac- NASA with respect to the domestic

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title to any invention for which a pat- (3) A citation to the section ent application has not been filed with- (§ 1245.104, § 1245.105, or § 1245.106) under in 1 year (or a reasonable time there- which the petition is submitted, the after for good cause shown) from notifi- nature and extent of the rights re- cation to NASA of election of title, as quested, and a positive statement that required by § 1245.104(c)(2), for an ad- waiver of rights under the cited section vanced waiver pursuant to § 1245.104, or is being requested; within 1 year from the granting of a (4) If the petitioner is an employee waiver for an individual invention inventor of the contractor, a statement granted pursuant to § 1245.105. from the contractor that the con- (b) The instrument of waiver set tractor does not object to this petition. forth in § 1245.115(c) shall be voided by (5) Information identifying the pro- NASA with respect to title in any for- posed contract or resulting contract, if eign country for which waiver has been any; granted pursuant to § 1245.106, if a pat- (6) A designation of the country or ent application has not been filed in countries, the United States of Amer- that country (or in the European Pat- ica and/or foreign, in which waiver of ent Office or under the Patent Coopera- title is requested; tion Treaty and that country des- (7) A copy of the invention disclosure ignated) within either 10 months (or a if the request is for an individual iden- reasonable time thereafter for good tified invention (under § 1245.105); cause shown) from the date a cor- (8) The name, address, and telephone responding U.S. patent application has number of the party with whom the been filed or 6 months (or a reasonable Board is to communicate when the re- time thereafter for good cause shown) quest is acted upon; from the date a license is granted by (9) Whether the petitioner is an enti- the Commissioner of Patents and ty of or under the control of a foreign Trademarks to file foreign patent ap- government; plications where such filing has been (10) The signature of the petitioner or prohibited by a Secrecy Order. its authorized representative; and (c) In any country in which the waiv- (11) The date of the petition. er recipient decides not to continue (b) Advance waiver petitions shall prosecution of any application, to pay also identify the invention(s) and/or maintenance fees on, or defend in reex- class(es) of inventions that the Con- amination or opposition proceedings on tractor believes will be made under the a patent on a waived invention, the contract and for which waiver of rights waiver recipient shall notify the patent is being requested, in accordance with representative within sufficient time § 1245.104(c)(2). for NASA to continue prosecution, pay (c) No specific forms need be used. the maintenance fee or defend the reex- Requests for advanced waiver should, amination or opposition, and upon preferably, be included with the pro- written request, convey title to NASA posal, but in any event in advance of and execute all papers necessary for negotiations. NASA to proceed with the appropriate (d) Petitions for waiver under contracts action. funded by another agency. The content of the petitions for waiver of title to § 1245.110 Content of petitions. inventions made under contracts (a) Each request for waiver of domes- awarded by NASA on behalf of the De- tic or foreign rights under § 1245.104, partment of Energy under § 1245.103(c) § 1245.105, or § 1245.106 shall be by peti- shall follow the procedures and form tion to the Administrator and shall in- prescribed by and shall be acted on by clude: that agency. Petitions under contracts (1) An identification of the peti- awarded by NASA on behalf of other tioner, its place of business, and ad- agencies will be coordinated with the dress; agency before action is taken by the (2) If the petitioner is represented by Board. counsel, the name, address, and tele- [52 FR 43748, Nov. 16, 1987, as amended at 80 phone number of the counsel; FR 19199, Apr. 10, 2015]

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§ 1245.111 Submission of petitions. ments, and any additional material on (a) Petitions for advance waiver of which it relies. (3) Upon filing of the reconsideration domestic rights under § 1245.104 or for statement by the petitioner, the peti- advance waiver of foreign rights under tion will be assigned for reconsider- § 1245.106 presented prior to contract ation by the Board upon the contents execution, must be submitted to the of the petition, the record, and the re- contracting officer. Any petition sub- consideration statement submitted by mitted by a prospective contractor and the petitioner. selected for negotiation of a contract (4) The Board, after its reconsider- will be processed and forwarded to the ation, will promptly notify the peti- Board for consideration. All other petitioner of its proposed recommendation tions will be submitted to the patent to the Administrator. If the Board’s representative designated in the con- proposed action is adverse to, or dif- tract for processing prior to forwarding ferent from, the waiver requested, the to the Board. petitioner may request an oral hearing (b) A copy of any waiver petitions within the time as the Board has set. submitted under § 1245.103(c) should be forwarded to the appropriate NASA [52 FR 43748, Nov. 16, 1987, as amended at 80 field installation patent counsel, if not FR 19199, Apr. 10, 2015] 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 (1) When it proposes to recommend to full opportunity to present facts and the Administrator that the petition be: arguments in support of the petition. (i) Granted in an extent different Evidence may be presented through from that requested; or means of witnesses, exhibits, and vis- (ii) Denied. ual aids as are arranged for by the peti- (2) Of the reasons for the rec- tioner. Petitioner may be represented ommended action adverse to or dif- by any person including its attorney. ferent from the waiver of rights re- While proceedings will be ex parte, quested by the petitioner. members of the Board and its counsel (b) Request for reconsideration and may address questions to witnesses statements required. (1) If, under para- called by the petitioner, and the Board graph (a) of this section, the Board no- may, at its option, enlist the aid of tifies the petitioner that the Board technical advisors or expert witnesses. proposes to recommend action adverse Any person present at the hearing may to or different from the waiver re- make a statement for the record. quested, the petitioner may, within the (2) A transcript or equivalent record period as the Board may set, but not of the proceeding shall be arranged for less than 15 days from the notification, by the Board. The petitioner shall sub- request reconsideration by the Board. mit for the record a copy of any exhibit (2) If reconsideration has been re- or visual aid utilized during the hear- quested within the prescribed time, the ing. petitioner shall, within 30 days from the date of the request for reconsider- § 1245.114 Findings and recommenda- ation, or within any other time as the tions of the Board. Board may set, file its statement set- (a) Findings of the Board. The Board ting forth the points, authorities, argu- shall consider the petition, the NASA

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contract, if relevant, the goals cited in the petitioner in inventions, a peti- § 1245.103(a), the effect of the waiver on tioner may file United States patent the objectives of the related NASA pro- applications for such inventions prior grams, and any other available facts to the Administrator’s determination and information presented to the Board on a petition for waiver. If an applica- by an interested party. The Board shall tion on an identified invention is filed document its findings. during the pendency of the petition, or (b) Recommendation of the Board. (1) within 60 days prior to the receipt of a Except as provided in § 1245.104(d), after petition, NASA will reimburse the peti- making the findings of fact, the Board tioner for any reasonable costs of the shall formulate its proposed rec- filing and patent prosecution that may ommendation to the Administrator as have occurred, provided: to the grant of waiver as requested, the (1) Similar patent filing and prosecu- grant of waiver upon terms other than tion costs are not normally reimbursed as requested, or denial of waiver. to the petitioner as direct or indirect (2) If the Board proposes to rec- costs chargeable to the Government ommend, initially or upon reconsider- contracts; ation or after oral hearing, that the pe- (2) The petition is ultimately denied tition be granted in the extent re- with respect to domestic rights, or quested or, in other cases, where the with respect to foreign and domestic petitioner does not request reconsider- rights, if both are requested, and ation or a hearing during the period set (3) Prior to reimbursement, peti- for the action or informs the Board tioner assigns the application to the that the action will not be requested, 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 shall transmit the petition, a summary National Aeronautics and Space Ad- record of hearing proceedings, if appli- ministration. cable, its findings of fact, and its rec- (b) Statement of Government rights. ommendation to the Administrator. The waiver recipient shall include, within the specification of any United § 1245.115 Action by the Adminis- States patent application and any pat- trator. ent issuing thereon for a waived inven- (a) After receiving the transmittal tion, the following statement: from the Board, the Administrator The invention described herein was shall determine, in accordance with the made in the performance of work under policy of § 1245.103, whether or not to NASA Contract No. lll, and is subject grant any petition for waiver of rights to the provisions of Section 20135 of the to the petitioner. National Aeronautics and Space Act (51 (b) In the event of denial of the peti- U.S.C. Chapter 201). tion by the Administrator, a written (c) License to the Government. The notice of such denial will be promptly waiver recipient shall return to NASA transmitted by the Board to the peti- a duly executed and approved license to tioner. The written notice will be ac- the Government (which will be pre- companied with a statement of the pared by the Government) fully con- grounds for denial. firming of all the rights, domestic and (c) If the waiver is granted by the Ad- foreign, to which the Government is ministrator, the petitioner shall be entitled. sent for execution, an instrument of (d) Patent filing and issuance informa- waiver confirmatory of the conditions tion. The waiver recipient shall furnish and reservations of the waiver grant. to either the Chairperson or the patent The petitioner shall promptly return representative, the filing date, serial the executed copy of the instrument of number and title, and upon request, a waiver to the Chairperson. copy of any domestic or foreign patent application including an English lan- § 1245.116 Miscellaneous provisions. guage version if filed in a language (a) Filing of patent applications and re- other than English, and a copy of the imbursement of costs. In order to protect patent or patent number and issue the interests of the Government and date, for any waived invention.

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(e) Transfer of rights. The waiver re- (b) Whenever NASA receives informa- cipient shall notify the Chairperson tion that it believes might warrant the prior to any transfer of principal rights exercise of march-in rights, before ini- in any waived invention to any party. tiating any march-in proceeding, it Such transfer shall be subject to all shall notify the waiver recipient in rights reserved by the Government, writing of the information and request and all obligations of the waiver recipi- informal written or oral comments ent, as set forth in this subpart. from the waiver recipient as well as in- (f) Utilization reports. (1) The waiver formation relevant to the matter. In recipient shall provide to the Chair- the absence of any comments from the person upon request, and no more fre- waiver recipient within 30 days, NASA quently than annually, reports on the may, at its discretion, proceed with the utilization of a waived invention or on procedures set forth in 37 CFR 401.6. If efforts at obtaining such utilization a comment is received within 30 days, being made by the waiver recipient or or later if NASA has not initiated the its licensees or assigns. Such reports procedures, then NASA shall, within 60 shall include information regarding the days after it receives the comment, ei- status of the development, date of first ther initiate the procedures or notify commercial sale or use, and such other the waiver recipient, in writing, that it data and information as the Chair- will not pursue march-in rights on the person may reasonably specify. No uti- basis of the available information. lization reports need be submitted (c) If march-in procedures are to be after the term of the patent. initiated, the Administrator of NASA, or designee, shall undertake or refer (2) Such reports on the utilization of the matter for fact finding to the a waived invention, as well as informa- NASA Board of Contract Appeals (BCA) tion on the utilization or efforts at ob- and its Chairperson. taining utilization obtained as part of (d) Fact-finding shall be conducted a march-in proceeding under § 1245.117, by the NASA BCA and its Chairperson shall be treated by NASA as commer- in accordance with its procedures that cial and financial information obtained are consistent with the procedures set from a person and privileged and con- forth in 37 CFR 401.6. Any portion of fidential and not subject to disclosure the march-in proceeding, including a under 5 U.S.C. 552. fact-finding hearing that involves tes- (g) Communications. Unless otherwise timony or evidence relating to the uti- specifically set forth in this subpart, lization or efforts at obtaining utiliza- all communications relating to waived tion that are being made by the waiver inventions, and all information and recipient, its assignee, or licensees documents required to be submitted to shall be closed to the public, including NASA in this subpart, shall be fur- potential licensees. In accordance with nished to the patent representative 35 U.S.C. 202(c)(5), NASA shall not dis- designated in the contract under which close any such information obtained the waived invention was made. during a march-in proceeding to per- (Recordkeeping and reporting requirements sons outside the Government except contained in paragraph (f) were approved by when such release is authorized by the the Office of Management and Budget under waiver recipient (assignee or licensee). control number 2700–0050) (e) The preparation of written find- [52 FR 43748, Nov. 16, 1987, as amended at 80 ings of fact and recommended deter- FR 19199, Apr. 10, 2015] mination by the Chairperson of the NASA BCA and the determination by § 1245.117 March-in and waiver rev- the Administrator, or designee, of ocation procedures. NASA shall be in accordance with 37 (a) The exercise of march-in proce- CFR 401.6. dures shall be in conformance with 35 (f) NASA may, at any time, termi- U.S.C. 203 and the applicable provisions nate a march-in proceeding if it is sat- of 37 CFR 401.6, entitled ‘‘Exercise of isfied that it does not wish to exercise march-in rights for inventions made by march-in rights. nonprofit organizations and small busi- [52 FR 43748, Nov. 16, 1987, as amended at 80 ness firms.’’ FR 19199, Apr. 10, 2015]

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§ 1245.118 Record of decisions. (4) In the case of a patent infringe- The findings of fact and rec- ment claim, a sufficient designation to ommendations made to the Adminis- permit identification of the accused trator by the Board with respect to subject matter (e.g. article(s) or proc- each petition for waiver shall be re- ess(es)) alleged to infringe the pat- corded by the Board and be available to ent(s), giving the commercial designa- the public. tion, if known to the claimant, or, in the case of a copyright infringement claim, the accused subject matter (e.g. Subpart 2—Claims for Patent and act(s) or work(s)) alleged to infringe Copyright Infringement the copyright. (5) In the case of a patent infringe- AUTHORITY: 51 U.S.C. 20112–20113; 22 U.S.C. ment claim, a designation of at least 2356; 35 U.S.C. 181–188 and 286; and 28 U.S.C. one claim of each patent alleged to be 1498. infringed or, in the case of a copyright SOURCE: 77 FR 14687, Mar. 13, 2012, unless infringement claim, a copy of each otherwise noted. work alleged to be infringed. § 1245.200 Purpose. (6) As an alternative to paragraphs (a)(4) and (5) of this section, certifi- The purpose of this subpart is to set cation that the claimant has made a forth policies and procedures for the bona fide attempt to determine the ac- filing and disposition of claims of in- cused subject matter, which is alleged fringement of privately owned rights in to infringe the patent(s), or the ac- patented inventions or copyrighted cused subject matter alleged to in- works asserted against NASA. fringe the copyright(s), but was unable § 1245.201 Objectives. to do so, giving reasons and stating a reasonable basis for the claimant’s be- Whenever a claim of infringement of lief that the patent(s) or copyright(s) is privately owned rights in patented in- being infringed. ventions or copyrighted works is as- (b) Additional information for patent serted against NASA, all necessary infringement claims. In addition to the steps shall be taken to investigate and information listed in paragraph (a) of to administratively settle, deny, or this section, the following material and otherwise dispose of such claim prior information generally are necessary in to suit against the United States. The General Counsel, or designee, is au- the course of processing a claim of pat- thorized to investigate, settle, deny, or ent infringement. Claimants are en- otherwise dispose of all claims of pat- couraged to furnish this information at ent and copyright infringement, pursu- the time of filing a claim to permit ant to the above-cited statutory au- rapid processing and resolution of the thority. claim. (1) A copy of the asserted patent(s) § 1245.202 Contents of communication and identification of all claims of the initiating claim. patent(s) alleged to be infringed. (a) Requirements for claim. A patent or (2) Identification of all procurements copyright infringement claim for com- known to the claimants that involve pensation, asserted against the United the accused item(s) or process(es), in- States as represented by NASA under cluding the identity of the vendor(s) or any of the applicable statutes cited contractor(s) and the Government ac- above, must be actually communicated quisition activity or activities. to and received by an organization, of- (3) A detailed identification and de- fice, or within a NASA Center. Claims scription of the accused article(s) or must be in writing and must include process(es) used or acquired by the the following: Government, particularly where the ar- (1) An allegation of infringement. ticle(s) or process(es) relate to a com- (2) A request for compensation, ei- ponent(s) or subcomponent(s) of an ther expressed or implied. item acquired, and an element-by-ele- (3) A citation to the patent(s) or ment comparison of representative copyright(s) alleged to be infringed. claim(s) with the accused article(s) or

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process(es). If available, the identifica- lapsed for failure to pay any mainte- tion and description should include nance fee. In addition, the status of all documentation and drawings to illus- corresponding foreign patents and pat- trate the accused article(s) or proc- ent applications and full copies of the ess(es) in sufficient detail to enable de- same. termining whether the claim(s) of the (11) Pertinent prior art known to the asserted patent(s) read on the accused claimant not contained in the USPTO article(s) or process(es). file, for example, publications and for- (4) Names and addresses of all past eign prior art. In addition to the fore- and present licensees under the pat- going, if claimant can provide a state- ent(s) and copies of all license agreement that the investigation may be ments and releases involving the pat- limited to the specifically identified ent(s). In addition, an identification of accused article(s) or process(es) or to a all assignees of the patent(s). specific acquisition (e.g. identified con- (5) A list of all persons to whom no- tract(s)), it may speed disposition of tices of infringement have been sent, the claim. Claimants are also encour- including all departments and agencies aged to provide information on any an- of the Government, and a statement of cillary matters that may have a bear- the status or ultimate disposition of ing on validity or infringement. each. (c) Denial for refusal to provide infor- (6) A brief description of all litiga- mation. In the course of investigating a tion involving the patent(s) which was claim, it may become necessary for initiated at any time prior to the claim NASA to request information in the being filed and their present status. control and custody of the claimant This includes any defenses or counter- that is relevant to the disposition of claims made and positions maintained the claim. Failure of the claimant to by opposing parties regarding inva- respond to a request for such informa- lidity of the patent(s). tion shall be sufficient reason alone for (7) A description of Government em- denying a claim. ployment or military service, if any, by the inventor(s) or patent owner(s) in- § 1245.203 Incomplete notice of including a statement from the inven- fringement. tor(s) or patent owner(s) certifying whether the invention claimed in the (a) If a communication alleging pat- patents was conceived or reduced to ent infringement or copyright infringe- practice, in part or in whole, during ment is received that does not meet Government employment and whether the requirements set forth in such inventor(s) or owner(s) occupied § 1245.202(a), the sender shall be advised any position from which such inven- in writing by the Agency Counsel for tor(s) or owner(s) was capable of order- Intellectual Property: ing, influencing, or inducing use of the (1) That the claim for infringement invention by the Government. has not been satisfactorily presented; (8) A list of all contract(s) between and the Government and inventor(s), pat- (2) Of the elements necessary to es- ent owner(s), or anyone in privity with tablish a claim. the patent owner(s), under which work (b) A communication, in which no in- relating to the patented subject matter fringement is alleged in accordance was performed. with § 1245.202(a), such as a mere proffer (9) Evidence of title to the asserted of a license, shall not be considered a patent(s) or other right to make the claim for infringement. claim. (10) A copy of the United States Pat- § 1245.204 Indirect notice of infringe- ent and Trademark Office (USPTO) file ment. history of each patent, if it is available A communication by a patent or to the claimant. Indicate whether the copyright owner to addressees other patent has been the subject of any in- than those specified in § 1245.202(a), terference proceedings, certification of such as NASA contractors, including correction request, reexamination, or contractors operating Government- reissue proceedings at the USPTO, or owned facilities, alleging that acts of

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infringement have occurred in the per- SOURCE: 30 FR 1844, Feb. 10, 1965, unless formance of a Government contract, otherwise noted. grant, or other arrangement, shall not § 1245.300 Scope of subpart. be considered a claim within the meaning of § 1245.202(a) until such commu- This subpart establishes policy, cri- nication meets the requirements speci- teria, and procedures concerning the fied therein. NASA Foreign Patent Program.

§ 1245.205 Processing of administra- § 1245.301 Inventions under NASA con- tive claims. tracts. (a) Pursuant to § 1245.113, NASA has (a) Filing and forwarding of claims. All facilitated the filing of foreign patent communications regarding claims applications by contractors by pro- should be addressed to: Agency Counsel viding for the granting of a waiver of for Intellectual Property, Office of the title to a contractor to any identified General Counsel, National Aeronautics invention in countries other than the and Space Administration, Wash- United States in the event the Admin- ington, DC 20546–0001. If any commu- istrator of NASA does not desire to file nication relating to a claim or possible a patent application covering the in- claim of patent or copyright infringe- vention in such countries. However, ment is received by an agency, organi- any such waiver is subject to the res- zation, office, or field installation ervation by the Administrator of the within NASA, it shall be forwarded to license required to be retained by the Agency Counsel for Intellectual NASA under 51 U.S.C. 20135(g) of the Property. National Aeronautics and Space Act, (b) Disposition and notification. The as amended. General Counsel, or designee, shall in- (b) Conversely, where the principal vestigate and administratively settle, rights in an invention made under a deny, or otherwise dispose of each NASA contract remain in the con- claim. When a claim is denied, the tractor by virtue of waiver, Agency shall so notify the claimant or § 1245.19(a)(5) provides that the con- the claimant’s authorized representa- tractor, upon written request, will con- tive and provide the claimant with the vey to the Administrator of NASA the reasons for denying the claim. Disclo- entire right, title, and interest in the sure of information shall be subject to invention in any foreign country in applicable statutes, regulations, and which the contractor has elected not to directives pertaining to security, ac- file a patent application. cess to official records, and the rights (c) With respect to inventions in of others. which NASA has acquired and retained (c) Termination of claims. If, while an the principal rights, NASA will file administrative claim for patent or patent applications in countries other copyright infringement is pending than the United States on inventions against NASA, the claimant brings suit selected in accordance with the cri- for patent or copyright infringement teria set forth in § 1245.303. against the United States in the Court of Federal Claims based on the same [30 FR 1844, Feb. 10, 1965, as amended at 80 FR 42029, July 16, 2015] facts or transactions as the administrative claim, the administrative claim § 1245.302 Inventions by NASA employ- shall thereupon be automatically dis- ees. missed, with no further action being (a) The foreign rights of NASA and of required of NASA. the NASA employee making an invention are determinable in accordance Subpart 3—NASA Foreign Patent with Executive Orders 9865 and 10096 Program and Government Patent Board Admin- istrative Order No. 6 issued pursuant AUTHORITY: 51 U.S.C. 20135(g) and E.O. 9865, thereto. 12 FR 3907, 3 CFR, 1943–1948 Comp., p. 651, and (b) Where NASA acquires an assign- E.O. 10096, 15 FR 389, 3 CFR, 1949–1953 Comp., ment of the domestic rights in an in- p. 292. vention made by a NASA employee,

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NASA will also obtain an option to ac- by the Assistant General Counsel for quire the foreign rights, including the Patent Matters. right to file foreign patent applications on the invention. Subparts 4–5 [Reserved] (c) Where NASA is entitled to only a governmental license in the invention, the principal foreign rights in the in- PART 1250—NONDISCRIMINATION vention are retained by the employee IN FEDERALLY-ASSISTED PRO- unless he agrees in writing to assign GRAMS OF NASA—EFFEC- such rights to NASA. TUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 § 1245.303 Criteria. The following categories of inven- Sec. tions will be considered for the filing of 1250.100 Purpose. patent applications by NASA in coun- 1250.101 Applicability. tries other than the United States: 1250.102 Definitions. (a) Inventions which may be utilized 1250.103 Discrimination prohibited. abroad in governmental programs of 1250.103–1 General. the United States. 1250.103–2 Specific discriminatory acts pro- (b) Inventions which may be exhibited. ploited abroad in the public interest by 1250.103–3 Employment practices. license to U.S. nationals or others. 1250.103–4 Illustrative applications. (c) Inventions which may be utilized 1250.103–5 Special benefits. in applications type satellites, such as 1250.103–6 Medical emergencies. communications and meteorological 1250.104 Assurances. satellites. 1250–105 Compliance information. (d) Inventions considered to be basic 1250.106 Conduct of investigations. discoveries or of major significance in 1250.107 Procedure for effecting compliance. an art. 1250.108 Hearings. (e) Inventions in fields which directly 1250.109 Decisions and notices. concern the public health or public 1250.110 Judicial review. welfare. 1250.111 Effect on other regulations; forms and instructions. § 1245.304 Procedures. 1250.112 Relationship with other officials. (a) The patent counsel at each NASA APPENDIX A TO PART 1250—NASA FEDERAL field installation will review all inven- FINANCIAL ASSISTANCE TO WHICH THIS tion disclosures at the time of dock- PART APPLIES eting and will expedite the processing AUTHORITY: Sec. 602, 78 Stat. 252, 42 U.S.C. and preparation of a U.S. patent appli- 2000d–1; and the laws listed in appendix A to cation, if justified, on those inventions this part. which appear to fall within the criteria SOURCE: 30 FR 301, Jan. 9, 1965, unless oth- set forth in § 1245.303. The patent coun- erwise noted. sel will make a recommendation as to whether or not foreign patent coverage § 1250.100 Purpose. appears justified at the time of assigning a priority evaluation to a disclosed The purpose of this part is to effec- invention. tuate the provisions of Title VI of the (b) Preparation and filing of patent Civil Rights Act of 1964 (hereafter re- applications in foreign countries will ferred to as ‘‘the Act’’) to the end that be subject to approval of the Assistant no person in the United States shall, General Counsel for Patent Matters, on the ground of race, color or national NASA Headquarters. origin, be excluded from participation (c) The Office of Assistant General in, be denied the benefits of, or be oth- Counsel for Patent Matters will budget erwise subjected to discrimination for and administer the filing of all pat- under any program or activity receiv- ent applications in countries other ing Federal financial assistance from than the United States. the National Aeronautics and Space (d) Coordination with other inter- Administration, hereinafter referred to ested NASA offices will be undertaken as NASA.

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§ 1250.101 Applicability. (c) Facility includes all or any portion of structures, equipment, or other real (a) Covered programs. (1) This part applies to any program for which Federal or personal property or interests there- financial assistance is authorized under in, and the provision of facilities in- a law administered by NASA, including cludes the construction, expansion, the types of Federal financial assist- renovation, remodeling, alteration or ance listed in appendix A to this part. acquisition of facilities. The fact that a type of Federal assist- (d) Federal financial assistance in- ance is not listed in appendix A shall cludes (1) grants and loans of Federal not mean, if Title VI of the Act is oth- funds, (2) the grant or donation of Fed- erwise applicable, that a program is eral property and interests in property, not covered. Other types of Federal fi- (3) the detail of Federal personnel, (4) nancial assistance under statutes now the sale and lease of, and the permis- in force or hereafter enacted may be sion to use (on other than a casual or added to appendix A by notice pub- transient basis), Federal property or lished in the FEDERAL REGISTER. any interest in such property without (2) This part applies to money paid, consideration or at a nominal consider- property transferred, or other Federal ation, or at a consideration which is re- financial assistance extended after the duced for the purpose of assisting the effective date of this part pursuant to recipient, or in recognition of the pub- an application approved prior to such lic interest to be served by such sale or effective date. lease to the recipient, and (5) any Fed- (b) Excluded activities. This part does eral agreement, arrangement, or other not apply to (1) any Federal financial contract which has as one of its pur- assistance by way of insurance or guar- poses the provision of assistance. anty contracts, (2) money paid, prop- (e) NASA means the National Aero- erty transferred, or other assistance nautics and Space Administration. extended before the effective date of (f) Primary recipient means any recipi- this part, except as provided in para- ent which is authorized or required to graph (a) of this section, (3) any assist- extend Federal financial assistance to ance to any individual who is the ulti- another recipient. mate beneficiary, (4) any employment (g) Principal Compliance Officer means practice, under any such program, of the Director, Equal Employment Op- any employer, employment agency, or portunity Office, Office of Organization labor organization, except as provided and Management, NASA Headquarters, in § 1250.103–3, (5) contracts not covered or any successor officer to whom the in the types of Federal financial assist- Administrator should delegate author- ance listed in appendix A, or (6) ad- ity to perform the functions assigned vances, V-loans, and other financial as- to the Principal Compliance Officer by sistance made incident to NASA pro- this part. curements not covered in the types of (h) Program or activity and program Federal financial assistance listed in mean all of the operations of any enti- appendix A. ty described in paragraphs (h)(1) [30 FR 301, Jan. 9, 1965, as amended at 68 FR through (4) of this section, any part of 51350, Aug. 26, 2003] which is extended Federal financial assistance: § 1250.102 Definitions. (1)(i) A department, agency, special As used in this part— purpose district, or other instrumen- (a) Administrator means the Adminis- tality of a State or of a local govern- trator of the NASA. ment; or (b) Applicable means one who submits (ii) The entity of such State or local an application, request, proposal, or government that distributes such as- plan required to be approved by a resistance and each such department or sponsible NASA official, or by a pri- agency (and each other State or local mary recipient, as a condition to eligi- government entity) to which the as- bility for Federal financial assistance; sistance is extended, in the case of as- and the term application means such an sistance to a State or local govern- application, request, proposal or plan. ment;

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(2)(i) A college, university, or other States, and the term State means any postsecondary institution, or a public one of the foregoing. system of higher education; or [30 FR 301, Jan. 9, 1965, as amended at 38 FR (ii) A local educational agency (as de- 17936, July 5, 1973; 68 FR 51350, Aug. 26, 2003] fined in 20 U.S.C. 7801), system of vocational education, or other school sys- § 1250.103 Discrimination prohibited. tem; (3)(i) An entire corporation, partner- § 1250.103–1 General. ship, or other private organization, or No person in the United States shall, an entire sole proprietorship— on the ground of race, color or national (A) If assistance is extended to such origin be excluded from participation corporation, partnership, private orga- in, be denied the benefits of, or be oth- nization, or sole proprietorship as a erwise subjected to discrimination whole; or under any program to which this part (B) Which is principally engaged in applies. the business of providing education, health care, housing, social services, or § 1250.103–2 Specific discriminatory parks and recreation; or acts prohibited. (ii) The entire plant or other com- (a) A recipient to which this part ap- parable, geographically separate facil- plies may not, directly or through con- ity to which Federal financial assist- tractual or other arrangements, on ance is extended, in the case of any ground of race, color, or national ori- other corporation, partnership, private gin: organization, or sole proprietorship; or (1) Deny an individual any service, fi- (4) Any other entity which is estab- nancial aid, or other benefit provided lished by two or more of the entities under the program; described in paragraph (h)(1), (2), or (3) (2) Provide any service, financial aid, of this section. or other benefit to an individual which (i) Recipient means any State, polit- is different, or is provided in a different ical subdivision of any State, or instru- manner, from that provided to others mentality of any State or political sub- under the program; division, any public or private agency, (3) In determining the site or loca- institution, or organization, or other tion of facilities, a recipient or appli- entity, or any individual, in any State, cant may not make selections with the to whom Federal financial assistance is purpose or effect of excluding individ- extended, directly or through another uals from, denying them the benefits recipient, including any successor, as- of, or subjecting them to discrimina- sign, or transferee thereof, but such tion under any program to which this term does not include any ultimate regulation applies, on the grounds of beneficiary. race, color, or national origin; or with (j) Responsible NASA official means: the purpose or effect of defeating or (1) The heads of Offices at NASA substantially impairing the accom- Headquarters responsible for making plishment of the objectives of the Act grants, and contracts of the kind listed or this regulation. in appendix A; and (4) Subject an individual to segrega- (2) Each Director of a field installation or separate treatment in any mat- tion which makes or administers ter related to his receipt of any service, grants and contracts of the kind listed financial aid, or other benefit under in appendix A, or any officer to whom the program; he has delegated authority to act with- (5) Restrict an individual in any way in the areas of responsibility assigned in the enjoyment of any advantage or to him under this part. privilege enjoyed by others receiving (k) United States means the States of any service, financial aid, or other ben- the United States, the District of Co- efit under the program; lumbia, Puerto Rico, the Virgin Is- (6) Treat an individual differently lands, American Samoa, Guam, Wake from others in determining whether he Island, the Canal Zone, and the terri- satisfies any admission, enrollment, tories and possessions of the United quota, eligibility, membership or other

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requirement or condition which indi- ceiving Federal financial assistance, on viduals must meet in order to be pro- the grounds of race, color, or national vided any service, financial aid, or origin. Where previous discriminatory other benefit provided under the pro- practices or usage tends, on the gram; grounds of race, color, or national ori- (7) Deny an individual an opportunity gin, to exclude individuals from par- to participate in the program through ticipation in, to deny them the benefits the provision of services or otherwise of, or to subject them to discrimina- or afford him an opportunity to do so tion under any program or activity to which is different from that afforded which this regulation applies the appli- others under the program (including cant or recipient has an obligation to the opportunity to participate in the take reasonable action to remove or program as an employee but only to overcome the consequences of the prior the extent set forth in § 1250.103–3). discriminatory practice or usage, and (b) A recipient, in determining the to accomplish the purpose of the Act. types of services, financial aid, or other [30 FR 301, Jan. 9, 1965, as amended at 38 FR benefits, or facilities which will be pro- 17936, July 5, 1973; 68 FR 51350, Aug. 26, 2003] vided under any such program, or the class of individuals to whom, or the sit- § 1250.103–3 Employment practices. uations in which, such services, finan- (a) Where a primary objective of the cial aid, other benefits, or facilities Federal financial assistance to a pro- will be provided under any such program to which this part applies is to gram, or the class of individuals to be provide employment, a recipient may afforded an opportunity to participate not directly or through contractual or in any such program, may not, directly other arrangements subject an indi- or through contractual or other ar- vidual to discrimination on the ground rangements, utilize criteria or methods of race, color, or national origin in its of administration which have the effect employment practices under such proof subjecting individuals to discrimina- gram (including recruitment or re- tion because of their race, color, or na- cruitment advertising, employment, tional origin, or have the effect of de- layoff or termination, upgrading, defeating or substantially impairing ac- motion, or transfer, rates of pay or complishment of the objectives of the other forms of compensation, and use program as respects individuals of a of facilities), including programs where particular race, color, or national ori- a primary objective of the Federal fi- gin. nancial assistance is (1) to assist such (c) As used in this section the serv- individuals through employment to ices, financial aid, or other benefits meet expenses incident to the com- provided under a program receiving mencement or continuation of their Federal financial assistance shall be education or training, or (2) to provide deemed to include any service, finan- work experience which contributes to cial aid, or other benefit provided in or the education or training of such indi- through a facility provided with the viduals. aid of Federal financial assistance. (b) Employment opportunities pro- (d) A recipient may not take action vided in connection with any of the that is calculated to bring about indi- types of Federal financial assistance rectly what this part forbids it to ac- listed in appendix A, which opportuni- complish directly. ties are limited, or for which pref- (e) The enumeration of specific forms erence is given, to students, fellows, or of prohibited discrimination in this other persons in training for the same section does not limit the generality of or related employments, are programs the prohibition in § 1250.103–1. This reg- of the kind described in paragraph ulation does not prohibit the consider- (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.

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(d) Where a primary objective of the same extent as in the case of grants for Federal financial assistance is not to the construction of facilities or the provide employment, but discrimina- provision of equipment for like pur- tion on the grounds of race, color, or poses. national origin in the employment (f) In some situations even though practices of the recipient or other per- past discriminatory practices have sons subject to the regulation tends, on been abandoned, the consequences of the grounds of race, color, or national such practices continue to impede the origin, to exclude individuals from par- full availability of a benefit. If the ef- ticipation in, to deny them the benefits forts required of the applicant or re- of, or to subject them to discrimination under any program to which this cipient under § 1250.105 to provide infor- regulation applies, the provisions of mation as to the availability of the paragraph (a) of this section shall program or activity, and the rights of apply to the employment practices of beneficiaries under this regulation, the recipient or other persons subject have failed to overcome these con- to the regulation, to the extent nec- sequences, it will become necessary for essary to assure equality of oppor- such applicant or recipient to take ad- tunity to, and nondiscriminatory ditional steps to make the benefits treatment of, beneficiaries. fully available to racial and nation- [30 FR 301, Jan. 9, 1965, as amended at 38 FR ality groups previously subjected to 17936, July 5, 1973; 68 FR 51350, Aug. 26, 2003] discrimination. This action might take the form, for example, of special ar- § 1250.103–4 Illustrative applications. rangements for obtaining referrals or (a) In training grant services dis- making selections which will insure crimination is forbidden in the selec- that groups previously subjected to dis- tion or eligibility of individuals to be crimination are adequately served. trained and in their treatment by the (g) Even though an applicant or re- grantee during their training. In any cipient has never used discriminatory case where selection is made from a policies, the services and benefits of predetermined group, such as the stu- the program or activity it administers dents in an institution, the group must may not in fact be equally available to have been selected without discrimina- some racial or nationality groups. In tion. such circumstances an applicant or re- (b) In a research or training grant to cipient may properly give special con- a university for activities to be consideration to race, color, or national ducted in a graduate school, discrimination in the admission and treatment origin to make the benefits of its proof students in the graduate school is gram more widely available to such prohibited and the prohibition extends groups, not then being adequately to the entire university. served. For example, where a univer- (c) Discrimination in the treatment sity is not adequately serving members of students or other trainees includes of a particular racial or nationality the prohibition of discrimination group, it may establish special recruit- among the students or trainees in the ment policies to make its program bet- availability or use of any academic, ter known and more readily available dormitory, eating, recreational, or to such group, and take other steps to other facilities of the grantee or other provide that group with more adequate recipient. service. (d) In a research or training grant, discrimination is prohibited with re- [30 FR 301, Jan. 9, 1965, as amended at 38 FR spect to the availability of any edu- 17937, July 5, 1973; 68 FR 51350, Aug. 26, 2003] cational activity and any provision of § 1250.103–5 Special benefits. medical or other services and any financial aid to individuals incident to An individual shall not be deemed the grant. subjected to discrimination by reason (e) Upon transfers of real or personal of his exclusion from the benefits lim- property for research or educational ited by Federal law to individuals of a uses, discrimination is forbidden to the

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particular race, color, or national ori- assistance is extended or for another gin different from his. purpose involving the provision of similar services or benefits. [30 FR 301, Jan. 9, 1965, as amended at 68 FR 51350, Aug. 26, 2003] (2) Personal property. In the case of an application for Federal financial assist- § 1250.103–6 Medical emergencies. ance for providing personal property, Notwithstanding the provisions of the assurance shall obligate the recipi- §§ 1250.103 to 1250.103–5, a recipient of ent for the period during which he re- Federal financial assistance shall not tains ownership or possession of the be deemed to have failed to comply property. with § 1250.103–1, if immediate provision (3) Other kinds of Federal financial as- of a service or other benefit to an indi- sistance. In the case of an application vidual is necessary to prevent his death for any other kind of Federal financial or serious impairment of his health, assistance, the assurance shall obligate and such service or other benefit can- the recipient for the period during not be provided except by or through a which Federal financial assistance is medical institution which refuses or extended pursuant to the application. fails to comply with § 1250.103–1. (c) Assurances for research, training, or educational programs. (1) In the case of § 1250.104 Assurances. application by an institution of higher (a) General requirement. Every appli- education or any other organization for cation for Federal financial assistance Federal financial assistance for a pro- to which this part applies, and every gram or activity which involves par- application for Federal financial assist- ticipation by students, fellows or train- ance to provide a facility shall, as a ees, including but not limited to assist- condition to its approval and the ex- ance for research, training, or the pro- tension of any Federal financial assist- vision of facilities, the assurance re- ance pursuant to the application, con- quired by this § 1250.104 shall extend to tain, be accompanied by, or identify admission practices and to all other and make reference to, an assurance practices relating to the treatment of that the program will be conducted or students or other participants. the facility operated in compliance (2) The assurances from such an ap- with all requirements imposed by or plicant shall be applicable to the entire pursuant to this part. If the assurance organization of the applicant. is not made a part of the application, (d) Assurances for construction of facili- the application shall identify the as- ties. In the case of assistance for the surance which is applicable to the ap- construction of a facility, or part plication. One assurance shall suffice thereof, the assurance shall extend to for all applications of an applicant if the entire facility and to facilities op- the assurance complies with the condi- erated in connection therewith. In tions made applicable by this part to grants to assist in the construction of each such application for Federal fi- facilities for the provision of research, nancial assistance. Every assurance training, or educational services, as- shall include provisions which give the surances will be required that services United States a right to seek its judi- will be provided without discrimina- cial enforcement. tion, to the same extent that discrimi- (b) Duration of assurances. The period nation would be forbidden as a condi- of time to be covered by the assurances tion of grants for the support of such required under this § 1250.104 shall be as services. Thus, as a condition of grants follows: for the construction of academic, re- (1) Real property. In the case of an ap- search or other facilities at institu- plication for Federal financial assist- tions of higher education, assurances ance for providing real property or will be required that there will be no structures thereon, the assurance shall discrimination in the admission or obligate the recipient, or in the case of treatment of students. Also, see para- a subsequent transfer, the transferee, graph (c) of this section for the require- for the period during which the real ment as to the applicability of the as- property or structures are used for a surance to the applicant’s organiza- purpose for which the Federal financial tion.

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(e) Instrument effecting or recording § 1250.105 Compliance information. transfers of real property. The instru- (a) Cooperation and assistance. Each ment effecting or recording the trans- responsible NASA official shall to the fer, shall contain a covenant running fullest extent practicable seek the co- with the land assuring nondiscrimina- operation of recipients in obtaining tion for the period during which the compliance with this part and shall real property is used for a purpose for provide assistance and guidance to re- which the Federal financial assistance cipients to help them comply volun- is extended or for another purpose in- tarily with this part. volving the provision of similar serv- (b) Compliance reports. Each recipient ices or benefits. Where no transfer of shall keep such records and submit to property is involved, but property is the Principal Compliance Officer or his improved with Federal financial assist- designee timely, complete and accurate ance, the recipient shall agree to in- compliance reports at such times, and clude such a covenant in any subse- in such form and containing such infor- quent transfer of such property. Where mation, as the Principal Compliance the property is obtained from the Fed- Officer or his designee may determine eral Government, such covenant may to be necessary to enable him to ascer- also include a condition coupled with a tain whether the recipient has com- right to be reserved by NASA to revert plied or is complying with this part. In title to the property in the event of a the case in which a primary recipient breach of the covenant where, in the extends Federal financial assistance to discretion of the responsible NASA of- any other recipient, such other recipi- ficial, such a condition and right of re- ent shall also submit such compliance verter is appropriate to the statute reports to the primary recipient as under which the real property is ob- may be necessary to enable the pri- tained and to the nature of the grant mary recipient to carry out its obliga- and the grantee. tions under this part. (f) Assurances for transfer of surplus (c) Access to sources of information. real property. Transfers of surplus prop- Each recipient shall permit access by erty are subject to regulations issued the Principal Compliance Officer or his by the Administrator of General Serv- designee during normal business hours ices (41 CFR 101–6.2). to such of its books, records, accounts (g) Form of assurances. The respon- and other sources of information, and sible NASA officials shall specify the its facilities as may be pertinent to as- form of assurances required by this certain compliance with this part. § 1250.104 and the extent to which like Where any information required of a assurances will be required by subrecipient is in the exclusive possession grantees, contractors and subcontrac- of any other agency, institution or per- tors, transferees, successors in inter- son and that agency, institution or per- est, and other participants in the pro- son shall fail or refuse to furnish this gram. information, the recipient shall so cer- (h) Requests for proposals. Any request tify in its report and shall set forth for proposals issued by NASA which re- what efforts it has made to obtain the lates to covered financial assistance information. listed in appendix A shall have set (d) Information to beneficiaries and forth therein or have attached thereto participants. Each recipient shall make the assurance prescribed in accordance available to participants, beneficiaries, with paragraph (g) of this section, and and other interested persons such information 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 for 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 [30 FR 301, Jan. 9, 1965, as amended at 38 FR Compliance Officer finds necessary to 17937, July 5, 1973; 68 FR 51350, Aug. 26, 2003] apprise such persons of the protection

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against discrimination assured them discriminate against any individual for by the Act and this part. the purpose of interfering with any right or privilege secured by section 601 [30 FR 301, Jan. 9, 1965, as amended at 68 FR 51350, Aug. 26, 2003] of the Act or this part, or because he has made a complaint, testified, as- § 1250.106 Conduct of investigations. sisted, or participated in any manner (a) Periodic compliance reviews. The re- in an investigation, proceeding, or sponsible NASA official or his designee hearing under this part. The identity of shall from time to time review the complainants shall be kept confiden- practices of recipients to determine tial except to the extent necessary to whether they are complying with this carry out the purposes of this part, in- part. cluding the conduct of any investiga- (b) Complaints. Any person who be- tion, hearing, or judicial proceeding lieves himself or any specific class of arising thereunder. individuals to be subjected to discrimination prohibited by this part may by § 1250.107 Procedure for effecting compliance. himself or by a representative file with the Principal Compliance Officer or his (a) General. If there appears to be a designee a written complaint. A com- failure or threatened failure to comply plaint must be filed not later than 90 with this part, and if the noncompli- days from the date of the alleged dis- ance or threatened noncompliance can- crimination, unless the time for filing not be corrected by informal means, is extended by the Principal Compli- compliance with this part may be ef- ance Officer or his designee. fected by the suspension or termi- (c) Investigations. The Principal Com- nation of or refusal to grant or to con- pliance Officer or his designee will tinue Federal financial assistance or by make a prompt investigation whenever any other means authorized by law. a compliance review, report, com- Such other means may include, but are plaint, or any other information indi- not limited to, (1) a reference to the cates a possible failure to comply with Department of Justice with a rec- 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 with a requirement imposed by or pur- Compliance Officer or his designee will suant to that section, Federal financial so inform the recipient and the matter assistance may be refused in accord- will be resolved by informal means ance with the procedures of paragraph whenever possible. If it has been deter- (c) of this section. NASA shall not be mined that the matter cannot be re- obligated to provide assistance in such solved by informal means, action will a case during the pendency of the ad- be taken as provided for in § 1250.107. ministrative proceedings under such (2) If an investigation does not war- subsection except that NASA shall con- rant action pursuant to paragraph tinue assistance during the pendency of (d)(1) of this section, the responsible such proceedings where such assistance NASA official or his designee will so is due and payable pursuant to an ap- inform the recipient and the complain- plication therefor approved prior to the ant, if any, in writing. effective date of this part. (e) Intimidatory or retaliatory acts pro- (c) Termination of or refusal to grant or hibited. No recipient or other person to continue Federal financial assistance. shall intimidate, threaten, coerce, or No order suspending, terminating or

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refusing to grant or continue Federal This notice shall advise the applicant financial assistance shall become effec- or recipient of the action proposed to tive until (1) the responsible NASA of- be taken, the specific provision under ficial has advised the applicant or re- which the proposed action against it is cipient of his failure to comply and has to be taken, and the matters of fact or determined that compliance cannot be law asserted as the basis for this ac- secured by voluntary means, (2) there tion, and either (1) fix a date not less has been an express finding on the than 20 days after the date of such no- record, after opportunity for hearing, tice within which the applicant or re- of a failure by the applicant or recipi- cipient may request of the Principal ent to comply with a requirement im- Compliance Officer that the matter be posed by or pursuant to this part, (3) scheduled for hearing or (2) advise the the action has been approved by the applicant or recipient that the matter Administrator pursuant to § 1250.109(e), in question has been set down for hear- and (4) the expiration of 30 days after ing at a stated place and time. The the Administrator has filed with the time and place so fixed shall be reason- committee of the House and the com- able and shall be subject to change for mittee of the Senate having legislative cause. The complainant, if any, shall jurisdiction over the program involved, be advised of the time and place of the a full written report of the cir- hearing. An applicant or recipient may cumstances and the grounds for such waive a hearing and submit written in- action. Any action to suspend or termi- formation and argument for the record. nate or to refuse to grant or to con- The failure of an applicant or recipient tinue Federal financial assistance shall to request a hearing under this para- be limited to the particular political graph or to appear at a hearing for entity, or part thereof, or other appli- which a date has been set shall be cant or recipient as to whom such a deemed to be a waiver of the right to a 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 administrative 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

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provided for in paragraph (a) of this § 1250.109 Decisions and notices. section, taking of testimony, exhibits, (a) Decision by person other than the arguments, and briefs, requests for NASA Principal Compliance Officer. If findings, and other related matters. the hearing is held by a hearing exam- Both NASA and the applicant or recipi- iner, such hearing examiner shall ei- ent shall be entitled to introduce all ther make an initial decision, if so au- relevant evidence on the issues as stat- thorized, or certify the entire record ed in the notice for hearing or as deter- including his recommended findings mined by the officer conducting the and proposed decision to the Principal hearing at the outset of or during the Compliance Officer for a final decision, hearing. and a copy of such initial decision or (2) Technical rules of evidence shall certification shall be mailed to the ap- not apply to hearings conducted pursu- plicant or recipient. Where the initial ant to this part, but rules or principles decision is made by the hearing exam- designed to assure production of the iner, the applicant or recipient may, most credible evidence available and to within 30 days of the mailing of such subject testimony to test by cross-ex- notice of initial decision, file with the amination shall be applied where rea- Principal Compliance Officer his excep- sonably necessary by the officer con- tions to the initial decision with his ducting the hearing. The hearing offi- reasons therefor. In the absence of ex- cer may exclude irrelevant, immate- ceptions, the Principal Compliance Of- rial, or unduly repetitious evidence. All ficer may on his own motion, within 45 documents and other evidence offered days after the initial decision, serve on or taken for the record shall be open to the applicant or recipient a notice that examination by the parties and oppor- he will review the decision. Upon the tunity shall be given to refute facts filing of such exceptions or of such no- and arguments advanced on either side tice of review the Principal Compliance of the issues. A transcript shall be Officer shall review the initial decision made of the oral evidence except to the and issue his own decision thereon in- extent the substance thereof is stipu- cluding the reasons therefor. In the ab- lated for the record. All decisions shall sence of either exceptions or a notice of be based upon the hearing record and review the initial decision shall con- written findings shall be made. stitute the final decision of the Prin- (e) Consolidated or joint hearings. In cipal Compliance Officer. cases in which the same or related (b) Decisions on record or review by the facts are asserted to constitute non- NASA Principal Compliance Officer. compliance with this part with respect Whenever a record is certified to the to two or more Federal statutes, au- Principal Compliance Officer for deci- thorities, or other means by which sion or he reviews the decision of a Federal financial assistance is ex- hearing examiner pursuant to para- tended and to which this part applies, graph (a) of this section, or whenever or non-compliance with this part and the Administrator conducts the hear- the regulations of one or more other ing, the applicant or recipient shall be Federal departments or agencies issued given reasonable opportunity to file under Title VI of the Act, the Adminis- with him briefs or other written state- trator may, by agreement with such ments of its contentions, and a copy of the final decision of the Principal Com- other departments or agencies where pliance Officer shall be given in writing applicable, provide for the conduct of to the applicant or recipient and to the consolidated or joint hearings, and for complainant, if any. the application to such hearings of (c) Decisions on record where a hearing rules of procedures not inconsistent is waived. Whenever a hearing is waived with the part. Final decisions in such pursuant to § 1250.108, a decision shall cases, insofar as this part is concerned, be made by the Principal Compliance shall be made in accordance with Officer on the record and a copy of such § 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; 68 FR 51350, Aug. 26, 2003] complainant, if any.

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(d) Rulings required. Each decision of cipal Compliance Officer to restore a hearing officer or the Principal Com- fully the eligibility to receive Federal pliance Officer shall set forth his rul- financial assistance. Any such request ing on each finding, conclusion, or ex- shall be supported by information ception presented, and shall identify showing that the applicant or recipient the requirement or requirements im- has met the requirements of paragraph posed by or pursuant to this part with (g)(1) of this section. If the Principal which it is found that the applicant or Compliance Officer determines that recipient has failed to comply. those requirements have been satisfied, (e) Approval by administrator. Any he shall restore such eligibility. final decision of the NASA Principal (3) If the Principal Compliance Offi- Compliance Officer which provides for cer denies any such request, the appli- the suspension or termination of, or cant or recipient may submit a request the refusal to grant or continue Fed- for a hearing in writing, specifying why eral financial assistance, or the imposi- it believes such official to have been in tion of any other sanction available error. It shall thereupon be given an under this part or the Act, shall expeditious hearing, with a decision on promptly be transmitted to the Admin- the record, in accordance with rules of istrator, who may approve such deci- procedure issued by the Principal Com- sion, may vacate it, or remit or miti- pliance Officer. The applicant or recipi- gate any sanction imposed. ent will be restored to such eligibility (f) Content of orders. The final deci- if it proves at such a hearing that it sion may provide for suspension or ter- satisfied the requirements of paragraph mination of, or refusal to grant or con- (g)(1) of this section. While proceedings tinue Federal financial assistance, in under this paragraph are pending, the whole or in part, to which this regula- sanctions imposed by the order issued tion applies, and may contain such under paragraph (f) of this section shall terms, conditions, and other provisions remain in effect. as are consistent with and will effec- [30 FR 301, Jan. 9, 1965, as amended at 38 FR tuate the purposes of the Act and this 17937, July 5, 1973; 68 FR 51350, Aug. 26, 2003] part including provisions designed to assure that no Federal financial assist- § 1250.110 Judicial review. ance to which this regulation applies Action taken pursuant to section 602 will thereafter be extended to the ap- of the Act is subject to judicial review plicant or recipient determined by such as provided in section 603 of the Act. decision to be in default in its performance of an assurance given by it pursu- § 1250.111 Effect on other regulations; ant to this part, or to have otherwise forms and instructions. failed to comply with this part, unless (a) Effect on other regulations. All reg- and until it corrects its non-compli- ulations, orders, or like directions ance and satisfies the Principal Com- heretofore issued by any officer of pliance Officer that it will fully comply NASA which impose requirements de- with this part. signed to prohibit any discrimination (g) Post termination proceedings. (1) An against individuals on the ground of applicant or recipient adversely af- race, color, or national origin under fected by an order issued under para- any program to which this part applies, graph (f) of this section shall be re- and which authorize the suspension or stored to full eligibility to receive Fed- termination of or refusal to grant or to eral financial assistance if it satisfies continue Federal financial assistance the terms and conditions of that order to any applicant for or recipient of for such eligibility or if it brings itself such assistance for failure to comply into compliance with this regulation with such requirements, are hereby su- and provides reasonable assurance that perseded to the extent that such dis- it will fully comply with this regula- crimination is prohibited by this part, tion. except that nothing in this part shall (2) Any applicant or recipient ad- be deemed to relieve any person of any versely affected by an order entered obligation assumed or imposed under pursuant to paragraph (f) of this sec- any such superseded regulation, order, tion may at any time request the Prin- instruction, or like direction prior to

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the effective date of this Instruction. coordinated with the offices and divi- Nothing in this part, however, shall be sions having joint interests. deemed to supersede any of the following (including future amendments APPENDIX A TO PART 1250—NASA FED- thereof): (1) Executive Orders 10925 and ERAL FINANCIAL ASSISTANCE TO 11246 and regulations or instructions WHICH THIS PART APPLIES issued thereunder, or (2) any other reg- 1. Grants made under the authority of Pub. ulations or instructions, insofar as L. 85–934, approved September 6, 1958 (42 such other regulations or instructions U.S.C. 1891–1893). prohibit discrimination on the ground 2. Contracts with nonprofit institutions of of race, color, or national origin in any higher education or with nonprofit organiza- program or situation to which this part tions whose primary purpose is the conduct of scientific research, wherein title to equip- is inapplicable, or prohibit discrimina- ment purchased with funds under such con- tion on any other ground. tracts may be vested in such institutions or (b) Forms and instructions. Each re- organizations under the authority of section sponsible NASA official shall issue and 2 of Pub. L. 85–934, approved September 6, promptly make available to interested 1938 (42 U.S.C. 1892). persons forms and detailed instructions 3. Training grants made under the author- and procedures for effectuating this ity of the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2451–2460, part as applied to financial assistance 2472–2473). to which this part applies and for 4. Facilities grants made under authority which he is responsible. in annual NASA authorization and appro- (c) Supervision and coordination. The priation acts. Administrator may assign to officials [30 FR 301, Jan. 9, 1965, as amended at 38 FR of other departments or agencies of the 17936, July 5, 1973] Government, with the consent of such departments or agencies, responsibil- PART 1251—NONDISCRIMINATION ities in connection with the effec- ON BASIS OF DISABILITY tuation of the purposes of Title VI of the Act and this part (other than re- Subpart 1251.1—General Provisions sponsibility for final decision as provided in § 1250.109), including the Sec. achievement of effective coordination 1251.100 Purpose and broad coverage. and maximum uniformity within 1251.101 Application. 1251.102 Definitions. NASA and within the Executive 1251.103 Discrimination prohibited. Branch of the Government in the appli- 1251.104 Assurances required. cation of Title VI and this part to simi- 1251.105 Remedial action, voluntary action, lar programs and in similar situations. and self-evaluation. Any action taken, determination made, 1251.106 Designation of responsible em- or requirement imposed by an official ployee and adoption of grievance proce- of another department or agency act- dures. 1251.107 Notice. ing pursuant to an assignment of re- 1251.108 Administrative requirements for sponsibility under this subsection shall small recipients. have the same effect as though such ac- 1251.109 Effect of State or local law or other tion has been taken by the responsible requirements and effect of employment official of this agency. opportunities. 1251.110 Direct threat. [30 FR 301, Jan. 9, 1965, as amended at 38 FR 1251.111 Reasonable accommodation. 17937, July 5, 1973; 68 FR 51350, Aug. 26, 2003] 1251.112 Communications. 1251.113 Illegal Use of drugs. § 1250.112 Relationship with other officials. Subpart 1251.2—Employment Practices NASA officials, in performing the 1251.200 Discrimination prohibited. functions assigned to them by this 1251.201 Reasonable accommodation. part, are responsible for recognizing 1251.202 Employment criteria. the delegations of authority and re- 1251.203 Preemployment inquiries. sponsibility of other NASA officials Subpart 1251.3—Accessibility and for seeing the actions taken or instructions issued by them are properly 1251.300 Discrimination prohibited.

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1251.301 Existing facilities. ‘‘disability’’ applicable to this part 1251.302 New construction. shall be construed broadly in favor of expansive coverage to the maximum Subpart 1251.4—Procedures extent permitted by the terms of this 1251.400 Compliance Procedures. part. The primary object of attention in cases brought under this part should Subpart 1251.5—Enforcement of Non- be whether entities covered under sec- discrimination on the Basis of Disability tion 504 have complied with their obli- in Programs or Activities Conducted gations and whether discrimination by the National Aeronautics and has occurred, not whether the indi- Space Administration vidual meets the definition of dis- 1251.501 Purpose. ability. The question of whether an in- 1251.502 Application. dividual meets the definition of dis- 1251.503 Definitions. ability under this part should not de- 1251.504–1251.509 [Reserved] mand extensive analysis. 1251.510 Self-evaluation. 1251.511 Notice. [81 FR 3709, Jan. 22, 2016] 1251.512–1251.529 [Reserved] 1251.530 General prohibitions against dis- § 1251.101 Application. crimination. This part applies to each recipient of 1251.531–1251.539 [Reserved] Federal financial assistance from the 1251.540 Employment. 1251.541–1251.548 [Reserved] National Aeronautics and Space Ad- 1251.549 Program accessibility: Discrimina- ministration and to each program or tion prohibited. activity that receives such assistance. 1251.550 Program accessibility: Existing fa- [51 FR 26862, July 28, 1986, as amended at 68 cilities. 1251.551 Program accessibility: New con- FR 51351, Aug. 26, 2003] struction and alterations. 1251.552–1251.559 [Reserved] § 1251.102 Definitions 1251.560 Communications. As used in this part, the term: 1251.561–1251.569 [Reserved] (a) 2004 ADAAG means the Americans 1251.570 Compliance procedures. with Disabilities Act (ADA) Accessi- 1251.571–1251.579 [Reserved] 1251.580 Direct threat. bility Guidelines for Buildings and Fa- 1251.581 Reasonable accommodation. cilities requirements set forth in ap- 1251.582 Illegal use of drugs pendices B and D to 36 CFR part 1191 1251.583–1251.999 [Reserved] (2009). AUTHORITY: Sec. 504 (29 U.S.C. 794) (b) 2010 Standards means the 2010 ADA Standards for Accessible Design, which SOURCE: 51 FR 26862, July 28, 1986, unless consist of the 2004 ADAAG and the re- otherwise noted. quirements contained in 28 CFR 35.151. EDITORIAL NOTE: Nomenclature changes to (c) Applicant for assistance means one part 1251 appear at 81 FR 3709, Jan. 22, 2016. who submits an application, request, or plan required to be approved either by Subpart 1251.1—General a NASA official or by a recipient, as a Provisions condition to becoming a recipient. (d) Associate Administrator means the § 1251.100 Purpose and broad cov- Associate Administrator for Diversity erage. and Equal Opportunity Programs for (a) Purpose. This part effectuates sec- NASA. tion 504 of the Rehabilitation Act of (e) Auxiliary aids and services means 1973, which is designed to eliminate dis- services or devices that enable persons crimination on the basis of disability with sensory, manual, or speech dis- in any program or activity receiving abilities to have an equal opportunity Federal financial assistance. to participate in, and enjoy the bene- (b) Broad scope of coverage. Consistent fits of, programs or activities con- with the Americans with Disabilities ducted by the recipient. Auxiliary aids Act Amendments Act of 2008’s purpose and services include: (ADA Amendments Act) of reinstating (1) Qualified interpreters onsite or a broad scope of protection under the through video remote interpreting ADA and section 504, the definition of (VRI) services; notetakers; real-time

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computer-aided transcription services; vides or otherwise makes available as- written materials; exchange of written sistance in the form of: notes; telephone handset amplifiers; as- (1) Funds; sistive listening devices; assistive lis- (2) Services of Federal personnel; or tening systems; telephones compatible (3) Real and personal property or any with hearing aids; closed caption de- interest in or use of such property, in- coders; open and closed captioning, including: cluding real-time captioning; voice, (i) Transfers or leases of such prop- text, and video-based telecommuni- erty for less than fair market value or cations products and systems, includ- for reduced consideration; and ing text telephones (TTYs), (ii) Proceeds from a subsequent videophones, and captioned telephones, transfer or lease of such property if the or equally effective telecommuni- Federal share of its fair market value cations devices; videotext displays; ac- is not returned to the Federal Govern- cessible electronic and information ment. technology; or other effective methods (k) Illegal use of drugs means the use of making aurally delivered informa- of one or more drugs, the possession or tion available to individuals who are distribution of which is unlawful under deaf or hard of hearing; the Controlled Substances Act (21 (2) Qualified readers; taped texts; U.S.C. 812). The term illegal use of drugs audio recordings; Brailled materials does not include the use of a drug and displays; screen reader software; taken under supervision by a licensed magnification software; optical read- health care professional, or other uses ers; secondary auditory programs authorized by the Controlled Sub- (SAP); large print materials; accessible stances Act or other provisions of Fed- electronic and information technology; eral law. or other effective methods of making visually delivered materials available (l) Individual with a disability means to individuals who are blind or have any individual who has a disability as low vision; defined in 28 CFR part 35. The term (3) Acquisition or modification of ‘‘individual with a disability’’ does not equipment or devices; and include an individual who is currently (4) Other similar services and ac- engaging in the illegal use of drugs, tions. when the recipient acts on the basis of (f) Direct threat means a significant such use. risk to the health or safety of others (m) Program or activity means all of that cannot be eliminated by a change the operations of any entity described to policies, practices or procedures, or in paragraphs (m)(1) through (4) of this by the provision of auxiliary aids or section, any part of which is extended services as provided in § 1251.110 of this Federal financial assistance: part. (1)(i) A department, agency, special (g) Disability means the definition purpose district, or other instrumen- given that term in the Department of tality of a State or of a local govern- Justice’s regulation implementing title ment; or II of the ADA at 28 CFR part 35. (ii) The entity of such State or local (h) Drug means a controlled sub- government that distributes such as- stance as defined in schedules I sistance and each such department or through V of section 202 of the Con- agency (and each other State or local trolled Substances Act (21 U.S.C. 812). government entity) to which the as- (i) Facility means all or any portion sistance is extended, in the case of as- of buildings, structures, equipment, sistance to a State or local govern- roads, walks, parking lots, or other ment; real or personal property or interest in (2)(i) A college, university, or other such property. postsecondary institution, or a public (j) Federal financial assistance means system of higher education; or any grant, loan, contract (other than a (ii) A local educational agency (as de- procurement contract or a contract of fined in 20 U.S.C. 7801), system of voca- insurance or guaranty), or any other tional education, or other school sys- arrangement by which the agency pro- tem;

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(3)(i) An entire corporation, partner- (q) The Act means the Rehabilitation ship, or other private organization, or Act of 1973, Pub. L. 93–112, as amended, an entire sole proprietorship— 29 U.S.C. 794 et seq. (A) If assistance is extended to such [81 FR 3709, Jan. 22, 2016] corporation, partnership, private organization, or sole proprietorship as a § 1251.103 Discrimination prohibited. whole; or (a) General. No qualified individual (B) Which is principally engaged in with a disability shall, on the basis of the business of providing education, disability, be excluded from participa- health care, housing, social services, or tion in, be denied the benefits of, or parks and recreation; or otherwise be subjected to discrimina- (ii) The entire plant or other com- tion under any program or activity parable, geographically separate facil- which receives Federal financial assist- ity to which Federal financial assistance. ance is extended, in the case of any (b) Discriminatory actions prohibited. other corporation, partnership, private (1) A recipient, in providing any aid, organization, or sole proprietorship; or benefits, or services, may not, directly (4) Any other entity which is estab- or through contractual, licensing, or lished by two or more of the entities other arrangements, on the basis of described in paragraph (m)(1), (2), or (3) disability: of this section. (i) Deny a qualified individual with a (n) Qualified individual with a dis- disability the opportunity to partici- ability means: pate in or benefit from the aid, benefit, or service; (1) With respect to any aid, benefit, (ii) Afford a qualified individual with or service, provided under a program or a disability an opportunity to partici- activity subject to this part, an indi- pate in or benefit from aid, benefit, or vidual with a disability who, with or service that is not equal to that af- without reasonable accommodations in forded others; rules policies, or procedures, the re- (iii) Provide a qualified individual moval of architectural, communica- with a disability with an aid, benefit, tion, or transportation barriers, or the or service that is not as effective as provision auxiliary aids or services, that provided to others; meets the essential eligibility require- (iv) Provide different or separate aid, ments for participation in, or receipt benefits, or services to individuals with from, that aid, benefit, or service, and disabilities or to any class of individ- (2) With respect to employment, the uals with disabilities unless such ac- definition given that term in the Equal tion is necessary to provide qualified Employment Opportunity Commis- individuals with disabilities with aid, sion’s regulation at 29 CFR part 1630, benefits, or services that are as effec- implementing Title I of the Americans tive as those provided to others; with Disabilities Act of 1990, which reg- (v) Aid or perpetuate discrimination ulation is made applicable to this part against a qualified individual with a by § 1251.2. disability by providing significant as- (o) Recipient means any state or its sistance to an agency, organization, or political subdivision, any instrumen- person that discriminates on the basis tality of a state or its political subdivi- of disability in providing any aid, benefit, or service to beneficiaries of the sion, any public or private agency, in- recipient’s program or activity; stitution, organization, or other enti- (vi) Deny a qualified individual with ty, or any person to which Federal fi- a disability the opportunity to partici- nancial assistance is extended directly pate as a member of planning or advi- or through another recipient, including sory boards; or any successor, assignee, or transferee (vii) Otherwise limit a qualified indi- of a recipient, but excluding the ulti- vidual with a disability in the enjoy- mate beneficiary of the assistance. ment of any right, privilege, advan- (p) Section 504 means section 504 of tage, or opportunity enjoyed by others the Act. receiving an aid, benefit, or service.

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(2) For purposes of this part, aids, (ii) That have the purpose or effect of benefits, and services, to be equally ef- defeating or substantially impairing fective, are not required to produce the the accomplishment of the objectives identical result or level of achievement of the program or activity with respect for individuals with disabilities and in- to individuals with disabilities. dividuals without disabilities, but must (7) As used in this section, the aid, afford individuals with disabilities benefit, or service provided under a equal opportunity to obtain the same program or activity receiving Federal result, to gain the same benefit, or to financial assistance includes any aid, reach the same level of achievement, in benefit, or service provided in or the most integrated setting appro- through a facility that has been con- priate to the person’s needs. structed, expanded, altered, leased or (3) Recipients shall take appropriate rented, or otherwise acquired, in whole steps to ensure that no individual with or in part, with Federal financial as- disability is denied the benefits of, ex- sistance. cluded from participation in, or other- (8) Recipients shall take appropriate wise subjected to discrimination in any steps to ensure that communications program or activity receiving Federal with their applicants, employees, and financial assistance because of the ab- beneficiaries are available to persons sence of auxiliary aids for individuals with impaired vision and hearing. with impaired sensory, manual, or (c) Aid, benefits, or services limited by speaking skills. Federal law. The exclusion of individ- (4) Despite the existence of separate uals without disabilities from aid, ben- or different aid, benefits, or services efits, or services limited by Federal provided in accordance with this part, statute of Executive order to individ- a recipient may not deny a qualified in- uals with disabilities from aid, bene- dividual with a disability the oppor- fits, or services limited by Federal tunity to participate in such programs statute or Executive order to a dif- or activities that are not separate or ferent class of individuals with disabil- different. ities is not prohibited by this part. (5) A recipient may not, directly or [51 FR 26862, July 28, 1986, as amended at 68 through contractual or other arrange- FR 51351, Aug. 26, 2003] ments, utilize criteria or methods of administration: § 1251.104 Assurances required. (i) That have the effect of subjecting (a) Assurances. An applicant for Fed- qualified individuals with disabilities eral financial assistance to which this to discrimination of the basis of dis- part applies shall submit an assurance, ability; on a form specified by the Associate (ii) That have the purpose or effect of Administrator, that the program or ac- defeating or substantially impairing tivity will be operated in compliance accomplishment of the objectives of with this part. An applicant may incor- the recipient’s program or activity porate these assurances by reference in with respect to individuals with dis- subsequent applications to NASA. abilities; or (b) Duration of obligation. (1) In the (iii) That perpetuate the discrimina- case of Federal financial assistance ex- tion of another recipient if both recipi- tended in the form of real property or ents are subject to common adminis- to provide real property or structures trative control or are agencies of the on the property, the assurance will ob- same State. ligate the recipient or, in the case of a (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 individuals with disabilities from, de- involving the provision of similar serv- nying them the benefits of, or other- ices or benefits. wise subjecting them to discrimination (2) In the case of Federal financial as- under any program or activity that resistance extended to provide personal ceives Federal financial assistance; or property, the assurance will obligate

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the recipient for the period during on the basis of disability in violation of which it retains ownership or posses- section 504 or this part, the recipient sion of the property. shall take such remedial action as the (3) In all other cases, the assurance Associate Administrator deems nec- will obligate the recipient for the pe- essary to overcome the effects to the riod during which Federal financial as- discrimination. sistance is extended. (2) Where a recipient is found to have (c) Covenants. (1) Where Federal fi- discriminated against persons on the nancial assistance is provided in the basis of disability in violation of sec- form of real property or interest in the tion 504 or this part and where another property from NASA, the instrument recipient exercises control over the re- effecting or recording this transfer cipient that has discriminated, the As- shall contain a covenant running with sociate Administrator, where appro- the land to assure nondiscrimination priate, may require either or both re- for the period during which the real cipients to take remedial action. property is used for a purpose for which (3) The Associate Administrator may, the Federal financial assistance is ex- where necessary to overcome the ef- tended or for another purpose involving fects of discrimination in violation of the provision of similar services or section 504 or this part, require a re- benefits. cipient to take remedial action: (2) Where no transfer of property is (i) With respect to individuals with involved but property is purchased or disabilities who are no longer partici- improved with Federal financial assist- pants in the recipient’s program or ac- ance, the recipient shall agree to in- tivity but who were participants in the clude the covenant described in para- program or activity when such dis- graph (c)(3) of this section in the in- crimination occurred; or strument effecting or recording any (ii) With respect to individuals with subsequent transfer of the property. disabilities who would have been par- (3) Where Federal financial assist- ticipants in the program or activity ance is provided in the form of real had the discrimination not occurred; or property or interest in the property (iii) With respect to individuals with from NASA, the covenant shall also in- disabilities presently in the program or clude a condition coupled with a right activity, but not receiving full benefits to be reserved by NASA to revert title or equal and integrated treatment to the property in the event of a breach within the program or activity. of the covenant. If a transferee of real (b) Voluntary action. A recipient may property proposes to mortgage or oth- take steps, in addition to any action erwise encumber the real property as that is required by this part, to over- security for financing construction of come the effects of conditions that renew, or improvement of existing facili- sulted in limited participation in the ties on the property for the purposes recipient’s program or activity by for which the property was transferred, qualified individuals with disabilities. the Associate Administrator may, upon (c) Self-evaluation. (1) A recipient request of the transferee and if nec- shall, within 1 year of the effective essary to accomplish such financing date of this part; or within 1 year of and upon such conditions as he or she first becoming a recipient: deems appropriate, agree to forbear the (i) Evaluate, with the assistance of exercise of such right to revert title for interested persons, including individ- so long as the lien of such mortgage or uals with disabilities or organizations other encumbrance remains effective. representing individuals with disabil- [51 FR 26862, July 28, 1986, as amended at 68 ities, its current policies and practices FR 51351, Aug. 26, 2003; 81 FR 3711, Jan. 22, and the effects thereof that do not or 2016] may not meet the requirements of this part; § 1251.105 Remedial action, voluntary (ii) Modify, after consultation with action, and self-evaluation. interested persons, including individ- (a) Remedial action. (1) If the Asso- uals with disabilities or organizations ciate Administrator finds that a recipi- representing individuals with disabil- ent has discriminated against persons ities, any policies and practices that do

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not meet the requirements of this part; collective bargaining or professional and agreements with the recipient that it (iii) Take, after consultation with in- does not discriminate on the basis of terested persons, including individuals disability in violation of section 504 with disabilities or organizations rep- and this part. The notification shall resenting individuals with disabilities, state, where appropriate, that the re- appropriate remedial steps to elimi- cipient does not discriminate in admis- nate the effects of any discrimination sion or access to, or treatment or em- that resulted from adherence to these ployment in, its programs or activities. policies and practices. The notification shall also include an (2) A recipient that employs 15 or identification of the responsible em- more persons shall, for at least 3 years, ployee designated pursuant to follow completion of the evaluation re- § 1251.106(a). A recipient shall make the quired under paragraph (c)(1) of this initial notification required by this section, maintain on file, make avail- paragraph within 90 days of the effec- able for public inspection, and provide tive date of this part. Methods of ini- to the Associate Administrator upon tial and continuing notification may request: include the posting of notices, trans- (i) A list of the interested persons mission via electronic mail or text consulted; message, publication on the recipient’s (ii) A description of areas examined internet Web site, or in newspapers and and any problems identified; and magazines, placement of notices in re- (iii) A description of any modifica- cipient’s publication, and distribution tions made and of any remedial steps of memoranda or other written com- taken. munications. [51 FR 26862, July 28, 1986, as amended at 68 (b) If a recipient publishes or uses re- FR 51351, Aug. 26, 2003; 81 FR 3711, Jan. 22, cruitment materials or publications 2016] containing general information that it makes available to participants, bene- § 1251.106 Designation of responsible ficiaries, applicants, or employees, it employee and adoption of grievance shall include in those materials or pub- procedures. lications a statement of the policy de- (a) Designation of responsible employee. scribed in paragraph (a) of this section. A recipient that employs 15 or more A recipient may meet the requirement persons shall designate at least one of this section and this paragraph ei- person to coordinate its efforts to com- ther by including appropriate inserts in ply with this part. existing materials and publications or (b) Adoption of grievance procedures. A by revising and reprinting the mate- recipient that employs 15 or more per- rials and publications. sons shall adopt grievance procedures that incorporate appropriate due proc- [51 FR 26862, July 28, 1986, as amended at 68 ess standards and that provide for the FR 51351, Aug. 26, 2003; 81 FR 3711, Jan. 22, 2016] prompt and equitable resolution of complaints alleging any action prohib- § 1251.108 Administrative require- ited by this part. Such procedures need ments for small recipients. not to be established with respect to complaints from applicants for employ- The Associate Administrator may re- ment or from applicants for admission quire any recipient with fewer than 15 to postsecondary educational institu- employees, or any class of such recipi- tions. ents, to comply with §§ 1251.106 and 1251.107, in whole or in part, when the § 1251.107 Notice. Associate Administrator finds a viola- (a) A recipient that employs 15 or tion of this part or finds that such more persons shall take appropriate compliance will not significantly im- initial and continuing steps to notify pair the ability of the recipient or class participants, beneficiaries, applicants, of recipients to provide benefits or and employees, including those with vi- services. sion or hearing disabilities, and unions [51 FR 26862, July 28, 1986, as amended at 81 or professional organizations holding FR 3711, Jan. 22, 2016]

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§ 1251.109 Effect of State or local law § 1251.112 Communications. or other requirements and effect of employment opportunities. (a) A recipient shall take appropriate steps to ensure that communications (a) The obligation to comply with with applicants, participants, bene- this part is not obviated or alleviated ficiaries, members of the public, and by the existence of any state or local companions with disabilities, are as ef- law or other requirement that, on the fective as communications with others. basis of disability, imposes prohibi- (b)(1) A recipient shall furnish appro- tions or limits upon the eligibility of priate auxiliary aids or services where qualified individuals with disabilities necessary to afford qualified individ- to receive services or to practice any uals with disabilities, including appli- occupation or profession. cants, participants, beneficiaries, and (b) The obligation to comply with members of the public, an equal oppor- this part is not obviated or alleviated tunity to participate in, and enjoy the because employment opportunities in benefits of, a program or activity of any occupation or profession are or the recipient. may be more limited for individuals (i) In determining what type of auxil- with disabilities than for individuals iary aid or service is necessary, the re- without disabilities. cipient shall give primary consideration to the requests of the individual § 1251.110 Direct threat. with a disability. (a) This part does not require a re- (ii) The recipient need not provide in- cipient to permit an individual to par- dividually prescribed devices, readers ticipate in or benefit from the services, for personal use or study, or other de- programs, or activities of that recipi- vices of a personal nature. ent when that individual poses a direct (2) Where the recipient commu- threat to the health or safety of others. nicates with applicants and bene- (b) In determining whether an indi- ficiaries by telephone, telecommuni- vidual poses a direct threat to the cation devices for deaf persons (TTY’s) health or safety of others, a recipient or equally effective telecommunication must make an individualized assess- systems shall be used to communicate ment, based on reasonable judgment with persons who are deaf or hard of that relies on current medical knowl- hearing or have speech impairments. edge or on the best available objective (c) This section does not require the evidence, to ascertain: The nature, du- recipient to take any action that it can ration, and severity of the risk; the demonstrate would result in a funda- probability that the potential injury mental alteration in the nature of a will actually occur; and whether rea- program or activity or in undue finan- sonable accommodations in policies, cial and administrative burdens. In practices, or procedures or the provi- those circumstances where the recipi- sion of auxiliary aids or services will ent believes that the proposed action mitigate the risk. would fundamentally alter the program [81 FR 3711, Jan. 22, 2016] or activity or would result in undue financial and administrative burdens, § 1251.111 Reasonable accommodation. the recipient has the burden of proving that compliance with § 1251.112 would A recipient shall make reasonable ac- result in such alteration or burdens. commodations in policies, practices, or The decision that compliance would re- procedures when such accommodations sult in such alteration or burdens must are necessary to avoid discrimination be made by the chief executive officer on the basis of disability, unless the re- of the recipient or his or her designee cipient can demonstrate that making after considering all of the recipient’s the accommodations would fundamen- resources available for use in the fund- tally alter the nature of the service, ing and operation of the conducted pro- program, or activity or result in an gram or activity and must be accom- undue financial and administrative panied by a written statement of the burden. reasons for reaching that conclusion. If [81 FR 3711, Jan. 22, 2016] an action required to comply with this

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section would result in such an alter- Subpart 1251.2—Employment ation or such burdens, the recipient Practices shall take any other action that would not result in such an alteration or such § 1251.200 Discrimination prohibited. burdens but would nevertheless ensure (a) General. No qualified individual that, to the maximum extent possible, shall, on the basis of disability, be sub- individuals with disabilities receive the jected to discrimination in employ- benefits and services of the program or ment under any program or activity to activity. which this part applies. [81 FR 3711, Jan. 22, 2016] (b) Employment discrimination standards. The standards used to determine § 1251.113 Illegal Use of Drugs whether paragraph (a) of this section (a) General. (1) Except as provided in has been violated shall be the stand- paragraph (b) of this section, this part ards applied under Title I of the Ameri- does not prohibit discrimination cans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and, as such sec- against an individual based on that in- tions relate to employment, the provi- dividual’s current illegal use of drugs. sions of sections 501 through 504 and 510 (2) A recipient shall not discriminate of the Americans with Disabilities Act on the basis of illegal use of drugs of 1990 (42 U.S.C. 12201–12204 and 12210), against an individual who is not engag- as amended by the ADA Amendments ing in current illegal use of drugs and Act of 2008 (Pub. L. 110–325), as such who— standards are implemented in the (i) Has successfully completed a su- Equal Employment Opportunity Com- pervised drug rehabilitation program mission’s regulation at 29 CFR part or has otherwise been rehabilitated 1630. The procedures to be used to de- successfully; termine whether paragraph (a) of this (ii) Is participating in a supervised section has been violated shall be the rehabilitation program; or procedures set forth in § 1251.400 of this (iii) Is erroneously regarded as engag- part. ing in such use. [81 FR 3712, Jan. 22, 2016] (b) Health and drug rehabilitation services. (1) A recipient shall not deny § 1251.201 Reasonable accommodation. health services, or services provided in (a) A recipient shall make reasonable connection with drug rehabilitation, to accommodation to the known physical an individual on the basis of that indi- or mental limitations of an otherwise vidual’s current illegal use of drugs, if qualified applicant or employee with the individual is otherwise entitled to disabilities unless the recipient can such services. demonstrate that the accommodation (2) A drug rehabilitation or treat- would impose an undue hardship on the ment program may deny participation operation of its program or activity. to individuals who engage in illegal use (b) Reasonable accommodation may of drugs while they are in the program. include: (c) Drug testing. (1) This part does not (1) Making facilities used by employ- prohibit a recipient from adopting or ees readily accessible to and usable by administering reasonable policies or individuals with disabilities; and procedures, including but not limited (2) Job restructuring, part-time or to drug testing, designed to ensure that modified work schedules, acquisition an individual who formerly engaged in or modification of equipment or de- the illegal use of drugs is not now en- vices, the provision of readers or inter- gaging in current illegal use of drugs. preters, and other similar actions. (2) Nothing in this paragraph (c) shall (c) In determining pursuant to para- be construed to encourage, prohibit, re- graph (a) of this section whether an ac- strict, or authorize the conduct of test- commodation would impose an undue ing for the illegal use of drugs. hardship on the operation of a recipient’s programor activity, factors to be [81 FR 3711, Jan. 22, 2016] considered include:

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(1) The overall size of the recipient’s medical examination or may not make program or activity with respect to preemployment inquiry of an applicant number of employees, number and type as to whether the applicant is a indi- of facilities, and size of budget; vidual with a disabilityor as to the na- (2) The type of the recipient’s oper- ture or severity of a disability. A re- ation, including the composition and cipient may, however, make pre- structure of the recipient’s workforce; employment inquiry into an appli- and cant’s ability to perform job-related (3) The nature and cost of the accom- functions. modation needed. (b) When a recipient is taking reme- (d) A recipient may not deny any em- dial action to correct the effects of ployment opportunity to a qualified past discrimination pursuant to applicant or employee with a disability § 1251.105(a), when a recipient is taking if the basis for the denial is the need to voluntary action to overcome the ef- make reasonable accommodation to fects of conditions that resulted in lim- the physical or mental limitations of ited participation in its Federally as- the employee or applicant. sisted program or activity pursuant to § 1251.105(b), or when a recipient is tak- [51 FR 26862, July 28, 1986, as amended at 68 FR 51351, Aug. 26, 2003] ing affirmative action pursuant to section 504 of the Act, the recipient may § 1251.202 Employment criteria. invite applicants for employment to indicate whether and to what extent they (a) A recipient may not make use of are handicapped, provided that: any employment test or other selection (1) The recipient states clearly on criterion that screens out or tends to any written questionnaire used for this screen out individuals with disabilities purpose or makes clear orally if no or any class of individuals with disabil- written questionnaire is used that the ities unless: information requested is intended for (1) The test score or other selection use solely in connection with its reme- criterion, as used by the recipient, is dial action obligations or its voluntary shown to be job-related for the position of affirmative action efforts; and in question; and (2) The recipient states clearly that (2) Alternative job-related tests of the information is being requested on a criteria that do not screen out or tend voluntary basis, that it will be kept to screen out as many individuals with confidential as provided in paragraph disabilities are not shown by the Asso- (d) of this section, that refusal to pro- ciate Administrator to be available. vide it will not subject the applicant or (b) A recipient shall select and ad- employee to any adverse treatment, minister tests concerning employment and that it will be used only in accord- so as best to ensure that, when admin- ance with this part. istered to an applicant or employee (c) Nothing in this section shall pro- who has a disability that impairs sen- hibit a recipient from conditioning an sory, manual, or speaking skills, the offer of employment on the results of a test results accurately reflect the ap- medical examination conducted prior plicant’s or employee’s job skills, apti- to the employee’s entrance on duty, tude, or whatever other factor the test provided that: purports to measure, rather than re- (1) All entering employees are sub- flecting the applicant’s or employee’s jected to such an examination regard- impaired sensory, manual, or speaking less of disability; and skills (except where those skills are (2) The results of such an examina- the factors that the test purports to tion are used only in accordance with measure). the requirements of this part. [51 FR 26862, July 28, 1986, as amended at 81 (d) Information obtained in accord- FR 3712, Jan. 22, 2016] ance with this section as to the medical condition or history of the appli- § 1251.203 Preemployment inquiries. cant shall be collected and maintained (a) Except as provided in paragraphs on separate forms that shall be ac- (b) and (c) of this section, a recipient corded confidentiality as medical may not conduct a preemployment records, except that:

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(1) Supervisors and managers may be ment of paragraph (a) of this section, a informed regarding restrictions on the recipient shall give priority to those work or duties of individuals with dis- methods that serve to individuals with abilities and regarding necessary ac- disabilities in the most integrated set- commodations; ting appropriate. (2) First aid and safety personnel (c) Time period. A recipient shall com- may be informed, where appropriate, if ply with the requirement of paragraph the condition might require emergency (a) of this section within 60 days of the treatment; and effective date of this part except that (3) Government officials inves- where structural changes in facilities tigating compliance with the Act shall are necessary, such changes shall be be provided relevant information upon made within 3 years of the effective request. date of this part, but in any event as expeditiously as possible. Subpart 1251.3—Accessibility (d) Transition plan. In the event that structural changes to facilities are nec- § 1251.300 Discrimination prohibited. essary to meet the requirement of No qualified individual with a dis- paragraph (a) of this section, a recipi- ability shall, because a recipient’s fa- ent shall develop, within 6 months of cilities are inaccessible to or unusable the effective date of this part, a transi- by individuals with disabilities, be de- tion plan setting forth the steps nec- nied the benefits of, be excluded from essary to complete such changes. The participation in, or otherwise be sub- plan shall be developed with the assist- jected to discrimination under any pro- ance of interested persons, including gram or activity to which this part ap- individuals with disabilities or organi- plies. zations representing individuals with § 1251.301 Existing facilities. disabilities. A copy of the transition plan shall be made available for public (a) Accessibility. A recipient shall op- inspection. The plan shall, at a min- erate each program or activity to imum: which his part applies so that when (1) Identify physical obstacles in the each part is viewed in its entirety it is recipient’s facilities that limit the ac- readily accessible to individuals with disabilities. This paragraph does not cessibility of its program or activity to require a recipient to make each of its individuals with disabilities; existing facilities or every part of a fa- (2) Describe in detail the methods cility accessible to and usable by indi- that will be used to make the facilities viduals with disabilities. accessible; (b) Methods. A recipient may comply (3) Specify the schedule for taking with the requirement of paragraph (a) the steps necessary to achieve full ac- of this section through such means as cessibility under paragraph (a) of this redesign of equipment; reassignment of section and, if the time period of the classes or other services to accessible transition plan is longer than 1 year, buildings; assignment of aides to bene- identify steps that will be taken during ficiaries; home visits; delivery of each year of the transition period; and health, welfare, or other social services (4) Indicate the person responsible for at alternate accessible sites; alteration implementation of the plan. of existing facilities and construction (e) Safe harbor. For the purposes of of new facilities in conformance with complying with this section, elements the requirements of § 1251.302; or any that have not been altered in existing other methods that result in making facilities on or after January 23, 2017, its program or activity accessible to and that comply with the cor- individuals with disabilities. A recipi- responding technical and scoping speci- ent is not required to make structural fications for those elements in the Uni- changes in existing facilities where form Federal Accessibility Standards other methods are effective in achiev- (UFAS), Appendix A to 41 CFR part ing compliance with paragraph (a) of 101–19.6, 49 FR 31528, app. A (Aug. 7, this section. In choosing among avail- 1984), are not required to be modified to able methods for meeting the require- be brought into compliance with the

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requirements set forth in the 2010 Standards shall comply with the re- Standards. quirements for a ‘‘public building or fa- (f) Notice of location of accessible facili- cility’’ as defined in the 2010 Standards ties—(1) General. The recipient shall regardless of whether the recipient is a adopt and implement procedures to en- public or private entity. sure that interested individuals, in- (iv) Departures from particular re- cluding individuals with vision or hear- quirements of either standard by the ing disabilities, can obtain information use of other methods shall be per- as to the existence and location of mitted when it is clearly evident that services, activities, and facilities that equivalent access to the facility or part are accessible to and usable by individ- of the facility is thereby provided. uals with disabilities. (2) Compliance dates—(i) New Construc- (2) Signs at primary entrances. The re- tion and alterations by recipients that are cipient shall provide signs at a primary private entities. (A) New construction entrance to each of its inaccessible fa- and alterations in which the last appli- cilities, directing users to an accessible cation for a building permit or permit facility or a location at which they can obtain information about accessible fa- extension for such construction or al- cilities. The international symbol for terations is certified to be complete by accessibility shall be used at each ac- a state, county, or local government cessible entrance to a facility. (or, in those jurisdictions where the government does not certify comple- [51 FR 26862, July 28, 1986, as amended at 68 tion of applications, if the date when FR 51351, Aug. 26, 2003; 81 FR 3712, Jan. 22, the last application for a building per- 2016] mit or permit extension is received by § 1251.302 New construction. the state, county, or local government) is prior to January 23, 2017, or if no per- (a) Design and construction. Each fa- mit is required, if the start of physical cility or part of a facility constructed construction or alterations occurs by, on behalf of, or for the use of a re- prior to January 23, 2017, then such new cipient shall be designed and con- construction and alterations must structed in such manner that the facil- comply with either the Uniform Fed- ity or part of the facility is readily ac- eral Accessibility Standards or the 2010 cessible to and usable by individuals Standards. with disabilities. (b) Alteration. Each facility or part of (B) New construction and alterations a facility which is altered by, on behalf in which the last application for a of, or for the use of a recipient after building permit or permit extension for the effective date of this part in a man- such construction or alterations is cer- ner that affects or could affect the tified to be complete by a state, coun- usability of the facility or part of the ty, or local government (or, in those facility shall, to the maximum extent jurisdictions where the government feasible, be altered in such manner does not certify completion of applica- that the altered portion of the facility tions, if the date when the last applica- is readily accessible to and usable by tion for a building permit or permit ex- individuals with disabilities. tension is received by the state, coun- (c) Accessibility standards and compli- ty, or local government) is on or after ance dates—(1) Applicable accessibility January 23, 2017, or if no permit is re- standards. (i) New construction and al- quired, if the start of physical con- terations undertaken prior to the com- struction or alterations occurs on or pliance dates specified in paragraph after January 23, 2017, then such new (c)(2) of this section must comply with construction and alterations shall com- either UFAS or the 2010 Standards. ply with the 2010 Standards. (ii) New construction and alterations (ii) New construction and alterations on or after the compliance dates speci- by recipients that are public entities. fied in paragraph (c)(2) of this section (A) If physical construction or alter- must comply with the 2010 Standards. ations commence prior to January 23, (iii) New construction and alter- 2017, then such new construction and ations of buildings or facilities under- alterations must comply with either taken in compliance with the 2010 UFAS or the 2010 Standards.

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(C) If physical construction or alter- (3) For the purposes of this section, ations commence on or after January ceremonial groundbreaking or razing 23, 2017, then such new construction of structures prior to site preparation and alterations shall comply with the will not be considered to commence or 2010 Standards. start physical construction or alterations.

TABLE OF APPLICABLE STANDARDS FOR COMPLYING WITH 14 CFR 1251.302(C)

Compliance dates for new Applicable standards for complying construction and alterations with 14 CFR 1251.302(c)

Prior to January 23, 2017 ...... UFAS or the scoping and technical requirements for a ‘‘public building or facility’’ in the 2010 Standards. On or after January 23, 2017 ... Scoping and technical requirements for a ‘‘public building or facility’’ in the 2010 Standards.

(4)[Reserved] Subpart 1251.5—Enforcement of (5) For purposes of this section, sec- Nondiscrimination on the tion 4.1.6(1)(g) of UFAS shall be inter- Basis of Disability in Programs preted to exempt from the require- or Activities Conducted by ments of UFAS only mechanical rooms and other spaces that, because of their the National Aeronautics and intended use, will not require accessi- Space Administration bility to the public or beneficiaries or result in the employment or residence SOURCE: 53 FR 25882, 25885, July 8, 1988, un- therein of persons with physical dis- less otherwise noted. abilities. § 1251.501 Purpose. (6) This section does not require recipients to make building alterations The purpose of this regulation is to that have little likelihood of being ac- effectuate section 119 of the Rehabili- complished without removing or alter- tation, Comprehensive Services, and ing a load-bearing structural member. Developmental Disabilities Amend- ments of 1978, which amended section [51 FR 26862, July 28, 1986, as amended at 55 504 of the Rehabilitation Act of 1973 to FR 52138, 52140, Dec. 19, 1990; 81 FR 3712, Jan. prohibit discrimination on the basis of 22, 2016] disability in programs or activities conducted by Executive agencies or the Subpart 1251.4—Procedures United States Postal Service.

§ 1251.400 Compliance Procedures. § 1251.502 Application. (a) The investigative, compliance, This regulation (§§ 1251.501–1251.570) and enforcement procedural provisions applies to all programs or activities of Title VI of the Civil Rights Act of conducted by the agency, except for 1964 (42 U.S.C. 2000d) are hereby adopt- programs or activities conducted out- ed and apply to this section 504 regula- side the United States that do not in- tion. These procedures are found at volve individuals with disabilities in §§ 1250.105 through 1250.110 of this chap- the United States. ter. (b) The Agency shall ensure that § 1251.503 Definitions. complaints alleging violations of sec- As used in this part, the term: tion 504 with respect to employment (a) Assistant Attorney General means are processed according to the proce- the Assistant Attorney General, Civil dures established by the EEOC in 29 Rights Division, United States Depart- CFR part 1640 and the United States ment of Justice. DOJ at 28 CFR part 37. (b) Auxiliary aids and services means [81 FR 3713, Jan. 22, 2016] services or devices that enable persons with sensory, manual, or speech disabilities to have an equal opportunity

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to participate in, and enjoy the bene- by the provision of auxiliary aids or fits of, programs or activities con- services as provided in § 1251.110 of this ducted by the agency. Auxiliary aids part. and services include: (e) Disability means the definition (1) Qualified interpreters onsite or given that term in the Department of through Video Remote Interpreting Justice’s regulation implementing title (VRI) services; notetakers; real-time II of the ADA at 28 CFR part 35. computer-aided transcription services; (f) Drug means a controlled substance written materials; exchange of written as defined in schedules I through V of notes; telephone handset amplifiers; as- section 202 of the Controlled Sub- sistive listening devices; assistive lis- stances Act (21 U.S.C. 812). tening systems; telephones compatible (g) Facility means all or any portion with hearing aids; closed caption de- of buildings, structures, equipment, coders; open and closed captioning, in- roads, walks, parking lots, rolling cluding real-time captioning; voice, stock or other conveyances, or other text, and video-based telecommuni- real or personal property. cations products and systems, includ- (h) Historic preservation programs ing text telephones (TTYs), videophones, and captioned telephones, means programs conducted by the or equally effective telecommuni- agency that have preservation of his- cations devices; videotext displays; ac- toric properties as a primary purpose. cessible electronic and information (i) Historic properties means those technology; or other effective methods properties that are listed or eligible for of making aurally delivered informa- listing in the National Register of His- tion available to individuals who are toric Places or properties designated as deaf or hard of hearing; historic under a statute of the appro- (2) Qualified readers; taped texts; priate state or local government body. audio recordings; Brailled materials (j) Illegal use of drugs means the use and displays; screen reader software; of one or more drugs, the possession or magnification software; optical read- distribution of which is unlawful under ers; secondary auditory programs the Controlled Substances Act (21 (SAP); large print materials; accessible U.S.C. 812). The term ‘‘illegal use of electronic and information technology; drugs’’ does not include the use of a or other effective methods of making drug taken under supervision by a li- visually delivered materials available censed health care professional, or to individuals who are blind or have other uses authorized by the Controlled low vision; Substances Act or other provisions of (3) Acquisition or modification of Federal law. equipment or devices; and (k) Individual with a disability means (4) Other similar services and ac- any person who meets the definition of tions. ‘‘disability’’ under 28 CFR part 35. (c) Complete complaint means a writ- (l) Qualified individual with a dis- ten statement that contains the com- ability means any person who meets plainant’s name and address and de- the definition of ‘‘qualified individual scribes the agency’s alleged discrimi- with a disability’’ under § 1251.102(i) of natory action in sufficient detail to in- this part. form the agency of the nature and date (m) Section 504 means section 504 of of the alleged violation of section 504. the Rehabilitation Act of 1973 (Pub. L. It shall be signed by the complainant 93–112, 87 Stat. 394 (29 U.S.C. 794)), as or by someone authorized to do so on amended. his or her behalf. Complaints filed on behalf of classes or third parties shall [81 FR 3713, Jan. 22, 2016] describe or identify (by name, if possible) the alleged victims of discrimi- §§ 1251.504–1251.509 [Reserved] nation. (d) Direct threat means a significant § 1251.510 Self-evaluation. risk to the health or safety of others (a) The agency shall, by September 6, that cannot be eliminated by a change 1989, evaluate its current policies and to policies, practices or procedures, or practices, and the effects thereof, that

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do not or may not meet the require- pate in or benefit from the aid, benefit, ments of this regulation and, to the ex- or service that is not equal to that af- tent modification of any such policies forded others; and practices is required, the agency (iii) Provide a qualified individual shall proceed to make the necessary with disabilities with an aid, benefit, modifications. or 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 disabilities or or- or to reach the same level of achieve- ganizations representing individuals ment as that provided to others; with disabilities, to participate in the (iv) Provide different or separate aid, self-evaluation process by submitting benefits, or services to individuals with comments (both oral and written). disabilities or to any class of individ- (c) The agency shall, for at least uals with disabilities than is provided three years following completion of the to others unless such action is nec- self-evaluation, maintain on file and essary to provide qualified individuals make available for public inspection: with disabilities with aid, benefits, or (1) A description of areas examined services that are as effective as those and any problems identified; and provided to others; (2) A description of any modifications (v) Deny a qualified individual with made. disabilities the opportunity to participate 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 disabilities 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 qualities conducted by the agency, and fied individual with disabilities 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 § 1251.530 General prohibitions administration the purpose or effect of against discrimination. which would— (a) No qualified individual with dis- (i) Subject qualified individuals with abilities shall, on the basis of dis- disabilities to discrimination on the ability, be excluded from participation basis of disability; or in, be denied the benefits of, or other- (ii) Defeat or substantially impair ac- wise be subjected to discrimination complishment of the objectives of a under any program or activity con- program or activity with respect to in- ducted by the agency. dividuals with disabilities. (b)(1) The agency, in providing any (4) The agency may not, in deter- aid, benefit, or service, may not, di- mining the site or location of a facil- rectly or through contractual, licens- ity, make selections the purpose or ef- ing, or other arrangements, on the fect of which would— basis of disability— (i) Exclude individuals with disabil- (i) Deny a qualified individual with ities from, deny them the benefits of, disabilities the opportunity to partici- or otherwise subject them to discrimi- pate in or benefit from the aid, benefit, nation under any program or activity or service; conducted by the agency; or (ii) Afford a qualified individual with (ii) Defeat or substantially impair disabilities an opportunity to partici- the accomplishment of the objectives

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of a program or activity with respect standards are implemented in the to individuals with disabilities. Equal Employment Opportunity Com- (5) The agency, in the selection of mission’s regulation at 29 CFR part procurement contractors, may not use 1630, as amended. criteria that subject qualified individ- [81 FR 3713, Jan. 22, 2016] uals with disabilities to discrimination on the basis of disability. §§ 1251.541–1251.548 [Reserved] (6) The agency may not administer a licensing or certification program in a § 1251.549 Program accessibility: Dis- manner that subjects qualified individ- crimination prohibited. uals with disabilities to discrimination Except as otherwise provided in on the basis of disability, nor may the § 1251.550, no qualified individual with agency establish requirements for the disabilities shall, because the agency’s programs or activities of licensees or facilities are inaccessible to or unus- certified entities that subject qualified able by individuals with disabilities, be individuals with disabilities to dis- denied the benefits of, be excluded from crimination on the basis of disability. participation in, or otherwise be sub- However, the programs or activities of jected to discrimination under any pro- entities that are licensed or certified gram or activity conducted by the by the agency are not, themselves, cov- agency. ered by this regulation. (c) The exclusion of individuals with- § 1251.550 Program accessibility: Exist- out disabilities from the benefits of a ing facilities. program limited by Federal statute or (a) General. The agency shall operate Executive order to individuals with dis- each program or activity so that the abilities or the exclusion of a specific program or activity, when viewed in its class of individuals with disabilities entirety, is readily accessible to and from a program limited by Federal usable by individuals with disabilities. statute or Executive order to a dif- This paragraph does not— ferent class of individuals with disabil- (1) Necessarily require the agency to ities is not prohibited by this regula- make each of its existing facilities action. cessible to and usable by individuals (d) The agency shall administer pro- with disabilities; grams and activities in the most inte- (2) In the case of historic preserva- grated setting appropriate to the needs tion programs, require the Agency to of qualified individuals with disabil- take any action that would threaten or ities. destroy the historic significance of historic properties. §§ 1251.531–1251.539 [Reserved] (3) Require the agency to take any action that it can demonstrate would § 1251.540 Employment. result in a fundamental alteration in (a) General. No qualified individual the nature of a program or activity or shall, on the basis of disability, be sub- in undue financial and administrative jected to discrimination in employ- burdens. In those circumstances where ment under any program or activity to agency personnel believe that the pro- which this part applies. posed action would fundamentally (b) Employment discrimination stand- alter the program or activity or would ards. The standards used to determine result in undue financial and adminis- whether paragraph (a) of this section trative burdens, the agency has the has been violated shall be the stand- burden of proving that compliance with ards applied under Title I of the Ameri- § 1251.550(a) would result in such alter- cans with Disabilities Act of 1990 (42 ation or burdens. The decision that U.S.C. 12,111 et seq.) and, as such sec- compliance would result in such alter- tions relate to employment, the provi- ation or burdens must be made by the sions of sections 501 through 504 and 510 agency head or his or her designee of the Americans with Disabilities Act after considering all agency resources of 1990 (42 U.S.C. 12201–12204 and 12210), available for use in the funding and op- as amended by the ADA Amendments eration of the conducted program or Act of 2008 (Pub. L. 110–325), as such activity, and must be accompanied by

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a written statement of the reasons for that cannot otherwise be made acces- reaching that conclusion. If an action sible; or would result in such an alteration or (iii) Adopting other innovative meth- such burdens, the agency shall take ods. any other action that would not result (c) Time period for compliance. The in such an alteration or such burdens agency shall comply with the obliga- but would nevertheless ensure that in- tions established under this section by dividuals with disabilities receive the November 7, 1988, except that where benefits and services of the program or structural changes in facilities are un- activity. dertaken, such changes shall be made (b) Methods—(1) General. The agency by September 6, 1991, but in any event may comply with the requirements of as expeditiously as possible. this section through such means as re- (d) Transition plan. In the event that design of equipment, reassignment of structural changes to facilities will be services to accessible buildings, assign- undertaken to achieve program acces- ment of aides to beneficiaries, home sibility, the agency shall develop, by visits, delivery of services at alternate March 6, 1989, a transition plan setting accessible sites, alteration of existing facilities and construction of new fa- forth the steps necessary to complete cilities, use of accessible rolling stock, such changes. The agency shall provide or any other methods that result in an opportunity to interested persons, making its programs or activities read- including individuals with disabilities ily accessible to and usable by individ- or organizations representing individuals with disabilities. The agency is uals with disabilities, to participate in not required to make structural the development of the transition plan changes in existing facilities where by submitting comments (both oral other methods are effective in achiev- and written). A copy of the transition ing compliance with this section. The plan shall be made available for public agency, in making alterations to exist- inspection. The plan shall, at a mining buildings, shall meet accessibility imum— requirements to the extent compelled (1) Identify physical obstacles in the by the Architectural Barriers Act of agency’s facilities that limit the acces- 1968, as amended (42 U.S.C. 4151–4157), sibility of its programs or activities to and any regulations implementing it. individuals with disabilities; In choosing among available methods (2) Describe in detail the methods for meeting the requirements of this that will be used to make the facilities section, the agency shall give priority accessible; to those methods that offer programs (3) Specify the schedule for taking and activities to qualified individuals the steps necessary to achieve compli- with disabilities in the most integrated ance with this section and, if the time setting appropriate. period of the transition plan is longer (2) Historic preservation programs. In than one year, identify steps that will meeting the requirements of be taken during each year of the tran- § 1251.550(a) in historic preservation sition period; and 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 disabilities. In cases where a physical alteration to [53 FR 25882, 25885, July 8, 1988, as amended an historic property is not required be- at 81 FR 3713, Jan. 22, 2016] cause of § 1251.550(a)(2) or (3), alternative methods of achieving program § 1251.551 Program accessibility: New accessibility include— construction and alterations. (i) Using audio-visual materials and Each building or part of a building devices to depict those portions of an that is constructed or altered by, on historic property that cannot other- behalf of, or for the use of the agency wise be made accessible; shall be designed, constructed, or al- (ii) Assigning persons to guide indi- tered so as to be readily accessible to viduals with disabilities into or and usable by individuals with disabil- through portions of historic properties ities. The definitions, requirements,

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and standards of the Architectural Bar- would fundamentally alter the program riers Act (42 U.S.C. 4151–4157), as estab- or activity or would result in undue fi- lished in 41 CFR part 102–76, subpart C, nancial and administrative burdens, apply to buildings covered by this sec- the agency has the burden of proving tion. that compliance with § 1251.560 would [81 FR 3714, Jan. 22, 2016] result in such alteration or burdens. The decision that compliance would re- §§ 1251.552–1251.559 [Reserved] sult in such alteration or burdens must be made by the agency head or his or § 1251.560 Communications. her designee after considering all agen- (a) The agency shall take appropriate cy resources available for use in the steps to ensure effective communica- funding and operation of the conducted tion with applicants, participants, per- program or activity and must be ac- sonnel of other Federal entities, and companied by a written statement of members of the public. the reasons for reaching that conclu- (1) The agency shall furnish appro- sion. If an action required to comply priate auxiliary aids where necessary with this section would result in such to afford an individual with disabilities an alteration or such burdens, the an equal opportunity to participate in, agency shall take any other action and enjoy the benefits of, a program or that would not result in such an alter- activity conducted by the agency. ation or such burdens but would never- (i) In determining what type of auxil- theless ensure that, to the maximum iary aid is necessary, the agency shall extent possible, individuals with dis- give primary consideration to the re- abilities receive the benefits and serv- quests of the individual with disabil- ices of the program or activity. ities. (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 disability 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. (b) The agency shall ensure that in- 504 of the Rehabilitation Act with re- terested persons, including persons spect to employment according to the with impaired vision or hearing, can procedures established by the Equal obtain information as to the existence Employment Opportunity Commission and location of accessible services, ac- in 29 CFR part 1640 pursuant to section tivities, and facilities. 501 of the Rehabilitation Act of 1973 (29 (c) The agency shall provide signage U.S.C. 791). at a primary entrance to each of its in- (c) The Associate Administrator for accessible facilities, directing users to Diversity and Equal Opportunity shall a location at which they can obtain in- be responsible for coordinating imple- formation about accessible facilities. mentation of this section. Complaints The international symbol for accessi- may be sent to the Office of Diversity bility shall be used at each primary en- and Equal Opportunity, NASA Head- trance of an accessible facility. quarters, 300 E Street SW., Wash- (d) This section does not require the ington, DC 20546. agency to take any action that it can (d) The agency shall accept and in- demonstrate would result in a funda- vestigate all complete complaints for mental alteration in the nature of a which it has jurisdiction. All complete program or activity or in undue finan- complaints must be filed within 180 cial and administrative burdens. In days of the alleged act of discrimina- those circumstances where agency per- tion. The agency may extend this time sonnel believe that the proposed action period for good cause.

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(e) If the agency receives a complaint §§ 1251.571–1251.579 [Reserved] over which it does not have jurisdiction, it shall promptly notify the com- § 1251.580 Direct threat. plainant and shall make reasonable ef- (a) This part does not require the forts to refer the complaint to the ap- Agency to permit an individual to par- propriate Government entity. ticipate in or benefit from the services, (f) The agency shall notify the Archi- programs, or activities of that recipi- tectural and Transportation Barriers ent when that individual poses a direct Compliance Board upon receipt of any threat to the health or safety of others. complaint alleging that a building or (b) In determining whether an indi- facility that is subject to the Architec- vidual poses a direct threat to the tural Barriers Act of 1968, as amended health or safety of others, the Agency (42 U.S.C. 4151–4157), is not readily ac- must make an individualized assess- cessible to and usable by individuals ment, based on reasonable judgment with disabilities. that relies on current medical knowl- (g) Within 180 days of the receipt of a edge or on the best available objective complete complaint for which it has ju- evidence, to ascertain: The nature, duration, and severity of the risk; the risdiction, the agency shall notify the probability that the potential injury complainant of the results of the inves- will actually occur; and whether rea- tigation in a letter containing— sonable accommodations in policies, (1) Findings of fact and conclusions practices, or procedures or the provi- of law; sion of auxiliary aids or services will (2) A description of a remedy for each mitigate the risk. violation found; and (3) A notice of the right to appeal. [81 FR 3714, Jan. 22, 2016] (h) Appeals of the findings of fact and § 1251.581 Reasonable accommodation. conclusions of law or remedies must be filed by the complainant within 90 days The Agency shall make reasonable of receipt from the agency of the letter accommodations in policies, practices, required by § 1251.570(g). The agency or procedures when such accommoda- may extend this time for good cause. tions are necessary to avoid discrimination on the basis of disability, unless (i) Timely appeals shall be accepted the Agency can demonstrate that mak- and processed by the head of the agen- ing the accommodations would fun- cy. damentally alter the nature of the (j) The head of the agency shall no- service, program, or activity or result tify the complainant of the results of in an undue financial and administra- the appeal within 60 days of the receipt tive burden. of the request. If the head of the agency determines that additional informa- [81 FR 3714, Jan. 22, 2016] tion is needed from the complainant, § 1251.582 Illegal use of drugs he or she shall have 60 days from the date of receipt of the additional infor- (a) General. (1) Except as provided in mation to make his or her determina- paragraph (b) of this section, this part tion on the appeal. does not prohibit discrimination (k) The time limits cited in para- against an individual based on that in- graphs (g) and (j) of this section may be dividual’s current illegal use of drugs. extended with the permission of the (2) The Agency shall not discriminate Assistant Attorney General. on the basis of illegal use of drugs against an individual who is not engag- (l) The agency may delegate its au- ing in current illegal use of drugs and thority for conducting complaint in- who— vestigations to other Federal agencies, (i) Has successfully completed a su- except that the authority for making pervised drug rehabilitation program the final determination may not be or has otherwise been rehabilitated delegated to another agency. successfully; [53 FR 25882, 25885, July 8, 1989, as amended (ii) Is participating in a supervised at 81 FR 3714, Jan. 22, 2016] rehabilitation program; or

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(iii) Is erroneously regarded as engag- 1252.302 Assurance of compliance and recipi- ing in such use. ent assessment of age distinctions. (b) Health and drug rehabilitation serv- 1252.303 Information requirements. ices. (1) The Agency shall not deny Subpart 1252.4—Investigation, Conciliation, health services, or services provided in and Enforcement Procedures connection with drug rehabilitation, to an individual on the basis of that indi- 1252.400 Compliance reviews. vidual’s current illegal use of drugs, if 1252.401 Complaints. the individual is otherwise entitled to 1252.402 Mediation. such services. 1252.403 Investigation. 1252.404 Prohibition against intimidation or (2) A drug rehabilitation or treat- retaliation. ment program may deny participation 1252.405 Compliance procedure. to individuals who engage in illegal use 1252.406 Hearings. of drugs while they are in the program. 1252.407 Notices, decisions, and post-termi- (c) Drug testing. (1) This part does not nation proceedings. prohibit the Agency from adopting or 1252.408 Remedial action by recipients. administering reasonable policies or 1252.409 Alternate funds disbursal proce- procedures, including but not limited dure. 1252.410 Exhaustion of administrative rem- to drug testing, designed to ensure that edies. an individual who formerly engaged in 1252.411 Age distinctions. the illegal use of drugs is not now engaging in current illegal use of drugs. AUTHORITY: Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq. (45 CFR (2) Nothing in this paragraph (c) shall part 90). be construed to encourage, prohibit, restrict, or authorize the conducting of SOURCE: 50 FR 13311, Apr. 4, 1985, unless otherwise noted. testing for the illegal use of drugs. [81 FR 3714, Jan. 22, 2016] Subpart 1252.1—General §§ 1251.583–1251.999 [Reserved] § 1252.100 What is the purpose of NASA’s age discrimination regula- PART 1252—NONDISCRIMINATION tions? ON THE BASIS OF AGE IN PRO- The purpose of these regulations is to GRAMS OR ACTIVITIES RECEIV- set out NASA’s policies and to imple- ING FEDERAL FINANCIAL ASSIST- ment agencywide or agency procedures ANCE under the Age Discrimination Act of 1975 according to the government-wide Subpart 1252.1—General age discrimination regulations at 45 CFR part 90. (Published at 44 FR 33768, Sec. June 12, 1979.) The Act and the govern- 1252.100 What is the purpose of NASA’s age ment-wide regulations prohibit dis- discrimination regulations? crimination on the basis of age in pro- 1252.102 To what programs or activities do grams or activities receiving Federal these regulations apply? 1252.103 Definitions. financial assistance. The Act and the governmentwide regulations permit Subpart 1252.2—Standards for Determining federally assisted programs or activi- Age Discrimination ties and recipients of Federal funds, to continue to use age distinctions and 1252.200 Rules against age discrimination. factors other than age which meet the 1252.201 Exceptions to the rules against age requirements of the Act and the gov- discrimination. 1252.202 Burden of proof. ernmentwide regulations. 1252.203 Special benefits for children and [50 FR 13311, Apr. 4, 1985, as amended at 68 the elderly. FR 51352, Aug. 26, 2003]

Subpart 1252.3—Responsibilities of § 1252.102 To what programs or activi- Recipients ties do these regulations apply? 1252.300 General responsibilities of recipi- (a) These regulations apply to each ents. NASA recipient and to each program or 1252.301 Notice to subrecipients. activity operated by the recipient

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which receives Federal financial assist- vides or otherwise makes available as- ance provided by NASA. sistance in the form of: (b) The Age Discrimination Act of (1) Funds; 1975 does not apply to: (2) Services of Federal personnel; or (1) An age distinction contained in interest in or use of property, includ- that part of a Federal, State, or local ing: statute or ordinance adopted by an (i) Transfer or lease of property for elected body which: less than fair market value or for re- (i) Provides any benefits or assist- duced consideration; and ance to persons based on age; or (ii) Proceeds from a subsequent (ii) Establishes criteria for participa- transfer or lease of property if the Fed- tion in age-related terms; or eral share of its fair market value is (iii) Describes intended beneficiaries not returned to the Federal Govern- or target groups in age-related terms. ment. (2) Any employment practice of any (i) FMCS means the Federal Medi- employer, employment agency, labor ation and Conciliation Service. organization, or any labor-manage- (j) Recipient means any State or its ment joint apprenticeship training pro- political subdivision, any instrumen- gram, except for any program or activ- tality of a State or its political sub- ity receiving Federal financial assist- division, any public or private agency, ance for public service employment institution, organization, or other enti- under the Comprehensive Employment ty, or any person to which Federal fi- and Training Act of 1974 (CETA) (29 nancial assistance is extended, directly U.S.C. 801 et seq.). or through another recipient. Recipient includes any successor, assignee, or [50 FR 13311, Apr. 4, 1985, as amended at 68 transferee, but excludes the ultimate FR 51352, Aug. 26, 2003] beneficiary of the assistance. § 1252.103 Definitions. (k) Administrator means the Adminis- 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- (n) Program or activity means all of ple, ‘‘children,’’ ‘‘adult,’’ ‘‘older per- the operations of any entity described sons,’’ but not ‘‘student’’). in paragraphs (n)(1) through (4) of this (f) Discrimination means unlawful section, any part of which is extended treatment based on age. Federal financial assistance: (g) NASA means the National Aero- (1)(i) A department, agency, special nautics and Space Administration. purpose district, or other instrumen- (h) Federal financial assistance means tality of a State or of a local govern- any grant, entitlement, loan, coopera- ment; or tive agreement contract (other than a (ii) The entity of such State or local procurement contract or a contract of government that distributes such as- insurance or guaranty), or any other sistance and each such department or arrangement by which the agency pro- agency (and each other State or local

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government entity) to which the as- them to discrimination under a pro- sistance is extended, in the case of as- gram or activity receiving Federal fi- sistance to a State or local govern- nancial assistance; or ment; (2) Denying or limiting individuals in (2)(i) A college, university, or other their opportunity to participate in any postsecondary institution, or a public program or activity receiving Federal system of higher education; or financial assistance. (ii) A local educational agency (as de- (c) The specific forms of age discrimi- fined in 20 U.S.C. 7801), system of voca- nation listed in paragraph (b) of this tional education, or other school sys- section do not necessarily constitute a tem; complete list. (3)(i) An entire corporation, partnership, or other private organization, or § 1252.201 Exceptions to the rules an entire sole proprietorship— against age discrimination. (A) If assistance is extended to such (a) Definitions. For purposes of this corporation, partnership, private orga- section, the terms normal operation and nization, or sole proprietorship as a statutory objective shall have the fol- whole; or lowing meaning: (B) Which is principally engaged in (1) Normal operation means the oper- the business of providing education, ation of a program or activity without health care, housing, social services, or significant changes that would impair parks and recreation; or its ability to meet its objectives. (ii) The entire plant or other com- (2) Statutory objective means any pur- parable, geographically separate facil- pose of a program or activity expressly ity to which Federal financial assist- stated in any Federal statute, state ance is extended, in the case of any statute or local statute or ordinance other corporation, partnership, private adopted by any elected, general pur- organization, or sole proprietorship; or pose legislative body. (4) Any other entity which is estab- (b) Normal operation or statutory ob- lished by two or more of the entities jective of any program or activity. A described in paragraph (n)(1), (2), or (3) recipient is permitted to take an ac- of this section. tion otherwise prohibited by § 1252.200 if [50 FR 13311, Apr. 4, 1985, as amended at 68 the action reasonably takes into ac- FR 51351, Aug. 26, 2003] count age as a factor necessary to the normal operation of the achievement Subpart 1252.2—Standards for of any statutory objective of a program Determining Age Discrimination or activity. An action reasonably takes into account age as a factor necessary § 1252.200 Rules against age discrimi- to the normal operation or the achieve- nation. ment of any statutory objective of a The rules stated in this section are program or activity, if: limited by the exceptions contained in (1) Age is used as a measure of ap- § 1252.201. proximation of one or more other char- (a) General rule: No person in the acteristics; and United States shall, on the basis of age (2) The other characteristic(s) must be excluded from participation in, be be measured or approximated in order denied the benefits of, or be subjected for the normal operation of the pro- to discrimination under any program gram or activity to continue, or to or activity receiving Federal financial achieve any statutory objective of the assistance. program or activity; and (b) Specific rules: A recipient may not, (3) The other characteristic(s) can be in any program or activity receiving reasonably measured or approximated Federal financial assistance, directly by the use of age; and or through contractual, licensing, or (4) The other characteristic(s) are other arrangements use age distinc- impractical to measure directly on an tions or take any other actions which individual basis. have the effect, on the basis of age, of: (c) Reasonable factors other than (1) Excluding individuals from, deny- age. A recipient is permitted to take an ing them the benefits of, or subjecting action otherwise prohibited by

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§ 1252.200 which is based on a factor under § 91.41, NASA may require a re- other than age, even though that ac- cipient employing the equivalent of 15 tion may have a disproportionate effect or more employees to complete a writ- on persons of different ages. An action ten self-evaluation, in a manner speci- may be based on a factor other than fied by the responsible Agency official, age only if the factor bears a direct and of any age distinction imposed in its substantial relationship to the normal program or activity receiving Federal operation of the program or activity or financial assistance from NASA to as- to the achievement of a statutory ob- sess the recipient’s compliance with jective. the Act. (2) Whenever an assessment indicates § 1252.202 Burden of proof. a violation of the Act and the NASA The burden of proving that an age regulations, the recipient shall take distinction or other action falls within corrective action. the exceptions outlined in § 1252.201 (b) and (c) is on the recipient of Federal fi- § 1252.303 Information requirements. nancial assistance. (a) Keep records in a form that contains information which NASA deter- § 1252.203 Special benefits for children mines may be necessary to ascertain and the elderly. whether the recipient is complying If a recipient operating a program or with the Act and these regulations. activity provides special benefits to (b) Provide to NASA, upon request, the elderly or to children, such use of information and reports which NASA age distinctions shall be presumed to determines are necessary to ascertain be necessary to the normal operation whether the recipient is complying of the program or activity, notwith- with the Act and these regulations. standing the provision of § 1252.10. (c) Permit reasonable access by NASA to the books, records, accounts, [50 FR 13311, Apr. 4, 1985, as amended at 68 and other recipient facilities and FR 51352, Aug. 26, 2003] sources of information to the extent NASA determines is necessary to as- Subpart 1252.3—Responsibilities of certain whether the recipient is com- Recipients plying with the Act and these regulations. § 1252.300 General responsibilities of recipients. Subpart 1252.4—Investigation, Each NASA recipient must ensure Conciliation, and Enforcement that its programs or activities comply Procedures with these regulations. [50 FR 13311, Apr. 4, 1985, as amended at 68 § 1252.400 Compliance reviews. FR 51352, Aug. 26, 2003] (a) NASA may conduct compliance reviews and pre-award reviews of re- § 1252.301 Notice to subrecipients. cipients or use other similar proce- Where a recipient passes on Federal dures that will permit it to investigate financial assistance from NASA to sub- and correct violations of the Act and recipients, the recipient shall provide these regulations. NASA may conduct the subrecipient written notice of their these reviews even in the absence of a obligations under these regulations. complaint against a recipient. The review may be as comprehensive as nec- § 1252.302 Assurance of compliance essary to determine whether a viola- and recipient assessment of age dis- tion of these regulations has occurred. tinctions. (b) If a compliance review or pre- (a) Each recipient of Federal finan- award review indicates a violation of cial assistance from NASA shall sign a the Act or these regulations, NASA written assurance as specified by will attempt to secure the recipient’s NASA that it will comply with the Act voluntary compliance with the Act. If and these regulations. voluntary compliance cannot be (b) Recipient assessment of age distinc- achieved, NASA will arrange for en- tions. (1) As part of a compliance review forcement as described in § 1252.405.

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§ 1252.401 Complaints. (b) Both the complainant and the recipient shall participate in the medi- (a) Any person, individually or as a ation process to the extent necessary member of a class or on behalf of oth- to reach an agreement or make an in- ers, may file a complaint with NASA, formed judgment that an agreement is alleging discrimination prohibited by not possible. There must be at least the Act or these regulations based on one meeting with the mediator before an action occurring on or after July 1, NASA will accept a judgment that an 1979. A complaint must be filed within agreement is not possible. However, 180 days from the date the complainant the recipient and the complainant need first had knowledge of the alleged act not meet with the mediator at the of discrimination. However, for good same time. cause shown, NASA may extend this (c) If the complainant and the recipi- time limit. ent reach an agreement, the mediator (b) NASA will attempt to facilitate shall prepare a written statement of the filing of complaints wherever pos- the agreement and have the complain- sible, including taking the following ant and recipient sign it. The mediator measures: shall send a copy of the agreement to (1) Accepting as a sufficient com- NASA. NASA will take no further ac- plaint, any written statement, which tion on the complaint unless the com- identifies the parties involved and the plainant or the recipient fails to com- date the complainant first had knowl- ply with the agreement. However, edge of the alleged violation, describes NASA retains the right to monitor the generally the action or practice com- recipient’s compliance with the agree- plained of, and assigned by the comment. plainant. (d) The mediator shall protect the (2) Freely permitting a complainant confidentiality of all information ob- to add information to the complaint to tained in the course of the mediation meet the requirements of a sufficient process. No mediator shall testify in complaint. any adjudicative proceeding, produce (3) Widely disseminating information any document, or otherwise disclose regarding the obligations of recipients any information obtained in the course under the Act and these regulations. of the mediation process without prior (4) Notifying the complainant and approval of the head of the mediation the recipient of their rights and obliga- agency. tions under the complaint procedure, (e) NASA will use the mediation including the right to have a represent- process for a maximum of 60 days after ative at all stages of the complaint receiving a complaint. procedure. (f) Mediation ends if: (5) Notifying the complainant and (1) 60 days elapse from the time the recipient (or their representatives) NASA receives the complaint; or of their right to contact NASA for in- (2) Prior to the end of that 60-day pe- formation and assistance regarding the riod, an agreement is reached; or complaint resolution process. (3) Prior to the end of that 60-day pe- (c) NASA will return to the com- riod, the mediator determines that an plainant any complaint outside the ju- agreement cannot be reached. risdiction of these regulations, and will (g) The mediator shall return unre- state the reason(s) why it is outside solved complaints to NASA. the jurisdiction of these regulations. § 1252.403 Investigation. § 1252.402 Mediation. (a) Informal inquiry. (1) NASA will in- (a) Referral of complaints for medi- vestigate complaints that are unre- ation. NASA will refer to the Federal solved after mediation or are reopened Mediation and Conciliation Service all because of a violation of a mediation complaints that: agreement. (1) Fall within the jurisdiction of the (2) As part of the initial inquiry, Act and these regulations; and NASA will use informal fact finding (2) Contain all information necessary methods, including joint or separate for further processing. discussions with the complainant and

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recipient to establish the facts, and, if cipient’s Federal financial assistance possible, settle the complaint on terms from NASA. that are mutually agreeable to the par- (2) Any other means authorized by ties. NASA may seek the assistance of law including but not limited to: any involved State agency. (i) Referral to the Department of Jus- (3) NASA will put any agreement in tice for proceedings to enforce any writing and have it signed by the par- rights of the United States or obliga- ties and an authorized official at tions of the recipient created by the NASA. Act or these regulations. (4) The settlement shall not affect (ii) Use of any requirement of or re- the operation of any other enforcement ferral to any Federal, State, or local effort of NASA, including compliance government agency that will have the reviews and investigation of other com- effect of correcting a violation of the plaints which may involve the recipi- Act or these regulations. ent. (b) NASA will limit any termination (5) The settlement is not a finding of under § 1252.405(a)(1) to the particular discrimination against a recipient. program or activity NASA finds in vio- (b) Formal investigation. If NASA can- lations of these regulations. NASA will not resolve the complaint through in- not base any part of a termination on formal means it will develop formal a finding with respect to any program findings through further investigations or activity of the recipient which does of the complaint. If the investigation not receive Federal financial assist- indicates a violation of these regula- ance from NASA. tions, NASA will attempt to obtain (c) NASA will take no action under voluntary compliance. If NASA cannot paragraph (a) until: obtain voluntary compliance, it will (1) The Administrator has advised begin enforcement as described in the recipient of its failure to comply § 1252.405. with the Act and these regulations and [50 FR 13311, Apr. 4, 1985, as amended at 68 has determined that voluntary compli- FR 51352, Aug. 26, 2003] ance cannot be obtained. (2) 30 days have elapsed after the Ad- § 1252.404 Prohibition against intimi- ministrator has sent a written report dation or retaliation. of the circumstances and grounds of A recipient may not engage in acts of the action to the committees of Con- intimidation or retaliation against any gress having legislative jurisdiction person who: over the program or activity involved. (a) Attempts to assert a right pro- The Administrator will file a report tected by the Act or these regulations; whenever any action is taken under or paragraph (a) of this section. (b) Cooperates in any mediation, in- (d) NASA also may defer granting quiry, hearing, or other part of NASA’s new Federal financial assistance from investigation, conciliation, and en- NASA to a recipient when a hearing forcement process. under § 1252.405(a)(1) is initiated. (1) New Federal financial assistance § 1252.405 Compliance procedure. from NASA includes all assistance for (a) NASA may enforce the Act and which NASA requires an application or these regulations through: approval, including renewal or continu- (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

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hearing has been extended by mutual § 1252.410 Exhaustion of administra- consent of the recipient and the Ad- tive remedies. ministrator. NASA will not continue a (a) A complainant may file a civil ac- deferral for more than 30 days after the tion following the exhaustion of admin- close of the hearing, unless the hearing istrative remedies under the Act. Ad- results in a finding against the recipient. ministrative remedies are exhausted if: (1) 180 days have elapsed since the [50 FR 13311, Apr. 4, 1985, as amended at 68 complainant filed the complaint and FR 51352, Aug. 26, 2003] NASA has made no finding with regard to the complaint; or § 1252.406 Hearings. (2) NASA issues any findings in favor The procedural provisions for those of the recipient. hearings required by § 1252.405 are con- (b) If NASA fails to make a finding tained in 14 CFR 1250.108. within 180 days or issues a finding in favor of the recipient, NASA will: § 1252.407 Notices, decisions, and post- termination proceedings. (1) Promptly advise the complainant of this fact; and All notices, decisions, and post-ter- (2) Advise the complainant of his or mination proceedings, insofar as NASA her right to bring a civil action for in- is concerned, shall be made in accord- junctive relief; and ance with 14 CFR 1250.109. (3) Inform the complainant: § 1252.408 Remedial action by recipi- (i) That the complainant may bring a ents. civil action only in a United States dis- (a) Where NASA finds a recipient has trict court for the district in which the discriminated on the basis of age, the recipient is located or transacts busi- recipient shall take any remedial ac- ness; tion that NASA may require to over- (ii) That a complainant prevailing in come the effects of the discrimination. a civil action has the right to be If another recipient exercises control awarded the costs of the action, includ- over the recipient that has discrimi- ing reasonable attorney’s fees, but that nated, NASA may require both recipi- the complainant must demand these ents to take remedial action. costs in the complaint. (b) Even in the absence of discrimina- (iii) That before commencing the action, a recipient may take affirmative tion the complainant shall give 30 days action to overcome the effects of condi- notice by registered mail to the Ad- tions that resulted in limited partici- ministrator, the Attorney General of pation in the recipients program or ac- the United States, and tivity on the basis of age. (iv) That the notice must state: the alleged violation of the act; the relief § 1252.409 Alternate funds disbursal procedure. requested; the court in which the complainant is bringing the action; and, (a) When NASA withholds funds from whether or not attorney’s fees are de- a recipient under these regulations, the manded in the event the complainant Administrator may disburse the with- prevails; and held funds directly to an alternate re- (v) That the complainant may not cipient. bring an action if the same alleged vio- (b) The Administrator will require lation of the Act by the same recipient any alternate recipient to dem- is the subject of a pending action in onstrate: any court of the United States. (1) The ability to comply with these regulations; and § 1252.411 Age distinctions. (2) The ability to achieve the goals of the Federal statute authorizing the There are no Federal statutes or reg- Federal financial assistance. ulations containing age distinctions which affect financial assistance ad- [50 FR 13311, Apr. 4, 1985, as amended at 68 ministered by the agency. FR 51352, Aug. 26, 2003]

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PART 1253—NONDISCRIMINATION 1253.455 Textbooks and curricular material. ON THE BASIS OF SEX IN EDU- Subpart E—Discrimination on the Basis of CATION PROGRAMS OR ACTIVI- Sex in Employment in Education Pro- TIES RECEIVING FEDERAL FINAN- grams or Activities Prohibited CIAL ASSISTANCE 1253.500 Employment. 1253.505 Employment criteria. Subpart A—Introduction 1253.510 Recruitment. Sec. 1253.515 Compensation. 1253.100 Purpose and effective date. 1253.520 Job classification and structure. 1253.105 Definitions. 1253.525 Fringe benefits. 1253.110 Remedial and affirmative action 1253.530 Marital or parental status. and self-evaluation. 1253.535 Effect of state or local law or other 1253.115 Assurance required. requirements. 1253.120 Transfers of property. 1253.540 Advertising. 1253.125 Effect of other requirements. 1253.545 Pre-employment inquiries. 1253.130 Effect of employment opportuni- 1253.550 Sex as a bona fide occupational ties. qualification. 1253.135 Designation of responsible employee and adoption of grievance proce- Subpart F—Procedures dures. 1253.140 Dissemination of policy. 1253.600 Notice of covered programs. 1253.605 Enforcement procedures.

Subpart B—Coverage AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688. 1253.200 Application. 1253.205 Educational institutions and other SOURCE: 65 FR 52865, 52876, Aug. 30, 2000, un- entities controlled by religious organiza- less otherwise noted. tions. 1253.210 Military and merchant marine educational institutions. Subpart A—Introduction 1253.215 Membership practices of certain organizations. § 1253.100 Purpose and effective date. 1253.220 Admissions. The purpose of these Title IX regula- 1253.225 Educational institutions eligible to tions is to effectuate Title IX of the submit transition plans. Education Amendments of 1972, as 1253.230 Transition plans. amended (except sections 904 and 906 of 1253.235 Statutory amendments. those Amendments) (20 U.S.C. 1681, Subpart C—Discrimination on the Basis of 1682, 1683, 1685, 1686, 1687, 1688), which is Sex in Admission and Recruitment Pro- designed to eliminate (with certain exhibited ceptions) discrimination on the basis of sex in any education program or activ- 1253.300 Admission. ity receiving Federal financial assist- 1253.305 Preference in admission. ance, whether or not such program or 1253.310 Recruitment. activity is offered or sponsored by an Subpart D—Discrimination on the Basis of educational institution as defined in Sex in Education Programs or Activities these Title IX regulations. The effec- Prohibited tive date of these Title IX regulations shall be September 29, 2000. 1253.400 Education programs or activities. 1253.405 Housing. § 1253.105 Definitions. 1253.410 Comparable facilities. 1253.415 Access to course offerings. As used in these Title IX regulations, 1253.420 Access to schools operated by the term: LEAs. Administratively separate unit means a 1253.425 Counseling and use of appraisal and school, department, or college of an counseling materials. educational institution (other than a 1253.430 Financial assistance. local educational agency) admission to 1253.435 Employment assistance to stu- which is independent of admission to dents. 1253.440 Health and insurance benefits and any other component of such institu- services. tion. 1253.445 Marital or parental status. Admission means selection for part- 1253.450 Athletics. time, full-time, special, associate,

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transfer, exchange, or any other enroll- use Federal property or any interest ment, membership, or matriculation in therein without consideration. or at an education program or activity (5) Any other contract, agreement, or operated by a recipient. arrangement that has as one of its pur- Applicant means one who submits an poses the provision of assistance to any application, request, or plan required education program or activity, except to be approved by an official of the a contract of insurance or guaranty. Federal agency that awards Federal fi- Institution of graduate higher edu- nancial assistance, or by a recipient, as cation means an institution that: a condition to becoming a recipient. (1) Offers academic study beyond the Designated agency official means Asso- bachelor of arts or bachelor of science ciate Administrator for Equal Oppor- degree, whether or not leading to a cer- tunity Programs. tificate of any higher degree in the lib- Educational institution means a local eral arts and sciences; educational agency (LEA) as defined by (2) Awards any degree in a profes- 20 U.S.C. 8801(18), a preschool, a private sional field beyond the first profes- elementary or secondary school, or an sional degree (regardless of whether applicant or recipient that is an insti- the first professional degree in such tution of graduate higher education, an field is awarded by an institution of institution of undergraduate higher undergraduate higher education or pro- education, an institution of profes- fessional education); or sional education, or an institution of (3) Awards no degree and offers no vocational education, as defined in this further academic study, but operates section. ordinarily for the purpose of facili- Federal financial assistance means any tating research by persons who have of the following, when authorized or received the highest graduate degree in extended under a law administered by any field of study. the Federal agency that awards such Institution of professional education assistance: means an institution (except any insti- (1) A grant or loan of Federal finan- tution of undergraduate higher edu- cial assistance, including funds made cation) that offers a program of aca- available for: demic study that leads to a first profes- (i) The acquisition, construction, ren- sional degree in a field for which there ovation, restoration, or repair of a is a national specialized accrediting building or facility or any portion agency recognized by the Secretary of thereof; and Education. (ii) Scholarships, loans, grants, Institution of undergraduate higher wages, or other funds extended to any education means: entity for payment to or on behalf of (1) An institution offering at least students admitted to that entity, or two but less than four years of college- extended directly to such students for level study beyond the high school payment to that entity. level, leading to a diploma or an asso- (2) A grant of Federal real or per- ciate degree, or wholly or principally sonal property or any interest therein, creditable toward a baccalaureate de- including surplus property, and the gree; or proceeds of the sale or transfer of such (2) An institution offering academic property, if the Federal share of the study leading to a baccalaureate de- fair market value of the property is gree; or not, upon such sale or transfer, prop- (3) An agency or body that certifies erly accounted for to the Federal Gov- credentials or offers degrees, but that ernment. may or may not offer academic study. (3) Provision of the services of Fed- Institution of vocational education eral personnel. means a school or institution (except (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

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technical field, whether or not the activity, a recipient may take affirma- school or institution offers certificates, tive action consistent with law to over- diplomas, or degrees and whether or come the effects of conditions that re- not it offers full-time study. sulted in limited participation therein Recipient means any State or polit- by persons of a particular sex. Nothing ical subdivision thereof, or any instru- in these Title IX regulations shall be mentality of a State or political sub- interpreted to alter any affirmative ac- division thereof, any public or private tion obligations that a recipient may agency, institution, or organization, or have under Executive Order 11246, 3 other entity, or any person, to whom CFR, 1964–1965 Comp., p. 339; as amend- Federal financial assistance is ex- ed by Executive Order 11375, 3 CFR, tended directly or through another re- 1966–1970 Comp., p. 684; as amended by cipient and that operates an education Executive Order 11478, 3 CFR, 1966–1970 program or activity that receives such Comp., p. 803; as amended by Executive assistance, including any subunit, suc- Order 12086, 3 CFR, 1978 Comp., p. 230; cessor, assignee, or transferee thereof. as amended by Executive Order 12107, 3 Student means a person who has CFR, 1978 Comp., p. 264. gained admission. (c) Self-evaluation. Each recipient Title IX means Title IX of the Edu- education institution shall, within one cation Amendments of 1972, Public Law year of September 29, 2000: 92–318, 86 Stat. 235, 373 (codified as (1) Evaluate, in terms of the require- amended at 20 U.S.C. 1681–1688) (except ments of these Title IX regulations, its sections 904 and 906 thereof), as amend- current policies and practices and the ed by section 3 of Public Law 93–568, 88 effects thereof concerning admission of Stat. 1855, by section 412 of the Edu- students, treatment of students, and cation Amendments of 1976, Public Law employment of both academic and non- 94–482, 90 Stat. 2234, and by Section 3 of academic personnel working in connec- Public Law 100–259, 102 Stat. 28, 28–29 tion with the recipient’s education pro- (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, gram or activity; 1688). (2) Modify any of these policies and Title IX regulations means the provi- practices that do not or may not meet sions set forth at §§ 1253.100 through the requirements of these Title IX reg- 1253.605. ulations; and Transition plan means a plan subject (3) Take appropriate remedial steps to the approval of the Secretary of to eliminate the effects of any dis- Education pursuant to section 901(a)(2) crimination that resulted or may have of the Education Amendments of 1972, resulted from adherence to these poli- 20 U.S.C. 1681(a)(2), under which an edu- cies and practices. cational institution operates in mak- (d) Availability of self-evaluation and ing the transition from being an edu- related materials. Recipients shall main- cational institution that admits only tain on file for at least three years fol- students of one sex to being one that lowing completion of the evaluation re- admits students of both sexes without quired under paragraph (c) of this sec- discrimination. tion, and shall provide to the designated agency official upon request, a § 1253.110 Remedial and affirmative description of any modifications made action and self-evaluation. pursuant to paragraph (c)(2) of this sec- (a) Remedial action. If the designated tion and of any remedial steps taken agency official finds that a recipient pursuant to paragraph (c)(3) of this sec- has discriminated against persons on tion. the basis of sex in an education program or activity, such recipient shall § 1253.115 Assurance required. take such remedial action as the des- (a) General. Either at the application ignated agency official deems nec- stage or the award stage, Federal agen- essary to overcome the effects of such cies must ensure that applications for discrimination. Federal financial assistance or awards (b) Affirmative action. In the absence of Federal financial assistance contain, of a finding of discrimination on the be accompanied by, or be covered by a basis of sex in an education program or specifically identified assurance from

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the applicant or recipient, satisfactory § 1253.120 Transfers of property. to the designated agency official, that If a recipient sells or otherwise trans- each education program or activity op- fers property financed in whole or in erated by the applicant or recipient part with Federal financial assistance and to which these Title IX regulations to a transferee that operates any edu- apply will be operated in compliance with these Title IX regulations. An as- cation program or activity, and the surance of compliance with these Title Federal share of the fair market value IX regulations shall not be satisfactory of the property is not upon such sale or to the designated agency official if the transfer properly accounted for to the applicant or recipient to whom such as- Federal Government, both the trans- surance applies fails to commit itself feror and the transferee shall be to take whatever remedial action is deemed to be recipients, subject to the necessary in accordance with provisions of §§ 1253.205 through § 1253.110(a) to eliminate existing dis- 1253.235(a). crimination on the basis of sex or to § 1253.125 Effect of other require- eliminate the effects of past discrimi- ments. nation whether occurring prior to or subsequent to the submission to the (a) Effect of other Federal provisions. designated agency official of such as- The obligations imposed by these Title surance. IX regulations are independent of, and (b) Duration of obligation. (1) In the do not alter, obligations not to dis- case of Federal financial assistance ex- criminate on the basis of sex imposed tended to provide real property or by Executive Order 11246, 3 CFR, 1964– structures thereon, such assurance 1965 Comp., p. 339; as amended by Exec- shall obligate the recipient or, in the utive Order 11375, 3 CFR, 1966–1970 case of a subsequent transfer, the Comp., p. 684; as amended by Executive transferee, for the period during which Order 11478, 3 CFR, 1966–1970 Comp., p. the real property or structures are used 803; as amended by Executive Order to provide an education program or ac- 12087, 3 CFR, 1978 Comp., p. 230; as tivity. amended by Executive Order 12107, 3 (2) In the case of Federal financial as- CFR, 1978 Comp., p. 264; sections 704 sistance extended to provide personal and 855 of the Public Health Service property, such assurance shall obligate Act (42 U.S.C. 295m, 298b-2); Title VII of the recipient for the period during the Civil Rights Act of 1964 (42 U.S.C. which it retains ownership or posses- 2000e et seq.); the Equal Pay Act of 1963 sion of the property. (29 U.S.C. 206); and any other Act of (3) In all other cases such assurance Congress or Federal regulation. shall obligate the recipient for the pe- (b) Effect of State or local law or other riod during which Federal financial as- requirements. The obligation to comply sistance is extended. with these Title IX regulations is not (c) Form. (1) The assurances required obviated or alleviated by any State or by paragraph (a) of this section, which local law or other requirement that may be included as part of a document would render any applicant or student that addresses other assurances or obli- ineligible, or limit the eligibility of gations, shall include that the appli- any applicant or student, on the basis cant or recipient will comply with all of sex, to practice any occupation or applicable Federal statutes relating to profession. nondiscrimination. These include but (c) Effect of rules or regulations of pri- are not limited to: Title IX of the Edu- vate organizations. The obligation to cation Amendments of 1972, as amend- comply with these Title IX regulations ed (20 U.S.C. 1681–1683, 1685–1688). is not obviated or alleviated by any (2) The designated agency official rule or regulation of any organization, will specify the extent to which such club, athletic or other league, or asso- assurances will be required of the ap- ciation that would render any appli- plicant’s or recipient’s subgrantees, cant or student ineligible to partici- contractors, subcontractors, trans- pate or limit the eligibility or partici- ferees, or successors in interest. pation of any applicant or student, on

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the basis of sex, in any education pro- criminate in such a manner. Such noti- gram or activity operated by a recipi- fication shall contain such informa- ent and that receives Federal financial tion, and be made in such manner, as assistance. the designated agency official finds necessary to apprise such persons of § 1253.130 Effect of employment oppor- the protections against discrimination tunities. assured them by Title IX and these The obligation to comply with these Title IX regulations, but shall state at Title IX regulations is not obviated or least that the requirement not to dis- alleviated because employment oppor- criminate in education programs or ac- tunities in any occupation or profes- tivities extends to employment there- sion are or may be more limited for in, and to admission thereto unless members of one sex than for members §§ 1253.300 through 1253.310 do not apply of the other sex. to the recipient, and that inquiries § 1253.135 Designation of responsible concerning the application of Title IX employee and adoption of grievance and these Title IX regulations to such procedures. recipient may be referred to the em- (a) Designation of responsible employee. ployee designated pursuant to Each recipient shall designate at least § 1253.135, or to the designated agency one employee to coordinate its efforts official. to comply with and carry out its re- (2) Each recipient shall make the ini- sponsibilities under these Title IX reg- tial notification required by paragraph ulations, including any investigation of (a)(1) of this section within 90 days of any complaint communicated to such September 29, 2000 or of the date these recipient alleging its noncompliance Title IX regulations first apply to such with these Title IX regulations or al- recipient, whichever comes later, leging any actions that would be pro- which notification shall include publi- hibited by these Title IX regulations. cation in: The recipient shall notify all its stu- (i) Newspapers and magazines oper- dents and employees of the name, of- ated by such recipient or by student, fice address, and telephone number of alumnae, or alumni groups for or in the employee or employees appointed pursuant to this paragraph. connection with such recipient; and (b) Complaint procedure of recipient. A (ii) Memoranda or other written com- recipient shall adopt and publish griev- munications distributed to every stu- ance procedures providing for prompt dent and employee of such recipient. and equitable resolution of student and (b) Publications. (1) Each recipient employee complaints alleging any ac- shall prominently include a statement tion that would be prohibited by these of the policy described in paragraph (a) Title IX regulations. of this section in each announcement, bulletin, catalog, or application form § 1253.140 Dissemination of policy. that it makes available to any person (a) Notification of policy. (1) Each re- of a type, described in paragraph (a) of cipient shall implement specific and this section, or which is otherwise used continuing steps to notify applicants in connection with the recruitment of for admission and employment, stu- students or employees. dents and parents of elementary and (2) A recipient shall not use or dis- secondary school students, employees, tribute a publication of the type de- sources of referral of applicants for ad- scribed in paragraph (b)(1) of this sec- mission and employment, and all tion that suggests, by text or illustra- unions or professional organizations tion, that such recipient treats appli- holding collective bargaining or profes- cants, students, or employees dif- sional agreements with the recipient, ferently on the basis of sex except as that it does not discriminate on the such treatment is permitted by these basis of sex in the educational programs or activities that it operates, Title IX regulations. and that it is required by Title IX and (c) Distribution. Each recipient shall these Title IX regulations not to dis- distribute without discrimination on

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the basis of sex each publication de- 501(a) of the Internal Revenue Code of scribed in paragraph (b)(1) of this sec- 1954, 26 U.S.C. 501(a), the active mem- tion, and shall apprise each of its ad- bership of which consists primarily of mission and employment recruitment students in attendance at institutions representatives of the policy of non- of higher education. discrimination described in paragraph (b) YMCA, YWCA, Girl Scouts, Boy (a) of this section, and shall require Scouts, and Camp Fire Girls. These Title such representatives to adhere to such IX regulations do not apply to the policy. membership practices of the Young Men’s Christian Association (YMCA), Subpart B—Coverage the Young Women’s Christian Associa- tion (YWCA), the Girl Scouts, the Boy § 1253.200 Application. Scouts, and Camp Fire Girls. Except as provided in §§ 1253.205 (c) Voluntary youth service organiza- through 1253.235(a), these Title IX regu- tions. These Title IX regulations do not lations apply to every recipient and to apply to the membership practices of a each education program or activity op- voluntary youth service organization erated by such recipient that receives that is exempt from taxation under Federal financial assistance. section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the § 1253.205 Educational institutions and membership of which has been tradi- other entities controlled by reli- tionally limited to members of one sex gious organizations. and principally to persons of less than (a) Exemption. These Title IX regula- nineteen years of age. tions do not apply to any operation of an educational institution or other en- § 1253.220 Admissions. tity that is controlled by a religious (a) Admissions to educational insti- organization to the extent that appli- tutions prior to June 24, 1973, are not cation of these Title IX regulations covered by these Title IX regulations. would not be consistent with the reli- (b) Administratively separate units. For gious tenets of such organization. the purposes only of this section, (b) Exemption claims. An educational §§ 1253.225 and 1253.230, and §§ 1253.300 institution or other entity that wishes through 1253.310, each administratively to claim the exemption set forth in separate unit shall be deemed to be an paragraph (a) of this section shall do so educational institution. by submitting in writing to the des- (c) Application of §§ 1253.300 through ignated agency official a statement by 1253.310. Except as provided in para- the highest-ranking official of the in- graphs (d) and (e) of this section, stitution, identifying the provisions of §§ 1253.300 through 1253.310 apply to these Title IX regulations that conflict each recipient. A recipient to which with a specific tenet of the religious or- §§ 1253.300 through 1253.310 apply shall ganization. not discriminate on the basis of sex in admission or recruitment in violation § 1253.210 Military and merchant ma- of §§ 1253.300 through 1253.310. rine educational institutions. (d) Educational institutions. Except as These Title IX regulations do not provided in paragraph (e) of this sec- apply to an educational institution tion as to recipients that are edu- whose primary purpose is the training cational institutions, §§ 1253.300 of individuals for a military service of through 1253.310 apply only to institu- the United States or for the merchant tions of vocational education, profes- marine. sional education, graduate higher education, and public institutions of un- § 1253.215 Membership practices of dergraduate higher education. certain organizations. (e) Public institutions of undergraduate (a) Social fraternities and sororities. higher education. §§ 1253.300 through These Title IX regulations do not apply 1253.310 do not apply to any public in- to the membership practices of social stitution of undergraduate higher edu- fraternities and sororities that are ex- cation that traditionally and contin- empt from taxation under section ually from its establishment has had a

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policy of admitting students of only (4) Describe in detail the steps nec- one sex. essary to eliminate as soon as practicable each obstacle so identified and § 1253.225 Educational institutions eli- indicate the schedule for taking these gible to submit transition plans. steps and the individual directly re- (a) Application. This section applies sponsible for their implementation. to each educational institution to (5) Include estimates of the number which §§ 1253.300 through 1253.310 apply of students, by sex, expected to apply that: for, be admitted to, and enter each (1) Admitted students of only one sex class during the period covered by the as regular students as of June 23, 1972; plan. or (c) Nondiscrimination. No policy or (2) Admitted students of only one sex practice of a recipient to which as regular students as of June 23, 1965, § 1253.225 applies shall result in treat- but thereafter admitted, as regular stu- ment of applicants to or students of dents, students of the sex not admitted such recipient in violation of §§ 1253.300 prior to June 23, 1965. through 1253.310 unless such treatment (b) Provision for transition plans. An is necessitated by an obstacle identi- educational institution to which this fied in paragraph (b)(3) of this section section applies shall not discriminate and a schedule for eliminating that ob- on the basis of sex in admission or re- stacle has been provided as required by cruitment in violation of §§ 1253.300 paragraph (b)(4) of this section. through 1253.310. (d) Effects of past exclusion. To overcome the effects of past exclusion of § 1253.230 Transition plans. students on the basis of sex, each edu- (a) Submission of plans. An institution cational institution to which § 1253.225 to which § 1253.225 applies and that is applies shall include in its transition composed of more than one administra- plan, and shall implement, specific tively separate unit may submit either steps designed to encourage individuals a single transition plan applicable to of the previously excluded sex to apply all such units, or a separate transition for admission to such institution. Such plan applicable to each such unit. steps shall include instituting recruit- (b) Content of plans. In order to be ap- ment programs that emphasize the in- proved by the Secretary of Education, stitution’s commitment to enrolling a transition plan shall: students of the sex previously ex- (1) State the name, address, and Fed- cluded. eral Interagency Committee on Edu- cation Code of the educational institu- § 1253.235 Statutory amendments. tion submitting such plan, the admin- (a) This section, which applies to all istratively separate units to which the provisions of these Title IX regula- plan is applicable, and the name, ad- tions, addresses statutory amendments dress, and telephone number of the per- to Title IX. son to whom questions concerning the (b) These Title IX regulations shall plan may be addressed. The person who not apply to or preclude: submits the plan shall be the chief ad- (1) Any program or activity of the ministrator or president of the institu- American Legion undertaken in con- tion, or another individual legally au- nection with the organization or oper- thorized to bind the institution to all ation of any Boys State conference, actions set forth in the plan. Boys Nation conference, Girls State (2) State whether the educational in- conference, or Girls Nation conference; stitution or administratively separate (2) Any program or activity of a sec- unit admits students of both sexes as ondary school or educational institu- regular students and, if so, when it tion specifically for: began to do so. (i) The promotion of any Boys State (3) Identify and describe with respect conference, Boys Nation conference, to the educational institution or ad- Girls State conference, or Girls Nation ministratively separate unit any obsta- conference; or cles to admitting students without dis- (ii) The selection of students to at- crimination on the basis of sex. tend any such conference;

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(3) Father-son or mother-daughter ance is extended, in the case of any activities at an educational institution other corporation, partnership, private or in an education program or activity, organization, or sole proprietorship; or but if such activities are provided for (iv) Any other entity that is estab- students of one sex, opportunities for lished by two or more of the entities reasonably comparable activities shall described in paragraphs (c)(1)(i), (ii), or be provided to students of the other (iii) of this section. sex; (2)(i) Program or activity does not in- (4) Any scholarship or other financial clude any operation of an entity that is assistance awarded by an institution of controlled by a religious organization higher education to an individual be- if the application of 20 U.S.C. 1681 to cause such individual has received such such operation would not be consistent award in a single-sex pageant based with the religious tenets of such orga- upon a combination of factors related nization. to the individual’s personal appearance, poise, and talent. The pageant, (ii) For example, all of the operations however, must comply with other non- of a college, university, or other post- discrimination provisions of Federal secondary institution, including but law. not limited to traditional educational (c) Program or activity or program operations, faculty and student hous- means: ing, campus shuttle bus service, cam- (1) All of the operations of any entity pus restaurants, the bookstore, and described in paragraphs (c)(1)(i) other commercial activities are part of through (iv) of this section, any part of a ‘‘program or activity’’ subject to which is extended Federal financial as- these Title IX regulations if the col- sistance: lege, university, or other institution (i)(A) A department, agency, special receives Federal financial assistance. purpose district, or other instrumen- (d)(1) Nothing in these Title IX regu- tality of a State or of a local govern- lations shall be construed to require or ment; or prohibit any person, or public or pri- (B) The entity of such State or local vate entity, to provide or pay for any government that distributes such as- benefit or service, including the use of sistance and each such department or facilities, related to an abortion. Med- agency (and each other State or local ical procedures, benefits, services, and government entity) to which the as- the use of facilities, necessary to save sistance is extended, in the case of as- the life of a pregnant woman or to ad- sistance to a State or local govern- dress complications related to an abor- ment; tion are not subject to this section. (ii)(A) A college, university, or other (2) Nothing in this section shall be postsecondary institution, or a public construed to permit a penalty to be im- system of higher education; or (B) A local educational agency (as de- posed on any person or individual be- fined in section 8801 of title 20), system cause such person or individual is seek- of vocational education, or other ing or has received any benefit or serv- school system; ice related to a legal abortion. Accord- (iii)(A) An entire corporation, part- ingly, subject to paragraph (d)(1) of nership, or other private organization, this section, no person shall be ex- or an entire sole proprietorship— cluded from participation in, be denied (1) If assistance is extended to such the benefits of, or be subjected to dis- corporation, partnership, private orga- crimination under any academic, ex- nization, or sole proprietorship as a tracurricular, research, occupational whole; or training, employment, or other edu- (2) Which is principally engaged in cational program or activity operated the business of providing education, by a recipient that receives Federal fi- health care, housing, social services, or nancial assistance because such indi- parks and recreation; or vidual has sought or received, or is (B) The entire plant or other com- seeking, a legal abortion, or any ben- parable, geographically separate facil- efit or service related to a legal abor- ity to which Federal financial assist- tion.

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Subpart C—Discrimination on the covery therefrom in the same manner Basis of Sex in Admission and and under the same policies as any Recruitment Prohibited other temporary disability or physical condition; and § 1253.300 Admission. (4) Shall not make pre-admission in- (a) General. No person shall, on the quiry as to the marital status of an ap- basis of sex, be denied admission, or be plicant for admission, including wheth- subjected to discrimination in admis- er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ sion, by any recipient to which A recipient may make pre-admission §§ 1253.300 through §§ 1253.310 apply, ex- inquiry as to the sex of an applicant for cept as provided in §§ 1253.225 and admission, but only if such inquiry is §§ 1253.230. made equally of such applicants of both (b) Specific prohibitions. (1) In deter- sexes and if the results of such inquiry mining whether a person satisfies any are not used in connection with dis- policy or criterion for admission, or in crimination prohibited by these Title making any offer of admission, a re- IX regulations. cipient to which §§ 1253.300 through 1253.310 apply shall not: § 1253.305 Preference in admission. (i) Give preference to one person over another on the basis of sex, by ranking A recipient to which §§ 1253.300 applicants separately on such basis, or through 1253.310 apply shall not give otherwise; preference to applicants for admission, (ii) Apply numerical limitations upon on the basis of attendance at any edu- the number or proportion of persons of cational institution or other school or either sex who may be admitted; or entity that admits as students only or (iii) Otherwise treat one individual predominantly members of one sex, if differently from another on the basis of the giving of such preference has the sex. effect of discriminating on the basis of (2) A recipient shall not administer sex in violation of §§ 1253.300 through or operate any test or other criterion 1253.310. for admission that has a disproportionately adverse effect on persons on the § 1253.310 Recruitment. basis of sex unless the use of such test or criterion is shown to predict validly (a) Nondiscriminatory recruitment. A success in the education program or ac- recipient to which §§ 1253.300 through tivity in question and alternative tests 1253.310 apply shall not discriminate on or criteria that do not have such a dis- the basis of sex in the recruitment and proportionately adverse effect are admission of students. A recipient may shown to be unavailable. be required to undertake additional re- (c) Prohibitions relating to marital or cruitment efforts for one sex as reme- parental status. In determining whether dial action pursuant to § 1253.110(a), and a person satisfies any policy or cri- may choose to undertake such efforts terion for admission, or in making any as affirmative action pursuant to offer of admission, a recipient to which § 1253.110(b). §§ 1253.300 through 1253.310 apply: (b) Recruitment at certain institutions. (1) Shall not apply any rule con- A recipient to which §§ 1253.300 through cerning the actual or potential paren- 1253.310 apply shall not recruit pri- tal, family, or marital status of a stu- marily or exclusively at educational dent or applicant that treats persons institutions, schools, or entities that differently on the basis of sex; admit as students only or predomi- (2) Shall not discriminate against or nantly members of one sex, if such ac- exclude any person on the basis of tions have the effect of discriminating pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or on the basis of sex in violation of establish or follow any rule or practice §§ 1253.300 through 1253.310. that so discriminates or excludes; (3) Subject to § 1253.235(d), shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or re-

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Subpart D—Discrimination on the foreign institution. A recipient edu- Basis of Sex in Education Pro- cational institution may administer or grams or Activities Prohibited assist in the administration of scholarships, fellowships, or other awards es- § 1253.400 Education programs or ac- tablished by foreign or domestic wills, tivities. trusts, or similar legal instruments, or (a) General. Except as provided else- by acts of foreign governments and re- where in these Title IX regulations, no stricted to members of one sex, that person shall, on the basis of sex, be ex- are designed to provide opportunities cluded from participation in, be denied to study abroad, and that are awarded the benefits of, or be subjected to dis- to students who are already matricu- crimination under any academic, ex- lating at or who are graduates of the tracurricular, research, occupational recipient institution; Provided, that a training, or other education program recipient educational institution that or activity operated by a recipient that administers or assists in the adminis- receives Federal financial assistance. tration of such scholarships, fellow- Sections 1253.400 through 1253.455 do ships, or other awards that are re- not apply to actions of a recipient in stricted to members of one sex pro- connection with admission of its stu- vides, or otherwise makes available, dents to an education program or ac- reasonable opportunities for similar tivity of a recipient to which §§ 1253.300 studies for members of the other sex. through 1253.310 do not apply, or an en- Such opportunities may be derived tity, not a recipient, to which §§ 1253.300 from either domestic or foreign through 1253.310 would not apply if the entity were a recipient. sources. (b) Specific prohibitions. Except as pro- (d) Aids, benefits or services not provided in §§ 1253.400 through 1253.455, in vided by recipient. (1) This paragraph (d) providing any aid, benefit, or service to applies to any recipient that requires a student, a recipient shall not, on the participation by any applicant, stu- basis of sex: dent, or employee in any education (1) Treat one person differently from program or activity not operated whol- another in determining whether such ly by such recipient, or that facilitates, person satisfies any requirement or permits, or considers such participa- condition for the provision of such aid, tion as part of or equivalent to an edu- benefit, or service; cation program or activity operated by (2) Provide different aid, benefits, or such recipient, including participation services or provide aid, benefits, or in educational consortia and coopera- services in a different manner; tive employment and student-teaching (3) Deny any person any such aid, assignments. benefit, or service; (2) Such recipient: (4) Subject any person to separate or (i) Shall develop and implement a different rules of behavior, sanctions, procedure designed to assure itself that or other treatment; the operator or sponsor of such other (5) Apply any rule concerning the education program or activity takes no domicile or residence of a student or action affecting any applicant, student, applicant, including eligibility for in- or employee of such recipient that state fees and tuition; these Title IX regulations would pro- (6) Aid or perpetuate discrimination hibit such recipient from taking; and against any person by providing sig- (ii) Shall not facilitate, require, per- nificant assistance to any agency, organization, or person that discrimi- mit, or consider such participation if nates on the basis of sex in providing such action occurs. any aid, benefit, or service to students § 1253.405 Housing. or employees; (7) Otherwise limit any person in the (a) Generally. A recipient shall not, enjoyment of any right, privilege, ad- on the basis of sex, apply different vantage, or opportunity. rules or regulations, impose different (c) Assistance administered by a recipi- fees or requirements, or offer different ent educational institution to study at a services or benefits related to housing,

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except as provided in this section (in- economics, music, and adult education cluding housing provided only to mar- courses. ried students). (b)(1) With respect to classes and ac- (b) Housing provided by recipient. (1) A tivities in physical education at the el- recipient may provide separate housing ementary school level, the recipient on the basis of sex. shall comply fully with this section as (2) Housing provided by a recipient to expeditiously as possible but in no students of one sex, when compared to event later than one year from Sep- that provided to students of the other tember 29, 2000. With respect to phys- sex, shall be as a whole: ical education classes and activities at (i) Proportionate in quantity to the the secondary and post-secondary lev- number of students of that sex apply- els, the recipient shall comply fully ing for such housing; and with this section as expeditiously as (ii) Comparable in quality and cost to possible but in no event later than the student. three years from September 29, 2000. (c) Other housing. (1) A recipient shall (2) This section does not prohibit not, on the basis of sex, administer dif- grouping of students in physical edu- ferent policies or practices concerning cation classes and activities by ability occupancy by its students of housing as assessed by objective standards of other than that provided by such re- individual performance developed and cipient. applied without regard to sex. (2)(i) A recipient which, through so- (3) This section does not prohibit sep- licitation, listing, approval of housing, aration of students by sex within phys- or otherwise, assists any agency, orga- ical education classes or activities dur- nization, or person in making housing ing participation in wrestling, boxing, available to any of its students, shall rugby, ice hockey, football, basketball, take such reasonable action as may be and other sports the purpose or major necessary to assure itself that such activity of which involves bodily con- housing as is provided to students of tact. one sex, when compared to that pro- (4) Where use of a single standard of vided to students of the other sex, is as measuring skill or progress in a phys- a whole: ical education class has an adverse ef- (A) Proportionate in quantity; and fect on members of one sex, the recipient shall use appropriate standards (B) Comparable in quality and cost to that do not have such effect. the student. (5) Portions of classes in elementary (ii) A recipient may render such as- and secondary schools, or portions of sistance to any agency, organization, education programs or activities, that or person that provides all or part of deal exclusively with human sexuality such housing to students of only one may be conducted in separate sessions sex. for boys and girls. § 1253.410 Comparable facilities. (6) Recipients may make requirements based on vocal range or quality A recipient may provide separate toi- that may result in a chorus or choruses let, locker room, and shower facilities of one or predominantly one sex. on the basis of sex, but such facilities provided for students of one sex shall § 1253.420 Access to schools operated be comparable to such facilities pro- by LEAs. vided for students of the other sex. A recipient that is a local educational agency shall not, on the basis § 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,

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courses, services, and facilities com- (2) Through solicitation, listing, ap- parable to each course, service, and fa- proval, provision of facilities, or other cility offered in or through such services, assist any foundation, trust, schools. agency, organization, or person that provides assistance to any of such re- § 1253.425 Counseling and use of ap- cipient’s students in a manner that dis- praisal and counseling materials. criminates on the basis of sex; or (a) Counseling. A recipient shall not (3) Apply any rule or assist in appli- discriminate against any person on the cation of any rule concerning eligi- basis of sex in the counseling or guid- bility for such assistance that treats ance of students or applicants for ad- persons of one sex differently from permission. sons of the other sex with regard to (b) Use of appraisal and counseling ma- marital or parental status. terials. A recipient that uses testing or (b) Financial aid established by certain other materials for appraising or coun- legal instruments. (1) A recipient may seling students shall not use different administer or assist in the administra- materials for students on the basis of tion of scholarships, fellowships, or their sex or use materials that permit other forms of financial assistance es- or require different treatment of stu- tablished pursuant to domestic or for- dents on such basis unless such dif- eign wills, trusts, bequests, or similar ferent materials cover the same occu- legal instruments or by acts of a for- pations and interest areas and the use eign government that require that of such different materials is shown to awards be made to members of a par- be essential to eliminate sex bias. Re- ticular sex specified therein; Provided, cipients shall develop and use internal that the overall effect of the award of procedures for ensuring that such ma- such sex-restricted scholarships, fel- terials do not discriminate on the basis lowships, and other forms of financial of sex. Where the use of a counseling assistance does not discriminate on the test or other instrument results in a basis of sex. substantially disproportionate number (2) To ensure nondiscriminatory of members of one sex in any particular awards of assistance as required in course of study or classification, the paragraph (b)(1) of this section, recipi- recipient shall take such action as is ents shall develop and use procedures necessary to assure itself that such dis- under which: proportion is not the result of discrimi- (i) Students are selected for award of nation in the instrument or its applica- financial assistance on the basis of tion. nondiscriminatory criteria and not on (c) Disproportion in classes. Where a the basis of availability of funds re- recipient finds that a particular class stricted to members of a particular sex; contains a substantially dispropor- (ii) An appropriate sex-restricted tionate number of individuals of one scholarship, fellowship, or other form sex, the recipient shall take such ac- of financial assistance is allocated to tion as is necessary to assure itself each student selected under paragraph that such disproportion is not the re- (b)(2)(i) of this section; and sult of discrimination on the basis of (iii) No student is denied the award sex in counseling or appraisal mate- for which he or she was selected under rials or by counselors. paragraph (b)(2)(i) of this section because of the absence of a scholarship, § 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.

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(2) A recipient may provide separate student’s pregnancy, childbirth, false athletic scholarships or grants-in-aid pregnancy, termination of pregnancy, for members of each sex as part of sep- or recovery therefrom, unless the stu- arate athletic teams for members of dent requests voluntarily to partici- each sex to the extent consistent with pate in a separate portion of the pro- this paragraph (c) and § 1253.450. gram or activity of the recipient. (2) A recipient may require such a § 1253.435 Employment assistance to students. student to obtain the certification of a physician that the student is phys- (a) Assistance by recipient in making ically and emotionally able to continue available outside employment. A recipi- participation as long as such a certifi- ent that assists any agency, organiza- cation is required of all students for tion, or person in making employment available to any of its students: other physical or emotional conditions (1) Shall assure itself that such em- requiring the attention of a physician. ployment is made available without (3) A recipient that operates a por- discrimination on the basis of sex; and tion of its education program or activ- (2) Shall not render such services to ity separately for pregnant students, any agency, organization, or person admittance to which is completely vol- that discriminates on the basis of sex untary on the part of the student as in its employment practices. provided in paragraph (b)(1) of this sec- (b) Employment of students by recipi- tion, shall ensure that the separate ents. A recipient that employs any of portion is comparable to that offered its students shall not do so in a manner to non-pregnant students. that violates §§ 1253.500 through (4) Subject to § 1253.235(d), a recipient 1253.550. shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy § 1253.440 Health and insurance benefits and services. and recovery therefrom in the same manner and under the same policies as Subject to § 1253.235(d), in providing a any other temporary disability with re- medical, hospital, accident, or life inspect to any medical or hospital ben- surance benefit, service, policy, or plan efit, service, plan, or policy that such to any of its students, a recipient shall not discriminate on the basis of sex, or recipient administers, operates, offers, provide such benefit, service, policy, or or participates in with respect to stu- plan in a manner that would violate dents admitted to the recipient’s edu- §§ 1253.500 through 1253.550 if it were cational program or activity. provided to employees of the recipient. (5) In the case of a recipient that does This section shall not prohibit a recipi- not maintain a leave policy for its stu- ent from providing any benefit or serv- dents, or in the case of a student who ice that may be used by a different pro- does not otherwise qualify for leave portion of students of one sex than of under such a policy, a recipient shall the other, including family planning treat pregnancy, childbirth, false preg- services. However, any recipient that nancy, termination of pregnancy, and provides full coverage health service recovery therefrom as a justification shall provide gynecological care. for a leave of absence for as long a period of time as is deemed medically § 1253.445 Marital or parental status. necessary by the student’s physician, (a) Status generally. A recipient shall at the conclusion of which the student not apply any rule concerning a stu- shall be reinstated to the status that dent’s actual or potential parental, she held when the leave began. family, or marital status that treats students differently on the basis of sex. § 1253.450 Athletics. (b) Pregnancy and related conditions. (1) A recipient shall not discriminate (a) General. No person shall, on the against any student, or exclude any basis of sex, be excluded from partici- student from its education program or pation in, be denied the benefits of, be activity, including any class or extra- treated differently from another per- curricular activity, on the basis of such son, or otherwise be discriminated

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against in any interscholastic, inter- itures for members of each sex or un- collegiate, club, or intramural ath- equal expenditures for male and female letics offered by a recipient, and no re- teams if a recipient operates or spon- cipient shall provide any such athletics sors separate teams will not constitute separately on such basis. noncompliance with this section, but (b) Separate teams. Notwithstanding the designated agency official may the requirements of paragraph (a) of consider the failure to provide nec- this section, a recipient may operate or essary funds for teams for one sex in sponsor separate teams for members of assessing equality of opportunity for each sex where selection for such members of each sex. teams is based upon competitive skill (d) Adjustment period. A recipient that or the activity involved is a contact operates or sponsors interscholastic, sport. However, where a recipient oper- intercollegiate, club, or intramural ates or sponsors a team in a particular athletics at the elementary school sport for members of one sex but oper- level shall comply fully with this sec- ates or sponsors no such team for mem- tion as expeditiously as possible but in bers of the other sex, and athletic op- no event later than one year from Sep- portunities for members of that sex tember 29, 2000. A recipient that oper- have previously been limited, members ates or sponsors interscholastic, inter- of the excluded sex must be allowed to collegiate, club, or intramural ath- try out for the team offered unless the letics at the secondary or postsec- sport involved is a contact sport. For ondary school level shall comply fully the purposes of these Title IX regula- with this section as expeditiously as tions, contact sports include boxing, possible but in no event later than wrestling, rugby, ice hockey, football, three years from September 29, 2000. basketball, and other sports the pur- § 1253.455 Textbooks and curricular pose or major activity of which in- material. volves bodily contact. (c) Equal opportunity. (1) A recipient Nothing in these Title IX regulations that operates or sponsors inter- shall be interpreted as requiring or pro- scholastic, intercollegiate, club, or in- hibiting or abridging in any way the tramural athletics shall provide equal use of particular textbooks or cur- athletic opportunity for members of ricular materials. both sexes. In determining whether equal opportunities are available, the Subpart E—Discrimination on the designated agency official will con- Basis of Sex in Employment in sider, among other factors: Education Programs or Activi- (i) Whether the selection of sports ties Prohibited and levels of competition effectively accommodate the interests and abili- § 1253.500 Employment. ties of members of both sexes; (a) General. (1) No person shall, on (ii) The provision of equipment and the basis of sex, be excluded from par- supplies; ticipation in, be denied the benefits of, (iii) Scheduling of games and prac- or be subjected to discrimination in tice time; employment, or recruitment, consider- (iv) Travel and per diem allowance; ation, or selection therefor, whether (v) Opportunity to receive coaching full-time or part-time, under any edu- and academic tutoring; cation program or activity operated by (vi) Assignment and compensation of a recipient that receives Federal finan- coaches and tutors; cial assistance. (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.

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(3) A recipient shall not enter into (10) Any other term, condition, or any contractual or other relationship privilege of employment. which directly or indirectly has the effect of subjecting employees or stu- § 1253.505 Employment criteria. dents to discrimination prohibited by A recipient shall not administer or §§ 1253.500 through 1253.550, including operate any test or other criterion for relationships with employment and re- any employment opportunity that has ferral agencies, with labor unions, and a disproportionately adverse effect on with organizations providing or admin- persons on the basis of sex unless: istering fringe benefits to employees of (a) Use of such test or other criterion the recipient. is shown to predict validly successful (4) A recipient shall not grant pref- performance in the position in ques- erences to applicants for employment tion; and on the basis of attendance at any edu- (b) Alternative tests or criteria for cational institution or entity that ad- such purpose, which do not have such mits as students only or predominantly disproportionately adverse effect, are members of one sex, if the giving of shown to be unavailable. such preferences has the effect of discriminating on the basis of sex in vio- § 1253.510 Recruitment. lation of these Title IX regulations. (a) Nondiscriminatory recruitment and (b) Application. The provisions of hiring. A recipient shall not discrimi- §§ 1253.500 through 1253.550 apply to: nate on the basis of sex in the recruit- (1) Recruitment, advertising, and the ment and hiring of employees. Where a process of application for employment; recipient has been found to be pres- (2) Hiring, upgrading, promotion, ently discriminating on the basis of sex consideration for and award of tenure, in the recruitment or hiring of employ- demotion, transfer, layoff, termi- ees, or has been found to have so dis- nation, application of nepotism poli- criminated in the past, the recipient cies, right of return from layoff, and shall recruit members of the sex so dis- rehiring; criminated against so as to overcome (3) Rates of pay or any other form of the effects of such past or present dis- compensation, and changes in com- crimination. pensation; (b) Recruitment patterns. A recipient shall not recruit primarily or exclu- (4) Job assignments, classifications, sively at entities that furnish as appli- and structure, including position de- cants only or predominantly members scriptions, lines of progression, and se- of one sex if such actions have the ef- niority lists; fect of discriminating on the basis of (5) The terms of any collective bar- sex in violation of §§ 1253.500 through gaining agreement; 1253.550. (6) Granting and return from leaves of absence, leave for pregnancy, child- § 1253.515 Compensation. birth, false pregnancy, termination of A recipient shall not make or enforce pregnancy, leave for persons of either any policy or practice that, on the sex to care for children or dependents, basis of sex: or any other leave; (a) Makes distinctions in rates of pay (7) Fringe benefits available by vir- or other compensation; tue of employment, whether or not ad- (b) Results in the payment of wages ministered by the recipient; to employees of one sex at a rate less (8) Selection and financial support than that paid to employees of the op- for training, including apprenticeship, posite sex for equal work on jobs the 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:

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(a) Classify a job as being for males wage earner in such employee’s or ap- or for females; plicant’s family unit. (b) Maintain or establish separate (b) Pregnancy. A recipient shall not lines of progression, seniority lists, ca- discriminate against or exclude from reer ladders, or tenure systems based employment any employee or applicant on sex; or for employment on the basis of preg- (c) Maintain or establish separate nancy, childbirth, false pregnancy, ter- lines of progression, seniority systems, mination of pregnancy, or recovery career ladders, or tenure systems for therefrom. similar jobs, position descriptions, or (c) Pregnancy as a temporary disability. job requirements that classify persons Subject to § 1253.235(d), a recipient shall on the basis of sex, unless sex is a bona treat pregnancy, childbirth, false preg- fide occupational qualification for the nancy, termination of pregnancy, re- positions in question as set forth in covery therefrom, and any temporary § 1253.550. disability resulting therefrom as any other temporary disability for all job- § 1253.525 Fringe benefits. related purposes, including commence- (a) ‘‘Fringe benefits’’ defined. For pur- ment, duration, and extensions of poses of these Title IX regulations, leave, payment of disability income, fringe benefits means: Any medical, hos- accrual of seniority and any other ben- pital, accident, life insurance, or re- efit or service, and reinstatement, and tirement benefit, service, policy or under any fringe benefit offered to em- plan, any profit-sharing or bonus plan, ployees by virtue of employment. leave, and any other benefit or service (d) Pregnancy leave. In the case of a of employment not subject to the pro- recipient that does not maintain a vision of § 1253.515. leave policy for its employees, or in the case of an employee with insufficient (b) Prohibitions. A recipient shall not: leave or accrued employment time to (1) Discriminate on the basis of sex qualify for leave under such a policy, a with regard to making fringe benefits recipient shall treat pregnancy, child- available to employees or make fringe birth, false pregnancy, termination of benefits available to spouses, families, pregnancy, and recovery therefrom as a or dependents of employees differently justification for a leave of absence upon the basis of the employee’s sex; without pay for a reasonable period of (2) Administer, operate, offer, or par- time, at the conclusion of which the ticipate in a fringe benefit plan that employee shall be reinstated to the sta- does not provide for equal periodic ben- tus that she held when the leave began efits for members of each sex and for or to a comparable position, without equal contributions to the plan by such decrease in rate of compensation or recipient for members of each sex; or loss of promotional opportunities, or (3) Administer, operate, offer, or par- any other right or privilege of employ- ticipate in a pension or retirement plan ment. that establishes different optional or compulsory retirement ages based on § 1253.535 Effect of state or local law sex or that otherwise discriminates in or other requirements. benefits on the basis of sex. (a) Prohibitory requirements. The obligation to comply with §§ 1253.500 § 1253.530 Marital or parental status. through 1253.550 is not obviated or alle- (a) General. A recipient shall not viated by the existence of any State or apply any policy or take any employ- local law or other requirement that im- ment action: poses prohibitions or limits upon em- (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,

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service, or benefit to members of the shall periodically republish the notice other sex. of covered programs to reflect changes in covered programs. Copies of this no- § 1253.540 Advertising. tice also shall be made available upon A recipient shall not in any adver- request to the Federal agency’s office tising related to employment indicate that enforces Title IX. preference, limitation, specification, or discrimination based on sex unless sex § 1253.605 Enforcement procedures. is a bona fide occupational qualifica- The investigative, compliance, and tion for the particular job in question. enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 § 1253.545 Pre-employment inquiries. (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby (a) Marital status. A recipient shall adopted and applied to these Title IX not make pre-employment inquiry as regulations. These procedures may be to the marital status of an applicant found at 14 CFR 1250.105 through for employment, including whether 1250.110. such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ [65 FR 52877, Aug. 30, 2000] (b) Sex. A recipient may make preemployment inquiry as to the sex of an applicant for employment, but only if PART 1259—NATIONAL SPACE such inquiry is made equally of such GRANT COLLEGE AND FELLOW- applicants of both sexes and if the re- SHIP PROGRAM sults of such inquiry are not used in connection with discrimination prohib- Subpart 1—Basic Policy ited by these Title IX regulations. Sec. § 1253.550 Sex as a bona fide occupa- 1259.100 Scope of part. tional qualification. 1259.101 Definitions. 1259.102 General policy. A recipient may take action other- 1259.103 Space authorities—regular and spe- wise prohibited by §§ 1253.500 through cial. 1253.550 provided it is shown that sex is a bona fide occupational qualification Subpart 2—Space Grant Program and for that action, such that consider- Project Awards ation of sex with regard to such action 1259.200 Description. is essential to successful operation of 1259.201 Types of Space Grant program and the employment function concerned. A project awards—regular and special. recipient shall not take action pursu- 1259.202 Application procedures. ant to this section that is based upon 1259.203 Limitations. alleged comparative employment characteristics or stereotyped characteriza- Subpart 3—National Needs Grants tions of one or the other sex, or upon 1259.300 Description. preference based on sex of the recipi- 1259.301 Identification of national needs. ent, employees, students, or other per- 1259.302 Application procedures. sons, but nothing contained in this sec- 1259.303 Limitations. tion shall prevent a recipient from con- Subpart 4—Space Grant College and sidering an employee’s sex in relation Consortium Designation to employment in a locker room or toi- let facility used only by members of 1259.400 Description. one sex. 1259.401 Responsibilities. 1259.402 Basic criteria and application procedures. Subpart F—Procedures 1259.403 Limitations. 1259.404 Suspension or termination of des- § 1253.600 Notice of covered programs. ignation. Within 60 days of September 29, 2000, each Federal agency that awards Fed- Subpart 5—Space Grant Fellowships eral financial assistance shall publish 1259.500 Description. in the FEDERAL REGISTER a notice of 1259.501 Responsibilities. the programs covered by these Title IX 1259.502 Application procedures. regulations. Each such Federal agency 1259.503 Limitations.

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Subpart 6—Space Grant Review Panel ics, sociology, communications, planning, law, international affairs and 1259.600 Panel description. 1259.601 Establishment and composition. public administration) which is con- 1259.602 Conflict of interest. cerned with or likely to improve the 1259.603 Responsibilities. understanding, assessment, development and utilization of space. AUTHORITY: Pub. L. 100–147, 101 Stat. 869– 875; Sec. 3, Pub. L. 111–314, 124 Stat. 3382; 51 (b) Institution of higher education U.S.C. 40301–40311. means any college or university in any state that: SOURCE: 54 FR 19880, May 9, 1989, unless otherwise noted. (1) Admits as regular students only individuals who have a certificate of Subpart 1—Basic Policy graduation or equivalent from a secondary school; § 1259.100 Scope of part. (2) Is legally authorized within such (a) This part 1259 establishes the poli- State to provide a program of edu- cies, responsibilities, and procedures cation beyond secondary education; relative to the National Space Grant (3) Provides an educational program College and Fellowship Program estab- for which a bachelor’s degree or other lished by Title II of the National Aero- higher degree is awarded; nautics and Space Administration (4) Is a public or other nonprofit in- (NASA) Authorization Act of 1988 (Pub. stitution; and L. 100–147, 101 Stat. 869–875, now codi- (5) Is accredited by a nationally rec- fied at 51 U.S.C. 40301–40311 as a result ognized accrediting agency or associa- of Sec. 3, Pub. L. 111–314, 124 Stat. 3382). tion. This statute authorizes the Adminis- (c) National of the United States means trator of NASA, in order to carry out a citizen of the United States or a na- the purposes of the National Space tive resident of a possession of the Grant College and Fellowship Act (the United States. It does not refer to or Act), to accept conditional or uncondi- include a citizen of another country tional gifts and donations; to accept who has applied for United States citi- and use funds from other Federal de- zenship. partments, agencies, and instrumental- (d) Panel means the Space Grant Re- ities; to make awards with respect to view Panel established pursuant to sec- such needs or problems; and to des- tion 210 of the Act. ignate Space Grant colleges. It further (e) Person means any individual, pub- directs the Administrator to establish lic or private corporation, partnership a graduate fellowship program to pro- or other association or entity (includ- vide educational assistance to qualified ing any Space Grant college, Space individuals in fields related to space Grant consortium, institution of high- and to establish an independent com- er education, institute or laboratory), mittee known as the Space Grant Re- or any State, political subdivision view Panel to review and advise the thereof, or agency or officer of a State Administrator with respect to Space or political subdivision thereof. Grant programs. (f) Space means aeronautical and space (b) The regulations of this part do activities which has the meaning given not apply to awards made by NASA to such term in section 103(1) of the Na- under any other authority. tional Aeronautics and Space Act of [54 FR 19880, May 9, 1989, as amended at 82 1958, as amended (51 U.S.C. 20103). FR 35440, July 31, 2017] (g) Space Grant college means any public or private institution of higher § 1259.101 Definitions. education that is designated as such by For the purposes of this part, the fol- the Administrator or designee pursu- lowing definitions shall apply: ant to section 208 of the Act. (a) Field related to space means any (h) Space Grant regional consortium academic discipline or field of study means any association or other alli- (including the physical, natural and bi- ance that is designated as such by the ological sciences, and engineering, Administrator or designee pursuant to space technology, education, econom- section 208 of the Act.

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(i) Space Grant program means any opportunities afforded by the space en- program which: vironment; (1) Is administered by any Space (3) Encourage and support the exist- Grant college, Space Grant regional ence of interdisciplinary and multi- consortium, institution of higher edu- disciplinary programs of space research cation, institute, laboratory or State to engage in activities of training (in- or local agency; and cluding teacher education), research, (2) Includes two or more projects in- and public service and to have coopera- volving education and one or more of tive programs with industry; the following activities in the fields re- (4) Encourage and support the exist- lated to space: ence of consortia, composed of univer- (i) Research; sity and industry members, to advance (ii) Training; or the exploration and development of (iii) Advisory services. space resources in cases in which na- (j) Space Grant program award means tional objectives can be better fulfilled any award contemplated under section than through the programs of single 206(a) of the Act. universities; (k) Special Space Grant program award (5) Encourage and support Federal means any award extended under sec- funding for graduate fellowships in tion 206(b) of the Act. fields related to space; (l) Specific national need grant means (6) Support activities in colleges and any award extended under section 207 universities generally for the purpose of the Act. of creating and operating a network of (m) State means any State of the institutional programs that will en- United States, the District of Colum- hance achievements resulting from ef- bia, the Commonwealth of Puerto Rico, forts under this Act; and the Virgin Islands, Guam, American (7) Encourage cooperation and co- Samoa, the Commonwealth of the ordination among Federal agencies and Northern Mariana Islands and any Federal programs concerned with space other territory or possession of the issues. United States. (b) It shall be NASA’s policy to des- (n) State Space Grant cooperating insti- ignate Space Grant colleges, State means any institution of higher tution Space Grant cooperating institutions, education in a state that does not have and Space Grant regional consortia and a designated Space Grant college, and award fellowships, grants, contracts, that is named by the Administrator or and other transactions competitively designee to provide selected Space in a merit-based review process. Grant program functions within that state. (c) It shall be NASA’s policy to designate and make awards without re- [54 FR 19880, May 9, 1989, as amended at 82 gard to age, color, disability, national FR 35440, July 31, 2017] origin, race, religion, or sex. § 1259.102 General policy. [82 FR 35440, July 31, 2017] (a) In compliance with the National § 1259.103 Space authorities—regular Space Grant College and Fellowship and special. Act (51 U.S.C. 40301–40311), it shall be NASA’s purpose to: (a) Acceptance of gifts: (1) Increase the understanding, as- (1) In order to carry out the provi- sessment, development, and utilization sions of the Act, the Administrator is of space resources by promoting a authorized to accept conditional or un- strong educational base, responsive re- conditional gifts or donations of serv- search and training activities, and ices, money, or property; real, per- broad and prompt dissemination of sonal, or mixed; tangible or intangible. knowledge and techniques; This authority is delegated to the Di- (2) Utilize the abilities and talents of rector, NASA Space Grant Program. the universities of the Nation to sup- (2) The Administrator or designee port and contribute to the exploration may decline any gift or donation that and development of the resources and the Administrator determines is not in

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accord with the purposes of the pro- tor, NASA Space Grant Program, de- gram. Also, conditional gifts or dona- termines that: tions that are not in compliance with (1) No reasonable means is available the Act or the implementing regula- through which the applicant can meet tions shall be declined. NASA may use the matching requirements for a reg- a reasonable amount from a gift or do- ular Space Grant award under para- nation to cover any administrative graph (a) of this section; costs associated with such gift or dona- (2) The probable benefit of such pro- tion. gram or project outweighs the public (b) Acceptance and use of funds from other Federal agencies: interest in such matching requirement; (1) To carry out the provisions of the and Act, the Administrator is authorized to (3) The same or equivalent benefit accept and use funds from other Fed- cannot be obtained through the award eral departments, agencies, and instru- of a regular Space Grant program or mentalities to pay for awards under project award under paragraph (a) of this program. This authority is dele- this section or the award of a specific gated to the Director, NASA Space national need grant under section 207 Grant Program. of the Act. (2) The Administrator or designee may decline any such funds when the [54 FR 19880, May 9, 1989, as amended at 82 Administrator determines acceptance FR 35441, July 31, 2017] would not be in accord with the purposes of the program. NASA may use a § 1259.202 Application procedures. reasonable amount from transferred (a) The opportunity to apply shall be Federal funds to cover any administra- announced by the Director, NASA tive costs associated with such trans- Space Grant Program. fer. (b) The application procedures and [54 FR 19880, May 9, 1989, as amended at 82 evaluation guidelines for awards under FR 35440, July 31, 2017] this section will be included in the announcements of such programs. Subpart 2—Space Grant Program (c) The applications will be reviewed and Project Awards by a peer review merit selection panel appointed by the Director, NASA Space § 1259.200 Description. Grant Program. Awards are authorized to establish [54 FR 19880, May 9, 1989, as amended at 82 any Space Grant and/or fellowship pro- FR 35441, July 31, 2017] gram or project if such program or project will further the purposes of the § 1259.203 Limitations. Act. The Act at Public Law 100–147, Sec- § 1259.201 Types of Space Grant pro- tion 206(d)(2) and (3), states that: gram and project awards—regular (a) Funds for awards made under this and special. section may not be used to: (a) A regular Space Grant program or (1) Purchase land; project award shall: (2) Purchase, construct, preserve or (1) Be funded by NASA in an amount repair any building; or not to exceed 66 percent of the total (3) Purchase or construct any launch cost of the Space Grant award and/or facility or launch vehicle. fellowship program involved; or (b) However, funds may be used to (2) Be funded in an amount not to exceed 100 percent of its cost if the lease any of the items listed in para- project award is funded by another graph (a) of this section provided prior Federal entity. written approval is obtained from the (b) A special Space Grant program or Administrator or designee. project award may be funded in an [54 FR 19880, May 9, 1989, as amended at 82 amount not to exceed 100 percent of the FR 35441, July 31, 2017] total cost of the special project if the Administrator or designee, the Direc-

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Subpart 3—National Needs Grants thority to the Director, NASA Space Grant Program. § 1259.300 Description. (b) Designation of Space Grant col- National needs awards may be award- leges, Space Grant college consortia, ed by the Administrator or designee, and Space Grant regional consortia Director, NASA Space Grant Program, shall be for five years. Designation of to meet such needs or problems relat- Space Grant colleges and consortia ing to aerospace identified by the may be continued for more than five Space Grant Review Panel, by NASA years based on the results of a merit officials, or by any person. NASA may review at the beginning of the fifth fund such awards in an amount not to year. A claim arising in the United exceed 100 percent of the total cost of States should be submitted to the Chief the program or project. Counsel of the NASA installation whose activities are believed to have [82 FR 35441, July 31, 2017] given rise to the claimed injury, loss, or death. If the identity of such instal- § 1259.301 Identification of national needs. lation is not known, or if the claim arose in a foreign country, the claim National needs shall be identified by should be submitted to the General the Administrator who shall consider Counsel, Headquarters, National Aero- specific national needs and problems nautics and Space Administration, relating to space proposed by the Space Washington, DC 20546. Grant Review Panel, any NASA official (c) Each designated Space Grant col- or any person. lege or consortium will receive: § 1259.302 Application procedures. (1) A Space Grant award that requires a 100 percent match; and (a) The Administrator or designee (2) Funds for fellowships. has the authority to make awards to (d) Each Space Grant college or con- meet identified national needs. sortium will be funded annually. (b) The Director, NASA Space Grant Program shall establish a competitive, [54 FR 19880, May 9, 1989, as amended at 82 merit-based review process to examine FR 35441, July 31, 2017] unsolicited national needs proposals. § 1259.401 Responsibilities. [54 FR 19880, May 9, 1989, as amended at 82 FR 35441, July 31, 2017] Each designated Space Grant college or consortium shall: § 1259.303 Limitations. (a) Designate a Space Grant Program The same limitations shall apply as Director; are stated in § 1259.203. (b) Establish a Space Grant Office; (c) Administer a fellowship program; Subpart 4—Space Grant College (d) Develop and implement programs of public service, interdisciplinary and Consortium Designation space-related programs, advisory ac- § 1259.400 Description. tivities, and cooperation with industry, research laboratories, state and local (a) The Administrator may designate governments, and other colleges and Space Grant colleges, Space Grant col- universities, particularly institutions lege consortia, and Space Grant re- in their state and/or region with sig- gional consortia in order to establish nificantly large enrollments of minor- Federal/university partnerships to pro- ity students who are under-represented mote a strong educational base in the in science and technology; and space and aeronautical sciences. These (e) Provide non-Federal matching designated colleges and consortia will funds (exclusive of in-kind contribu- provide leadership for a network of tions) for the Space Grant program American colleges and universities, in- equal to those provided by NASA. dustry, and state and local governments in space-related fields. The Ad- [54 FR 19880, May 9, 1989, as amended at 82 ministrator hereby delegates this au- FR 35441, July 31, 2017]

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§ 1259.402 Basic criteria and applica- § 1259.404 Suspension or termination tion procedures. of designation. (a) Any institution of higher edu- The Administrator or designee, Di- cation may be designated a Space rector, NASA Space Grant Program, Grant college if the Administrator or may, for cause, after an opportunity designee, Director, NASA Space Grant for a hearing before a Federal adminis- Program, determines that it has a bal- trative judge appointed by the Deputy anced program of research, education, Administrator, suspend or terminate training, and advisory services in fields the Space Grant designation of any in- related to space, as further defined in stitution or consortium. the program announcement. (b) Any association or other alliance [82 FR 35441, July 31, 2017] of two or more persons may be designated a Space Grant regional consor- Subpart 5—Space Grant tium, if the Administrator or designee, Fellowships Director, National Space Grant Pro- gram, determines that such association § 1259.500 Description. or alliance: The Space Grant fellowship program (1) Is established for the purpose of will provide educational and training sharing expertise, research, edu- assistance to qualified individuals at cational or training facilities and other the graduate level in fields related to capabilities in order to facilitate re- space. Awards will be made to institu- search, education, training and advi- tions of higher education for fellow- sory services, in any field related to ships. The student recipients shall be space; referred to as NASA Space Grant Fel- (2) Will encourage and follow a re- lows. gional approach to solving problems or meeting needs relating to space, in co- [82 FR 35442, July 31, 2017] operation with other institutions of higher education, Space Grant program § 1259.501 Responsibilities. grantees and other persons in the re- (a) All institutions that receive gion. Space Grant fellowships shall use the (c) The opportunity to apply for des- awards to increase the pool of graduate ignation shall be announced by the Di- students in fields related to space. rector, NASA Space Grant Program. (b) The overall fellowship program The application procedures and evalua- shall be cognizant of the importance of tion guidelines for designation shall be achieving institutional and geo- included in the designation announce- graphical diversity. ment. (d) Designation will be decided by a [82 FR 35442, July 31, 2017] competitive merit review of the pro- § 1259.502 Application procedures. gram proposal measured against the purposes of the Act and including, but (a) All applicants for designation as not limited to, proposed linkages with Space Grant colleges and consortia other colleges and universities (par- shall apply for Space Grant fellow- ticularly institutions with significant ships. enrollments of under-represented mi- (b) Applicants for Space Grant pro- nority groups), public service and col- gram or project grants (under § 1259.200) laboration with space-related industry. and for national needs grants (under § 1259.300) may also apply for Space [54 FR 19880, May 9, 1989, as amended at 82 FR 35441, July 31, 2017] Grant fellowships. (c) There shall be a merit review se- § 1259.403 Limitations. lection for Space Grant fellowship awards. The same limitations shall apply as stated in § 1259.203. [54 FR 19880, May 9, 1989, as amended at 82 FR 35442, July 31, 2017] [82 FR 35441, July 31, 2017]

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§ 1259.503 Limitations. with the Space Grant program at a uni- (a) Fellowships shall be awarded only versity that is not a designated Space to Nationals of the United States. Grant college, a university president or (b) Any students supported under this chancellor, one representative from a fellowship program shall not be funded space-related industry, and the last for more than four years unless the Di- person to be from whatever field the rector, NASA Space Grant Program, Administrator determines to be of makes an exception in writing. greatest concern. [54 FR 19880, May 9, 1989, as amended at 82 (d) The Panel members shall be ap- FR 35442, July 31, 2017] pointed by the Administrator or designee. Subpart 6—Space Grant Review (e) The relevant organizations and Panel associations in aerospace and science education fields will be asked to pro- § 1259.600 Panel description. vide three names for each position on An independent committee, the the panel. The Administrator shall Space Grant Review Panel (Panel), consider them, but not be limited to which is not subject to the Federal Ad- them, in the selection process. visory Committee Act, shall be estab- (f) The Administrator or designee, lished to advise the Administrator with Director, NASA Space Grant Program, respect to Space Grant program and shall select a Chair and a Vice Chair project awards, the Space Grant fellow- for the Panel. The Vice Chair shall act ship program, and the designation and as Chair in the absence or incapacity of operation of Space Grant colleges and the Chair. consortia. A majority of the voting (g) The Administrator or designee, members shall be individuals who, by Director, NASA Space Grant Program, reason of their knowledge, experience, may select NASA officials to serve as or training, are especially qualified in ex officio, non-voting members of the one or more of the fields related to space. The other voting members shall Panel. be individuals who, by reason of their [54 FR 19880, May 9, 1989, as amended at 82 knowledge, experience, or training, are FR 35442, July 31, 2017] especially qualified in, or representative of, education, extension services, § 1259.602 Conflict of interest. state government, industry, economics, Any member of the Panel who has a planning, or any other activity related personal or financial interest in an to the purposes of the Space Grant pro- issue for consideration before the Panel gram. shall abstain from all discussion and [82 FR 35442, July 31, 2017] voting on such issue. § 1259.601 Establishment and composi- [82 FR 35442, July 31, 2017] tion. (a) The Panel, to be located at NASA § 1259.603 Responsibilities. Headquarters in Washington, DC, will (a) The Panel shall advise the Admin- be composed of ten (10) voting members istrator and designee, Director, NASA who are not current NASA employees. Space Grant Program, with respect to: (b) The Panel shall include four rep- (1) Applications or proposals for, and resentatives from Federal depart- performance under, awards made pur- ments, agencies, or entities that have suant to sections 206 and 207 of Title II an interest in space programs or of the Act; science and education, as well as six representatives from non-Federal enti- (2) The Space Grant fellowship pro- ties. gram; (c) The non-Federal representatives (3) The designation and operation of shall include two persons who are di- Space Grant colleges and Space Grant rectly involved with the Space Grant regional consortia, and the operation program at a Space Grant college or of Space Grant and fellowship pro- consortium, one person who is involved grams;

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(4) The formulation and application Subpart 1261.2 [Reserved] of the planning guidelines and priorities pursuant to section 205 (a) and Subpart 1261.3—Claims Against NASA or (b)(1) of Title II of the Act; and Its Employees for Damage to or Loss of (5) Such other matters as the Admin- Property or Personal Injury or Death— Accruing On or After January 18, 1967 istrator refers to the Panel for review and advice. 1261.300 Scope of subpart. (b) The Panel shall meet biannually 1261.301 Authority. and at any other time at the call of the 1261.302 Claim. 1261.303 Claimant. Chair or upon a request from a major- 1261.304 Place of filing claim. ity of the voting members or at the 1261.305 Form of claim. call of the Administrator. 1261.306 Evidence and information required. (c) The Panel may exercise such pow- 1261.307 Time limitations. ers as reasonably necessary in order to 1261.308 NASA officials authorized to act carry out the duties enumerated in upon claims. 1261.309 Action under the Federal Tort paragraph (a) of this section. Claims Act. (d) The Director, NASA Space Grant 1261.310 Investigation of claims. Program, shall appoint an Executive 1261.311 Claims requiring Department of Secretary who shall perform adminis- Justice approval or consultation. trative duties for the Panel. 1261.312 Action on approved claims. 1261.313 Required notification in the event (e) Federal members of the Panel will of denial. have their agencies reimbursed by 1261.314 [Reserved] NASA for any travel costs and per 1261.315 Procedures for the handling of law- diem expenses required to attend Panel suits against NASA employees arising meetings. within the scope of their office or employment. (f) Nonfederal members of the Panel 1261.316 Policy. will be reimbursed by NASA for travel 1261.317 Attorney-client privilege. costs and per diem expenses required to attend Panel meetings. Subpart 1261.4—Collection of Civil Claims of the United States Arising Out of the [54 FR 19880, May 9, 1989, as amended at 82 Activities of the National Aeronautics FR 35442, July 31, 2017] and Space Administration (NASA) PART 1260 [RESERVED] 1261.400 Scope of subpart. 1261.401 Definitions. 1261.402 Delegation of authority. PART 1261—PROCESSING OF 1261.403 Consultation with appropriate offi- MONETARY CLAIMS (GENERAL) cials; negotiation. 1261.404 Services of the Inspector General. 1261.405 Subdivision of claims not author- Subpart 1261.1—Employees’ Personal ized; other administrative proceedings. Property Claims 1261.406 Aggressive collection action; documentation. Sec. 1261.407 Demand for payment; limitation pe- 1261.100 Scope of subpart. riods. 1261.101 Claimants. 1261.408 Use of consumer reporting agency. 1261.102 Maximum amount. 1261.409 Contracting for collection services. 1261.103 Time limitations. 1261.410 Suspension or revocation of license 1261.104 Allowable claims. or eligibility; liquidation of collateral. 1261.105 Unallowable claims. 1261.411 Collection in installments. 1261.106 Submission of claims. 1261.412 Interest, penalties, and administra- 1261.107 Evidence in support of claim. tive costs. 1261.413 Analysis of costs; automation; pre- 1261.108 Recovery from carriers, insurers, vention of overpayments, delinquencies, and other third parties. or defaults. 1261.109 Computation of allowance. 1261.414 Compromise of claims. 1261.110 Settlement of claims. 1261.415 Execution of releases. 1261.416 Suspending or terminating collection action. 1261.417 Referral to Department of Justice or Government Accountability Office.

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1261.418 Transfer of debts to Treasury for (2) A member of the uniformed serv- collection. ices (Army, Navy, Air Force, Marine Corps, Coast Guard, Coast and Geodetic Subpart 1261.5—Administrative Offset of Survey and Public Health Service) as- Claims signed to duty with or under the juris- 1261.500 Scope of subpart. diction of NASA; 1261.501 Definition. (3) The authorized agent or legal rep- 1261.502 Notification procedures. resentative of a person named in para- 1261.503 Agency records inspection; hearing graph (a)(1) or (2) of this section; or or review. (4) The survivors of a person named 1261.504 Interagency requests. in paragraph (a)(1) or (2) of this section 1261.505 Multiple debts. in the following order of precedence: 1261.506 Limitation periods. Spouse; children, father or mother, or 1261.507 Civil Service Retirement and Dis- both; or brothers or sisters, or both. ability Fund. 1261.508 Offset against a judgment. Claims by survivors may be allowed whether arising before, concurrently Subpart 1261.6—Collection by Offset From with, or after the decedent’s death, if Indebted Government Employees otherwise covered by this subpart. (b) Employees of contractors with 1261.600 Purpose of subpart. the United States and employees of 1261.601 Scope of subpart. nonappropriated fund activities are not 1261.602 Definitions. included within the meaning of para- 1261.603 Procedures for salary offset. 1261.604 Nonwaiver of rights by involuntary graph (a)(1) or (2) of this section. setoff. (c) Claims may not be made by or for 1261.605 Refunds. the benefit of a subrogee, assignee, con- 1261.606 Salary offset request by a creditor ditional vendor, or other third party. agency other than NASA (the current paying agency). § 1261.102 Maximum amount. 1261.607 Obtaining the services of a hearing From October 1, 1982, to October 30, official. 1988, the maximum amount that may AUTHORITY: Subparts 1261.4, 1261.5, and be paid under the Military Personnel 1261.6 issued under 51 U.S.C. 20113; 31 U.S.C. and Civilian Employees’ Claim Act of 3711 et seq.; 5 U.S.C. 5514; 31 CFR parts 900 1964, as amended (31 U.S.C. 3721) is through 904; 5 CFR part 550, subpart K, $25,000, and on or after October 31, 1988, §§ 550.1101 through 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 within 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

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armed conflict are the dates estab- claimant is a civilian employee who is lished by concurrent resolution of the a local inhabitant; or Congress or by a determination of the (iii) Any warehouse, office working President. area, hospital, or other place authorized or apparently authorized for the § 1261.104 Allowable claims. reception or storage of property. (a) A claim may be allowed only if: (2) Transportation or travel losses. (1) The damage or loss was not Claims may be allowed for damage to, caused wholly or partly by the neg- or loss of, property incident to trans- ligent or wrongful act of the claimant, portation or storage pursuant to or- the claimant’s agent, private em- ders, or in connection with travel ployee, or family member (the stand- under orders, including property in the ard to be applied is that of reasonable custody of a carrier, an agent or agen- care under the circumstances); cy of the Government, or the claimant. (2) The possession of the property (3) House trailers. Claims may be al- lost or damaged and the quantity is de- lowed for damage to, or loss of, house termined to have been reasonable, use- trailers and their contents under the ful, or proper under the circumstances; provisions of paragraph (c)(2) of this and section. (3) The claim is substantiated by (4) Negligence of the Government. proper and convincing evidence. Claims may be allowed for damage to, (b) Claims which are otherwise allow- or loss of, property caused by the neg- able under this subpart shall not be ligence or wrongful act or omission of disallowed solely because the property any employee of the Government while was not in the possession of the claim- acting within the scope of office or em- ant at the time of the damage or loss, ployment. or solely because the claimant was not (5) Enemy action or public service. the legal owner of the property for Claims may be allowed for damage to, which the claim is made. For example, or loss of, property as a direct con- 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 Claims are not allowable for the fol- occupied by the claimant, whether or lowing: not they were assigned or provided by (a) Unassigned quarters in United the United States, except when the States. Claims may not be allowed for

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property loss or damage in quarters oc- vehicles incident to such travel, or use cupied by the claimant within the 50 of vehicles for the convenience of the States or the District of Columbia that owner); or were not assigned to claimant or pro- (2) Shipment of motor vehicles to, vided in kind by the United States. from, or between overseas areas was (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 determined reasonable to have been in the § 1261.106 Submission of claims. claimant’s possession at the time of All claims shall be submitted in du- the loss. plicate to the Administrator or des- (c) Government property. Claims may ignee on NASA Form 1204, ‘‘Employee’s not be allowed for property owned by Claim for Damage to, or Loss of, Per- the United States, except that for sonal Property Incident to Service.’’ which the claimant is financially responsible to any agency of the Govern- § 1261.107 Evidence in support of ment other than NASA. claim. (d) Business property. Claims may not 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, covered or replaced in kind. That reasonable protection or security (3) An itemized bill of repair for prop- measures have been taken by claimant. erty which has been repaired, or one or (f) Unserviceable property. Claims may more written estimates of the cost of not be allowed for worn-out unservice- repairs from competent persons if the able property. property is repairable but has not been (g) Illegal possession. Claims may not repaired. be allowed for property acquired, pos- (b) Specific classes of claims. Claims of sessed, or transported in violation of the following types shall also be ac- law or in violation of applicable regula- companied with specific and detailed tions or directives. evidence as indicated: (h) Estimate fees. Claims may not in- (1) Theft, burglary, etc. A statement clude fees paid to obtain estimates or describing in detail the location where repair, except when it is clear that an the loss occurred and the facts and cir- estimate could not have been obtained cumstances surrounding the loss, in- without paying a fee. cluding supporting documentation, (i) Automobiles and other vehicles. e.g., a police report. Claims may not be allowed for damage (2) Transportation losses. A copy of or- to, or loss of, automobiles and other ders authorizing the travel, transpor- vehicles unless: tation or shipment, or a certificate ex- (1) The vehicles were required to be plaining the absence of such orders and used for official Government business stating their substance; all bills of lad- (official Government business, as used ing and inventories of property here, does not include travel between shipped; and a statement indicating quarters and place of duty, parking of the condition of the property when

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turned over to the carrier and when re- this subpart. When the amount recov- ceived from the carrier. ered is less than such total loss, the allowable amount is determined by de- § 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 Administrator 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

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amount paid in settlement of each in- (c) Final and conclusive. The settle- dividual claim submitted and settled ment of a claim under this subpart, shall be paid or delivered to or received whether by full or partial allowance or by an agent or attorney on account of disallowance, is final and conclusive. services rendered in connection with that claim, any contract to the con- Subpart 1261.2 [Reserved] trary notwithstanding (31 U.S.C. 243).

§ 1261.110 Settlement of claims. Subpart 1261.3—Claims Against NASA or Its Employees for (a) Settlement officials. (1) Claims in 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 18, 1967 Field Installation where the employee was assigned at the time of the loss or AUTHORITY: 28 U.S.C. 2671–2680, 51 U.S.C. damage or the Assistant General Coun- 20113(m), and 28 CFR part 14. sel for Litigation for NASA Head- 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,

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or settlement in excess of $25,000 may § 1261.302 Claim. be effected only with the prior written Unless the context otherwise re- approval of the Attorney General or quires, claim means a claim for money designee. damages against the United States (b) Under 51 U.S.C. 20113(m)(1), NASA arising out of the activities of NASA, is authorized to consider, ascertain, ad- for injury or loss of property, or per- just, determine, settle, and pay, on be- sonal injury or death. A claim ‘‘arises’’ half of the United States, in full satis- at the place where the injury, loss, or faction thereof, any claim for $25,000 or death occurs. less against the United States for bodily injury, death, or damage to or loss § 1261.303 Claimant. of real or personal property resulting (a) A claim for damage to or loss of from the conduct of NASA’s functions property may be presented by the as specified in 51 U.S.C. 20112. At the owner of the property, duly authorized discretion of NASA, a claim may be agent or legal representative. settled and paid under this authority (b) A claim for personal injury may even though the United States could be presented by the injured person, not be held legally liable to the claim- duly authorized agent, or legal rep- ant. resentative. (c) Under 51 U.S.C. 20113(m)(2), if (c) A claim based on death may be NASA considers that a claim in excess presented by the executor(rix) or ad- of $25,000 is meritorious and would oth- ministrator(rix) of the decedent’s es- erwise be covered by 51 U.S.C. tate, or by any other person legally en- 20113(m)(1), NASA may report the facts titled to assert such a claim in accord- and circumstances of the claim to the ance with applicable State law. Congress for its consideration or to the (d) A claim for loss wholly com- Comptroller General as provided in the pensated by an insurer with the rights ‘‘Supplemental Appropriations Act, of a subrogee may be presented by the 1978,’’ Public Law 95–240 (92 Stat. 107), insurer. A claim for loss partially com- 31 U.S.C. 724a. pensated by an insurer with the rights (d) Under 28 U.S.C. 2679, the Attorney of a subrogee may be presented by the General of the United States shall de- parties individually as their respective fend any civil action or proceeding interests appear, or jointly. brought in any court against a Govern- (e) A claim presented by an agent or ment employee for injury or loss of legal representative shall be presented property or personal injury or death, in the name of the claimant, be signed resulting from the operation of a motor by the agent or legal representative, vehicle by the Government employee show the title or legal capacity of the while acting within the scope of office person signing and be accompanied by or employment. In effect, this legisla- evidence of the agent’s or legal rep- tion is designed to protect an employee resentative’s authority to present a driving a motor vehicle on Government claim on behalf of the claimant as business by converting such a civil agent, executor(rix), administrator court action or proceeding against the (rix), parent, guardian, or other representative. 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 to the claimed injury, loss, or death. If 28 U.S.C. 1346(b) (civil action against the identity of such installation is not the United States) then becomes the known, or if the claim arose in a for- plaintiff’s exclusive remedy. eign country, the claim should be sub- [45 FR 48104, July 18, 1980, as amended at 82 mitted to the General Counsel, Head- FR 29383, June 29, 2017] quarters, National Aeronautics and

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Space Administration, Washington, DC receives from a claimant or duly au- 20546. thorized agent or legal representative an executed Standard Form 95 or other [82 FR 29383, June 29, 2017] written notification of an incident or § 1261.305 Form of claim. accident, accompanied by a claim in a sum certain. (a) The official designated in § 1261.308 shall, prior to acting on a claim, re- [45 FR 48104, July 18, 1980, as amended at 82 quire the claimant to submit a com- FR 29384, June 29, 2017] pleted Standard Form 95—‘‘Claim for Damage, Injury or Death.’’ § 1261.308 NASA officials authorized to (b) NASA installations will furnish act upon claims. copies of Standard Form 95 upon re- (a) Claims in the amount of $10,000 or quest. more will be acted upon as directed by the General Counsel; § 1261.306 Evidence and information (b) Claims less than $10,000 will be required. acted upon by the Chief Counsel of the (a) The circumstances alleged to NASA Field Installation where the em- have given rise to the claim, and the ployee was assigned at the time of the amount claimed, should, so far as pos- loss or damage or the Assistant Gen- sible, be substantiated by competent eral Counsel for Litigation for NASA evidence. Supporting statements, esti- Headquarters claims. mates, and the like should, if possible, (c) Claims of $10,000 or more, pursu- be obtained from disinterested parties. ant either to the Federal Tort Claims For specific guidance as to Federal Act, or 51 U.S.C. 20113(m), shall be Tort Claims Act claims, see Depart- acted upon only with the prior ap- ment of Justice regulations on ‘‘Ad- proval of the General Counsel. Such ministrative Claims under Federal claims shall be forwarded to the Gen- Tort Claims Act’’ at 28 CFR part 14. eral Counsel for approval, if the Chief (b) In addition to the evidence and in- Counsel or the Associate General Coun- formation required under paragraph sel for General Law is of the opinion (a), any claimant shall be required to that the claim may be meritorious and submit information as to the amount otherwise suitable for settlement under of money or other property received as any authority. A claim so forwarded damages or compensation, or which the should be accompanied by a report of claimant may be entitled to receive, by the facts of the claim, based upon such reason of the claimed injury, loss, or investigation as may be appropriate, death from persons other than NASA and a recommendation as to the action or NASA employees. (Such persons in- to be taken. clude, but are not limited to, insurers, (d) Claims acted upon by NASA offi- employers, and persons whose conduct cials pursuant to this section shall be was a cause of the accident or inci- acted upon pursuant to the Federal dent.) Tort Claims Act, or 51 U.S.C. (c) Any document in other than the English language should be accom- 20113(m)(1) or (2), as the NASA official panied by an English translation. deems appropriate. [45 FR 48104, July 18, 1980, as amended at 82 § 1261.307 Time limitations. FR 29384, June 29, 2017] (a) A claim may not be acted upon pursuant to the Federal Tort Claims § 1261.309 Action under the Federal Act unless it is presented to NASA Tort Claims Act. within 2 years after it accrued. Where a claim is to be acted upon (b) A claim may not be acted upon pursuant to the Federal Tort Claims pursuant to 51 U.S.C. 20113(m)(1) or (2) Act, action shall be taken in accord- unless it is presented to NASA within ance with 28 U.S.C. 2672, other provi- two years after the occurrence of the sions of the Federal Tort Claims Act as accident or incident out of which the may be applicable (e.g., 28 U.S.C. 2680), claim arose. and regulations prescribed by the At- (c) A claim shall be deemed to have torney General which appear at 28 CFR been presented to NASA when NASA part 14.

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§ 1261.310 Investigation of claims. (c) Acceptance by the claimant, agent, or legal representative, of any The officials designated in § 1261.308 award, compromise, or settlement shall conduct such investigation of a made pursuant to this subpart shall be claim as deemed appropriate. The offi- final and conclusive on the claimant, cials may request any NASA office or agent or legal representative and any other Federal agency to assist in the other person on whose behalf or for investigation. whose benefit the claim has been pre- § 1261.311 Claims requiring Depart- sented, and shall constitute a complete ment of Justice approval or con- release of any claim against the United sultation. States and against any employee of the 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 consultation may be required, pursuant to 28 [45 FR 48104, July 18, 1980, as amended at 82 CFR part 14, in connection with a FR 29384, June 29, 2017] claim being acted upon under the Fed- eral Tort Claims Act, the following pa- § 1261.313 Required notification in the pers shall be forwarded to the General event of denial. Counsel: Final denial of a claim shall be in (1) A short and concise statement of writing and shall be sent to the claim- the facts of the claim. ant, the attorney, or legal representa- (2) Copies of all relevant portions of tive by certified or registered mail. the claim file. The notification of final denial may in- (3) A statement of the recommenda- clude a statement of the reasons for tions or views of the forwarding offi- the denial and shall include a state- cial. ment that if the claimant is dissatis- (b) A claim forwarded to the General fied with NASA’s action, the claimant Counsel in accordance with paragraph may file suit in an appropriate U.S. (a) of this section, or upon which the District Court not later than 6 months General Counsel is acting pursuant to after the date of mailing the notifica- § 1261.308(c), shall be referred to the De- tion. partment of Justice when, in the opin- § 1261.314 [Reserved] ion of the General Counsel, Depart- ment of Justice approval or consulta- § 1261.315 Procedures for the handling tion is required or may be appropriate. of lawsuits against NASA employees arising within the scope of their of- § 1261.312 Action on approved claims. fice or employment. (a) Upon settlement of a claim, the The following procedures shall be fol- official designated in § 1261.308 will pre- lowed in the event that a civil action pare and have executed by the claim- or proceeding is brought, in any court, ant a Voucher for Payment of Tort against any employee of NASA (or Claims (NASA Form 616) if the claim against the estate) for injury or loss of has been acted upon pursuant to 51 property or personal injury or death, U.S.C. 20113(m), or a Voucher for Pay- resulting from the NASA employee’s ment under Federal Tort Claims Act activities while acting within the scope (Standard Form 1145) if the claim has of office or employment: been acted upon pursuant to the Fed- (a) After being served with process or eral Tort Claims Act. The form will pleadings in such an action or pro- then be referred to the cognizant NASA ceeding, the employee (or the execu- installation fiscal or financial manage- tor(rix) or administrator(rix) of the es- ment office for appropriate action. tate) shall immediately deliver all such (b) When a claimant is represented by process and pleadings or an attested an attorney, both the claimant and at- true copy thereof, together with a fully torney will be designated as ‘‘payees’’ detailed report of the circumstances of on the voucher, and the check will be the accident giving rise to the court delivered to the attorney whose ad- action or proceeding, to the following dress shall appear on the voucher. officials:

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(1) The Assistant General Counsel for or in an arbitration proceeding or Litigation insofar as actions or pro- other proceeding seeking damages ceedings against employees of NASA against that employee personally, for Headquarters are concerned; or any verdict, judgment, appeal bond, or (2) The Chief Counsel of the NASA In- other monetary award which is ren- stallation at which the employee is dered against such employee, provided employed, insofar as actions against that the conduct giving rise to the ver- other than NASA Headquarters em- dict, judgment, appeal bond, or award ployees are concerned. was taken within the scope of his or (b) Upon receipt of such process and her employment and that such indem- pleadings, the Associate General Coun- nification is in the interest of the Na- sel for General Law or the Chief Coun- tional Aeronautics and Space Adminis- sel of the NASA installation receiving tration, as determined by the Adminis- the same shall furnish to the U.S. At- tration or designee. torney for the district embracing the (b) The National Aeronautics and place where the action or proceeding is Space Administration may settle or brought and, if appropriate, the Direc- compromise a personal damage claim tor, Torts Branch, Civil Division, De- against a present or former NASA em- partment of Justice, the following: (1) Copies of all such process and ployee by the payment of available pleadings in the action or proceeding funds, at any time, provided the al- promptly upon receipt thereof; and leged conduct giving rise to the per- (2) A report containing a statement sonal damage claim was taken within of the circumstances of the incident the employee’s scope of employment giving rise to the action or proceeding, and that such settlement or com- and all data bearing upon the question promise is in the interest of the Na- of whether the employee was acting tional Aeronautics and Space Adminis- within the scope of office or employ- tration, as determined by the Adminis- ment with NASA at the time of the in- trator or designee. cident, at the earliest possible date, or (c) Absent exceptional circumstances within such time as shall be fixed by as determined by the Administrator or the U.S. Attorney upon request. designee, the agency will not entertain (c) The Associate General Counsel for a request either to agree to indemnify General Law or a Chief Counsel acting or to settle a personal damage claim pursuant to paragraph (b) of this sec- before entry of an adverse verdict, tion shall submit the following docu- judgment, or award. ments to the General Counsel, who is (d) A present or past NASA employee hereby designated to receive such docu- may request indemnification to satisfy ments on behalf of the Administrator: a verdict, judgment, or award entered (1) Copies of all process and pleadings against that employee. The employee submitted to a U.S. Attorney in ac- shall submit a written request, with cordance with paragraph (b). appropriate documentation including (2) In addition, where the action or copies of the verdict, judgment, appeal proceeding is for damages in excess of bond, award, or settlement proposal to $25,000, or where (in the opinion of the the General Counsel, who shall make a Chief Counsel) such action or pro- recommended disposition of the re- ceeding involves a new precedent, a quest. Where appropriate, the agency new point of law, or a question of pol- shall seek the views of the Department icy, copies of reports and all other pa- of Justice. The General Counsel shall pers submitted to the U.S. Attorney. forward the request, the accompanying [45 FR 48104, July 18, 1980, as amended at 82 documentation, and the General Coun- FR 29384, June 29, 2017] sel’s recommendation to the Adminis- trator for decision. § 1261.316 Policy. (e) Any payment under this section (a) The National Aeronautics and either to indemnify a National Aero- Space Administration may indemnify a nautics and Space Administration em- present or former NASA employee, who ployee or to settle a personal damage is personally named as a defendant in claim shall be contingent upon the any civil suit in state or Federal court, availability of appropriated funds of

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the National Aeronautics and Space § 1261.400 Scope of subpart. Administration. (a) These regulations do the fol- [53 FR 27482, July 21, 1988] lowing: (1) Prescribe standards for the admin- § 1261.317 Attorney-client privilege. istrative collection, compromise, sus- (a) Attorneys employed by the Na- pension or termination of collection, tional Aeronautics and Space Adminis- and referral to the General Accounting tration participate in the process uti- Office (GAO), and/or to the Department lized for the purpose of determining of Justice (DJ) for litigation, of civil whether the agency should request the claims as defined by 31 U.S.C. 3701(b), Department of Justice to provide rep- arising out of the activities of NASA; resentation to a present or former (2) Designate the responsible NASA agency employee sued, subpoenaed, or officials authorized to effect actions charged in his/her individual capacity, hereunder; and 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 through 105 and the Office of Personnel tration provide assistance in obtaining Management (OPM) regulations at 5 representation of such an agency em- CFR part 550, subpart K. ployee. In these roles, agency attor- (b) Failure to comply with any provi- neys undertake a full and traditional sion of the GAO/DJ or OPM regulations attorney-client relationship with the shall not be available as a defense to employee with respect to application of any debtor (4 CFR 101.8). the attorney-client privilege. If rep- (c) These regulations do not include resentation is authorized, National any claim based in whole or in part on Aeronautics and Space Administration violation of the anti-trust laws; any attorneys who assist in the representa- claim as to which there is an indication of a present or former employee tion of fraud, the presentation of a also undertake a full and traditional false claim, or misrepresentation on attorney-client relationship with that the part of the debtor or any party hav- employee with respect to the attorney- ing an interest in the claim; tax client privilege. claims; or Federal interagency claims (b) Any adverse information commu- (4 CFR 101.3). nicated by the client-employee to an Agency attorney during the course of § 1261.401 Definitions. such attorney-client relationship shall (a) Claim and debt. The terms denote not be disclosed to anyone, either in- a civil claim arising from the activities side or outside NASA, other than attor- of NASA for an amount of money, or neys responsible for representation of return or value of property (see 4 CFR the employee, unless such disclosure is 101.5), owing to the United States from authorized by the employee. Such ad- any person, organization, or entity, ex- verse information shall continue to be cept another Federal agency. The fully protected whether or not rep- words claim and debt have been used resentation is provided and even interchangeably and are considered though representation may be denied synonymous. or discontinued. (b) Delinquent debt. The debt is delin- [53 FR 27483, July 21, 1988, as amended at 82 quent if it has not been paid by the date FR 29384, June 29, 2017] specified in the initial written notification (e.g., § 1261.407) or applicable con- Subpart 1261.4—Collection of Civil tractual agreement, unless other ac- Claims of the United States ceptable (to NASA) payment arrangements have been made by that date, or Arising Out of the Activities of if, at any time thereafter, the debtor the National Aeronautics and fails to satisfy an obligation under the Space Administration (NASA) payment agreement. (c) Referral for litigation. Referral SOURCE: 52 FR 19487, May 26, 1987, unless through the NASA installation’s legal otherwise noted. counsel to the Department of Justice

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(Main Justice or the United States At- lation and the following NASA officials torney, as appropriate) for legal pro- or designees, who may also be re- ceedings. quested to negotiate the appropriate agreements or arrangements with the § 1261.402 Delegation of authority. debtor: The following NASA officials are del- (1) With respect to claims against egated authority, as qualified by contractors or grantees arising in con- § 1261.403, to take such action as is au- nection with contracts or grants—the thorized by these regulations to col- contracting officer and the financial lect, compromise, suspend/terminate management officer of the installation collection, and upon consultation with concerned. and through legal counsel, to refer the (2) With respect to claims against claim (as applicable) to the GAO or De- commercial carriers for loss of or dam- partment of Justice: age to NASA freight shipment—the (a) For field installations, with re- cognizant transportation officers or gard to subpart 1261.4 and subpart the official who determined the 1261.5: The Director of the Installation amount of the claim, as appropriate, or a designee who reports directly to and the financial management officers the Installation Director. A copy of of the installation concerned. such designation, if any, shall be sent (3) With respect to claims against to the Director, Financial Management employees of NASA incident to their Division, NASA Headquarters. employment—the personnel officer and (b) For Headquarters, with regard to the financial management officer of subpart 1261.4 and subpart 1261.5: The the installation concerned. Associate Administrator for Mission (b) The appropriate counsel’s office Support or a designee who reports di- shall review and concur in the fol- rectly to the Associate Administrator lowing: for Mission Support. A copy of such (1) All communications to and agree- designation, if any, shall be sent to the ments with debtors relating to claims Director, Financial Management Divi- collection. sion, NASA Headquarters. (2) All determinations to compromise (c) With respect to the analysis re- a claim, or to suspend or terminate col- quired by § 1261.413: The NASA Chief Fi- lection action. nancial Officer or designee. (3) All referrals of claims, other than (d) NASA-wide, with regard to sub- referrals to the Department of Justice part 1261.6: The NASA Chief Financial pursuant to § 1261.404(b)(1). Officer or designee. (4) All documents releasing debtors (e) NASA-wide, for complying with from liability to the United States. pertinent provisions under these regu- (5) All other actions relating to the lations for agency hearing or review collection of a claim which in the opin- (see §§ 1261.408(b), 1261.503, and ion of the official designated in or pur- 1261.603(c)): The NASA General Counsel suant to § 1261.402 may affect the rights or designee. of the United States. [45 FR 48104, July 18, 1980, as amended at 82 [45 FR 48104, July 18, 1980, as amended at 82 FR 29384, June 29, 2017] FR 29384, June 29, 2017]

§ 1261.403 Consultation with appro- § 1261.404 Services of the Inspector priate officials; negotiation. General. (a) The authority pursuant to (a) At the request of an official des- § 1261.402 to determine to forgo 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 $100,000, 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

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to § 1261.402 or § 1261.403, may indicate tion, including the Claims Collection fraud, presentation of a false claim, or Litigation Report under § 1261.417(e), misrepresentation, on the part of the should be retained in the appropriate debtor or any other party having an in- claims file. terest in the claim, shall be referred by the designated official to the Inspector § 1261.407 Demand for payment; limi- General (IG), NASA Headquarters, or tation periods. to the nearest office of the NASA IG. (a) Appropriate written demands After an investigation as may be ap- shall be made promptly upon a debtor propriate, the IG shall: of the United States in terms which in- (1) Notice the official, from whom the form the debtor of the consequences of claim was received, of the findings and failure to cooperate. A total of three refer the claim to the Department of progressively stronger written de- Justice in accordance with the provi- mands at not more than 30-day inter- sions of 4 CFR 101.3; or (2) If it were found that there is no vals will normally be made unless a re- such indication of fraud, the presen- sponse to the first or second demand tation of a false claim, or misrepresen- indicates that a further demand would tation, return the claim to the official be futile and the debtor’s response does from whom it was received. not require rebuttal. In determining the timing of demand letters, NASA § 1261.405 Subdivision of claims not will give due regard to the need to act authorized; other administrative promptly so that, as a general rule, if proceedings. necessary to refer the debt to the De- (a) Subdivision of claims. Claims may partment of Justice for litigation, such not be subdivided to avoid the $100,000 referral can be made within one year of ceiling, exclusive of interest, penalties, the agency’s final determination of the and administrative costs, for purposes fact and the amount of the debt. When of compromise (§ 1261.414) or suspension necessary to protect the Government’s or termination of collection (§ 1261.416). interests (for example, to prevent the The debtor’s liability arising from a statute of limitations, 28 U.S.C. 2415, particular transaction or contract from expiring), written demand may be shall be considered a single claim (31 preceded by other appropriate actions, CFR 900.6). including immediate referral for litiga- (b) Required administrative pro- tion. ceedings. Nothing contained in these (b) The initial demand letter should regulations is intended to require inform the debtor of: NASA to omit, foreclose, or duplicate administrative proceedings required by (1) The basis for the indebtedness and contract or other applicable laws and whatever rights the debtor may have implementing regulations (4 CFR to seek review within the agency; 101.7). (2) The applicable standards for assessing interest, penalties, and admin- [45 FR 48104, July 18, 1980, as amended at 82 istrative costs (§ 1261.412); and FR 29384, June 29, 2017] (3) The date by which payment is to § 1261.406 Aggressive collection action; be made, which normally should be not documentation. more than 30 days from the date that (a) NASA shall take aggressive ac- the initial demand letter was mailed or tion, on a timely basis with effective hand delivered. The responsible official followup, to collect all claims of the should exercise care to ensure that de- 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

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NASA’s willingness to discuss alter- local taxes—which are imposed by law’’ native methods of payment, or inten- (4 CFR 102.81). tions with respect to referral of the [45 FR 48104, July 18, 1980, as amended at 82 debt to the Department of Justice for FR 29384, June 29, 2017] litigation. (4) The name, address, and phone § 1261.408 Use of consumer reporting number of a contact person or office agency. within the Agency. (a) The term consumer reporting agen- (c) NASA should respond promptly to cy has the meaning provided in the communications from the debtor, with- Federal Claims Collection Act of 1966, in 30 days whenever feasible, and as amended (31 U.S.C. 3701(a)(3)): should advise debtors who dispute the (1) A consumer reporting agency as debt to furnish available evidence to that term is defined in section 603(f) of support their contentions. the Fair Credit Reporting Act (15 (d) If either prior to the initiation of, U.S.C. 1681a(f); or any time during, or after completion of (2) A person that, for money or on a the demand cycle, a determination to cooperative basis, regularly— pursue offset is made, then the proce- (i) Gets information on consumers to dures specified in subparts 1261.5 and give the information to a consumer re- 1261.6, as applicable, should be fol- porting agency; or lowed. The availability of funds for off- (ii) Serves as a marketing agent set and NASA’s determination to pur- under an arrangement allowing a third sue it release the agency from the ne- party to get the information from a cessity of further compliance with consumer reporting agency. paragraphs (a), (b), and (c) of this sec- (b) NASA Headquarters Financial tion. If the agency has not already sent Management Division, shall be the the first demand letter, the agency’s focal contact between NASA and con- written notification of its intent to off- sumer reporting agencies. The fol- set must give the debtor the oppor- lowing procedures shall apply when tunity to make voluntary payment, a such agencies are employed by NASA: requirement which will be satisfied by (1) After the appropriate notice pur- compliance with the notice require- suant to 5 U.S.C. 552a(e)(4) has been ments of § 1261.502 or § 1261.603(a), as ap- published, NASA may disclose, in ac- plicable. cordance with 5 U.S.C. 552a(b)(12), information about a debtor to a con- (e) NASA should undertake personal sumer reporting agency. Such informa- interviews with its debtors whenever tion may include: this is feasible, having regard for the (i) That a claim has been determined amounts involved and the proximity of to be valid and is overdue (including agency representatives to such debtors; violation by debtor of a repayment and may attempt to effect compromise plan or other claim settlement agree- of the claim in accordance with ment); § 1261.414. (ii) If a current address is available, (f) When a debtor is employed by the notifying the individual by certified Federal government or is a member of mail, return receipt requested, that: the military establishment or the The designated NASA official has re- Coast Guard, and collection by offset viewed the claim and determined that cannot be accomplished in accordance it is valid and overdue; within not less with subpart 1261.6, the employing than 60 days after sending this notice, agency will be contacted for the pur- NASA intends to disclose to a con- pose of arranging with the debtor for sumer reporting agency the specific in- payment of the indebtedness by allot- formation to be disclosed under para- ment or otherwise in accordance with graph (b)(1) of this section; the indi- section 206 of Executive Order 11222, vidual may request a complete expla- May 8, 1965, 30 FR 6469, which provides nation of the claim, dispute the infor- that: ‘‘An employee is expected to meet mation in the records of NASA about all just financial obligations, espe- the claim, and file for an administra- cially those—such as Federal, State, or tive review or repeal of the claim or for

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reconsideration of the initial decision such agency, promptly verify or cor- on the claim. rect information about the claim. (iii) Amount, status, and history of [45 FR 48104, July 18, 1980, as amended at 82 the claim; FR 29384, June 29, 2017] (iv) Program or pertinent activity under which the claim arose. § 1261.409 Contracting for collection (2) Before disclosing the information services. specified in paragraph (b)(1) of this sec- (a) When NASA determines that tion, NASA shall comply with 31 U.S.C. there is a need to contract for collec- 3711(f) by: tion services, the following conditions (i) Taking reasonable action to lo- shall apply: cate the individual if a current address (1) The authority to resolve disputes, is not available; compromise claims, suspend or termi- (ii) If a current address is available, nate collection action, and refer the noticing the individual by certified matter for litigation must be retained mail, return receipt requested, that: by NASA. (2) The contractor shall be subject to The designated NASA official has re- the Privacy Act of 1974, as amended, to viewed the claim and determined that the extent specified in 5 U.S.C. 552a(m), it is valid and overdue; within not less and to applicable Federal and State than 60 days after sending this notice, laws and regulations pertaining to debt NASA intends to disclose to a con- collection practices—for example, the sumer reporting agency the specific in- Fair Debt Collection Practices Act (15 formation to be disclosed under para- U.S.C. 1692), and 26 U.S.C. 6103(p)(4) and graph (b)(1) of this section; the indi- applicable regulations of the Internal vidual may request a complete expla- Revenue Service; nation of the claim, dispute the infor- (3) The contractor must be required mation in the records of NASA about to account strictly for all amounts col- the claim, and file for an administra- lected; and tive review or repeal of the claim or for (4) The contractor must agree to pro- reconsideration of the initial decision vide any data contained in its files re- on the claim. lating to collection actions and related (3) If an administrative review or re- reports, current address of debtor, and consideration is requested, the respon- reasonably current credit information sible official or designee shall refer the upon returning an account to NASA for request to the appropriate NASA legal subsequent referral to the Department counsel for an impartial review and de- of Justice for litigation. termination by counsel or designee (5) The debt must not be subject to based on the entire written record. If mandatory transfer to the Department the reviewer cannot resolve the ques- of the Treasury for collection. See 31 tion of indebtedness based upon the CFR 901.5(a) and (b). available documentary evidence, (b) NASA shall use Government-wide verified written statements by the debt collection contracts to obtain debtor or the responsible official may debt collection services provided by be requested on any pertinent matter private collection contractors. See 31 not addressed by the available record. CFR 901.5(b). (c) If the information is to be sub- (c) NASA shall fund private collec- mitted to a consumer reporting agen- tion contractor contracts in accord- cy, the responsible official shall obtain ance with 31 U.S.C. 3728(d) or as other- a verified statement from such agency wise permitted by law. See 31 CFR which gives satisfactory assurances 901.5(c). that the particular agency is com- [45 FR 48104, July 18, 1980, as amended at 82 plying with all laws of the United FR 29385, June 29, 2017] States related to providing consumer credit information; and thereafter en- § 1261.410 Suspension or revocation of sure that the consumer reporting agen- license or eligibility; liquidation of cy is promptly informed of any sub- collateral. stantial change in the condition or (a) In seeking the collection of statu- amount of the claim, or, on request of tory penalties, forfeitures, or debts

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provided for as an enforcement aid or § 1261.411 Collection in installments. for compelling compliance, NASA will (a) Whenever feasible, and except as give serious consideration to the sus- otherwise provided by law, debts owed pension or revocation of licenses or to the United States, together with in- other privileges for any inexcusable, terest penalties, and administrative prolonged, or repeated failure of a costs as required by § 1261.412, should be debtor to pay such a claim. In the case collected in full in one lump sum. This of a contractor under 48 CFR chapter is true whether the debt is being col- 18, NASA will comply with the debar- lected by administrative offset or by ment, suspension, and ineligibility re- another method, including voluntary quirements of the NASA Federal Ac- payment. However, if the debtor is fi- quisition Regulation Supplement nancially unable to pay the indebted- (NASA/FAR Supplement) at 48 CFR ness in one lump sum, payment may be 1809.4. Likewise, in making, guaran- accepted in regular installments. Debt- teeing, insuring, acquiring, or partici- ors who represent that they are unable pating in loans, NASA will give serious to pay the debt in one lump sum must consideration to suspending or dis- submit justification, including finan- qualifying any lender, contractor, cial statements. If NASA agrees to ac- broker, borrower, or other debtor from cept payment in regular installments, doing further business with it or engag- it will obtain a legally enforceable ing in programs sponsored by it if such written agreement from the debtor a debtor fails to pay its debts to the which specifies all of the terms of the Government within a reasonable time. arrangement and which contains a pro- The failure of any surety to honor its vision accelerating the debt in the obligations in accordance with 31 event the debtor defaults. The size and U.S.C. 9305 must be reported to the frequency of installment payments Treasury Department at once. Notifi- should bear a reasonable relation to cation that a surety’s certificate of au- the size of the debt and the debtor’s thority to do business with the Federal ability to pay. If possible, the installment 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 be forwarded by that Department to all three years. Installment payments of interested agencies. less than $50 per month should be ac- (b) If NASA is holding security or cepted only if justifiable on the collateral which may be liquidated and grounds of financial hardship or simi- the proceeds applied on debts due it lar reasonable cause. If the claim is un- through the exercise of a power of sale secured, an executed confess-judgment in the security instrument or a non- note should be obtained from a debtor judicial foreclosure, it should do so by when the total amount of the deferred such procedures if the debtor fails to installments will exceed $750. Such pay the debt within a reasonable time notes may be sought when an unse- after demand, unless the cost of dis- cured obligation of a lesser amount is posing of the collateral will be dis- involved. When attempting to obtain proportionate to its value or special confess-judgment notes, the debtor circumstances require judicial fore- should be provided with written expla- closure. NASA will provide the debtor nation of the consequences of signing with reasonable notice of the sale, an the note, and documentation should be accounting of any surplus proceeds, maintained sufficient to demonstrate and any other procedures required by that the debtor has signed the note applicable contract or law. Collection knowingly and voluntarily. Security from other sources, including liquida- for deferred payments other than a tion of security or collateral, is not a confess-judgment note may be accepted prerequisite to requiring payment by a in appropriate cases. NASA, at its op- surety or insurance concern unless tion, may accept installment payments notwithstanding the refusal of a debtor such action is expressly required by to execute a confess-judgment note or statute or contract. to give other security.

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(b) If the debtor owes more than one for the duration of the indebtedness, debt and designates how a voluntary except that where a debtor has de- installment payment is to be applied as faulted on a repayment agreement and among those debts, that designation seeks to enter into a new agreement, must be followed. If the debtor does not NASA may set a new interest rate designate the application of the pay- which reflects the current value of ment, agencies should apply payments funds to the Treasury Department at to the various debts in accordance with the time the new agreement is exe- the best interests of the United States, cuted. Interest should not be assessed as determined by the facts and cir- on interest, penalties, or administra- cumstances of the particular case, pay- tive costs required by this section. ing special attention to applicable However, if the debtor defaults on a statutes of limitations. previous repayment agreement, [45 FR 48104, July 18, 1980, as amended at 82 charges which accrued but were not FR 29385, June 29, 2017] collected under the defaulted agreement shall be added to the principal to § 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

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is appropriate. Also, NASA may waive, extent authorized under the common in whole or in part, the collection of in- law or applicable statutory authority. terest, penalties, and/or administrative [45 FR 48104, July 18, 1980, as amended at 82 costs (assessed under this section) FR 29385, June 29, 2017] under the criteria specified in § 1261.414 relating to the compromise of claims § 1261.413 Analysis of costs; automa- (without regard to the amount of the tion; prevention of overpayments, debt), or if NASA determines that col- delinquencies, or defaults. lection of these charges would be The Office of the NASA Chief Finan- against equity and good conscience or cial Officer will: not in the best interests of the United (a) Issue internal procedures to pro- States. See 4 CFR 101.13(g). Such op- vide for periodic comparison of costs tional waivers should be handled on a incurred and amounts collected. Data case-by-case basis, in consultation with on costs and corresponding recovery officials designated under § 1261.403. Ex- rates for debts of different types and in amples of situations in which NASA various dollar ranges should be used to may consider waiving interest and compare the cost effectiveness of alter- other related charges are: native collection techniques, establish (1) Pending consideration of a request guidelines with respect to points at for reconsideration or administrative which costs of further collection efforts review; are likely to exceed recoveries, and as- (2) Acceptance of an installment plan sist in evaluating offers in com- or other compromise agreement, where promise. there is no indication of lack of good (b) Consider the need, feasibility, and faith on the part of the debtor in not cost effectiveness of automated debt repaying the debt, and the debtor has collection operation. provided substantiating information of (c) Establish internal controls to inability to pay or other unavoidable identify causes, if any, of overpayments, delinquencies, and defaults, and hardship which reasonably prevented establish procedures for corrective ac- the debt from being repaid. tions as needs dictate. (h) Where a mandatory waiver or review statute applies, interest and re- [45 FR 48104, July 18, 1980, as amended at 82 lated charges may not be assessed for FR 29385, June 29, 2017] those periods during which collection action must be suspended under § 1261.414 Compromise of claims. § 1261.416(c)(3). (a) Designated NASA officials (see (i) Exemptions. (1) The provisions of 31 §§ 1261.402 and 1261.403) may com- U.S.C. 3717 do not apply: promise claims for money or property (i) To debts owed by any State or arising out of the activities of the local government; Agency where the claim, exclusive of (ii) To debts arising under contracts interest, penalties, and administrative costs, does not exceed $100,000, prior to which were executed prior to, and were the referral of such claims to the Gov- in effect on (i.e., were not completed as ernment Accountability Office, or to of) October 25, 1982; the Department of Justice for litiga- (iii) To debts where an applicable tion. The Comptroller General may ex- statute, regulation required by statute, ercise such compromise authority with loan agreement, or contract either pro- respect to claims referred to the Gov- hibits such charges or explicitly fixes ernment Accountability Office prior to the charges that apply to the debts in- their further referral for litigation. volved; or Only the Comptroller General may ef- (iv) To debts arising under the Social fect the compromise of a claim that Security Act, the Internal Revenue arises out of an exception made by the Code, or the tariff laws of the United Government Accountability Office in States. the account of an accountable officer, (2) NASA may, however, assess inter- including a claim against the payee, est and related charges on debts which prior to its referral by the Government are not subject to 31 U.S.C. 3717 to the Accountability Office for litigation.

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(b) When the claim, exclusive of in- (4) The possibility that assets have terest, penalties, and administrative been concealed or improperly trans- costs, exceeds $100,000, the authority to ferred by the debtor; accept the compromise rests solely (5) The availability of assets or in- with the Department of Justice. NASA come which may be realized by en- should evaluate the offer, using the forced collection proceedings; and factors set forth in paragraphs (c) (6) The applicable exemptions avail- through (f) of this section, and may able to the debtor under State and Fed- recommend compromise for reasons eral law in determining the Govern- under one, or more than one, of those ment’s ability to enforce collection. paragraphs. If NASA then wishes to ac- Uncertainty as to the price which col- cept the compromise, it must refer the lateral or other property will bring at matter to the Department of Justice, forced sale may properly be considered using the Claims Collection Litigation in determining the Government’s abil- Report. See § 1261.417(e) or 31 CFR ity to enforce collection. The com- 904.2(c). Claims for which the gross promise should be for an amount which amount is over $200,000 shall be re- bears a reasonable relation to the ferred to the Commercial Litigation amount which can be recovered by en- Branch, Civil Division, Department of forced collection procedures, having re- Justice, Washington, DC 20530. Claims gard for the exemptions available to for which the gross original amount is the debtor and the time which collec- $200,000 or less shall be referred to the tion will take. United States Attorney in whose judi- (d) A claim may be compromised if cial district the debtor can be found. there is a real doubt concerning the The referral should specify the reasons Government’s ability to prove its case for the Agency’s recommendation. If in court for the full amount claimed, NASA has a debtor’s firm written offer either because of the legal issues in- of compromise which is substantial in volved or a bona fide dispute as to the amount and the Agency is uncertain as facts. The amount accepted in com- to whether the offer should be accept- promise in such cases should fairly re- ed, it may refer the offer, the sup- flect the probability of prevailing on porting data, and particulars con- the legal question involved, the prob- cerning the claim to the Government abilities with respect to full or partial Accountability Office or to the Depart- recovery of a judgment, paying due re- ment of Justice. The Government Ac- gard to the availability of witnesses countability Office or the Department and other evidentiary support for the Government claim, and related prag- of Justice may act upon such an offer matic considerations. In determining or return it to the agency with instruc- the litigative risks involved, propor- tions or advice. If NASA wishes to re- tionate weight should be given to the ject the compromise, Government Ac- probable amount of court costs and at- countability Office or Department of torney fees pursuant to the Equal Ac- Justice approval is not required. cess to Justice Act which may be as- (c) A claim may be compromised pur- sessed against the Government if it is suant to this section if NASA cannot unsuccessful in litigation. See 28 U.S.C. collect the full amount because of the 2412. debtor’s inability to pay the full (e) A claim may be compromised if amount within a reasonable time, or the cost of collecting the claim does the refusal of the debtor to pay the not justify the enforced collection of claim in full and the Government’s in- the full amount. The amount accepted ability to enforce collection in full in compromise in such cases may re- within a reasonable time by enforced flect an appropriate discount for the collection proceedings. In determining administrative and litigative costs of the debtor’s inability or refusal to pay, collection, paying heed to the time the following factors, among others, which it will take to effect collection. may be considered: Costs of collecting may be a substan- (1) Age and health of the debtor; tial factor in the settlement of small (2) Present and potential income; claims, but normally will not carry (3) Inheritance prospects; great weight in the settlement of large

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claims. In determining whether the Samples of the Department of Justice cost of collecting justifies enforced col- forms are available from the Office of lection of the full amount, it is legiti- the NASA General Counsel. Neither a mate to consider the positive effect percentage of a debtor’s profits nor that enforced collection of some claims stock in a debtor corporation will be may have on the collection of other accepted in compromise of a claim. In claims. Since debtors are more likely negotiating a compromise with a busi- to pay when first requested to do so if ness concern, consideration should be an agency has a policy of vigorous col- given to requiring a waiver of the tax- lection of all claims, the fact that the loss-carry-back rights of the debtor. cost of collection of any one claim may (i) Joint and several liability. When two exceed the amount of the claim does or more debtors are jointly and sever- not necessarily mean that the claim ally liable, collection action will not be should be compromised. The practical withheld against one such debtor until benefits of vigorous collection of a the other or others pay their propor- small claim may include a demonstra- tionate shares. NASA will not attempt tion to other debtors that resistance to to allocate the burden of paying such payment is not likely to succeed. claims as between the debtors but will (f) Enforcement policy. Statutory pen- proceed to liquidate the indebtedness alties, forfeitures, or debts established as quickly as possible. Care should be as an aid to enforcement and to compel taken that a compromise agreement 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. [45 FR 48104, July 18, 1980, as amended at 82 (g) Compromises payable in install- FR 29385, June 29, 2017] ments are to be discouraged. However, if payment of a compromise by install- § 1261.415 Execution of releases. ments is necessary, a legally enforce- Upon receipt of full payment of a able agreement for the reinstatement claim, or the amount in compromise of of the prior indebtedness less sums paid a claim as determined pursuant to thereon and acceleration of the balance § 1261.414, the official designated in due upon default in the payment of any § 1261.402 will prepare and execute, on installment should be obtained, to- behalf of the United States, an appro- gether with security in the manner set priate release, which shall include the forth in § 1261.411, in every case in provision that it shall be void if pro- which this is possible. cured by fraud, misrepresentation, the (h) If the agency’s files do not con- presentation of a false claim, or mu- tain reasonably up-to-date credit infor- tual mistake of fact. mation as a basis for assessing a compromise proposal, such information § 1261.416 Suspending or terminating may be obtained from the individual collection action.\ debtor by obtaining a statement exe- (a) The standards set forth in this cuted under penalty of perjury showing section apply to the suspension or ter- the debtor’s assets and liabilities, in- mination of collection action pursuant come, and expenses. Forms such as De- to 31 U.S.C. 3711(a)(3) on claims which partment of Justice Form OBD–500 or do not exceed $100,000, exclusive of in- OBD–500B may be used for this purpose. terest, penalties, and administrative Similar data may be obtained from costs, after deducting the amount of corporate debtors using a form such as partial payments or collections, if any. Department of Justice Form OBD–500C NASA may suspend or terminate col- or by resort to balance sheets and such lection action under this part with re- additional data as seems required. spect to claims for money or property

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arising out of activities of the Agency, defer the early liquidation cf security prior to the referral of such claims to for the debt. Every reasonable effort the Government Accountability Office should be made to locate missing debt- or to the Department of Justice for ors sufficiently in advance of the bar of litigation. The Comptroller General (or the applicable statute of limitations, designee) may exercise such authority such as 28 U.S.C. 2415, to permit the with respect to claims referred to the timely filing of suit if such action is Government Accountability Office warranted. If the missing debtor has prior to their further referral for litiga- signed a confess-judgment note and is tion. in default, referral of the note for the (b) If, after deducting the amount of entry of judgment should not be de- partial payments or collections, if any, layed because of the debtor’s missing a claim exceeds $100,000, exclusive of status. interest, penalties, and administrative (2) Financial condition of debtor. Col- costs, the authority to suspend or ter- lection action may also be suspended minate rests solely with the Depart- ment of Justice. If the designated offi- temporarily on a claim when the debt- cial believes suspension or termination or owns no substantial equity in realty may be appropriate, the matter should or personal property and is unable to be evaluated using the factors set forth make payments on the Government’s in paragraphs (c) and (d) of this sec- claim or effect a compromise at the tion. If the Agency concludes that sus- time, but the debtor’s future prospects pension or termination is appropriate, justify retention of the claim for peri- it must refer the matter, with its rea- odic review and action, and: sons for the recommendation, to the (i) The applicable statute of limita- Department of Justice, using the tions has been tolled or started run- Claims Collection Litigation Report. ning anew; or See § 1261.417(e) or 31 CFR 904.2(c). If (ii) Future collection can be effected NASA decides not to suspend or termi- by offset, notwithstanding the statute nate collection action on the claim, of limitations, with due regard to the Department of Justice approval is not 10-year limitation prescribed by 31 required; or if it determines that its U.S.C. 3716(c)(1); or claim is plainly erroneous or clearly (iii) The debtor agrees to pay interest without legal merit, it may terminate on the amount of the debt on which collection action regardless of the collection action will be temporarily amount involved, without the need for suspended, and such temporary suspen- Department of Justice concurrence. sion is likely to enhance the debtor’s (c) Suspension of collection activity—(1) ability to fully pay the principle Inability to locate debtor. Collection ac- amount of the debt with interest at a tion may be suspended temporarily on later date. a claim when the debtor cannot be located after diligent effort and there is (3) Request for waiver or administra- reason to believe that future collection tive review. If the statute under which action may be sufficiently productive waiver or administrative review is to justify periodic review and action on sought is ‘‘mandatory,’’ that is, if it the claim, with due consideration for prohibits the agency from collecting the size and amount which may be re- the debt prior to the agency’s consider- alized thereon. The following sources ation of the request for waiver or re- may be of assistance in locating miss- view (see Califano v. Yamasaki, 422 U.S. ing debtors: Telephone directories; city 682 (1979)), then collection action must directories; postmasters; drivers’ li- be suspended until either: The agency cense records; automobile title and has considered the request for waiver/ registration records; state and local review; or the applicable time limit for government agencies; the Internal Rev- making the waiver/review request, as enue Service (see 4 CFR 102.18); other prescribed in a written notice, has ex- Federal agencies; employers, relatives, pired and the debtor, upon notice, has friends; credit agency skip locate re- not made such a request. If the applica- ports, and credit bureaus. Suspension ble waiver/review statute is ‘‘permis- as to a particular debtor should not sive,’’ that is, if it does not require all

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requests for waiver/review to be consid- (2) Inability to locate debtor. Collection ered, and if it does not prohibit collec- action may be terminated on a claim tion action pending consideration of a when the debtor cannot be located, and waiver/request (for example, 5 U.S.C. either: 5584), collection action may be sus- (i) There is no security remaining to pended pending agency action on a be liquidated; or waiver/review request based upon ap- (ii) The applicable statute of limita- propriate consideration, on a case-by- tions has run and the prospects of col- case basis, as to whether: lecting by offset, notwithstanding the (i) There is a reasonable possibility bar of the statute of limitations, are that waiver will be granted or that the too remote to justify retention of the debt (in whole or in part) will be found claim. not owing from the debtor; (3) Cost will exceed recovery. Collection (ii) The Government’s interests action may be terminated on a claim would be protected, if suspension were when it is likely that the cost of fur- granted, by reasonable assurance that ther collection action will exceed the the debt could be recovered if the debt- amount recoverable thereby. or does not prevail; and (4) Claim legally without merit. Collec- (iii) Collection of the debt will cause tion action should be terminated im- undue hardship on the debtor. mediately on a claim whenever it is de- (4) If the applicable statutes and reg- termined that the claim is legally ulations would not authorize refund by without merit. the agency to the debtor of amounts (5) Claim cannot be substantiated by collected prior to agency consideration evidence. Collection action should be of the debtor’s waiver/review request terminated when it is determined that (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 circumstances, that the request is frivo- (e) Transfer of claim. When NASA has lous and was made primarily to delay doubt as to whether collection action collection. See 4 CFR 104.2. should be suspended or terminated on a (d) Termination of collection activity. claim, it may refer the claim to the Collection activity may be terminated Government Accountability Office for and NASA may close its file on the advice. When a significant enforcement claim based on the following: policy is involved in reducing a statu- (1) Inability to collect any substan- tory penalty or forfeiture to judgment, tial amount. Collection action may be or recovery of a judgment is a pre- terminated on a claim when it becomes requisite to the imposition of adminis- clear that the Government cannot col- trative sanctions, such as the suspen- lect or enforce collection of any signifi- sion or revocation of a license or the cant sum from the debtor, having due privilege of participating in a Govern- regard for the judicial remedies avail- ment-sponsored program, NASA may able to the Government, the debtor’s refer such a claim for litigation even future financial prospects, and the ex- though termination of collection activ- emptions available to the debtor under ity might otherwise be given consider- State and Federal law. In determining ation under paragraphs (d)(1) and (2) of the debtor’s inability to pay, the fol- this section. Claims on which NASA lowing factors, among others, may be holds a judgment by assignment or considered: Age and health of the debt- otherwise will be referred to the De- or; present and potential income; in- partment of Justice for further action heritance prospects; the possibility if renewal of the judgment lien or en- that assets have been concealed or im- forced collection proceedings are justi- properly transferred by the debtor; the fied under the criteria discussed in this availability of assets or income which section. may be realized by enforced collection [45 FR 48104, July 18, 1980, as amended at 82 proceedings. FR 29386, June 29, 2017]

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§ 1261.417 Referral to Department of eral Agencies and paragraphs (e) and (f) Justice or Government Account- of this section. ability Office. (c) When the merits of the claim, the (a) Prompt referral. Except as provided amount owed on the claim, or the pro- in paragraphs (b) and (c) of this sec- priety of acceptance of a proposed com- tion, claims on which aggressive col- promise, suspension, or termination lection action has been taken in ac- are in doubt, the designated official cordance with § 1261.406 and which can- should refer the matter to the Govern- not be compromised, or on which col- ment Accountability Office for resolu- lection action cannot be suspended or tion and instructions prior to pro- terminated, in accordance with ceeding with collection action and/or §§ 1261.414 and 1261.416, shall be prompt- referral to the Department of Justice ly referred to the Department of Jus- for litigation. tice for litigation. (d) Once a claim has been referred to the Government Accountability Office (1) Claims for which the gross origi- or to the Department of Justice pursu- nal amount is over $200,000 shall be re- ant to this section, NASA shall refrain ferred to the Commercial Litigation from having any contact with the debt- Branch, Civil Division, Department of or about the pending claim and shall Justice, Washington, DC 20530. direct the debtor to the Government (2) Claims for which the gross origi- Accountability Office or to the Depart- nal amount is $200,000 or less shall be ment of Justice, as appropriate, when referred to the United States Attorney questions concerning the claim are in whose judicial district the debtor raised by the debtor. The Government can be found. Referrals should be made Accountability Office or the Depart- as early as possible, consistent with ag- ment of Justice, as appropriate, shall gressive agency collection action and be immediately notified by NASA of the observance of the regulations con- any payments which are received from tained in this subpart, and in any the debtor subsequent to referral of a event, well within the period for bring- claim under this section. ing a timely suit against the debtor. (e) Claims Collection Litigation Report Ordinarily, referrals should be made (CCLR). Unless an exception has been within l year of the agency’s final de- granted by the Department of Justice termination of the fact and the amount in consultation with the General Ac- of the debt. counting Office, the Claims Collection (3) Minimum amount. NASA is not to Litigation Report (CCLR), which was refer claims of less than $600, exclusive officially implemented by NASA, effec- of interest, penalties, and administrative March 1, 1983, shall be used with tive costs, for litigation unless: all referrals of administratively (i) Referral is important to a signifi- uncollectible claims. As required by cant enforcement policy; or the CCLR, the following information (ii) The debtor not only has the clear must be included: ability to pay the claim but the Gov- (1) Report of prior collection actions. A ernment can effectively enforce pay- checklist or brief summary of the ac- ment, having due regard for the exemptions previously taken to collect or tions available to the debtor under compromise the claim. If any of the ad- State and Federal law and the judicial ministrative collection actions have remedies available to the Government. been omitted, the reason for their (b) Claims arising from audit excep- omission must be provided. GAO, the tions taken by the GAO to payments United States Attorney, or the Civil made by agencies must be referred to Division of the Department of Justice the GAO for review and approval prior may return claims at their option to referral to the Department of Jus- when there is insufficient justification tice for litigation, unless NASA has for the omission of one or more of the been granted an exception by the GAO. administrative collection actions enu- Referrals shall comply with instruc- merated in this subpart (see 4 CFR part tions, including monetary limitations, 102). contained in the GAO Policy and Pro- (2) Current address of debtor. The cur- cedures Manual for Guidance to Fed- rent address of the debtor, or the name

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and address of the agent for a corpora- (f) Preservation of evidence. Care will tion upon whom service may be made. be taken to preserve all files, records, Reasonable and appropriate steps will and exhibits on claims referred or to be be taken to locate missing parties in referred to the Department of Justice all cases. Referrals to the Department for litigation. Under no circumstances of Justice for the commencement of should original documents be sent to foreclosure of other proceedings, in the Department of Justice or the which the current address of any party United States Attorney without spe- is unknown, will be accompanied by a cific prior approval to do so. Copies of listing of the prior known addresses of relevant documents should be sent such party and a statement of the steps whenever necessary. taken to locate that party. [45 FR 48104, July 18, 1980, as amended at 82 (3) Credit data. Reasonably current FR 29386, June 29, 2017] credit data which indicates that there is a reasonable prospect of effecting en- § 1261.418 Transfer of debts to Treas- forced collection from the debtor, hav- ury for collection. ing due regard for the exemptions Unless subject to an exception identi- available to the debtor under State and fied in 31 CFR 285.12(d), NASA shall Federal law and the judicial remedies transfer any debt that is more than 180 available to the Government. Such days delinquent to the Financial Man- credit data may take the form of: agement Service for debt collection (i) A commercial credit report; services in accordance with the proce- (ii) An agency investigative report dures described in 31 CFR 285.12. showing the debtor’s assets, liabilities, income, and expenses; [82 FR 29386, June 29, 2017] (iii) The individual debtor’s own financial statement executed under pen- Subpart 1261.5—Administrative alty of perjury reflecting the debtor’s Offset of Claims assets, liabilities, income, and expenses; or SOURCE: 52 FR 19487, May 26, 1987, unless (iv) An audited balance sheet of a otherwise noted. corporate debtor. (4) Reasons for credit data omissions. § 1261.500 Scope of subpart. The credit data may be omitted if: (a) This subpart applies to collection (i) A surety bond is available in an of claims by administrative offset amount sufficient to satisfy the claim under section 5 of the Federal Claims in full; Collection Act of 1966 as amended by (ii) The forced sale value of the secu- the Debt Collection Act of 1982 and the rity available for application to the Debt Collection Improvement Act of Government’s claim is sufficient to 1996 (31 U.S.C. 3716), other statutory au- satisfy the claim in full; thority, or the common law; it does not (iii) NASA wishes to liquidate loan include ‘‘Salary Offset,’’ which is gov- collateral through judicial foreclosure erned by subpart 1261.6, infra. but does not desire a deficiency judg- (b) NASA shall refer past due, legally ment; enforceable nontax debts which are (iv) The debtor is in bankruptcy or over 180 days delinquent to the Sec- receivership; retary of the Treasury for collection by (v) The debtor’s liability to the Gov- centralized administrative offset. For ernment is fully covered by insurance, purposes of debts governed by this pro- in which case NASA will furnish such vision, NASA adopts and will follow information as it can develop con- the procedures established by the De- cerning the identity and address of the partment of the Treasury in 31 CFR insurer and the type and amount of in- 901.3. surance coverage; or (c) For claims not subject to manda- (vi) The status of the debtor is such tory transfer to the Department of the that credit data is not normally avail- Treasury pursuant to paragraph (b), able or cannot reasonably be obtained, NASA may consider ad hoc non-cen- for example, a unit of State or local tralized administrative offset of claims government. at its sole discretion. Any ad hoc non-

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centralized administrative offset of ment in lieu of offset. The determina- claims will be conducted consistent tion should balance the Government’s with the requirements of 31 CFR interest in collecting the debt against 901.3(c). fairness to the debtor. If the debt is de- (1) Debts owed by any State or local linquent and the debtor has not dis- Government; puted its existence or amount, NASA (2) Debts arising under or payments should accept a repayment agreement made under the Social Security Act, in lieu of offset only if the debtor is the Internal Revenue Code of 1954, or able to establish that offset would re- the tariff laws of the United States; or sult in undue financial hardship or (3) Any case in which collection of would be against equity and good con- the type of debt involved by adminis- science. trative offset is explicitly provided for (b) NASA may effect administrative or prohibited by another statute. How- offset against a payment to be made to ever, unless otherwise provided by con- a debtor prior to the completion of the tract or law, debts or payments which procedures required by paragraph (a) of are not subject to administrative offset this section if: under 31 U.S.C. 3716 may be collected by administrative offset under the (1) Failure to take the offset would common law or other applicable statu- substantially prejudice the Govern- tory authority. ment’s ability to collect the debt; and (2) The time before the payment is to [52 FR 19487, May 26, 1987, as amended at 82 be made does not reasonably permit FR 29386, June 29, 2017] the completion of those procedures. § 1261.501 Definition. Such prior offset must be promptly followed by the completion of those pro- Administrative offset—the term, as de- cedures. Amounts recovered by offset fined in 31 U.S.C. 3701(a)(1), means but later found not to be owed to the ‘‘withholding money payable by the Government shall be promptly re- United States Government to, or held funded. by the Government for, a person to satisfy a debt the person owes the Govern- (3) In cases where the procedural re- ment.’’ quirements of paragraph (a) of this section had previously been provided to § 1261.502 Notification procedures. the debtor in connection with the same debt under some other statutory or (a) Before collecting any claims regulatory authority, such as pursuant through administrative offset, a 30-day to a notice of audit disallowance or sal- written notice must be sent to the ary offset under § 1261.603, the agency is debtor by certified mail, return receipt not required to duplicate those require- requested. The notice must include: ments before taking administrative (1) The nature and amount of the offset. debt; (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 rights under 31 U.S.C. 3716(a), or other (a) NASA shall provide the debtor relied upon statutory authority, which with a reasonable opportunity for a must include a statement that the live, telephonic, or video-teleconfer- debtor has the opportunity, within the ence hearing when: 30-day notice period, to: (1) An applicable statute authorizes (i) Inspect and copy records of NASA or requires the agency to consider with respect to the debt; waiver of the indebtedness involved, (ii) Request a review by NASA of its the debtor requests waiver of the in- decision related to the claim; and debtedness, and the waiver determina- (iii) Enter into a written agreement tion turns on an issue of credibility or with the designated official (see veracity; or § 1261.402) to repay the amount of the (2) Unless otherwise required by law, claim. However, sound judgment a hearing under this section is not re- should be exercised in determining quired to be a formal evidentiary-type whether to accept a repayment agree- hearing, although significant matters

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discussed at the hearing should be doc- the Agency will make its determina- umented. See 31 CFR 901.3(e)(1). Such tion on the request for waiver or recon- hearing may be an informal discussion/ sideration based upon a review of the interview with the debtor, face-to-face available written record. See 31 CFR meeting between debtor and cognizant 901.3(e)(4). In such case, the responsible NASA personnel, or written formal official or designee shall refer the re- submission by the debtor and response quest to the appropriate NASA Office by the NASA cognizant personnel with of General Counsel or Chief Counsel for an opportunity for oral presentation. review and recommendation. The hearing will be conducted before or (d) A request to inspect and/or copy in the presence of an official as des- the debtor’s own debt records or re- ignated by the NASA General Counsel lated files, and/or for a hearing or re- on a case-by-case basis. The hearing is view accompanied by a statement of not an adversarial adjudication and the basis or grounds for such hearing or need not take the form of an evi- review, must be submitted within 30 dentiary hearing. However, depending calendar days of the receipt of the on the particular facts and cir- written notice under § 1261.502(a). A cumstances, the hearing may be analo- reasonable time to inspect and copy gous to a fact-finding proceeding with records will be provided during official oral presentations; or an informal working hours, but not to exceed 5 meeting with or interview of the em- business days, unless a verified state- ployee; or formal written submissions, ment showing good cause requires a with an opportunity for oral presen- longer period. Any suspension of collec- tation, and decision based on the avail- tion or other charges during the period able written record. Ordinarily, hear- of the inspection, or hearing or review, ings may consist of informal con- shall comply with §§ 1261.412 and ferences before the hearing official in 1261.416. Requests for or consideration which the employee and Agency offi- of compromising the debt must comply cials will be given full opportunity to with § 1261.414. present evidence, witnesses, and argument. The employee may represent [52 FR 19487, May 26, 1987, as amended at 82 himself or herself or be represented by FR 29386, June 29, 2017] an individual of his or her choice at no § 1261.504 Interagency requests. cost to the United States. The hearing official must maintain or provide for a (a) Requests to NASA by other Fed- summary record of the hearing pro- eral agencies for administrative offset vided under this subpart. The decision should be in writing and forwarded to of the reviewing/hearing official should the Office of the NASA Comptroller, be communicated in writing (no par- NASA Headquarters, Washington, DC ticular form is required) to the affected 20546. parties and will constitute the final ad- (b) Requests by NASA to other Fed- ministrative decision of the Agency. eral agencies holding funds payable to (b) Paragraph (a) of this section does the debtor should be in writing and for- not require a hearing with respect to warded, certified return receipt, as debt collection systems, as determina- specified by that agency in its regulations of indebtedness or waiver from tions; however, if such rule is not read- these rarely involve issues of credi- ily available or identifiable, the re- bility or veracity since NASA has de- quest should be submitted to that termined that review of the written agency’s office of legal counsel with a record is ordinarily an adequate means request that it be processed in accord- to correct prior mistakes. See 31 CFR ance with their internal procedures. 901.3(e)(3). (c) Requests to and from NASA (c) In those cases where a live, tele- should be processed within 30 calendar phonic, or video-teleconference hearing days of receipt. If such processing is is not required or granted, NASA will impractical or not feasible, notice to nevertheless accord the debtor an op- extend the time period for another 30 portunity to submit any position re- calendar days should be forwarded 10 garding the matter by documentation calendar days prior to the expiration of and/or written presentation—that is, the first 30-day period.

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(d) Requests from or to NASA must (1) The debtor owes the United States be accompanied by a certification that a debt, including the amount of the the debtor owes the debt (including the debt; amount) and that the provisions of (or (2) NASA has complied with the ap- comparable to) subpart 1261.5 or sub- plicable statutes, regulations, and pro- part 1261.6, as applicable, have been cedures of the Office of Personnel Man- fully complied with. NASA will cooper- agement; and ate with other agencies in effecting (3) NASA has complied with the re- collection. quirements of this subpart 1261.5 which implements 4 CFR 102.3, including any § 1261.505 Multiple debts. required hearing or review. When collecting multiple debts by (c) Once NASA has decided to request administrative offset, NASA will apply administrative offset under this sec- the recovered amounts to those debts tion, the request should be made as in accordance with the best interests of soon as practical after completion of the United States, as determined by the applicable procedures in order that the facts and circumstances of the par- the Office of Personnel Management ticular case, paying special attention may identify and ‘‘flag’’ the debtor’s to applicable statutes of limitations. account in anticipation of the time when the debtor requests or becomes § 1261.506 Limitation periods. eligible to receive payments from the Fund. This will satisfy any require- NASA may not initiate administra- ment that offset be initiated prior to tive offset to collect a debt under 31 expiration of the applicable statute of U.S.C. 3716 more than 10 years after the limitations. At such time as the debtor Government’s right to collect the debt makes a claim for payments from the first accrued, unless facts material to Fund, if at least a year has elapsed the Government’s right to collect the since the offset request was originally debt were not known and could not rea- made, the debtor should be permitted sonably have been known by the offi- to offer a satisfactory repayment plan cial or officials of the Government who in lieu of offset upon establishing that were charged with the responsibility to changed financial circumstances would discover and collect such debts. Deter- render the offset unjust. mination of when the debt first accrued (d) If NASA collects part or all of the is to be made in accordance with exist- debt by other means before deductions ing law regarding the accrual of debts, are made or completed pursuant to such as under 28 U.S.C. 2415. See 4 CFR paragraph (a) of this section, the des- 102.3(b)(3). ignated official should act promptly to § 1261.507 Civil Service Retirement modify or terminate the agency’s re- and Disability Fund. quest to OPM for offset. (e) OPM is not required or authorized (a) Unless otherwise prohibited by by 4 CFR 102.4 to review the merits of law, NASA may request that moneys NASA’s determination with respect to: which are due and payable to a debtor (1) The amount and validity of the from the Civil Service Retirement and debt; Disability Fund be administratively (2) Waiver under an applicable stat- offset in reasonable amounts in order ute; or to collect in one full payment or a (3) Provide or not provide a live, tele- minimal number of payments debts phonic, or video-teleconference hear- owed to the United States by the debt- ing. or. Such requests shall be made to the appropriate officials of the Office of [52 FR 19487, May 26, 1987, as amended at 82 Personnel Management (OPM) in ac- FR 29387, June 29, 2017] cordance with the OPM regulations (see 5 CFR 831.1801, et seq.). § 1261.508 Offset against a judgment. (b) When making a request for ad- Collection by offset against a judg- ministrative offset under paragraph (a) ment obtained by a debtor against the of this section, NASA shall include a United States shall be accomplished in written certification that: accordance with 31 U.S.C. 3728.

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Subpart 1261.6—Collection by way questioning the amount or valid- Offset From Indebted Govern- ity of a debt by submitting a subse- ment Employees quent claim to the Government Ac- countability Office in accordance with procedures prescribed by the Govern- SOURCE: 52 FR 19487, May 26, 1987, unless ment Accountability Office. Similarly, otherwise noted. in the case of other types of debts, it does not preclude an employee from re- § 1261.600 Purpose of subpart. questing waiver, if waiver is available This subpart implements 5 U.S.C. under any statutory provision per- 5514 in accordance with the OPM regu- taining to the particular debt being lation and establishes the procedural collected. requirements for recovering pre-judgment debts from the current pay ac- [52 FR 19487, May 26, 1987, as amended at 82 FR 29387, June 29, 2017] count of an employee through what is commonly called salary offset, includ- § 1261.602 Definitions. ing a situation where NASA (the cur- For purposes of this subpart: rent paying agency) is not the employ- (a) Agency means: ee’s creditor agency. Salary offset to (1) An Executive agency as defined in satisfy a judgment or a court deter- section 105 of title 5, United States mined debt is governed by section 124 Code, including U.S. Postal Service and of Pub. L. 97–276 (October 2, 1982), 5 the U.S. Postal Rate Commission; U.S.C. 5514 note. (2) A military department as defined in section 102 of Title 5, United States § 1261.601 Scope of subpart. Code; (a) Coverage. This subpart applies to (3) An agency or court in the judicial agencies and employees as defined in branch, including a court as defined in § 1261.602. section 610 of Title 28, United States (b) Applicability. This subpart and 5 Code, the District Court for the North- U.S.C. 5514 apply in recovering certain ern Mariana Islands, and the Judicial prejudgment debts by administrative Panel on Multidistrict Litigation; offset except where the employee con- (4) An agency of the legislative sents to the recovery, from the current branch, including the U.S. Senate and pay account of an employee. Because it the U.S. House of Representatives; and is an administrative offset, debt collec- (5) Other independent establishments tion procedures for salary offset which that are entities of the Federal Govern- are not specified in 5 U.S.C. 5514 and ment. this subpart should be consistent with (b) Creditor agency means the agency subpart 1261.5. to which the debt is owed. (1) Excluded debts or claims. The proce- (c) Debt means an amount owed to dures contained in this subpart do not the United States from sources which apply to debts or claims arising under include loans insured or guaranteed by the Internal Revenue Code of 1954 as the United States and all other amended (26 U.S.C. 1 et seq.), the Social amounts due the United States from Security Act (42 U.S.C. 301 et seq.), or fees, leases, rents, royalties, services, the tariff laws of the United States; or sales of real or personal property, over- to any case where collection of a debt payments, penalties, damages, interest, by salary offset is explicitly provided fines and forfeitures (except those aris- for or prohibited by another statute ing under the Uniform Code of Military (e.g., travel advances in 5 U.S.C. 5705, Justice), and all other similar sources. employee training expenses in 5 U.S.C. (d) Disposable pay means that part of 4108, and debts determined by a court current basic pay, special pay, incen- as provided in 5 U.S.C. 5514 note). tive pay, retired pay, retainer pay, or (2) Waiver requests and claims to the in the case of an employee not entitled Government Accountability Office. This to basic pay, other authorized pay re- subpart does not preclude an employee maining after the deduction of any from requesting waiver of a salary amount required by law to be withheld. overpayment under 5 U.S.C. 5584, 10 NASA must exclude deductions listed U.S.C. 2774, or 32 U.S.C. 716, or in any in OPM’s garnishment regulations at 5

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CFR 581.105 (b) through (f) to determine ductions (the amount to be deducted disposable pay subject to salary offset. for any period, without the consent of (e) Employee means a current em- the employee, may not exceed 15 per- ployee of an agency, including a cur- cent of disposable pay); rent member of the Armed Forces or a (3) An explanation of any interest, Reserve of the Armed Forces (Re- penalties, or administrative costs in- serves). cluded in the amount, and that such (f) Paying agency means the agency assessment must be made unless ex- employing the individual and author- cused in accordance with 14 CFR izing the payment of his or her current 1261.412; pay. (4) The right for an opportunity (g) Salary offset means an administra- (which does not toll the running of the tive offset to collect a debt under 5 30-day period) to inspect and copy U.S.C. 5514 by deduction(s) at one or NASA records relating to the debt or more officially established pay inter- to request and receive (if reasonable) a vals from the current pay account of copy of such records, provided that an employee without his or her con- such opportunity must be exercised on sent. or before the 15th day following receipt (h) Waiver means the cancellation, of the notice and can be conducted only remission, forgiveness, or nonrecovery during official working hours for a rea- of a debt allegedly owed by an em- sonable period of time not to exceed 5 ployee to an agency as permitted or re- working days; quired by 5 U.S.C. 8346(b), or any other (5) If not previously provided, the op- law. portunity (under terms agreeable to NASA) to establish a schedule for the § 1261.603 Procedures for salary offset. voluntary repayment of the debt or to If NASA determines that a Federal enter into a written agreement to es- employee is indebted to the United tablish a schedule for repayment of the States or is notified of such by the debt in lieu of offset. The agreement head of another agency (or delegee), must be in writing, signed by both the the amount of indebtedness may be col- employee and the authorized agency of- lected in monthly installments, or reg- ficial (see 14 CFR 1261.402) and docu- ularly established pay intervals, by de- mented in NASA’s files (see 14 CFR duction from the affected employee’s 1261.407(d)); pay account. The deductions may be (6) An opportunity for a hearing, as made from basic pay, special pay, in- provided in paragraph (c) of this sec- centive pay, retired pay, retainer pay, tion, on the agency’s determination or in the case of an employee not enti- concerning the existence and amount tled to basic pay, from other author- of the debt, and the terms of the repay- ized pay. The requirements in para- ment schedule (in the case of an em- graphs (a) through (h) of this section ployee whose repayment schedule is es- must be met before a deduction is made tablished other than by written agree- from the current pay account of an em- ment); ployee. (7) The hearing request should be ad- (a) Written notice. The employee must dressed to the Office of the NASA Gen- be sent a minimum of 30 days written eral Counsel or to the Office of Chief notice prior to further offset action, Counsel of the NASA installation in- which specifies: volved, as appropriate; counsel’s name (1) The origin, nature and amount of and address will be as stated in the no- the indebtedness, and the official to tice. contact within the agency (ordinarily, (8) Any other rights and remedies the designated financial management available to the employee under stat- official for the particular installation); utes or regulations governing the pro- (2) The intention of the agency to ini- gram for which the collection is being tiate collection of the debt through sal- made; and ary offset by deductions from the em- (9) Unless there are applicable con- ployee’s current disposable pay, stating tractual or statutory provisions to the the amount, frequency, proposed begin- contrary, that amounts paid on or de- ning date, and duration of intended deducted for the debt which are later

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waived or found not owed to the United (i) Disciplinary procedures appro- States will be promptly refunded to the priate under Chapter 75 of Title 5, employee. United States Code, 5 CFR part 752, or (b) Exception to entitlement to written any other applicable statutes or regu- notice. NASA is not required to comply lations; with paragraph (a) of this section for (ii) Penalties under the False Claims any adjustment to pay arising out of Act, sections 3729 through 3731 of Title an employee’s election of coverage or a 31, United States Code, or any other change in coverage under a Federal applicable statutory authority; or benefits program requiring periodic de- (iii) Criminal penalties under sec- ductions from pay, if the amount to be tions 286, 287, 1001, and 1002 of Title 18, recovered was accumulated over four United States Code, or any other appli- pay periods or less. cable statutory authority. (c) Petition filing; hearing; decision and (5) As for the conduct of any live, tel- review. The notice described in para- ephonic, or video teleconference hear- graph (a) of this section should include ing, for additional guidance see 14 CFR the following provisions, which may be 1261.503. copied and attached to the notice. (d) Petition after time expiration. No (1) The employee may petition for a petition for a hearing is to be granted hearing, but such petition must be in if made after the 15-day period prescribed in paragraph (c)(1) of this sec- writing and received by NASA on or be- tion, unless the employee can show to fore the 15th day following receipt of the satisfaction of the agency official the notice, and include a statement of indicated on the notice that the delay the reasons for such hearing. No par- was caused by circumstances beyond ticular form is required, and a timely, his or her control (for example, proven legible letter request (with the stated incapacity, illness, or hospitalization), reasons) will suffice; however, the em- or that the agency did not give notice ployee must sign the petition and in- of the time limit and the employee was clude with it, with reasonable speci- otherwise unaware of such limit. ficity, all the supporting facts and evi- (e) Limitation on amount and duration dence, including a list of the witnesses, of deductions. Ordinarily, debts are to if any. be collected in one lump-sum payment. (2) The petition should be addressed However, if the employee is financially to the Agency counsel designated in unable to pay in one lump sum or if the the notice, but the hearing will be con- amount of the debt exceeds 15 percent ducted by an official not under the su- of disposable pay for an officially es- pervision or control of the NASA Ad- tablished pay interval, collection must ministrator. The Agency Chief Finan- be made in installments. The size of in- cial Officer is authorized to appoint an stallment deductions must bear a rea- administrative law judge or other Fed- sonable relationship to the size of the eral executive branch employee or offi- debt and the employee’s ability to pay cial on a reimbursable or other basis. (see 14 CFR 1261.411), but the amount Notice of the name and address of the deducted for any period must not ex- hearing official will be sent to the em- ceed 15 percent of the disposable pay ployee within 10 days of receipt of peti- from which the deduction is made (un- tion. less the employee has agreed in writing (3) The timely filing of the petition to the deduction of a greater amount). will stay the commencement of collec- Deduction must commence with the tion; and the final decision on the hear- next full pay interval (ordinarily, the ing will be issued at the earliest prac- next biweekly pay period). Such in- ticable date, but not later than 60 days stallment deductions must be made after the filing of the petition request- over a period not greater than the an- ing the hearing unless the employee re- ticipated period of active duty or em- quests and the hearing official grants a ployment, as the case may be, except delay in the proceedings. as provided in paragraph (f) of this sec- (4) Any knowingly false or frivolous tion. statements, representations, or evi- (f) Determining ability to pay. An off- dence may subject the employee to: set may produce an extreme financial

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hardship for an employee if it prevents § 1261.605 Refunds. the employee from meeting costs nec- (a) NASA will promptly refund to the essarily incurred for essential subsist- employee amounts paid or deducted ence expenses for food, reasonable under this subpart when: housing, clothing, transportation, and (1) A debt is waived or otherwise medical care. In determining whether found not owing the United States (un- an offset would prevent the employee less expressly prohibited by statute or from meeting the essential subsistence regulation); or expenses, the employee may be re- (2) The employee’s paying agency is quired to show income from all sources directed by an administrative or judi- (including spouse and dependents, if ap- cial order to refund amounts deducted plicable), list all known assets, explain from his or her current pay. exceptional expenses, and produce any (b) Refunds are not to bear any inter- other relevant factors. est unless the law applicable to that (g) Liquidation from final check; other particular debt specifically requires or permits a stated interest amount on re- recovery. If the employee retires or refunds. signs from Federal service, or if his or her employment or period of active § 1261.606 Salary offset request by a duty ends before collection of the debt creditor agency other than NASA is completed, the balance may be de- (the current paying agency). ducted from the final salary payment (a) Format of the request. Upon com- and any remaining balance from the pletion of the procedures established lump-sum leave, if applicable. If the by the creditor agency under 5 U.S.C. debt is not fully paid by offset from 5514, the creditor agency must: any final payment due the former em- (1) Certify, in writing, that the employee as of the date of separation, off- ployee owes the debt, the amount and set may be made from later payments basis of the debt, the date on which of any kind due the former employee payment(s) is/are due, the date the from the United States (as provided in Government’s right to collect the debt 14 CFR part 1261 subpart 1261.5, includ- first accrued, and that the creditor ing offset from the Civil Service Re- agency’s regulations implementing 5 tirement and Disability Fund under 14 U.S.C. 5514 have been approved by CFR 1261.507). OPM; (2) If the collection must be made in (h) Interest, penalties, and administra- installments, the creditor agency must tive costs. Assessment of interest, pen- also advise NASA of the number of in- alties, and administrative costs, on stallments to be collected, the amount debts being collected under this sub- of each installment, and the com- part, shall be in accordance with 14 mencing date of the first installment, CFR 1261.412 which implements 4 CFR if a date other than the next officially 102.13. established pay period is required; and [52 FR 19487, May 26, 1987, as amended at 82 (3) Unless the employee has con- FR 29387, June 29, 2017] sented to the salary offset in writing or 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 taken under 5 U.S.C. 5514(a)(2) and give collected under this subpart, must not the date(s) the action(s) was/were be construed as a waiver of any rights taken. which the employee may have under an (b) Limitation period. The creditor existing written contract applicable to agency may not initiate offset to col- the specific debt or under any other lect a debt more than 10 years after the pertinent statutory authority for the Government’s right to collect the debt collection of claims of the United first accrued, except as provided in 14 States or the agency. CFR 1261.506, which implements 4 CFR 102.3(b)(3).

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(c) Employees who are separating or rent pay account and notify the em- have separated—(1) Employees who are in ployee and the creditor agency of the the process of separating. If the em- resumption. It will not be necessary for ployee is in the process of separating, the creditor agency to repeat the due the creditor agency must submit its process procedures described by 5 debt claim to the employee’s paying U.S.C. 5514 of this subpart in order to agency for collection as provided in 5 resume the collection. However, it will CFR 550.1104(1) of the OPM regulations be the responsibility of the creditor (14 CFR 1261.603(f)) for ‘‘liquidation agency to review the debt upon receiv- from final check.’’ NASA must then ing NASA’s notice of the employee’s certify the total amount of its collec- transfer to make sure the collection is tion and notify the creditor agency and resumed by the new paying agency. the employee as provided in paragraph (d) Processing the debt claim upon re- (c)(3) of this section. If NASA is aware ceipt—(1) Incomplete claim. If NASA re- that the employee is entitled to pay- ceives incomplete debt claim informa- ments from the Civil Service Retire- tion, it must return the request with a ment and Disability Fund, or other notice that procedures under 5 U.S.C. similar payments, it should notify the 5514 and this subpart must be provided creditor agency and forward the copy and complete debt claim information of the debt claim and certification to received before action will be taken to the agency responsible for making such collect from the employee’s current payments as notice that a debt is out- pay account. standing. However, the creditor agen- (2) Complete claim. If NASA receives a cy, not NASA, must submit a properly properly documented debt claim, de- certified claim to the agency respon- ductions should be scheduled to begin sible for making such payments before prospectively at the next officially es- collection can be made. tablished pay interval. A copy of the (2) Employees who have already sepa- debt claim request must be given to rated. If the employee is already sepa- the debtor, along with notice of the rated and all payments due from NASA date deductions will commence if dif- have been paid, NASA must return the ferent from that stated on the debt claim to the creditor agency for any claim request. 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 and appropriate hearing before an ad- debt. A copy of the certification should ministrative law judge or before a be furnished the employee, and another hearing official furnished pursuant to copy furnished to the creditor agency another lawful arrangement, the cred- along with notice of the employee’s itor agency may contact an agent of transfer. the paying agency designated in appen- (ii) Official personnel folder insertion; dix A of 5 CFR part 581 to arrange for new paying agency. Information on the a hearing official, and the paying agen- debt claim must be inserted in the em- cy must then cooperate as provided by ployee’s official personnel folder along 4 CFR 102.1 and provide a hearing offi- with a copy of the certification of the cial. amount which has been collected. Upon (b) When the debtor works for the receiving the official personnel folder, creditor agency, the creditor agency the new paying agency must resume may contact any agent (of another the collection from the employee’s cur- agency) designated in appendix A of 5

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CFR part 581 to arrange for a hearing unless it has unreasonably protracted official. Agencies must then cooperate the proceedings, or the Agency’s posi- as required by 4 CFR 102.1 and provide tion in the proceeding was substan- a hearing official. tially justified, or special circumstances make an award unjust. The PART 1262—EQUAL ACCESS TO rules in this part describe the parties JUSTICE ACT IN AGENCY PRO- eligible for awards and the proceedings CEEDINGS that are covered. They also explain how to apply for awards, and the procedures and standards that the National Subpart 1262.1—General Provisions Aeronautics and Space Administration Sec. (NASA) will use in determining awards. 1262.101 Purpose of these rules. (b) As used in this part: 1262.102 When the Act applies. (1) Adversary adjudication means: 1262.103 Proceedings covered. (i) An adjudication under 5 U.S.C. 554 1262.104 Eligibility of applicants. 1262.105 Standards for awards. in which the position of the United 1262.106 Allowable fees and expenses. States is represented by counsel or oth- 1262.107 Rulemaking on maximum rates for erwise, but excludes an adjudication attorney fees. for the purpose of establishing or fixing 1262.108 Awards against other agencies. a rate or for the purpose of granting or 1262.109 Delegations of authority. renewing a license; (ii) Any appeal of a decision made Subpart 1262.2—Information Required pursuant to section 6 of the Contract From Applicants Disputes Act (CDA) of 1978, as amended 1262.201 Contents of application. (41 U.S.C. 605) before an agency board 1262.202 Net worth exhibit. of contract appeals as provided in sec- 1262.203 Documentation of fees and ex- tion 8 of the CDA (41 U.S.C. 607); penses. (iii) Any hearing conducted under 1262.204 When an application may be filed. Chapter 38 of Title 31 (added by section 6104 of the Program Fraud Civil Rem- 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, 1262.301 Filing and service of documents. et seq., as amended); and 1262.302 Answer to application. (iv) The Religious Freedom Restora- 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. 1262.307 Decision. 2000bb). 1262.308 Agency review. (2) Adjudicative officer means the de- 1262.309 Judicial review. ciding official, without regard to 1262.310 Payment of award. whether the official is designated an AUTHORITY: 5 U.S.C. 504; 51 U.S.C. 20113(a). administrative law judge, a hearing officer 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 addition 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; (a) The pertinent provisions of the (4) Party, as defined in 5 U.S.C. 551(3), Equal Access to Justice Act at 5 U.S.C. includes a person or agency named or 504 (hereinafter ‘‘the Act’’) provide for admitted as a party, or properly seek- the award of attorney fees and other ing and entitled as of right to be ad- expenses to eligible individuals and en- mitted as a party, in an agency pro- tities who are parties to certain admin- ceeding, and a person or agency admit- istrative proceedings (called ‘‘adver- ted by an agency as a party for limited sary adjudications’’). An eligible party purposes, and who meets the eligibility may receive an award when it prevails, requirements of § 1262.104; and

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(5) Agency with a capital A denotes (2) Proceedings to grant or renew li- the NASA. censes (note, however, that proceedings (c) Determination of Substantially jus- to modify, suspend, or revoke licenses tified. Whether or not the position of are covered if they are otherwise adver- the agency was substantially justified sary adjudications); and shall be determined on the basis of the (3) Proceedings which are covered by administrative record, as a whole, a compromise or settlement agree- which is made in the adversary adju- ment, unless specifically consented to dication for which fees and other ex- in such agreement. penses are sought. (c) NASA may also designate a proceeding as an adversary adjudication [51 FR 15311, Apr. 23, 1986, as amended at 60 for purposes of the Act by so stating in FR 12668, Mar. 8, 1995] an order initiating the proceeding or designating the matter for hearing. § 1262.102 When the Act applies. The Agency’s failure to designate a The Act applies to any adversary ad- proceeding as an adversary adjudica- judication pending or commenced be- tion shall not preclude the filling of an fore NASA on or after August 5, 1985. It application by a party who believes the also applies to any adversary adjudica- proceeding is covered by the Act; tion commenced on or after October 1, whether the proceeding is covered will 1984, and finally disposed of before Au- then be an issue for resolution in pro- gust 5, 1985, provided that an applica- ceedings on the application. tion for fees and expenses, as described (d) If a proceeding includes both mat- in subpart 1262.2, had been filed with ters covered by the Act and matters the Agency within 30 days after August specifically excluded from coverage, 5, 1985, and to any adversary adjudica- any award made will include only fees tion pending on or commenced on or and expenses related to covered issues. after October 1, 1981, in which an appli- [60 FR 12668, Mar. 8, 1995] cation for fees and other expenses was timely filed and was dismissed for lack § 1262.104 Eligibility of applicants. of jurisdiction. (a) To be eligible for an award of at- § 1262.103 Proceedings covered. torney fees and other expenses, the applicant must be a ‘‘party’’ to the adver- (a) The Act applies to the following sary adjudication for which an award is adversary adjudications conducted by sought. The applicant must show that the Agency: it meets all conditions of eligibility set (1) Adjudications under 5 U.S.C. 554 out in this subpart and in subpart in which the position of NASA or any 1262.2. other agency of the United States, or (b) The types of eligible applicants any component of an agency, is pre- are as follows: sented by an attorney or other rep- (1) An individual with a net worth of resentative who enters an appearance not more than $2 million; and participates in the proceedings; (2) Any owner of an unincorporated (2) Appeals of decisions made pursu- business who has a net worth of not ant to section 6 of the Contract Dis- more than $7 million, including both putes Act of 1978 (41 U.S.C. 605) before personal and business interests, and the Board of Contract Appeals (BCA) as not more than 500 employees; provided in Section 8 of that Act (41 (3) A charitable or other tax-exempt U.S.C. 607); organization described in section (3) Any hearing conducted under 501(c)(3) of the Internal Revenue Code Chapter 38 of Title 31 (31 U.S.C. 3801, et (26 U.S.C. 501(c)(3)) with not more than seq., as amended); and 500 employees; (4) Adjudications under the Religious (4) A cooperative association as de- Freedom Restoration Act of 1993 (42 fined in section 15(a) of the Agricul- U.S.C. 2000bb). tural Marketing Act (12 U.S.C. 1141j(a)) (b) The Act does not apply to: with not more than 500 employees; and (1) Any proceeding in which this (5) Any other partnership, corpora- Agency may prescribe a lawful present tion, association, unit of local govern- or future rate; ment, or organization with a net worth

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of not more than $7 million and not stantive portion of the proceeding, un- more than 500 employees. less the position of the agency over (c) For the purpose of eligibility, the which the applicant has prevailed was net worth and number of employees of substantially justified. No presumption an applicant shall be determined as of arises that the agency’s position was the date the proceeding was initiated. not substantially justified simply be- (d) An applicant who owns an unin- cause the agency did not prevail. The corporated business will be considered burden of proof that an award should as an ‘‘individual’’ rather than as a not be made to an eligible prevailing ‘‘sole owner of an unincorporated busi- applicant is on the agency. ness’’ if the issues on which the appli- (b) An award, for any portion of the cant prevails are related primarily to adversary adjudication, will be denied personal interests rather then to busi- if the applicant has unreasonably pro- ness interests. tracted the proceedings, or denied or (e) The employees of an applicant in- reduced if special circumstances make clude all persons who regularly per- the award sought unjust. form services for remuneration for the applicant, under the applicant’s direc- § 1262.106 Allowable fees and ex- tion and control. Part-time employees penses. shall be included on a proportional (a) Awards will be based on rates cus- basis. tomarily charged by persons engaged (f) The net worth and number of em- in the business of acting as attorneys, ployees of the applicant and all of its agents, and expert witnesses, even if affiliates shall be aggregated to deter- the services were made available with- mine eligibility. Any individual, cor- out charge or at a reduced rate to the poration, or other entity that directly applicant. or indirectly controls or owns a major- (b) No award for the fee of an attor- ity of the voting shares or other inter- ney or agent under these rules may ex- est of the applicant, or any corporation ceed $75 per hour. No award to com- 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

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(5) Such other factors as may bear on § 1262.109 Delegations of authority. the value of the services provided. (a) The NASA Administrator hereby (d) The reasonable cost of any study, delegates authority to the General analysis, engineering report, test, Counsel or designee to take final ac- project, or similar matter prepared on tion on matters pertaining to the Act, behalf of a party may be awarded, to other than the authority for final fee the extent that the charge for the serv- determination after Agency review ice does not exceed the prevailing rate pursuant to § 1262.308. for similar services, and the study or (b) The NASA Administrator may, in other matter was necessary for prepa- particularly specified matters under ration of the applicant’s case. the Act, delegate authority to officials § 1262.107 Rulemaking on maximum other than those designated in para- rates for attorney fees. graph (a) of this section. (a) If warranted by an increase in the cost of living or by special cir- Subpart 1262.2—Information cumstances (such as limited avail- Required From Applicants ability of attorneys qualified to handle certain types of proceedings), the § 1262.201 Contents of application. Agency may adopt regulations pro- (a) An application for an award of viding that attorney fees may be fees and expenses under the Act shall awarded at a rate higher then $75 per identify the applicant and the pro- hour in some or all of the types of proceeding for which an award is sought. ceedings covered by this part. This The application shall show that the ap- Agency will conduct any rulemaking plicant has prevailed and identify the proceedings for this purpose under the position of an agency or agencies in the informal rulemaking procedures of the proceeding that the applicant alleges Administrative Procedure Act (5 U.S.C. was not substantially justified. Unless 553). the applicant is an individual, the ap- (b) Any person may file with the plication shall also state the number of Agency a petition for rulemaking to in- employees of the applicant and decrease the maximum rate for attorney scribe briefly the type and purpose of fees. The petition should be addressed its organization or business. to the General Counsel, NASA Head- (b) The application shall also include quarters, Washington, DC 20546; should a statement that the applicant’s net identify the rate the petitioner be- worth does not exceed $2 million (if an lieves the Agency should establish and individual) or $7 million (for all other the types of proceedings in which the applicants, including their affiliates). rate should be used; and should also ex- However, an applicant may omit this plain fully the reasons why the higher statement if the applicant: rate is warranted. The Agency will re- (1) Attaches a copy of a ruling by the spond to the petition within 60 days Internal Revenue Service that it quali- after it is filed, by initiating a rule- fies as an organization described in sec- making proceeding or denying the petition 501(c)(3) of the Internal Revenue tion, or taking other appropriate ac- Code (26 U.S.C. 501(c)(3)), or, in the case tion. of a tax-exempt organization not required 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.

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(d) The application may also include against which the applicant seeks an any other matters that the applicant award, but need not be served on any wishes this Agency to consider in de- other party to the proceeding. If the termining whether and in what amount adjudicative officer finds that the in- an award should be made. formation should not be withheld from (e) The application shall be signed by disclosure, it shall be placed in the the applicant or an authorized officer public record of the proceeding. Other- or attorney of the applicant. It shall wise, any request to inspect or copy also contain or be accompanied by a the exhibit shall be disposed of in ac- written verification under oath or cordance with the Agency’s regulations under penalty of perjury that the infor- under the Freedom of Information Act, mation provided in the application is at 14 CFR part 1206. true and correct. [51 FR 15311, Apr. 23, 1986, as amended at 80 [51 FR 15311, Apr. 23, 1986, as amended at 80 FR 42029, July 16, 2015] FR 42029, July 16, 2015] § 1262.203 Documentation of fees and § 1262.202 Net worth exhibit. expenses. (a) Each applicant except a qualified The application shall be accompanied tax-exempt organization or cooperative by full documentation of the fees and association must provide with its ap- expenses, including the cost of any plication a detailed exhibit showing the net worth of the applicant and any study, analysis, engineering report, affiliates (as defined in § 1262.104(f) test, project, or similar matter for when the proceeding was initiated. The which an award is sought. A separate exhibit may be in any form convenient itemized statement, accompanied by to the applicant that provides full dis- an oath of affirmation under penalty of closure of the applicant’s and its affili- perjury (28 U.S.C. 1746), shall be sub- ates’ assets and liabilities and is suffi- mitted for each professional firm or in- cient to determine whether the appli- dividual whose services are covered by cant qualifies under the standards in the application, showing the hours this part. The adjudicative officer may spent in connection with the pro- require an applicant to file additional ceeding by each individual, a descrip- information to determine its eligibility tion of the specific services performed, for an award. the rate at which each fee has been (b) Ordinarily, the net worth exhibit computed, any expenses for which re- will be included in the public records of imbursement is sought, the total the proceeding. However, an applicant amount paid or payable by the appli- that objects to public disclosure of in- cant or by any other person or entity formation in any portion of the exhibit for the services provided. The adjudica- and believes there are legal grounds for tive officer may, in addition, require withholding it from disclosure may the applicant to provide vouchers, re- submit that portion of the exhibit di- ceipts, or other substantiation for any rectly to the adjudicative officer in a expenses claimed. sealed envelope labeled ‘‘Confidential Financial Information,’’ accompanied § 1262.204 When an application may be filed. by a motion to withhold the information from public disclosure. The mo- (a) An application may be filed when- tion shall describe the information ever the applicant has prevailed in the sought to be withheld and explain, in proceeding or in a significant and dis- detail, why it falls within one or more crete substantive portion of the proof the specific exemptions from manda- ceeding, but in no case later than 30 tory disclosure under the Freedom of days after the Agency’s final disposi- Information Act, 5 U.S.C. 552(b)(1)–(9), tion of the proceeding. why public disclosure of the informa- (b) If review or reconsideration is tion would adversely affect the appli- sought or taken of a decision as to cant, and why disclosure is not re- which an applicant believes it has pre- quired in the public interest. The mate- vailed, proceedings for the award of rials in question shall be served on fees shall be stayed pending final dis- counsel representing the agency position of the underlying controversy.

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(c) For purposes of this rule, final (c) The answer shall explain in detail disposition means the latter of: any objections to the award requested (1) The date on which the last ‘‘ini- and identify the facts relied on in sup- tial decision’’, in a bifurcated pro- port of agency counsel’s position. If the ceeding, or other recommended disposi- answer is based on any alleged facts tion of the merits (both as to liability not already in the record of the pro- and amount, if applicable) of the proceeding, agency counsel shall include ceeding, by an adjudicative officer or with the answer either supporting affi- intermediate reviewer, becomes admin- davits or a request for further pro- istratively final; ceedings under § 1262.306. (2) The date on which an order is issued disposing of any petitions for re- § 1262.303 Reply. consideration; Within 15 calendar days after service (3) If no petition for reconsideration of an answer, the applicant may file a is filed, the last date on which such a reply. If the reply is based on any al- petition could have been filed; or leged facts not already in the record of (4) The date of a final order or any the proceeding, the applicant shall in- other final resolution of the pro- clude with the reply either supporting ceeding, such as a settlement or a vol- affidavits or a request for further pro- untary dismissal, which is not subject ceedings under § 1262.306. to a petition for reconsideration. § 1262.304 Comments by other parties. Subpart 1262.3—Procedures for Any party to a proceeding other than Considering Applications the applicant and agency counsel may file comments about an application § 1262.301 Filing and service of docu- within 30 calendar days after it is ments. served, or about an answer within 15 Any application for an award or calendar days after it is served. A com- other pleading or document related to menting party may not participate fur- an application shall be filed and served ther in proceedings on the application on all parties to the proceeding in the unless the adjudicative officer deter- same manner as other pleadings in the mines that the public interest requires proceeding, except as provided in such participation in order to permit § 1262.202(b) for confidential financial full exploration of matters raised in information. the comments.

§ 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

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written submissions, or, as to issues § 1262.308 Agency review. other than substantial justification (such as the applicant’s eligibility or (a) Within 30 calendar days of the re- substantiation of fees and expenses), ceipt of the adjudicative officer’s ini- pertinent discovery or an evidentiary tial decision on the fee application, ei- hearing. Such further proceedings shall ther the applicant or agency counsel be held only when necessary for full may seek Agency review of the deci- and fair resolution of the issues arising sion; or, the NASA Administrator, from the application, and shall be con- upon the recommendation of the Gen- ducted as promptly as possible. eral Counsel or other designee, may de- (b) A request that the adjudicative cide to review the decision based on the officer order further proceedings under record. Whether to review a decision is this section shall specifically identify solely a matter within the discretion of the information sought or the disputed the NASA Administrator. A 15-day no- issues and shall explain why the addi- tice of such review will be given the ap- tional proceedings are necessary to re- plicant and agency counsel, and a de- solve the issues. termination made not later than 45 days from the date of notice. The Ad- § 1262.307 Decision. ministrator may make a final deter- (a) The adjudicative officer shall mination concerning the application or issue an initial decision on the applica- remand the application to the adju- tion with 90 calendar days after com- dicative officer for further proceedings. pletion of proceedings on the applica- (b) If neither the applicant nor agen- tion. The decision shall include written cy counsel seek review, and the NASA findings and conclusions on such of the Administrator does not on own initia- following as are relevant to the decision: tive take a review, the adjudicative of- (1) The applicant’s eligibility and ficer’s initial decision on the fee appli- status as a prevailing party; cation shall be the final administrative (2) Whether the Agency’s position decision of the Agency 45 days after it was substantially justified; is issued. (3) Whether the applicant unreasonably protracted the proceedings, or § 1262.309 Judicial review. whether special circumstances make Judicial review of final Agency deci- an award unjust; and sions on awards may be sought under 5 (4) The amounts, if any, awarded for U.S.C. 504(c)(2), which provides: If a fees and expenses with an explanation party other than the United States is of the reasons for any difference be- dissatisfied with a determination of tween the amount requested and the fees and other expenses made under amount awarded. Further, if the appli- [this part], that party may, within 30 cant has sought an award against more days after the [final administrative] than one agency, the decision shall al- determination is made, appeal the de- locate responsibility for payment of termination to the court of the United any award made among the agencies, States having jurisdiction to review and shall explain the reasons for the al- the merits of the underlying decision of location made. the agency adversary adjudication. The (b) When the Agency appeals the underlying merits of an adversary adju- court’s determination of any appeal dication, no decision on an application heard under this [authority] shall be for fees and other expenses in connec- based solely on the factual record made tion with that adversary adjudication before the agency. The court may mod- shall be made until a final and ify the determination of fees and other unreviewable decision is rendered by expenses only if the court finds that the court on the appeal or until the un- the failure to make an award of fees derlying merits of the case have been and other expenses, or the calculation finally determined pursuant to the ap- of the amount of the award, was unsup- peal. ported by the substantial evidence. [51 FR 15311, Apr. 23, 1986, as amended at 60 [51 FR 15311, Apr. 23, 1986, as amended at 60 FR 12669, Mar. 8, 1995] FR 12669, Mar. 8, 1995]

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§ 1262.310 Payment of award. tion or disclosure of official informa- (a) An applicant seeking payment of tion or records and/or the testimony of an award shall submit to the paying present or former employees of the Na- agency a copy of the Agency’s final de- tional Aeronautics and Space Adminis- cision granting the award, accom- tration relating to any official infor- panied by a statement that the appli- mation acquired by any employee of cant will not seek review of the deci- NASA as part of the performance of sion in the United States courts. The that employee’s official duties or by submission to NASA should be ad- virtue of that employee’s official sta- dressed as follows: tus, where a demand for such produc- Director, Financial Management Division, tion, disclosure, or testimony is issued NASA Headquarters, Washington, DC 20546. in a federal, state, or other legal proceeding. (b) The Agency will pay the amount (b) This part does not apply to any awarded to the applicant within 60 legal proceeding in which an employee days, if feasible, unless judicial review is to testify, while in leave status, as of the award or of the underlying decision of the adversary adjudication has to facts or events that are in no way been sought by the applicant or any related to the official duties of that other party to the proceeding. employee or to the functions of the NASA.

PART 1263—DEMAND FOR INFOR- § 1263.101 Definitions. MATION OR TESTIMONY SERVED ON AGENCY EMPLOYEES; PRO- (a) Agency—As referred to in this reg- CEDURES ulation, Agency means the National Aeronautics and Space Administration. Sec. (b) Demand—A subpoena, order, or 1263.100 Purpose and scope. authorized request for official informa- 1263.101 Definitions. tion, or for the appearance and testi- 1263.102 Procedure when a demand is issued mony of NASA personnel, issued as the in a legal proceeding involving the result of a legal proceeding. United States. 1263.103 Procedure when a demand is issued (c) Employee—Includes all present and in a legal proceeding not involving the former officers and employees of the United States. National Aeronautics and Space Ad- 1263.104 Production, disclosure, or testi- ministration who are or have been ap- mony prohibited unless approved. pointed by, or subject to the super- 1263.105 Considerations in determining whether production or disclosure should vision, jurisdiction, or control of the be made. Administrator of the agency. 1263.106 Final decision of the General Coun- (d) Legal proceeding—Includes any sel as to production, disclosure, or ap- proceeding before a court of law or eq- pearance. uity, administrative board or commis- 1263.107 Procedure to be followed when response to a demand is required before the sion, hearing officer, or other body con- General Counsel or designate has reached ducting a legal or administrative pro- a final decision. ceeding. 1263.108 Procedure in the event of an ad- (e) Legal proceeding involving the verse ruling. United States—Any proceeding before a 1263.109 Considerations in determining whether these procedures should be court of law or equity brought on be- waived. half of, or against the United States, 1263.110 Intention to provide guidance. NASA or NASA employees, and result- AUTHORITY: 44 U.S.C. 3102, 51 U.S.C. ing from alleged NASA operations. 20113(a). (f) Official information—All information of any kind, however stored, that SOURCE: 55 FR 28370, July 11, 1990, unless otherwise noted. is in the custody and control of NASA or was acquired by NASA personnel as § 1263.100 Purpose and scope. part of official duties or because of offi- (a) This part sets forth procedures to cial status while such personnel were be followed with respect to the produc- employed by or on behalf of the NASA.

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§ 1263.102 Procedure when a demand § 1263.105 Considerations in deter- is issued in a legal proceeding in- mining whether production or dis- volving the United States. closure should be made. Whenever an employee or former em- The General Counsel or designate ployee of NASA receives a demand for shall direct employees to honor all production of materials or the disclo- valid demands. In deciding whether a sure of information, or for appearance particular demand is valid, the General and testimony as a witness in a legal Counsel or designate may consider: proceeding in which NASA or the (a) Whether such disclosure or ap- United States is a party, the employee pearance is appropriate under the rules shall immediately notify in writing the of procedure governing the legal pro- Installation Chief Counsel for Installa- tion employees, the General Counsel ceeding in which the demand arose. for Headquarters employees, or the At- (b) Whether disclosure is appropriate torney-Adviser to the Inspector Gen- under the relevant substantive law eral (IG) for IG employees. This notice concerning privilege. must include copies of all pertinent (c) Whether disclosure might improp- legal documents and a summary of the erly reveal trade secrets, or commer- employee’s knowledge concerning the cial or financial information that is legal proceeding in question. When nec- confidential or privileged. essary, this information may be re- (d) Whether disclosure might reveal ported orally, followed by a written classified information. confirmation. (e) Whether disclosure would violate a specific applicable constitutional § 1263.103 Procedure when a demand is issued in a legal proceeding not provision, federal statute or regula- involving the United States. tion, or executive order. (f) Whether appearance of the re- Whenever an employee or former employee of the Agency receives a de- quested employee would seriously im- mand for production or disclosure of of- plicate an interest of the Agency such ficial information in a legal proceeding as conservation of employee time for not involving the United States, the conducting official business, avoidance employee shall immediately notify the of expending appropriated monies for General Counsel or designate. In addi- non-federal purposes, or avoidance of tion, the party causing the demand to involving the agency in controversial be issued shall furnish the Office of issues not related to its mission. General Counsel a written, detailed statement of the information sought § 1263.106 Final decision of the Gen- and its relevance to the proceeding in eral Counsel as to production, dis- connection with which it is requested. closure, or appearance. The General Counsel or designate may After consideration of the factors waive the requirement that a written enumerated in § 1263.105 (a) through (f), summary be furnished where he/she the General Counsel or designate may deems it unnecessary. The election to authorize the testimony, disclosure, or waive the requirement of a written production as demanded; limit the sub- summary in no way constitutes a waiv- ject matter or extent of any testimony, er of any other requirements set forth disclosure, or production through writ- in this section. ten instruction to the employee; or § 1263.104 Production, disclosure, or deny permission for any testimony, testimony prohibited unless ap- disclosure, or production. Where appro- proved. priate, the General Counsel or des- If an employee or former employee ignate may seek withdrawal of the de- receives a demand to produce or dis- mand by the authorizing party. Any close official information, that em- decision of the General Counsel or des- ployee may not disclose such materials ignate shall be final and shall be com- or information or testify regarding municated to the employee and the same without the prior approval of the party causing the demand to be issued. General Counsel or designate.

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§ 1263.107 Procedure to be followed § 1263.110 Intention to provide guid- when response to a demand is re- ance. quired before the General Counsel This part is intended to provide guid- or designate has reached a final de- ance for the internal operation of cision. NASA and is not intended to, does not, If a response to a demand is required and may not be relied upon to create before the General Counsel or des- any right of benefit—substantive or ignate can render a decision, the em- procedural—enforceable at law against ployee subpoenaed, or an agency attor- the United States or NASA. ney or other government attorney designated for that purpose, shall appear PART 1264—IMPLEMENTATION OF on behalf of the employee and shall fur- THE PROGRAM FRAUD CIVIL nish the authority which issued the de- PENALTIES ACT OF 1986 mand a copy of these regulations, and inform the authority that the demand Sec. has been referred for the prompt con- 1264.100 Basis and purpose. sideration of the General Counsel, and 1264.101 Definitions. shall respectfully request the authority 1264.102 Basis for civil penalties and assessments. to stay the demand until the General 1264.103 Investigation. Counsel or designate has rendered a 1264.104 Review by the reviewing official. final decision. 1264.105 Prerequisites for issuing a complaint. § 1263.108 Procedure in the event of an 1264.106 Complaint. adverse ruling. 1264.107 Service of complaint. 1264.108 Answer. If the court or other authority which 1264.109 Default upon failure to file an an- caused the demand to be issued de- swer. clines to stay the effect of the demand 1264.110 Referral of complaint and answer to pending a final decision by the General the presiding officer. 1264.111 Notice of hearing. Counsel or designate; or if the General 1264.112 Parties to the hearing. Counsel or designate directs that the 1264.113 Separation of functions. employee may not comply with the de- 1264.114 Ex parte contacts. mand, and a court or other authority 1264.115 Disqualification of reviewing offi- rules that the demand must be com- cial or presiding officer. plied with irrespective of that decision, 1264.116 Rights of parties. 1264.117 Authority of the presiding officer. the employee upon whom the demand 1264.118 Prehearing conferences. has been made, or an agency or other 1264.119 Disclosure of documents. governmental attorney, shall respect- 1264.120 Discovery. fully decline to comply with the de- 1264.121 Exchange of witness lists, state- mand and shall cite, ‘‘United States ex ments, and exhibits. 1264.122 Subpoena for attendance at hear- rel. Touhy v. Ragen, et al., 340 U.S. 462 ing. (1951).’’ 1264.123 Protective order. 1264.124 Fees. § 1263.109 Considerations in deter- 1264.125 Form, filing, and service of papers. mining whether these procedures 1264.126 Computation of time. should be waived. 1264.127 Motions. 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- the policy or procedure established in alties and assessments. these regulations. Permission to devi- 1264.131 Location of hearing. ate will be granted when the deviation 1264.132 Witnesses. will not interfere with matters of oper- 1264.133 Evidence. 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. (b) The deviation is in the best inter- 1264.138 Appeal to authority head. ests of NASA or the United States. 1264.139 Stays ordered by the Department of Justice.

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1264.140 Stay pending appeal. (d) Benefit means, in the context of 1264.141 Judicial review. statement, anything of value, including 1264.142 Collection of civil penalties and as- but not limited to any advantage, pref- sessments. 1264.143 Right to administrative offset. erence, privilege, license, permit, fa- 1264.144 Deposit in Treasury of United vorable decision, ruling, status, or loan States. guarantee. 1264.145 Compromise or settlement. (e) Claim means any request, demand, 1264.146 Limitations. or submission— APPENDIX A TO PART 1264—NOTICE TO CON- (1) Made to the authority for prop- SENT TO THE CHAIRPERSON, NASA BOARD erty, services, or money (including OF CONTRACT APPEALS (BCA), OR DES- money representing grants, loans, in- IGNEE, AS PRESIDING OFFICER surance, or benefits); AUTHORITY: 31 U.S.C. 3809, 51 U.S.C. (2) Made to a recipient of property, 20113(a). services, or money from the authority SOURCE: 52 FR 39498, Oct. 22, 1987, unless or to a party to a contract with the au- otherwise noted. thority— (i) For property or services if the § 1264.100 Basis and purpose. United States— (a) Basis. This part implements the (A) Provided such property or serv- Program Fraud Civil Remedies Act of ices; 1986, Pub. L. 99–509, sections 6101–6104, (B) Provided any portion of the funds 100 Stat. 1874 (October 21, 1986), to be for the purchase of such property or codified at 31 U.S.C. 3801–3812. 31 U.S.C. services; or 3809 of the statute requires each au- (C) Will reimburse such recipient or thority head to promulgate regulations party for the purchase of such property necessary to implement the provisions or services; or of the statute. (ii) For the payment of money (in- (b) Purpose. This part does the fol- cluding money representing grants, lowing: loans, insurance, or benefits) if the (1) Establishes administrative proce- United States— dures for imposing civil penalties and (A) Provided any portion of the assessments against persons who make, money requested or demanded; or submit, or present, or cause to be (B) Will reimburse such recipient or made, submitted, or presented, false, party for any portion of the money fictitious, or fraudulent claims or writ- paid on such request or demand; or ten statements to authorities or to (iii) Made to the authority which has their agents; and the effect of decreasing an obligation (2) Specifies the hearing and appeal to pay or account for property, serv- rights of persons subject to allegations ices, or money. 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.

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(k) Initial decision means the written such Title and Subchapter III of Chap- decision of the ALJ or presiding officer ter 53 of such Title; required by § 1264.109 or § 1264.136, and (6) Is not subject to performance ap- includes a revised initial decision praisal pursuant to Chapter 43 of such issued following a remand or a motion Title; and for reconsideration. (7) May be removed, suspended, fur- (l) Investigating official means the loughed, or reduced in grade or pay NASA Inspector General, or designee only for good cause established and de- who is serving in a position for which termined by the Merit Systems Protec- the rate of basic pay is not less than tion Board on the record after oppor- the minimum rate of basic pay for tunity for hearing by such Board. grade GS–16 under the General Sched- (q) Representative means an attorney ule. who is in good standing of the bar of (m) Knows or has reason to know, any State, Territory, or possession of means that a person with respect to a claim or statement— the United States, or of the District of (1) Has actual knowledge that the Columbia, or of the Commonwealth of claim or statement is false, fictitious, Puerto Rico. or fraudulent; (r) Reviewing official means the NASA (2) Acts in deliberate ignorance of the Associate Administrator for Manage- truth or falsity of the claim or statement. For purposes of this regulation, ment; or the Associate General Counsel (Gen- (3) Acts in reckless disregard of the eral) or designee is designated legal truth or falsity of the claim or state- counsel to the Reviewing official. ment. (s) Statement means any representa- (n) Makes, wherever it appears, shall tion, certification, affirmation, docu- include the terms presents, submits, ment, record, or accounting or book- and causes to be made, presented, or keeping entry made— submitted. As the context requires, (1) With respect to a claim or to ob- making or made shall likewise include tain the approval or payment of a the corresponding forms of such terms. claim (including relating to eligibility (o) Person means any individual, to make a claim); or partnership, corporation, association, (2) With respect to (including relat- or private organization, and includes ing to eligibility for)— the plural of that term. (i) A contract with, or a bid or pro- (p) Presiding officer, except as proposal for a contract with; or vided for pursuant to consent trial no- (ii) A grant, loan, or benefit from the tice, means (if the authority is not sub- authority, or any State, political subject to the provisions of Subchapter II division of a State, or other party, if of Chapter 5, Title 5, U.S.C.) an officer the United States Government provides or employee of the authority who— any portion of the money or property (1) Is selected under Chapter 33 of under such contract or for such grant, Title 5 pursuant to the competitive ex- loan, or benefit, or if the Government amination process applicable to admin- will reimburse such State, political istrative law judges; subdivision, or party for any portion of (2) Is appointed by the authority the money or property under such con- head to conduct hearings under this tract or for such grant, loan, or ben- part; efit. (3) Is assigned to cases in rotation so far as practicable; [52 FR 39498, Oct. 22, 1987, as amended at 54 (4) May not perform duties incon- FR 599, Jan. 9, 1989] sistent with the duties and responsibilities of a presiding officer; § 1264.102 Basis for civil penalties and assessments. (5) Is entitled to pay prescribed by the Office of Personnel Management (a) Claims. (1) Any person who makes independently of ratings and rec- a claim that the person knows or has ommendations made by the authority reason to know— and in accordance with Chapter 51 of (i) Is false, fictitious, or fraudulent;

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(ii) Includes or is supported by any (ii) Contains or is accompanied by an written statement which asserts a ma- express certification or affirmation of terial fact which is false, fictitious, or the truthfulness and accuracy of the fraudulent; contents of the statement— (iii) Includes or is supported by any Shall be subject, in addition to any written statement that— other remedy that may be prescribed (A) Omits a material fact; by law, to a civil penalty of not more (B) Is false, fictitious, or fraudulent than $11,463 for each such statement. as a result of such omission; and (2) Each written representation, cer- (C) Is a statement in which the per- tification, or affirmation constitutes a son making such statement has a duty separate statement. to include such material fact; or (3) A statement shall be considered (iv) Is for payment for the provision made to the authority when such state- of property or services which the per- ment is actually made to an agent, fis- son has not provided as claimed— cal intermediary, or other entity, including any State or political subdivi- Shall be subject, in addition to any sion thereof, acting for or on behalf of other remedy that may be prescribed the authority. by law, to a civil penalty of not more (c) No proof of specific intent to de- than $11,463 for each such claim. fraud is required to establish liability (2) Each voucher, invoice, claim under this section. form, or other individual request or de- (d) In any case in which it is deter- mand for property, services, or money mined that more than one person is lia- constitutes a separate claim. ble for making a claim or statement (3) A claim shall be considered made under this section, each such person to the authority, recipient, or party may be held liable for a civil penalty when such claim is actually made to an under this section. agent, fiscal intermediary, or other en- (e) In any case in which it is deter- tity, including any State or political mined that more than one person is lia- subdivision thereof, acting for or on be- ble for making a claim under this sec- half of the authority, recipient, or tion on which the Government has party. made payment (including transferred (4) Each claim for property, services, property or provided services), an as- or money is subject to a civil penalty sessment may be imposed against any regardless of whether such property, such person or jointly and severally services, or money is actually delivered against any combination of such per- or paid. sons. (5) If the Government has made any payment (including transferred prop- [52 FR 39498, Oct. 22, 1987, as amended at 54 erty or provided services) on a claim, a FR 599, Jan. 9, 1989; 82 FR 28763, June 26, 2017; 82 FR 48762, Oct. 20, 2017; 83 FR 2046, Jan. 16, person subject to a civil penalty under 2018; 84 FR 13115, Apr. 4, 2019; 84 FR 14608, paragraph (a)(1) of this section shall Apr. 11, 2019] also be subject to an assessment of not more than twice the amount of such § 1264.103 Investigation. claim or that portion thereof that is (a) If an investigating official con- determined to be in violation. Such as- cludes that a subpoena pursuant to the sessment shall be in lieu of damages authority conferred by 31 U.S.C. 3804(a) sustained by the Government because is warranted— of such claim. (1) The subpoena so issued shall no- (b) Statements. (1) Any person who tify the person to whom it is addressed makes a written statement that— of the authority under which the sub- (i) The person knows or has reason to poena is issued and shall identify the know— records or documents sought; (A) Asserts a material fact which is (2) The subpoena may designate the false, fictitious, or fraudulent; or person, to act on the investigating offi- (B) Is false, fictitious, or fraudulent cial’s behalf, to receive the documents because it omits a material fact that sought; and the person making the statement has a (3) The person receiving such sub- duty to include in such statement; and poena shall be required to tender to the

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investigating official or the person des- (5) A statement of any exculpatory or ignated to receive the documents a cer- mitigating circumstances that may re- tification that the documents sought late to the claims or statements known have been produced, or that such docu- by the reviewing official or the inves- ments are not available and the rea- tigating official; and sons therefor, or that such documents, (6) A statement that there is a rea- suitably identified, have been withheld sonable prospect of collecting an ap- based upon the assertion of an identi- propriate amount of penalties and as- fied privilege. sessments. Such a statement may be (b) If the investigating official con- based upon information then known or cludes that an action under the Pro- an absence of any information indi- gram Fraud Civil Remedies Act may be cating that the person may be unable warranted, the investigating official to pay such an amount. shall submit a report containing the findings and conclusions of such inves- § 1264.105 Prerequisites for issuing a tigation to the reviewing official. complaint. (c) Nothing in this section shall pre- (a) The reviewing official may issue a clude or limit the investigating offi- complaint under § 1264.106 only if— cial’s discretion to refer allegations di- (1) The Department of Justice ap- rectly to the Department of Justice for proves the issuance of a complaint in a suit under the False Claims Act or written statement described in 31 other civil relief, or to defer or post- U.S.C. 3803(b)(1); and pone a report of referral to the review- (2) In the case of allegations of liabil- ing official to avoid interference with a ity under § 1264.102(a) with respect to a criminal investigation or prosecution. claim, the reviewing official deter- (d) Nothing in this section modifies mines that, with respect to such claim any responsibility of the investigating or a group of related claims submitted official to report violations of criminal at the same time such claim is sub- law to the Attorney General. mitted (as defined in paragraph (b) of [52 FR 39498, Oct. 22, 1987, as amended at 54 this section), the amount of money or FR 599, Jan. 9, 1989] the value of property or services demanded or requested in violation of § 1264.104 Review by the reviewing of- § 1264.102(a) does not exceed $150,000. ficial. (b) For the purposes of this section, a (a) If, based on the report of the in- related group of claims submitted at vestigating official under § 1264.103(b), the same time shall include only those the reviewing official determines that claims arising from the same trans- there is adequate evidence to believe action (e.g., grant, loan, application, or that a person is liable under § 1264.102 contract) that are submitted simulta- of this part, the reviewing official shall neously as part of a single request, de- transmit to the Attorney General a mand, or submission. written notice of the reviewing offi- (c) Nothing in this section shall be cial’s intention to issue a complaint construed to limit the reviewing offi- under § 1264.106. cial’s authority to join in a single com- (b) Such notice shall include— plaint against a person claims that are (1) A statement of the reviewing offi- unrelated or were not submitted simul- cial’s reasons for issuing a complaint; taneously, regardless of the amount of (2) A statement specifying the evi- money or the value of property or serv- dence that supports the allegations of ices demanded or requested. liability; (3) A description of the claims or § 1264.106 Complaint. statements upon which the allegations (a) On or after the date the Depart- of liability are based; ment of Justice approves the issuance (4) An estimate of the amount of of a complaint in accordance with 31 money or the value of property, serv- U.S.C. 3803(b)(1), the reviewing official ices, or other benefits requested or de- may serve a complaint on the defend- manded in violation of § 1264.102 of this ant, as provided in § 1264.107. part; (b) The complaint shall state—

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(1) The allegations of liability reviewing official within 30 days of against the defendant, including the service of the complaint. An answer statutory basis for liability, an identi- shall be deemed to be a request for fication of the claims or statements hearing. that are the basis for the alleged liabil- (b) In the answer, the defendant— ity, and the reasons why liability alleg- (1) Shall admit or deny each of the edly arises from such claims or state- allegations of liability made in the ments; complaint; (2) The maximum amount of pen- (2) Shall state any defense on which alties and assessments for which the the defendant intends to rely; defendant may be held liable; (3) May state any reasons why the de- (3) Instructions for filing an answer fendant contends that the penalties to request a hearing, including a spe- and assessments should be less than cific statement of the defendant’s right the statutory maximum; and to request a hearing by filing an an- (4) Shall state the name, address, and swer and to be represented by a rep- telephone number of the person author- resentative; and ized by the defendant to act as defend- (4) That failure to file an answer ant’s representative, if any. within 30 days of service of the com- (c) If the defendant is unable to file plaint will result in the imposition of an answer meeting the requirements of the maximum amount of penalties and paragraph (b) of this section within the assessments without right to appeal as time provided, the defendant may, be- provided in § 1264.109. fore the expiration of 30 days from (c) At the same time the defendant is service of the complaint, file with the served with the complaint, he or she reviewing official a general answer de- shall also be served with a— nying liability and requesting a hear- (1) Notice to Consent to the Chair- ing, and a request for an extension of person of the NASA Board of Contract time within which to file an answer Appeals (BCA), or Designee, as pre- meeting the requirements of paragraph siding officer; (b) of this section. The reviewing offi- (2) Copy of this part 1264 of 14 CFR. cial, as provided in § 1264.110, shall file promptly with the presiding officer the [52 FR 39498, Oct. 22, 1987, as amended at 54 complaint, the general answer denying FR 599, Jan. 9, 1989] liability, and the request for an extension of time. For good cause shown, the § 1264.107 Service of complaint. presiding officer may grant the defend- (a) Service of a complaint must be ant up to 30 additional days within made by certified or registered mail or which to file an answer meeting the re- by delivery in any manner authorized quirements of paragraph (b) of this sec- by Rule 4(d) of the Federal Rules of tion. Civil Procedure. (b) Proof of service, stating the name [52 FR 39498, Oct. 22, 1987, as amended at 54 and address of the person on whom the FR 600, Jan. 9, 1989] complaint was served, and the manner § 1264.109 Default upon failure to file and date of service, may be made by— an answer. (1) Affidavit of the individual serv- (a) If the defendant does not file an icing the complaint by delivery; answer within the time prescribed in (2) A United States Postal Service re- § 1264.108(a), the reviewing official may turn receipt card acknowledging re- refer the complaint to the presiding of- ceipt; or ficer. (3) Written acknowledgment of re- (b) Upon the referral of the com- ceipt by the defendant or his/her rep- plaint, the presiding officer shall resentative. promptly serve on defendant, in the [52 FR 39498, Oct. 22, 1987, as amended at 54 manner prescribed in § 1264.107, a notice FR 600, Jan. 9, 1989] that an initial decision will be issued under this section. § 1264.108 Answer. (c) If the defendant fails to answer, (a) The defendant may request a the presiding officer shall assume the hearing by filing an answer with the facts alleged in the complaint to be

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true and, if such facts establish liabil- the defendant’s failure to file a timely ity under § 1264.102, the presiding offi- answer, the authority head shall re- cer shall issue an initial decision im- mand the case to the presiding officer posing the maximum amount of pen- with instructions to grant the defend- alties and assessments allowed under ant an opportunity to answer. the statute. (l) If the authority head decides that (d) Except as otherwise provided in the defendant’s failure to file a timely this section, by failing to file a timely answer is not excused, the authority answer, the defendant waives any right head shall reinstate the initial decision to further review of the penalties and of the presiding officer, which shall be- assessments imposed under paragraph come final and binding upon the par- (c) of this section, and the initial deci- ties 30 days after the authority head sion shall become final and binding upon the parties 30 days after it is issues such decision. issued. [52 FR 39498, Oct. 22, 1987, as amended at 80 (e) If, before such an initial decision FR 42029, July 16, 2015] becomes final, the defendant files a motion with the presiding officer seek- § 1264.110 Referral of complaint and ing to reopen on the grounds that ex- answer to the presiding officer. traordinary circumstances prevented Upon receipt of an answer, the re- the defendant from filing an answer, viewing official shall file the complaint the initial decision shall be stayed and answer with the presiding officer, pending the presiding officer’s decision and include the name and address of on the motion. the attorney who will represent the au- (f) If, on such motion, the defendant thority before the presiding officer. can demonstrate extraordinary circumstances excusing the failure to file § 1264.111 Notice of hearing. a timely answer, the presiding officer shall withdraw the initial decision (a) When the presiding officer re- under paragraph (c) of this section, if ceives the complaint and answer, the such a decision has been issued, and presiding officer shall promptly serve a shall grant the defendant an oppor- notice of hearing upon the defendant in tunity to answer the complaint. the manner prescribed by § 1264.107. At (g) A decision of the presiding officer the same time, the presiding officer denying a defendant’s motion under shall send a copy of such notice to the paragraph (e) of this section is not sub- representative of the authority. ject to reconsideration under § 1264.137. (b) Such notice shall include— (h) The defendant may appeal to the (1) The tentative time and place, and authority head the decision denying a the nature of the hearing; motion to reopen by filing a notice of (2) The legal authority and jurisdic- appeal with the authority head within tion under which the hearing is to be 15 days after the presiding officer de- held; nies the motion. The timely filing of a notice of appeal shall stay the initial (3) The matters of fact and law as- decision until the authority head de- serted; cides the issue. (4) A description of the procedures for (i) If the defendant files a timely no- the conduct of the hearing; tice of appeal with the authority head, (5) The name, address, and telephone the presiding officer shall forward the number of the representative of the au- record of the proceeding to the author- thority and of the defendant; ity head. (6) An opportunity for a settlement (j) The authority head shall decide conference or proposals of adjustment expeditiously whether extraordinary through alternative dispute resolu- circumstances excuse the defendant’s tions, if not already explored; and failure to file a timely answer based (7) Such other matters as the pre- solely on the record before the presiding officer deems appropriate. siding officer. (k) If the authority head decides that [52 FR 39498, Oct. 22, 1987, as amended at 80 extraordinary circumstances excused FR 42029, July 16, 2015]

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§ 1264.112 Parties to the hearing. § 1264.115 Disqualification of reviewing official or presiding officer. (a) The parties to the hearing shall be the defendant and the authority. (a) A reviewing official or presiding (b) Pursuant to 31 U.S.C. 3730(c)(5), a officer in a particular case may dis- private plaintiff under the False qualify himself or herself at any time. Claims Act, as amended, may partici- (b) A party may file with the pre- pate in these proceedings to the extent siding officer a motion for disqualifica- authorized by the provisions of that tion of a reviewing official or a pre- Act. (See section 3 of the False Claims siding officer. Such motion shall be ac- Amendments Act of 1986, Pub. L. 99–562, companied by an affidavit alleging per- October 27, 1986.) sonal bias or other reason for disqualification. § 1264.113 Separation of functions. (c) Such motion and affidavit shall be filed promptly upon the party’s dis- (a) The investigating official, the recovery of reasons for disqualification, viewing official, and any employee or or such objections shall be deemed agent of the authority who takes part waived. in investigating, preparing, or pre- (d) Such affidavit shall state specific senting a particular case may not, in facts that support the party’s belief such case or a factually related case— that personal bias or other reason for (1) Participate in the hearing as the disqualification exists and the time presiding officer; and circumstances of the party’s dis- (2) Participate or advise in the initial covery of such facts. It shall be accom- decision or the review of the initial de- panied by a certificate of the rep- cision by the authority head, except as resentative of record that it is made in a witness or as the authority rep- good faith. resentative in the administrative or ju- (e) Upon the filing of such a motion dicial proceedings; or and affidavit, the presiding officer (3) Make the collection of penalties shall proceed no further in the case and assessments under 31 U.S.C. 3806. until the matter of disqualification is (b) The presiding officer shall not be resolved in accordance with paragraph responsible to, or subject to the super- (f) of this section. vision or direction of, the investigating (f)(1) If the presiding officer deter- official or the reviewing official. mines that a reviewing official is dis- (c) Except as provided in paragraph qualified, the presiding officer shall (a) of this section, the representative dismiss the complaint without preju- for the Government must be a member dice. of the legal staff of the authority. (2) If the presiding officer disqualifies Nothing in this paragraph is intended himself or herself, the case shall be re- to prevent assistance to the Govern- assigned promptly to another presiding ment representative by attorneys in officer. the NASA organization or other gov- (3) If the presiding officer denies a ernmental entities. motion to disqualify, the authority head may determine the matter only as § 1264.114 Ex parte contacts. part of his or her review of the initial decision upon appeal, if any. No party or person (except employees of the presiding officer’s office) shall § 1264.116 Rights of parties. communicate in any way with the pre- Except as otherwise limited by this siding officer on any matter at issue in part, all parties may— a case, unless on notice and oppor- (a) Be accompanied, represented, and tunity for all parties to participate. advised by a representative; This provision does not prohibit a per- (b) Participate in any conference son or party from inquiring about the held by the presiding officer; status of a case or asking routine ques- (c) Conduct discovery; tions concerning administrative func- (d) Agree to stipulations of fact or tions or procedures. law, which shall be made part of the [54 FR 600, Jan. 9, 1989] record;

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(e) Present evidence relevant to the (13) Conduct any conference, argu- issues at the hearing; ment, or hearing on motions in person (f) Present and cross-examine wit- or by telephone; and nesses; (14) Exercise such other authority as (g) Present oral arguments at the is necessary to carry out the respon- hearing as permitted by the presiding sibilities of the presiding officer under officer; and this part. (h) Submit written briefs and pro- (c) The presiding officer does not posed findings of fact and conclusions have the authority to find Federal of law after the hearing. statutes or regulations invalid. [52 FR 39498, Oct. 22, 1987, as amended at 54 [52 FR 39498, Oct. 22, 1987, as amended at 80 FR 600, Jan. 9, 1989] FR 42029, July 16, 2015] § 1264.118 Prehearing conferences. § 1264.117 Authority of the presiding officer. (a) The presiding officer may schedule prehearing conferences as appro- (a) The presiding officer shall con- priate. duct a fair and impartial hearing, avoid (b) Upon the motion of any party, the delay, maintain order, and assure that presiding officer shall schedule at least a record of the proceeding is made. one prehearing conference at a reason- (b) The presiding officer has the au- able time in advance of the hearing. thority to— (c) The presiding officer may use pre- (1) Set and change the date, time, hearing conferences to discuss the fol- and place of the hearing upon reason- lowing: able notice to the parties; (1) Simplification of the issues; (2) Continue or recess the hearing in (2) The necessity or desirability of whole or in part for a reasonable period amendments to the pleadings, includ- of time; ing the need for a more definite state- (3) Hold conferences to identify or ment; simplify the issues, or to consider (3) Stipulations and admissions of other matters, including settlement fact or as to the contents and authen- conferences or other alternative dis- ticity of documents; pute resolution, that may aid in the (4) Whether the parties can agree to fair and expeditious disposition of the submission of the case on a stipulated proceeding; record; (4) Administer oaths and affirma- (5) Whether a party chooses to waive tions; appearance at an oral hearing and to submit only documentary evidence (5) Issue subpoenas, requiring the at- (subject to the objections of other par- tendance of witnesses and the produc- ties) and written arguments; tion of documents at depositions or at (6) Limitation of the number of wit- hearings, which the presiding officer nesses; considers relevant and material; (7) Scheduling dates for the exchange (6) Rule on motions and other proce- of witness lists and of proposed exhib- dural matters; its; (7) Regulate the scope and timing of (8) Discovery; discovery; (9) The time and place for the hear- (8) Regulate the course of the hearing ing; and and the conduct of representatives and (10) Such other matters, including parties; settlement, as may tend to expedite (9) Examine witnesses; the fair and just disposition of the pro- (10) Receive, rule on, exclude, or ceedings. limit evidence; (d) The presiding officer may issue an (11) Upon motion of a party, take of- order containing all matters agreed ficial notice of facts; upon by the parties or ordered by the (12) Upon motion of a party, decide presiding officer at a prehearing con- cases, in whole or in part, by summary ference. judgment where there is no genuine [52 FR 39498, Oct. 22, 1987, as amended at 54 issue as to any material fact; FR 600, Jan. 9, 1989]

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§ 1264.119 Disclosure of documents. (c) Unless mutually agreed to by the (a) Upon written request to the re- parties, discovery is available only as viewing official, the defendant may re- ordered by the presiding officer. The view any relevant and material docu- presiding officer shall regulate the tim- ments, transcripts, records, and other ing of discovery. materials that relate to the allegations (d) Motions for discovery. (1) A party set out in the complaint and upon seeking discovery may file a motion which the findings and conclusions of with the presiding officer. Such a mo- the investigating official under tion shall be accompanied by a copy of § 1264.103(b) are based unless such docu- the discovery request or, in the case of ments are subject to a privilege under depositions, a summary of the scope of Federal law. Upon payment of a rea- the proposed deposition. sonable fee for duplication, the defend- (2) Within 10 days of service, a party ant may obtain copies of such docu- may file an opposition to the motion ments. and/or a motion for protective order as (b) Upon written request to the re- provided in § 1264.123. viewing official, the defendant also may obtain a copy of all exculpatory (3) The presiding officer may grant a information in the possession of the re- motion for discovery only if he/she viewing official or investigating offi- finds that the discovery sought— cial relating to the allegations in the (i) Is necessary for the expeditious, complaint, even if it is contained in a fair, and reasonable consideration of document that would otherwise be the issues; privileged. If the document would oth- (ii) Is not unduly costly or burden- erwise be privileged, only that portion some; containing exculpatory information (iii) Will not unduly delay the pro- must be disclosed. ceeding; and (c) The notice sent to the Attorney (iv) Does not seek privileged informa- General from the reviewing official as tion. described in § 1264.104 is not discover- (4) The burden of showing that disable under any circumstances. (d) The defendant may file a motion covery should be allowed is on the to compel disclosure of the documents party seeking discovery. subject to the provisions of this sec- (5) The presiding officer may grant tion. Such a motion may only be filed discovery subject to a protective order with the presiding officer following the under § 1264.123. filing of an answer pursuant to (e) Depositions. (1) If a motion for dep- § 1264.108. osition is granted, the presiding officer shall issue a subpoena for the depo- § 1264.120 Discovery. nent, which may require the deponent (a) The following types of discovery to produce documents. The subpoena are authorized: shall specify the time and place at (1) Requests for production of docu- which the deposition will be held. ments for inspection and copying; (2) The party seeking to depose shall (2) Requests for admissions of the au- serve the subpoena in the manner pre- thenticity of any relevant document or scribed in § 1264.107. of the truth of any relevant fact; (3) The deponent may file with the (3) Written interrogatories; and presiding officer a motion to quash the (4) Depositions. (b) For the purpose of this section subpoena or a motion for a protective and §§ 1264.121 and 1264.122, the term order within 10 days of service. documents includes information, docu- (4) The party seeking to depose shall ments, reports, answers, records, ac- provide for the taking of a verbatim counts, papers, and other data and doc- transcript of the deposition, which it umentary evidence which the presiding shall make available to all other par- officer considers relevant and material ties for inspection and copying. to the hearing. Nothing contained (f) Each party shall bear its own herein shall be interpreted to require costs of discovery. the creation of a document.

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§ 1264.121 Exchange of witness lists, (d) The subpoena shall specify the statements, and exhibits. time and place at which the witness is (a) At least 15 days before the hear- to appear and any documents the wit- ing or at such other time as may be or- ness is to produce. dered by the presiding officer, the par- (e) The party seeking the subpoena ties shall exchange witness lists, copies shall serve it in the manner prescribed of prior statements of proposed wit- in § 1264.107. A subpoena on a party or nesses, and copies of proposed hearing upon an individual under the control of exhibits, including copies of any writ- a party may be served by first class ten statements that the party intends mail. to offer in lieu of live testimony in ac- (f) A party or the individual to whom cordance with paragraph (b) of the subpoena is directed may file with § 1264.132. At the time the above docu- the presiding officer a motion to quash ments are exchanged, any party that the subpoena within 10 days after serv- intends to rely on the transcript of ice or on or before the time specified in deposition testimony in lieu of live tes- the subpoena for compliance if it is less timony at the hearing, if permitted by than 10 days after service. the presiding officer, shall provide each party with a copy of the specific pages § 1264.123 Protective order. of the transcript it intends to intro- (a) A party or a prospective witness duce into evidence. or deponent may file a motion for a (b) If a party objects, the presiding protective order with respect to dis- officer shall not admit into evidence covery sought by an opposing party or the testimony of any witness whose with respect to the hearing, seeking to name does not appear on the witness limit the availability or disclosure of list or any exhibit not provided to the evidence. opposing party, in accordance with (b) In issuing a protective order, the paragraph (a) of this section, unless the presiding officer may make any order presiding officer finds goods cause for which justice requires to protect a the failure or that there is no prejudice party or person from annoyance, em- to the objecting party. barrassment, oppression, or undue bur- (c) Unless another party objects den or expense, including one or more within the time set by the presiding of- of the following: ficer, documents exchanged in accord- (1) That the discovery not be had; ance with paragraph (a) of this section (2) That the discovery may be had shall be deemed to be authentic for the only on specified terms and conditions, purpose of admissibility at the hearing. including a designation of the time or place; § 1264.122 Subpoena for attendance at (3) That the discovery may be had hearing. only through a method of discovery (a) A party wishing the appearance other than that requested; and testimony of any individual at the (4) That certain matters not be in- hearing may request that the presiding quired into, or that the scope of dis- officer issue a subpoena. covery be limited to certain matters; (b) A subpoena requiring the attend- (5) That discovery be conducted with ance and testimony of an individual no one present except persons des- may also require the individual to ignated by the presiding officer; produce documents at the hearing. (6) That the contents of discovery or (c) A party seeking a subpoena shall evidence be sealed; file a written request therefor not less (7) That a deposition after being than 15 days before the date fixed for sealed be opened only by order of the the hearing unless otherwise allowed presiding officer; by the presiding officer for good cause (8) That a trade secret or other con- shown. Such request shall specify any fidential research, development, com- documents to be produced and shall mercial information, or facts per- designate the witnesses and describe taining to any criminal investigation, the address and location thereof with proceeding, or other administrative insufficient particularity to permit such vestigation not be disclosed or be dis- witnesses to be found. closed only in a designated way; or

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(9) That the parties simultaneously (c) Proof of service. A certificate of file specified documents or information the individual serving the document by enclosed in sealed envelopes to be personal delivery or by mail, setting opened as directed by the presiding of- forth the manner of service, shall be ficer. proof of service. § 1264.124 Fees. [52 FR 39498, Oct. 22, 1987, as amended at 54 The party requesting a subpoena FR 600, Jan. 9, 1989] shall pay the cost of the fees and mileage of any witness subpoenaed in the § 1264.126 Computation of time. amounts that would be payable to a (a) In computing any period of time witness in a proceeding in United under this part or in an order issued States District Court. A check for wit- thereunder, the time begins with the ness fees and mileage shall accompany day following the act, event, or default, the subpoena when served, except that and includes the last day of the period, when a subpoena is issued on behalf of unless it is a Saturday, Sunday, or the authority, a check for witness fees legal holiday observed by the Federal and mileage need not accompany the government, in which event it includes subpoena. the next business day. [52 FR 39498, Oct. 22, 1987, as amended at 80 (b) When the period of time allowed FR 42029, July 16, 2015] is less than 7 days, intermediate Satur- days, Sundays, and legal holidays ob- § 1264.125 Form, filing, and service of papers. served by the Federal government shall be excluded from the computation. (a) Form. (1) Documents filed with the (c) Where a document has been served presiding officer shall include an original and two copies. or issued by placing it in the mail, an (2) Every pleading and paper filed in additional 5 days will be added to the the proceeding shall contain a caption time permitted for any response. setting forth the title of the action, the [52 FR 39498, Oct. 22, 1987, as amended at 54 case number assigned by the presiding FR 600, Jan. 9, 1989] officer, and a designation of the paper (e.g., motion to quash subpoena). § 1264.127 Motions. (3) Every pleading and paper shall be (a) Any application to the presiding signed by, and shall contain the ad- officer for an order or ruling shall be dress and telephone number of the party or the person on whose behalf the by motion. Motions shall state the re- paper was filed, or his or her represent- lief sought, the authority relied upon, ative. and the facts alleged, and shall be filed (4) Papers are considered filed when with the presiding officer and served on they are mailed. Date of mailing may all other parties. be established by a certificate from the (b) Except for motions made during a party or its representative or by proof prehearing conference or at the hear- that the document was sent by cer- ing, all motions shall be in writing. tified or registered mail. The presiding officer may require that (b) Service. A party filing a document oral motions be reduced to writing. with the presiding officer shall, at the (c) Within 15 days after a written mo- time of filing, serve a copy of such doc- tion is served, or such other time as ument on every other party. Service may be fixed by the presiding officer, upon any party of any document other any party may file a response to such than those required to be served as pre- motion. scribed in § 1264.107 shall be made by de- (d) The presiding officer may not livering a copy or by placing a copy of grant a written motion before the time the document in the U.S. mail, postage for filing responses thereto has expired, prepaid, and addressed to the party’s except upon consent of the parties or last known address. When a party is represented by a representative, serv- following a hearing on the motion, but ice shall be made upon such representa- may overrule or deny such motion tive. without awaiting a response.

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(e) The presiding officer shall make a determine whether the defendant is lia- reasonable effort to dispose of all out- ble for a civil penalty or assessment standing motions prior to the begin- under § 1264.102 and, if so, the appro- ning of the hearing. priate amount of any such civil penalty or assessment considering any aggra- § 1264.128 Sanctions. vating or mitigating factors. (a) The presiding officer may sanc- (b) The authority shall prove defend- tion a person, including any party or ant’s liability and any aggravating fac- representative for— tors by a preponderance of the evi- (1) Failing to comply with an order, dence. rule, or procedure governing the pro- (c) The defendant shall prove any af- ceeding; firmative defenses and any mitigating (2) Failing to prosecute or defend an factors by a preponderance of the evi- action; or dence. (3) Engaging in other misconduct (d) The hearing shall be open to the that interferes with the speedy, or- public unless otherwise ordered by the derly, or fair conduct of the hearing. presiding officer for good cause shown. (b) Any such sanction, including but not limited to those listed in para- § 1264.130 Determining the amount of graphs (c), (d), and (e) of this section, penalties and assessments. shall reasonably relate to the severity (a) In determining an appropriate and nature of the failure or mis- amount of civil penalties and assess- conduct. ments, the presiding officer, and the (c) When a party fails to comply with authority head upon appeal, should an order, including an order for taking evaluate any circumstances that miti- a deposition, the production of evi- gate or aggravate the violation and dence within the party’s control, or a should articulate in their opinions the request for admission, the presiding of- reasons that support the penalties and ficer may— assessments they impose. Because of (1) Draw an inference in favor of the the intangible costs of fraud, the ex- requesting party with regard to the in- pense of investigating such conduct, formation sought; and the need to deter others who might (2) In the case of requests for admis- be similarly tempted, ordinarily double sion, deem each matter of which an ad- damages and a significant civil penalty mission is requested to be admitted; should be imposed. (3) Prohibit the party failing to comply with such order from introducing (b) Although not exhaustive, the fol- evidence concerning, or otherwise rely- lowing factors are among those that ing upon testimony relating to, the in- may influence the presiding officer and formation sought; and the authority head in determining the (4) Strike any part of the pleadings amount of penalties and assessments to or other submissions of the party fail- impose with respect to the misconduct ing to comply with such request. (i.e., the false, fictitious, or fraudulent (d) If a party fails to prosecute or de- claims or statements) charged in the fend an action under this part com- complaint: menced by service of a notice of hear- (1) The number of false, fictitious, or ing, the presiding officer may dismiss fraudulent claims or statements; the action or may issue an initial deci- (2) The time period over which such sion imposing penalties and assess- claims or statements were made; ments. (3) The degree of the defendant’s cul- (e) The presiding officer may refuse pability with respect to the mis- to consider any motion, request, re- conduct; sponse, brief, or other document which (4) The amount of money or the value is not filed in a timely fashion. of the property, services, or benefit falsely claimed; § 1264.129 The hearing and burden of (5) The value of the Government’s ac- proof. tual loss as a result of the misconduct, (a) The presiding officer shall con- including foreseeable consequential duct a hearing on the record in order to damages and the costs of investigation;

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(6) The relationship of the amount (2) In any judicial district of the imposed as civil penalties to the United States in which the claim or amount of the Government’s loss; statement in issue was made; or (7) The potential or actual impact of (3) In such other place as may be the misconduct upon national defense, agreed upon by the defendant and the public health or safety, or public con- presiding officer. fidence in the management of Govern- (b) Each party shall have the oppor- ment programs and operations, includ- tunity to present argument with re- ing particularly the impact on the inspect to the location of the hearing. tended beneficiaries of such programs; (c) The hearing shall be held at the (8) Whether the defendant has en- place and at the time ordered by the gaged in a pattern of the same or simi- presiding officer. lar misconduct; (9) Whether the defendant attempted § 1264.132 Witnesses. to conceal the misconduct; (a) Except as provided in paragraph (10) The degree to which the defend- (b) of this section, testimony at the ant has involved others in the mis- hearing shall be given orally by wit- conduct or in concealing it; nesses under oath or affirmation. (11) Where the misconduct of employ- (b) At the discretion of the presiding ees or agents is imputed to the defend- officer, testimony may be admitted in ant, the extent to which the defend- the form of a written statement or dep- ant’s practices fostered or attempted osition. Any such written statement to preclude such misconduct; must be provided to all other parties (12) Whether the defendant cooper- along with the last known address of ated in or obstructed an investigation such witness, in a manner which allows of the misconduct; sufficient time for other parties to sub- (13) Whether the defendant assisted poena such witness for cross-examina- in identifying and prosecuting other tion at the hearing. Prior written wrongdoers; statements of witnesses proposed to testify at the hearing and deposition (14) The complexity of the program transcripts shall be exchanged as pro- or transaction, and the degree of the vided in § 1264.121(a). defendant’s sophistication with respect (c) The presiding officer shall exer- to it, including the extent of the de- cise reasonable control over the mode fendant’s prior participation in the and order of interrogating witnesses program or in similar transactions; and presenting evidence so as to make (15) Whether the defendant has been the interrogation and presentation ef- found, in any criminal, civil, or admin- fective for the ascertainment of the istrative proceeding to have engaged in truth, avoid needless consumption of similar misconduct or to have dealt time, and protect witnesses from har- dishonestly with the Government of assment or undue embarrassment. the United States or of a State, di- (d) The presiding officer shall permit rectly or indirectly; and the parties to conduct such cross-ex- (16) The need to deter the defendant amination as may be required for a full and others from engaging in the same and true disclosure of the facts. or similar misconduct. (e) At the discretion of the presiding (c) Nothing in this section shall be officer, a witness may be cross-exam- construed to limit the presiding officer ined on matters relevant to the pro- or the authority head from considering ceeding without regard to the scope of any other factors that in any given his or her direct examination. To the 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.

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(f) Upon motion of any party, the presiding officer at a cost not to exceed presiding officer shall order witnesses the actual cost of duplication. excluded so that they cannot hear the (b) The transcript of testimony, ex- testimony of other witnesses. This rule hibits, and other evidence admitted at does not authorize exclusion of— the hearing, and all papers and re- (1) A party who is an individual; quests filed in the proceeding con- (2) In the case of a party that is not stitute the record for the decision by an individual, an officer or employee of the presiding officer and the authority the party appearing for the entity pro head. se or designated by the party’s rep- (c) The record may be inspected and resentative; or copied (upon payment of a reasonable (3) An individual whose presence is fee) by anyone, unless otherwise or- shown by a party to be essential to the dered by the presiding officer pursuant presentation of its case, including an to § 1264.123. individual employed by the Govern- ment engaged in assisting the rep- § 1264.135 Post-hearing briefs. resentative for the Government. The presiding officer may require the [52 FR 39498, Oct. 22, 1987, as amended at 54 parties to file post-hearing briefs. In FR 600, Jan. 9, 1989] any event, upon approval of the presiding officer, any party may file a § 1264.133 Evidence. post-hearing brief. The presiding offi- (a) The presiding officer shall deter- cer shall fix the time for filing such mine the admissibility of evidence. briefs, not to exceed 60 days from the (b) Except as provided herein, the date the parties receive the transcript presiding officer shall not be bound by of the hearing or, if applicable, the the Federal Rules of Evidence. How- stipulated record. Such briefs may be ever, the presiding officer may apply accompanied by proposed findings of the Federal Rules of Evidence where fact and conclusions of law. The pre- appropriate, e.g., to exclude unreliable siding officer may permit the parties to evidence. file reply briefs, and may grant an ex- (c) The presiding officer shall exclude tension of the 60-day time period or irrelevant and immaterial evidence. other time for good cause shown. (d) Although relevant, evidence may be excluded if its probative value is § 1264.136 Initial decision. substantially outweighed by the danger (a) The presiding officer shall issue of unfair prejudice, confusion of the an initial decision based solely on the issues, or by considerations of undue record, which shall contain findings of delay or needless presentation of cumu- fact, conclusions of law, and the lative evidence. amount of any penalties and assess- (e) Although relevant, evidence may ments imposed. be excluded if it is privileged under (b) The findings of fact shall include Federal law. a finding on each of the following (f) Evidence concerning offers of com- issues: promise or settlement shall be inad- (1) Whether the claims or statements missible to the extent provided in Rule identified in the complaint, or any por- 408 of the Federal Rules of Evidence. tions thereof, violate § 1264.102; (g) The presiding officer shall permit (2) If the person is liable for penalties the parties to introduce rebuttal wit- or assessments, the appropriate nesses and evidence. amount of any such penalties or assess- (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

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officer shall at the same time serve all (g) If the presiding officer issues a re- parties with a statement describing the vised initial decision, the revised deci- right of any defendant determined to sion shall constitute the final decision be liable for a civil penalty or assess- of the authority head and shall be final ment to file a motion for reconsider- and binding on the parties 30 days after ation with the presiding officer or a no- it is issued, unless it is timely appealed tice of appeal with the authority head. to the authority head in accordance If the presiding officer fails to meet the with § 1264.138. deadline contained in this paragraph, he or she shall notify the parties of the [52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989] reason for the delay and shall set a new deadline. § 1264.138 Appeal to authority head. (d) Unless the initial decision of the presiding officer is timely appealed to (a) Any defendant who has filed a the authority head, or a motion for re- timely answer and who is determined consideration of the initial decision is in an initial decision to be liable for a timely filed, the initial decision shall civil penalty or assessment may appeal constitute the final decision of the au- such decision to the authority head by thority head and shall be final and filing a notice of appeal with the au- binding on the parties 30 days after it thority head in accordance with this is issued by the presiding officer. section. (b) The time for appeal to the author- [52 FR 39498, Oct. 22, 1987, as amended at 54 ity head is as follows: FR 600, Jan. 9, 1989] (1) A notice of appeal may be filed at § 1264.137 Reconsideration of initial any time within 30 days after the pre- decision. siding officer issues an initial decision. (a) Except as provided in paragraph However, if any other party files a mo- (d) of this section, any party may file a tion for a reconsideration under motion for reconsideration of the ini- § 1264.137, consideration of the appeal tial decision within 20 days of receipt shall be stayed automatically pending of the initial decision. If service was resolution of the motion for reconsider- made by mail, receipt will be presumed ation. to be 5 days from the date of mailing in (2) If a motion for reconsideration is the absence of contrary proof. timely filed, a notice of appeal must be (b) Every such motion must set forth filed within 30 days after the presiding the matters claimed to have been erro- officer denies the motion or issues a re- neously decided and the nature of the vised initial decision, whichever ap- alleged errors. Such motion shall be plies. accompanied by a supporting brief. (3) If no motion for reconsideration is (c) Responses to such motions shall timely filed, a notice of appeal must be be allowed only upon request of the filed within 30 days after the presiding presiding officer. officer issues the initial decision. (d) No party may file a motion for re- (4) The authority head may extend consideration of an initial decision the initial 30-day period for an addi- that has been revised in response to a tional 30 days if the defendant files previous motion for reconsideration. with the authority head a request for (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.

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(e) The representative for the Gov- istrative process described in this part ernment may file a brief in opposition with respect to a claim or statement to exceptions within 30 days of receiv- may adversely affect any pending or ing the notice of appeal and accom- potential criminal or civil action re- panying brief. lated to such claim or statement, the (f) There is no right to appear person- authority head shall stay the process ally before the authority head. immediately. If the process is before (g) There is no right to appeal any in- the presiding officer, the authority terlocutory ruling by the presiding of- head shall promptly transmit the find- ficer. ing to the presiding officer, who, in (h) In reviewing the initial decision, turn, must stay the proceeding and the authority head shall not consider give notice to all parties and their rep- any objection that was not raised be- resentatives. The authority head may fore the presiding officer unless a dem- order the process resumed only upon onstration is made of extraordinary receipt of the written authorization of circumstances causing the failure to the Attorney General. raise the objection. (i) If any party demonstrates to the § 1264.140 Stay pending appeal. satisfaction of the authority head that (a) An initial decision is stayed auto- additional evidence not presented at matically pending disposition of a mo- such hearing is material and that there tion for reconsideration or of an appeal were reasonable grounds for the failure to the authority head. to present such evidence at such hearing, the authority head shall remand (b) No administrative stay is avail- the matter to the presiding officer for able following a final decision of the consideration of such additional evi- authority head. dence. § 1264.141 Judicial review. (j) The authority head may affirm, reduce, reverse, compromise, remand, Section 3805 of Title 31, United States or settle any penalty or assessment, Code, authorizes judicial review by an determined by the presiding officer in appropriate United States District any initial decision. Court of a final decision of the author- (k) The authority head shall prompt- ity head imposing penalties or assess- ly serve each party to the appeal with ments under this part and specifies the a copy of the decision of the authority procedures for such review. head. At the same time the authority head shall serve the defendant with a § 1264.142 Collection of civil penalties statement describing the defendant’s and assessments. right to seek judicial review. Sections 3806 and 3808(b) of Title 31, (l) Unless a petition for review is United States Code, authorize actions filed as provided in 31 U.S.C. 3805, after for collection of civil penalties and as- a defendant has exhausted all adminis- sessments imposed under this part and trative remedies under this part and specify the procedures for such actions. within 60 days after the date on which the authority head serves the defend- § 1264.143 Right to administrative off- ant with a copy of the authority head’s set. decision, a determination that a de- The amount of any penalty or assess- fendant is liable under § 1264.102 is final ment which has become final, or for and is not subject to judicial review. which a judgment has been entered [52 FR 39498, Oct. 22, 1987, as amended at 54 under § 1264.141 or § 1264.142, or any FR 600, Jan. 9, 1989] amount agreed upon in a compromise or settlement under § 1264.145, may be § 1264.139 Stays ordered by the De- collected by administrative offset partment of Justice. under 31 U.S.C. 3716, except that an ad- If at any time the Attorney General ministrative offset may not be made or an Assistant Attorney General des- under this subsection against a refund ignated by the Attorney General trans- of an overpayment of Federal taxes, mits to the authority head a written then or later owing by the United finding that continuation of the admin- States to the defendant.

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§ 1264.144 Deposit in Treasury of tice of hearing for purposes of this sec- United States. tion. All amounts collected pursuant to (c) The statute of limitations may be this part shall be deposited as miscella- extended by agreement of the parties. neous receipts in the Treasury of the APPENDIX A TO PART 1264—NOTICE TO United States, except as provided in 31 CONSENT TO THE CHAIRPERSON, U.S.C. 3806(g). NASA BOARD OF CONTRACT APPEALS (BCA), OR DESIGNEE, AS PRESIDING § 1264.145 Compromise or settlement. OFFICER (a) Parties may make offers of compromise or settlement at any time, in- In accordance with the provisions of 14 cluding proposals for alternative dis- CFR 1264.106, you are hereby notified that pute resolution. the Chairperson, NASA Board of Contract Appeals (BCA), or designee, in addition to (b) The reviewing official has the ex- other duties, upon your consent, may conclusive authority to compromise or duct any or all proceedings as the presiding settle a case under this part at any officer, pursuant to 14 CFR part 1264 which time after the date on which the re- implements the Program Fraud Civil Pen- viewing official is permitted to refer alties Act of 1986. allegations of liability to a presiding You should be aware that your decision to officer and before the date on which consent, or not to consent, to the referral of the presiding officer issues an initial this case to the NASA/BCA must be entirely voluntary. Only if you and the authority decision. head consent to this reference will either the (c) The authority head has exclusive Chairperson or the designee to whom the authority to compromise or settle a case may be assigned be informed of your de- case under this part at any time after cision. the date on which the presiding officer An appeal from a decision by the presiding issues an initial decision, except during officer under this consent procedure may be the pendency of any judicial review taken in the same manner as an appeal from a decision by any other presiding officer, as under § 1264.141 or during the pendency provided in 14 CFR 1264.136(d), 1264.137, of any civil action to collect penalties 1264.138, and 1264.141. and assessments under § 1264.142. If you consent, you must sign, date, and re- (d) The Attorney General has exclu- turn this form within the 30-day period pro- sive authority to compromise or settle vided for your answer (see 14 CFR 1264.108, a case under this part during the pend- 1264.109). ency of any judicial review under 31 consent: lllllllllllllllllll U.S.C. 3805 or of any civil action to re- (Signature of person alleged to be liable) cover penalties and assessments under llllllllllllllllllllllll 31 U.S.C. 3806. (Print name) (e) The investigating official may llllllllllllllllllllllll recommend settlement terms to the re- (Date of signature) viewing official, the authority head, or the Attorney General, as appropriate. PART 1266—CROSS-WAIVER OF The reviewing official may recommend LIABILITY settlement terms to the authority head, or the Attorney General, as ap- Sec. propriate. 1266.100 Purpose. (f) Any compromise or settlement 1266.101 Scope. must be in writing. 1266.102 Cross-waiver of liability for agreements for activities related to the Inter- national Space Station. § 1264.146 Limitations. 1266.103 [Reserved] (a) The notice of hearing with respect 1266.104 Cross-waiver of liability for launch to a claim or statement must be served agreements for science or space explo- in the manner specified in § 1264.107 ration activities unrelated to the Inter- within 6 years after the date on which national Space Station. such claim or statement is made. AUTHORITY: 51 U.S.C. 20139 and 51 U.S.C. (b) If the defendant fails to file a 20113(a), (e), and (f). timely answer, service of a notice SOURCE: 73 FR 10148, Feb. 26, 2008, unless under § 1264.109(b) shall be deemed a no- otherwise noted.

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§ 1266.100 Purpose. tion (ISS). The IGA declares the Part- The purpose of this Part is to ensure ner States’ intention that the cross- that consistent cross-waivers of liabil- waiver of liability be broadly construed ity are included in NASA agreements to achieve this objective. for activities related to the ISS and for (b) For the purposes of this section: NASA’s science or space exploration (1) The term ‘‘Party’’ means a party activities unrelated to the ISS that in- to a NASA agreement involving activi- volve a launch. ties in connection with the ISS. (2)(i) The term ‘‘related entity’’ § 1266.101 Scope. means: The provisions at § 1266.102 are in- (A) A contractor or subcontractor of tended to implement the cross-waiver a Party or a Partner State at any tier; requirement in Article 16 of the inter- (B) A user or customer of a Party or governmental agreement entitled, a Partner State at any tier; or ‘‘Agreement Among the Government of (C) A contractor or subcontractor of Canada, Governments of Member a user or customer of a Party or a States of the European Space Agency, Partner State at any tier. the Government of Japan, the Govern- (ii) The terms ‘‘contractor’’ and ment of the Russian Federation, and ‘‘subcontractor’’ include suppliers of the Government of the United States of any kind. America concerning Cooperation on (iii) The term ‘‘related entity’’ may the Civil International Space Station also apply to a State, or an agency or (IGA).’’ Article 16 establishes a cross- institution of a State, having the same waiver of liability for use by the Part- relationship to a Partner State as de- ner States and their related entities scribed in paragraphs (b)(2)(i)(A) and requires that this reciprocal waiv- through (b)(2)(i)(C) of this section or er of claims be extended to contrac- otherwise engaged in the implementa- tually or otherwise-related entities of tion of Protected Space Operations as NASA by requiring those entities to defined in paragraph (b)(6) of this sec- make similar waivers of liability. tion. Thus, NASA is required to include IGA- (3) The term ‘‘damage’’ means: based cross-waivers in agreements for (i) Bodily injury to, or other impair- ISS activities that fall within the ment of health of, or death of, any per- scope of ‘‘Protected Space Operations,’’ son; as defined in § 1266.102. The provisions (ii) Damage to, loss of, or loss of use of § 1266.102 provide the regulatory of any property; basis for cross-waiver clauses to be in- (iii) Loss of revenue or profits; or corporated into NASA agreements for (iv) Other direct, indirect, or con- activities that implement the IGA and sequential damage. the memoranda of understanding be- (4) The term ‘‘launch vehicle’’ means tween the United States and its respec- an object, or any part thereof, intended tive international partners. The provi- for launch, launched from Earth, or re- sions of § 1266.104 provide the regu- turning to Earth which carries pay- latory basis for cross-waiver clauses to loads or persons, or both. be incorporated into NASA launch (5) The term ‘‘payload’’ means all agreements for science or space explo- property to be flown or used on or in a ration activities unrelated to the ISS. launch vehicle or the ISS. (6) The term ‘‘Protected Space Oper- § 1266.102 Cross-waiver of liability for ations’’ means all launch or transfer agreements for activities related to vehicle activities, ISS activities, and the International Space Station. payload activities on Earth, in outer (a) The objective of this section is to space, or in transit between Earth and implement NASA’s responsibility to outer space in implementation of the flow down the cross-waiver of liability IGA, MOUs concluded pursuant to the in Article 16 of the IGA to its related IGA, and implementing arrangements. entities in the interest of encouraging It includes, but is not limited to: participation in the exploration, ex- (i) Research, design, development, ploitation, and use of outer space test, manufacture, assembly, integra- through the International Space Sta- tion, operation, or use of launch or

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transfer vehicles, the ISS, payloads, or ever the legal basis for such claims, instruments, as well as related support against: equipment and facilities and services; (i) Another Party; and (ii) A Partner State other than the (ii) All activities related to ground United States of America; support, test, training, simulation, or (iii) A related entity of any entity guidance and control equipment and identified in paragraph (c)(1)(i) or related facilities or services. ‘‘Pro- (c)(1)(ii) of this section; or tected Space Operations’’ also includes (iv) The employees of any of the enti- all activities related to evolution of ties identified in paragraphs (c)(1)(i) the ISS, as provided for in Article 14 of through (c)(1)(iii) of this section. the IGA. ‘‘Protected Space Operations’’ (2) In addition, each Party shall, by excludes activities on Earth which are contract or otherwise, extend the conducted on return from the ISS to cross-waiver of liability, as set forth in develop further a payload’s product or paragraph (c)(1) of this section, to its process for use other than for ISS-re- related entities by requiring them, by lated activities in implementation of contract or otherwise, to: the IGA. (i) Waive all claims against the enti- (7) The term ‘‘transfer vehicle’’ ties or persons identified in paragraphs means any vehicle that operates in (c)(1)(i) through (c)(1)(iv) of this sec- space and transfers payloads or persons tion; and or both between two different space ob- (ii) Require that their related enti- jects, between two different locations ties waive all claims against the enti- on the same space object, or between a ties or persons identified in paragraphs space object and the surface of a celes- (c)(1)(i) through (c)(1)(iv) of this sec- tial body. A transfer vehicle also in- tion. cludes a vehicle that departs from and returns to the same location on a space (3) For avoidance of doubt, this cross- object. waiver of liability includes a cross- waiver of claims arising from the Con- (8) The term ‘‘Partner State’’ includes each Contracting Party for vention on International Liability for which the IGA has entered into force, Damage Caused by Space Objects, pursuant to Article 25 of the IGA or which entered into force on September pursuant to any successor agreement. 1, 1972, where the person, entity, or A Partner State includes its Cooper- property causing the damage is in- ating Agency. It also includes any enti- volved in Protected Space Operations ty specified in the Memorandum of Un- and the person, entity, or property derstanding (MOU) between NASA and damaged is damaged by virtue of its in- the Government of Japan to assist the volvement in Protected Space Oper- Government of Japan’s Cooperating ations. Agency in the implementation of that (4) Notwithstanding the other provi- MOU. sions of this section, this cross-waiver (c)(1) Cross-waiver of liability: Each of liability shall not be applicable to: Party agrees to a cross-waiver of liabil- (i) Claims between a Party and its ity pursuant to which each Party own related entity or between its own waives all claims against any of the en- related entities; tities or persons listed in paragraphs (ii) Claims made by a natural person, (c)(1)(i) through (c)(1)(iv) of this sec- his/her estate, survivors or subrogees tion based on damage arising out of (except when a subrogee is a Party to Protected Space Operations. This the agreement or is otherwise bound by cross-waiver shall apply only if the per- the terms of this cross-waiver) for bod- son, entity, or property causing the ily injury to, or other impairment of damage is involved in Protected Space health of, or death of, such person; Operations and the person, entity, or (iii) Claims for damage caused by property damaged is damaged by virtue willful misconduct; of its involvement in Protected Space (iv) Intellectual property claims; Operations. The cross-waiver shall (v) Claims for damage resulting from apply to any claims for damage, what- a failure of a Party to extend the cross-

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waiver of liability to its related enti- (i) Bodily injury to, or other impair- ties, pursuant to paragraph (c)(2) of ment of health of, or death of, any per- this section; or son; (vi) Claims by a Party arising out of (ii) Damage to, loss of, or loss of use or relating to another Party’s failure of any property; to perform its obligations under the (iii) Loss of revenue or profits; or agreement. (iv) Other direct, indirect, or con- (5) Nothing in this section shall be sequential damage. construed to create the basis for a (4) The term ‘‘launch vehicle’’ means claim or suit where none would other- an object, or any part thereof, intended wise exist. for launch, launched from Earth, or re- (6) This cross-waiver shall not be ap- turning to Earth which carries pay- plicable when 49 U.S.C. Subtitle IX, loads or persons, or both. Chapter. 701 is applicable. (5) The term ‘‘payload’’ means all property to be flown or used on or in a § 1266.103 [Reserved] launch vehicle. (6) The term ‘‘Protected Space Oper- § 1266.104 Cross-waiver of liability for ations’’ means all launch or transfer launch agreements for science or vehicle activities and payload activi- space exploration activities unre- ties on Earth, in outer space, or in lated to the International Space transit between Earth and outer space Station. in implementation of an agreement for (a) The purpose of this section is to launch services. Protected Space Oper- implement a cross-waiver of liability ations begins at the signature of the between the parties to agreements for agreement and ends when all activities NASA’s science or space exploration done in implementation of the agree- activities that are not related to the ment are completed. It includes, but is International Space Station (ISS) but not limited to: involve a launch. It is intended that (i) Research, design, development, the cross-waiver of liability be broadly test, manufacture, assembly, integra- construed to achieve this objective. tion, operation, or use of launch or (b) For purposes of this section: transfer vehicles, payloads, or instru- (1) The term ‘‘Party’’ means a party ments, as well as related support equip- to a NASA agreement for science or ment and facilities and services; and space exploration activities unrelated (ii) All activities related to ground to the ISS that involve a launch. support, test, training, simulation, or guidance and control equipment and (2) (i) The term ‘‘related entity’’ related facilities or services. The term means: ‘‘Protected Space Operations’’ excludes (A) A contractor or subcontractor of activities on Earth that are conducted a Party at any tier; on return from space to develop further (B) A user or customer of a Party at a payload’s product or process for use any tier; or other than for the activities within the (C) A contractor or subcontractor of scope of an agreement for launch serv- a user or customer of a Party at any ices. tier. (7) The term ‘‘transfer vehicle’’ (ii) The terms ‘‘contractor’’ and means any vehicle that operates in ‘‘subcontractor’’ include suppliers of space and transfers payloads or persons any kind. or both between two different space ob- (iii) The term ‘‘related entity’’ may jects, between two different locations also apply to a State or an agency or on the same space object, or between a institution of a State, having the same space object and the surface of a celes- relationship to a Party as described in tial body. A transfer vehicle also in- paragraphs (b)(2)(i)(A) through cludes a vehicle that departs from and (b)(2)(i)(C) of this section, or otherwise returns to the same location on a space engaged in the implementation of Pro- object. tected Space Operations as defined in (c)(1) Cross-waiver of liability: Each paragraph (b)(6) of this section. Party agrees to a cross-waiver of liabil- (3) The term ‘‘damage’’ means: ity pursuant to which each Party

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waives all claims against any of the en- (ii) Claims made by a natural person, tities or persons listed in paragraphs his/her estate, survivors, or subrogees (c)(1)(i) through (c)(1)(iv) of this sec- (except when a subrogee is a Party to tion based on damage arising out of the agreement or is otherwise bound by Protected Space Operations. This the terms of this cross-waiver) for bod- cross-waiver shall apply only if the per- ily injury to, or other impairment of son, entity, or property causing the health of, or death of, such person; damage is involved in Protected Space (iii) Claims for damage caused by Operations and the person, entity, or willful misconduct; property damaged is damaged by virtue (iv) Intellectual property claims; of its involvement in Protected Space (v) Claims for damages resulting Operations. The cross-waiver shall from a failure of a Party to extend the apply to any claims for damage, what- cross-waiver of liability to its related ever the legal basis for such claims, entities, pursuant to paragraph (c)(2) of against: this section; or (i) Another Party; (vi) Claims by a Party arising out of (ii) A party to another NASA agree- or relating to another Party’s failure ment that includes flight on the same to perform its obligations under the launch vehicle; agreement. (iii) A related entity of any entity (5) Nothing in this section shall be identified in paragraphs (c)(1)(i) or construed to create the basis for a (c)(1)(ii) of this section; or claim or suit where none would other- (iv) The employees of any of the enti- wise exist. ties identified in paragraphs (c)(1)(i) (6) This cross-waiver shall not be ap- through (c)(1)(iii) of this section. plicable when 49 U.S.C. Subtitle IX, (2) In addition, each Party shall ex- Chapter 701 is applicable. tend the cross-waiver of liability, as set forth in paragraph (c)(1) of this sec- PART 1271—NEW RESTRICTIONS ON tion, to its own related entities by re- LOBBYING quiring them, by contract or otherwise, to: Subpart A—General (i) Waive all claims against the entities or persons identified in paragraphs Sec. 1271.100 Conditions on use of funds. (c)(1)(i) through (c)(1)(iv) of this sec- 1271.105 Definitions. tion; and 1271.110 Certification and disclosure. (ii) Require that their related entities waive all claims against the enti- Subpart B—Activities by Own Employees ties or persons identified in paragraphs 1271.200 Agency and legislative liaison. (c)(1)(i) through (c)(1)(iv) of this sec- 1271.205 Professional and technical services. tion. 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 claims arising from the Con- Employees vention on International Liability for Damage Caused by Space Objects, 1271.300 Professional and technical services. which entered into force on September Subpart D—Penalties and Enforcement 1, 1972, where the person, entity, or property causing the damage is in- 1271.400 Penalties. volved in Protected Space Operations 1271.405 Penalty procedures. and the person, entity, or property 1271.410 Enforcement. damaged is damaged by virtue of its in- Subpart E—Exemptions volvement in Protected Space Oper- ations. 1271.500 Secretary of Defense. (4) Notwithstanding the other provisions of this section, this cross-waiver Subpart F—Agency Reports of liability shall not be applicable to: 1271.600 Semi-annual compilation. (i) Claims between a Party and its 1271.605 Inspector General report. own related entity or between its own APPENDIX A TO PART 1271—CERTIFICATION RE- related entities; GARDING LOBBYING

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APPENDIX B TO PART 1271—DISCLOSURE FORM ment to influence or attempt to influ- TO REPORT LOBBYING ence an officer or employee of any AUTHORITY: Section 319, Pub. L. 101–121 (31 agency, a Member of Congress, an offi- U.S.C. 1352); Pub. L. 97–258 (31 U.S.C. 6301 et cer or employee of Congress, or an em- seq.) ployee of a Member of Congress in con- CROSS REFERENCE: See also Office of Man- nection with that loan insurance or agement and Budget notice published at 54 guarantee. FR 52306, December 20, 1989. (e) Each person who requests or re- SOURCE: 55 FR 6737, 6748, Feb. 26, 1990, un- ceives from an agency a commitment less otherwise noted. providing for the United States to insure or guarantee a loan shall file with Subpart A—General that agency a disclosure form, set forth in appendix B, if that person has made § 1271.100 Conditions on use of funds. or has agreed to make any payment to (a) No appropriated funds may be ex- influence or attempt to influence an of- pended by the recipient of a Federal ficer or employee of any agency, a contract, grant, loan, or cooperative Member of Congress, an officer or em- ageement to pay any person for influ- ployee of Congress, or an employee of a encing or attempting to influence an Member of Congress in connection with officer or employee of any agency, a that loan insurance or guarantee. Member of Congress, an officer or employee of Congress, or an employee of a § 1271.105 Definitions. Member of Congress in connection with For purposes of this part: any of the following covered Federal (a) Agency, as defined in 5 U.S.C. actions: the awarding of any Federal 552(f), includes Federal executive de- contract, the making of any Federal partments and agencies as well as inde- grant, the making of any Federal loan, pendent regulatory commissions and the entering into of any cooperative Government corporations, as defined in agreement, and the extension, continu- 31 U.S.C. 9101(1). ation, renewal, amendment, or modi- (b) Covered Federal action means any fication of any Federal contract, grant, of the following Federal actions: loan, or cooperative agreement. (1) The awarding of any Federal con- (b) Each person who requests or re- tract; ceives from an agency a Federal con- (2) The making of any Federal grant; tract, grant, loan, or cooperative (3) The making of any Federal loan; agreement shall file with that agency a (4) The entering into of any coopera- certification, set forth in appendix A, tive agreement; and, that the person has not made, and will not make, any payment prohibited by (5) The extension, continuation, re- paragraph (a) of this section. newal, amendment, or modification of (c) Each person who requests or re- any Federal contract, grant, loan, or ceives from an agency a Federal con- cooperative agreement. tract, grant, loan, or a cooperative Covered Federal action does not in- agreement shall file with that agency a clude receiving from an agency a com- disclosure form, set forth in appendix mitment providing for the United B, if such person has made or has States to insure or guarantee a loan. agreed to make any payment using Loan guarantees and loan insurance nonappropriated funds (to include prof- are addressed independently within its from any covered Federal action), this part. which would be prohibited under para- (c) Federal contract means an acquisi- graph (a) of this section if paid for with tion contract awarded by an agency, appropriated funds. including those subject to the Federal (d) Each person who requests or re- Acquisition Regulation (FAR), and any ceives from an agency a commitment other acquisition contract for real or providing for the United States to in- personal property or services not sub- sure or guarantee a loan shall file with ject to the FAR. that agency a statement, set forth in (d) Federal cooperative agreement appendix A, whether that person has means a cooperative agreement en- made or has agreed to make any pay- tered into by an agency.

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

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130 working days within one year im- (2) A change in the person(s) or indi- mediately preceding the date of the vidual(s) influencing or attempting to submission that initiates agency con- influence a covered Federal action; or, sideration of such person shall be con- (3) A change in the officer(s), em- sidered to be regularly employed as ployee(s), or Member(s) contacted to soon as he or she is employed by such influence or attempt to influence a person for 130 working days. covered Federal action. (q) State means a State of the United (d) Any person who requests or re- States, the District of Columbia, the ceives from a person referred to in Commonwealth of Puerto Rico, a terri- paragraphs (a) or (b) of this section: tory or possession of the United States, (1) A subcontract exceeding $100,000 an agency or instrumentality of a at any tier under a Federal contract; State, and a multi-State, regional, or (2) A subgrant, contract, or sub- interstate entity having governmental contract exceeding $100,000 at any tier duties and powers. under a Federal grant; (3) A contract or subcontract exceed- § 1271.110 Certification and disclosure. ing $100,000 at any tier under a Federal (a) Each person shall file a certifi- loan exceeding $150,000; or, cation, and a disclosure form, if re- (4) A contract or subcontract exceed- quired, with each submission that ini- ing $100,000 at any tier under a Federal tiates agency consideration of such cooperative agreement, person for: Shall file a certification, and a disclo- (1) Award of a Federal contract, sure form, if required, to the next tier grant, or cooperative agreement ex- above. ceeding $100,000; or (e) All disclosure forms, but not cer- (2) An award of a Federal loan or a tifications, shall be forwarded from commitment providing for the United tier to tier until received by the person States to insure or guarantee a loan referred to in paragraphs (a) or (b) of exceeding $150,000. this section. That person shall forward (b) Each person shall file a certifi- all disclosure forms to the agency. cation, and a disclosure form, if re- (f) Any certification or disclosure quired, upon receipt by such person of: form filed under paragraph (e) of this (1) A Federal contract, grant, or co- section shall be treated as a material operative agreement exceeding $100,000; representation of fact upon which all or receiving tiers shall rely. All liability (2) A Federal loan or a commitment arising from an erroneous representa- providing for the United States to in- tion shall be borne solely by the tier sure or guarantee a loan exceeding filing that representation and shall not $150,000, 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,

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but not made before December 23, 1989, (3) Capability presentations by per- disclosure forms shall not be required sons seeking awards from an agency at time of award or commitment but pursuant to the provisions of the Small shall be filed within 30 days. Business Act, as amended by Public (h) No reporting is required for an ac- Law 95–507 and other subsequent tivity paid for with appropriated funds amendments. if that activity is allowable under ei- (e) Only those activities expressly au- ther subpart B or C. thorized by this section are allowable under this section. Subpart B—Activities by Own § 1271.205 Professional and technical Employees services. § 1271.200 Agency and legislative liai- (a) The prohibition on the use of ap- son. propriated funds, in § 1271.100(a), does (a) The prohibition on the use of ap- not apply in the case of a payment of propriated funds, in § 1271.100 (a), does reasonable compensation made to an not apply in the case of a payment of officer or employee of a person request- reasonable compensation made to an ing or receiving a Federal contract, officer or employee of a person request- grant, loan, or cooperative agreement ing or receiving a Federal contract, or an extension, continuation, renewal, grant, loan, or cooperative agreement amendment, or modification of a Fed- if the payment is for agency and legis- eral contract, grant, loan, or coopera- lative liaison activities not directly re- tive agreement if payment is for pro- lated to a covered Federal action. fessional or technical services rendered (b) For purposes of paragraph (a) of directly in the preparation, submis- this section, providing any information sion, or negotiation of any bid, pro- specifically requested by an agency or posal, or application for that Federal Congress is allowable at any time. contract, grant, loan, or cooperative (c) For purposes of paragraph (a) of agreement or for meeting requirements this section, the following agency and imposed by or pursuant to law as a legislative liaison activities are allow- condition for receiving that Federal able at any time only where they are contract, grant, loan, or cooperative not related to a specific solicitation for agreement. any covered Federal action: (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. capability of a piece of equipment ren- (d) For purposes of paragraph (a) of dered directly in the negotiation of a this section, the following agencies and contract is allowable. However, com- legislative liaison activities are allow- munications with the intent to influ- able only where they are prior to for- ence made by a professional (such as a mal solicitation of any covered Federal licensed lawyer) or a technical person action: (such as a licensed accountant) are not (1) Providing any information not allowable under this section unless specifically requested but necessary for they provide advice and analysis dian agency to make an informed deci- rectly applying their professional or sion about initiation of a covered Fed- technical expertise and unless the ad- eral action; vice or analysis is rendered directly (2) Technical discussions regarding and solely in the preparation, submis- the preparation of an unsolicited pro- sion or negotiation of a covered Fed- posal prior to its official submission; eral action. Thus, for example, commu- and, nications with the intent to influence

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made by a lawyer that do not provide disclosure form by each person, if re- legal advice or analysis directly and quired, shall not apply with respect to solely related to the legal aspects of professional or technical services ren- his or her client’s proposal, but gen- dered directly in the preparation, sub- erally advocate one proposal over an- mission, or negotiation of any commit- other are not allowable under this sec- ment providing for the United States tion because the lawyer is not pro- to insure or guarantee a loan. viding professional legal services. (c) For purposes of paragraph (a) of Similarly, communications with the this section, ‘‘professional and tech- intent to influence made by an engi- nical services’’ shall be limited to ad- neer providing an engineering analysis vice and analysis directly applying any prior to the preparation or submission professional or technical discipline. of a bid or proposal are not allowable For example, drafting or a legal docu- under this section since the engineer is ment accompanying a bid or proposal providing technical services but not di- by a lawyer is allowable. Similarly, rectly in the preparation, submission technical advice provided by an engi- or negotiation of a covered Federal ac- neer on the performance or operational tion. capability of a piece of equipment ren- (c) Requirements imposed by or pur- dered directly in the negotiation of a suant to law as a condition for receiv- contract is allowable. However, com- ing a covered Federal award include munications with the intent to influ- those required by law or regulation, or ence made by a professional (such as a reasonably expected to be required by licensed lawyer) or a technical person law or regulation, and any other re- (such as a licensed accountant) are not quirements in the actual award docu- allowable under this section unless ments. they provide advice and analysis di- (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 another 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.

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(e) Persons other than officers or em- United States from seeking any other ployees of a person requesting or re- remedy that may apply to the same ceiving a covered Federal action in- conduct that is the basis for the impo- clude consultants and trade associa- sition of such civil penalty. tions. [55 FR 6737, 6748, Feb. 26, 1990, as amended at (f) Only those services expressly au- 82 FR 28763, June 26, 2017; 82 FR 48762, Oct. 20, thorized by this section are allowable 2017; 83 FR 2046, Jan. 16, 2018; 84 FR 13115, under this section. Apr. 4, 2019] Subpart D—Penalties and § 1271.405 Penalty procedures. Enforcement Agencies shall impose and collect civil penalties pursuant to the provi- § 1271.400 Penalties. sions of the Program Fraud and Civil (a) Any person who makes an expend- Remedies Act, 31 U.S.C. sections 3803 iture prohibited herein shall be subject (except subsection (c)), 3804, 3805, 3806, to a civil penalty of not less than 3807, 3808, and 3812, insofar as these pro- $20,134 and not more than $201,340 for visions are not inconsistent with the each such expenditure. requirements herein. (b) Any person who fails to file or amend the disclosure form (see appen- § 1271.410 Enforcement. dix B) to be filed or amended if re- The head of each agency shall take quired herein, shall be subject to a civil such actions as are necessary to ensure penalty of not less than $20,134 and not that the provisions herein are vigor- more than $201,340 for each such fail- ously implemented and enforced in ure. that agency. (c) A filing or amended filing on or after the date on which an administra- Subpart E—Exemptions tive action for the imposition of a civil penalty is commenced does not prevent § 1271.500 Secretary of Defense. the imposition of such civil penalty for a failure occurring before that date. An (a) The Secretary of Defense may ex- administrative action is commenced empt, on a case-by-case basis, a cov- with respect to a failure when an inves- ered Federal action from the prohibi- tigating official determines in writing tion whenever the Secretary deter- to commence an investigation of an al- mines, in writing, that such an exemp- legation of such failure. tion is in the national interest. The (d) In determining whether to impose Secretary shall transmit a copy of each a civil penalty, and the amount of any such written exemption to Congress such penalty, by reason of a violation immediately after making such a de- by any person, the agency shall con- termination. sider the nature, circumstances, ex- (b) The Department of Defense may tent, and gravity of the violation, the issue supplemental regulations to im- effect on the ability of such person to plement paragraph (a) of this section. continue in business, any prior violations by such person, the degree of cul- Subpart F—Agency Reports pability of such person, the ability of the person to pay the penalty, and such § 1271.600 Semi-annual compilation. other matters as may be appropriate. (a) The head of each agency shall col- (e) First offenders under paragraphs lect and compile the disclosure reports (a) or (b) of this section shall be subject (see appendix B) and, on May 31 and to a civil penalty of $20,134, absent ag- November 30 of each year, submit to gravating circumstances. Second and the Secretary of the Senate and the subsequent offenses by persons shall be Clerk of the House of Representatives a subject to an appropriate civil penalty report containing a compilation of the between $20,134 and $201,340, as deter- information contained in the disclo- mined by the agency head or his or her sure reports received during the six- designee. month period ending on March 31 or (f) An imposition of a civil penalty September 30, respectively, of that under this section does not prevent the year.

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(b) The report, including the com- § 1271.605 Inspector General report. pilation, shall be available for public (a) The Inspector General, or other inspection 30 days after receipt of the official as specified in paragraph (b) of report by the Secretary and the Clerk. this section, of each agency shall pre- (c) Information that involves intel- pare and submit to Congress each year, ligence matters shall be reported only commencing with submission of the to the Select Committee on Intel- President’s Budget in 1991, an evalua- ligence of the Senate, the Permanent tion of the compliance of that agency Select Committee on Intelligence of with, and the effectiveness of, the re- the House of Representatives, and the quirements herein. The evaluation may Committees on Appropriations of the include any recommended changes that Senate and the House of Representa- may be necessary to strengthen or im- tives in accordance with procedures prove the requirements. agreed to by such committees. Such in- (b) In the case of an agency that does formation shall not be available for not have an Inspector General, the public inspection. agency official comparable to an In- (d) Information that is classified spector General shall prepare and sub- under Executive Order 12356 or any suc- mit the annual report, or, if there is no cessor order shall be reported only to such comparable official, the head of the Committee on Foreign Relations of the agency shall prepare and submit the Senate and the Committee on For- the annual report. eign Affairs of the House of Represent- (c) The annual report shall be submitted at the same time the agency atives or the Committees on Armed submits its annual budget justifica- Services of the Senate and the House of tions to Congress. 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 disclosure reports received from Decem- ber 23, 1989 to March 31, 1990. (f) Major agencies, designated by the APPENDIX A TO PART 1271— Office of Management and Budget CERTIFICATION REGARDING LOBBYING (OMB), are required to provide ma- Certification for Contracts, Grants, Loans, and chine-readable compilations to the Cooperative Agreements Secretary of the Senate and the Clerk of the House of Representatives no The undersigned certifies, to the best of his or her knowledge and belief, that: later than with the compilations due (1) No Federal appropriated funds have on May 31, 1991. OMB shall provide de- been paid or will be paid, by or on behalf of tailed specifications in a memorandum the undersigned, to any person for influ- to these agencies. encing or attempting to influence an officer (g) Non-major agencies are requested or employee of an agency, a Member of Con- gress, an officer or employee of Congress, or to provide machine-readable compila- an employee of a Member of Congress in con- tions to the Secretary of the Senate nection with the awarding of any Federal and the Clerk of the House of Rep- contract, the making of any Federal grant, resentatives. the making of any Federal loan, the entering (h) Agencies shall keep the originals into of any cooperative agreement, and the of all disclosure reports in the official extension, continuation, renewal, amendment, or modification of any Federal con- files of the agency. tract, grant, loan, or cooperative agreement.

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(2) If any funds other than Federal appro- Statement for Loan Guarantees and Loan priated funds have been paid or will be paid Insurance to any person for influencing or attempting to influence an officer or employee of any The undersigned states, to the best of his agency, a Member of Congress, an officer or or her knowledge and belief, that: employee of Congress, or an employee of a If any funds have been paid or will be paid Member of Congress in connection with this to any person for influencing or attempting Federal contract, grant, loan, or cooperative to influence an officer or employee of any agreement, the undersigned shall complete agency, a Member of Congress, an officer or and submit Standard Form-LLL, ‘‘Disclosure employee of Congress, or an employee of a Form to Report Lobbying,’’ in accordance Member of Congress in connection with this with its instructions. commitment providing for the United States (3) The undersigned shall require that the to insure or guarantee a loan, the under- language of this certification be included in signed shall complete and submit Standard the award documents for all subawards at all Form-LLL, ‘‘Disclosure Form to Report Lob- tiers (including subcontracts, subgrants, and bying,’’ in accordance with its instructions. contracts under grants, loans, and cooperative agreements) and that all subrecipients Submission of this statement is a pre- shall certify and disclose accordingly. requisite for making or entering into this This certification is a material representa- transaction imposed by section 1352, title 31, tion of fact upon which reliance was placed U.S. Code. Any person who fails to file the when this transaction was made or entered required statement shall be subject to a civil into. Submission of this certification is a penalty of not less than $20,134 and not more prerequisite for making or entering into this than $201,340 for each such failure. transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the [55 FR 6737, 6748, Feb. 26, 1990, as amended at required certification shall be subject to a 82 FR 28763, June 26, 2017; 82 FR 48762, Oct. 20, civil penalty of not less than $20,134 and not 2017; 83 FR 2046, Jan. 16, 2018; 84 FR 13115, more than $201,340 for each such failure. Apr. 4, 2019]

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APPENDIX B TO PART 1271—DISCLOSURE FORM TO REPORT LOBBYING

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PART 1273 [RESERVED] 1274.510 Subcontracts. Subpart 1274.6—Reports and Records PART 1274—COOPERATIVE AGREE- MENTS WITH COMMERCIAL 1274.601 Retention and access requirements FIRMS for records. Subpart 1274.7—Suspension or Termination Subpart 1274.1—General 1274.701 Suspension or termination. Sec. 1274.101 Purpose. Subpart 1274.8—Post-Award/ 1274.102 Scope. Administrative Requirements 1274.103 Definitions. 1274.104 Effect on other issuances. 1274.801 Adjustments to performance costs. 1274.105 Review requirements. 1274.802 Modifications. 1274.106 Deviations. 1274.803 Suspension and Debarment. 1274.107 Publication of requirements. 1274.804 [Reserved]

Subpart 1274.2—Pre-Award Requirements Subpart 1274.9—Other Provisions and Special Conditions 1274.201 Purpose. 1274.202 Methods of award. 1274.901 Other provisions and special condi- 1274.203 Solicitations/Cooperative Agree- tions. ment Notices. 1274.902 Purpose. 1274.204 Costs and payments. 1274.903 Responsibilities. 1274.205 Consortia as recipients. 1274.904 Resource sharing requirements. 1274.206 Metric Conversion Act. 1274.905 Rights in data. 1274.207 Extended agreements. 1274.906 Designation of new technology rep- 1274.208 Intellectual property. resentative and patent representative. 1274.209 Evaluation and selection. 1274.907 Disputes. 1274.210 Unsolicited proposals. 1274.908 Milestone payments. 1274.211 Award procedures. 1274.909 Term of agreement. 1274.212 Award information. 1274.910 Authority. 1274.213 Distribution of cooperative agree- 1274.911 Patent rights. ments. 1274.912 Patent rights—retention by the re- 1274.214 Inquiries and release of informa- cipient (large business). tion. 1274.913 Patent rights—retention by the re- 1274.215 Federal and federally funded con- cipient (small business). struction projects. 1274.914 Requests for waiver of rights—large business. Subpart 1274.3—Administration 1274.915 Restrictions on sale or transfer of technology to foreign firms or institu- 1274.301 Delegation of administration. tions. 1274.302 Transfers, novations, and change of 1274.916 Liability and risk of loss. name agreements. 1274.917 Additional funds. 1274.303 Public access to Federal award in- 1274.918 Incremental funding. formation. 1274.919 Cost principles and accounting 1274.304 Reporting a determination that a standards. non-Federal entity is not qualified for a 1274.920 Responsibilities of the NASA Tech- Federal award. nical Officer. Subpart 1274.4—Property 1274.921 Publications and reports: non-proprietary research results. 1274.401 Government furnished property. 1274.922 Suspension or termination. 1274.402 Contractor acquired property. 1274.923 Equipment and other property. 1274.924 Civil rights. Subpart 1274.5—Procurement Standards 1274.925 Subcontracts. 1274.926 Clean Air-Water Pollution Control 1274.501 Purpose of procurement standards. Acts. 1274.502 Recipient responsibilities. 1274.927 Debarment and Suspension and 1274.503 Codes of conduct. Drug-Free Workplace. 1274.504 Competition. 1274.928 Foreign national employee inves- 1274.505 Procurement procedures. tigative requirements. 1274.506 Cost and price analysis. 1274.929 Restrictions on lobbying. 1274.507 Procurement records. 1274.930 Travel and transportation. 1274.508 Contract administration. 1274.931 Electronic funds transfer payment 1274.509 Contract provisions. methods.

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1274.932 Retention and examination of tential from marketable products ex- records. pected to result from the cooperative 1274.933 Summary of recipient reporting. agreement project. 1274.934 Safety. 1274.935 Security classification require- (b) Cooperative agreements (in areas ments. or research relevant to NASA’s mis- 1274.936 Breach of safety or security. sion) are ordinarily entered into with 1274.937 Security requirements for unclassi- commercial firms to— fied information technology resources. 1274.938 Modifications. (1) Support research and develop- 1274.939 Application of Federal, State, and ment; Local laws and regulations. (2) Provide technology transfer from 1274.940 Changes in recipient’s membership. the Government to the recipient; or 1274.941 Insurance and indemnification. (3) Develop a capability among U.S. 1274.942 Export licenses. 1274.943 Investigation of research mis- firms to potentially enhance U.S. com- conduct. petitiveness. 1274.944 Award term and condition for re- (c) Projects that normally result in a cipient integrity and performance mat- cooperative agreement award to a com- ters. mercial entity are projects that: APPENDIX TO PART 1274—LISTING OF EXHIBITS (1) Are not intended for the direct AUTHORITY: 51 U.S.C. 20113(e) and 31 U.S.C. benefit of NASA; 6301 to 6308; 51 U.S.C. 20102, et seq. (2) Are expected to benefit the gen- SOURCE: 67 FR 45790, July 10, 2002, unless eral public; otherwise noted. (3) Require substantial cost sharing; and Subpart 1274.1—General (4) Have commercial applications and profit generating potential. § 1274.101 Purpose. (d) The principal purpose of coopera- The following policy guidelines es- tive agreements is to stimulate re- tablish uniform requirements for search to benefit the general public NASA cooperative agreements awarded through the criteria stated in para- to commercial firms. graphs (a) through (c) of this section. Since all research activities must be § 1274.102 Scope. within NASA’s authorized expenditure (a) The business relationship between of appropriations, there may be in- NASA and the recipient of a coopera- stances where NASA can derive inci- tive agreement differs from the rela- dental use or benefits while preserving tionship that exists between NASA and the principal purpose of the coopera- the recipient of a grant. Under the aus- tive agreement. However, a careful bal- pices of a grant, there is very little in- ance must be established and main- volvement and interaction between tained in the cooperative agreement’s NASA and the grantee (other than a technical and business objectives, so few administrative, funding, and re- that the principal purpose of the porting requirements, or in some cases matching of funds). Under a coopera- project serves to benefit the general tive agreement, because of its substan- public (i.e., technology will transfer tial involvement, NASA assumes a from the Government to the public and higher degree of responsibility for the the commercial partner expects a mar- technical performance outcomes and ketable product to result). If a coopera- associated financial costs of research tive agreement is awarded when the activities. In some cooperative agree- proper award instrument should have ment projects, NASA may be required been a contract (because the primary to indemnify the recipient (to the ex- purpose of the award is for the direct tent authorized by Congress). While the benefit of NASA), the cooperative principal purpose of NASA’s involve- agreement award can be protested. ment and commitment of resources is Thus, before pursuing any incidental to stimulate or support research activ- benefits that materialize under a coop- ity, a major incentive for involvement erative agreement, NASA Centers by commercial firms (particularly should ensure that the advice of legal where costs are shared) is the profit po- counsel is obtained.

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§ 1274.103 Definitions. advertising the solicitation of competi- Administrator. The Administrator or tive proposals for the award of a coop- Deputy Administrator of NASA. erative agreement. Agreement officer. A Government em- Cost sharing. Arrangement whereby ployee (usually a Contracting Officer the Government and the recipient or Grant Officer) who has been dele- share the funding requirements of a gated the authority to negotiate, program or project at an agreed upon award, or administer the cooperative ratio or percentage (normally 50/50). agreement. Most often Contracting Of- Normally, the Government’s payment ficers are delegated this authority for of its share of the costs is contingent the more complex cooperative agree- upon the accomplishment of tangible ment projects. milestones (preferred method). Any Assistant Administrator for Procure- payment arrangement that is based on ment. The head of the Office of Procure- a method other than the accomplishment, NASA Headquarters (Code H). ment of tangible milestones (e.g., a re- Cash contributions. The cash invested imbursable arrangement where NASA in a given program or project by the pays a share of incurred costs, regard- Federal Government and/or recipient. less of the accomplishment of tangible The recipient’s cash contributions may milestones) must be approved through include money contributed by third the deviation process discussed in parties. 1274.106. Closeout. The process by which NASA Date of completion. The date on which determines that all applicable adminis- all work under an award is completed trative actions and all required work of or the date on the award document, or the award have been completed by the any supplement or amendment thereto, recipient and NASA. on which NASA sponsorship ends. Commercial item. The definition in Days. Calendar days, unless other- FAR 2.101 is applicable. wise indicated. Consortium. A consortium is a group General purpose equipment. Equipment of organizations that enter into an which is usable for other than research, agreement to collaborate for the pur- medical, scientific, or technical activi- poses of the cooperative agreement ties, whether or not special modifica- with NASA. The agreement to collabo- tions are needed to make them suitable rate can take the form of a legal entity for a particular purpose. Examples of such as a partnership or joint venture general purpose equipment include of- but it is not necessary that such an en- fice equipment and furnishings, air tity be created. A consortium may be conditioning equipment, reproduction made up of firms that normally com- and printing equipment, motor vehi- pete for commercial or Government cles, and automatic data processing business or may be made up of firms equipment. that perform complementary functions Government furnished equipment. in a given industry. Equipment in the possession of, or ac- Cooperative agreement. As defined by quired directly by, the Government and 31 U.S.C. 6305, cooperative agreements subsequently delivered, or otherwise are financial assistance instruments made available, to a recipient and used to stimulate or support activities equipment procured by the recipient for authorized purposes and in which with Government funds under a cooper- the Government participates substan- ative agreement. In most cases, Gov- tially in the performance of the effort. ernment furnished equipment will be This Part 1274 covers only cooperative counted as part of the Government’s agreements with commercial firms in-kind or non-cash contributions to where resource sharing is involved. Co- the cooperative agreement for the pur- operative agreements with other types pose of determining the share ratio. of organizations are covered by 14 CFR Incremental funding. A method of Part 1260. funding a cooperative agreement where Cooperative agreement notice (CAN). the funds initially allotted to the coop- Publication on Federal Business Oppor- erative agreement are less than the tunities (FedBizOpps) or NASA Acqui- award amount. Additional funding is sition Internet Service (NAIS) websites added as described in § 1274.918.

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Non-cash or in-kind contributions. May agreement. A Contracting Officer’s be in the form of personnel resources Technical Representative may serve as (where cost accounting methods allow a Technical Officer. accumulation of such costs), real prop- Termination. The cancellation of a co- erty, equipment, supplies and other ex- operative agreement in whole or in pendable property, and the value of part, by either party at any time prior goods and services directly benefiting to the date of completion. and specifically identifiable to the [67 FR 45790, July 10, 2002, as amended at 70 project or program. Costs incurred by FR 28809, May 19, 2005] NASA to provide the services of one of its support contractors to perform part § 1274.104 Effect on other issuances. of NASA’s requirements under a coop- For awards subject to this part, all erative agreement shall be included as administrative requirements of codi- part of NASA’s cost share, and will be fied program regulations, program counted as an in-kind contribution to manuals, handbooks and other non-reg- the cooperative agreement. ulatory materials which are incon- Recipient. An organization receiving sistent with the requirements of this financial assistance under a coopera- part shall be superseded, except to the tive agreement to carry out a project extent they are required by statute, or or program. A recipient may be an in- authorized in accordance with the devi- dividual firm, including sole propri- ations provision in § 1274.106. etor, partnership, corporation, or a consortium of business entities. § 1274.105 Review requirements. Research misconduct is defined in 14 (a) Once the decision is made by a CFR 1275.101. NASA policies and proce- Headquarters program office or Center dures regarding Research misconduct procurement personnel, to pursue the are set out in 14 CFR part 1275, ‘‘Inves- Cooperative Agreement Notice (CAN) tigation of Research Misconduct.’’ process, for which the total NASA re- Resource contributions. The total sources to be expended equal or exceed value of resources provided by either $10 million (cash plus non-cash con- party to the cooperative agreement in- tributions), a notification shall imme- cluding both cash and non-cash con- diately be provided to the Assistant tributions. Administrator for Procurement (Code Subcontracting dollar threshold. The HS). The notification(s) shall be for- dollar amount of the cooperative warded by the cognizant Headquarters agreement subject to the small busi- program office or the Center procure- ness subcontracting policies (includes ment office (as applicable). For any small business, veteran-owned small CAN where NASA’s cash contributions business, service-disabled veteran- are expected to equal or exceed $10 mil- owned small business, historically un- lion, Headquarters program office or derutilized small business, small dis- Center procurement personnel shall advantaged business, women-owned also notify the Assistant Adminis- business concerns, Historically Black trator for Small and Disadvantaged Colleges and Universities, and minority Business Utilization (Code K). All such educational institutions). For coopera- notifications, as described in paragraph tive agreements, the dollar threshold (b) of this section, shall evidence con- to which the small business subcon- currence by the cognizant Center Pro- tracting policies apply, is established curement Officer. These review re- by the total amount of NASA’s cash quirements also apply where an unso- contributions. licited proposal is received from a com- Suspension. An action by NASA or mercial firm (or from a team of recipi- the recipient that temporarily discon- ents where one of more team members tinues efforts under an award, pending is a commercial firm), and the planned corrective action or pending a decision award document is a cooperative agree- to terminate the award. ment. Technical officer. The official of the (b) The notification shall be accom- cognizant NASA office who is respon- plished by sending an electronic mail sible for monitoring the technical as- (e-mail) message to the following ad- pects of the work under a cooperative dress at NASA Headquarters:

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[email protected]. The notification must (e.g., cost sharing percentage; type of include the following information, as a contribution (cash, labor, etc.)). minimum— (4) Whether Code HS will require re- (1) Identification of the cognizant view and approval of the resulting co- Center and program office; operative agreement(s). (2) Description of the proposed pro- (d) If a response from Code HS is not gram for which proposals are to be so- received within 5 working days of noti- licited; fication, the program office or Center (3) Rationale for decision to use a may proceed with release of the CAN CAN rather than other types of solici- and award of the cooperative agree- tations; ments as described. (4) The amount of Government fund- (e) Before issuance, each field-gen- ing to be available for award(s); erated CAN shall be approved by the (5) Estimate of the number of cooper- installation director or designee, with ative agreements to be awarded as a re- the concurrence of the procurement of- sult of the CAN; ficer. Each Headquarters generated (6) The percentage of cost-sharing to CAN shall be approved by the cog- be required; nizant Program Associate Adminis- (7) Tentative schedule for release of trator or designee, with concurrence of CAN and award of cooperative agree- the Headquarters Offices of General ments; Counsel (Code GK), External Relations (8) If the term of the cooperative (Code I), Safety & Mission Assurance agreement is anticipated to exceed 3 (Code Q), and Procurement (Code HS). years and/or if the Government cash contribution is expected to exceed § 1274.106 Deviations. $20M, address anticipated changes, if any, to the provisions (see § 1274.207); (a) The Assistant Administrator for and Procurement may grant exceptions for (9) If the cooperative agreement is classes of, or individual cooperative for programs/projects that provide agreements and deviations from the re- aerospace products or capabilities, quirements of this Regulation when ex- (e.g., provision of space and aero- ceptions are not prohibited by statute. nautics systems, flight and ground sys- (b) A deviation is required for any of tems, technologies and operations), a the following: statement that the requirements of (1) When a prescribed provision set NASA Policy Directive (NPD) 7120.4 forth in this regulation for use ver- and NASA Policy Guidance (NPG) batim is modified or omitted. 7120.5 have been met. This affirmative (2) When a provision is set forth in statement will include a specific ref- this regulation, but not prescribed for erence to the signed Program Commit- use verbatim, and the installation sub- ment Agreement. stitutes a provision which is incon- (c) Code HS will respond by e-mail sistent with the intent, principle, and message to the sender, with a copy of substance of the prescribed provision. the message to the Procurement Offi- (3) When a NASA form or other form cer and the Office of Small and Dis- advantaged Business Utilization, with- is prescribed by this regulation, and in five (5) working days of receipt of that form is altered or another form is this initial notification. The response used in its place. will address the following: (4) When limitations, imposed by this (1) Whether Code HS agrees or dis- regulation upon the use of a provision, agrees with the appropriateness for form, procedure, or any other action, using a CAN for the effort described, are not adhered to. (2) Whether Code HS will require re- (c) Requests for authority to deviate view and approval of the CAN before its from this regulation will be forwarded issuance, to Headquarters, Program Operations (3) Whether Code HS will require re- Division (Code HS). Such requests, view and approval of the selected signed by the Procurement Officer, offeror’s cost sharing arrangement shall contain as a minimum—

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(1) A full description of the deviation sources committed to the Cooperative and identification of the regulatory re- Agreement (cash and quantifiable in- quirement from which a deviation is kind contributions). sought; (2) Detailed rationale for the request, § 1274.203 Solicitations/cooperative including any pertinent background in- agreement notices. formation; (a) Agreement officers should use (3) The name of the recipient and every effort to issue draft pre-award identification of the cooperative agree- cooperative agreement information. ment affected, including the dollar Any draft documentation released for value. comment shall contain all factors/sub- (4) A statement as to whether the de- factors. Draft documents should be as viation has been re quested previously, close to the final product as possible. and, if so, circumstances of the pre- Draft Cooperative Agreement Notices vious request(s); and (CAN’s) or Cooperative Agreements (5) A copy of legal counsel’s concur- (CA) should include terms and condi- rence or comments. tions, special requirements and expected cash and non-cash (in-kind) con- § 1274.107 Publication of require- tributions. ments. (1) Publication of draft documenta- Cooperative agreements may result tion may serve to prevent unnecessary from recipient proposals submitted in expenditure of resources and unproduc- response to the publication of a NASA tive time that may be spent by NASA Research Announcement (NRA), a Co- and potential recipients. Release of operative Agreement Notice (CAN), or draft documentation also serves to as- other Broad Agency Announcement sist NASA in refining program objec- (BAA). BAAs, NRAs and CANs are nor- tives and requirements, and maximizes mally promulgated through publicly the quality of research proposals sub- accessible Government-wide announce- mitted for formal evaluation and ments such as those published under source selection. the Federal Business Opportunities (2) During the information gathering (FedBizOpps), and/or the NASA Acqui- process, comments may be invited sition Internet Service (NAIS). Prior to from potential recipients on all aspects publicizing the CAN, see § 1274.105. of the draft documentation, including the requirements, schedules, proposal Subpart 1274.2—Pre-Award instructions and evaluation ap- Requirements proaches. Potential recipients should be specifically requested to identify § 1274.201 Purpose. unnecessary or inefficient require- This subpart provides pre-award ments. Comments should also be re- guidance, prescribes forms and instruc- quested on any perceived safety, occu- tions, and addresses other pre-award pational health, security (including in- matters. formation technology security), environmental, export control, and/or other § 1274.202 Methods of award. programmatic risk issues associated (a) Competitive agreements. Consistent with performance of the CA. with 31 U.S.C. 6301(3), NASA uses com- (3) Agreement officers should include petitive procedures to award coopera- in the award schedule adequate time tive agreements whenever possible. for the process to include industry re- (b) Awards using other than competitive view and comments, and NASA’s eval- procedures. Solicitations for award of a uation and disposition of comments re- Cooperative Agreement shall not be ceived. issued to, nor negotiations conducted (4) When providing draft documents with a single source unless— for comment, the draft CAN shall ad- (1) Use of such actions is documented vise interested parties that any issued in writing; and draft documentation shall not be con- (2) Concurrence and approvals are ob- sidered as a solicitation for award, and tained. The dollar thresholds will be that NASA is not requesting proposals determined by the total value of the re- in response to the draft publication.

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(5) Whenever feasible, agreement offi- kind resources requested, shall be cers should include a summary of the added to NASA’s shared cost of per- disposition of significant comments forming the cooperative agreement, when issuing the final CAN and/or CA. and may require increased cash or in- (b) The evaluation section of the CAN kind contributions from the recipient shall notify potential recipients of the to meet its percentage of the cost relative importance of factors, and any share. subfactors or other criteria that will be (f) To protect the integrity of the evaluated during the selection process. competitive process, upon release of (c) For its research projects, NASA the formal CAN the agreement officer may publish the expected project goals shall direct that all personnel associ- and objectives in terms of ‘‘What’’ the ated with the source selection refrain commercial recipient is expected to accomplish. The commercial recipient from communicating with prospective may be required to submit a proposed recipients and to refer all inquiries to statement of work with its proposal the agreement officer or other author- stating ‘‘How’’ the recipient will ac- ized representative. The notification to complish the task(s). Depending on its potential recipients may be sent in any importance to the success of the format (e.g., letter or electronic) ap- project, for some projects the recipi- propriate to the complexity of the ac- ent’s statement of work may be in- quisition. It is not intended that all cluded as an evaluation criterion for communication with potential recipi- award. In these instances, the require- ents be terminated. Agreement officers ment for submission of the recipient’s should continue to provide information statement of work will be clearly iden- as long as it does not create an unfair tified as a subfactor or criterion that competitive advantage or reveal pro- will be evaluated, and its relative prietary data. weight or ranking in relation to other (g) If NASA anticipates that the evaluation criteria shall be stated. In total Federal share of any award made all cases, where the recipient submits a under a funding agreement may exceed, statement of work in response to over the period of performance, the NASA project objectives, NASA shall simplified acquisition threshold, the have final approval of the acceptability notice of funding opportunity must in- of the statement of work. clude the information as required in (d) Where performance-based mile- Appendix 1 to Part 200, paragraph E.3, stone payments are planned, the potential recipient should be encouraged to paragraph E.4, and paragraph F.3. suggest in its statement of work [67 FR 45790, July 10, 2002, as amended at 81 (which incorporates the project goals FR 35584, June 3, 2016] and objectives), or elsewhere in its proposal, terms and/or performance events § 1274.204 Costs and payments. upon which milestone payments can be (a) Cost allowability. (1) Cooperative negotiated. agreements awarded to commercial (e) The CAN should provide a descrip- firms are subject to the cost account- tion and value for any quantifiable ing standards and principles of 48 CFR non-cash or in-kind Government re- Chapter 99, as implemented by FAR sources (personnel, equipment, facili- Parts 30 and 31. ties, etc.), in addition to any cash funds that will be offered by the Gov- (2) If the recipient is a consortium ernment as part of its contributions to which includes non-commercial enti- the cooperative agreement. As part of ties as members, cost allowability for its proposal package, the recipient may those members will be determined as also identify additional non-cash or in- follows: kind resources it wishes NASA to con- (i) Allowability of costs incurred by tribute. The recipient shall verify the state, local or federally-recognized In- suitability of the requested resource(s) dian tribal governments is determined to the work to be performed under the in accordance with the provisions of cooperative agreement. Any additional OMB Circular A–87, ‘‘Cost Principles verifiable and suitable non-cash or infor State and Local Governments.’’

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(ii) The allowability of costs incurred tifiable amounts to determine the equi- by non-profit organizations is deter- table dollar amounts of costs to be mined in accordance with the provi- shared. sions of OMB Circular A–122, ‘‘Cost (3) As is expected from the commer- Principles for Non-Profit Organiza- cial partner, the Government’s cost tions.’’ share should reflect certain non-cash (iii) The allowability of costs in- as well as cash contributions to the curred by institutions of higher edu- most practicable extent possible. cation is determined in accordance Where quantifiable, NASA will include with the provisions of OMB Circular A– in the calculation of the Government’s 21, ‘‘Cost Principles for Educational cost share, non-cash or in-kind con- nstitutions.’’ tributions, which includes the value of (iv) The allowability of costs in- equipment, personnel, and facilities. curred by hospitals is determined in ac- Costs incurred by NASA to provide the cordance with the provisions of Appen- services of one or more support con- dix E of 45 CFR part 74, ‘‘Principles for tractors to perform part of NASA’s re- Determining Costs Applicable to Re- quirements under a cooperative agree- search and Development Under Grants ment will be counted as part of NASA’s and Contracts with Hospitals.’’ in-kind contributions. This approach is (3) A recipient’s method for account- also supported by the initiative to im- ing for the expenditure of funds must plement full cost accounting methods be consistent with generally accepted within the Federal Government. accounting principles. (4) When other Government agencies (b) Cost sharing. (1) Given the mutu- act as partners along with NASA (e.g., ally beneficial nature of, in particular, Department of Defense or Federal potential commercially marketable Aviation Administration), the re- products expected to result from the sources contributed by any Govern- research activities of the cooperative ment agency shall be counted as part agreement, resource contributions are of the Government’s total cost share required from the recipient. The com- under the cooperative agreement. mercial recipient is expected to con- (5) For every cooperative agreement, tribute at least 50 percent of the total there should be evidence of the recipi- resources necessary to accomplish the ent’s strong commitment and self-in- cooperative agreement effort. Recipi- terest in the success of the research ent contributions may be cash, non- project. A very strong indicator of a re- cash (in-kind) or both. Acceptable non- cipient’s self-interest is the willingness cash or in-kind resources include such to commit to a meaningful level of cost items as equipment, facilities, labor, sharing (i.e., 50 percent). Before consid- office space, etc. In determining the in- ering whether it is impracticable for centive to the recipient to share costs, the recipient to share at least 50% of agreement officers must consider a va- the performance costs, agreement offi- riety of factors. For example, while the cers should also consider whether other future profitability of intellectual factors exist that demonstrate the re- property may serve as an incentive for cipient’s financial stake or self-inter- involvement of the commercial firm in est in the success of the cooperative the cooperative agreement, the actual agreement. or imputed value of such items as pat- (6) In cases where a contribution of ent rights, data rights, trade secrets, less than 50 percent is anticipated from etc., included in intellectual property the commercial recipient, approval of is generally not considered a reliable the Assistant Administrator for Pro- source for computation of the recipi- curement (Code HS) is required prior to ent’s contributions. award. The request for approval should (2) In most cases these costs are not address the evaluation factor in the so- readily quantifiable. Thus, although licitation and how the proposal accom- the value of intellectual property plishes those objectives to such a de- rights should be factored into the in- gree that a share ratio of less than 50 centive for the recipient to share at percent is warranted. least 50 percent of costs, intellectual (7) Once accepted for application to property rights do not serve as quan- costs shared under the cooperative

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agreement, cash and in-kind contribu- benchmarks. The milestone must rep- tions including Independent Research resent the accomplishment of and Development (IR&D) costs, may verifiable, significant event(s) and may not be included as contributions for not be based upon the mere passage of any other federally assisted project or time or the performance of a particular program. level of effort. The Government tech- (c) Fixed funding. (1) Cooperative nical officer must verify to and advise agreements are funded by NASA the agreement officer that each mile- through the disbursement of agreed stone has been achieved prior to au- upon fixed payment amounts to the re- thorizing the corresponding payment. cipient. NASA makes disbursement of (3) The amount of funds to be dis- funds to the recipient as ‘‘Milestone bursed by NASA in recognition of the payments’’ discussed in paragraph (d) achievement of milestones (‘‘milestone of this section. If the recipient payments’’) shall be established con- achieves the final milestone, final pay- sistent with the ratio of resource shar- ment is made, which completes NASA’s ing agreed upon under the cooperative financial responsibilities under the agreement (see paragraph (e)(2) of this agreement. section). While the schedule for mile- (2) Fixed payments on a cooperative stone achievement must reflect the agreement are made by NASA based on project being undertaken, the fre- the accomplishment by the recipient of quency should not be greater than one predetermined tangible milestones. payment per month. For many Any arrangement where payments are projects, scheduling milestones to be made on a basis other than accom- accomplished about every 60 to 90 days plished tangible milestones must be ap- appears to be most workable. Partial proved in accordance with the require- or interim milestone payments may ments of § 1274.106 Deviations. not be made. (3) If the cooperative agreement is (4) The final milestone payment terminated prior to achievement of all should be structured so that the associ- milestones, NASA’s funding is limited ated payment is large enough to pro- to milestone payments already made vide incentive to the recipient to com- plus NASA’s share of costs incurred to plete its responsibilities under the co- meet commitments of the recipient, operative agreement. Alternatively, which had in the judgment of NASA be- funds may be reserved for disbursement come firm prior to the effective date of after completion of the effort. termination. In no event, however, (e) Incremental funding. Whenever the shall the amount of NASA’s share of period of performance for the coopera- these additional costs exceed the tive agreement crosses fiscal years, the amount of the next scheduled mile- agreement shall be incrementally fund- stone payment. ed using appropriations from different (d) Milestone obligations and payments. fiscal years. In other circumstances, Agreement officers, technical officers, incremental funding may be appro- accounting and finance officials, and priate. The total amount of funds obli- all other responsible NASA personnel gated during the course of a fiscal year shall ensure that funds for milestone must be sufficient to cover the Govern- payments are obligated, billed and ex- ment’s share of the costs anticipated to pended in accordance with the guid- be incurred by the recipient during ance set forth by the NASA Financial that fiscal year. NASA may allot funds Management Manual (FMM 9000). to an agreement at various times dur- (1) There must always be sufficient ing a fiscal year in anticipation of the funds obligated to cover the next mile- occurrence of costs. However, there stone payment. In addition, funds must must always be sufficient funds obli- be made available (but not necessarily gated to cover all milestone payments obligated) to cover all milestone pay- expected to be made during the current ments expected to be made during the fiscal year. current fiscal year of performance. (f) Profit applicability. Recipients (2) Disbursement of funds to the re- shall not be paid a profit under cooper- cipient is based on the achievement of ative agreements. Profit may be paid milestones or performance-related by the recipient to subcontractors, if

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the subcontractor is not part of the of- costs (e.g., the 50 percent recipient’s fering team and the subcontract is an cost share or other costs of perform- arms-length relationship. All entities ance). that are involved in performing the re- (b) NASA enters into an agreement search and development effort that is with only one entity (as identified by the purpose of the cooperative agree- the consortium members). (Also see ment shall be part of the recipient’s § 1274.940.) The inclusion of non-profit consortium and not subcontractors. or educational institutions, small busi- (g) Independent Research and Develop- nesses, or small disadvantaged busi- ment (IR&D) costs. When determining nesses in the consortium could be par- the applicable dollar amounts or rea- ticularly valuable in ensuring that the sonableness of proposed IR&D costs to results of the consortium’s activities be included as part of the recipient’s are disseminated. cost share, agreement officers should (c) Key to the success of the coopera- seek assistance from DCAA or the cog- tive agreement with a consortium is nizant audit agency. the consortium’s Articles of Collabora- (1) In accordance with FAR 31.205– tion, which is a definitive description 18(e), IR&D costs may include costs of the roles and responsibilities of the contributed by contractors in per- consortium’s members. The Articles of forming cooperative research and de- Collaboration must designate a lead velopment agreements or similar ar- firm to represent the consortium and rangements, entered into under sec- authority to sign on the consortium’s tions 203(c)(5) and (6) of the National behalf. It should also address to the ex- Aeronautics and Space Act of 1958, as tent appropriate— amended (42 U.S.C. 2473(c)(5) and (6)). (1) Commitments of financial, per- IR&D costs incurred by a contractor sonnel, facilities and other resources; pursuant to these types of cooperative (2) A detailed milestone chart of con- agreements should be considered as al- sortium activities; lowable IR&D costs if the work per- (3) Accounting requirements; formed would have been allowed as (4) Subcontracting procedures; contractor IR&D had there been no co- (5) Disputes; operative arrangement. (6) Term of the agreement; (2) IR&D costs (or an agreed upon (7) Insurance and liability issues; portion of IR&D costs) incurred by the (8) Internal and external reporting recipient’s organization and deemed by requirements; NASA as the same type of research (9) Management structure of the con- being undertaken by the cooperative sortium; agreement between NASA and the re- (10) Obligations of organizations cipient may serve as part of the recipi- withdrawing from the consortia; ent’s contribution of shared costs (11) Allocation of data and patent under the cooperative agreement. rights among the consortia members When considering the use of IR&D (12) Agreements, if any, to share ex- costs as part of the recipient’s cost isting technology and data; share, the IR&D costs offered by the re- (13) The firm that is responsible for cipient shall meet the requirements of the completion of the consortium’s re- FAR 31.205–18. Any IR&D costs in- sponsibilities under the cooperative curred in a prior period, and offered as agreement and has the authority to part of the recipient’s cost share shall commit the consortium and receive meet the criteria established by FAR payments from NASA, and address em- 31.205–18(d), Deferred IR&D Costs. ployee policy or other personnel issues. (d) The consortium’s charter or by- § 1274.205 Consortia as recipients. laws may be substituted for the Arti- (a) The use of consortia as recipients cles of Collaboration only if they are for cooperative agreements is encour- inclusive of all of the required informa- aged. Such arrangements tend to bring tion. a broader range of capabilities and re- (e) An outline of the Articles of Col- sources to the cooperative agreement. laboration should be required as part of In addition, consortium members can the proposal and evaluated during the better share the projects financial source selection process. Articles of

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Collaboration do not become part of validating performance and accounting the resulting cooperative agreement. for funds expended.

§ 1274.206 Metric Conversion Act. [67 FR 45790, July 10, 2002, as amended at 68 FR 14535, Mar. 26, 2003] The Metric Conversion Act, as amended by the Omnibus Trade and § 1274.208 Intellectual property. Competitiveness Act (15 U.S.C. 205) de- (a) Intellectual property rights. A coop- clares that the metric system is the erative agreement covers the disposi- preferred measurement system for U.S. tion of rights to intellectual property trade and commerce. NASA’s policy between NASA and the recipient. If the with respect to the metric measure- recipient is a consortium or partner- ment system is stated in NPD 8010.2, ship, rights flowing between multiple Use of the Metric System of Measure- organizations in a consortium must be ment in NASA Programs. negotiated separately and formally documented, preferably in the Articles § 1274.207 Extended agreements. of Collaboration. (a) Multiple year cooperative agree- (b) Rights in patents. Patent rights ments are encouraged, but normally clauses are required by statute and regulation. The clauses exist for recipients they should span no more than three of the agreement whether they are— years. (1) Other than small business or non- (b) Cooperative agreements that will profit organizations (generally referred exceed $5 million and have a period of to as large businesses) or performance in excess of 5 years shall (2) Small businesses or nonprofit or- require the approval of the Assistant ganizations. Administrator for Procurement prior (c) Inventions. There are five situa- to award. Requests for approval shall tions in which inventions may arise include a justification for exceeding 5 under a cooperative agreement— years and evidence that the extended (1) Recipient Inventions; years can be reasonably priced. Re- (2) Subcontractor Inventions; quests for approval are not required (3) NASA Inventions; when the 5-year limitation is exceeded (4) NASA Support Contractor Inven- due to a no cost extension. tions; and (c) Cooperative agreement renewals (5) Joint Inventions with Recipient. provide for the continuation of re- (d) Recipient inventions. (1) A recipi- search beyond the original scope, pe- ent, if a large business, is subject to riod of performance and funding levels; section 305 of the National Aeronautics therefore, new proposals, certifi- and Space Act of 1958 (42 U.S.C. 2457) cations, and technical evaluations are relating to property rights in inven- required prior to the execution of a co- tions. The term ‘‘invention’’ includes operative agreement renewal. Renew- any invention, discovery, improve- als will be awarded as new cooperative ment, or innovation. Title to an inven- agreements. Continued performance tion made under a cooperative agree- within a period specified under a mul- ment by a large business recipient ini- tiple year cooperative agreement pro- tially vests with NASA. The recipient vision does not constitute a renewal. may request a waiver under the NASA (d) The provisions set forth in Patent Waiver Regulations to obtain title to inventions made under the § 1274.901 are generally considered ap- agreement. Such a request may be propriate for agreements not exceeding made in advance of the agreement (or 3 years and/or a Government cash con- 30 days thereafter) for all inventions tribution not exceeding $20M. For coop- made under the agreement. Alter- erative agreements expected to be natively, requests may be made on a longer than 3 years and/or involve Gov- case-by-case basis any time an indi- ernment cash contributions exceeding vidual invention is made. Such waivers $20M, consideration should be given to are liberally and expeditiously granted provisions which place additional re- after review by NASA’s Invention and strictions on the recipient in terms of Contribution Board and approval by

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NASA’s General Counsel. When a waiv- Rights in Inventions Made With Fed- er is granted, any inventions made in eral Assistance,’’ apply. The subcon- the performance of work under the tractor has the first option to elect agreement are subject to certain re- title to any inventions made in the per- porting, election and filing require- formance of work under the agreement, ments, a royalty-free license to the subject to specific reporting, election Government, march-in rights, and cer- and filing requirements, a royalty-free tain other reservations. license to the Government, march-in (2) A recipient, if a small business or rights, and certain other reservations nonprofit organization, may elect to that are specifically set forth. retain title to its inventions. The term (3) Work outside the United States. If ‘‘nonprofit organization’’ is defined in the recipient subcontracts for work to 35 U.S.C. 201(i) and includes univer- be done outside the United States, its sities and other institutions of higher possessions or Puerto Rico, the NASA education or an organization of the installation Patent Counsel or Intellec- type described in section 501(c)(3) of tual Property Counsel should be con- the Internal Revenue Code. The Gov- tacted for the proper patent rights ernment obtains an irrevocable, non- clause to use and the procedures to fol- exclusive, royalty-free license. low. (e) Subcontractor inventions—(1) Large (4) Notwithstanding paragraphs business. If a recipient enters into a (e)(1), (2), and (3) of this section, and in subcontract (or similar arrangement) recognition of the recipient’s substan- with a large business organization for tial contribution, the recipient is au- experimental, developmental, research, thorized, subject to rights of NASA set design or engineering work in support forth elsewhere in the agreement, to: of the agreement to be performed in (i) Acquire by negotiation and mu- the United States, its possessions, or tual agreement rights to a subcontrac- Puerto Rico, section 305 of the Space tor’s subject inventions as the recipi- Act applies. The clause applicable to ent may deem necessary; or large business organizations is to be used (suitably modified to identify the (ii) If unable to reach agreement pur- parties) in any subcontract. The sub- suant to paragraph (e)(4)(i) of this sec- contractor may request a waiver under tion, request that NASA invoke excep- the NASA Patent Waiver Regulations tional circumstances as necessary pur- to obtain rights to inventions made suant to 37 CFR 401.3(a)(2) if the pro- under the subcontract just as a large spective subcontractor is a small busi- business recipient can (see paragraph ness firm or nonprofit organization, or (d)(1) of this section). It is strongly rec- for all other organizations, request ommended that a prospective large that such rights for the recipient be in- business subcontractor contact the cluded as an additional reservation in a NASA installation Patent Counsel or waiver granted pursuant to 14 CFR Intellectual Property Counsel to assure 1245.1. The exercise of this exception that the right procedures are followed. does not change the flow down of the Just like the recipient, any inventions applicable patent rights clause to sub- made in the performance of work under contractors. Applicable laws and regu- the agreement are subject to certain lations require that title to inventions reporting, election and filing require- made under a subcontract must ini- ments, a royalty-free license to the tially reside in either the subcon- Government, march-in rights, and cer- tractor or NASA, not the recipient. tain other reservations. This exception does not change that. (2) Non-profit organization or small The exception does authorize the re- business. In the event the recipient en- cipient to negotiate and reach mutual ters into a subcontract (or similar ar- agreement with the subcontractor for rangement) with a domestic nonprofit the grant-back of rights. Such grant- organization or a small business firm back could be an option for an exclu- for experimental, developmental, or re- sive license or an assignment, depend- search work to be performed under the ing on the circumstances. agreement, the requirements of 35 (f) NASA inventions. NASA will use U.S.C. 200 et seq. regarding ‘‘Patent reasonable efforts to report inventions

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made by its employees as a con- interest. For small business firms and sequence of, or which bear a direct re- nonprofit organizations, the Associate lation to, the performance of specified General Counsel (Intellectual Prop- NASA activities under an agreement. erty) may agree to assign or transfer Upon timely request, NASA will use its whatever rights NASA may acquire in best efforts to a grant recipient first a subject invention from its employee option to acquire either an exclusive or to the recipient as authorized by 35 partially-exclusive, revocable, royalty- U.S.C. 202(e). The agreement officer ne- bearing license, on terms to be nego- gotiating the agreement with small tiated, for any patent applications and business firms and nonprofit organiza- patents covering such inventions. This tions can agree, up front, that NASA exclusive or partially-exclusive license will assign whatever rights it may ac- to the recipient will be subject to the quire in a subject invention from its retention of rights by or on behalf of the Government for Government pur- employee to the small business firm or poses. nonprofit organization. Requests under (g) NASA support contractor inventions. this paragraph shall be made through It is preferred that NASA support con- the Center Patent Counsel. tractors be excluded from performing (2) NASA support contractors may be any of NASA’s responsibilities under joint inventors. If a NASA support con- an agreement since the rights obtained tractor employee is a joint inventor by a NASA support contractor could with a NASA employee, the same pro- work against the rights needed by the visions apply as those for NASA sup- recipient. In the event NASA support port contractor inventions (see para- contractors are tasked by NASA to graph (g) of this section). The NASA work under the agreement and inven- support contractor will retain or ob- tions are made by support contractor tain nonexclusive licenses to those in- employees, the support contractor will ventions in which NASA obtains title. normally retain title to its employee If a NASA support contractor employee inventions in accordance with 35 U.S.C. is a joint inventor with a recipient em- 202, 14 CFR part 1245, and E.O. 12591. In ployee, the NASA support contractor the event the recipient decides not to and recipient will become joint owners pursue right to title in any such inven- of those inventions in which they have tion and NASA obtains title to such in- elected to retain title or requested and ventions, upon timely request, NASA have been granted waiver of title. will use its best efforts to grant the re- Where the NASA support contractor cipient first option to acquire either an exclusive or partially exclusive, rev- has not elected to retain title or has ocable, royalty-bearing license, upon not been granted waiver of title, NASA terms to be negotiated, for any patent will jointly own the invention with the applications and patents covering such Recipient. inventions. This exclusive or partially- (i) Licenses to recipient(s). (1) Any ex- exclusive license to the recipient will clusive or partially exclusive commer- be subject to the retention of rights by cial licenses are to be royalty-bearing or on behalf of the Government for consistent with Government-wide pol- Government purposes. icy in licensing its inventions. It also (h) Joint inventions. (1) NASA and the provides an opportunity for royalty- recipient agree to use reasonable ef- sharing with the employee-inventor, forts to identify and report to each consistent with Government-wide pol- other any inventions made jointly be- icy under the Federal Technology tween NASA employees (or employees Transfer Act. of NASA support contractors) and em- (2) Upon application in compliance ployees of Recipient. For large busi- with 37 CFR Part 404—Licensing of nesses, the Associate General Counsel Government Owned Inventions, all re- (Intellectual Property) may agree that cipients shall be granted a revocable, the United States will refrain, for a nonexclusive, royalty-free license in specified period, from exercising its un- each patent application filed in any divided interest in a manner inconsistent with the recipient’s commercial country on a subject invention and any

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resulting patent in which the Govern- tially in the United States, may be ment obtains title. Because coopera- waived by the Assistant Administrator tive agreements are cost sharing coop- for Procurement (Code HS) upon a erative arrangements with a purpose of showing by the recipient that under benefiting the public by improving the the circumstances domestic manufac- competitiveness of the recipient and ture is not commercially feasible. the Government receives an irrev- (k) Space Act agreements. Invention ocable, nonexclusive, royalty-free li- and patent rights in cooperative agree- cense in each recipient subject inven- ments must comply with statutory and tion, it is only equitable that the re- regulatory provisions. Where cir- cipient receive, at a minimum, a rev- cumstances permit, a Space Act Agree- ocable, nonexclusive, royalty-free li- ment is available as an alternative in- cense in NASA inventions and NASA strument which can be more flexible in contractor inventions where NASA has the area of invention and patent rights. acquired title. (l) Data rights. Data rights provisions (3) Once a recipient has exercised its can and should be tailored to best option to apply for an exclusive or par- achieve the needs and objectives of the tially exclusive license, a notice, iden- respective parties concerned. tifying the invention and the recipient, (1) The data rights clause at § 1274.905 is published in the FEDERAL REGISTER, assumes a substantially equal cost providing the public opportunity for sharing relationship where collabo- filing written objections for 60 days. rative research, experimental, develop- (j) Preference for United States manu- mental, engineering, demonstration, or facture. Despite any other provision, design activities are to be carried out, the recipient agrees that any products such that it is likely that ‘‘propri- embodying subject inventions or pro- etary’’ information will be developed duced through the use of subject inven- and/or exchanged under the agreement. tions shall be manufactured substan- If cost sharing is unequal or no exten- tially in the United States. ‘‘Manufac- sive research, experimental, develop- tured substantially in the United mental, engineering, demonstration, or States’’ means the product must have design activities are likely, a different over 50 percent of its components man- set of clauses may be appropriate. ufactured in the United States. This re- (2) The primary question that must quirement is met if the cost to the re- be answered when developing data cipient of the components mined, pro- clauses is what does each party need or duced, or manufactured in the United intend to do with the data developed States exceeds 50 percent of the cost of under the agreement. Accordingly, the all components required to make the data rights clauses may be tailored to product. In making this determination, fit the circumstances. Where con- only the product and its components flicting goals of the parties result in shall be considered. The cost of each incompatible data provisions, agree- component includes transportation ment officers for the Government must costs to the place of incorporation into recognize that private companies en- the product and any applicable duty tering into cooperative agreements whether or not a duty-free entry cer- bring resources to that relationship tificate is issued. Components of for- and must be allowed to reap an appro- eign origin of the same class or kind priate benefit for the expenditure of for which determinations have been those resources. However, since serving made in accordance with FAR 25.101(a) a public purpose is a major objective of are treated as domestic. Scrap gen- a cooperative agreement, care must be erated, collected, and prepared for exercised to ensure the recipient is not processing in the United States is con- established as a long term sole source sidered domestic. The intent of this supplier of an item or service and is provision is to support manufacturing not in a position to take unfair advan- jobs in the United States regardless of tage of the results of the cooperative the status of the recipient as a domes- agreement. Therefore, a reasonable tic or foreign controlled company. time period (i.e., depending on the However, in individual cases, the re- technology, two to five years after pro- quirement to manufacture substan- duction of the data) may be established

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after which the data first produced by tained from a private participant, will the recipient in the performance of the be marked with an appropriate legend agreement will be made public. and maintained in confidence for an (3) Data can be generated from dif- agreed to period of up to five years (the ferent sources and can have various re- maximum allowed by law). This does strictions placed on its dissemination. not apply to data other than that for Recipient data furnished to NASA can which there has been agreement re- exist prior to, or be produced outside garding publication or distribution. of, the agreement or be produced under The period of time during which data the agreement. NASA can also produce first produced by NASA is maintained data in carrying out its responsibilities in confidence should be consistent with under the agreement. Each of these the period of time determined in ac- areas must be covered. cordance with paragraph (h)(2) of this (4) For data, including software, first section, before which data first pro- produced by the recipient under the duced by the recipient will be made agreement, the recipient may assert public. Also, NASA itself may use the copyright. Data exchanged with a no- marked data (under suitable protective tice showing that the data is protected conditions) for agreed-to purposes. by copyright must include appropriate licenses in order for NASA to use the § 1274.209 Evaluation and selection. data as needed. (a) Factor development. The agreement (5) Recognizing that the dissemina- officer, along with the NASA evaluation of the results of NASA’s activities tion team has discretion to determine is a primary objective of a cooperative the relevant evaluation criteria based agreement, the parties should specifi- upon the project requirements, and the cally delineate what results will be goals and objectives of the cooperative published and under what conditions. agreement. This should be set forth in the clause of the cooperative agreement entitled (b) Communications during non-com- ‘‘Publication and Reports: Non-Propri- petitive awards. For cooperative agree- etary Research Results.’’ Any such ments awarded non-competitively (see agreement on the publication of results § 1274.202(b)), there are no restrictions should be stated to take precedence on communications between NASA and over any other clause in the coopera- the recipient. In addition, there is no tive agreement. requirement for the development and (6) Section 1274.905(b)(3) requires the publication of formal evaluation or recipient to provide NASA a govern- source selection criteria. ment purpose license for data first pro- (c) Communications during competitive duced by the Recipient that con- awards. As discussed in § 1274.203(c), stitutes trade secrets or confidential when a competitive source selection business or financial information. process will be followed to select the NASA and the recipient shall deter- recipient, an appropriate level of care mine the scope of this license at the shall be taken by NASA personnel in time of award of the cooperative agree- order to protect the integrity of the ment. In addition to the purposes given source selection process. Therefore, as examples in § 1274.905(b)(3), the li- upon release of the formal cooperative cense should provide NASA the right to agreement notice (CAN), the agree- use this data under a separate coopera- ment officer shall direct all procure- tive agreement or contract issued to a ment personnel associated with the party other than the recipient for the source selection to refrain from com- purpose of continuing the project in municating with prospective recipients the event the cooperative agreement is and that all inquiries be referred to the terminated by either party. agreement officer, or other authorized (7) In accordance with section 303(b) representative. of the Space Act, any data first pro- (d) Selection factors and subfactors. (1) duced by NASA under the agreement At a minimum, the selection process which embodies trade secrets or finan- for the competitive award of coopera- cial information that would be privi- tive agreements to commercial entities leged or confidential if it had been ob- shall include evaluation of potential

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recipients’ proposals for merit and rel- ards, if it is determined that the infor- evance to NASA’s mission require- mation is not relevant to the current ments through their responses to the Federal award under consideration or publication of NASA evaluation fac- there are specific conditions that can tors. The evaluation factors should in- appropriately mitigate the effects of clude technical and management capa- the non-Federal entity’s risk in accord- bilities (mission suitability), past per- ance with 2 CFR 200.207, Specific condi- formance, and proposed costs (includ- tions. ing proposed cost share). (f) Other factors and subfactors. Other (2) For programs that may involve factors and subfactors may include— potentially hazardous operations re- (1) The composition or appropriate- lated to flight, and/or mission critical ness of the business relationship of pro- ground systems, NASA’s selection fac- posed team members or consortium, ar- tors and subfactors shall provide for ticles of collaboration, participation of evaluation of the recipient’s proposed an appropriate mix of small business, approach to managing risk (e.g., tech- veteran-owned small business, service- nology being applied or developed, disabled veteran-owned small business, technical complexity, performance historically underutilized small busi- specifications and tolerances, delivery ness, small disadvantaged business, and schedule, etc.). women-owned business concerns, as (3) As part of the evaluation process, well as non-profits and educational in- the factors, subfactors, or other cri- stitutions, including historically black teria should be tailored to properly ad- colleges and universities and minority dress the requirements of the coopera- institutions). tive agreement. (2) Other considerations may include (e)(1) Prior to making a Federal enhancing U.S. competitiveness, devel- award, agreement officers are required oping a capability among U.S. firms, by 31 U.S.C. 3321 and 41 U.S.C. 2313 identification of potential markets, ap- note, to review information available propriateness of business risks. through any OMB-designated repositories of governmentwide eligibility (g) Proposal evaluation. The proposals qualification, currently the System of shall be evaluated in accordance with Award Management (SAM), or finan- the criteria published in the CAN. Pro- cial integrity information (currently posals selected for award will be sup- Federal Awardee Performance and In- ported by documentation as described tegrity Information System (FAPIIS)), in 1274.211(b). When evaluation results as appropriate. See also suspension and in a proposal not being selected, the debarment requirements at 2 CFR part proposer will be notified in accordance 180 as well as individual Federal agency with the CAN. suspension and debarment regulations (h) Technical evaluation. The tech- in title 2 of the Code of Federal Regula- nical evaluation of proposals may in- tions. clude peer reviews. Because the busi- (2) In accordance with 41 U.S.C. 2313, ness sense of a cooperative agreement agreement officers are required to re- proposal is critical to its success, view the non-public segment of FAPIIS NASA may reserve the right to utilize prior to making a Federal award where appropriate outside evaluators to as- the Federal share is expected to exceed sist in the evaluation of such proposal the simplified acquisition threshold, elements as the business base projec- defined in 41 U.S.C. 134, over the period tions, the market for proposed prod- of performance. At a minimum, the in- ucts, and/or the impact of anticipated formation in the system for a prior product price reductions. Federal award recipient must dem- (i) Cost/price evaluation. (1) Prior to onstrate a satisfactory record of exe- award of a cooperative agreement, cuting programs or activities under agreement officers shall ensure that Federal grants, cooperative agree- proposed costs are accurate and reason- ments, or procurement awards; and in- able. In order to do so, cost and pricing tegrity and business ethics. NASA may data may be required. The level of cost make a Federal award to a recipient and pricing data to be requested shall who does not fully meet these stand- be commensurate with the analysis

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necessary to reach agreement on over- required to exclude foreign firms from all proposed project costs. The evalua- submitting proposals. Award to a for- tion of costs shall lead to the deter- eign firm shall be on a no-exchange-of- mination and verification of total funds basis (see NPD 1360.2). project costs to be shared by NASA and (2) The Office of External Affairs the recipient, as well as establishment (Code I), shall be notified prior to any of NASA’s milestone payment schedule announcement of intent to award to a based on its 50 percent cost share. The foreign firm. Additionally, pursuant to guidance at FAR 15.4 and NFS 1815.4 section 126 of Pub. L. 106–391, as part of can assist in determining whether cost the evaluation of costs and benefits of and pricing data are necessary and the entering into an obligation to conduct level of analysis required. While com- a space mission in which a foreign enti- petition may be present (i.e., more ty will participate as a supplier of the than one proposal is received), in most spacecraft, spacecraft system, or cases companies are proposing com- launch system, NASA shall solicit peting technologies and varying ap- comment on the potential impact of proaches that reflect very different such participation, through notice pub- methods (and accompanying costs) to lished in the FedBizOpps or NAIS. satisfy NASA’s project objectives. Con- (k) Safe-guarding proposals. Competi- sequently, this type of competitive en- tive proposal information shall be pro- vironment is very different from an en- tected in accordance with FAR 15.207, vironment where competitive proposals Handling proposals and information. are submitted in response to a request Unsolicited proposals shall be pro- for proposals leading to award of a con- tected in accordance with FAR 15.608, tract for relatively well-defined pro- Prohibitions, and FAR 15.609, Limited gram or project requirements. use of data. (2) During evaluation of the cost pro- (1) Evaluation team members, the posal, the agreement officer, along source selection authority, and agree- with other NASA evaluation team ment officers are responsible for pro- members and/or pricing support per- tecting sensitive information on the sonnel, shall determine the reasonable- award of a grant or cooperative agree- ness of the overall proposed project ment and for determining who is au- costs, including verifying the value of thorized to receive such information. the recipient’s proposed non-cash and Sensitive information includes: infor- in-kind contributions. Commitments mation contained in proposals; infor- should be obtained and verified to the mation prepared for NASA’s evaluation extent practicable from the recipient of proposals; the rankings of proposals or any associated team members, from for an award; reports and evaluations which proposed contributions will be of source selection panels, boards, or made. advisory councils; and other informa- (3) If the recipient’s proposed con- tion deemed sensitive by the source se- tributions include application of IR&D lection authority or by the agreement costs, see § 1274.204(g). officer. (j) Awards to foreign governments and (2) No sensitive information shall be firms. (1) An award may not be made to disclosed to persons not on the evalua- a foreign government. However, if se- tion team or evaluation panel, unless lected as the best available source, an the Selecting Official or the agreement award may be made to a foreign firm. officer has approved disclosure based If a proposal is selected from a foreign upon an unequivocal ‘‘need-to-know’’ firm sponsored by their respective gov- and the individual receiving the infor- ernment agency, or from entities con- mation has signed a Non-Disclosure sidered quasi-governmental, approval Certificate. All attendees at formal must be obtained from Headquarters, source selection presentations and Program Operations Division (Code briefings shall be required to sign an HS). Such requests must include de- Attendance Roster and a Disclosure tailed rationale for the selection, to in- Certificate. The attendance rosters and clude the funding source of the foreign certificates shall be maintained in offi- participant. The approval of the Assist- cial files for a minimum of six months ant Administrator for Procurement is after award.

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(3) The improper disclosure of sen- nical office will prepare and furnish to sitive information could result in the Agreement Officer, a justification criminal prosecution or an adverse ac- for acceptance of an unsolicited pro- tion. posal (JAUP). The JAUP shall be sub- (l) Controls on the use of outside eval- mitted for the approval of the agree- uators. The use of outside evaluators ment officer after review and concur- shall be approved in accordance with rence at a level above the technical of- NFS 1815.207–70(b). A cover sheet with ficer. The evaluator shall consider the the following legend shall be affixed to following factors, in addition to any data provided to outside evaluators: others appropriate for the particular proposal: GOVERNMENT NOTICE FOR HANDLING (1) Unique and innovative methods, PROPOSALS approaches or concepts demonstrated This proposal shall be used and dis- by the proposal. closed for evaluation purposes only, (2) Overall scientific or technical and a copy of this Government notice merits of the proposal. shall be applied to any reproduction or (3) The offeror’s capabilities, related abstract thereof. Any authorized re- experience, facilities, techniques, or strictive notices which the submitter unique combinations of these which are places on this proposal shall also be integral factors for achieving the pro- strictly complied with. posal objectives. (m) Printing, binding, and duplicating. (4) The qualifications, capabilities, Proposals for efforts that involve print- and experience of the proposed key per- ing, binding, and duplicating in excess sonnel who are critical in achieving the of 25,000 pages are subject to the regu- proposal objectives. lations of the Congressional Joint (5) Current, open solicitations under Committee on Printing. The technical which the unsolicited proposal could be office will refer such proposals to the evaluated. Installation Central Printing Manage- (c) Unsolicited proposals shall be ment Officer (ICPMO) to ensure com- handled in accordance with NFS pliance with NPD 1490.1. The Agree- 1815.606, ‘‘Agency Procedures’’. ment Officer will be advised in writing (d) Unsolicited proposals from for- of the results of the ICPMO review. eign sources are subject to NPD 1360.2, [67 FR 45790, July 10, 2002, as amended at 81 ‘‘Development of International Co- FR 35584, June 3, 2016] operation in Space and Aeronautics Programs’’. § 1274.210 Unsolicited proposals. (e) There is no requirement for a pub- (a) For a proposal to be considered a lic announcement of the award of a co- valid unsolicited proposal, the submis- operative agreement. In addition, there sion must— is no requirement for announcement of (1) Be innovative and unique; awards resulting from unsolicited pro- (2) Be independently originated and posals. However, in those instances developed by the recipient; where a public announcement is (3) Be prepared without Government planned and the award is the result of supervision, endorsement, direction or an unsolicited proposal, in addition to direct Government involvement; the requirements of NFS 1805.303– (4) Include sufficient technical and 71(a)(3), NASA personnel must take cost detail to permit a determination measures that ensure protection of the that Government support could be data and intellectual property rights of worthwhile and the proposed work submitters of unsolicited proposals as could benefit the agency’s research and provided by FAR 5.202(a)(8). development or other mission respon- (f) Additional information regarding sibilities; and unsolicited proposals is available in (5) Not be an advance proposal for a the handbook entitled, ‘‘Guidance for known agency requirement that can be the Preparation and Submission of Un- acquired by competitive methods. solicited Proposals’’, which is available (b) For each unsolicited proposal se- on the NASA Acquisition Internet lected for award, the cognizant tech- Service Website at: http://

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ec.msfc.nasa.gov/hq/library/unSol- the requirements of 14 CFR 1271.110 and Prop.html. 1260.117. (4) Unless a copy is on file at the § 1274.211 Award procedures. NASA center, recipients must furnish (a) In accordance with NFS 1805.303– an assurance on NASA Form (NF) 1206 71, the NASA Administrator shall be on compliance with Civil Rights stat- notified at least three (3) workdays be- utes specified in 14 CFR parts 1250 fore a planned public announcement for through 1253. (5) The non-Federal entity or appli- award of a cooperative agreement (re- cant for a Federal award must disclose, gardless of dollar value), if it is in a timely manner, in writing to the thought the agreement may be of sig- assigned agreement officer or pass- nificant interest to Headquarters. through entity all violations of Federal (b) For awards that are the result of criminal law involving fraud, bribery, a competitive source selection, the or gratuity violations potentially af- technical officer will prepare and fur- fecting the Federal award. Non-Federal nish to the agreement officer a signed entities that have received a Federal selection statement based on the selec- award including the term and condition criteria stated in the solicitation. tion outlined in Appendix XII—Award (1) Bilateral award. All cooperative Term and Condition for Recipient In- agreements shall be awarded on a bilat- tegrity and Performance Matters are eral basis. required to report certain civil, crimi- (2) Consortium awards. If the coopera- nal, or administrative proceedings to tive agreement is to be awarded to a SAM. Failure to make required disclo- consortium, a completed, formally exe- sures can result in any of the remedies cuted Articles of Collaboration is re- described in § 200.338 Remedies for non- quired prior to award. compliance, including suspension or (c) System for Award Management debarment. (See also 2 CFR part 180, 31 (SAM) Prior to implementation of the U.S.C. 3321, and 41 U.S.C. 2313.) Integrated Financial Management [67 FR 45790, July 10, 2002, as amended at 71 (IFM) System at each center, all grant FR 62210, Oct. 24, 2006; 72 FR 19785, Apr. 20, and cooperative agreement recipients 2007; 81 FR 35584, June 3, 2016] are required to register in the System for Award Management database. Reg- § 1274.212 Award information. istration is required in order to obtain (a) Formats. Agreement officers shall a Commercial and Government Entity use NF 1687A (available via the Inter- (CAGE) code, which will be used as a net at https://extranet.hq.nasa.gov/nef/ grant and cooperative agreement iden- user/formlsearch.cfm), with minimum tification number for the new system. modification, as the standard coopera- The agreement officer shall verify that tive agreement cover page for the the prospective awardee is registered in award of all cooperative agreements. the SAM database using the DUNS (b) Cooperative agreement numbering number or, if applicable, the DUNS+4 system. Cooperative agreement num- number, via the Internet at https:// bering may be changed once the Inte- www.sam.gov. grated Financial Management (IFM) is (d) Certifications, Disclosures, and As- implemented. Until IFM is imple- surances. (1) Agreement officers are re- mented, cooperative agreement num- quired to ensure that all necessary cer- bering shall conform to NFS 1804.7102, tifications, disclosures, and assurances except that a NCC prefix will be used in have been obtained prior to awarding a lieu of the NAS prefix. Along with the cooperative agreement. prefix NCC, a one or two digit Center (2) Each new proposal shall include a Identification Number, and a sequence certification for debarment and suspen- number of up to five digits will be used. sion under the requirements of 2 CFR Inclusive of the prefix and fiscal year, 180.510 and 1260.117. the total number of characters, digits, (3) Each new proposal for an award and spaces cannot exceed 11. exceeding $100,000 shall include a cer- (c) Recipient integrity and performance tification, and a disclosure form (SF matters. If the total Federal share of LLL) if required, on Lobbying under the Federal award is more than $500,000

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over the period of performance, agree- (2) Otherwise discriminate against re- ment officers must include the terms cipients, potential recipients or sub- and conditions in § 1274.944 of this chap- recipients for becoming, refusing to be- ter. come, or remaining signatories or otherwise adhering to agreements with [67 FR 45790, July 10, 2002, as amended at 81 one or more organizations, on the same FR 35584, June 3, 2016] or other related construction projects. § 1274.213 Distribution of cooperative (b) Nothing in this section prohibits agreements. the recipient, potential recipients or subrecipients from voluntarily enter- Copies of cooperative agreements and ing into project labor agreements. modifications will be provided to: pay- (c) The Assistant Administrator for ment office, technical officer, adminis- Procurement may exempt a construc- trative agreement officer when delegation project from this policy if, as of tion has been made (particularly when February 17, 2001— administrative functions are delegated (1) The agency or a construction to DOD or another agency), NASA Cen- manager acting on behalf of the Gov- ter for Aerospace Information (CASI), ernment had issued or was party to bid Attn: Document Processing Section, specifications, project agreements, 7121 Standard Drive, Hanover, MD agreements with one or more labor or- 21076, and any other appropriate recipi- ganizations, or other controlling docu- ent. Copies of the statement of work, ments with respect to that particular contained in the recipient’s proposal project, which contained any of the re- and accepted by NASA, will be pro- quirements or prohibitions in para- vided to the administrative agreement graph (d)(1) of this section; and officer and CASI. The cooperative (2) One or more construction con- agreement file will contain a record of tracts (includes any contract awarded the addresses for distributing agree- by the recipient) subject to such re- ments and supplements. quirements or prohibitions had been awarded. § 1274.214 Inquiries and release of in- (d) The Assistant Administrator for formation. Procurement may exempt a particular NASA personnel shall follow the pro- project, contract, or subcontract from cedures established in NFS 1805.402 this policy upon a finding that special prior to releasing information to the circumstances require an exemption in news media or the general public. The order to avert an imminent threat to procedures established by NFS 1805.403 public health or safety, or to serve the shall be followed when responding to national security. A finding of ‘‘special inquiries from members of Congress. circumstances’’ may not be based on the possibility or presence of a labor § 1274.215 Federal and federally fund- dispute concerning the use of contrac- ed construction projects. tors or subcontractors who are nonsig- natories to, or otherwise do not adhere (a) In accordance with E.O. 13202 of to, agreements with one or more labor February 17, 2001, ‘‘Preservation of organizations, or concerning employees Open Competition and Government on the project who are not members of, Neutrality Towards Government Con- or affiliated with, a labor organization. tractors’ Labor Relations on Federal and Federally Funded Construction [67 FR 77668, Dec. 19, 2002] Projects’’, as amended on April 6, 2001, the Government, or any construction Subpart 1274.3—Administration manager acting on behalf of the Gov- ernment, shall not— § 1274.301 Delegation of administra- (1) Require or prohibit recipients, po- tion. tential recipients or subrecipients to Cooperative agreements may be ad- enter into or adhere to agreements ministered by the awarding activity or with one or more labor organizations the awarding activity may obtain addi- (as defined in 42 U.S.C. 2000e(d)) on the tional administration services in ac- same or other related construction cordance with the procedures provided projects; or by NFS 1842.202. NASA Form 1678,

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NASA Technical Officer Delegation for the non-Federal entity does not meet Cooperative Agreements with Commer- either or both of the minimum quali- cial Firms, will be used to delegate re- fication standards, as described in sponsibilities to the NASA Technical paragraph (a)(2) of 2 CFR 200.205, the Officer. agreement officer must report that determination in FAPIIS, accessible § 1274.302 Transfers, novations, and through SAM, only if all of the fol- change of name agreements. lowing apply: (a) Transfer of cooperative agreements. (1) The only basis for the determina- Novation is the only means by which a tion described in paragraph (a) of this cooperative agreement may be trans- section is the non-Federal entity’s ferred from one recipient to another. prior record of executing programs or (b) Novation and change of name. activities under Federal awards or its NASA legal counsel shall review, for record of integrity and business ethics, legal sufficiency, all novation agree- as described in paragraph (a)(2) of 2 ments or change of name agreements of CFR 200.205, (i.e., the entity was deter- the recipient, prior to formal execution mined to be qualified based on all fac- by the agreement officer. tors other than those two standards); § 1274.303 Public access to Federal and award information. (2) The total Federal share of the Federal award that otherwise would be (a) In accordance with statutory re- made to the non-Federal entity is ex- quirements for Federal spending trans- pected to exceed the simplified acquisi- parency (e.g., FFATA), except as noted in this section, for applicable Federal tion threshold over the period of per- awards NASA must announce all Fed- formance. eral awards publicly and publish the re- (b) Agreement officers are not required information at quired to report a determination that a www.USAspending.gov. non-Federal entity is not qualified for (b) All information posted in FAPIIS, a Federal award if they make the Fed- accessible through SAM, on or after eral award to the non-Federal entity April 15, 2011 will be publicly available and includes specific award terms and after a waiting period of 14 calendar conditions (see § 1274.209). days, except for— (c) If the agreement officer reports a (1) Past performance reviews required determination that a non-Federal enti- by Federal Government contractors in ty is not qualified for a Federal award, accordance with the Federal Acquisi- as described in paragraph (a) of this tion Regulation (FAR) 42.15; section, the agreement officer also (2) Information that was entered must notify the non-Federal entity prior to April 15, 2011; or that— (3) Information that is withdrawn (1) The determination was made and during the 14-calendar day waiting pe- reported to FAPIIS, accessible through riod by the Federal Government offi- SAM, and include with the notification cial. an explanation of the basis for the de- (c) Nothing in this section may be termination; construed as requiring the publication (2) The information will be kept in of information otherwise exempt under the system for a period of five years the Freedom of Information Act (5 from the date of the determination, as U.S.C. 552), or controlled unclassified required by section 872 of Public Law information pursuant to Executive 110–417, as amended (41 U.S.C. 2313), Order 13556. then archived; [81 FR 35584, June 3, 2016] (3) Agreement officers making a Fed- eral award to the non-Federal entity § 1274.304 Reporting a determination during that five year period must con- that a non-Federal entity is not sider the information found in FAPIIS qualified for a Federal award. when judging whether the non-Federal (a) If NASA does not make a Federal entity is qualified to receive the Fed- award to a non-Federal entity because eral award when the total Federal the agreement officer determines that share of the Federal award is expected

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to include an amount of Federal fund- Subpart 1274.4—Property ing in excess of the simplified acquisition threshold over the period of per- § 1274.401 Government furnished prop- formance of the award; erty. (4) The non-Federal entity may go to Property or equipment owned by the the awardee integrity and performance Government that will be used in the portal accessible through SAM (cur- performance of a cooperative agree- rently the Contractor Performance As- ment shall be included as part of the sessment Reporting System (CPARS)) Government’s percentage (usually 50 and comment on any information the percent) of shared costs. In most cases system contains about the non-Federal the property or equipment will be cat- entity itself; and egorized as non-cash contributions. Agreement officers may use the proce- (5) Agreement officers will consider dures promulgated by FAR Subpart that non-Federal entity’s comments in 45.2, as guidelines to calculate the determining whether the non-Federal value of the property or equipment. entity is qualified for a future Federal award. § 1274.402 Contractor acquired prop- (d) If the agreement officer enters in- erty. formation into FAPIIS about a deter- As provided in § 1274.923(c), title to mination that a non-Federal entity is property acquired with government not qualified for a Federal award and funds vests in the government. Under a subsequently— cost shared cooperative agreement, (1) Learns that any of that informa- joint ownership of property equal to tion is erroneous, the agreement officer the cost-sharing ratio will result if the must correct the information in the parties make no specific arrangements system within three business days; and regarding such property. The disposition of acquired property should be ad- (2) Obtains an update to that infor- dressed in the cooperative agreement mation that could be helpful to other at the time of award. The cooperative Federal awarding agencies, the agree- agreement may provide that all such ment officer is strongly encouraged to property be contributed by the recipi- amend the information in the system ent as a non-cash contribution. A rea- to incorporate the update in a timely sonable dollar value must be specified way. and adequately supported. In this case, (e) The agreement officer shall not title will vest in the recipient. Alter- post any information that will be made natively, NASA and the recipient may publicly available in the non-public include in the cooperative agreement segment of designated integrity and any other appropriate arrangement for performance system that is covered by the disposition of acquired property a disclosure exemption under the Free- upon completion of the effort. dom of Information Act. If the recipient asserts within seven calendar days Subpart 1274.5—Procurement to NASA that some or all of the infor- Standards mation made publicly available is covered by a disclosure exemption under § 1274.501 Purpose of procurement standards. the Freedom of Information Act, agreement officers must remove the posting (a) The procurement standards stated within seven calendar days of receiving in §§ 1274.502 through 1274.510, may not the assertion. Prior to reposting the re- apply to or may supplement the proce- leasable information, agreement offi- dures of a commercial recipient that cers must resolve the issue in accord- has a purchasing system approved in accordance with the requirements of ance with the agency’s Freedom of In- FAR Subpart 44.3 and NFS 1844.3. formation Act procedures. (b) Sections 1274.502 through 1274.510 [81 FR 35584, June 3, 2016] set forth standards for use by recipients in establishing procedures for the procurement of supplies and other expendable property, equipment, real

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property and other services with Fed- § 1274.504 Competition. eral funds. These standards are fur- All procurement transactions shall nished to ensure that such materials be conducted in a manner to provide, and services are obtained in an effec- to the maximum extent practical, open tive manner and in compliance with and free competition. The recipient the provisions of applicable Federal shall be alert to organizational con- statutes and executive orders. flicts of interest as well as noncompeti- § 1274.502 Recipient responsibilities. tive practices among contractors that may restrict or eliminate competition The standards contained in this sec- or otherwise restrain trade. In order to tion do not relieve the recipient of the ensure objective contractor perform- contractual responsibilities arising ance and eliminate unfair competitive under its contract(s). The recipient is advantage, contractors that develop or the responsible authority, without re- draft specifications, requirements, course to NASA, regarding the settle- statements of work, invitations for ment and satisfaction of all contrac- bids and/or requests for proposals shall tual and administrative issues arising normally be excluded from competing out of procurements entered into in for such procurements, unless conflicts support of an award or other agree- or apparent conflicts of interest issues ment. This includes disputes, claims, have been resolved. Awards shall be protests of award, source evaluation or made to the bidder or offeror whose bid other matters of a contractual nature. or offer is responsive to the solicitation Matters concerning violation of statute and is most advantageous to the recipi- are to be referred to such Federal, ent, price, quality and other factors State or local authority as may have considered. Solicitations shall clearly proper jurisdiction. set forth all requirements that the bidder or offeror shall fulfill in order for § 1274.503 Codes of conduct. the bid or offer to be evaluated by the The recipient shall maintain written recipient. Any and all bids or offers standards of conduct governing the may be rejected when it is in the re- performance of its employees engaged cipient’s interest to do so. in the award and administration of contracts. No employee, officer, or § 1274.505 Procurement procedures. agent shall participate in the selection, (a) All recipients shall establish writ- award, or administration of a contract ten procurement procedures. These supported by Federal funds if a real or procedures shall provide at a min- apparent conflict of interest would be imum, that the conditions in para- involved. Such a conflict would arise graphs (a)(1), (2) and (3) of this section when the employee, officer, or agent, apply. any member of his or her immediate (1) Recipients avoid purchasing un- family, his or her partner, or an orga- necessary items. nization which employs or is about to (2) Where appropriate, an analysis is employ any of the parties indicated made of lease and purchase alter- herein, has a financial or other interest natives to determine which would be in the firm selected for an award. The the most economical and practical pro- officers, employees, and agents of the curement for the Federal Government. recipient shall neither solicit nor ac- (3) Solicitations for goods and serv- cept gratuities, favors, or anything of ices provide for all of the following: monetary value from contractors, or (i) A clear and accurate description parties to subagreements. However, re- of the technical requirements for the cipients may set standards for situa- material, product or service to be pro- tions in which the financial interest is cured. In competitive procurements, not substantial or the gift is an unso- such a description shall not contain licited item of nominal value. The features that unduly restrict competi- standards of conduct shall provide for tion. disciplinary actions to be applied for (ii) Requirements that the bidder/of- violations of such standards by offi- feror must fulfill and all other factors cers, employees, or agents of the re- to be used in evaluating bids or pro- cipient. posals.

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(iii) A description, whenever prac- curement and for promoting the best ticable, of technical requirements in interest of the program or project in- terms of functions to be performed or volved. The ‘‘cost-plus-a-percentage-of- performance required, including the cost’’ or ‘‘percentage of construction range of acceptable characteristics or cost’’ methods of contracting shall not minimum acceptable standards. be used. (iv) The specific features of ‘‘brand (d) Contracts shall be made only with name or equal’’ descriptions that bid- responsible contractors who possess ders are required to meet when such the potential ability to perform suc- items are included in the solicitation. cessfully under the terms and condi- (v) The acceptance, to the extent tions of the proposed procurement. practicable and economically feasible, Consideration shall be given to such of products and services dimensioned in matters as contractor integrity, record the metric system of measurement. of past performance, financial and (vi) Preference, to the extent prac- technical resources or accessibility to ticable and economically feasible, for other necessary resources. In certain products and services that conserve circumstances, contracts with certain natural resources and protect the envi- parties are restricted by 2 CFR part ronment and are energy efficient. 180, the implementation of Executive (b) Positive efforts shall be made by Orders 12549 and 12689, ‘‘Debarment and recipients to utilize small business, Suspension.’’ veteran-owned small business, service- (e) Recipients shall, on request, make disabled veteran-owned small business, available for NASA, pre-award review historically underutilized small busi- and procurement documents, such as ness, small disadvantaged business, request for proposals or invitations for women-owned business concerns, His- bids, independent cost estimates, etc., torically Black Colleges and Univer- when any of the following conditions sities, and minority educational insti- apply: tutions as subcontractors to the max- (1) A recipient’s procurement proce- imum extent practicable. Recipients of dures or operation fails to comply with NASA awards shall take all of the fol- the procurement standards in NASA’s lowing steps to further this goal. implementation of this subpart. (1) Make information on forthcoming (2) The procurement is expected to opportunities available and arrange exceed the simplified acquisition time frames for purchases and con- threshold and is to be awarded without tracts. competition or only one bid or offer is (2) Consider in the contract process received in response to a solicitation. whether firms competing for larger (3) The procurement, which is ex- contracts intend to subcontract with pected to exceed the simplified acquisi- these businesses and institutions. tion threshold, specifies a ‘‘brand (3) Encourage contracting with con- name’’ product. sortiums or teams of these businesses (4) The proposed award over the sim- and institutions when a contract is too plified acquisition threshold is to be large for one of these firms to handle awarded to other than the apparent individually. low bidder under a sealed bid procure- (4) Use the services and assistance, as ment. appropriate, of such organizations as (5) A proposed contract modification the Small Business Administration and changes the scope of a contract or in- the Department of Commerce’s Minor- creases the contract amount by more ity Business Development Agency in than the amount of the simplified ac- the solicitation and utilization of quisition threshold. small businesses, minority-owned firms and women’s business enterprises. [67 FR 45790, July 10, 2002, as amended at 72 (c) The type of procuring instruments FR 19785, Apr. 20, 2007] used (e.g., fixed price contracts, cost reimbursable contracts, purchase or- § 1274.506 Cost and price analysis. ders, and incentive contracts) shall be Some form of cost or price analysis determined by the recipient but shall shall be made and documented in the be appropriate for the particular pro- procurement files in connection with

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every procurement action. Price anal- well as conditions where the contract ysis may be accomplished in various may be terminated because of cir- ways, including the comparison of cumstances beyond the control of the price quotations submitted, market contractor. prices and similar indicies, together (c) All negotiated contracts (except with discounts. Cost analysis is the re- those for less than the simplified ac- view and evaluation of each element of quisition threshold) awarded by recipi- cost to determine reasonableness, ents shall include a provision to the ef- allocability and allowability. fect that the recipient, NASA, the Comptroller General of the United § 1274.507 Procurement records. States, or any of their duly authorized Procurement records and files for representatives, shall have access to purchases in excess of the simplified any books, documents, papers and acquisition threshold shall include the records of the contractor which are di- following at a minimum: rectly pertinent to a specific program (a) Basis for contractor selection. for the purpose of making audits, ex- (b) Justification for lack of competi- aminations, excerpts and tran- tion when competitive bids or offers scriptions. are not obtained. (d) For Construction and facility im- (c) Basis for award cost or price. provements, except as otherwise required by statute, an award that re- § 1274.508 Contract administration. quires the contracting (or subcon- A system for contract administration tracting) for construction or facility shall be maintained to ensure con- improvements shall provide for the re- tractor conformance with the terms, cipient to follow its own requirements conditions and specifications of the relating to bid guarantees, perform- contract and to ensure adequate and ance bonds, and payment bonds unless timely follow-up of all purchases. Re- the construction contract or sub- cipients shall evaluate contractor per- contract exceeds $100,000. For those formance and document, as appro- contracts or subcontracts exceeding priate, whether contractors have met $100,000, NASA may accept the bonding the terms, conditions and specifica- policy and requirements of the recipi- tions of the contract. ent, provided NASA has made a determination that the Federal Govern- § 1274.509 Contract provisions. ment’s interest is adequately pro- The recipient shall include, in addi- tected. If such a determination has not tion to provisions to define a sound and been made, the minimum requirements complete agreement, the following pro- shall be as follows: visions in all contracts. The following (1) A bid guarantee from each bidder provisions shall also be applied to sub- equivalent to five percent of the bid contracts: price. The ‘‘bid guarantee’’ shall con- (a) Contracts in excess of the sim- sist of a firm commitment such as a plified acquisition threshold (currently bid bond, certified check, or other ne- $100,000) shall contain contractual pro- gotiable instrument accompanying a visions or conditions that allow for ad- bid as assurance that the bidder shall, ministrative, contractual, or legal upon acceptance of his bid, execute remedies in instances in which a con- such contractual documents as may be tractor violates or breaches the con- required within the time specified. tract terms, and provide for such reme- (2) A performance bond on the part of dial actions as may be appropriate. the contractor for 100 percent of the (b) All contracts in excess of the sim- contract price. A ‘‘performance bond’’ plified acquisition threshold shall con- is one executed in connection with a tain suitable provisions for termi- contract to secure fulfillment of all the nation by the recipient, including the contractor’s obligations under such manner by which termination shall be contract. effected and the basis for settlement. (3) A payment bond on the part of the In addition, such contracts shall de- contractor for 100 percent of the con- scribe conditions under which the contract price. A ‘‘payment bond’’ is one tract may be terminated for default as executed in connection with a contract

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to assure payment as required by stat- (4) Indirect cost rate proposals, cost ute of all persons supplying labor and allocations plans, etc., as specified in material in the execution of the work paragraph (g) of this section. provided for in the contract. (c) Copies of original records may be (4) Where bonds are required in the substituted for the original records if situations described in this section, the authorized by NASA. bonds shall be obtained from compa- (d) NASA shall request transfer of nies holding certificates of authority certain records to its custody from reas acceptable sureties pursuant to 31 cipients when it determines that the CFR part 223, ‘‘Surety companies doing records possess long term retention business with the United States.’’ value. However, in order to avoid duplicate record keeping, NASA may make § 1274.510 Subcontracts. arrangements for recipients to retain Recipients (individual firms or con- any records that are continuously sortia) are not authorized to issue needed for joint use. grants or cooperative agreements to (e) NASA, the Inspector General, subrecipients. All entities that are in- Comptroller General of the United volved in performing the research and States, or any of their duly authorized development effort that is the purpose representatives, have the right of time- of the cooperative agreement shall be ly and unrestricted access to any part of the recipient’s consortium and books, documents, papers, or other not subcontractors. All contracts, in- records of Recipients that are perti- cluding small purchases, awarded by nent to the awards, in order to make recipients and their contractors shall audits, examinations, excerpts, tran- contain the procurement provisions of scripts and copies of such documents. Exhibit A to this part, as applicable This right also includes timely and rea- and may be subject to approval re- sonable access to a recipient’s per- quirements cited in § 1274.925. sonnel for the purpose of interview and discussion related to such documents. Subpart 1274.6—Reports and The rights of access in this paragraph Records are not limited to the required retention period, but shall last as long as § 1274.601 Retention and access re- records are retained. 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) Indirect cost rate proposals, cost al- started before the expiration of the 3- locations plans, etc., applies to the fol- year period, the records shall be re- lowing types of documents, and their tained until all litigation, claims or supporting records: indirect cost rate audit findings involving the records computations or proposals, cost alloca- have been resolved and final action tion plans, and any similar accounting taken. computations of the rate at which a (2) Records for real property and particular group of costs is chargeable equipment acquired with Federal funds (such as computer usage chargeback shall be retained for 3 years after final rates or composite fringe benefit disposition. rates). (3) When records are transferred to or (1) If submitted for negotiation. If the maintained by NASA, the 3-year reten- recipient submits to NASA or the sub- tion requirement is not applicable to recipient submits to the recipient the the Recipient. proposal, plan, or other computation to

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form the basis for negotiation of the 1274.905(b). See § 1274.208(l)(6) to assure rate, then the 3-year retention period that appropriate language is contained for its supporting records starts on the in § 1274.905(b). date of such submission. (5) When NASA terminates a Federal (2) If not submitted for negotiation. If award prior to the end of the period of the recipient is not required to submit performance due to the non-Federal en- to NASA or the subrecipient is not re- tity’s material failure to comply with quired to submit to the recipient the the Federal award terms and condi- proposal, plan, or other computation tions, NASA must report the termi- for negotiation purposes, then the 3- nation in FAPIIS. year retention period for the proposal, (6) The information required under plan, or other computation and its sup- paragraph (b) of this section is not to porting records starts at the end of the be reported to designated integrity and fiscal year (or other accounting period) performance system until the non-Fed- covered by the proposal, plan, or other eral entity either— computation. (i) Has exhausted its opportunities to object or challenge the decision, see Subpart 1274.7—Suspension or § 200.341 Opportunities to object, hear- Termination ings and appeals; or (ii) Has not, within 30 calendar days § 1274.701 Suspension or termination. after being notified of the termination, (a) Suspension. NASA or the recipient informed the agreement officer that it may suspend the cooperative agree- intends to appeal the decision to termi- ment for a mutually agreeable period nate. of time, if an assessment is required to (7) If the agreement officer, after en- determine whether the agreement tering information into FAPIIS about should be terminated. a termination, subsequently: (b) Termination. (1) A cooperative (i) Learns that any of that informa- agreement provides both NASA and the tion is erroneous, the agreement officer recipient the ability to terminate the must correct the information in the Agreement if it is in their best inter- system within three business days; ests to do so, by giving the other party (ii) Obtains an update to that infor- prior written notice. Upon receipt of a mation that could be helpful to other notice of termination, the receiving Federal awarding agencies, the agree- party shall take immediate steps to ment officer is strongly encouraged to stop the accrual of any additional obli- amend the information in the system gations, which might require payment. to incorporate the update in a timely (2) NASA may, for example, termi- way. nate the Agreement if the recipient is (8) Agreement officers shall not post not making anticipated technical any information that will be made pub- progress, if the recipient materially licly available in the non-public seg- changes the objectives of the agreement of designated integrity and per- ment, or if appropriated funds are not formance system that is covered by a available to support the program. disclosure exemption under the Free- (3) Similarly, the recipient may ter- dom of Information Act. If the non- minate the agreement if, for example, Federal entity asserts within seven cal- technical progress is not being made, if endar days to the Federal awarding the commercial recipient shifts its agency who posted the information technical emphasis, or if other techno- that some of the information made logical advances have made the effort publicly available is covered by a dis- obsolete. closure exemption under the Freedom (4) If the cooperative agreement is of Information Act, agreement officers terminated by either NASA or the re- must remove the posting within seven cipient and NASA elects to continue calendar days of receiving the asser- the project with a party other than the tion. Prior to reposting the releasable recipient, the right of the government information, agreement officers must to use data first produced by either resolve the issue in accordance with NASA or the recipient in the perform- the agency’s Freedom of Information ance of this agreement is covered by Act procedures.

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(c) When a Federal award is termi- ment may be needed. There may also nated or partially terminated, both be occasions where actual costs of NASA or the pass-through entity and NASA and the recipient may be less the non-Federal entity remain respon- than initially agreed. In cases where sible for compliance with the closeout program costs are adjusted, prior to and post-closeout requirements and execution of a modification to the continuing responsibilities. agreement, mutual agreement between (d) Notification of termination require- NASA and the recipient shall also be ment. If the Federal award is termi- reached on the corresponding changes nated for the non-Federal entity’s main program requirements such as terial failure to comply with the Fed- eral statutes, regulations, or terms and schedule, work statements and mile- conditions of the Federal award, the stone payments. Funding for any work notification must state that— required beyond the initial funding (1) The termination decision will be level of the cooperative agreement, reported in FAPIIS, accessible through shall require submission by the recipi- SAM; ent of a detailed proposal to the agree- (2) The information will be available ment officer. Prior to execution of a in FAPIIS for a period of five years modification increasing NASA’s initial from the date of the termination, then cost share or funding levels, detailed archived; cost analysis techniques may be ap- (3) When considering making a Fed- plied, which may include requests for eral award to the non-Federal entity audits services and/or application of during that five year period, NASA other pricing support techniques. Any must consider that information in adjustments or modifications that re- judging whether the non-Federal entity sult in a change to the performance is qualified to receive the Federal costs of the cooperative agreement award, when the Federal share of the shall continue to maintain the share Federal award is expected to exceed the simplified acquisition threshold ratio requirements (normally 50/50) over the period of performance; stated in § 1274.204(b). (4) The non-Federal entity may comment on any information that the § 1274.802 Modifications. OMB-designated integrity and perform- Modifications to the cooperative ance system contains about the non- agreement in particular, modifications Federal entity for future consideration that affect funding, milestone pay- by NASA. The non-Federal entity may ments, program schedule and state- submit comments to the awardee in- ment of work requirements shall be ex- tegrity and performance portal acces- ecuted on a bilateral basis. sible through SAM (currently (CPARS). § 1274.803 Suspension and Debarment. (5) Agreement officers will consider non-Federal entity comments when de- Non-federal entities are subject to termining whether the non-Federal en- the non-procurement debarment and tity is qualified for a future Federal suspension regulations implementing award. Executive Orders 12549 and 12689, 2 CFR part 180, adopted by NASA at 2 CFR [67 FR 45790, July 10, 2002, as amended at 81 part 1880. These regulations restrict FR 35585, June 3, 2016] awards, subawards, and contracts with certain parties that are debarred, sus- Subpart 1274.8—Post-Award/ pended, or otherwise excluded from or Administrative Requirements ineligible for participation in Federal § 1274.801 Adjustments to performance assistance programs or activities. costs. [81 FR 35585, June 3, 2016] In order to accomplish program objectives, there may be occasions where additional contributions (cash and/or in-kind contributions) by NASA and the recipient beyond the initial agree-

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§thnsp;1274.804 [Reserved] (c) Recipient Responsibilities. The Recipi- ent shall be responsible for particular aspects of project performance as set forth in Subpart 1274.9—Other Provisions the technical proposal dated llllllll, and Special Conditions attached hereto (or Statement of Work dated llllllllll, attached hereto). The § 1274.901 Other provisions and spe- following responsibilities are hereby set cial conditions. forth effective upon the start date, which unless stated otherwise, shall be the execution Where applicable, the provisions set date of this bilateral Cooperative Agree- forth in this subpart are to be incor- ment. The end date stated below, may be porated in and made a part of all coop- changed by a written bilateral modification: erative agreements with commercial firms. When included, the provisions at Responsibilities Start Date End Date § 1274.902 through § 1274.909 and the pro- (d) Since NASA contractors may obtain visions at § 1274.933 through § 1274.942 certain intellectual property rights arising are to be incorporated in full text sub- from work for NASA in support of this agree- stantially as stated in this regulation. ment, NASA will inform Recipient whenever When required, the provisions at NASA intends to use NASA contractors to perform technical engineering services in § 1274.910 through § 1274.932, may be in- support of this agreement. corporated by reference in an enclosure (e) Unless the Cooperative Agreement is to each cooperative agreement. For in- terminated by the parties, end date can only clusion of provisions in subcontracts, be changed by execution of a bilateral modi- see Exhibit A of this part, and fication. § 1274.925. [End of provision] § 1274.902 Purpose. § 1274.904 Resource sharing require- PURPOSE ments.

July 2002 RESOURCE SHARING REQUIREMENTS The purpose of this cooperative agreement July 2002 is to conduct a shared resource project that will lead to llllllll. This cooperative Where NASA and other Government agen- agreement will advance the technology de- cies are involved in the cooperative agree- velopments and research which have been ment, ‘‘NASA’’ shall also mean ‘‘Federal performed on lllllllll. The specific Government’’. objective is to llllllllll. This work (a) NASA and the Recipient will share in will culminate in llllllllll. providing the resources necessary to perform the agreement. NASA funding and non-cash [End of provision] contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipi- § 1274.903 Responsibilities. ent’s cash and/or non-cash contribution will be on a ll percent (NASA)—ll percent RESPONSIBILITIES (Recipient) basis. Criteria and July 2002 procedures for the allowability and allocability of cash and non-cash (a) This Cooperative Agreement will in- contributions shall be governed by clude substantial NASA participation during FAR Parts 30 and 31, and performance of the effort. NASA and the Re- NFS Parts 1830 and 1831. cipient agree to the following Responsibil- (b) The funding and non-cash contributions ities, a statement of cooperative inter- by both parties are represented by the fol- actions to occur during the performance of lowing dollar amounts: this effort. NASA and the Recipient shall Government Share lllllllllllll exert all reasonable efforts to fulfill the responsibilities stated below. Recipient Share lllllllllllllll (b) NASA Responsibilities. The following Total Amount llllllllllllllll NASA responsibilities are hereby set forth (c) The Recipient’s share shall not be effective upon the start date, which unless charged to the Government under this stated otherwise, shall be the execution date Agreement or under any other contract, of this bilateral Cooperative Agreement. The grant, or cooperative agreement, except to end date stated below, may be changed by a the extent that the Recipient’s contribution written bilateral modification: may be allowable IR&D costs pursuant to Responsibilities Start Date End Date FAR 31.205–18(e).

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[End of provision] its contractors (under suitable protective conditions) only for the purpose of carrying [67 FR 45790, July 10, 2002, as amended at 71 out NASA’s responsibilities under this coop- FR 51714, Aug. 31, 2006] erative agreement. Upon completion of activities under this agreement, such Data will § 1274.905 Rights in data. be disposed of as requested by Recipient. (3) Data first produced by Recipient. In the As noted in § 1274.208(l)(1), the fol- event Data first produced by Recipient in lowing provision assumes a substan- carrying out Recipient’s responsibilities tially equal cost sharing relationship under this cooperative agreement is fur- where collaborative research, experi- nished to NASA, and Recipient considers mental, developmental, engineering, such Data to embody trade secrets or to demonstration, or design activities are comprise commercial or financial information which is privileged or confidential, and to be carried out, such that it is likely such Data is so identified with a suitable no- that ‘‘proprietary’’ information will be tice or legend, the Data will be maintained developed and/or exchanged under the in confidence for a period of [insert ‘‘two’’ to agreement. If cost sharing is unequal ‘‘five’’] years after development of the data or no extensive research, experimental, and be disclosed and used by [‘‘NASA’’ or developmental, engineering, dem- ‘‘the Government,’’ as appropriate] and its onstration, or design activities are contractors (under suitable protective condi- likely, a different set of provisions may tions) only for [insert appropriate purpose; for example: experimental; evaluation; re- be appropriate. The Agreement Officer search; development, etc.] by or on behalf of is expected to complete and/or select [‘‘NASA’’ or ‘‘the Government’’ as appro- the appropriate bracketed language priate] during that period. In order that under the provision for those para- [‘‘NASA’’ or the ‘‘Government’’, as appro- graphs dealing with data first produced priate] and its contractors may exercise the under the cooperative agreement. In right to use such Data for the purposes des- addition, the Agreement Officer may, ignated above, NASA, upon request to the Recipient, shall have the right to review and in consultation with the Center’s Pat- request delivery of Data first produced by ent or Intellectual Property Counsel, Recipient. Delivery shall be made within a tailor the provision to fit the par- time period specified by NASA. ticular circumstances of the program (4) Data first produced by NASA. As to data and/or the recipient’s need to protect first produced by NASA in carrying out specific proprietary information. NASA’s responsibilities under this cooperative agreement and which Data would em- RIGHTS IN DATA body trade secrets or would comprise commercial or financial information that is priv- July 2002 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 software and documentation thereof, and aforesaid period such Data may be disclosed data comprising commercial and financial and used (under suitable protective condi- information. tions) by or on behalf of the Government for (b) Data categories. Government purposes only, and thereafter (1) General. Data exchanged between NASA for any purpose whatsoever without restric- and Recipient under this cooperative agree- tion on disclosure and use. Recipient agrees ment will be exchanged without restriction not to disclose such Data to any third party as to its disclosure, use or duplication except without NASA’s written approval until the as otherwise provided below in this provi- aforementioned restricted period expires. sion. Use of this data under a separate cooperative (2) Background Data. In the event it is nec- agreement or contract issued to a party essary for Recipient to furnish NASA with other than the Recipient for the purpose of Data which existed prior to, or produced out- continuing the project in the event this co- side of, this cooperative agreement, and such operative agreement is terminated by either Data embodies trade secrets or comprises party shall constitute a government purpose. commercial or financial information which (5) Copyright. (i) In the event Data is ex- is privileged or confidential, and such Data changed with a notice indicating the Data is is so identified with a suitable notice or leg- protected under copyright as a published end, the Data will be maintained in con- copyrighted work, or are deposited for reg- fidence and disclosed and used by NASA and istration as a published work in the U.S.

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Copyright Office, the following paid-up li- suitable notice or legend indicating the data censes shall apply: was generated under this cooperative agree- (A) If it is indicated on the Data that the ment. Data existed prior to, or was produced out- (d) Lower tier agreements. The Recipient side of, this agreement, the receiving party shall include this provision, suitably modi- and others acting on its behalf, may repro- fied to identify the parties, in all sub- duce, distribute, and prepare derivative contracts or lower tier agreements, regard- works for the purpose of carrying out the re- less of tier, for experimental, developmental, ceiving party’s responsibilities under this cooperative agreement; and or research work. (B) If the furnished Data does not contain the indication of paragraph (b)(5)(i)(A) of [End of provision] this section, it will be assumed that the Data was first produced under this agreement, and § 1274.906 Designation of New Tech- the receiving party and others acting on its nology Representative and Patent behalf, shall be granted a paid up, nonexclu- Representative. sive, irrevocable, world-wide license for all such Data to reproduce, distribute copies to DESIGNATION OF NEW TECHNOLOGY REP- the public, prepare derivative works, dis- RESENTATIVE AND PATENT REPRESENTA- tribute copies to the public, and perform TIVE publicly and display publicly, by or on behalf of the receiving party. For Data that is com- July 2002 puter software, the right to distribute shall (a) For purposes of administration of the be limited to potential users in the United clause of this cooperative agreement entitled States. (ii) When claim is made to copyright, the ‘‘PATENT RIGHTS—RETENTION BY THE Recipient shall affix the applicable copyright CONTRACTOR (LARGE BUSINESS)’’ or notice of 17 U.S.C. 401 or 402 and acknowledg- ‘‘PATENT RIGHTS—RETENTION BY THE ment of Government sponsorship to the data CONTRACTOR (SMALL BUSINESS)’’ the when and if the data are delivered to the following named representatives are hereby Government. designated by the Agreement Officer to ad- (6) Oral and visual information. If informa- minister such clause: tion which the Recipient considers to embody trade secrets or to comprise commer- Title Office Address cial or financial information which is privi- code leged or confidential is disclosed orally or New Technology visually to NASA, such information must be Representative reduced to tangible, recorded form (i.e., con- Patent verted into Data as defined herein), identi- Representative fied and marked with a suitable notice or legend, and furnished to NASA within 10 (b) Reports of reportable items, and disclo- days after such oral or visual disclosure, or sure of subject inventions, interim reports, NASA shall have no duty to limit or restrict, final reports, utilization reports, and other and shall not incur any liability for, any dis- reports required by the clause, as well as any closure and use of such information. correspondence with respect to such matters, (7) Disclaimer of liability. Notwithstanding should be directed to the New Technology the above, NASA shall not be restricted in, Representative unless transmitted in re- nor incur any liability for, the disclosure and use of: sponse to correspondence or request from the (i) Data not identified with a suitable no- Patent Representative. Inquiries or requests tice or legend as set in paragraph (b)(2) of regarding disposition of rights, election of this section; nor rights, or related matters should be directed (ii) Information contained in any Data for to the Patent Representative. This clause which disclosure and use is restricted under shall be included in any subcontract here- paragraphs (b)(2) or (3) of this section, if such under requiring ‘‘PATENT RIGHTS—RE- information is or becomes generally known TENTION BY THE CONTRACTOR (LARGE without breach of the above, is known to or BUSINESS)’’ clause or ‘‘PATENT RIGHTS— is generated by NASA independently of car- RETENTION BY THE CONTRACTOR rying out responsibilities under this agree- (SMALL BUSINESS)’’ clause, unless other- ment, is rightfully received from a third wise authorized or directed by the Agree- party without restriction, or is included in ment Officer. The respective responsibilities data which Participant has, or is required to and authorities of the above-named rep- furnish to the U.S. Government without re- resentatives are set forth in NFS 1827.305–370. striction on disclosure and use. (c) Marking of data. Any Data delivered under this cooperative agreement, by NASA or the Recipient, shall be marked with a

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[End of provision] stone, the Agreement Officer shall authorize payment. Payment shall be made within 30 § 1274.907 Disputes. calendar days after receipt of proper invoice. Payment shall be considered as being made DISPUTES on the date of electronic funds transfer. A July 2002 proper invoice must include the following: (i) Name and address of the recipient. (a) In the event that a disagreement arises, (ii) Invoice date (The Recipient is encour- representatives of the parties shall enter aged to date invoices as close as possible to into discussions in good faith and in a timely the date of the mailing or transmission). and cooperative manner to seek resolution. If these discussions do not result in a satis- (iii) Cooperative agreement number. factory solution, the aggrieved party may (iv) Description, milestone, and extended seek a decision from the Dispute Resolution price of efforts/tasks performed. Official under paragraph (b) of this provi- (v) Payment terms. sion. This request must be presented no more (vi) Name and address of Recipient official than (3) three months after the events giving to whom payment is to be sent. (Must be the rise to the disagreement have occurred. same as that in the cooperative agreement (b) The aggrieved party may submit a writ- or in a proper notice of assignment). ten request for a decision to the Center Om- (vii) Name (where practicable), title, phone budsman, who is designated as the Dispute number, and mailing address of the person to Resolution Official. The written request be notified in the event of a defective in- shall include a statement of the relevant facts, a discussion of the unresolved issues, voice. and a specification of the clarification, re- (viii) Any other information or documenta- lief, or remedy sought. A copy of this written tion required by the cooperative agreement. request and all accompanying materials (ix) Taxpayer identification number (TIN). must be provided to the other party at the (x) While not required, the recipient is same time. The other party shall submit a strongly encouraged to assign an identifica- written position on the matters in dispute tion number to each invoice. within thirty (30) calendar days after receiv- (d) A payment milestone may be success- ing this notification that a decision has been fully completed in advance of the date ap- requested. The Dispute Resolution Official pearing in paragraph (b) of this section. How- shall conduct a review of the matters in dis- ever, payment shall not be made prior to pute and render a decision in writing within that date without the written consent of the thirty (30) calendar days of receipt of such Agreement Officer. written position. (e) The recipient is not entitled to partial [End of provision] payment for partial completion of a payment milestone. § 1274.908 Milestone payments. (f) Unless approved by the Agreement Offi- cer, all preceding payment milestones must MILESTONE PAYMENTS be completed before payment can be made July 2002 for the next payment milestone. (g) (i) If the Recipient is authorized to sub- (a) By submission of the first invoice, the mit invoices directly to the NASA paying of- Recipient is certifying that it has an estab- fice, the original invoice should be submitted lished accounting system which complies to: with generally accepted accounting prin- [Insert the mailing address for submission ciples, with the requirements of this agreement, and that appropriate arrangements of cost vouchers] have been made for receiving, distributing, (ii) If the Recipient is not authorized to and accounting for Federal funds received submit invoices directly to the NASA paying under this agreement. office, the original invoice should be sub- (b) Payments will be made upon the fol- mitted to the Agreement Officer for certifi- lowing milestones: [The schedule for pay- cation. ments may be based upon the Recipient’s (iii) Copies of the recipient’s invoice should completion of specific tasks, submission of be submitted to the following offices: specified reports, or whatever is appro- (A) Copy 1—NASA Agreement Officer. priate.] (B) Copy 2—Auditor. Date Payment Amount (C) Copy 3—Contract administration office. Milestone (D) Copy 4—Project management office. (c) Upon submission by the recipient of in- (E) Copy 5—Other recipients as designated voices in accordance with the provisions of by the Agreement Officer. the agreement and upon certification by NASA of completion of the payable mile-

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[End of provision] cational organization qualified under a State nonprofit organization statute. § 1274.909 Term of agreement. (5) Practical application means to manufacture, in the case of a composition or product; TERM OF AGREEMENT to practice, in the case of a process or method; or to operate, in the case of a machine or July 2002 system; and, in each case, under such condi- (a) The agreement commences on the effec- tions as to establish that the invention is tive date indicated on the attached cover being utilized and that its benefits are, to sheet and continues until the expiration date the extent permitted by law or Government indicated on the attached cover sheet unless regulations, available to the public on rea- terminated by either party. If all resources sonable terms. are expended prior to the expiration date of (6) Recipient means: the agreement, the parties have no obliga- (i) The signatory Recipient party or par- tion to continue performance and may elect ties or; to cease at that point. The parties may ex- (ii) The Consortium, where a Consortium tend the expiration date if additional time is has been formed for carrying out Recipient required to complete the milestones at no in- responsibilities under this agreement. crease in Government resources. Requests (7) Small Business Firm means a domestic for approval for no-cost extensions must be small business concern as defined at 15 forwarded to the NASA Agreement Officer no U.S.C. 632 and implementing regulations of later than ten days prior to the expiration of the Administrator of the Small Business Ad- the award to be considered. ministration. (For the purpose of this defini- (b) Provisions of this Agreement, which, by tion, the size standard contained in 13 CFR their express terms or by necessary implica- 121.901 through 121.911 will be used.) tion, apply for periods of time other than (8) Subject Invention means any invention that specified as the agreement term, shall of a Recipient and/or Government employee be given effect, notwithstanding expiration conceived or first actually reduced to prac- of the term of the agreement. tice in the performance of work under this [End of provision] Agreement. (9) Manufactured substantially in the United § 1274.910 Authority. States means the product must have over 50 percent of its components manufactured in AUTHORITY the United States. This requirement is met if the cost to the Recipient of the components July 2002 mined, produced, or manufactured in the This is a cooperative agreement as defined United States exceeds 50 percent of the cost in 31 U.S.C. 6305 (the Chiles Act) and is en- of all components required to make the prod- tered into pursuant to the authority of 42 uct. (In making this determination only the U.S.C. 2451, et seq. (the Space Act). product and its components shall be considered.) The cost of each component includes [End of provision] transportation costs to the place of incorporation into the product and any applicable § 1274.911 Patent rights. duty (whether or not a duty-free entry certificate is issued). Components of foreign ori- PATENT RIGHTS gin of the same class or kind for which determinations have been made in accordance July 2002 with FAR 25.102(a)(3) and (4) are treated as (a) Definitions. (1) Administrator means the domestic. Scrap generated, collected, and Administrator or Deputy Administrator of prepared for processing in the United States NASA. is considered domestic. (2) Invention means any invention or dis- (b) Allocation of principal rights—(1) Recipi- covery which is or may be patentable or oth- ent Inventions. For other than Small Busi- erwise protectable under Title 35 of the ness Firm or Nonprofit organization Recipi- United States Code. ents, the ‘‘PATENT RIGHTS—RETENTION (3) Made when used in relation to any in- BY RECIPIENT (LARGE BUSINESS)’’ provi- vention means the conception or first actual sion applies. For Small Business Firm and reduction to practice such invention. Nonprofit organization Recipients, the (4) Nonprofit organization means a domestic ‘‘PATENT RIGHTS—RETENTION BY RE- university or other institution of higher edu- CIPIENT (SMALL BUSINESS)’’ provision cation or an organization of the type de- applies. scribed in Section 501(c)(3) of the Internal (2) NASA Inventions. NASA will use reason- Revenue Code of 1954 (26 U.S.C. 501(c)) and able efforts to report inventions made by exempt from taxation under Section 501(a) of NASA employees as a consequence of, or the Internal Revenue Code (26 U.S.C. 501(a)), which bear a direct relation to, the perform- or any domestic nonprofit scientific or edu- ance of specified NASA activities under this

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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 reserved in paragraph (b)(5)(i) of this section. its undivided interest on any waived inven- Upon application in compliance with 37 CFR tions subject, however, to the condition that Part 404—Licensing of Government Owned Recipient makes its best efforts to bring the Inventions, the Recipient or each Consor- invention to the point of practical applica- tium Member (if applicable), shall be granted tion at the earliest practicable time. In the a revocable, nonexclusive, royalty-free li- event that the Administrator determines cense in each patent application filed in any that such efforts are not undertaken, the Ad- country on a subject invention and any re- ministrator may void NASA’s agreement to sulting patent in which the Government ac- refrain from exercising its undivided interest quires title. Each nonexclusive license may and grant licenses for the practice of the in- extend to subsidiaries and affiliates, if any, vention so as to further its development. In within the corporate structure of the li- the event that the Administrator decides to censee and includes the right to grant sub- void NASA’s agreement to refrain from exer- licenses of the same scope to the extent the cising its undivided interest and grant li- licensee was legally obligated to do so at the censes for this reason, notice shall be given time the cooperative agreement was signed. to the Inventions and Contributions Board as (3) NASA Contractor Inventions. In the event to why such action should not be taken. Ei- NASA contractors are tasked to perform ther alternative will be subject to the appli- work in support of specified NASA activities cable license or licenses reserved in para- under this cooperative agreement and inven- graph (b)(5) of this section. tions are made by contractor employees, the (ii) For small business firms and nonprofit recipient will normally retain title to its organization, NASA may assign or transfer employee inventions in accordance with 35 whatever rights it may acquire in a subject U.S.C. 202, 14 CFR Part 1245, and E.O. 12591. invention from its employee to the Recipient In the event the recipient decides not to pur- as authorized by 35 U.S.C. 202(e). sue right to title in any such invention and (5) Minimum rights reserved by the Govern- NASA obtains title to such inventions, ment. Any license or assignment granted Re- NASA will use reasonable efforts to report cipient pursuant to paragraphs (b)(2), (b)(3), such inventions and, upon timely request, or (b)(4) of this section will be subject to the NASA will use its best efforts to grant the reservation of the following licenses: Recipient or designated Consortium Member (i) As to inventions made solely or jointly (if applicable) the first option to acquire ei- by NASA employees, the irrevocable, roy- ther an exclusive or partially exclusive, rev- alty-free right of the Government of the ocable, royalty-bearing license, upon terms United States to practice and have practiced to be subsequently negotiated, for any pat- the invention by or on behalf of the United ent applications and patents covering such States; and inventions, and subject to the license re- (ii) As to inventions made solely by, or served in paragraph (b)(5)(ii) of this section. jointly with, employees of NASA contrac- Upon application in compliance with 37 CFR tors, the rights in the Government of the Part 404—Licensing of Government Owned United States as set forth in paragraph Inventions, the Recipient or each Consor- (b)(5)(i) of this section, as well as the rev- tium Member (if applicable), shall be granted ocable, nonexclusive, royalty-free license in a revocable, nonexclusive, royalty-free li- the contractor as set forth in 14 CFR 1245.108. cense in each patent application filed in any (6) Preference for United States manufacture. country on a subject invention and any re- The Recipient agrees that any products em- sulting patent in which the Government ac- bodying subject inventions or produced quires title. Each nonexclusive license may through the use of subject inventions shall extend to subsidiaries and affiliates, if any, be manufactured substantially in the United within the corporate structure of the li- States. However, in individual cases, the re- censee and includes the right to grant sub- quirement to manufacture substantially in licenses of the same scope to the extent the the United States may be waived by the As- licensee was legally obligated to do so at the sistant Administrator for Procurement (Code time the cooperative agreement was signed. HS) with the concurrence of the Associate (4) Joint NASA and Recipient Inventions. General Counsel for Intellectual Property NASA and Recipient agree to use reasonable upon a showing by the Recipient that under efforts to identify and report to each other the circumstances domestic manufacture is any inventions made jointly between NASA not commercially feasible.

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(7) Work performed by the Recipient under (7) Small business firm, as used in this this cooperative agreement is considered un- clause, means a domestic small business con- dertaken to carry out a public purpose of cern as defined at 15 U.S.C. 632 and imple- support and/or stimulation rather than for menting regulations of the Administrator of acquiring property or services for the direct the Small Business Administration. (For the benefit or use of the Government. Accord- purpose of this definition, the size standard ingly, such work by the Recipient is not con- contained in 13 CFR 121.901 through 121.911 sidered ‘‘by or for the United States’’ and the will be used.) Government assumes no liability for in- (8) Subject invention, as used in this clause, fringement by the Recipient under 28 U.S.C. means any reportable item which is or may 1498. be patentable or otherwise protectable under Title 35 of the United States Code, or any [End of provision] novel variety of plant that is or may be protectable under the Plant Variety Protec- § 1274.912 Patent rights—retention by tion Act (7 U.S.C. 2321, et seq). the recipient (large business). (9) Manufactured substantially in the United States means the product must have over 50 PATENT RIGHTS—RETENTION BY THE percent of its components manufactured in RECIPIENT (LARGE BUSINESS) the United States. This requirement is met if the cost to the Recipient of the components July 2002 mined, produced, or manufactured in the (a) Definitions. (1) Administrator, as used in United States exceeds 50 percent of the cost this clause, means the Administrator of the of all components required to make the prod- National Aeronautics and Space Administra- uct. (In making this determination only the tion (NASA) or duly authorized representa- product and its components shall be consid- tive. ered.) The cost of each component includes (2) Invention, as used in this clause, means transportation costs to the place of incorpo- any invention or discovery which is or may ration into the product and any applicable be patentable or otherwise protectable under duty (whether or not a duty-free entry cer- title 35 of the U.S.C. tificate is issued). Components of foreign ori- (3) Made, as used in relation to any inven- gin of the same class or kind for which deter- tion, means the conception or first actual re- minations have been made in accordance duction to practice such invention. with Federal Acquisition Regulation (4) Nonprofit organization, as used in this 25.102(a)(3) and (4) are treated as domestic. clause, means a domestic university or other Scrap generated, collected, and prepared for institution of higher education or an organi- processing in the United States is considered zation of the type described in section domestic. 501(c)(3) of the Internal Revenue Code of 1954 (b) Allocation of principal rights—(1) Pre- (26 U.S.C. 501(c)) and exempt from taxation sumption of title. (i) Any reportable item that under section 501(a) of the Internal Revenue the Administrator considers to be a subject Code (26 U.S.C. 501(a)), or any domestic non- invention shall be presumed to have been profit scientific or educational organization made in the manner specified in paragraph qualified under a State nonprofit organiza- (1) or (2) of section 305(a) of the National tion statute. Aeronautics and Space Act of 1958 (42 U.S.C. (5) Practical application, as used in this 2457(a)) (hereinafter called ‘‘the Act’’), and clause, means to manufacture, in the case of the above presumption shall be conclusive a composition or product; to practice, in the unless at the time of reporting the report- case of a process or method; or to operate, in able item the Recipient submits to the case of a machine or system; and, in each, Agreement Officer a written statement, con- case, under such conditions as to establish taining supporting details, demonstrating that the invention is being utilized and that that the reportable item was not made in the its benefits are, to the extent permitted by manner specified in paragraph (1) or (2) of law or Government regulations, available to section 305(a) of the Act. the public on reasonable terms. (ii) Regardless of whether title to a given (6) Reportable item, as used in this clause, subject invention would otherwise be subject means any invention, discovery, improve- to an advance waiver or is the subject of a ment, or innovation of the Recipient, wheth- petition for waiver, the Recipient may never- er or not the same is or may be patentable or theless file the statement described in para- otherwise protectable under Title 35 of the graph (b)(1)(i) of this section. The Adminis- United States Code, conceived or first actu- trator will review the information furnished ally reduced to practice in the performance by the Recipient in any such statement and of any work under this contract or in the any other available information relating to performance of any work that is reimburs- the circumstances surrounding the making able under any clause in this contract proof the subject invention and will notify the viding for reimbursement of costs incurred Recipient whether the Administrator has de- prior to the effective date of this contract. termined that the subject invention was

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made in the manner specified in paragraph ent in which the Government acquires title, (1) or (2) of section 305(a) of the Act. unless the Recipient fails to disclose the sub- (2) Property rights in subject inventions. Each ject invention within the times specified in subject invention for which the presumption paragraph (e)(2) of this section. The Recipi- of paragraph (b)(1)(i) of this section is con- ent’s license extends to its domestic subsidi- clusive or for which there has been a deter- aries and affiliates, if any, within the cor- mination that it was made in the manner porate structure of which the Recipient is a specified in paragraph (1) or (2) of section party and includes the right to grant sub- 305(a) of the Act shall be the exclusive prop- licenses of the same scope to the extent the erty of the United States as represented by Recipient was legally obligated to do so at NASA unless the Administrator waives all or the time the contract was awarded. The li- any part of the rights of the United States, cense is transferable only with the approval as provided in paragraph (b)(3) of this sec- of the Administrator except when trans- tion. ferred to the successor of that part of the Re- (3) Waiver of rights. (i) Section 305(f) of the cipient’s business to which the invention Act provides for the promulgation of regula- pertains. tions by which the Administrator may waive (2) The Recipient’s domestic license may the rights of the United States with respect be revoked or modified by the Administrator to any invention or class of inventions made to the extent necessary to achieve expedi- or that may be made under conditions speci- tious practical application of the subject in- fied in paragraph (1) or (2) of section 305(a) of vention pursuant to an application for an ex- the Act. The promulgated NASA Patent clusive license submitted in accordance with Waiver Regulations, 14 CFR part 1245, sub- 14 CFR part 1245, subpart 3, Licensing of part 1, have adopted the Presidential memo- NASA Inventions. This license will not be re- randum on Government Patent Policy of voked in that field of use or the geographical February 18, 1983, as a guide in acting on pe- areas in which the Recipient has achieved titions (requests) for such waiver of rights. practical application and continues to make (ii) As provided in 14 CFR part 1245, subpart 1, Recipients may petition, either prior the benefits of the invention reasonably ac- to execution of the Agreement or within 30 cessible to the public. The license in any for- days after execution of the Agreement, for eign country may be revoked or modified at advance waiver of rights to any or all of the the discretion of the Administrator to the inventions that may be made under an extent the Recipient, its licensees, or its do- Agreement. If such a petition is not sub- mestic subsidiaries or affiliates have failed mitted, or if after submission it is denied, to achieve practical application in that for- the Recipient (or an employee inventor of eign country. the Recipient may petition for waiver of (3) Before revocation or modification of the rights to an identified subject invention license, the Recipient will be provided a within eight months of first disclosure of in- written notice of the Administrator’s inten- vention in accordance with paragraph (e)(2) tion to revoke or modify the license, and the of this section or within such longer period Recipient will be allowed 30 days (or such as may be authorized in accordance with 14 other time as may be authorized by the Ad- CFR 1245.105. Further procedures are pro- ministrator for good cause shown by the Re- vided in the REQUESTS FOR WAIVER OF cipient) after the notice to show cause why RIGHTS—LARGE BUSINESS provision. the license should not be revoked or modi- (c) Minimum rights reserved by the Govern- fied. The Recipient has the right to appeal, ment. (1) With respect to each Recipient sub- in accordance with 14 CFR 1245.112, any deci- ject invention for which a waiver of rights is sion concerning the revocation or modifica- applicable in accordance with 14 CFR part tion of its license. 1245, subpart 1, the Government reserves— (e) Invention identification, disclosures, and (i) An irrevocable, royalty-free license for reports. (1) The Recipient shall establish and the practice of such invention throughout maintain active and effective procedures to the world by or on behalf of the United assure that reportable items are promptly States or any foreign government in accord- identified and disclosed to Recipient per- ance with any treaty or agreement with the sonnel responsible for the administration of United States; and this clause within six months of conception (ii) Such other rights as stated in 14 CFR and/or first actual reduction to practice, 1245.107. whichever occurs first in the performance of (2) Nothing contained in this paragraph work under this contract. These procedures shall be considered to grant to the Govern- shall include the maintenance of laboratory ment any rights with respect to any inven- notebooks or equivalent records and other tion other than a subject invention. records as are reasonably necessary to docu- (d) Minimum rights to the Recipient. (1) The ment the conception and/or the first actual Recipient is hereby granted a revocable, non- reduction to practice of the reportable exclusive, royalty-free license in each patent items, and records that show that the proce- application filed in any country on a Recipi- dures for identifying and disclosing report- ent subject invention and any resulting pat- able items are followed. Upon request, the

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Recipient shall furnish the Agreement Offi- duplicate and disclose subject invention dis- cer a description of such procedures for eval- closures and all other reports and papers fur- uation and for determination as to their ef- nished or required to be furnished pursuant fectiveness. to this clause. (2) The Recipient will disclose each report- (f) Examination of records relating to inven- able item to the Agreement Officer within tions. (1) The Agreement Officer or any au- two months after the inventor discloses it in thorized representative shall, pursuant to writing to Recipient personnel responsible the Retention and Examination of Records for the administration of this clause or, if provision of this cooperative agreement, earlier, within six months after the Recipi- have the right to examine any books (includ- ent becomes aware that a reportable item ing laboratory notebooks), records, and doc- has been made, but in any event for subject uments of the Recipient relating to the con- inventions before any on sale, public use, or ception or first actual reduction to practice publication of such invention known to the of inventions in the same field of technology Recipient. The disclosure to the agency shall as the work under this contract to determine be in the form of a written report and shall whether— identify the Agreement under which the re- (i) Any such inventions are subject inven- portable item was made and the inventor(s) tions; or innovator(s). It shall be sufficiently com- (ii) The Recipient has established and plete in technical detail to convey a clear maintained the procedures required by para- understanding, to the extent known at the graph (e)(1) of this section; and time of the disclosure, of the nature, pur- (iii) The Recipient and its inventors have pose, operation, and physical, chemical, bio- complied with the procedures. logical, or electrical characteristics of the (2) If the Agreement Officer learns of an reportable item. The disclosure shall also unreported Recipient invention that the identify any publication, on sale, or public Agreement Officer believes may be a subject use of any subject invention and whether a inventions, the Recipient may be required to manuscript describing such invention has disclose the invention to the agency for a de- been submitted for publication and, if so, termination of ownership rights. whether it has been accepted for publication (3) Any examination of records under this at the time of disclosure. In addition, after paragraph will be subject to appropriate con- disclosure to the agency, the Recipient will ditions to protect the confidentiality of the promptly notify the agency of the accept- information involved. ance of any manuscript describing a subject (g) Subcontracts. (1) Unless otherwise au- invention for publication or of any on sale or thorized or directed by the Agreement Offi- public use planned by the Recipient for such cer, the Recipient shall— invention. (i) Include this Clause Patent Rights—Re- (3) The Recipient shall furnish the Agree- tention by the Recipient—(Large Business) ment Officer the following: (suitably modified to identify the parties) in (i) Interim reports every 12 months (or any subcontract hereunder (regardless of such longer period as may be specified by the tier) with other than a small business firm Agreement Officer) from the date of the or nonprofit organization for the perform- Agreement, listing reportable items during ance of experimental, developmental, or re- that period, and certifying that all report- search work; and able items have been disclosed (or that there (ii) Include the clause Patent Right—Re- are no such inventions) and that the proce- tention by the Recipient—(Small Business) dures required by paragraph (e)(1) of this sec- (suitably modified to identify the parties) in tion have been followed. any subcontract hereunder (regardless of (ii) A final report, within three months tier) with a small business firm or nonprofit after completion of the work, listing all reorganization for the performance of experi- portable items or certifying that there were mental, developmental, or research work. no such reportable items, and listing all sub- (2) In the event of a refusal by a prospec- contracts at any tier containing a patent tive subcontractor to accept such a clause rights clause or certifying that there were no the Recipient— such subcontracts. (i) Shall promptly submit a written notice (4) The Recipient agrees, upon written re- to the Agreement Officer setting forth the quest of the Agreement Officer, to furnish subcontractor’s reasons for such refusal and additional technical and other information other pertinent information that may expe- available to the Recipient as is necessary for dite disposition of the matter; and the preparation of a patent application on a (ii) Shall not proceed with such sub- subject invention and for the prosecution of contract without the written authorization the patent application, and to execute all pa- of the Agreement Officer. pers necessary to file patent applications on (3) The Recipient shall promptly notify the subject inventions and to establish the Gov- Agreement Officer in writing upon the award ernment’s rights in the subject inventions. of any subcontract at any tier containing a (5) The Recipient agrees, subject to 48 CFR patent rights clause by identifying the sub- (FAR) 27.302(j), that the Government may contractor, the applicable patent rights

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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 Agreement Officer, the Recipient shall fur- States. However, in individual cases, the re- nish a copy of such subcontract, and, no quirement to manufacture substantially in more frequently than annually, a listing of the United States may be waived by the As- the subcontracts that have been awarded. sistant Administrator for Procurement (Code (4) The subcontractor will retain all rights HS) with the concurrence of the Associate provided for the Recipient in the clause of General Counsel for Intellectual Property paragraph (g)(1)(i) or (1)(ii) of this section, upon a showing by the Recipient that under whichever is included in the subcontract, the circumstances domestic manufacture is and the Recipient will not, as part of the 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 informed 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— (ii) Request, in the event of inability to (1) Such action is necessary because the reach agreement pursuant to paragraph Recipient or assignee has not taken, or is (g)(5)(i) of this section, that NASA invoke not expected to take within a reasonable exceptional circumstances as necessary pur- time, effective steps to achieve practical ap- suant to 37 CFR 401.3(a)(2) if the prospective plication of the subject invention in such subcontractor is a small business firm or or- field of use; ganization, or for all other organizations, re- (2) Such action is necessary to alleviate quest that such rights for the Recipient be health or safety needs which are not reason- included as an additional reservation in a ably satisfied by the Recipient, assignee, or waiver granted pursuant to 14 CFR part 1245, their licensees; subpart 1. Any such requests to NASA should (3) Such action is necessary to meet re- be prepared in consideration of the following quirements for public use specified by Fed- guidance and submitted to the contract offi- eral regulations and such requirements are cer. not reasonably satisfied by the Recipient, as- (A) Exceptional circumstances. A request signee, or licensees; or that NASA make an ‘‘exceptional cir- (4) Such action is necessary because the cumstances’’ determination pursuant to 37 agreement required by paragraph (i) of this CFR 401.3(a)(2) must state the scope of rights clause has not been obtained or waived or be- sought by the Recipient pursuant to such de- cause a licensee of the exclusive right to use termination; identify the proposed subcon- or sell any subject invention in the United tractor and the work to be performed under States is in breach of such agreement. the subcontract; and state the need for the determination. [End of provision] (B) Waiver petition. The subcontractor should be advised that unless it requests a § 1274.913 Patent rights—retention by waiver of title pursuant to the NASA Patent the recipient (small business). Waiver Regulations (14 CFR part 1245, subpart 1), NASA will acquire title to the sub- PATENT RIGHTS—RETENTION BY THE ject invention (42 U.S.C. 2457, as amended, RECIPIENT (SMALL BUSINESS) sec. 305). If a waiver is not requested or July 2002 granted, the Recipient may request a license from NASA (see licensing of NASA inven- (a) Definitions. (1) Invention, as used in this tions, 14 CFR part 1245, subpart 3). A subcon- clause, means any invention or discovery tractor requesting a waiver must follow the which is or may be patentable or otherwise procedures set forth in the attached clause protectable under title 35 of the U.S.C. REQUESTS FOR WAIVER OF RIGHTS— (2) Made, as used in this clause, when used LARGE BUSINESS. in relation to any invention means the con- (h) Preference for United States manufacture. ception or first actual reduction to practice The Recipient agrees that any products em- such invention.

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(3) Nonprofit organization, as used in this States the subject invention throughout the clause, means a university or other institu- world. tion of higher education or an organization (c) Invention disclosure, election of title, and of the type described in section 501(c)(3) of filing of patent application by Recipient. (1) the Internal Revenue Code of 1954 (26 U.S.C. The Recipient will disclose each subject in- 501(c)) and exempt from taxation under sec- vention to NASA within two months after tion 501(a) of the Internal Revenue Code (26 the inventor discloses it in writing to Recipi- U.S.C. 501(a)) or any nonprofit scientific or ent personnel responsible for patent matters. educational organization qualified under a The disclosure to the agency shall be in the state nonprofit organization statute. form of a written report and shall identify (4) Practical application, as used in this the contract under which the invention was clause, means to manufacture, in the case of made and the inventor(s). It shall be suffi- a composition of product; to practice, in the ciently complete in technical detail to con- case of a process or method, or to operate, in vey a clear understanding to the extent the case of a machine or system; and, in each known at the time of the disclosure, of the case, under such conditions as to establish nature, purpose, operation, and the physical, that the invention is being utilized and that chemical, biological or electrical character- its benefits are, to the extent permitted by istics of the invention. The disclosure shall law or Government regulations, available to also identify any publication, on sale or pub- the public on reasonable terms. lic use of the invention and whether a manu- (5) Small business firm, as used in this script describing the invention has been sub- clause, means a small business concern as mitted for publication and, if so, whether it defined at Section 2 of Pub. L. 85–536 (15 has been accepted for publication at the time of disclosure. In addition, after disclosure to U.S.C. 632) and implementing regulations of the agency, the Recipient will promptly no- the Administrator of the Small Business Ad- tify the agency of the acceptance of any ministration. For the purpose of this clause, manuscript describing the invention for pub- the size standards for small business con- lication or of any sale or public use planned cerns involved in Government procurement by the Recipient. and subcontracting at 13 CFR 121.901 through (2) The Recipient will elect in writing 121.911 will be used. whether or not to retain title to any such in- (6) Subject invention, as used in this clause, vention by notifying NASA within two years means any invention of the Subcontractor of disclosure to the Federal agency. How- conceived or first actually reduced to prac- ever, in any case where publication, on sale tice in the performance of work under this or public use has initiated the one-year stat- Agreement. utory period wherein valid patent protection (7) Manufactured substantially in the United can still be obtained in the United States, States means the product must have over 50 the period for election of title may be short- percent of its components manufactured in ened by the agency to a date that is no more the United States. This requirement is met if than 60 days prior to the end of the statutory the cost to the Recipient of the components period. mined, produced, or manufactured in the (3) The Recipient will file its initial patent United States exceeds 50 percent of the cost application on a subject invention to which of all components required to make the prod- it elects to retain title within one year after uct. (In making this determination only the election of title or, if earlier, prior to the end product and its components shall be consid- of any statutory period wherein valid patent ered.) The cost of each component includes protection can be obtained in the United transportation costs to the place of incorpo- States after a publication, on sale, or public ration into the product and any applicable use. The Recipient will file patent applica- duty (whether or not a duty-free entry cer- tions in additional countries or international tificate is issued). Components of foreign ori- patent offices within either 10 months of the gin of the same class or kind for which deter- corresponding initial patent application of minations have been made in accordance six months from the date permission is with FAR 25.102(a)(3) and (4) are treated as granted by the Commissioner of Patents and domestic. Scrap generated, collected, and Trademarks to file foreign patent applica- prepared for processing in the United States tions where such filing has been prohibited is considered domestic. by a Secrecy Order. (b) Allocation of principal rights. The Recipi- (4) Requests for extension of the time for ent may retain the entire right, title, and in- disclosure election, and filing under para- terest throughout the world to each subject graphs (c)(1), (2), and (3) of this section may, invention subject to the provisions of this at the discretion of the agency, be granted. clause and 35 U.S.C. 203. With respect to any (d) Conditions when the Government may ob- subject invention in which the Recipient retain title. The Recipient will convey to tains title, the Federal Government shall NASA, upon written request, title to any have a nonexclusive, nontransferable, irrev- subject invention— ocable, paid-up license to practice or have (1) If the Recipient fails to disclose or elect practiced for or on behalf of the United title to the subject invention within the

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times specified in paragraph (c) of this sec- cause why the license should not be revoked tion, or elects not to retain title; provided, or modified. The Recipient has the right to that the agency may only request title with- appeal, in accordance with applicable regula- in 60 days after learning of the failure of the tions in 37 CFR Part 404 and 14 CFR Subpart Recipient to disclose or elect within the 1245.1, concerning the licensing of Govern- specified times. ment-owned inventions, any decision con- (2) In those countries in which the Recipi- cerning the revocation or modification of the ent fails to file patent applications within 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. (1) The Recipient agrees to cipient has filed a patent application in a execute or to have executed and promptly country after the times specified in para- deliver to NASA all instruments necessary graph (c) of this section, but prior to its re- to: ceipt of the written request of the Federal (i) establish or confirm the rights the Gov- agency, the Recipient shall continue to re- ernment has throughout the world in those tain title in that country. subject inventions to which the Subcon- (3) In any country in which the Recipient tractor elects to retain title, and, decides not to continue the prosecution of (ii) convey title to the Federal agency any application for, to pay the maintenance when requested under paragraph (d) of this fees on, or defend in reexamination or oppo- section and to enable the Government to ob- sition proceeding on, a patent on a subject tain patent protection throughout the world invention. in that subject invention. (e) Minimum rights to Recipient and protec- (2) The Recipient agrees to require, by tion of the Recipient right to file. (1) The Re- written agreement, its employees, other cipient will retain a nonexclusive, royalty- than clerical and nontechnical employees, to free license throughout the world in each subject invention to which the Government disclose promptly in writing to personnel obtains title, except if the Recipient fails to identified as responsible for the administra- disclose the invention within the times spec- tion of patent matters and in a format sug- ified in paragraph (c) of this section. The Re- gested by the Recipient each subject inven- cipient’s license extends to its domestic sub- tion made under contract in order that the sidiary and affiliates, if any, within the cor- Recipient can comply with the disclosure porate structure of which the Recipient is a provisions of paragraph (c) of this section, party and includes the right to grant sub- and to execute all papers necessary to file licenses of the same scope to the extent the patent applications on subject inventions Recipient was legally obligated to do so at and to establish the Government’s rights in the time the agreement was awarded. The li- the subject inventions. This disclosure for- cense is transferable only with the approval mat should require, as a minimum, the infor- of NASA, except when transferred to the suc- mation required by paragraph (c)(1) of this cessor of that part of the Recipient’s busi- section. The Recipient shall instruct such ness to which the invention pertains. employees, through employee agreements or (2) The Contractor’s domestic license may other suitable educational programs, on the be revoked or modified by NASA to the ex- importance of reporting inventions in suffi- tent necessary to achieve expeditious prac- cient time to permit the filing of patent ap- tical application of subject invention pursu- plications prior to U.S. or foreign statutory ant to an application for an exclusive license bars. submitted in accordance with applicable pro- (3) The Recipient will notify NASA of any visions at 37 CFR Part 404 and agency licens- decisions not to continue the prosecution of ing regulations (if any). This license will not a patent application, pay maintenance fees, be revoked in that field of use or the geo- or defend in a reexamination or opposition graphical areas in which the Subcontractor proceeding on a patent, in any country, not has achieved practical application and con- less than 30 days before the expiration of the tinues to make the benefits of the invention response period required by the relevant pat- reasonable accessible to the public. The li- ent office. cense in any foreign country may be revoked (4) The Recipient agrees to include, within or modified at the discretion of NASA to the the specification of any United States patent extent the Subcontractor, its licensees, or application and any patent issuing thereon the domestic subsidiaries or affiliates have covering a subject invention the following failed to achieve practical application in statement, ‘‘This invention was made with that foreign country. Government support under (identify the (3) Before revocation or modification of the agreement) awarded by NASA. The Govern- license, NASA will furnish the Recipient a ment has certain rights in the invention.’’ written notice of its intention to revoke or (5) The Recipient shall provide the Agree- modify the license, and the Recipient will be ment Officer the following: allowed 30 days (or such other time as may (i) A listing every 12 months (or such be authorized by NASA for good cause shown longer period as the Agreement Officer may by the Recipient) after the notice to show specify) from the date of the Agreement, of

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all subject inventions required to be dis- rights of NASA set forth elsewhere in this closed during the period. clause, to— (ii) A final report prior to closeout of the (i) Acquire by negotiation and mutual Agreement listing all subject inventions or agreement rights to a subcontractor’s sub- certifying that there were none. ject inventions as the Recipient may deem (iii) Upon request, the filing date, serial necessary to obtaining and maintaining of number, and title, a copy of the patent appli- such private support; and cation, and patent number and issue date for (ii) Request, in the event of inability to any subject invention in any country in reach agreement pursuant to paragraph which the Recipient has applied for patents. (g)(5)(i) of this section that NASA invoke ex- (iv) An irrevocable power to inspect and ceptional circumstances as necessary pursu- make copies of the patent application file, ant to 37 CFR 401.3(a)(2) if the prospective 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. (1) Unless otherwise au- quest that such rights for the Recipient be thorized or directed by the Agreement Offi- included as an additional reservation in a cer, 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 contract of- all subcontracts, regardless of tier, for exper- fice: 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 the Recipient— (B) Waiver petition. The subcontractor (i) Shall promptly submit a written notice should be advised that unless it requests a to the Agreement Officer setting forth the waiver of title pursuant to the NASA Patent subcontractor’s reasons for such refusal and Waiver Regulations (14 CFR part 1245, sub- other pertinent information that may expe- part 1), NASA will acquire title to the sub- dite disposition of the matter; and ject invention (42 U.S.C. 2457, as amended, (ii) Shall not proceed with such sub- sec. 305). If a waiver is not requested or contract without the written authorization granted, the Recipient may request a license of the Agreement Officer. from NASA (see licensing of NASA inven- (3) The Recipient shall promptly notify the tions, 14 CFR part 1245, subpart 3). A subcon- Agreement Officer in writing upon the award tractor requesting a waiver must follow the of any subcontract at any tier containing a procedures set forth in the REQUESTS FOR patent rights clause by identifying the sub- WAIVER OF RIGHTS—LARGE BUSINESS contractor, the applicable patent rights provision. clause, the work to be performed under the (h) Reporting on utilization of subject inven- subcontract, and the dates of award and esti- tions. The Recipient agrees to submit, on re- mated completion. Upon request of the quest, periodic reports no more frequently Agreement Officer, the Recipient shall fur- than annually on the utilization of a subject nish a copy of such subcontract, and, no invention or on efforts at obtaining such uti- more frequently than annually, a listing of lization that are being made by the Recipi- the subcontracts that have been awarded. ent or its licensees or assignees. Such re- (4) The subcontractor will retain all rights ports shall include information regarding the provided for the Recipient in the clause status of development, date of first commer- under paragraph (g)(1)(i) or (g)(1)(ii) of this cial sale or use, gross royalties received by section, whichever is included in the sub- the Recipient, and such other data and infor- contract, and the Recipient will not, as part mation as the agency may reasonably speci- of the consideration for awarding the sub- fy. The Recipient also agrees to provide addi- contract, obtain rights in the subcontrac- tional reports as may be requested by the tor’s subject inventions. agency in connection with any march-in pro- (5) Notwithstanding paragraph (g)(4) of this ceeding under-taken by the agency in ac- section, and in recognition of the contrac- cordance with paragraph (i) of this section. tor’s substantial contribution of funds, fa- As required by 35 U.S.C. 202(c)(5), the agency cilities and/or equipment to the work per- agrees it will not disclose such information formed under this cooperative agreement, to persons outside the Government without the Recipient is authorized, subject to the permission of the Recipient.

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(i) Preference for United States manufacture. subject invention is assigned in accordance The Recipient agrees that any products em- with 35 U.S.C. 202(e) and 37 CFR 401.10; bodying subject inventions or produced (3) The balance of any royalties or income through the use of subject inventions shall earned by the Recipient with respect to sub- be manufactured substantially in the United ject inventions, after payment of expenses States. However, in individual cases, the re- (including payments to inventors) incidental quirement to manufacture substantially in to the administration of subject inventions the United States may be waived by the As- will be utilized for the support of scientific sistant Administrator for Procurement (Code HS) with the concurrence of the Associate research or education; and General Counsel for Intellectual Property (4) It will make efforts that are reasonable upon a showing by the Recipient that under under the circumstances to attract licensees the circumstances domestic manufacture is of subject inventions that are small business not commercially feasible. firms, and that it will give a preference to a (j) March-in rights. The Recipient agrees small business firm when licensing a subject that, with respect to any subject invention invention if the Recipient determines that in which it has acquired title, NASA has the the small business firm has a plan or pro- right in accordance with the procedures in 37 posal for marketing the invention which, if CFR 401.6 and any supplemental regulations executed, is equally as likely to bring the in- of the agency to require the Recipient, an as- vention to practical application as any plans signee or exclusive licensee of a subject in- or proposals from applicants that are not vention to grant a nonexclusive, partially small business firms; provided that the Re- exclusive, or exclusive license in any field of cipient is also satisfied that the small busi- use to a responsible applicant or applicants, ness firm has the capability and resources to upon terms that are reasonable under the circumstances, and if the Subcontractor, as- carry out its plan or proposal. The decision signee, or exclusive licensee refuses such a whether to give a preference in any specific request NASA has the right to grant such a case will be at the discretion of the Recipi- license itself if the Federal agency deter- ent. However, the Recipient agrees that the mines that— Secretary of Commerce may review the Con- (1) Such action is necessary because the tractor’s licensing program and decisions re- Recipient or assignee has not taken, or is garding small business applicants, and the not expected to take within a reasonable Recipient will negotiate changes to its li- time, effective steps to achieve practical ap- censing policies, procedures, or practices plication of the subject invention in such with the Secretary of Commerce when the field of use; Secretary’s review discloses that the Recipi- (2) Such action is necessary to alleviate ent could take reasonable steps to more ef- health or safety needs which are not reason- fectively implement the requirements of this ably satisfied by the Recipient, assignee, or paragraph. their licensees; (l) Documentation submissions. A copy of all (3) Such action is necessary to meet requirements for public use specified by Fed- submissions or requests required by this eral regulations and such requirements are clause, plus a copy of any reports, manu- not reasonably satisfied by the Recipient, as- scripts, publications, or similar material signee, or licensees; or bearing on patent matters, shall be sent to (4) Such action is necessary because the the installation Patent Counsel in addition agreement required by paragraph (i) of this to any other submission requirements in the section has not been obtained or waived or cooperative agreement. If any reports con- because a licensee of the exclusive right to tain information describing a ‘‘subject in- use or sell any subject invention in the vention’’ for which the Recipient has elected United States is in breach of such agree- or may elect title, NASA will use reasonable ment. efforts to delay public release by NASA or (k) Special provisions for Agreements with publication by NASA in a NASA technical nonprofit organizations. If the Recipient is a series, in order for a patent application to be nonprofit organization, it agrees that— filed, provided that the Recipient identify (1) Rights to a subject invention in the the information and the ‘‘subject invention’’ United States may not be assigned without to which it relates at the time of submittal. the approval of NASA, except where such as- If required by the Agreement Officer, the Re- signment is made to an organization which cipient shall provide the filing date, serial has one of its primary functions the manage- number and title, a copy of the patent appli- ment of inventions; provided, that such assignee will be subject to the same provisions cation, and a patent number and issue date as the Recipient; for any ‘‘subject invention’’ in any country (2) The Recipient will share royalties col- in which the Recipient has applied for pat- lected on a subject invention with the inven- ents. tor, including Federal employee co-inventors (when NASA deems it appropriate) when the

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[End of provision] waiver be granted, and will notify the petitioner and the Agreement Officer of the Ad- § 1274.914 Requests for waiver of ministrator’s determination. The Agreement rights—large business. Officer will be informed by the Board whenever there is insufficient time or information REQUESTS FOR WAIVER OF RIGHTS—LARGE or other reasons to permit a decision to be BUSINESS made without unduly delaying the execution of the agreement. In the latter event, the pe- July 2002 titioner will be so notified by the Agreement (a) In accordance with the NASA Patent Officer. All other petitions will be processed Waiver Regulations, 14 CFR part 1245, sub- by installation Patent Counsel and for- part 1, waiver of rights to any or all inven- warded to the Board. The Board shall notify tions made or that may be made under a the petitioner of its action and if waiver is NASA agreement, contract or subcontract granted, the conditions, reservations, and with other than a small business firm or a obligations thereof will be included in the domestic nonprofit organization may be re- Instrument of Waiver. Whenever the Board quested at different time periods. Advance notifies a petitioner of a recommendation waiver of rights to any or all inventions that adverse to, or different from, the waiver re- may be made under a contract or sub- quested, the petitioner may request recon- contract may be requested prior to the exe- sideration under procedures set forth in the cution of the agreement, contract or sub- Regulations. contract, or within 30 days after execution by the selected Recipient. In addition, waiv- [End of provision] er of rights to an identified invention made and reported under an agreement, contract § 1274.915 Restrictions on sale or or subcontract may be requested, even transfer of technology to foreign though a request for an advance waiver was firms or institutions. not made 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 NOLOGY TO FOREIGN FIRMS OR INSTITU- include an identification of the petitioner; TIONS place of business and address; if petitioner is represented by counsel, the name, address, July 2002 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 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 (2) Licenses of software or documentation individual identified invention; whether for- related to sales of products or components, eign rights are also requested and, if so, the or countries, and a citation of the specific Sec- (3) Transfers to foreign subsidiaries of the tion or Sections of the regulations under Recipient for purposes related to this Agree- which such rights are requested; and the ment. name, address, and telephone number of the (b) The Recipient shall provide timely no- party with whom to communicate when the tice to the Agreement Officer in writing of request is acted upon. Requests for advance any proposed transfer of technology devel- waiver of rights should, preferably, be in- oped under this Agreement. If NASA deter- cluded with the proposal, but in any event in mines that the transfer may have adverse advance of negotiations. consequences to the national security inter- (c) Petitions for advance waiver, prior to ests of the United States, or to the establish- agreement execution, must be submitted to ment of a robust United States industry, the Agreement Officer. All other petitions NASA and the Recipient shall jointly en- will be submitted to the Patent Representa- deavor to find alternatives to the proposed tive designated in the contract. transfer which obviate or mitigate potential (d) Petitions submitted with proposals se- adverse consequences of the transfer. lected for negotiation of an agreement will be forwarded by the Contracting or Officer to [End of provision] the installation Patent Counsel for processing and then to the Inventions and Con- § 1274.916 Liability and risk of loss. tributions Board. The Board will consider these petitions and where the Board makes The following provision is applicable the findings to support the waiver, the Board to all cooperative agreements with will recommend to the Administrator that commercial firms, except programs or

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projects that are subject to Section 431 action required of the Recipient. NASA is of Public Law 105–276, which addresses not obligated to make payments in excess of insurance for, or indemnification of, the total funds obligated. developers of experimental aerospace [End of provision] vehicles.

LIABILITY AND RISK OF LOSS § 1274.919 Cost principles and accounting standards. July 2002 COST PRINCIPLES AND ACCOUNTING STANDARDS (a) With regard to activities undertaken pursuant to this agreement, neither party July 2002 shall make any claim against the other, em- The expenditure of Government funds by ployees of the other, the other’s related enti- the Recipient and the allowability of costs ties (e.g., contractors, subcontractors, etc.), recognized as a resource contribution by the or employees of the other’s related entities Recipient (See clause entitled ‘‘Resource for any injury to or death of its own employ- Sharing Requirements’’) shall be governed ees or employees of its related entities, or by the FAR cost principles implemented by for damage to or loss of its own property or FAR Parts 30, 31, and 48 CFR part 99. (If the that of its related entities, whether such in- Recipient is a consortium which includes jury, death, damage or loss arises through non-commercial firm members, cost allow- negligence or otherwise, except in the case of ability for those members will be determined willful misconduct. as follows: Allowability of costs incurred by (b) To the extent that a risk of damage or State, local or federally-recognized Indian loss is not dealt with expressly in this agree- tribal governments is determined in accord- ment, each party’s liability to the other ance with the provisions of OMB Circular A– party arising out of this Agreement, whether 87, ‘‘Cost Principles for State and Local Gov- or not arising as a result of an alleged breach ernments.’’ The allowability of costs in- of this Agreement, shall be limited to direct curred by non-profit organizations is deter- damages only, and shall not include any loss mined in accordance with the provisions of of revenue or profits or other indirect or con- OMB Circular A–122, ‘‘Cost Principles for sequential damages. Non-Profit Organizations.’’ The allowability of costs incurred by institutions of higher [End of provision] education is determined in accordance with the provisions of OMB Circular A–21, ‘‘Cost § 1274.917 Additional funds. Principles for Educational Institutions.’’ The allowability of costs incurred by hospitals is ADDITIONAL FUNDS determined in accordance with the provi- July 2002 sions of Appendix E of 45 CFR part 74, ‘‘Prin- ciples for Determining Costs Applicable to Pursuant to this Agreement, NASA is pro- Research and Development Under Grants and viding a fixed amount of funding for activi- Contracts with Hospitals.’’) ties to be undertaken under the terms of this cooperative agreement. NASA is under no [End of provision] 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 OFFICER [End of provision] July 2002 § 1274.918 Incremental funding. (a) The NASA Agreement Officer and Tech- nical Officer for this cooperative agreement INCREMENTAL FUNDING are identified on the cooperative agreement cover sheet. July 2002 (b) The Agreement Officer 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 may supplement the Agreement, as thority to issue written Technical Advice required, until it is fully funded. Any work which suggests redirecting the project work beyond the funding limit will be at the re- (e.g., by changing the emphasis among dif- cipient’s risk. ferent tasks), or pursuing specific lines of in- (b) These funds will be obligated as appro- quiry likely to assist in accomplishing the priated funds become available without any effort. The Technical Officer shall have the

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authority to approve or disapprove those agreement. This report is intended to sum- technical reports, plans, and other technical marize the entire research accomplished dur- information the Recipient is required to sub- ing the duration of the cooperative agree- mit to NASA for approval. The Technical Of- ment. ficer is not authorized to issue and the Re- (e) Progress reports and summaries of recipient shall not follow any Technical Ad- search shall display the following on the vice which constitutes work which is not first page: contemplated under this agreement; which (1) Title of the cooperative agreement. in any manner causes an increase or decrease in the resource sharing or in the time re- (2) Type of report. quired for performance of the project; which (3) Period covered by the report. has the effect of changing any of the terms (4) Name and address of the Recipient’s or- or conditions of the cooperative agreement; ganization. or which interferes with the Recipient’s (5) Cooperative agreement number. right to perform the project in accordance (f) An original and two copies, one of which with the terms and conditions of this cooper- shall be of suitable quality to permit micro- ative agreement. In the event of perceived reproduction, shall be sent as follows: interference, dispute resolution procedures (1) Original—Agreement Officer. apply as set forth in 1274.907. (2) Copy—Technical Officer [End of provision] (3) Micro-reproducible copy—NASA Center for Aerospace Information (CASI), Parkway § 1274.921 Publications and reports: Center, Attn: Document Processing Section, non-proprietary research results. 7121 Standard Drive, Hanover, MD 21076. The requirements set forth under [End of provision] this provision may be modified by the Agreement Officer based on specific re- § 1274.922 Suspension or termination. port needs for the particular grant or cooperative agreement. SUSPENSION OR TERMINATION

PUBLICATIONS AND REPORTS: NON- July 2002 PROPRIETARY RESEARCH RESULTS (a) This cooperative agreement may be July 2002 suspended or terminated in whole or in part (a) NASA encourages the widest prac- by the Recipient or by NASA after consulta- ticable dissemination of research results at tion with the other party. With prior written all times during the course of the investiga- notice, NASA may terminate the agreement, tion consistent with the other terms of this for example, if the Recipient is not making agreement. anticipated technical progress, if the Recipi- (b) All information disseminated as a re- ent materially fails to comply with the sult of the cooperative agreement shall con- terms of the agreement, if the Recipient ma- tain a statement which acknowledges terially changes the objective of the agree- NASA’s support and identifies the coopera- ment, or if appropriated funds are not avail- tive agreement by number. able to support the program. (c) Prior approval by the NASA Technical (b) Upon fifteen (15) days written notice to Officer is required only where the Recipient the other party, either party may tempo- requests that the results of the research be rarily suspend the cooperative agreement, published in a NASA scientific or technical pending corrective action or a decision to publication. Two copies of each draft publi- terminate the cooperative agreement. The cation shall accompany the approval re- notice should express the reasons why the quest. (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 support is continued under another cooperative

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[End of provision] (g) As of the date of this rewrite, process changes have been made to facilitate elec- § 1274.923 Equipment and other prop- tronic submission of NF 1018. Recipients may erty. use the procedures established by NASA Pro- curement Notice (PN) 97–64, issued on Au- EQUIPMENT AND OTHER PROPERTY gust 9, 2001.

February 2004 [End of provision] (a) Under no circumstances shall cooperative agreement funds be used to acquire land [67 FR 45790, July 10, 2002, as amended at 69 or any interest therein, to acquire or con- FR 5017, Feb. 3, 2004] struct facilities (as defined in 48 CFR (FAR) 45.301), or to procure passenger carrying ve- § 1274.924 Civil rights. hicles. (b) Contractor acquired equipment or prop- CIVIL RIGHTS erty used in performance of the Cooperative Agreement shall be controlled in accordance July 2002 with 48 CFR (FAR) 45.6. (c) The government shall have title to Work on NASA cooperative agreements is equipment and other personal property ac- subject to the provisions of Title VI of the quired with government funds. Such prop- Civil Rights Act of 1964 (Public Law 88–352; 42 erty shall be disposed of pursuant to 48 CFR U.S.C. 2000d-l), Title IX of the Education (FAR) 45.603. The Recipient shall have title Amendments of 1972 (20 U.S.C. 1680 et seq.), to equipment and other personal property section 504 of the Rehabilitation Act of 1973, acquired with Recipient funds. Such prop- as amended (29 U.S.C. 794), the Age Discrimi- erty shall remain with the Recipient at the nation Act of 1975 (42 U.S.C. 6101 et seq.), and conclusion of the cooperative agreement. the NASA implementing regulations (14 CFR Under a shared cost arrangement, the Gov- parts 1250, 1251, 1252 and 1253). ernment and the Recipient have joint ownership of acquired property in accordance with [End of provision] the cost share ratio. Jointly owned property shall be disposed of as agreed to by the par- § 1274.925 Subcontracts. ties. (d) Title to Government furnished equip- SUBCONTRACTS ment (including equipment, title to which has been transferred to the Government July 2002 prior to completion of the work) will remain (a) Recipients are not authorized to issue with the Government. grants or cooperative agreements. (e) The Recipient shall establish and main- (b) NASA Agreement Officer consent is retain property management standards for quired for subcontracts over[dollar threshold Government property and otherwise manage inserted by Agreement Officer] and/or sub- such property as set forth in 48 CFR (FAR) contracts for [critical systems, subsystems, 45.5 and 48 CFR (NFS) 1845.5. components, or services inserted by Agree- (f) Recipients shall submit annually a ment Officer and Cognizant NASA Project NASA Form 1018, NASA Property in the Cus- Office]lll. tody of Contractors, in accordance with the instructions on the form, the provisions of 48 (c) If not submitted by the Recipient and CFR (NFS) 1845.71 and any supplemental in- accepted by NASA in the original proposal. structions that may be issued by NASA for The Recipient shall provide the following in- the current reporting period. The original formation to the Agreement Officer: NF 1018 shall be submitted to the center Dep- (1) A copy of the proposed subcontract. uty Chief Financial Officer, Finance, with (2) Basis for subcontractor selection. three copies sent concurrently to the center (3) Justification for lack of competition Industrial Property Officer. The annual re- when competitive bids or offers are not ob- porting period shall be from October 1 of tained. each year through September 30 of the fol- (4) Basis for award cost or award price. lowing year. The report shall be submitted in (d) The Recipient shall utilize small busi- time to be received by October 15. Negative ness, veteran-owned small business, service- reports (i.e. no reportable property) are re- disabled veteran-owned small business, his- quired. The information contained in the re- torically underutilized small business, small ports is entered into the NASA accounting disadvantaged business, women-owned busi- system to reflect current asset values for ness concerns, Historically Black Colleges agency financial statement purposes. There- and Universities, and minority educational fore, it is essential that required reports be institutions as subcontractors to the max- received no later than October 15. A final re- imum extent practicable. port is required within 30 days after expira- (e) All entities that are involved in per- tion of the agreement. forming the research and development effort

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that is the purpose of the cooperative agree- [End of Provision] ment shall be part of the Recipient’s consortium and not subcontractors. [79 FR 56488, Sept. 22, 2014] [End of provision] § 1274.928 Foreign national employee § 1274.926 Clean Air-Water Pollution investigative requirements. Control Acts. FOREIGN NATIONAL EMPLOYEE INVESTIGATIVE CLEAN AIR-WATER POLLUTION CONTROL ACTS REQUIREMENTS July 2002 July 2002 If this cooperative agreement or supple- (a) The Recipient shall submit a properly ment thereto is in excess of $100,000, the Re- executed Name Check Request (NASA Form cipient agrees to notify the Agreement Offi- 531) and a completed applicant fingerprint cer promptly of the receipt, whether prior or card (Federal Bureau of Investigation Card subsequent to the Recipient’s acceptance of FD–258) for each foreign national employee this cooperative agreement, of any commu- requiring access to a NASA Installation. nication from the Director, Office of Federal These documents shall be submitted to the Activities, Environmental Protection Agen- Installation’s Security Office at least 75 days cy (EPA), indicating that a facility to be uti- prior to the estimated duty date. The NASA lized under or in the performance of this co- Installation Security Office will request a operative agreement or any subcontract National Agency Check (NAC) for foreign na- thereunder is under consideration to be list- tional employees requiring access to NASA ed on the EPA ‘‘List of Violating Facilities’’ facilities. The NASA Form 531 and finger- published pursuant to 40 CFR 15.20. By ac- print card may be obtained from the NASA ceptance of a cooperative agreement in ex- Installation Security Office. cess of $100,000, the Recipient— (b) The Installation Security Office will re- (a) Stipulates that any facility to be uti- quest from NASA Headquarters, Code I, ap- lized thereunder is not listed on the EPA proval for each foreign national’s access to ‘‘List of Violating Facilities’’ as of the date the Installation prior to providing access to of acceptance; the Installation. If the access approval is ob- (b) Agrees to comply with all requirements tained from NASA Headquarters prior to of section 114 of the Clean Air Act, as amend- completion of the NAC and performance of ed (42 U.S.C. 1857 et seq. as amended by Pub- the cooperative agreement requires a foreign lic Law 91–604) and section 308 of the Federal national to be given access immediately, the Water Pollution Control Act, as amended (33 Technical Officer may submit an escort re- U.S.C. 1251 et seq. as amended by Public Law quest to the Installation’s Chief of Security. 92–500) relating to inspection, monitoring, entry, reports and information, and all other [End of provision] requirements specified in the aforementioned sections, as well as all regulations § 1274.929 Restrictions on lobbying. and guidelines issued thereunder after award of and applicable to the cooperative agree- RESTRICTIONS ON LOBBYING ment; and (c) Agrees to include the criteria and re- July 2002 quirements of this clause in every sub- This award is subject to the provisions of contract hereunder in excess of $100,000, and 14 CFR part 1271 ‘‘New Restrictions on Lob- to take such action as the Contracting or bying.’’ Grant Officer may direct to enforce such criteria and requirements. [End of provision] [End of provision] § 1274.930 Travel and transportation.

§ 1274.927 Debarment and Suspension TRAVEL AND TRANSPORTATION and Drug-Free Workplace. July 2002 DEBARMENT AND SUSPENSION AND DRUG-FREE (a) For travel funded by the government WORKPLACE (SEP 2014) under this agreement, section 5 of the Inter- NASA cooperative agreements are subject national Air Transportation Fair Competi- to the provisions of 2 CFR Part 180, Govern- tive Practices Act of 1974 (49 U.S.C. 40118) ment-wide Debarment and Suspension (Non- (Fly America Act) requires the Recipient to procurement) and 2 CFR Part 182, Govern- use U.S.-flag air carriers for international ment-wide requirements for Drug-Free air transportation of personnel and property Workplace, unless excepted by 2 CFR 180.110 to the extent that service by those carriers or 180.610. is available.

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(b) Department of Transportation regula- tution for the receipt of any payment made tions, 49 CFR part 173, govern Recipient ship- using electronic funds transfer procedures, ment of hazardous materials and other notification of such change and the required items. information specified above must be received by the appropriate Government official 30 [End of provision] days prior to the date such change is to become effective. § 1274.931 Electronic funds transfer (d) The documents furnishing the informa- payment methods. tion required in this clause must be dated and contain the signature, title, and tele- ELECTRONIC FUNDS TRANSFER PAYMENT phone number of the Recipient official au- METHODS thorized to provide it, as well as the Recipi- ent’s name and contract number. July 2002 (e) Failure to properly designate a finan- Payments under this cooperative agree- cial institution or to provide appropriate ment will be made by the Government by payee bank account information may delay electronic funds transfer through the Treas- payments of amounts otherwise properly ury Fedline Payment System (FEDLINE) or due. the Automated Clearing House (ACH), at the option of the Government. After award, but [End of provision] no later than 14 days before an invoice is submitted, the Recipient shall designate a fi- § 1274.932 Retention and examination nancial institution for receipt of electronic of records. funds transfer payments, and shall submit this designation to the Agreement Officer or RETENTION AND EXAMINATION OF RECORDS other Government official, as directed. July 2002 (a) For payment through FEDLINE, the Recipient shall provide the following infor- Financial records, supporting documents, mation: statistical records, and all other records (or (1) Name, address, and telegraphic abbre- microfilm copies) pertinent to this coopera- viation of the financial institution receiving tive agreement shall be retained for a period payment. of 3 years, except that records for non- (2) The American Bankers Association 9- expendable property acquired with coopera- digit identifying number for wire transfers of tive agreement funds shall be retained for 3 the financing institution receiving payment years after its final disposition and, if any if the institution has access to the Federal litigation, claim, or audit is started before Reserve Communication System. the expiration of the 3-year period, the (3) Payee’s account number at the finan- records shall be retained until all litigation, cial institution where funds are to be trans- claims, or audit findings involving the ferred. records have been resolved. The retention pe- (4) If the financial institution does not riod starts from the date of the submission have access to the Federal Reserve Commu- of the final invoice. The Administrator of nications System, name, address, and tele- NASA and the Comptroller General of the graphic abbreviation of the correspondent fi- United States, or any of their duly author- nancial institution through which the finan- ized representatives, shall have access to any cial institution receiving payment obtains pertinent books, documents, papers, and wire transfer activity. Provide the tele- records of the Recipient and of subcontrac- graphic abbreviation and American Bankers tors to make audits, examinations, excerpts, Association identifying number for the cor- and transcripts. All provisions of this clause respondent institution. shall apply to any subcontractor performing (b) For payment through ACH, the Recipi- substantive work under this cooperative ent shall provide the following information: agreement. (1) Routing transit number of the financial institution receiving payment (same as [End of provision] American Bankers Association identifying number used for FEDLINE). § 1274.933 Summary of recipient re- (2) Number of account to which funds are porting responsibilities. to be deposited. (3) Type of depositor account (‘‘C’’ for SUMMARY OF RECIPIENT REPORTING checking, ‘‘S’’ for savings). RESPONSIBILITIES (4) If the Recipient is a new enrollee to the July 2004 ACH system, a ‘‘Payment Information Form,’’ SF 3881, must be completed before This cooperative agreement requires the payment can be processed. recipient to submit a number of reports. (c) In the event the Recipient, during the These reporting requirements are summa- performance of this cooperative agreement, rized below. In the event of a conflict be- elects to designate a different financial insti- tween this provision and other provisions of

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the cooperative agreement requiring report- [The Agreement Officer may add/delete reporting, the other provisions take precedence. ing requirements as appropriate.]

Report Frequency Reference

Report of Joint NASA/Recipient Inventions As required ...... 1274.911 Patent Rights (Paragraph (b)(4)) Interim Report of Reportable Items ...... Every 12 months ...... 1274.912 Patent Rights—Retention by the Recipient (Large Business) (Paragraph (e)(3)(i)) Final Report of Reportable Items ...... 3 months after completion ...... 1274.912 Patent Rights—Retention by the Recipient (Large Business) (Para- graph (e)(3)(ii)) Disclosure of Subject Inventions ...... Within 2 months after inventor discloses 1274.912 Patent Rights Retention by the it to Recipient. Recipient (Large Business) (Para- graph (e)(2)) or 1274.913 Patent Rights—Retention by the Recipient (Small Business) (Paragraph (c)(1)) Election of Title to a Subject Invention ..... 1 year after disclosure of the subject in- 1274.913 Patent Rights—Retention by vention if a statutory bar exists, other- the Recipient (Small Business) wise within 2 years. (Paragraph (c)(2)) Listing of Subject Inventions ...... Every 12 months from the date of the 1274.913 Patent Rights—Retention by agreement. the Recipient (Small Business) (Paragraph (f)(5)(i)) Subject Inventions Final Report ...... Prior to close-out of the agreement ...... 1274.913 Retention by the Recipient (Small Business) (Paragraph (f)(5)(ii)) Notification of Decision to Forego Patent 30 days before expiration of the re- 1274.913 Patent Rights—Retention by Protection. sponse period. the Recipient (Small Business) (Paragraph (f)(3)) Notification of a Subcontract Award ...... Promptly upon award of a subcontract ... 1274.912 Patent Rights—Retention by the Recipient (Large Busi- ness)(Paragraph (g)(3)) or 1274.913 Patent Rights—Retention by the Recipient (Small Business) (Paragraph (g)(3)) Utilization of Subject Invention ...... Annually ...... 1274.913 Patent Rights—Retention by the Recipient (Small Business) (Paragraph (h)) Notice of Proposed Transfer of Tech- Prior to transferring technology to foreign 1274.915 Restrictions on Sale or Trans- nology. firm or institution. fer of Technology to Foreign Firms or Institutions (Paragraph (b)) Progress Report ...... 60 days prior to the anniversary date of 1274.921 Publications and Reports: the agreement (except final year). Non-Proprietary Research Results (Paragraph (d)(1)) Summary of Research ...... 90 days after completion of agreement .. 1274.921 Publications and Reports: Non-Proprietary Research Results (Paragraph (d)(2)) NASA Form 1018 Property in the Custody Annually by October 15 ...... 1274.923 Equipment and Other Property of Contractors. (Paragraph (f)) NASA Form 1018 Property in the Custody 60 days after expiration date of agree- 1274.923 Equipment and Other Property of Contractors. ment. (Paragraph (f))

[67 FR 45790, July 10, 2002, as amended at 69 this cooperative agreement. The recipient FR 41936, July 13, 2004] shall comply with all applicable federal, state, and local laws relating to safety. The § 1274.934 Safety. Recipient shall maintain a record of, and will notify the NASA Agreement Officer im- SAFETY mediately (within one workday) of any acci- July 2002 dent involving death, disabling injury or substantial loss of property. The Recipient will NASA’s safety priority is to protect: (1) immediately (within one workday) advise The public, (2) astronauts and pilots, (3) the NASA of hazards that come to its attention NASA workforce (including contractor em- as a result of the work performed. ployees working on NASA contracts), and (4) (b) Where the work under this cooperative high-value equipment and property. agreement involves flight hardware, the haz- (a) The Recipient shall act responsibly in ardous aspects, if any, of such hardware will matters of safety and shall take all reason- be identified, in writing, by the Recipient. able safety measures in performing under

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Compliance with this provision by sub- or change of Recipient’s personnel from per- contractors shall be the responsibility of the forming under the Cooperative Agreement. A Recipient. major breach of security may occur on or off Government installations, but must be re- [End of provision] lated directly to the work on the Coopera- tive Agreement. A major breach of security § 1274.935 Security classification re- may arise from any of the following: com- quirements. promise of classified information; illegal technology transfer; workplace violence re- SECURITY CLASSIFICATION REQUIREMENTS sulting in criminal conviction; sabotage; compromise or denial of information tech- July 2002 nology services; damage or loss greater than Performance under this Cooperative Agree- $250,000 to the Government; or theft. ment will involve access to and/or genera- (b) In the event of a major breach of safety tion of classified information, work in a se- or security, the Recipient shall report the cure area, or both, up to the level of [insert breach to the Agreement Officer. If directed the applicable security clearance level]. Federal by the Agreement Officer, the Recipient Acquisition Regulation clause 52.204–2 shall shall conduct its own investigation and re- apply to this Agreement and DD Form 254, port the results to the Government. The Re- Contract Security Classification Specifica- cipient shall cooperate with the Government tion Attachment lll [Insert the attachment investigation, if conducted. number of the DD Form 254.] [End of provision] [End of provision] § 1274.937 Security requirements for § 1274.936 Breach of safety or security. unclassified information technology resources. BREACH OF SAFETY OR SECURITY SECURITY REQUIREMENTS FOR UNCLASSIFIED July 2002 INFORMATION TECHNOLOGY RESOURCES Safety is the freedom from those condi- July 2002 tions that can cause death, injury, occupational illness, damage to or loss of equip- (a) The Recipient shall be responsible for ment or property, or damage to the environ- Information Technology security for all sys- ment. Safety is essential to NASA and is a tems connected to a NASA network or oper- material part of this contract. NASA’s safe- ated by the Recipient for NASA, regardless ty priority is to protect: The public; astro- of location. This provision is applicable to nauts and pilots; the NASA workforce (in- all or any part of the cooperative agreement cluding contractor employees working on that includes information technology re- NASA contracts); and high-value equipment sources or services in which the Recipient and property. A major breach of safety by must have physical or electronic access to the Recipient entitles the Government to NASA’s sensitive information contained in remedies (pending corrective measures by unclassified systems that directly support the Recipient) which includes, suspension or the mission of the Agency. This includes in- termination of the Cooperative Agreement, formation technology, hardware, software, require removal or change of Recipient’s per- and the management, operation, mainte- sonnel from performing under the Agree- nance, programming, and system adminis- ment. A major breach of safety must be re- tration of computer systems, networks, and lated directly to the work on the Agreement. telecommunications systems. Examples of A major breach of safety is an act or omis- tasks that require security provisions in- sion of the Recipient that consists of an acci- clude: dent, incident, or exposure resulting in a fa- (1) Computer control of spacecraft, sat- tality or mission failure; or in damage to ellites, or aircraft or their payloads; equipment or property equal to or greater (2) Acquisition, transmission or analysis of than $1 million; or in any ‘‘willful’’ or ‘‘re- data owned by NASA with significant repeat’’ violation cited by the Occupational placement cost should the Recipient’s copy Safety and Health Administration (OSHA) or be corrupted; and by a state agency operating under an OSHA (3) Access to NASA networks or computers approved plan. at a level beyond that granted the general (a) Security is the condition of safe- public, e.g. bypassing a firewall. guarding against espionage, sabotage, crime (b) The Recipient shall provide, imple- (including computer crime), or attack. A ment, and maintain an IT Security Plan. major breach of security by the Recipient This plan shall describe the processes and entitles the Government to remedies (pend- procedures that will be followed to ensure ing corrective measures by the Recipient) appropriate security of IT resources that are which includes, suspension or termination of developed, processed, or used under this co- the Cooperative Agreement, require removal operative agreement. The plan shall describe

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those parts of the cooperative agreement to commands directly modifying the behavior which this provision applies. The Recipient’s of spacecraft, satellites or aircraft. IT Security Plan shall be compliant with (ii) IT–2—Individuals having privileged ac- Federal laws that include, but are not lim- cess or limited privileged access to systems ited to, the Computer Security Act of 1987 (40 whose misuse can cause serious adverse im- U.S.C. 1441 et seq.) and the Government Infor- pact to NASA missions. These systems in- mation Security Reform Act of 2000. The clude, for example, those that can transmit plan shall meet IT security requirements in commands directly modifying the behavior accordance with Federal and NASA policies of payloads on spacecraft, satellites or air- and procedures that include, but are not lim- craft; and those that contain the primary ited to: copy of ‘‘level 1’’ data whose cost to replace (1) OMB Circular A–130, Management of exceeds one million dollars. Federal Information Resources, Appendix III, (iii) IT–3—Individuals having privileged ac- Security of Federal Automated Information cess or limited privileged access to systems Resources; whose misuse can cause significant adverse (2) NASA Procedures and Guidelines (NPG) impact to NASA missions. These systems in- 2810.1, Security of Information Technology; clude, for example, those that interconnect and with a NASA network in a way that exceeds (3) Chapter 3 of NPG 1620.1, NASA Security access by the general public, such as bypass- Procedures and Guidelines. ing firewalls; and systems operated by the Recipient for NASA whose function or data (c) Within ll days after cooperative has substantial cost to replace, even if these agreement award, the Recipient shall submit systems are not interconnected with a NASA for NASA approval an IT Security Plan. This network. plan must be consistent with and further de- (3) Screening for individuals shall employ tail the approach contained in the Recipi- forms appropriate for the level of risk as fol- ent’s proposal that resulted in the award of lows: this cooperative agreement and in compli- (i) IT–1: Fingerprint Card (FC) 258 and ance with the requirements stated in this Standard Form (SF) 85P, Questionnaire for provision. The plan, as approved by the Public Trust Positions; Agreement Officer, shall be incorporated (ii) IT–2: FC 258 and SF 85, Questionnaire into the cooperative agreement as a compli- for Non-Sensitive Positions; and ance document. (iii) IT–3: NASA Form 531, Name Check, (d)(1) Recipient personnel requiring privi- and FC 258. leged access or limited privileged access to (4) The Agreement Officer may allow the systems operated by the Recipient for NASA Recipient to conduct its own screening of in- or interconnected to a NASA network shall dividuals requiring privileged access or lim- be screened at an appropriate level in ac- ited privileged access provided the Recipient cordance with NPG 2810.1, Section 4.5; NPG can demonstrate that the procedures used by 1620.1, Chapter 3; and paragraph (d)(2) of this the Recipient are equivalent to NASA’s per- provision. Those Recipient personnel with sonnel screening procedures. As used here, non-privileged access do not require per- equivalent includes a check for criminal his- sonnel screening. NASA shall provide screen- tory, as would be conducted by NASA, and ing using standard personnel screening Na- completion of a questionnaire covering the tional Agency Check (NAC) forms listed in same information as would be required by paragraph (d)(3) of this provision, unless Re- NASA. cipient screening in accordance with para- (5) Screening of Recipient personnel may graph (d)(4) is approved. The Recipient shall be waived by the Agreement Officer for those submit the required forms to the NASA Cen- individuals who have proof of— ter Chief of Security (CCS) within fourteen (i) Current or recent national security (14) days after cooperative agreement award clearances (within last three years); or assignment of an individual to a position (ii) Screening conducted by NASA within requiring screening. The forms may be ob- last three years; or tained from the CCS. At the option of the (iii) Screening conducted by the Recipient, government, interim access may be granted within last three years, that is equivalent to pending completion of the NAC. the NASA personnel screening procedures as (2) Guidance for selecting the appropriate approved by the Agreement Officer under level of screening is based on the risk of ad- paragraph (d)(4) of this provision. verse impact to NASA missions. NASA de- (e) The Recipient shall ensure that its em- fines three levels of risk for which screening ployees, in performance of the cooperative is required (IT–1 has the highest level of agreement, receive annual IT security train- risk): ing in NASA IT Security policies, proce- (i) IT–1—Individuals having privileged ac- dures, computer ethics, and best practices in cess or limited privileged access to systems accordance with NPG 2810.1, Section 4.3 re- whose misuse can cause very serious adverse quirements. The Recipient may use web- impact to NASA missions. These systems in- based training available from NASA to meet clude, for example, those that can transmit this requirement.

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(f) The Recipient shall afford NASA, in- territorial law; however, if any of the provi- cluding the Office of Inspector General, ac- sions of the Cooperative Agreement violate cess to the Recipient’s, subcontractors’ or any applicable State or territorial law, or if subawardees’ facilities, installations, oper- compliance with the provisions of the Agree- ations, documentation, databases and per- ment would require the Recipient to violate sonnel used in performance of the coopera- any applicable State or territorial law, the tive agreement. Access shall be provided to Recipient agrees to notify the Government the extent required to carry out a program (NASA) immediately in writing in order that of IT inspection, investigation and audit to the Government and the Recipient may safeguard against threats and hazards to the make appropriate arrangements to proceed integrity, availability and confidentiality of with the Project as soon as possible. NASA data or to the function of computer (c) Changed Conditions of Performance (In- systems operated on behalf of NASA, and to cluding Litigation). The Recipient agrees to preserve evidence of computer crime. notify the Government (NASA) immediately (g) The Recipient shall incorporate the of any change in State or local law, condi- substance of this clause in all subcontracts tions, or any other event that may signifi- or subagreements that meet the conditions cantly affect its ability to perform the in paragraph (a) of this provision. Project in accordance with the terms of this Cooperative Agreement. In addition, the Re- [End of provision] cipient agrees to notify the Government (NASA) immediately of any decision per- § 1274.938 Modifications. taining to the Recipient’s conduct of litigation that may affect the Government’s inter- MODIFICATIONS ests in the Project or the Government’s ad- July 2002 ministration or enforcement of applicable Federal laws or regulations. Before the Re- During the term of this agreement and in cipient may name the Government as a the interest of achieving program objectives, party to litigation for any reason, the Re- the parties may agree to changes that affect cipient agrees to inform the Government; the responsibility statements, milestones, or this proviso applies to any type of litigation other provisions of this agreement. Any whatsoever, in any forum. changes to this agreement will be accom- (d) No Government Obligations to Third Par- plished by a written bilateral modification. ties. Absent the Government’s express writ- [End of provision] ten consent, and notwithstanding any concurrence by the Government in or approval § 1274.939 Application of Federal, of the award of any Agreement of the Recipi- State, and Local laws and regula- ent (third party contract) or subcontract of tions. the Recipient (third party subcontract) or the solicitation thereof, the Government APPLICATION OF FEDERAL, STATE, AND LOCAL shall not be subject to any obligations or li- LAWS AND REGULATIONS abilities to third party contractors or third party subcontractors or any other person(s). July 2002 (a) Federal Laws and Regulations. This Co- [End of provision] operative Agreement shall be governed by the Federal Laws, regulations, policies, and § 1274.940 Changes in recipient’s mem- related administrative practices applicable bership. to this Cooperative Agreement on the date the Agreement is executed. The Recipient CHANGES IN RECIPIENT’S MEMBERSHIP understands that such Federal laws, regula- July 2002 tions, policies, and related administrative practices may be modified from time to The Recipient shall notify the cognizant time. The Recipient agrees to consider modi- Agreement Officer within seven (7) days of fying this Agreement to be governed by any change in the corporate membership those later modified Federal laws, regula- (ownership) structure of the Recipient, in- tions, policies, and related administrative cluding the addition or withdrawal of any of practices that directly affect performance of the Recipient’s affiliated members (e.g., Con- the Project. sortium Member). If NASA reasonably deter- (b) State or Territorial Law and Local Law. mines that any change in the corporate Except to the extent that a Federal statute membership (ownership) of Recipient will or regulation preempts State or territorial conflict with NASA’s objectives for the law, nothing in the Cooperative Agreement lll Project or any statutory or regulatory shall require the Recipient to observe or en- restriction applicable to the agency, NASA force compliance with any provision thereof, may terminate this Agreement after giving perform any other act, or do any other thing the Agreement Recipient at least ninety (90) in contravention of any applicable State or days prior written notice of such perceived

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conflict and a reasonable opportunity to cure (1) Within 30/60 days after the execution of such conflict. the modification adding this provision to the Agreement; [End of provision] (2) No later than 30 days before each launch; and § 1274.941 Insurance and indemnifica- (3) Within 7 days after a request by the tion. Agreement Officer. The following provision is applicable Moreover, the Recipient shall promptly no- to all cooperative agreements with tify the Agreement Officer of any termination, or of any change to the terms or con- commercial firms that involve pro- ditions of an insurance policy or policies for grams or projects that are subject to which proof of insurance was provided. Section 431 of Public Law 105–276, (e) Notification of Claims. The Recipient which addresses insurance for, or in- shall— demnification of, developers of experi- (1) Promptly notify the Agreement Officer mental aerospace vehicles. of any third party claim or suit against the Recipient, one of its related entities, any INSURANCE AND INDEMNIFICATION employee of the Recipient or its related entities, or any insurer of the Recipient for dam- July 2002 ages resulting from covered activities; (a) General. The Recipient has applied, (2) Furnish evidence or proof of any such under the provisions of Section 431 of Public claim, suit or damages, in the form required Law 105–276 (Section 431), for indemnification by NASA; and by the Government against certain third (3) Immediately furnish to NASA, or its party damage claims that might arise under designee, copies of all information received the Agreement. Under Section 431, a nec- by the Recipient, or by any related entity, essary prerequisite to, and consideration for, employee or insurer that is pertinent to such the Government’s granting such indem- claim, suit or damages. nification is the Recipient’s obtaining insur- (f) NASA Concurrence in Settlements. NASA ance against an initial increment of such shall concur or not concur in each settle- damages arising from certain third party ment of a third party claim by the Recipi- claims. This provision sets forth the require- ent’s insurer(s). For purposes of determining ments for this insurance prerequisite to a the amount of indemnification under this co- Government grant of indemnification. operative agreement. Adjudicated claims (b) Definitions. The definitions at 14 CFR shall be deemed concurred in by NASA. 1266, Cross-Waivers and Indemnification, apply to this provision. [End of provision] (c) Insurance. The Recipient shall obtain, as part of its financial contribution, insur- § 1274.942 Export licenses. ance that meets the following parameters: (1) The insurance policy or policies shall EXPORT LICENSES insure against damages incurred by third July 2002 parties arising from covered activities; (2) The amount of insurance applicable to (a) The Recipient shall comply with all each launch shall be [Amount to be inserted U.S. export control laws and regulations, in- by the contracting officer]. The Government cluding the International Traffic in Arms may subsequently increase the amount of in- Regulations (ITAR), 22 CFR Parts 120 surance the Recipient is required to main- through 130, and the Export Administration tain to qualify for indemnification, for one Regulations (EAR), 15 CFR parts 730 through or more launches, and the Recipient shall 799, in the performance of this Cooperative pay the additional cost of such increases Agreement. In the absence of available li- from its financial contribution; and cense exemptions/exceptions, the Recipient (3) The insurance policy or policies shall shall be responsible for obtaining the appro- name the parties and their related entities, priate licenses or other approvals, if re- and the employees of the parties and their quired, for exports of hardware, technical related entities, as named insureds. data, and software, or for the provision of Nothing in this provision precludes the Re- technical assistance. cipient from obtaining, at no cost to the (b) The Recipient shall be responsible for Government, such other insurance as the Re- obtaining export licenses, if required, before cipient determines advisable to protect its utilizing foreign persons in the performance business interests. of this Cooperative Agreement, including in- (d) Proof of Insurance. The Recipient shall stances where the work is to be performed provide proof of insurance that meets the pa- on-site at [insert name of NASA installa- rameters in paragraph (c) of this provision tion], where the foreign person will have ac- and that is acceptable to the Agreement Offi- cess to export-controlled technical data or cer: software.

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(c) The Recipient shall be responsible for (2) Proceedings about which you must all regulatory record keeping requirements report. Submit the information re- associated with the use of licenses and li- quired about each proceeding that— cense exemptions/exceptions. (i) Is in connection with the award or (d) The Recipient shall be responsible for ensuring that the requirements of this provi- performance of a grant, cooperative sion apply to its subcontractors. agreement, or procurement contract (e) The Recipient may request, in writing, from the Federal Government; that the Agreement Officer authorize it to (ii) Reached its final disposition dur- export ITAR-controlled technical data (in- ing the most recent five year period; cluding software) pursuant to the exemption and at 22 CFR 125.4(b)(3). The Agreement Officer (iii) Is one of the following: or designated representative may authorize (A) A criminal proceeding that re- or direct the use of the exemption where the sulted in a conviction, as defined in data does not disclose details of the design, development, production, or manufacture of paragraph (a)(5)(ii) of this section. any defense article. (B) A civil proceeding that resulted in a finding of fault and liability and [End of provision] payment of a monetary fine, penalty, reimbursement, restitution, or dam- § 1274.943 Investigation of research ages of $5,000 or more. misconduct. (C) An administrative proceeding, as defined in paragraph (a)(5)(i) of this INVESTIGATION OF RESEARCH MISCONDUCT award term and condition, that re- May 2005 sulted in a finding of fault and liability Recipients of this cooperative agreement and your payment of either a monetary are subject to the requirements of 14 CFR fine or penalty of $5,000 or more or re- part 1275, ‘‘Investigation of Research Mis- imbursement, restitution, or damages conduct.’’ in excess of $100,000. (D) Any other criminal, civil, or ad- [End of provision] ministrative proceeding if— (1) It could have led to an outcome [70 FR 28809, May 19, 2005] described in paragraph (a)(2)(iii)(A), (B), or (C) of this section; § 1274.944 Award term and condition (2) It had a different disposition ar- for recipient integrity and perform- rived at by consent or compromise ance matters. with an acknowledgment of fault on (a) Reporting of matters related to re- your part; and cipient integrity and performance—(1) (3) The requirement in this award General reporting requirement. (i) If the term and condition to disclose infor- total value of your currently active mation about the proceeding does not grants, cooperative agreements, and conflict with applicable laws and regu- procurement contracts from all Fed- lations. eral awarding agencies exceeds (3) Reporting procedures. Enter in the $10,000,000 for any period during the pe- SAM Entity Management area the in- riod of performance of this Federal formation that SAM requires about award, then you as the recipient during each proceeding described in paragraph that period of time must maintain the (a)(4) of this section. You do not need currency of information reported in to submit the information a second FAPIIS about civil, criminal, or ad- time under assistance awards that you ministrative proceedings described in received if you already provided the in- paragraph (a)(2) of this section. This is formation through SAM, because you a statutory requirement under section were required to do so under Federal 872 of Public Law 110–417, as amended procurement contracts that you were (41 U.S.C. 2313). awarded. (ii) As required by section 3010 of (4) Reporting frequency. During any Public Law 111–212, all information period of time when you are subject to posted in FAPIIS on or after April 15, the requirement in paragraph (a)(1) of 2011, except past performance reviews this section, you must report pro- required for Federal procurement con- ceedings information through SAM for tracts, will be publicly available. the most recent five year period, either

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to report new information about any 11375, ‘‘Amending Executive Order 11246 Re- proceeding(s) that you have not relating to Equal Employment Opportunity,’’ ported previously or affirm that there and as supplemented by regulations at 41 is no new information to report. Re- CFR Part 60, ‘‘Office of Federal Contract Compliance Programs, Equal Employment cipients that have Federal contract, Opportunity, Department of Labor.’’ grant, and cooperative agreement 2. Copeland ‘‘Anti-Kickback’’ Act (18 awards with a cumulative total value U.S.C. 874 and 40 U.S.C. 276c)—All contracts greater than $10,000,000 must disclose in excess of $50,000 for construction or repair semiannually any information about awarded by Recipients and subrecipients the criminal, civil, and administrative shall include a provision for compliance with proceedings. the Copeland ‘‘Anti-Kickback’’ Act (18 U.S.C. 874), as supplemented by Department of (5) Definitions. For purposes of this Labor regulations (29 CFR part 3, ‘‘Contrac- section: tors and Subcontractors on Public Building (i) Administrative proceeding means or Public Work Financed in Whole or in Part a non-judicial process that is adjudica- by Loans or Grants from the United tory in nature in order to make a de- States’’). The Act provides that each recipi- termination of fault or liability (e.g., ent or subrecipient shall be prohibited from Securities and Exchange Commission inducing, by any means, any person em- Administrative proceedings, Civilian ployed in the construction, completion, or repair of public work, to give up any part of Board of Contract Appeals proceedings, the compensation to which he is otherwise and Armed Services Board of Contract entitled. The recipient shall report all sus- Appeals proceedings). This includes pected or reported violations to NASA. proceedings at the Federal and State 3. Contract Work Hours and Safety Stand- level but only in connection with per- ards Act (40 U.S.C. 327–333)—Where applica- formance of a Federal contract or ble, all contracts awarded by recipients in grant. It does not include audits, site excess of $2,000 for construction contracts and in excess of $50,000 for other contracts, visits, corrective plans, or inspection of other than contracts for commercial items, deliverables. that involve the employment of mechanics (ii) Conviction, for purposes of this or laborers shall include a provision for com- award term and condition, means a pliance with sections 102 and 107 of the Con- judgment or conviction of a criminal tract Work Hours and Safety Standards Act offense by any court of competent ju- (40 U.S.C. 327–333), as supplemented by De- risdiction, whether entered upon a ver- partment of Labor regulations (29 CFR part 5). Under Subsection 102 of the Act, each re- dict or a plea, and includes a convic- cipient shall be required to compute the tion entered upon a plea of nolo wages of every mechanic and laborer on the contendere. basis of a standard work week of 40 hours. (6) Total value of currently active Work in excess of the standard work week is grants, cooperative agreements, and permissible provided that the worker is com- procurement contracts includes— pensated at a rate of not less than 11⁄2 times (i) Only the Federal share of the the basic rate of pay for all hours worked in funding under any Federal award with excess of 40 hours in the work week. Section 107 of the Act is applicable to construction a recipient cost share or match; and work and provides that no laborer or me- (ii) The value of all expected funding chanic shall be required to work in sur- increments under a Federal award and roundings or under working conditions options, even if not yet exercised. which are unsanitary, hazardous or dan- (b) [Reserved] gerous. These requirements do not apply to the purchases of supplies or materials or ar- [81 FR 35586, June 3, 2016] ticles ordinarily available on the open market, or contracts for transportation or trans- APPENDIX TO PART 1274—LISTING OF mission of intelligence. EXHIBITS 4. Rights to Inventions Made Under a Con- tract or Agreement— EXHIBIT A TO PART 1274—CONTRACT Contracts or agreements for the perform- PROVISIONS ance of experimental, developmental, or re- All contracts awarded by a recipient, in- search work shall provide for the rights of cluding small purchases, shall contain the the Federal Government and the Recipient following provisions if applicable: in any resulting invention in accordance 1. Equal Employment Opportunity—All with 37 CFR part 401, ‘‘Rights to Inventions contracts shall contain a provision requiring Made by Nonprofit Organizations and Small compliance with E.O. 11246, ‘‘Equal Employ- Business Firms Under Government Grants, ment Opportunity,’’ as amended by E.O. Contracts and Cooperative Agreements,’’ and

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any implementing regulations issued by the 2. Disclosure of Lobbying Activities (SFLLL) awarding agency. (a) Agreement Officers shall provide one 5. Clean Air Act (42 U.S.C. 7401 et seq.) and copy of each SF LLL furnished under 14 CFR the Federal Water 1271.110 to the Procurement Officer for trans- Pollution Control Act (33 U.S.C. 1251 et mittal to the Director, Analysis Division seq.), as amended—Contracts, other than (Code HC). contracts for commercial items, of amounts (b) Suspected violations of the statutory in excess of $100,000 shall contain a provision prohibitions imple mented by 14 CFR part that requires the Recipient to agree to com- 1271 shall be reported to the Director, Con- ply with all applicable standards, orders or tract Management Division (Code HK). regulations issued pursuant to the Clean Air [67 FR 45790, July 10, 2002, as amended at 72 Act (42 U.S.C. 7401 et seq.) and the Federal FR 40066, July 23, 2007] Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to NASA and the Regional Office of PART 1275—RESEARCH the Environmental Protection Agency MISCONDUCT (EPA). 6. Byrd Anti-Lobbying Amendment (31 Sec. U.S.C. 1352)—Contractors who apply or bid 1275.100 Purpose and scope. for an award of $100,000 or more shall file the 1275.101 Definitions. required certification. Each tier certifies to 1275.102 OIG handling of research mis- the tier above that it will not and has not conduct matters. used Federal appropriated funds to pay any 1275.103 Role of awardee institutions. person or organization for influencing or at- 1275.104 Conduct of Inquiry by the OIG. tempting to influence an officer or employee 1275.105 Conduct of the OIG investigation of of any agency, a member of Congress, officer research misconduct. or employee of Congress, or an employee of a 1275.106 Administrative actions. member of Congress in connection with ob- 1275.107 Adjudication. taining any Federal contract, grant or any 1275.108 Appeals. other award covered by 31 U.S.C. 1352. Each APPENDIX: NASA RESEARCH DISCIPLINES AND tier shall also disclose any lobbying with RESPECTIVE ASSOCIATED ENTERPRISES non-Federal funds that takes place in con- AUTHORITY: Pub. L. 85–568, 72 Stat. 426, 42 nection with obtaining any Federal award. U.S.C. 2473. Such disclosures are forwarded from tier to tier up to the Recipient. SOURCE: 69 FR 42103, July 14, 2004, unless otherwise noted. 7. Debarment and Suspension (E.O.s 12549 and 12689)—No contract shall be made to par- § 1275.100 Purpose and scope. ties listed on the General Services Adminis- tration’s List of Parties Excluded from Fed- (a) The purpose of this part is to es- eral Procurement or Nonprocurement Pro- tablish procedures to be used by the grams in accordance with E.O.s 12549 and National Aeronautics and Space Ad- 12689, ‘‘Debarment and Suspension.’’ This list ministration (NASA) for the handling contains the names of parties debarred, sus- of allegations of research misconduct. pended, or otherwise excluded by agencies, Specifically, the procedures contained and contractors declared ineligible under in this part are designed to result in: statutory or regulatory authority other than E.O. 12549. Contractors with awards that ex- (1) Findings as to whether research ceed the simplified acquisition threshold misconduct by a person or institution shall provide the required certification re- has occurred in proposing, performing, garding its exclusion status and that of its reviewing, or reporting results from re- principal employees. search activities funded or supported by NASA; and EXHIBIT B TO PART 1274—REPORTS (2) Recommendations on appropriate 1. Property Reporting. administrative actions that may be undertaken by NASA in response to re- As provided in paragraph (f) of § 1274.923, an search misconduct determined to have annual NASA Form (NF) 1018, NASA Prop- occurred. erty in the Custody of Contractors, will be (b) This part applies to all research submitted by October 31 of each year. Nega- tive annual reports are required. A final re- wholly or partially funded or supported port is required within 30 days after expira- by NASA. This includes any research tion of the agreement (also see paragraph (g) conducted by a NASA installation and of 1274.923 for electronic submission guid- any research conducted by a public or ance). private entity receiving NASA funds or

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using NASA facilities, equipment or 5 U.S.C. 552, the Freedom of Informa- personnel, under a contract, grant, co- tion Act, as amended, and 5 U.S.C. 552a, operative agreement, Space Act agree- the Privacy Act, as amended. ment, or other transaction with NASA. [69 FR 42103, July 14, 2004, as amended at 77 (c) NASA shall make a determination FR 44440, July 30, 2012] of research misconduct only after careful inquiry and investigation by an § 1275.101 Definitions. awardee institution, another Federal (a) Research misconduct means fab- agency, or NASA, and an adjudication rication, falsification, or plagiarism in conducted by NASA. NASA shall afford proposing, performing, or reviewing re- the accused individual or institution a search, or in reporting research results. chance to comment on the investiga- Research misconduct does not include tion report and a chance to appeal the honest error or differences of opinion. decision resulting from the adjudica- Research as used in this part includes tion. In structuring procedures in indi- all basic and applied research as de- vidual cases, NASA may take into ac- fined in OMB Circular A–11 in all fields count procedures already followed by of science, engineering, and mathe- other entities investigating the same matics, including, but not limited to, allegation of research misconduct. In- research in space and Earth sciences, vestigation of allegations which, if economics, education, linguistics, med- true, would constitute criminal of- icine, psychology, social sciences, sta- fenses, are not covered by this part. tistics, and biological and physical re- (d) A determination that research search (ground based and micro- misconduct has occurred must be ac- gravity), including research involving companied by recommendations on ap- human subjects or animals. propriate administrative actions. How- (b) Fabrication means making up data ever, the administrative actions them- or results and recording or reporting selves may be imposed only after fur- them. ther procedures described in applicable (c) Falsification means manipulating Federal acquisition and NASA regula- research materials, equipment, or proc- tions concerning contracts, cooperative esses, or changing or omitting data or agreements, grants, Space Act agree- results such that the research is not ments, or other transactions, depend- accurately represented in the research ing on the type of agreement used to record. fund or support the research in ques- (d) Plagiarism means the appropriation. Administrative actions involving tion of another person’s ideas, proc- NASA civil service employees may be esses, results, or words without giving imposed only in compliance with all appropriate credit. relevant Federal laws and policies. (e) Awardee institution means any (e) Allegations of research mis- public or private entity or organization conduct concerning NASA research (including a Federal, State, or local may be transmitted to NASA in one of agency) that is a party to a NASA con- the following ways: By mail address to tract, grant, cooperative agreement, the Office of Inspector General (OIG), Space Act agreement, or to any other National Aeronautics and Space Ad- transaction with NASA, whose purpose ministration, 300 E Street SW., Wash- includes the conduct of research. ington, DC 20546–0001 via the NASA OIG (f) NASA research means research Hotline at 1–800–424–9183, or cyber hot- wholly or partially funded or supported line at http://oig.nasa.gov/hotline.html. by NASA involving an awardee institu- (f) To the extent permitted by law, tion or a NASA installation. This defi- the identity of the Complainant, wit- nition includes research wholly or par- nesses, or other sources of information tially funded by NASA appropriated who wish to remain anonymous shall funds, or research involving the use of be kept confidential. To the extent per- NASA facilities, equipment, or permitted by law, NASA shall protect the sonnel. research misconduct inquiry, inves- (g) NASA research discipline means tigation, adjudication, and appeal one of the following areas of research records maintained by NASA as ex- that together comprise NASA’s re- empt from mandatory disclosure under search mission for aeronautics, space

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science, Earth science, biomedicine, bi- true, falls within the definition of re- ology, engineering and physical search misconduct in § 1275.101(a). In- sciences (physics and chemistry). vestigation of allegations which, if (h) Inquiry means the assessment of true, would constitute criminal of- whether an allegation of research mis- fenses, are not covered by this part. If conduct has substance and warrants an these criteria are met and the research investigation. in question is being conducted by (i) Investigation means the formal de- NASA researchers, the OIG shall pro- velopment of a factual record and the ceed in accordance with § 1275.104. If the examination of that record leading to research in question is being conducted recommended findings on whether re- at an awardee institution, another Fed- search misconduct has occurred, and if eral agency, or is a collaboration be- the recommended findings are that tween NASA researchers and co-inves- such conduct has occurred, to include recommendations on appropriate ad- tigators at either academia or indus- ministrative actions. try, the OIG must refer the allegation (j) Complainant is the individual that meets the definition of research bringing an allegation of research mis- misconduct to the entities involved conduct related to NASA research. and determine whether to— (k) Respondent is the individual or in- (1) Defer its inquiry or investigation stitution who is the subject of an alle- pending review of the results of an in- gation of research misconduct related quiry or investigation conducted at the to NASA research. awardee institution or at the Federal (l) Adjudication means the formal pro- agency (referred to for purposes of this cedure for reviewing and evaluating part as external investigations) deter- the investigation report and the ac- mined to be the lead investigative or- companying evidentiary record and for ganization for the case; or determining whether to accept the rec- (2) Commence its own inquiry or in- ommended findings and any rec- vestigation. ommendations for administrative ac- (b) The OIG must inform the NASA tions resulting from the investigation. Office of the Chief Scientist of all alle- (m) NASA Adjudication Official is gations that meet the definition of re- the NASA Associate Administrator of a search misconduct received by the OIG Mission Directorate, Chief Tech- and of the determinations of the OIG nologist, or Chief Engineer, depending required by § 1275.101. The NASA Office on the research area involved in the of the Chief Scientist shall notify the misconduct allegation (as described in the list of NASA research disciplines NASA Office of the Chief Engineer or and their associated directorates con- the NASA Office of the Chief Tech- tained in the Appendix to this part). nologist when the research is either en- (n) Appeal means the formal proce- gineering or technology research. dure initiated at the request of the Re- (c) The OIG should defer its inquiry spondent for review of a determination or investigation pending review of the resulting from the adjudication and for results of an external investigation affirming, overturning, or modifying it. whenever possible. Nevertheless, the (o) NASA Appeals Official is the NASA OIG retains the right to proceed at any Deputy Administrator or other official time with a NASA inquiry or investiga- designated by the NASA Adminis- tion. Circumstances in which the OIG trator. may elect not to defer its inquiry or investigation include, but are not limited [69 FR 42103, July 14, 2004, as amended at 77 FR 44441, July 30, 2012] to, the following: (1) When the OIG determines that the § 1275.102 OIG handling of research awardee institution is not prepared to misconduct matters. handle the allegation in a manner con- (a) When an allegation is made to the sistent with this part; OIG, rather than to the awardee insti- (2) When the OIG determines that tution, the OIG shall determine wheth- NASA involvement is needed to protect er the allegation concerns NASA re- the public interest, including public search and whether the allegation, if health and safety;

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(3) When the OIG determines that the institution, to the NASA Adjudication allegation involves an awardee institu- Official and to the NASA Office of the tion of sufficiently small size that it Chief Scientist. cannot reasonably conduct the inves- (f) Upon learning of alleged research tigation itself; misconduct, the OIG shall identify po- (4) When the OIG determines that a tentially implicated awards or pro- NASA program or project could be posals and, when appropriate, shall en- jeopardized by the occurrence of re- sure that program, grant, or con- search misconduct; or tracting officers handling them are in- (5) When the OIG determines that formed. Neither a suspicion nor allega- any of the notifications or information tion of research misconduct, nor a required to be given to the OIG by the pending inquiry or investigation, shall awardee institution pursuant to normally delay review of proposals. § 1275.103(b) requires NASA to cease its Subject to paragraph (g) of this sec- deferral to the awardee institution’s tion, reviewers or panelists shall not be procedures and to conduct its own inquiry or investigation. informed of allegations or of ongoing (d) A copy of the investigation re- inquiries or investigations in order to port, evidentiary record, and final de- avoid influencing reviews. In the event termination resulting from an external that an application receives a fundable investigation must be transmitted to rating or ranking by a review panel, the OIG for review. The OIG shall de- funding can be deferred by the program termine whether to recommend to the until the completion of the inquiry or NASA Adjudication Official, or to the investigation. lead investigative organization in cases (g) If, during the course of an OIG that involve multiple institutions, ac- conducted inquiry or investigation, it ceptance of the investigation report appears that immediate administrative and final determination in whole or in action, as described in § 1275.106, is nec- part. The OIG’s decision must be made essary to protect public health or safe- within 45 days of receipt of the inves- ty, Federal resources or interests, or tigation report and evidentiary record. the interests of those involved in the This period of time may be extended by inquiry or investigation, the OIG shall the OIG for good cause. The OIG shall inform the NASA sponsor for the re- make this decision based on the OIG’s search and the NASA Office of the assessment of the completeness of the Chief Scientist. investigation report, and the OIG’s assessment of whether the investigating § 1275.103 Role of awardee institu- entity followed reasonable procedures, tions. including whether the Respondent had (a) The awardee institutions have the an adequate opportunity to comment primary responsibility for prevention on the investigation report and wheth- and detection of research misconduct er these comments were given due con- and for the inquiry, investigation, and sideration. If the OIG decides to recommend acceptance of the results of adjudication of research misconduct al- the external investigation, in whole or leged to have occurred in association in part, the OIG shall transmit a copy with their own institutions, although of the final determination, the inves- NASA has ultimate oversight author- tigation report, and the evidentiary ity for NASA research. record to the NASA Adjudication Offi- (b) When an allegation of research cial, and to the NASA Office of the misconduct related to NASA research Chief Scientist. When the OIG decides is made directly to the OIG and the not to recommend acceptance, the OIG OIG defers to the awardee institution’s must initiate its own investigation. inquiry or investigation, or when an al- (e) In the case of an investigation legation of research misconduct re- conducted by the OIG, the OIG shall lated to NASA research is made di- transmit copies of the investigation re- rectly to the awardee institution which port, including the Respondent’s writ- commences an inquiry or investiga- ten comments (if any), the evidentiary tion, the awardee institution is re- record and its recommendations, to the quired to:

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(1) Notify the OIG if an inquiry sup- until it receives the results of that exports a formal investigation as soon as ternal investigation. When the OIG this is determined. does not receive the results within a (2) Keep the OIG informed during reasonable time, the OIG shall ordi- such an investigation. narily proceed with its own investiga- (3) Notify the OIG immediately— tion. (i) If public health or safety is at (b) When the OIG decides to initiate risk; a NASA investigation, the OIG must (ii) If Federal resources, reputation, give prompt written notice to the indi- or other interests need protecting; vidual or institution to be inves- (iii) If research activities should be tigated, unless notice would prejudice suspended; the investigation or unless a criminal (iv) If there is reasonable indication of possible violations of civil or crimi- investigation is underway or under ac- nal law; tive consideration. If notice is delayed, (v) If Federal action is needed to pro- it must be given as soon as it will no tect the interests of those involved in longer prejudice the investigation or the investigation; or contravene requirements of law or Fed- (vi) If the research community or the eral law-enforcement policies. public should be informed. (c) When alleged misconduct may in- (4) Provide the OIG with a copy of volve a crime, the OIG shall determine the investigation report, including the whether any criminal investigation is recommendations made to the awardee already pending or projected. If not, institution’s adjudication official and the OIG shall determine whether the the Respondent’s written comments (if matter should be referred to the De- any), along with a copy of the evi- partment of Justice. dentiary record. (d) When a criminal investigation by (5) Provide the OIG with the awardee the Department of Justice or another institution’s final determination, in- Federal agency is underway or under cluding any corrective actions taken or active consideration, the OIG shall de- planned. termine what information, if any, may (c) If an awardee institution wishes be disclosed to the Respondent or to the OIG to defer its own inquiry or in- NASA employees. vestigation, the awardee institution shall complete any inquiry and decide (e) To the extent possible, the iden- whether an investigation is warranted tity of sources who wish to remain within 60 days. It should similarly anonymous shall be kept confidential. complete any investigation, adjudica- To the extent allowed by law, docu- tion, or other procedure necessary to ments and files maintained by the OIG produce a final determination, within during the course of an inquiry or in- an additional 180 days. If completion of vestigation of misconduct shall be the process is delayed, but the awardee treated as investigative files exempt institution wishes NASA’s deferral of from mandatory public disclosure upon its own procedures to continue, NASA request under the Freedom of Informa- may require submission of periodic station Act. tus reports. (f) When the OIG proceeds with its (d) Each awardee institution must own inquiry, it is responsible for ensur- maintain and effectively communicate ing that the inquiry is completed with- to its staff, appropriate policies and in 60 days after it is commenced. The procedures relating to research mis- OIG may extend this period of time for conduct, including the requirements on good cause. when and how to notify NASA. (g) On the basis of what the OIG § 1275.104 Conduct of Inquiry by the learns from an inquiry, and in con- OIG. sultation as appropriate with other (a) When an awardee institution or NASA offices, the OIG shall decide another Federal agency has promptly whether a formal investigation is war- initiated its own investigation, the OIG ranted. may defer its inquiry or investigation

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§ 1275.105 Conduct of the OIG inves- (3) The allegation be proven by a pre- tigation of research misconduct. ponderance of evidence. (a) The OIG shall make every reason- (f) The investigation report must also able effort to complete a NASA re- be transmitted with the recommenda- search misconduct investigation and tions for administrative action, when issue a report within 120 days after ini- recommended findings of research mis- tiating the investigation. The OIG may conduct are made. Section 1275.106 lists extend this period of time for good possible recommended administrative cause. actions and considerations for use in (b) A NASA investigation may in- determining appropriate recommenda- clude: tions. (1) Review of award files, reports, and (g) NASA OIG may elect to proceed other documents readily available at with its administrative investigation NASA or in the public domain; processes in lieu of a research mis- (2) Review of procedures or methods conduct investigation under this part and inspection of laboratory materials, when the allegation is against a civil specimens, and records at awardee in- service employee (an intramural re- stitutions; searcher). (3) Interviews with parties or witnesses; § 1275.106 Administrative actions. (4) Review of any documents or other (a) Listed in paragraphs (a)(1) evidence provided by or properly ob- through (a)(3) of this section are pos- tainable from parties, witnesses, or sible administrative actions that may other sources; be recommended by the investigation (5) Cooperation with other Federal report and adopted by the adjudication agencies; and process. They are not exhaustive, and (6) Opportunity for the Respondent to are in addition to any administrative be heard. actions necessary to correct the re- (c) The OIG may invite outside con- search record. The administrative ac- sultants or experts to participate in a tions range from minimal restrictions NASA investigation. (Group I Actions) to severe restrictions (d) During the course of the inves- (Group III Actions), and do not include tigation, the OIG shall provide a draft possible criminal sanctions. of the investigation report to the Re- (1) Group I Actions. spondent, who shall be invited to sub- (i) Send a letter of reprimand to the mit comments. The Respondent must individual or institution. submit any comments within 20 days of (ii) Require as a condition of an receipt of the draft investigation re- award that for a specified period of port. This period of time may be ex- time an individual, department, or intended by the OIG for good cause. Any stitution obtain special prior approval comments submitted by the Respond- of particular activities from NASA. ent shall receive full consideration be- (iii) Require for a specified period of fore the investigation report is made time that an institutional official final. other than those guilty of research (e) At the end of the investigation misconduct certify the accuracy of re- proceedings, an investigation report ports generated under an award or pro- must be prepared that shall include vide assurance of compliance with par- recommended findings as to whether ticular policies, regulations, guide- research misconduct has occurred. A lines, or special terms and conditions. recommended finding of research mis- (2) Group II Actions. conduct requires that: (i) Restrict for a specified period of (1) There be a significant departure time designated activities or expendi- from accepted practices of the relevant tures under an active award. research community for maintaining (ii) Require for a specified period of the integrity of the research record; time special reviews of all requests for (2) The research misconduct be com- funding from an affected individual, de- mitted intentionally, knowingly, or in partment, or institution to ensure that reckless disregard of accepted prac- steps have been taken to prevent rep- tices; and etition of the research misconduct.

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(3) Group III Actions. (c) The decision shall be sent to the (i) Immediately suspend or terminate Respondent, to the Respondent’s insti- an active award. tution, and, if appropriate, to the Com- (ii) Debar or suspend an individual, plainant. If the decision confirms the department, or institution from par- alleged research misconduct, it must ticipation in NASA programs for a include instructions on how to pursue specified period of time. an appeal to the NASA Appeals Offi- (iii) Prohibit participation of an indi- cial. The decision shall also be trans- vidual as a NASA reviewer, advisor, or mitted to the NASA Office of the Chief consultant for a specified period of Scientist and the OIG. time. § 1275.108 Appeals. (b) In deciding what actions are appropriate when research misconduct is (a) The Respondent may appeal the found, NASA officials should consider decision of the NASA Adjudication Of- the seriousness of the misconduct, in- ficial by notifying the NASA Appeals cluding, but not limited to: Official in writing of the grounds for (i) The degree to which the mis- appeal within 30 days after Respond- conduct was knowing, intentional, or ent’s receipt of the decision. If the de- reckless; cision is not appealed within the 30-day (ii) Whether the misconduct was an period, the decision becomes the final isolated event or part of a pattern; Agency action insofar as the findings (iii) Whether the misconduct had a are concerned. significant impact on the research (b) The NASA Appeals Official shall record, research subjects, or other re- inform the Respondent of a final deter- searchers, institutions, or the public mination within 30 days after receiving welfare. the appeal. The NASA Appeals Official may extend this period of time for good § 1275.107 Adjudication. cause. The final determination may affirm, overturn, or modify the decision (a) The NASA Adjudication Official of the NASA Adjudication Official and must review and evaluate the inves- shall constitute the final Agency ac- tigation report and the evidentiary tion insofar as the findings are con- record required to be transmitted pur- cerned. The final determination shall suant to § 1275.102(d) and (e). The NASA also be transmitted to the NASA Office Adjudication Official may initiate fur- of the Chief Scientist and the OIG. ther investigations, which may include (c) Once final Agency action has been affording the Respondent another op- taken pursuant to paragraphs (a) or (b) portunity for comment, before issuing of this section, the recommendations a decision regarding the case. The for administrative action shall be sent NASA Adjudication Official may also to the relevant NASA components for return the investigation report to the further proceedings in accordance with OIG with a request for further fact- applicable laws and regulations. finding or analysis. (b) Based on a preponderance of the APPENDIX TO PART 1275—RESEARCH evidence, the NASA Adjudication Offi- MISCONDUCT cial shall issue a decision setting forth the Agency’s findings as to whether re- NASA RESEARCH DISCIPLINES AND search misconduct has occurred and RESPECTIVE ASSOCIATED DIRECTORATES recommending appropriate administra- 1. Aeronautics Research—Aeronautics Re- tive actions that may be undertaken search Mission Directorate by NASA in response to research mis- 2. Space Science Research—Science Mission conduct determined to have occurred. Directorate The NASA Adjudication Official shall 3. Earth Science Research and Applications— render a decision within 30 days after Science Mission Directorate 4. Biomedical Research—Human Exploration receiving the investigation report and and Operations Mission Directorate evidentiary record, or after completion 5. Fundamental Biology—Human Explo- of any further proceedings. The NASA ration and Operations Mission Directorate Adjudication Official may extend this 6. Fundamental Physics—Human Explo- period of time for good cause. ration and Operations Mission Directorate

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7. Research for Exploration Systems not cov- 9. Other engineering research not covered by ered by the disciplines above—Human Ex- disciplines above—NASA Chief Engineer ploration and Operations Mission Direc- 10. Other technology research not covered by torate disciplines above—NASA Chief Tech- 8. Research for the International Space Sta- nologist tion not covered by the disciplines above— [77 FR 44441, July 30, 2012] Human Exploration and Operations Mis- sion Directorate PARTS 1276–1299 [RESERVED]

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SUBCHAPTER A—OFFICE OF MANAGEMENT AND BUDGET

Part Page 1300 Aviation disaster relief—Air Carrier Guarantee Loan Program ...... 359

SUBCHAPTER B—AIR TRANSPORTATION STABILIZATION BOARD 1310 Air Carrier Guarantee Loan Program administrative regulations and amendment or waiver of a term or condition of guaranteed loan ...... 367 1311–1399 [Reserved]

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PART 1300—AVIATION DISASTER cluding, but not limited to care, preser- RELIEF—AIR CARRIER GUAR- vation and maintenance of collateral), ANTEE LOAN PROGRAM monitoring, collecting, and liquidating a loan and security. (c) Agent means that lender author- Subpart A—General ized to take such actions, exercise such Sec. powers, and perform such duties on be- 1300.1 Purpose. half and in representation of all lenders 1300.2 Definitions. party to a guarantee of a single loan, 1300.3 Supplementary regulations of the Air as is required by, or necessarily inci- Transportation Stabilization Board. dental to, the terms and conditions of Subpart B—Minimum Requirements and the guarantee. Application Procedures (d) Air carrier means an air carrier as defined in 49 U.S.C. 40102. 1300.10 General standard for Board issuance (e) Applicant means one or more air of Federal credit instruments. carriers applying for a Federal credit 1300.11 Eligible borrower. instrument issued by the Board under 1300.12 Eligible lender. the program. 1300.13 Guarantee amount. 1300.14 Guarantee percentage. (f) The Board, for purposes of any 1300.15 Loan terms. operational and decisionmaking func- 1300.16 Application process. tions in connection with individual 1300.17 Application evaluation. loan guarantees, means the voting 1300.18 Issuance of the guarantee. members of the Air Transportation 1300.19 Assignment or transfer of loans. Stabilization Board established under 1300.20 Lender responsibilities. Section 102 of the Act. The voting 1300.21 Guarantee. 1300.22 Termination of obligations. members of the Board are the Chair- 1300.23 Participation in guaranteed loans. man of the Board of Governors of the Federal Reserve System (who is the AUTHORITY: Title I of Pub. L. 107–42, 115 Stat. 230 (49 U.S.C. 40101 note). Chairman of the Board), the Secretary of the Treasury and the Secretary of SOURCE: 66 FR 52272, Oct. 12, 2001, unless Transportation, or their designees. The otherwise noted. Comptroller General, who is a nonvoting member, will not participate in Subpart A—General the review, operations, or deliberations of the Board in connection with indi- § 1300.1 Purpose. vidual loan guarantees, or otherwise This part is issued by the Office of participate in the Board’s exercise of Management and Budget, (OMB) pursu- any executive power, but may provide ant to Title I of the Air Transportation such audit, evaluation and other sup- Safety and System Stabilization Act, port to the Board as the Board may re- Public Law 107–42, 115 Stat. 230 (‘‘Act’’). quest, consistent with applicable audit- Specifically, Section 102(c)(2)(B) di- ing standards. rects OMB to issue regulations setting (g) Borrower means an ‘‘Obligor,’’ as forth procedures for application and defined in Section 102(a)(4) of the Act, minimum requirements for the and includes an air carrier that is pri- issuance of Federal credit instruments marily liable for payment of the prin- under section 101(a)(1) of the Act. cipal of and interest on a Federal credit instrument, which party may be a § 1300.2 Definitions. corporation, partnership, joint venture, (a) Act means the Air Transportation trust, or governmental entity, agency, Safety and System Stabilization Act, or instrumentality. Public Law 107–42, 115 Stat. 230 (49 (h) Federal credit instrument, as de- U.S.C. 40101 note). fined in Section 107(2) of the Act, (b) Administer, administering and ad- means any guarantee or other pledge ministration, mean the lender’s actions by the Board issued under the program in making, disbursing, servicing (in- to pledge the full faith and credit of

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the United States to pay all or part of § 1300.3 Supplementary regulations of any of the principal of and interest on the Air Transportation Stabilization a loan issued by a borrower and funded Board. by a lender. (a) The regulations in this part are (i) Financial obligation, as defined in supplemented by the regulations of the Section 102(a)(2) of the Act, means any Air Transportation Stabilization Board note, bond, debenture, or other debt ob- in part 1310 of this chapter in accord- ligation issued by a borrower in con- ance with section 102(c)(2)(B) of the nection with financing under the pro- Act. gram. (b) This part and part 1310 of this (j) Guarantee means the written chapter jointly govern the application agreement between the Board and one procedures and the requirements for or more lenders, pursuant to which the issuance of Federal credit instruments Federal government guarantees repay- under section 101(a)(1) of the Act. ment of a specified percentage of the principal of and/or interest on the loan. [67 FR 17258, Apr. 9, 2002] Unless otherwise specified, guarantee includes any other pledge issued under Subpart B—Minimum Require- a Federal credit instrument. ments and Application Proce- (k) Lender means any non-Federal dures qualified institutional buyer, as defined in Section 102(a)(3) of the Act, § 1300.10 General standards for Board that funds a financial obligation sub- issuance of Federal credit instru- ject to a guarantee issued by the ments. Board. With respect to a guarantee of a (a) In accordance with section single loan to which more than one 102(c)(1) of the Act, the Board may lender is a party, the term lender enter into agreements with one or means agent. more borrowers to issue Federal credit (l) Loan, unless otherwise specified, instruments only if the Board deter- includes any financial obligation (i.e., mines, in its discretion and in accord- note, bond, debenture, or other debt ob- ance with the minimum requirements ligation) issued by a borrower. set forth in this part, that— (m) Loan documents mean the loan (1) The borrower is an air carrier for agreement and all other instruments, which credit is not reasonably avail- and all documentation between the able at the time of the transaction; lender and the borrower evidencing the (2) The intended obligation by the making, disbursing, securing, col- borrower is prudently incurred; and lecting, or otherwise administering of (3) Such agreement is a necessary the loan. (References to loan docu- part of maintaining a safe, efficient, ments also include comparable agree- and viable commercial aviation system ments, instruments, and documenta- in the United States. tion for other financial obligations for (b) In accordance with section which a guarantee is requested or 102(c)(2)(A) of the Act, the Board shall issued.) enter into an agreement to issue a Fed- (n) Program means the air carrier eral credit instrument in such form guarantee loan program established by and on such terms and conditions and section 101(a)(1) and the related provi- subject to such covenants, representa- sions of Title I of the Act. tions, warranties, and requirements (o) Security means all property, real (including requirements for audits) as or personal, required by the provisions the Board determines are appropriate of the guarantee or by the loan docu- for satisfying the requirements of this ments to secure repayment of any in- part and any supplemental require- debtedness of the borrower under the ments issued by the Board under sec- loan documents or guarantee. tion 102(c)(2)(B) of the Act. (c) In accordance with section 102(d)(1) of the Act, in entering into

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agreements to issue Federal credit in- ceptable to the Board or by the Comp- struments, the Board shall, to the ex- troller General; tent feasible and practicable and in ac- (5) In conducting audits and reviews cordance with the requirements in this pursuant to paragraphs (a) (3) and (4) of part, ensure that the Federal Govern- this section, it has agreed to provide ment is compensated for the risk as- access to the officers and employees, sumed in making guarantees. books, records, accounts, documents, (d) In accordance with Section correspondence, and other information 102(d)(2) of the Act, the Board is au- of the borrower, its subsidiaries, affili- thorized to enter into contracts under ates, financial advisers, consultants, which the Federal Government, contin- and independent certified accountants gent on the financial success of the air that the Board or the Comptroller Gen- carrier, would participate in the gains eral consider necessary. of the air carrier or its security holders (b) Status as an eligible borrower through the use of such instruments as under this section does not ensure that warrants, stock options, common or the Board will issue the guarantee preferred stock, or other appropriate sought or preclude the Board from de- equity instruments, except that the clining to issue a guarantee. Board shall not accept an equity inter- § 1300.12 Eligible lender. est in an air carrier that gives the Fed- eral Government voting rights. (a) A lender eligible to receive a Fed- (e) In accordance with Section 104(a) eral credit instrument approved by the of the Act, the Board may only issue a Board must be a non-Federal qualified Federal credit instrument to an air institutional buyer as defined in Sec- carrier after the air carrier enters into tion 102(a)(3) of the Act. a legally binding agreement with the (b) If more than one institution par- Board regarding certain employee com- ticipates as a lender in a single loan for pensation. which a Federal credit instrument is requested, each one of the institutions § 1300.11 Eligible borrower. on the application must meet the requirements 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; (4) It has agreed to permit such au- § 1300.13 Guarantee amount. 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.

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(b) The loan amount guaranteed to a for review if it is not received by the single air carrier may not exceed that Board on or before June 28, 2002. amount that, in the Board’s sole dis- (b) Applications shall contain the fol- cretion, the air carrier (or its suc- lowing: cessor) needs in order for it to provide (1) A completed Form ‘‘Application commercial air services. for Air Carrier Guaranteed Loan’; (2) All loan documents that will be § 1300.14 Guarantee percentage. signed by the lender and the borrower, A guarantee issued by the Board if the application is approved, includ- must be less than 100 percent of the ing all terms and conditions of, and se- amount of principal and accrued inter- curity or additional security (if any), est of the loan guaranteed. to assure the borrower’s performance under, the loan; § 1300.15 Loan terms. (3) A certification by the borrower (a) A loan guaranteed under the pro- that the borrower meets each of the re- gram shall be due and payable in full quirements of the program as set forth no later than seven years from the date in the Act, the regulations in this part, on which the first disbursement of the and any supplemental requirements loan is made. issued by the Board; (b) Loans guaranteed under the pro- (4) A certification by the lender that gram must bear a rate of interest de- the lender meets each of the require- termined by the Board to be reason- ments of the program as set forth in able. In determining the reasonable- the Act, the regulations in this part, ness of an interest rate, the Board shall and any supplemental requirements consider the percentage of the guar- issued by the Board, and that the lend- antee, any collateral, other loan terms, er will provide the loan under the and current average yields on out- terms outlined in the loan documents standing obligations of the United if the Board approves the requested States with maturity comparable to guarantee; the term of the loan guaranteed. The (5) A statement that the borrower is Board may reject an application to not under bankruptcy protection or re- guarantee a loan if it determines the ceivership when the application is sub- interest rate on such loan to be unrea- mitted, unless the guarantee and the sonable. underlying financial obligation is to be (c) An eligible lender may assess and part of a bankruptcy court-certified re- collect from the borrower such other organization plan; fees and costs associated with the ap- (6) Consolidated financial statements plication and origination of the loan as of the borrower for the previous five are reasonable and customary, taking years that have been audited by an into consideration the amount and independent certified public account- complexity of the credit. The Board ant, including any associated notes, as may take such other fees and costs well as any interim financial state- into consideration when determining ments and associated notes for the cur- whether to offer a guarantee to the rent fiscal year; lender. (7) Copies of the financial evaluations and forecasts concerning the air car- § 1300.16 Application process. 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

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an existing firm (or the substantial as- (11) A description of all security (if sets of an existing firm), the business any) for the loan, including, as applica- plan of the combined entity shall con- ble, current appraisals of real and pertain a discussion of the way in which sonal property, copies of any appro- any required regulatory or judicial ap- priate environmental site assessments, provals will be obtained, including and current personal and corporate fi- antitrust approval for any proposed ac- nancial statements of any guarantors quisition; for the same period as required for the (ii) A discussion of a complete cost borrower. Appraisals of real property accounting and a range of revenue, op- shall be prepared by State licensed or erating cost, and credit assumptions; certified appraisers, and be consistent (iii) A discussion of the financing with the ‘‘Uniform Standards of Profes- plan on which the loan is based, show- sional Appraisal Practice,’’ promul- ing that the operational needs of the gated by the Appraisal Standards borrower will be met during the term Board of the Appraisal Foundation. Fi- of the plan; nancial statements of guarantors shall (iv) An analysis demonstrating that, be prepared by independent certified at the time of the application, there is public accountants; (12) If appropriate, a description of a reasonable assurance that the bor- the Federal government’s ability to rower will be able to repay the loan ac- participate, contingent on the finan- cording to its terms, and a complete cial success of the borrower, in the description of the operational and fi- gains of the borrower or its security nancial assumptions on which this holders through the use of such instru- demonstration is based; ments as warrants, stock options, com- (v) A discussion of the borrower’s mon or preferred stock, or other appro- five-year history and five-year projec- priate equity instruments; and tion for revenue, cash flow, average re- (13) Any other information requested alized prices, and average realized op- by the Board. erating costs and a demonstration that (c) The collections of information in the borrower will be able to continue this section and elsewhere in this part operations if the requested guarantee that are subject to the Paperwork Re- is approved; and duction Act (44 U.S.C. 3501 et seq.) have (vi) If appropriate, a description of a been approved by OMB and assigned plan to restructure the borrower’s obli- control number 0348–0059. Under the gations, contracts, and costs. In pre- Paperwork Reduction Act, an agency paring this description, the borrower may not conduct or sponsor, and a per- shall jointly develop, with its existing son is not required to respond to, a col- secured and unsecured creditors, em- lection of information unless it dis- ployees, or vendors, an agreed-upon plays a currently valid OMB control plan to restructure the borrower’s obli- number. gations, contracts and costs and incorporate this into the business plan sub- § 1300.17 Application evaluation. mitted; (a) Eligibility screening. Applica- (9) A description of the losses that tions will be reviewed to determine the borrower incurred (or is incurring) whether the lender and borrower are el- as a result of the terrorist attacks on igible, the information required under the United States that occurred on § 1300.16(b) is complete, and the pro- September 11, 2001, including losses due posed loan complies with applicable to the unavailability of credit on rea- statutes and regulations. The Board sonable terms or a decrease in demand may at any time reject an application for the air carrier’s services; that does not meet these requirements. (10) An analysis that demonstrates (b) Evaluation criteria. Applications that the issuance of the guaranteed that are determined to be eligible pur- loan is a necessary part of maintaining suant to paragraph (a) of this section a safe, efficient, and viable commercial 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

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§ 1300.10, the Board shall consider the air carrier in a manner that will enable following evaluation factors: it to repay the loan in accordance with (1) Reasonable assurance that the its terms and provide commercial air borrower will be able to repay the loan services on a financially sound basis by the date specified in the loan docu- after repayment; ment, which shall be no later than (vi) A demonstration that guaranteed seven years from the date on which the loan proceeds will be used for a purpose first disbursement of the loan is made; other than the payment or refinancing (2) The adequacy of the proposed proof existing debt; visions to protect the Federal Govern- (vii) A demonstration that the pro- ment, including sufficiency of any se- posed instruments contain financial curity provided by the borrower and structures that minimize the Federal the percentage of guarantee requested; government’s risk and cost associated (3) The ability of the lender to ad- with making loan guarantees. Exam- minister the loan in full compliance ples include, but are not limited to, re- with the requisite standard of care. In quests for guarantees that contain the making this determination, the Board following: will assess: (A) A maturity period that is less (i) The lender’s level of regulatory than the maximum permitted under capital, in the case of banking institu- the rules in this part; tions, or net worth, in the case of other (B) Pledges of collateral; institutions; (C) Agreements by the borrower’s (ii) Whether the lender possesses the parent or other entities to reimburse ability to administer the loan, includ- the Federal government for any paying its experience with loans to air car- ments that the Federal government riers; and may make under the guarantee; (iii) Any other matter the Board (D) A grant to the Federal govern- deems material to its assessment of the ment of favorable priority in the event lender; and of bankruptcy reflecting other credi- (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 criteria, as follows: (F) Limitation of the borrower’s abil- (i) A demonstration that the air car- ity to incur additional debt, and/or the rier has presented a plan dem- borrower’s ability to incur capital ex- onstrating that its business plan is fi- penditures, beyond that set forth in the nancially sound; business and financial plans that the (ii) A demonstration of greater par- Borrower submitted with the applica- ticipation in the loan by non-Federal tion; entities; (G) A demonstration of reasonable li- (iii) A demonstration of greater par- quidity; ticipation in the loan by private enti- (H) A demonstration of favorable ties, as opposed to public non-Federal debt ratios; and entities; (I) A demonstration that any pro- (iv) A demonstration that the proceeds raised from private sector financ- posed instruments would ensure that ing subsequent to disbursement of the the Federal Government will, contin- federally guaranteed loan be used to gent on the financial success of the air repay the federally guaranteed loan. carrier, participate in the gains of the (c) No guarantee will be made if ei- air carrier and its security holders; ther the borrower or lender has an out- (v) A demonstration of concessions standing delinquent Federal debt, in- by the air carrier’s security holders, cluding tax liabilities, until: other creditors, or employees that will (1) The delinquent debt has been paid improve the financial condition of the in full;

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(2) A negotiated repayment schedule (d) A borrower receiving a loan guar- is established; or anteed by the Board under this pro- (3) Other arrangements, satisfactory gram shall pay an annual fee, in an to the agency responsible for collecting amount and payable as determined by the debt are made. the Board. At the time that the guar- (d) Decisions by the Board. The antee is issued, the Board shall ensure Board shall approve or deny applica- that this annual fee will escalate for tions received on or before June 28, each year that the loan is outstanding 2002, in a timely manner as such appli- and that such annual escalation re- cations are received. The Board may flects the borrower’s potential ability limit the amount of a loan guarantee to obtain credit in the private credit made to initial applicants to ensure markets, in addition to any other fac- that sufficient funds remain available tors the Board may deem appropriate. for subsequent applicants. The Board shall notify the borrower in writing of § 1300.19 Assignment or transfer of the approval or denial of an applica- loans. tion. Approvals for loan guarantees Neither the loan documents nor the shall be conditioned upon compliance guarantee of the Board, or any interest with § 1300.18. therein, may be modified, assigned, conveyed, sold or otherwise transferred § 1300.18 Issuance of the guarantee. by the lender, in whole or in part, with- (a) The Board’s decisions to approve out the prior written approval of the any application for a guarantee under Board. § 1300.17 is conditioned upon: (1) The lender and borrower obtaining § 1300.20 Lender responsibilities. any required regulatory or judicial ap- The lender shall have such obliga- provals; tions and duties to the Board as are set (2) Evidence showing, to the Board’s forth in the guarantee. satisfaction, that the lender and borrower are legally authorized to enter § 1300.21 Guarantee. into the loan under the terms and con- The Board shall adopt a form of guar- ditions submitted to the Board in the antee to be used by the Board under application; the program. Modifications to the pro- (3) The Board’s receipt of the loan visions of the form of guarantee must documents and any related instru- be approved and adopted by the Board. ments, in form and substance satisfactory to the Board, and the guarantee, § 1300.22 Termination of obligations. all properly executed by the lender, borrower, and any other required party The Board shall have such rights to other than the Board; and terminate the guarantee as are set (4) No material adverse change in the forth in the guarantee. borrower’s ability to repay the loan or any of the representations and warran- § 1300.23 Participation in guaranteed loans. ties made in the application between the date of the Board’s approval and (a) Subject to paragraph (b) of this the date the guarantee is to be issued. section, a lender may distribute the (b) The Board may withdraw its ap- risk of a portion of a loan guaranteed proval of an application and rescind its under the program by sale of participa- offer of guarantee if the Board deter- tions therein if: mines that the lender or the borrower (1) Neither the loan note nor the cannot, or is unwilling to, provide ade- guarantee is assigned, conveyed, sold, quate documentation and proof of com- or transferred in whole or in part; pliance with paragraph (a) of this sec- (2) The lender remains solely respon- tion within the time provided for in the sible for the administration of the offer. loan; and (c) Only after receipt of all the docu- (3) The Board’s ability to assert any mentation required by this section, and all defenses available to it under will the Board sign and deliver the the guarantee and the law is not ad- guarantee. versely affected.

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(b) The following categories of enti- (3) Air Carrier company suppliers or ties may purchase participations in customers, who are interested in par- loans guaranteed under the program: ticipating as a means of commencing (1) Eligible lenders; or solidifying the supplier or customer (2) Private investment funds and in- relationship with the borrower; or surance companies that do not usually (4) Any other entity approved by the invest in commercial loans; Board on a case-by-case basis.

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PART 1310—AIR CARRIER GUAR- ignee of the Comptroller General, who ANTEE LOAN PROGRAM ADMIN- serves as a nonvoting member, shall ISTRATIVE REGULATIONS AND not be involved in any of the Board’s discussions or deliberations in connec- AMENDMENT OR WAIVER OF A tion with individual loan guarantee ap- TERM OR CONDITION OF GUAR- plications. ANTEED LOAN § 1310.3 Authority of the Board. Sec. Pursuant to the provisions of the 1310.1 Purpose and scope. 1310.2 Composition of the Board. Act, the Board is authorized to guar- 1310.3 Authority of the Board. antee loans provided to airlines by eli- 1310.4 Offices. gible lenders in accordance with the 1310.5 Meetings and actions of the Board. procedures, rules, and regulations es- 1310.6 Staff. tablished by the Board, to make the de- 1310.7 Communications with the Board. terminations authorized by the Act, 1310.8 Freedom of Information Act. and to take such other actions as nec- 1310.9 Restrictions on lobbying. 1310.10 Government-wide debarment and essary to carry out its functions speci- suspension. fied in the Act. 1310.11 Regulations of the Office of Manage- ment and Budget. § 1310.4 Offices. 1310.15 Amendment or Waiver of a term or The principal offices of the Board are condition of a guaranteed loan. at 1120 Vermont Avenue, NW., Suite 1310.20 Amendments. 970, Washington, DC 20005. AUTHORITY: Title I of Pub. L. 107–42, 115 Stat. 230 (49 U.S.C. 40101 note). § 1310.5 Meetings and actions of the SOURCE: 67 FR 17259, Apr. 9, 2002, unless Board. otherwise noted. (a) Place and frequency. The Board meets, on the call of the Chairman, in § 1310.1 Purpose and scope. order to consider matters requiring ac- This part is issued by the Air Trans- tion by the Board. The time and place portation Stabilization Board pursuant for any such meeting shall be deter- to Section 102(c)(2)(B) of the Air Trans- mined by the members of the Board. portation Safety and System Stabiliza- (b) Quorum and voting. Two voting tion Act, Public Law 107–42, 115 Stat. members of the Board constitute a 230 (Act). This part describes the quorum for the transaction of business. Board’s authorities, organizational All decisions and determinations of the structure, the rules by which the Board Board shall be made by a majority vote takes actions, and procedures for pub- of the voting members. All votes on de- lic access to Board records. terminations of the Board required by the Act shall be recorded in the min- § 1310.2 Composition of the Board. utes. A Board member may request The Board consists of the Chairman that any vote be recorded according to of the Board of Governors of the Fed- individual Board members. eral Reserve System or the designee of (c) Agenda of meetings. As a general the Chairman, who acts as Chairman of rule, an agenda for each meeting shall the Board, the Secretary of the Treas- be distributed to members of the Board ury or the designee of the Secretary, at least 48 hours in advance of the date the Secretary of Transportation or the of the meeting, together with copies of designee of the Secretary, and the materials relevant to the agenda items. Comptroller General of the United (d) Minutes. The Chief Administrative States or the designee of the Comp- Officer shall keep minutes of each troller General, who serves as a non- Board meeting and of action taken voting member. The Comptroller Gen- without a meeting, a draft of which is eral of the United States or the des- to be distributed to each member of the

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Board as soon as practicable after each to be taken by the Board. All delega- meeting or action. To the extent prac- tions shall be made pursuant to resolu- ticable, the minutes of a Board meet- tions of the Board and recorded in writing shall be corrected and approved at ing, whether in the minutes of a meet- the next meeting of the Board. ing or otherwise. Any action taken (e) Use of conference call communica- pursuant to delegated authority has tions equipment. Any member may par- the effect of an action taken by the ticipate in a meeting of the Board Board. through the use of conference call, telephone or similar communications § 1310.6 Staff. equipment, by means of which all per- (a) Executive Director. The Executive sons participating in the meeting can Director advises and assists the Board simultaneously speak to and hear each in carrying out its responsibilities other. Any member so participating in under the Act, provides general direc- a meeting shall be deemed present for tion with respect to the administration all purposes, except that the Comp- of the Board’s actions, directs the ac- troller General of the United States or tivities of the staff, and performs such the designee of the Comptroller Gen- other duties as the Board may require. eral, who serves as a nonvoting mem- (b) Legal Counsel. The Legal Counsel ber, shall not participate in any of the provides legal advice relating to the re- Board’s discussions or deliberations in sponsibilities of the Board and per- connection with individual loan guar- forms such other duties as the Execu- antee applications. Actions taken by tive Director may require. the Board at meetings conducted (c) Chief Administrative Officer. The through the use of such equipment, in- Chief Administrative Officer sends no- cluding the votes of each member, tice of all meetings, prepares minutes shall be recorded in the usual manner of all meetings, maintains a complete in the minutes of the meetings of the record of all votes and actions taken by Board. the Board, has custody of all records of (f) Actions between meetings. When, in the Board and performs such other du- the judgment of the Chairman, it is de- ties as the Executive Director may re- sirable for the Board to consider action quire. without holding a meeting, the relevant information and recommenda- § 1310.7 Communications with the tions for action may be transmitted to Board. the members by the Chief Administra- Communications with the Board tive Officer and the voting members shall be conducted through the staff of may communicate their votes to the the Board. Chairman in writing (including an action signed in counterpart by each § 1310.8 Freedom of Information Act. Board member), electronically, or oral- While the Board is not part of the De- ly (including telephone communica- partment of the Treasury, the Board tion). Any action taken under this follows the regulations promulgated by paragraph has the same effect as an ac- the Department of the Treasury at sub- tion taken at a meeting. Any such ac- part A (‘‘Freedom of Information Act’’) tion shall be recorded in the minutes. of part 1 (‘‘Disclosure of Records’’) of If a voting member believes the matter title 31 (‘‘Money and Finance: Treas- should be considered at a meeting, the ury’’) of the Code of Federal Regula- member may so notify the Chief Ad- tions (CFR). The procedures of 31 CFR ministrative Officer and the matter 1.1 through 1.7 shall be followed for re- will be scheduled for consideration at a questing access to records maintained meeting. by the Board, and processing such re- (g) Delegations of authority. The Board quests. Any reference in 31 CFR 1.1 may delegate authority, subject to through 1.7 to the ‘‘Department of the such terms and conditions as the Board Treasury,’’ the ‘‘Department’’ or to a deems appropriate, to the Executive ‘‘bureau,’’ shall be construed to refer to Director, the Legal Counsel, or the the Board. In the event that the regu- Chief Administrative Officer, to take lations at subpart A of part 1 of title 31 certain actions not required by the Act of the CFR subsequently are amended

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by the Department of the Treasury, the Restrictions on Lobbying’’) of title 31 Board will follow those amended regu- (‘‘Money and Finance: Treasury’’) of lations. The following additional infor- the Code of Federal Regulations (CFR), mation is provided to implement 31 including the appendices thereto, are CFR 1.1 through 1.7 with respect to the applicable in connection with any of Board. the following covered Federal actions: (a) Public reading room. The public the awarding of any Federal contract, reading room for the Board is the the making of any Federal grant, the Treasury Department Library. The Li- making of any Federal loan, the enter- brary is located in the Main Treasury ing into of any cooperative agreement, Building, 1500 Pennsylvania Avenue, and the extension, continuation, re- NW., Washington, DC 20220. For build- newal, amendment, or modification of ing security purposes, visitors are re- any Federal contract, grant, loan, or quired to make an appointment by calling 202–622–0990. cooperative agreement. The regula- (b) Requests for records. Initial deter- tions promulgated by the Department minations under 31 CFR 1.5(h) as to of the Treasury at 31 CFR part 21 also whether to grant requests for records are applicable to a request for, or re- of the Board will be made by the Chief ceipt of, any Federal contract, grant, Administrative Officer or the designate loan or cooperative agreement; and to of such official. Requests for records a request for, or receipt of, a commit- should be addressed to: Freedom of In- ment providing for the United States formation Request, Air Transportation to insure or guarantee a loan. These Stabilization Board, Assistant Direc- terms are defined in 31 CFR 21.105. tor, Disclosure Services, Department of (b) In the event that the regulations the Treasury, 1500 Pennsylvania Ave- at part 21 of title 31 of the CFR subse- nue, NW., Washington, DC 20220. quently are amended by the Depart- (c) Administrative appeal of initial de- ment of the Treasury, the Board will termination to deny records. (1) Appellate follow those amended regulations. determinations under 31 CFR 1.5(i) with respect to records of the Board § 1310.10 Governmentwide debarment will be made by the Executive Direc- and suspension. tor, or the delegate of such official. While the Board is not part of the De- (2) Appellate determinations with respect to requests for expedited proc- partment of the Treasury, the regula- essing shall be made by the Executive tions promulgated by the Department Director or the delegate of such offi- of the Treasury at subpart A (‘‘Gen- cial. eral’’), subpart B (‘‘Effect of Action’’), (3) Appeals should be addressed to: subpart C (‘‘Debarment’’), subpart D Freedom of Information Appeal, Air (‘‘Suspension’’), and subpart E (‘‘Re- Transportation Stabilization Board, sponsibilities of GSA, Agency and Par- Assistant Director, Disclosure Serv- ticipants’’) of part 19 (‘‘Government- ices, Department of the Treasury, 1500 wide Debarment and Suspension (Non- Pennsylvania Avenue, NW., Wash- procurement) and Governmentwide Re- ington, DC 20220. quirements For Drug-Free Workplace (d) Delivery of process. Service of proc- (Grants)’’) of title 31 (‘‘Money and Fi- ess will be received by the Legal Coun- nance: Treasury’’) of the Code of Fed- sel of the Board or the delegate of such eral Regulations (CFR) are applicable official and shall be delivered to the to the Board. Any reference in 31 CFR following location: Legal Counsel, Air part 19 to the ‘‘Department of the Transportation Stabilization Board, Treasury’’ or the ‘‘Department’’ shall 1120 Vermont Avenue, NW., Suite 970, be construed to refer to the Board. In Washington, DC 20005. the event that the regulations at sub- § 1310.9 Restrictions on lobbying. part A, B, C, D or E of part 19 of title 31 of the CFR subsequently are amend- (a) While the Board is not part of the ed by the Department of the Treasury, Department of the Treasury, the regu- the Board will follow those amended lations promulgated by the Depart- regulations. ment of the Treasury at part 21 (‘‘New

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§ 1310.11 Regulations of the Office of amount and payable as determined by Management and Budget. the Board, for each amendment to, or (a) The regulations in this part sup- waiver of, any term or condition of any plement the regulations of the Office of guaranteed loan document or related Management and Budget in part 1300 of instrument approved by the Board. this chapter in accordance with section [70 FR 10037, Mar. 2, 2005] 102(c)(2)(B) of the Act. (b) This part and part 1300 of this § 1310.20 Amendments. chapter jointly govern the application procedures and the requirements for The procedures in this part may be issuance of Federal credit instruments adopted or amended, or new procedures under section 101(a)(1) of the Act. may be adopted, only by majority vote of the Board. Authority to adopt or § 1310.15 Amendment or Waiver of a amend these procedures may not be term or condition of a guaranteed delegated. loan. The Board may, in its discretion, charge the borrower a fee, in an PARTS 1311–1399 [RESERVED]

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

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Title 1—General Provisions

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

Title 2—Grants and Agreements

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

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

Title 3—The President

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

Title 4—Accounts

I Government Accountability Office (Parts 1—199)

Title 5—Administrative Personnel

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

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

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LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499) LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 9000—9099) LXXXIII Special Inspector General for Afghanistan Reconstruction (Parts 9300—9399) LXXXIV Bureau of Consumer Financial Protection (Parts 9400—9499) LXXXVI National Credit Union Administration (Parts 9600—9699) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799) XCVIII Council of the Inspectors General on Integrity and Efficiency (Parts 9800—9899) XCIX Military Compensation and Retirement Modernization Commis- sion (Parts 9900—9999) C National Council on Disability (Parts 10000—10049) CI National Mediation Board (Part 10101)

Title 6—Domestic Security

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

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Agricultural Marketing Service (Federal Grain Inspection Serv- ice, Fair Trade Practices Program), Department of Agri- culture (Parts 800—899)

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

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

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Agricultural Marketing Service (Federal Grain Inspection Serv- ice, Fair Trade Practices Program), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

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

Title 11—Federal Elections

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

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V (Parts 600—699) [Reserved] VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) X Bureau of Consumer Financial Protection (Parts 1000—1099) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299) XIII Financial Stability Oversight Council (Parts 1300—1399)

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

Title 13—Business Credit and Assistance

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

Title 14—Aeronautics and Space

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

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI National Technical Information Service, Department of Com- merce (Parts 1100—1199)

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

Title 16—Commercial Practices

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

Title 17—Commodity and Securities Exchanges

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

Title 18—Conservation of Power and Water Resources

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

Title 19—Customs Duties

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

Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499)

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

Title 21—Food and Drugs

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

Title 22—Foreign Relations

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

Title 23—Highways

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

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

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XV Emergency Mortgage Insurance and Loan Programs, Depart- ment of Housing and Urban Development (Parts 2700—2799) [Reserved] XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) [Reserved] XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

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

Title 26—Internal Revenue

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

Title 27—Alcohol, Tobacco Products and Firearms

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

Title 28—Judicial Administration

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

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199)

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

Title 30—Mineral Resources

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

Title 31—Money and Finance: Treasury

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

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VIII Office of Investment Security, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999) X Financial Crimes Enforcement Network, Department of the Treasury (Parts 1000—1099)

Title 32—National Defense

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

Title 33—Navigation and Navigable Waters

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

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299)

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

Title 35 [Reserved]

Title 36—Parks, Forests, and Public Property

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

Title 37—Patents, Trademarks, and Copyrights

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

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

Title 39—Postal Service

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

Title 40—Protection of Environment

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

Title 41—Public Contracts and Property Management

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

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

Title 42—Public Health

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

Title 43—Public Lands: Interior

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

Title 44—Emergency Management and Assistance

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

Title 45—Public Welfare

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

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

Title 46—Shipping

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

Title 47—Telecommunication

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

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

Title 48—Federal Acquisition Regulations System

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

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

Title 49—Transportation

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

Title 50—Wildlife and Fisheries

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

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

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CFR Title, Subtitle or Agency Chapter Administrative Conference of the United States 1, III Advisory Council on Historic Preservation 36, VIII Advocacy and Outreach, Office of 7, XXV Afghanistan Reconstruction, Special Inspector General for 5, LXXXIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 2, VII; 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, VIII, IX, X, XI; 9, II Agricultural Research Service 7, V Agriculture, Department of 2, IV; 5, LXXIII Advocacy and Outreach, Office of 7, XXV Agricultural Marketing Service 7, I, VIII, IX, X, XI; 9, II Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National Institute of Food and Agriculture 7, XXXIV Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force, Department of 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II 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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VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00403 Fmt 8092 Sfmt 8092 Y:\SGML\250050.XXX 250050 CFR Title, Subtitle or Agency Chapter Arctic Research Commission 45, XXIII Armed Forces Retirement Home 5, XI; 38, II Army, Department of 32, V Engineers, Corps of 33, II; 36, III Federal Acquisition Regulation 48, 51 Bilingual Education and Minority Languages Affairs, Office of 34, V Blind or Severely Disabled, Committee for Purchase from 41, 51 People Who Are Broadcasting Board of Governors 22, V Federal Acquisition Regulation 48, 19 Career, Technical, and Adult Education, Office of 34, IV Census Bureau 15, I Centers for Medicare & Medicaid Services 42, IV Central Intelligence Agency 32, XIX Chemical Safety and Hazard Investigation Board 40, VI Chief Financial Officer, Office of 7, XXX Child Support Enforcement, Office of 45, III Children and Families, Administration for 45, II, III, IV, X, XIII Civil Rights, Commission on 5, LXVIII; 45, VII Civil Rights, Office for 34, I Council of the Inspectors General on Integrity and Efficiency 5, XCVIII Court Services and Offender Supervision Agency for the 5, LXX District of Columbia Coast Guard 33, I; 46, I; 49, IV Coast Guard (Great Lakes Pilotage) 46, III Commerce, Department of 2, XIII; 44, IV; 50, VI Census Bureau 15, I Economic Analysis, Bureau of 15, VIII Economic Development Administration 13, III Emergency Management and Assistance 44, IV Federal Acquisition Regulation 48, 13 Foreign-Trade Zones Board 15, IV Industry and Security, Bureau of 15, VII International Trade Administration 15, III; 19, III National Institute of Standards and Technology 15, II; 37, IV National Marine Fisheries Service 50, II, IV National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Technical Information Service 15, XI National Telecommunications and Information 15, XXIII; 47, III, IV Administration National Weather Service 15, IX Patent and Trademark Office, United States 37, I Secretary of Commerce, Office of 15, Subtitle A Commercial Space Transportation 14, III Commodity Credit Corporation 7, XIV Commodity Futures Trading Commission 5, XLI; 17, I Community Planning and Development, Office of Assistant 24, V, VI Secretary for Community Services, Office of 45, X Comptroller of the Currency 12, I Construction Industry Collective Bargaining Commission 29, IX Consumer Financial Protection Bureau 5, LXXXIV; 12, X Consumer Product Safety Commission 5, LXXI; 16, II Copyright Royalty Board 37, III Corporation for National and Community Service 2, XXII; 45, XII, XXV Cost Accounting Standards Board 48, 99 Council on Environmental Quality 40, V Court Services and Offender Supervision Agency for the 5, LXX; 28, VIII District of Columbia Customs and Border Protection 19, I Defense Contract Audit Agency 32, I Defense, Department of 2, XI; 5, XXVI; 32, Subtitle A; 40, VII Advanced Research Projects Agency 32, I Air Force Department 32, VII Army Department 32, V; 33, II; 36, III; 48, 51

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VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00404 Fmt 8092 Sfmt 8092 Y:\SGML\250050.XXX 250050 CFR Title, Subtitle or Agency Chapter Defense Acquisition Regulations System 48, 2 Defense Intelligence Agency 32, I Defense Logistics Agency 32, I, XII; 48, 54 Engineers, Corps of 33, II; 36, III National Imagery and Mapping Agency 32, I Navy, Department of 32, VI; 48, 52 Secretary of Defense, Office of 2, XI; 32, I Defense Contract Audit Agency 32, I Defense Intelligence Agency 32, I Defense Logistics Agency 32, XII; 48, 54 Defense Nuclear Facilities Safety Board 10, XVII Delaware River Basin Commission 18, III Denali Commission 45, IX Disability, National Council on 5, C; 34, XII District of Columbia, Court Services and Offender Supervision 5, LXX; 28, VIII Agency for the Drug Enforcement Administration 21, II East-West Foreign Trade Board 15, XIII Economic Analysis, Bureau of 15, VIII Economic Development Administration 13, III Economic Research Service 7, XXXVII Education, Department of 2, XXXIV; 5, LIII Bilingual Education and Minority Languages Affairs, Office 34, V of Career, Technical, and Adult Education, Office of 34, IV Civil Rights, Office for 34, I Educational Research and Improvement, Office of 34, VII Elementary and Secondary Education, Office of 34, II Federal Acquisition Regulation 48, 34 Postsecondary Education, Office of 34, VI Secretary of Education, Office of 34, Subtitle A Special Education and Rehabilitative Services, Office of 34, III Educational Research and Improvement, Office of 34, VII Election Assistance Commission 2, LVIII; 11, II Elementary and Secondary Education, Office of 34, II Emergency Oil and Gas Guaranteed Loan Board 13, V Emergency Steel Guarantee Loan Board 13, IV Employee Benefits Security Administration 29, XXV Employees’ Compensation Appeals Board 20, IV Employees Loyalty Board 5, V Employment and Training Administration 20, V Employment Policy, National Commission for 1, IV Employment Standards Administration 20, VI Endangered Species Committee 50, IV Energy, Department of 2, IX; 5, XXIII; 10, II, III, X Federal Acquisition Regulation 48, 9 Federal Energy Regulatory Commission 5, XXIV; 18, I Property Management Regulations 41, 109 Energy, Office of 7, XXIX Engineers, Corps of 33, II; 36, III Engraving and Printing, Bureau of 31, VI Environmental Protection Agency 2, XV; 5, LIV; 40, I, IV, VII Federal Acquisition Regulation 48, 15 Property Management Regulations 41, 115 Environmental Quality, Office of 7, XXXI Equal Employment Opportunity Commission 5, LXII; 29, XIV Equal Opportunity, Office of Assistant Secretary for 24, I Executive Office of the President 3, I Environmental Quality, Council on 40, V Management and Budget, Office of 2, Subtitle A; 5, III, LXXVII; 14, VI; 48, 99 National Drug Control Policy, Office of 2, XXXVI; 21, III National Security Council 32, XXI; 47, 2 Presidential Documents 3 Science and Technology Policy, Office of 32, XXIV; 47, II

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VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00406 Fmt 8092 Sfmt 8092 Y:\SGML\250050.XXX 250050 CFR Title, Subtitle or Agency Chapter Federal Management Regulation 41, 102 Federal Property Management Regulations 41, 101 Federal Travel Regulation System 41, Subtitle F General 41, 300 Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain 41, 303 Employees Relocation Allowances 41, 302 Temporary Duty (TDY) Travel Allowances 41, 301 Geological Survey 30, IV Government Accountability Office 4, I Government Ethics, Office of 5, XVI Government National Mortgage Association 24, III Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Gulf Coast Ecosystem Restoration Council 2, LIX; 40, VIII Harry S. Truman Scholarship Foundation 45, XVIII Health and Human Services, Department of 2, III; 5, XLV; 45, Subtitle A Centers for Medicare & Medicaid Services 42, IV Child Support Enforcement, Office of 45, III Children and Families, Administration for 45, II, III, IV, X, XIII Community Services, Office of 45, X Family Assistance, Office of 45, II Federal Acquisition Regulation 48, 3 Food and Drug Administration 21, I Indian Health Service 25, V Inspector General (Health Care), Office of 42, V Public Health Service 42, I Refugee Resettlement, Office of 45, IV Homeland Security, Department of 2, XXX; 5, XXXVI; 6, I; 8, I Coast Guard 33, I; 46, I; 49, IV Coast Guard (Great Lakes Pilotage) 46, III Customs and Border Protection 19, I Federal Emergency Management Agency 44, I Human Resources Management and Labor Relations 5, XCVII Systems Immigration and Customs Enforcement Bureau 19, IV Transportation Security Administration 49, XII HOPE for Homeowners Program, Board of Directors of 24, XXIV Housing and Urban Development, Department of 2, XXIV; 5, LXV; 24, Subtitle B Community Planning and Development, Office of Assistant 24, V, VI Secretary for Equal Opportunity, Office of Assistant Secretary for 24, I Federal Acquisition Regulation 48, 24 Federal Housing Enterprise Oversight, Office of 12, XVII Government National Mortgage Association 24, III Housing—Federal Housing Commissioner, Office of 24, II, VIII, X, XX Assistant Secretary for Housing, Office of, and Multifamily Housing Assistance 24, IV Restructuring, Office of Inspector General, Office of 24, XII Public and Indian Housing, Office of Assistant Secretary for 24, IX Secretary, Office of 24, Subtitle A, VII Housing—Federal Housing Commissioner, Office of Assistant 24, II, VIII, X, XX Secretary for Housing, Office of, and Multifamily Housing Assistance 24, IV Restructuring, Office of Immigration and Customs Enforcement Bureau 19, IV Immigration Review, Executive Office for 8, V Independent Counsel, Office of 28, VII Independent Counsel, Offices of 28, VI Indian Affairs, Bureau of 25, I, V Indian Affairs, Office of the Assistant Secretary 25, VI Indian Arts and Crafts Board 25, II Indian Health Service 25, V

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VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00408 Fmt 8092 Sfmt 8092 Y:\SGML\250050.XXX 250050 CFR Title, Subtitle or Agency Chapter Labor-Management Standards, Office of 29, II, IV Mine Safety and Health Administration 30, I Occupational Safety and Health Administration 29, XVII Public Contracts 41, 50 Secretary of Labor, Office of 29, Subtitle A Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX Assistant Secretary for Wage and Hour Division 29, V Workers’ Compensation Programs, Office of 20, I, VII Labor-Management Standards, Office of 29, II, IV Land Management, Bureau of 43, II Legal Services Corporation 45, XVI Libraries and Information Science, National Commission on 45, XVII Library of Congress 36, VII Copyright Royalty Board 37, III U.S. Copyright Office 37, II Management and Budget, Office of 5, III, LXXVII; 14, VI; 48, 99 Marine Mammal Commission 50, V Maritime Administration 46, II Merit Systems Protection Board 5, II, LXIV Micronesian Status Negotiations, Office for 32, XXVII Military Compensation and Retirement Modernization 5, XCIX Commission Millennium Challenge Corporation 22, XIII Mine Safety and Health Administration 30, I Minority Business Development Agency 15, XIV Miscellaneous Agencies 1, IV Monetary Offices 31, I Morris K. Udall Scholarship and Excellence in National 36, XVI Environmental Policy Foundation Museum and Library Services, Institute of 2, XXXI National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V Federal Acquisition Regulation 48, 18 National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National and Community Service, Corporation for 2, XXII; 45, XII, XXV National Archives and Records Administration 2, XXVI; 5, LXVI; 36, XII Information Security Oversight Office 32, XX National Capital Planning Commission 1, IV, VI National Counterintelligence Center 32, XVIII National Credit Union Administration 5, LXXXVI; 12, VII National Crime Prevention and Privacy Compact Council 28, IX National Drug Control Policy, Office of 2, XXXVI; 21, III National Endowment for the Arts 2, XXXII National Endowment for the Humanities 2, XXXIII National Foundation on the Arts and the Humanities 45, XI National Geospatial-Intelligence Agency 32, I National Highway Traffic Safety Administration 23, II, III; 47, VI; 49, V National Imagery and Mapping Agency 32, I National Indian Gaming Commission 25, III National Institute of Food and Agriculture 7, XXXIV National Institute of Standards and Technology 15, II; 37, IV National Intelligence, Office of Director of 5, IV; 32, XVII National Labor Relations Board 5, LXI; 29, I National Marine Fisheries Service 50, II, IV National Mediation Board 5, CI; 29, X National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Park Service 36, I National Railroad Adjustment Board 29, III National Railroad Passenger Corporation (AMTRAK) 49, VII National Science Foundation 2, XXV; 5, XLIII; 45, VI Federal Acquisition Regulation 48, 25 National Security Council 32, XXI National Security Council and Office of Science and 47, II Technology Policy

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VerDate Sep<11>2014 15:50 May 11, 2020 Jkt 250050 PO 00000 Frm 00409 Fmt 8092 Sfmt 8092 Y:\SGML\250050.XXX 250050 CFR Title, Subtitle or Agency Chapter National Technical Information Service 15, XI National Telecommunications and Information 15, XXIII; 47, III, IV, V Administration National Transportation Safety Board 49, VIII Natural Resources Conservation Service 7, VI Natural Resource Revenue, Office of 30, XII Navajo and Hopi Indian Relocation, Office of 25, IV Navy, Department of 32, VI Federal Acquisition Regulation 48, 52 Neighborhood Reinvestment Corporation 24, XXV Northeast Interstate Low-Level Radioactive Waste 10, XVIII Commission Nuclear Regulatory Commission 2, XX; 5, XLVIII; 10, I Federal Acquisition Regulation 48, 20 Occupational Safety and Health Administration 29, XVII Occupational Safety and Health Review Commission 29, XX Ocean Energy Management, Bureau of 30, V Oklahoma City National Memorial Trust 36, XV Operations Office 7, XXVIII Patent and Trademark Office, United States 37, I Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain 41, 303 Employees Peace Corps 2, XXXVII; 22, III Pennsylvania Avenue Development Corporation 36, IX Pension Benefit Guaranty Corporation 29, XL Personnel Management, Office of 5, I, XXXV; 5, IV; 45, VIII Human Resources Management and Labor Relations 5, XCVII Systems, Department of Homeland Security Federal Acquisition Regulation 48, 17 Federal Employees Group Life Insurance Federal 48, 21 Acquisition Regulation Federal Employees Health Benefits Acquisition Regulation 48, 16 Pipeline and Hazardous Materials Safety Administration 49, I Postal Regulatory Commission 5, XLVI; 39, III Postal Service, United States 5, LX; 39, I Postsecondary Education, Office of 34, VI President’s Commission on White House Fellowships 1, IV Presidential Documents 3 Presidio Trust 36, X Prisons, Bureau of 28, V Privacy and Civil Liberties Oversight Board 6, X Procurement and Property Management, Office of 7, XXXII Public Contracts, Department of Labor 41, 50 Public and Indian Housing, Office of Assistant Secretary for 24, IX Public Health Service 42, I Railroad Retirement Board 20, II Reclamation, Bureau of 43, I Refugee Resettlement, Office of 45, IV Relocation Allowances 41, 302 Research and Innovative Technology Administration 49, XI Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Utilities Service 7, XVII, XVIII, XLII Safety and Environmental Enforcement, Bureau of 30, II Saint Lawrence Seaway Development Corporation 33, IV Science and Technology Policy, Office of 32, XXIV Science and Technology Policy, Office of, and National 47, II Security Council Secret Service 31, IV Securities and Exchange Commission 5, XXXIV; 17, II Selective Service System 32, XVI Small Business Administration 2, XXVII; 13, I Smithsonian Institution 36, V Social Security Administration 2, XXIII; 20, III; 48, 23

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2015 14 CFR—Continued 80 FR Page 14 CFR 80 FR Chapter V—Continued Page 1245.110 (b) and (c) redesignated as Chapter V (c) and (d); new (b) added...... 19199 1204.1100—1204.1104 (Subpart 11) 1245.112 (a) revised ...... 19199 Authority citation revised...... 70152 1245.116 (b) revised ...... 19199 1204.1100 Revised; eff. 1-12-16 ...... 70152 1245.117 (a) revised ...... 19199 1204.1101 Revised; eff. 1-12-16 ...... 70152 1245.300—1245.304 (Subpart 3) Au- 1204.1102 (a) revised; eff. 1-12-16...... 70152 thority citation revised ...... 42029 1204.1103 Revised eff. 1-12-16 ...... 70152 1245.301 (a) amended ...... 42029 1204.1104 Revised; eff. 1-12-16 ...... 70152 1262 Authority citation re- 1216.200—1216.205 (Subpart 1216.2) vised...... 42029 Removed ...... 30353 1262.201 (d) amended...... 42029 1217 Authority citation re- 1262.202 (a) amended...... 42029 vised...... 45865 1263 Authority citation revised...... 42029 1217.103 (a)(1), (2) and (3) revised...... 45865 1264 Authority citation revised...... 42029 1245.100—1245.118 (Subpart 1) Au- 1264.109 (c) amended...... 42029 thority citation revised ...... 19197 1264.111 (b)(4) amended...... 42029 1245.100 Revised ...... 19197 1264.116 (b) amended...... 42029 1245.101 Revised ...... 19197 1264.124 Amended...... 42029 1245.102 (c) revised; (d) through (j) 1266 Authority citation re- redesignated as (e) through (k); vised...... 42030 new (d) added ...... 19197 1245.103 (a) and (b) revised ...... 19198 1245.104 (a), (b) introductory text, 2016 (2), (3) introductory text, (v), 14 CFR 81 FR (c) and (d) revised; (e) removed; Page (f) redesignated as new (e) ...... 19198 Chapter V 1245.106 (c) and (d) revised ...... 19199 1214 Authority citation re- 1245.107 (b) introductory text revised...... 43041 vised...... 19199 1214.1—1214.119 (Subpart 1214.1) 1245.108 (b) and (c) amended...... 19199 Removed ...... 43041

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14 CFR—Continued 81 FR 14 CFR—Continued 81 FR Page Page Chapter V—Continued Chapter V—Continued 1214.200—1214.207 (Subpart 1214.2) 1274.304 Added ...... 35584 Removed ...... 43041 1274.701 (b)(5) through (8), (c) and 1214.300—1214.306 (Subpart 1214.3) (d) added ...... 35585 Removed ...... 43041 1274.803 Added ...... 35585 1214.400—1214.404 (Subpart 1214.4) 1274.944 Added ...... 35586 Authority citation revised...... 43041 1214.600—1214.610 (Subpart 1214.6) 2017 Revised ...... 43041 14 CFR 82 FR 1214.700—1214.704 (Subpart 1214.7) Page Revised ...... 43041 Chapter V 1214.800—1214.813 (Subpart 1214.8) Removed ...... 43042 1230 Revised; eff. 1-19-18 ...... 7270 1214.1700—1214.1707 (Subpart 1259 Authority citation re- 1214.17) Removed ...... 43042 vised...... 35440 1251 Heading and authority cita- 1259.100 (a) revised ...... 35440 tion revised; nomenclature 1259.101 (b) introductory text, (f), changes...... 3709 (g), (h) and (n) revised...... 35440 1251.100 Revised ...... 3709 1259.102 Revised ...... 1251.102 Revised ...... 3709 1259.103 Heading, (a)(1) and (b)(1) 1251.104 (a) and (c)(3) amended ...... 3711 revised ...... 35440 1259.201 (a)(1), (2), (b) introduc- 1251.105 (a)(1), (2), (3) and (c)(2) in- tory text and (2) revised ...... 35441 troductory text amended ...... 3711 1259.202 (a) and (c) revised ...... 35441 1251.107 (a) revised...... 3711 1259.203 Introductory text and (b) 1251.108 Amended ...... 3711 revised ...... 35441 1251.110 Added ...... 3711 1259.300 Revised ...... 35441 1251.111 Added ...... 3711 1259.400 (a) and (b) revised ...... 35441 1251.112 Added ...... 3711 1259.401 (d) and (e) revised ...... 35441 1251.113 Added ...... 3711 1259.402 (a), (b) introductory text 1251.200 Revised ...... 3712 and (c) revised...... 35441 1251.202 (a)(2) amended ...... 3712 1259.403 Revised ...... 35441 1251.301 (e) redesignated as (f) and 1259.404 Revised ...... 35441 revised; new (e) added ...... 3712 1259.500 Revised ...... 35442 1251.302 (a) and (c)(1) revised; 1259.501 Revised ...... 35442 (c)(2) and (3) redesignated as 1259.502 (a) and (c) revised ...... 35442 (c)(5) and (6); new (c)(2) and (3) 1259.503 (b) revised ...... 35442 added ...... 3712 1259.600 Revised ...... 35442 1251.400 Revised ...... 3713 1259.601 (a), (b), (c), (f) and (g) re- 1251.503 Revised ...... 3713 vised...... 35442 1251.540 Revised ...... 3713 1259.602 Revised ...... 35442 1251.550 (a)(2) revised...... 3713 1259.603 (a) introductory text, (c) 1251.551 Revised ...... 3714 and (d) revised...... 35442 1251.570 (b) and (c) revised ...... 3714 1261 Authority citation re- 1251.580 Added ...... 3714 vised...... 29383 1251.581 Added ...... 3714 1261.300—1261.317 (Subpart 1261.3) 1251.582 Added ...... 3714 Authority citation revised...... 29383 1274 Authority citation re- 1261.301 (b) and (c) revised ...... 29383 vised...... 35584 1261.304 Revised ...... 29383 1274.203 (g) added ...... 35584 1261.307 (b) revised ...... 29384 1274.209 (e) through (l) redesig- 1261.308 (c) and (d) revised ...... 29384 nated as (f) through (m); new 1261.312 (a) revised ...... 29384 (e) added ...... 35584 1261.315 (b) introductory text and 1274.211 (c) amended; (d)(5) (c) introductory text re- added...... 35584 vised...... 29384 1274.212 Heading revised; (c) 1261.317 (b) revised ...... 29384 added...... 35584 1261.402 (b), (c), (d) and (e) re- 1274.303 Added ...... 35584 vised...... 29384

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14 CFR—Continued 82 FR 14 CFR—Continued 83 FR Page Page Chapter V—Continued Chapter V—Continued 1261.403 (a) introductory text re- (l)(1) heading and (5) added; (l)(2), vised...... 29384 (3), and (4) revised...... 28511 1261.405 (a) revised ...... 29384 1264.102 Amended ...... 2046 1261.407 (b)(4) added...... 29384 1271.400 (a),(b), and (e) amend- 1261.408 (b)(2)(ii) revised...... 29384 ed...... 2046 1261.409 (a) introductory text and 1271 Appendix A amended ...... 2046 (b) revised; (a)(5) and (c) added...... 29385 1261.411 (a) revised ...... 29385 2019 1261.412 (i)(1)(iv) and (i)(2) re- 14 CFR 84 FR vised...... 29385 Page 1261.413 Introductory text re- Chapter V vised...... 29385 1261.414 (a) and (b) revised ...... 29385 1206.100 Heading revised ...... 54774 1261.416 (a), (b), (c)(3)(iii) and (e) 1206.101 (c) added...... 54774 revised ...... 29386 1206.200 (b)(1) introductory text, 1261.417 Heading, (c) and (d) re- (iv), (2)(i), and (c)(2) amend- vised...... 29386 ed ...... 54774 1261.418 Added ...... 29386 1206.201 Amended...... 54775 1261.500 (a), (b) and (c) introduc- 1206.300 (a), (b), (d), and (e)(1) re- tory text revised ...... 29386 vised...... 54775 1261.503 (a) introductory text, (2), 1206.301 (c) and (d) revised ...... 54775 (b) and (c) revised ...... 29386 1206.302 (c) revised ...... 54775 1261.507 (e)(3) revised ...... 29387 1206.305 (a) revised ...... 54775 1261.601 (b)(2) revised ...... 29387 1206.306 (a) revised ...... 54775 1261.603 Introductory text, (a) in- 1206.307 Introductory text added; troductory text, (c)(2), (5) and (b)(3) amended; (a)(2) and (b)(4) (e) revised; (c)(6), (7) and (8) re- revised ...... 54775 moved ...... 29387 1264 Technical correction ...... 32123 1206.401 (e) revised ...... 54776 1264.102 (a) and (b) amended; in- 1206.403 (c) revised ...... 54776 terim...... 28763 1206.502 (d) and (f) revised ...... 54776 (a) and (b) amended ...... 48762 1206.503 Revised ...... 54776 1271 Technical correction ...... 32123 1206.504 (a), (b), and (c) revised...... 54776 1271.400 (a), (b) and (e) amended; 1206.505 (e) revised ...... 54777 interim...... 28763 1206.506 (d) and (e) revised ...... 54777 (a), (b) and (e) amended ...... 48762 1206.507 (c)(1) through (4) re- 1271 Appendix A amended; in- vised...... 54778 terim...... 28763 1206.700 (a), (b)(2), and (6) amend- Appendix A amended...... 48762 ed ...... 54778 1206.801 (b)(1), (6), and (c) re- 2018 vised...... 54778 14 CFR 83 FR 1206.804 (b) and (c) revised ...... 54779 Page 1206.805 (a) amended...... 54779 Chapter V 1264.102 (a)(1)(iv) amended ...... 13115 1230 Regulation at 82 FR 7270 eff. (b)(1)(ii) amended...... 14608 date delayed to 7-19-18 ...... 2885 1271.400 (a), (b), and (e) amend- 1230.101 (l)(3) and (4) revised; ined ...... 13115 terim ...... 2891 1271 Appendix A amended ...... 13115 Æ

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