Title 45 Public Welfare Parts 500 to 1199

Home , Dakshin Gangotri, Detaille Island, Marambio Base, Mount Harding, Mule Peninsula

Revised as of October 1, 2020

Containing a codification of documents of general applicability and future effect

As of October 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 45:

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

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

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

Chapter VII—Commission on Civil Rights ...... 241

Chapter VIII—Office of Personnel Management ...... 283

Chapter IX—Denali Commission ...... 303

Chapter X—Office of Community Services, Administration for Children and Families, Department of Health and Human Serv- ices ...... 315

Chapter XI—National Foundation on the Arts and the Humanities 323

Finding Aids:

Table of CFR Titles and Chapters ...... 527

Alphabetical List of Agencies Appearing in the CFR ...... 547

List of CFR Sections Affected ...... 557

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

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 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 cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Sep<11>2014 14:23 Dec 02, 2020 Jkt 250203 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Q:\45\45V4.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. PAST PROVISIONS OF THE CODE Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949- 1963, 1964-1972, 1973-1985, and 1986-2000. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not 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 14:23 Dec 02, 2020 Jkt 250203 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Q:\45\45V4.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB 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 October 1, 2020

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Title 45—PUBLIC WELFARE is composed of five volumes. The parts in these volumes are arranged in the following order: Parts 1–139, 140–199, 200–499, 500–1199, and 1200 to end. Volumes one and two (parts 1–139 and parts 140–199) contain all current regulations issued under subtitle A—Department of Health and Human Services. Volume three (parts 200–499) contains all current regulations issued under subtitle B—Regulations Relating to Public Welfare, chapter II—Office of Family Assistance (Assistance Programs), Administration for Children and Fami- lies, Department of Health and Human Services, chapter III—Office of Child Sup- port Enforcement (Child Support Enforcement Program), Administration for Children and Families, Department of Health and Human Services, and chapter IV—Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services. Volume four (parts 500–1199) contains all current regulations issued under chapter V—Foreign Claims Settlement Com- mission of the United States, Department of Justice, chapter VI—National Science Foundation, chapter VII—Commission on Civil Rights, chapter VIII—Of- fice of Personnel Management, chapter IX—Denali Commission, chapter X—Office of Community Services, Administration for Children and Families, Department of Health and Human Services, and chapter XI—National Foundation on the Arts and the Humanities. Volume five (part 1200 to end) contains all current regulations issued under chapter XII—Corporation for National and Community Serv- ice, chapter XIII—Administration for Children and Families, Department of Health and Human Services, chapter XVI—Legal Services Corporation, chapter XVII—National Commission on Libraries and Information Science, chapter XVIII—Harry S. Truman Scholarship Foundation, chapter XXI—Commission of Fine Arts, chapter XXIII—Arctic Research Commission, chapter XXIV—James Madison Memorial Fellowship Foundation, and chapter XXV—Corporation for National and Community Service. The contents of these volumes represent all of the current regulations codified under this title of the CFR as of October 1, 2020.

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

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(This book contains parts 500 to 1199)

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

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

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

CHAPTER VII—Commission on Civil Rights ...... 701

CHAPTER VIII—Office of Personnel Management ...... 800

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

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

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

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SUBCHAPTER A—RULES OF PRACTICE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part Page 660 Intergovernmental review of the National Science Foundation programs and activities ...... 161 670 Conservation of Antarctic animals and plants ...... 164 671 Waste regulation...... 177 672 Enforcement and hearing procedures ...... 184 673 Antarctic non-governmental expeditions ...... 197 674 Antarctic meteorites...... 198 675 Medical clearance process for deployment to Ant- arctica ...... 200 680 National Science Foundation Rules of Practice ..... 201 681 Program Fraud Civil Remedies Act regulations ..... 204 689 Research misconduct...... 217 690 Protection of human subjects ...... 222 691–699 [Reserved]

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

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

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

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

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

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

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

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

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

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

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APPENDIX B TO PART 604—DISCLOSURE FORM TO REPORT LOBBYING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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and under the same policies as any Subpart D—Discrimination on the other temporary disability or physical Basis of Sex in Education Pro- condition; and grams or Activities Prohibited (4) Shall not make pre-admission inquiry as to the marital status of an ap- § 618.400 Education programs or ac- plicant for admission, including wheth- tivities. er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ (a) General. Except as provided else- A recipient may make pre-admission where in these Title IX regulations, no inquiry as to the sex of an applicant for person shall, on the basis of sex, be ex- admission, but only if such inquiry is cluded from participation in, be denied made equally of such applicants of both the benefits of, or be subjected to dis- sexes and if the results of such inquiry crimination under any academic, ex- are not used in connection with dis- tracurricular, research, occupational crimination prohibited by these Title training, or other education program IX regulations. or activity operated by a recipient that receives Federal financial assistance. § 618.305 Preference in admission. Sections 618.400 through 618.455 do not apply to actions of a recipient in con- A recipient to which §§ 618.300 nection with admission of its students through 618.310 apply shall not give to an education program or activity of preference to applicants for admission, a recipient to which §§ 618.300 through on the basis of attendance at any edu- 618.310 do not apply, or an entity, not a cational institution or other school or recipient, to which §§ 618.300 through entity that admits as students only or 618.310 would not apply if the entity predominantly members of one sex, if were a recipient. the giving of such preference has the (b) Specific prohibitions. Except as pro- effect of discriminating on the basis of vided in §§ 618.400 through 618.455, in sex in violation of §§ 618.300 through providing any aid, benefit, or service to 618.310. a student, a recipient shall not, on the basis of sex: § 618.310 Recruitment. (1) Treat one person differently from another in determining whether such (a) Nondiscriminatory recruitment. A person satisfies any requirement or recipient to which §§ 618.300 through condition for the provision of such aid, 618.310 apply shall not discriminate on benefit, or service; the basis of sex in the recruitment and (2) Provide different aid, benefits, or admission of students. A recipient may services or provide aid, benefits, or be required to undertake additional re- services in a different manner; cruitment efforts for one sex as reme- (3) Deny any person any such aid, dial action pursuant to § 618.110(a), and benefit, or service; may choose to undertake such efforts (4) Subject any person to separate or as affirmative action pursuant to different rules of behavior, sanctions, § 618.110(b). or other treatment; (b) Recruitment at certain institutions. (5) Apply any rule concerning the A recipient to which §§ 618.300 through domicile or residence of a student or 618.310 apply shall not recruit pri- applicant, including eligibility for in- marily or exclusively at educational state fees and tuition; institutions, schools, or entities that (6) Aid or perpetuate discrimination admit as students only or predomi- against any person by providing sig- nantly members of one sex, if such ac- nificant assistance to any agency, organization, or person that discrimi- tions have the effect of discriminating nates on the basis of sex in providing on the basis of sex in violation of any aid, benefit, or service to students §§ 618.300 through 618.310. or employees; (7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity. (c) Assistance administered by a recipient educational institution to study at a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Common Name and Scientific Name ASPA. Detailed maps and descriptions Ross Seal—Ommatophoca rossii of the sites and complete management plans can be obtained from the Na- [73 FR 14939, Mar. 20, 2008] tional Science Foundation, Office of § 670.26 [Reserved] Polar Programs, National Science Foundation, Room 755, 4201 Wilson Subpart F—Antarctic Specially Boulevard, Arlington, Virginia 22230. Protected Areas ASPA 101 Taylor Rookery, Mac. Robertson Land § 670.27 Specific issuance criteria. ASPA 102 Rookery Islands, Holme Bay, Mac. Robertson Land Permits authorizing entry into any ASPA 103 Ardery Island and Odbert Island, Antarctic Specially Protected Area Budd Coast, Wilkes Land designated in § 670.29 may only be ASPA 104 Sabrina Island, Northern Ross issued if: Sea, Antarctica (a) The entry and activities to be en- ASPA 105 Beaufort Island, McMurdo Sound, gaged in are consistent with an ap- Ross Sea ASPA 106 Cape Hallett, Northern Victoria proved management plan, or Land, Ross Sea (b) A management plan relating to ASPA 107 Emperor Island, Dion Islands, the area has not been approved by the Marguerite Bay, Antarctic Peninsula Antarctic Treaty Parties, but ASPA 108 Green Island, Berthelot Islands, (1) There is a compelling scientific Antarctic Peninsula purpose for such entry which cannot be ASPA 109 Moe Island, South Orkney Islands served elsewhere, and ASPA 110 Lynch Island, South Orkney Is- (2) The actions allowed under the per- lands ASPA 111 Southern Powell Island and adja- mit will not jeopardize the natural eco- cent islands, South Orkney Islands logical system existing in such area. ASPA 112 Coppermine Peninsula, Robert Is- land, South Shetland Islands § 670.28 Content of permit application. ASPA 113 Litchfield Island, Arthur Har- In addition to the information re- bour, Anvers Island, Palmer Archipelago quired in subpart C of this part, an ap- ASPA 115 Lagotellerie Island, Marguerite plicant seeking a permit to enter an Bay, Graham Land ASPA 116 New College Valley, Caughley Antarctic Specially Protected Area Beach, Cape Bird, Ross Island shall include the following in the appli- ASPA 117 Avian Island, Marguerite Bay, cation: Antarctic Peninsula (a) A detailed justification of the ASPA 119 Davis Valley and Forlidas Pond, need for such entry, including a discus- Dufek Massif, Pensacola Mountains sion of alternatives; ASPA 120 Pointe-Geologie Archipelego, (b) Information demonstrating that Terre Adelie ASPA 121 Cape Royds, Ross Island the proposed action will not jeopardize ASPA 122 Arrival Heights, Hut Point Pe- the unique natural ecological system ninsula, Ross Island in that area; and ASPA 123 Barwick and Balham Valleys, (c) Where a management plan exists, Southern Victoria Land information demonstrating the consist- ASPA 124 Cape Crozier, Ross Island ency of the proposed actions with the ASPA 125 Fildes Peninsula, King George Is- management plan. land (25 de Mayo) ASPA 126 Byers Peninsula, Livingston Is- § 670.29 Designation of Antarctic spe- land, South Shetland Islands cially protected areas, specially ASPA 127 Haswell Island managed areas, and historic sites ASPA 128 Western shore of Admiralty Bay, and monuments. King George Island, South Shetland Is- lands (a) The following areas have been ASPA 129 Rdthera Point, Adelaide Island designated by the Antarctic Treaty ASPA 131 Canada Glacier, Lake Fryxell, Parties for special protection and are Taylor Valley, Victoria Land hereby designated as Antarctic spe- ASPA 132 Potter Peninsula, King George Is- cially protected areas (ASPA). The land (Isla 25 de Mayo) (South Shetland Is- lands) Antarctic Conservation Act of 1978, as ASPA 133 Harmony Point, Nelson Island, amended, prohibits, unless authorized South Shetland Islands by a permit, any person from entering ASPA 134 Cierva Point and offshore islands, or engaging in activities within an Danco Coast, Antarctic Peninsula

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ASPA 135 North-eastern Bailey Peninsula, ASPA 170 Marion Nunataks, Charcot Is- Budd Coast, Wilkes Land land, Antarctic Peninsula ASPA 136 Clark Peninsula, Budd Coast, ASPA 171 Narebski Point, Barton Penin- Wilkes Land sula, King George Island ASPA 137 North-west White Island, ASPA 172 Lower Taylor Glacier and Blood McMurdo Sound Falls, Taylor Vallye, McMurdo Dry Val- ASPA 138 Linnaeus Terrace, Asgard Range, leys, Victoria Land Victoria Land ASPA 173 Cape Washington and Silverfish ASPA 139 Biscoe Point, Anvers Island, Bay, Terra Nova Bay, Ross Sea Palmer Archipelago ASPA 174 Stornes, Larsemann Hills, Prin- ASPA 140 Parts of Deception Island, South cess Elizabeth Land Shetland Islands ASPA 175 High Altitude Geothermal sites ASPA 141 Yukidori Valley, Langhovde, of the Ross Sea Region Lutzow-Holm Bay (b) The following areas have been ASPA 142 Svarthamaren designated by the Antarctic Treaty ASPA 143 Marine Plain, Mule Peninsula, Parties for special management and Vestfold Hills, Princess Elizabeth Land have been designated as Antarctic spe- ASPA 144 Chile Bay (Discovery Bay), cially managed areas (ASMA). Detailed Greenwich Island, South Shetland Islands ASPA 145 Port Foster, Deception Island, maps and descriptions of the sites and South Shetland Islands complete management plans can be ob- ASPA 146 South Bay, Doumer Island, Palm- tained from the National Science er Archipelago Foundation, Office of Polar Programs, ASPA 147 Ablation Valley and Ganymede Room 755, 4201 Wilson Boulevard, Ar- Heights, Alexander Island lington, Virginia 22230. ASPA 148 Mount Flora, Hope Bay, Ant- ASMA 1 Admiralty Bay, King George Island arctic Peninsula ASMA 2 McMurdo Dry Valleys, Southern ASPA 149 Cape Shirreff and San Telmo Is- Victoria Land land, Livingston Island, South Shetland Is- ASMA 4 Deception Island lands ASMA 5 Amundsen-Scott South Pole Sta- ASPA 150 Ardley Island, Maxwell Bay, King tion, South Pole George Island (25 de Mayo) ASMA 6 Larsemann Hills, East Antarctica ASPA 151 Lions Rump, King George Island, ASMA 7 Southwest Anvers Island and South Shetland Islands Palmer Basin ASPA 152 Western Bransfield Strait ASPA 153 Eastern Dallmann Bay (c) The following areas have been ASPA 154 Botany Bay, Cape Geology, Vic- designated by the Antarctic Treaty toria Land Parties as historic sites or monuments ASPA 155 Cape Evans, Ross Island (HSM). The Antarctic Conservation ASPA 156 Lewis Bay, Mount Erebus, Ross Act of 1978, as amended, prohibits any Island damage, removal or destruction of a ASPA 157 Backdoor Bay, Cape Royds, Ross historic site or monument listed pursu- Island ant to Annex V to the Protocol. De- ASPA 158 Hut Point, Ross Island scriptions of the sites or monuments ASPA 159 Cape Adare, Borchgrevink Coast can be obtained from the National ASPA 160 Frazier Islands, Windmill Islands, Wilkes Land, East Antarctica Science Foundation, Office of Polar ASPA 161 Terra Nova Bay, Ross Sea Programs, Room 755, 4201 Wilson Bou- ASPA 162 Mawson’s Huts, Cape Denison, levard, Arlington, Virginia 22230. Commonwealth Bay, George V Land, East HSM 1 Flag mast erected in December Antarctica 1965 at South Geographical Pole by the First ASPA 163 Dakshin Gangotri Glacier, Argentine Overland Polar Expedition. Dronning Maud Land HSM 2 Rock cairn and plaques erected in ASPA 164 Scullin and Murray Monoliths, January 1961 at Syowa Station in memory of Mac. Robertson Land Shun Fukushima. ASPA 165 Edmonson Point, Wood Bay, Ross HSM 3 Rock cairn and plaque erected in Sea January 1930 by Sir Douglas Mawson on ASPA 166 Port-Martin, Terre Adelie Proclamation Island, Enderby Land. ASPA 167 Hawker Island, Vestfold Hills, In- HSM 4 Station building to which a bust of grid Christensen Coast, Princess Elizabeth V.I. Lenin is fixed together with a plaque in Land, East Antarctica memory of the conquest of the Pole of Inac- ASPA 168 Mount Harding, Grove Moun- cessibility, by Soviet Antarctic Explorers in tains, East Antarctica 1958. ASPA 169 Amanda Bay, Ingrid Christensen HSM 5 Rock cairn and plaque at Cape Coast, Princess Elizabeth Land, East Ant- Bruce, Mac. Robertson Land, erected in Feb- arctica ruary 1931 by Sir Douglas Mawson.

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HSM 6 Rock cairn and canister at Petermann Island in 1909 by the second Walkabout Rocks, Vestfold Hills, Princess French expedition. Elizabeth Land, erected in 1939 by Sir Hubert HSM 28 Rock Cairn at Port Charcot, Wilkins. Booth Island, with wooden pillar and plaque. HSM 7 Stone with inscribed plaque, erect- HSM 29 Lighthouse named ‘‘Primero de ed at Mirny Observatory, Mabus Point, in Mayo’’ erected on Lambda Island, Melchior memory of driver-mechanic Ivan Kharma. Islands, by Argentina in 1942. HSM 8 Metal Monument sledge and HSM 30 Shelter at Paradise Harbour plaque at Mirny Observatory, Mabus Point, erected in 1950. in memory of driver-mechanic Anatoly HSM 32 Concrete Monolith erected in 1947 Shcheglov. near Capitan Arturo Prat Base on Greenwich HSM 9 Cemetery on Buromskiy Island, Island, South Shetland Islands. near Mirny Observatory. HSM 33 Shelter and cross with plaque HSM 10 Building (Magnetic Observatory) near Capitan Arturo Prat Base Greenwich Is- at Dobrowolsky Station, Hunger Hills, with land, South Shetland Islands. plaque in memory of the opening of Oasis HSM 34 Bust at Capitan Arturo Prat base Station in 1956. Greenwich Island, South Shetland Islands, of HSM 11 Heavy Tractor at Vostock Sta- Chilean naval hero Arturo Prat. tion with plaque in memory of the opening of HSM 35 Wooden cross and statue of the the Station in 1957. Virgin of Carmen erected in 1947 near Capi- HSM 14 Site of ice cave at Inexpressible tan Arturo Prat base Greenwich Island, Island, Terra Nova Bay, constructed in South Shetland Islands. March 1912 by Victor Campbell’s Northern HSM 36 Replica of a metal plaque erected Party. by Eduard Dallman at Potter Cove, King HSM 15 Hut at Cape Royds, Ross Island, George Island, South Shetland Islands. built in February 1908 by the British Ant- HSM 37 Statue erected in 1948 at General arctic Expedition. Hernando O’Higgins Base (Chile) Trinity Pe- HSM 16 Hut at Cape Evans, Ross Island, ninsula. built in January 1911 by the British Ant- HSM 38 Wooden hut on Snow Hill Island arctic Expedition. built in February 1902 by the Swedish South HSM 17 Cross on Wind Vane Hill, Cape Polar Expedition. Evans, Ross Island, erected by the Ross Sea HSM 39 Stone hut at Hope Bay, Trinity Party in memory of three members of the Peninsula built in January 1903 by the Swed- party who died in the vicinity in 1916. ish South Polar Expedition. HSM 18 Hut at Hut Point, Ross Island, HSM 40 Bust of General San Martin, grot- built in February 1902 by the British Ant- to with statue of the Virgin Lujan, a flag arctic Expedition. mast and graveyard at Base Esperanza, Hope HSM 19 Cross at Hut Point, Ross Island, Bay Trinity Peninsula, erected by Argentina erected in February 1904 by the British Ant- in 1955. arctic Expedition in memory of George HSM 41 Stone hut and grave at Paulet Is- Vince. land built in 1903 by members of the Swedish HSM 20 Cross on Observation Hill, Ross South Polar Expedition. Island, erected in January 1913 in by the HSM 42 Area of Scotia bay, Laurie Island, British Antarctic Expedition in memory of South Orkney containing stone huts built in Captain Robert F Scott’s party which per- 1903 by the Scottish Antarctic Expedition, ished on the return journey from the South Argentine meteorological hut and magnetic Pole. observatory (Moneta house) and graveyard. HSM 21 Remains of stone hut at Cape HSM 43 Cross erected in 1955 and subse- Crozier, Ross Island, constructed in July 1911 quently moved to Belgrano II Station, by the British Antarctic Expedition. Nunatak Bertrab, Confin Coast, Coats Land HSM 22 Three huts and associated relics in 1979. at Cape Adare Two built in February 1899 the HSM 44 Plaque erected at temporary In- third was built in February 2011 all by the dian Station ‘‘Dakshin Gangotri,’’ Princess British Antarctic Expedition. Astrid Kyst, Droning Maud Land, listing the HSM 23 Grave at Cape Adare of Nor- names of the first Indian Antarctic Expedi- wegian biologist Nicolai Hanson. tion. HSM 24 Rock cairn, known as HSM 45 Plaque on Brabant Island, on ‘‘Amundsen’s cairn,’’ at Mount Betty, Queen Metchnikoff Point, at a height of 70m on the Maud Range erected by Roald Amundsen in crest of the moraine separating this point January 1912. from the glacier and bearing an inscription. HSM 26 Abandoned installations of Ar- HSM 46 All of the buildings and installa- gentine Station ‘‘General San Martin’’ on tions of Port-Martin Base, Terre Adelie, con- Barry Island, Debenham Islands, Marguerite structed in 1950 by the 3rd French expedition Bay, Antarctic Peninsula. in Terre Adelie. HSM 27 Cairn with a replica of a lead HSM 47 Wooden building called ‘‘Base plaque erected at Megalestris Hill, Marret’’ on the Ile des Petrels, Terre Adelie.

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HSM 48 Iron Cross on the North-East HSM 71 Whalers Bay, Deception Island, headland of the Ile des Petrels, Terre Adelie. South Shetland Islands (includes whaling ar- HSM 49 Concrete pillar erected by the tifacts). First Polish Antarctic Expedition at HSM 72 Mikkelsen Cairn, Tryne Islands, Dobrowski Station on Bunger Hill in Janu- Vestfold Hills. ary 1959, to measure acceleration due to HSM 73 Memorial Cross for the 1979 gravity. Mount Erebus crash victims, erected in Jan- HSM 50 Brass Plaque bearing the Polish uary 1987 at Lewis Bay, Ross Island. Eagle at Fildes Peninsula, King George Is- HSM 74 Unnamed cove on the south-west land, South Shetland Islands. coast of Elephant Island, South Shetland Is- HSM 51 Grave of Wlodzimierz Puchalski, lands, including the foreshore and intertidal surmounted by an iron cross south of area, in which the wreckage of a large wood- Arctowski station on King George Island, en sailing vessel is located. South Shetland Islands. HSM 75 ‘‘A Hut’’ of Scott base, Pram HSM 52 Monolith commemorating the es- Point, Ross Island. tablishment on 20 February 1965 of the ‘‘Great Wall Station’’ on Fildes Peninsula, HSM 76 Ruins of base Pedro Aguirre King George Island, South Shetland Islands. Cerda, Pendulum Cove, Deception Island, HSM 53 Bust of Captain Luis Alberto South Shetland Islands. Pardo, monolith and plaques on Point Wild, HSM 77 Cape Denison, Commonwealth Elephant Island, South Shetland Islands. Bay, George V Land, including Boat Harbour HSM 54 Richard E. Byrd Historic Monu- and the historic artifacts contained within ment, a bronze bust at McMurdo Station. its waters. HSM 55 East Base, Antarctica, HSM 78 Memorial Plaque at India Point, Stonington Island (Buildings and artifacts) Humboldt Mountains, Wohlthat Massif, cen- erected by the Antarctic Service Expedition tral Dronning Maud Land. (1939–1941) and the Ronne Antarctic Research HSM 79 Lillie Marleen Hut, Mt. Dockery, Expedition (1947–1948). Everett Range, Northern Victoria Land. HSM 56 Waterboat Point, Danco Coast, HSM 80 Amundsen’s Tent erected in De- (remains of hut and environs). cember 1911 at the South Pole. HSM 57 Plaque at ‘‘Yankee Bay’’ (Yankee HSM 81 Rocher du Debarguement (Land- Harbour), MacFarlane Strait, Greenwich Is- ing Rock). land, South Shetland Islands. HSM 82 Monument to the Antarctic Trea- HSM 59 Cairn on Half Moon Beach, Cape ty and Plaques, Fildes Peninsula, King Shirreff, Livingston Island, South Shetland George Island, South Shetland Islands. Islands and a Plaque on ‘Cerro Gaviota’ op- HSM 83 Base ‘‘W’’ established in 1956 at posite San Telmo Islets. Detaille Island, Lallemande Fjord, Loubert HSM 60 Wooden plaque and cairn placed Coast . in November 1903 at ‘‘Penguins Bay,’’ Sey- HSM 84 Hut at erected in 1973 at Damoy mour Island (Marambio), James Ross Archi- Point, Dorian Bay, Wiencke Island, Palmer pelago. Archipelago. HSM 61 ‘‘Base A’’ at Port Lockroy, Goudier Island, off Wiencke Island. HSM 85 Plaque Commemorating the PM– HSM 62 ‘‘Base F’’ (Wordie House)’ on Win- 3A Nuclear Power Plant at McMurdo Sta- ter Island, Argentine Islands. tion. HSM 63 ‘‘Base Y’’ on Horseshoe Island, HSM 86 No.1 Building Commemorating Marguerite Bay, western Graham Land. China’s Antarctic Expedition at Great Wall HSM 64 ‘‘Base E’’ on Stonington Island, Station. Marguerite Bay, western Graham Land. HSM 87 Location of the first permanently HSM 65 Message post erected in January occupied German Antarctic research station 1895 on Svend Foyn Island, Possession Is- ‘‘Georg Forster’’ at the Schirmacher Oasis, lands. Dronning Maud Land. HSM 66 Prestrud’s cairn, Scott Nunataks, HSM 88 Professor Kudryashov’s Drilling Alexandra Mountains, Edward VII Peninsula Complex Building, Vostok Station. erected in December 1911. HSM 89 Terra Nova Expedition 1910–12, HSM 67 Rock shelter known as ‘‘Granite Upper ‘‘Summit Camp’’, Mount Erebus. House,’’ erected in 1911 at Cape Geology, HSM 90 Terra Nova Expedition 1910–12, Granite Harbour. Lower ‘‘Camp E’’ Site, Mount Erebus. HSM 68 Site of depot at Hells Gate Mo- HSM 91 Lame Dog Hut at the Bulgarian raine, Inexpressible Island, Terra Nova Bay. base St. Kliment Ohridski, Livingston Is- HSM 69 Message post at Cape Crozier, land. Ross Island, erected January 1902 by Capt. HSM 92 Oversnow heavy tractor Robert F. Scott’s Discovery Expedition. ‘‘Kharkovchanka’’ that was used in Antarc- HSM 70 Message post at Cape Wadworth, tica from 1959 to 2010. Coulman Island, erected January 1902 by Capt. Robert F. Scott. [84 FR 16792, Apr. 23, 2019]

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§ 670.30 [Reserved] § 670.34 Entry and exit ports. (a) Any native mammal, native bird, Subpart G—Import Into and Export or native plants taken within Antarc- From the United States tica that are imported into or exported from the United States must enter or § 670.31 Specific issuance criteria for leave the United States at ports des- imports. ignated by the Secretary of Interior in Subject to compliance with other ap- 50 CFR part 14. The ports currently plicable law, any person who takes a designated are: native mammal, bird, or plant under a (1) Los Angeles, California. permit issued under the regulations in (2) San Francisco, California. this part may import it into the United (3) Miami, Florida. States unless the Director finds that (4) Honolulu, Hawaii. the importation would not further the (5) Chicago, Illinois. purpose for which it was taken. If the (6) New Orleans, Louisiana. importation is for a purpose other than (7) New York, New York. that for which the native mammal, (8) Seattle, Washington. bird, or plant was taken, the Director (9) Dallas/Fort Worth, Texas. may permit importation upon a finding (10) Portland, Oregon. that importation would be consistent (11) Baltimore, Maryland. with the purposes of the Act, the regu- (12) Boston, Massachusetts. lations in this part, or the permit (13) Atlanta, Georgia. under which they were taken. (b) Permits to import or export at non-designated ports may be sought § 670.32 Specific issuance criteria for from the Secretary of Interior pursu- exports. ant to subpart C, 50 CFR part 14. The Director may permit export from the United States of any native mam- § 670.35 [Reserved] mal, bird, or native plants taken within Antarctica upon a finding that ex- Subpart H—Introduction of Non- portation would be consistent with the Indigenous Plants and Animals purposes of the Act, the regulations in this part, or the permit under which § 670.36 Specific issuance criteria. they were taken. For purposes consistent with the Act, only the following plants and animals § 670.33 Content of permit applica- may be considered for a permit allow- tions. ing their introduction into Antarctica: In addition to the information re- (a) Domestic plants; and quired in subpart C of this part, an ap- (b) Laboratory animals and plants in- plicant seeking a permit to import into cluding viruses, bacteria, yeasts, and or export from the United States a na- fungi. tive mammal, a native bird, or native Living non-indigenous species of plants taken within Antarctica shall birds shall not be introduced into Ant- include the following in the applica- arctica. tion: (a) Information demonstrating that § 670.37 Content of permit applica- the import or export would further the tions. purposes for which the species was Applications for the introduction of taken; plants and animals into Antarctica (b) Information demonstrating that must describe: the import or export is consistent with (a) The species, numbers, and if ap- the purposes of the Act or the regula- propriate, the age and sex, of the ani- tions in this part; mals or plants to be introduced into (c) A statement as to which U.S. port Antarctica; will be used for the import or export, (b) The need for the plants or ani- and mals; (d) Information describing the in- (c) What precautions the applicant tended ultimate disposition of the im- will take to prevent escape or contact ported or exported item. with native fauna and flora; and

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(d) How the plants or animals will be Subpart A—Introduction removed from Antarctica or destroyed after they have served their purpose. § 671.1 Purpose of regulations. § 670.38 Conditions of permits. The purposes of these regulations in part 671 are to protect the Antarctic All permits allowing the introduction environment and dependent and associ- of non-indigenous plants and animals ated ecosystems, to preserve Antarc- will require that the animal or plant be tica’s value as an area for the conduct kept under controlled conditions to of scientific research, and to imple- prevent its escape or contact with na- ment the Antarctic Conservation Act tive fauna and flora and that after of 1978, Public Law 95–541, consistent serving its purpose the plant or animal with the provisions of the Protocol on shall be removed from Antarctica or be Environmental Protection to the Ant- destroyed in manner that protects the arctic Treaty, signed in Madrid, Spain, natural system of Antarctica. on October 4, 1991.

§ 670.39 [Reserved] § 671.2 Scope. These regulations in part 671 apply to PART 671—WASTE REGULATION any U.S. citizen’s use or release of a banned substance, designated pollutant Subpart A—Introduction or waste in Antarctica. Sec. [58 FR 34719, June 29, 1993, as amended at 59 671.1 Purpose of regulations. FR 37438, July 22, 1994] 671.2 Scope. 671.3 Definitions. § 671.3 Definitions. Subpart B—Prohibited Acts, Exceptions (a) Definitions. In this part: Act means the Antarctic Conserva- 671.4 Prohibited acts. tion Act of 1978, Public Law 95–541, 92 671.5 Exceptions. Stat. 2048 (16 U.S.C. 2401 et seq.) Antarctic hazardous waste means any Subpart C—Permits waste consisting of or containing one 671.6 Applications for permits. or more designated pollutants. 671.7 General issuance criteria. Antarctica means the area south of 60 671.8 Permit administration. degrees south latitude. 671.9 Conditions of permit. Banned substance means any poly- 671.10 Review, modification, suspension, and chlorinated biphenyls (PCBs), non-ster- revocation. ile soil, polystyrene beads, plastic Subpart D—Waste Management chips or similar loose polystyrene packing material, pesticides (other 671.11 Waste storage. than those required for scientific, med- 671.12 Waste disposal. ical or hygiene purposes) or other sub- 671.13 Waste management for the USAP. stance designated as such under subpart E of this part. Subpart E—Designation of Banned Designated pollutant means any sub- Substances; Reclassification of Pollutants stance designated as such by the Direc- 671.14 Annual review. tor pursuant to subpart E of this part; 671.15 Publication of preliminary deter- any pesticide, radioactive substance, or mination. substance consisting of or containing 671.16 Designation and redesignation of pol- any chemical listed by source, generic lutants. or chemical name at 40 CFR 61.01, Table 116.4A of 40 CFR 116.4; subpart D Subpart F—Cases of Emergency of 40 CFR part 261, 40 CFR 302.4, part 671.17 Cases of emergency. 355, and part 372; and any substance which exhibits a hazardous waste char- AUTHORITY: 16 U.S.C. 2405. acteristic as defined in subparts B and SOURCE: 58 FR 34719, June 29, 1993, unless C of 40 CFR part 261; but shall not in- otherwise noted. clude any banned substance.

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Director means the Director of the the Pacific Islands, including the Fed- National Science Foundation, or an of- erated States of Micronesia and the ficer or employee of the Foundation Commonwealth of the Northern Mar- designated by the Director. iana Islands. Incinerate or Incineration means the United States Antarctic Program or processing of material by mechanisms USAP means the United States na- that (1) involve the control of combus- tional program in Antarctica. tion air and/or fuel so as to maintain U.S. citizen means any individual who adequate temperature for efficient is a citizen or national of the United combustion; (2) contain the combustion States; any corporation, partnership, reaction in an enclosed device with suf- trust, association, or other legal entity ficient residence time and mixing for existing or organized under the laws of complete processing; and (3) control any of the United States; and any de- emission of gaseous or particulate partment agency or other instrumen- combustion products. tality of the Federal government or of Master permit means a permit issued any State, and any officer, employee, to a federal agency, or its agents or or agent of such instrumentality. contractors, or any other entity, cov- Use means to use, generate or create ering activities conducted in connec- a substance, or to import a substance tion with USAP or other group activi- into Antarctica, but does not include ties in Antarctica. the shipboard use of a substance, pro- NSF or Foundation means the Na- vided that substance is not released or tional Science Foundation. removed from the vessel. Open burning means combustion of Waste means any substance that will any material by means other than in- no longer be used for any useful pur- cineration. pose, but does not include substances Permit means a permit issued pursu- to be recycled in Antarctica, or sub- ant to subpart C of this part. stances to be reused in a manner dif- Private permit means any permit ferent than their initial use, provided other than a master permit. such substances are stored in a manner Protocol means the Protocol on Envi- that will prevent their dispersal into ronmental Protection to the Antarctic the environment, and further provided Treaty, signed by the United States in that they are recycled, reused or dis- Madrid on October 4, 1991, and any and posed of in accordance with the provi- all Annexes thereto, as amended or sions of this part within three years. supplemented from time to time. Recycling includes, but is not limited Release means any spilling, leaking, to, the reuse, further use, reclamation pumping, pouring, emitting, emptying, or extraction of a waste through a discharging, injecting, leaching, dump- process or activity that is separate ing, burying or disposing of a sub- from the process or activity that pro- stance, whether intentionally or acci- duced the waste. dentally. (b) Pollutants, generally. All banned Station means McMurdo Station, substances, designated pollutants and Palmer Station, Amundsen-Scott waste shall be considered pollutants for South Pole Station and any other per- purposes of the Antarctic Conservation manent USAP facility in Antarctica Act. designed to accommodate at least 50 persons at any one time. Substance means any gas, liquid, or Subpart B—Prohibited Acts, solid, or mixture thereof, including bi- Exceptions ological material. § 671.4 Prohibited acts. Treaty means the Antarctic Treaty signed in Washington, D.C., on Decem- Unless one of the exceptions stated in ber 1, 1959. § 671.5 is applicable, it is unlawful for United States means the several any U.S. citizen to: States of the Union, the District of Co- (a) Use or release any banned sub- lumbia, the Commonwealth of Puerto stance in Antarctica; Rico, American Samoa, the Virgin Is- (b) Use or release any designated pol- lands, Guam and the Trust Territory of lutant in Antarctica, except pursuant

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to a permit issued by NSF under sub- such uses; the method of storage of des- part C of this part; ignated pollutants; and a contingency (c) Release any waste in Antarctica, plan for controlling releases in a man- except pursuant to a permit issued by ner designed to minimize any resulting NSF under subpart C of this part; or hazards to health and the environment; (d) Violate any term or condition of a (4) The desired effective date and du- permit issued by NSF under subpart C ration of the permit; and of this part, or any term or condition (5) The following certification: of any of the regulations issued under ‘‘I certify that, to the best of my knowl- this part. edge and belief, and based upon due inquiry, the information submitted in this applica- § 671.5 Exceptions tion for a permit is complete and accurate. A permit shall not be required for Any knowing or intentional false statement any use or release of designated pollut- will subject me to the criminal penalties of ants or waste allowed under the Act to 18 U.S.C. 1001.’’ Prevent Marine Pollution from Ships (b) Address to which application should (33 U.S.C. 1901 et seq.), as amended, or be sent. Each application shall be in for any shipboard use of banned sub- writing, and sent to: stances or designated pollutants, provided such substances are not removed Permits Office, Office of Polar Programs, Na- tional Science Foundation, 4201 Wilson from the vessel in Antarctica. Boulevard, Arlington, VA 22230. Subpart C—Permits (c) Sufficiency of application. The sufficiency of the application shall be de- § 671.6 Applications for permits. termined by the Director. The Director may waive any requirement for infor- (a) General content of permit applica- mation, or require such additional in- tions. Each application for a permit formation as he determines is relevant shall be dated and signed by the applicant, and shall include the following to the processing and evaluation of the information: application. (1) The applicant’s name, address and (d) Publication of permit applications. telephone number, the business or in- The Director shall publish notice in the stitutional affiliation of the applicant, FEDERAL REGISTER of each application or the name, address and telephone for a permit and the proposed condi- number of the president, principal offi- tions of its issuance (including dura- cer or managing partner of the appli- tion). The notice shall invite the sub- cant, as applicable; mission by interested parties, the Envi- (2) A description of the types, ex- ronmental Protection Agency and pected concentrations and volumes of other federal agencies, within 30 days wastes and designated pollutants to be after the date of publication of notice, released in Antarctica; the nature and of written data, comments, or views timing of such releases; arrangements with respect to the application. Infor- for waste management, including, mation received by the Director as a without limitation, plans for waste re- part of any application shall be avail- duction, minimization, treatment and able to the public as a matter of public processing, recycling, storage, trans- record. portation and disposal; arrangements [58 FR 34719, June 29, 1993, as amended at 59 for training and educating personnel to FR 37438, July 22, 1994] comply with these waste management requirements and procedures, and ar- § 671.7 General issuance criteria. rangements for monitoring compli- (a) Upon receipt of a complete and ance; and other arrangements for mini- properly executed application for a per- mizing and monitoring the environ- mit, the Director will decide whether mental impacts of proposed operations and on what conditions he will issue a and activities; permit. In making this decision, the (3) A description of the types, ex- Director will carefully consider any pected concentrations and volumes of comments or suggestions received from designated pollutants to be used in interested parties, the Environmental Antarctica; the nature and timing of Protection Agency and other federal

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agencies pursuant to § 671.6(d), and will § 671.9 Conditions of permit. determine whether the permit re- (a) Conditions. All permits issued pur- quested meets the objectives of the suant to subpart C of this part shall be Act, the Protocol, and the require- conditioned upon compliance with the ments of these regulations. relevant provisions of the ACA, the (b) Permits authorizing the use or re- Treaty, the Protocol, such specific con- lease of designated pollutants or ditions or restrictions as may be im- wastes may be issued only if, based on posed by the Director under § 671.7, and relevant available information, the Di- the provisions of subpart D of this part. rector determines that such use or re- (b) Possession of permits. Permits lease will not pose a substantial hazard issued under this part, or copies of to health or the environment, taking them, must be in the possession of per- into account available information on sons to whom they are issued or their the possible cumulative impact of mul- agents when conducting the authorized tiple releases. action. Any permit issued shall be shown to the Director or to any other § 671.8 Permit administration. person with enforcement authority (a) Issuance of permits. The Director upon request. may approve an application for a per- (c)(1) Reports. Permit holders must mit in whole or in part, and may condi- provide the Director with written re- tion such approval upon compliance ports of: with additional terms and conditions. (i) Any non-permitted release of des- Permits shall be issued in writing, ignated pollutants or waste within shall be signed by the Director, shall fourteen days after the occurrence of specify duration, and shall contain such release, including the date, quan- such terms and conditions as may be tity and cause of the release, and plans established by the Director and as are for remediation; consistent with the Act and this part. (ii) The identity and quantity of all (b) Denial. An applicant shall be noti- designated pollutants removed from fied in writing of the denial of any per- Antarctica or otherwise disposed of, mit request or part of a request, and and the method of disposal; and the reason for such denial. If author- (iii) Any other violations of the ized in the notice of denial, the appli- terms and conditions of their permits. cant may submit further information, (2) The Director may also require or reasons why the permit should not permit holders to file reports of activi- be denied. Such further submissions ties conducted under their permits. shall constitute amendments of the ap- Such reports shall be submitted to the plication. Director not later than June 30 for the (c) Amendment of applications or per- preceding 12 month period ending May mits. An applicant or permit holder de- 31. siring to have any term or condition of his application or permit modified § 671.10 Review, modification, suspen- must submit full justification and sup- sion, and revocation. porting information in conformance (a) The Director may modify, suspend with the provisions of this part. Any or revoke, in whole or in part, any per- application for modification of a permit issued under this part: mit that involves a material change (1) In order to make the permit con- beyond the terms originally requested sistent with any change to any regula- will be subject to the same procedures tion in this part made after the date of as a new application. issuance of the permit; (d) Public notice of issuance or denial. (2) If there is any change in condi- Within 10 days after the date of the tions which makes the permit incon- issuance or denial of a permit, the Di- sistent with the Act and any regulation rector shall publish notice of the in this part; or issuance or denial in the FEDERAL REG- (3) In any case in which there has ISTER, including the conditions of been any violation of any term or con- issuance or basis for denial, as appro- dition of the permit, any regulation in priate. this part, or any provision of the Act.

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(b) The Director shall review all un- awaiting transport to McMurdo Sta- expired permits issued under this part tion, for a period not to exceed 15 at least biennially to determine wheth- months; er those permits should be modified, (3) If Antarctic hazardous wastes, ra- suspended or revoked as set forth in dioactive wastes, or medical wastes, paragraph (a) of this section. are generated at or transported to (c) Whenever the Director proposes Palmer Station, they may be tempo- any modifications, suspensions or rev- rarily stored at that station while ocations of a permit under this § 671.10, awaiting transport to McMurdo Sta- the permittee shall be afforded the option or other disposition, for a period portunity, after due notice, for a hear- not to exceed 28 months; ing by the Director with respect to (4) Containers holding Antarctic haz- such proposed modification, suspen- ardous wastes must be: sion, or revocation. If a hearing is re- (i) In good, non-leaking condition quested, the action proposed by the Di- with sufficient structural integrity for rector shall not take effect before a de- the storage of Antarctic hazardous cision is issued by him after the hear- waste; ing, unless the proposed action is taken (ii) Made of or lined with materials by the Director to meet an emergency which will not react with, and are oth- situation. erwise compatible with, the Antarctic (d) Notice of the modification, sus- hazardous waste to be stored, so that pension, or revocation of any permit the ability of the containers to contain shall be published in the FEDERAL REG- such waste is not impaired; ISTER within 10 days from the date of (iii) Stored in a manner that allows the Director’s decision. access for inspection and response to emergencies; and Subpart D—Waste Management (iv) Inspected at least weekly for leakage and deterioration. All inspec- § 671.11 Waste storage. tions must be appropriately docu- (a) Pending the treatment, disposal mented. or removal of any wastes pursuant to (5) Tank systems used for storing § 671.12, all wastes shall be contained, Antarctic hazardous wastes must be in confined or stored in a manner that good, non-leaking condition with suffi- will prevent dispersal into the environ- cient structural integrity for the stor- ment; ing of hazardous wastes; and systems (b) All Antarctic hazardous wastes must be inspected weekly to detect generated at or transported to any corrosion or releases of waste and to USAP station may be temporarily collect data from monitoring and leak stored at such station prior to the detection equipment, to the extent treatment, disposal or removal of any available, to ensure that they are func- wastes pursuant to § 671.12, provided all tioning properly. All inspections must such Antarctic hazardous waste is be appropriately documented. Prior to stored in either closed containers or the expiration of the 15 month period tanks labeled to indicate their con- referred to in § 671.11(b)(1), all Ant- tents and the beginning date of accu- arctic hazardous wastes shall be treat- mulation of such waste, and further ed or removed from Antarctica in ac- provided the following conditions are cordance with § 671.12. satisfied: (6) Ignitable, reactive or incompat- (1) If Antarctic hazardous wastes, ra- ible wastes shall be properly segregated dioactive wastes, or medical wastes, and protected from sources of ignition are generated at or transported to or reaction, as appropriate. McMurdo Station, they may be tempo- (c) All Antarctic hazardous wastes rarily stored at that station for a pe- generated at a location other than a riod not to exceed 15 months; permanent station may be temporarily (2) If Antarctic hazardous wastes, ra- stored at such location for a period not dioactive wastes, or medical wastes, to exceed 12 months, in closed, non- are generated at or transported to leaking containers marked to indicate South Pole Station, they may be tem- their contents. Such containers must porarily stored at that station while be in good condition and made of or

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lined with material which will not the sea, taking into account the as- react with and is otherwise compatible similative capacity of the receiving with the Antarctic hazardous waste marine environment, and provided that stored therein so as not to impair the such discharge occurs, wherever prac- ability of the container to contain the ticable, where conditions exist for ini- waste. Prior to the expiration of the 12 tial dilution and rapid dispersal, and month period referred to above, all further provided that large quantities such hazardous wastes shall be either: of such wastes (generated in a station (1) Treated or processed, disposed of where the average weekly occupancy or removed from Antarctica pursuant over the austral summer is approxi- to § 671.12, or mately 30 individuals or more) shall be (2) Removed to a permanent station treated at least by maceration. If bio- and temporarily stored at that station logical treatment processes are used, in accordance with paragraph (b) of the by-product of such treatment may this section. be disposed of into the sea provided disposal does not adversely affect the § 671.12 Waste disposal. local environment. (a)(1) The following wastes shall be (d) Residues of introduced animal removed from Antarctica: carcasses, laboratory culture of micro- (i) Radioactive materials; organisms and plant pathogens, and in- (ii) Electrical batteries; troduced avian products must be re- (iii) Fuel (both liquid and solid); moved from Antarctica unless inciner- (iv) Waste containing harmful levels ated, autoclaved or otherwise steri- of heavy metals or acutely toxic or lized. harmful persistent compounds; (e) Combustible wastes not removed (v) Poly-vinyl chloride (PVC), poly- urethane foam, polystyrene foam, rub- from Antarctica other than wastes re- ber and lubricating oils, treated tim- ferred to in paragraph (a) of this sec- bers and other products containing ad- tion, shall be burnt in incinerators ditives which can produce harmful which reduce harmful emissions or dis- emissions or releases; charges to the maximum extent prac- (vi) All other plastic wastes except ticable and the solid residue of such in- low density polyethylene containers cineration shall be removed from Ant- (such as bags for storing wastes) pro- arctica; provided, however, that USAP vided such containers are incinerated may continue to bury such combustible in accordance with paragraph (e) of wastes in snow pits at South Pole Sta- this section; tion, but must phase out such practices (vii) Solid, non-combustible wastes; before March 1, 1995. Any emission or and discharge standards and equipment (viii) Fuel, oil and chemical drums guidelines which may be recommended that constitute waste. by the Committee for Environmental (2) Notwithstanding paragraph (a)(1) Protection constituted or to be con- of this section, the obligations set stituted pursuant to the Protocol or by forth in paragraphs (a)(1) (vii) and (viii) the Scientific Committee on Antarctic of this section shall not apply if the Di- Research shall be taken into account. rector determines that the removal of (f) Sewage and domestic liquid such wastes by any practicable option wastes and other liquid wastes not re- would cause greater adverse environ- moved from Antarctica in accordance mental impacts than would be caused with other provisions of this section, by leaving them in their existing loca- shall, to the maximum extent prac- tions. ticable, not be disposed of onto sea ice, (b) All liquid wastes other than sew- ice shelves or grounded ice-sheet unless age and domestic liquid wastes and such wastes were generated by stations wastes referred in paragraph (a) of this located inland on ice shelves or on the section shall be removed from Antarc- grounded ice-sheet. In such event, the tica to the maximum extent prac- wastes may be disposed of in deep ice ticable. pits if that is the only practicable op- (c) Sewage and domestic liquid tion, provided the ice pits are not lo- wastes may be discharged directly into cated on known ice-flow lines which

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terminate at ice-free land areas or in (4) Programs for cleaning up existing blue ice areas of high ablation. waste disposal sites and abandoned (g) No wastes may be disposed of onto work sites. ice-free areas or into any fresh water (c) USAP shall designate one or more system. waste management officials to develop (h) Open burning of wastes is prohib- and monitor waste management plans ited at all permanent stations, and and ensure that members of expedi- shall be phased out at all other locations receive training so as to limit the tions by March 1, 1994. If it is necessary impact of their activities on the Ant- to dispose of waste by open burning arctic environment, and to inform prior to March 1, 1994, allowance shall them of the requirements of the Pro- be made for the wind direction and tocol and of this part. speed and the type of waste to be burnt (d) USAP shall, to the extent prac- to limit particulate deposition and to ticable, prepare an inventory of loca- avoid such deposition over areas of spe- tions of past activities (i.e., traverses, cial biological, scientific, historic, aes- fuel depots, field bases, crashed air- thetic or wilderness significance. craft) so that such locations can be taken into account in planning future (i) Each unauthorized release of scientific, logistic and waste manage- waste in Antarctic shall be, to the ment programs. maximum extent practicable, promptly (e) USAP shall clean up its past and cleaned up by the person responsible present waste disposal sites on land for such release. and abandoned work sites, except that § 671.13 Waste management for the it shall not be required to: USAP. (1) Remove any structure designated as a historic site or monument; or (a) In order to provide a basis for (2) Remove any structure or waste in tracking USAP wastes, and to facili- circumstances where the removal tate studies aimed at evaluating the would result in greater adverse envi- environmental impacts of scientific ac- ronmental impact than leaving the tivity and logistic support, the USAP structure or waste in its existing loca- shall classify its wastes in one of the tion. following categories: (f) USAP shall circulate waste man- (1) Sewage and domestic liquid agement plans and inventories de- wastes; scribed in this section in accordance (2) Other liquid wastes and chemi- with the requirements of the Treaty cals, including fuels and lubricants; and the Protocol. (3) Solid wastes to be combusted; (4) Other solid wastes; and Subpart E—Designation of Banned (5) Radioactive material. Substances; Reclassification (b) USAP shall prepare and annually of Pollutants review and update a waste management plan (including plans for waste § 671.14 Annual review. reduction, storage and disposal) speci- The Director shall review the list of fying for each of its permanent sta- banned substances and designated pol- tions, field camps and ships (other than lutants at least annually, and may pro- small boats that are part of the oper- pose the designation or redesignation ations of permanent stations or are of any substance as a banned sub- otherwise taken into account in exist- stance, designated pollutant or other ing management plans for ships): waste, based on the following criteria: (1) Current and planned waste man- (a) If the Director determines that a agement arrangements, including final substance, including a designated pol- disposal; lutant, poses a substantial immediate (2) Current and planned arrangement hazard to health or the environment for assessing the environmental effects and such hazard cannot be eliminated of waste and waste management; through waste management practices (3) Other efforts to minimize environ- or other methods, or if the Parties to mental effects of wastes and waste the Protocol or Treaty agree that a management; and substance should be banned from use in

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Antarctica, the Director may designate Agency and other Federal agencies pur- such substance a banned substance. suant to § 671.15, the Director will make (b) If the Director determines that a a final determination to designate and substance is liable to create a hazard redesignate various substances as set to health or the environment if im- forth above. Within 10 days after the properly treated or processed, stored, date of such final determination, the transported, or disposed of, the Direc- Director shall publish notice of any ac- tor may designate such substance a tion taken in the FEDERAL REGISTER. designated pollutant. Such action shall become effective no (c) If the Director determines that a earlier than thirty days following pub- substance previously designated a lication of notice. banned substance no longer displays the characteristics described in para- Subpart F—Cases of Emergency graph (a) of this section, the Director may remove such substance from the § 671.17 Cases of emergency. list of banned substances (to the extent The provisions of this part shall not consistent with the provisions of the apply in cases of emergency relating to Protocol), but if the Director deter- the safety of human life or of ships, mines that such substance has the aircraft or other equipment and facili- characteristics described in paragraph ties of high value, or the protection of (b) of this section, it shall be redesig- the environment. Notice of any acts or nated a designated pollutant. omissions resulting from such emer- (d) If the Director determines that a gency situations shall be reported substance previously designated a des- promptly to the Director, who shall no- ignated pollutant no longer displays tify the Treaty parties in accordance the characteristics described in para- with the requirements of the Treaty graph (b) of this section, the Director and the Protocol, and publish notice of may remove such substance from the such acts or omissions in the FEDERAL list of designated pollutants. REGISTER. (e) In making the determinations referred to in paragraphs (a) through (d) PART 672—ENFORCEMENT AND of this section, the Director shall take into account all relevant new informa- HEARING PROCEDURES tion obtained through monitoring ac- Sec. tivities or otherwise. 672.1 Hearing procedures—Scope of these rules. § 671.15 Publication of preliminary de- 672.2 Definitions. termination 672.3 Powers and duties of the Director; Prior to any designation or redesig- Presiding Official; Office of Polar Pro- nation of substances pursuant to grams. § 671.14 (including removal of such sub- 672.4 Filing, service, and form of pleadings stances from lists of banned substances and documents. 672.5 Filing and service of rulings, orders, or designated pollutants), the Director and decisions. shall publish notice in the FEDERAL 672.6 Appearances. REGISTER of any proposed designation 672.7 Issuance of complaint. or redesignation, including the basis 672.8 Answer to the complaint. therefor. The notice shall invite the 672.9 Motions. submission by interested parties, the 672.10 Default order. 672.11 Informal settlement; consent agree- Environmental Protection Agency and ment and order. other federal agencies, within 30 days 672.12 Prehearing conference. after the date of publication of notice, 672.13 Accelerated decision; decision to dis- of written data, comments, or views miss. with respect to such action. 672.14 Scheduling the hearing. 672.15 Evidence. § 671.16 Designation and redesignation 672.16 Objections and offers of proof. of pollutants 672.17 Burden of presentation; burden of persuasion. After review of any comments or sug- 672.18 Filing the transcript. gestions received from interested par- 672.19 Proposed findings, conclusions, and ties, the Environmental Protection order.

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672.20 Initial decision. by the complainant to a person under 672.21 Appeal from or review of interlocu- this subpart. tory orders or rulings. 672.22 Appeal from or review of initial deci- (f) Consent Agreement means any writ- sion. ten document, signed by the parties, 672.23 Final order on appeal. containing stipulations or conclusions 672.24 Maximum civil monetary penalties of fact or law, and a proposed penalty, for violations. revocation or suspension of a permit, AUTHORITY: 16 U.S.C. 2401 et seq., 28 U.S.C. or other sanction. 2461 note. (g) Director means the Director of the SOURCE: 54 FR 7132, Feb. 16, 1989, unless National Science Foundation (NSF) or otherwise noted. Redesignated at 58 FR 34718, his delegatee. June 29, 1993. (h) Final Order means (1) an order issued by the Director after an appeal § 672.1 Hearing procedures—Scope of these rules. of an initial decision, accelerated decision, a decision to dismiss, or default (a) These hearing rules govern all ad- order, or (2) an initial decision which judicatory proceedings for the assess- becomes a final order. ment of civil penalties or imposition of (i) Foundation, Agency, or NSF means other sanctions pursuant to the Ant- the National Science Foundation. arctic Conservation Act of 1978, 16 U.S.C. 2407; 2404(f); 2401–2412; and (j) Hearing means a hearing on the (b) Other adjudicatory proceedings record open to the public and con- that the Foundation, in its discretion, ducted under these rules. determines are appropriate for han- (k) Hearing Clerk is the person with dling under these rules, including pro- whom all pleadings, motions, and other ceedings governed by the Administra- documents required under this subpart tive Procedure Act requirements for are filed. ‘‘hearings on the record.’’ 5 U.S.C. 554 (l) Initial Decision means the decision (1982). issued by the Presiding Officer based (c) Questions arising at any stage of upon the official record of the pro- the proceeding which are not addressed ceedings. in these rules shall be resolved at the (m) Party means any person that par- discretion of the Director or Presiding ticipates in a hearing as complainant, Officer. respondent, or intervenor. (n) Permit means a permit issued § 672.2 Definitions. under section 5 of the Antarctic Con- (a) Throughout these rules, words in servation Act of 1978, 16 U.S.C. section the singular also include the plural, 2404. and words in the masculine gender also (o) Person includes any individual, include the feminine, and vice versa. partnership, association, corporation, (b) Act means the particular statute and any trustee, assignee, receiver or authorizing the initiation of the pro- legal successor thereof; any organized ceeding. group of persons whether incorporated (c) Administrative Law Judge means an or not; and any officer, employee, Administrative Law Judge appointed under 5 U.S.C. 3105 (see also Pub. L. 95– agent, department, agency or instru- 251, 92 Stat. 183). mentality of the Federal Government. (d) Complainant means any person au- of any State or local unit of govern- thorized to issue a complaint on behalf ment, or of any foreign government. of the Agency to persons alleged to be (p) Presiding Officer means the attor- in violation of the Act. The complain- ney designated by the Director to con- ant shall not be the Presiding Officer duct hearings or other proceedings or any other person who will partici- under this subpart. pate or advise in the decision. (q) Respondent means any person pro- (e) Complaint means a written com- ceeded against in the complaint. munication, alleging one or more vio- (r) Terms defined in the Act and not lations of specific provisions of the defined in these rules of practice are Act, Treaties, NSF regulations or a used consistent with the meanings permit promulgated thereunder, issued given in the Act.

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

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duties. OPP will provide each enforce- these rules, may be made personally or ment officer with official enforcement by certified mail, return receipt re- credentials for identification purposes quested, on the respondent or his rep- and use during execution of official du- resentative. ties. (ii) Service upon a domestic or for- OPP may also designate knowledgeable eign corporation or upon a partnership individuals to provide educational and or other unincorporated association other information regarding the Ant- which is subject to suit under a com- arctic to tour operators, their clients mon name shall be made by personal and employees, and other visitors to service or certified mail, as prescribed the Antarctic. by paragraph (b)(1)(i) of this section, (h) The Office of the General Counsel, directed to an officer, partner, a man- with the concurrence of the Office of aging or general agent, or to any other Polar Programs, may refer appropriate person authorized by appointment or cases to the Department of Justice for by Federal or State law to receive serv- possible prosecution of criminal viola- ice of process. tions of the Antarctic Conservation (iii) Service upon an officer or agency Act. of the United States shall be made by [54 FR 7132, Feb. 16, 1989. Redesignated at 58 delivering a copy of the complaint to FR 34718, June 29, 1993, and amended at 59 FR the officer or agency, or in any manner 37438, July 22, 1994; 61 FR 51022, Sept. 30, 1996; prescribed for service by applicable 66 FR 42451, Aug. 13, 2001] regulations. If the agency is a corporation, the complaint shall be served as § 672.4 Filing, service, and form of pleadings and documents. prescribed in paragraph (b)(1)(ii) of this section. (a) Filing of pleadings and documents. (iv) Service upon a State or local (1) Except as otherwise provided, the unit of government, or a State or local original and one copy of the complaint, officer, agency, department, corpora- and the original of the answer and of tion or other instrumentality shall be all other documents served in the pro- made by serving a copy of the com- ceeding, shall be filed with the Hearing plaint in the manner prescribed by the Clerk. law of the State for the service of proc- (2) A certificate of service shall ac- ess on any such persons, or company each document filed or served. Except as otherwise provided, a (A) If upon a State or local unit of party filing documents with the Hear- government, or a State or local depart- ing Clerk, after the filing of the an- ment, agency, corporation or other in- swer, shall serve copies thereof upon strumentality, by delivering a copy of all other parties and the Presiding Offi- the complaint to the chief executive of- cer. The Presiding Officer shall main- ficer thereof; or tain a duplicate file during the course (B) If upon a State or local officer by of the proceeding. delivering a copy to such officer. (3) When the Presiding Officer cor- (v) Proof of service of the complaint responds directly with the parties, he shall be made by affidavit of the person shall file the original of the cor- making personal service, or by prop- respondence with the Hearing Clerk, erly executed return receipt. Such maintain a copy in the duplicate file, proof of service shall be filed with the and send a copy to all parties. Parties complaint immediately upon comple- who correspond directly with the Pre- tion of service. siding Officer shall in addition to serv- (2) The first page of every pleading, ing all other parties send a copy of all letter, or other document shall contain such correspondence to the Hearing a caption identifying the respondent Clerk. A certificate of service shall ac- and the docket number which is exhib- company each document served under ited on the complaint. this subsection. (3) The original of any pleading, let- (b) Service of pleadings and docu- ter, or other document (other than ex- ments—(1) Service of complaint. (i) Serv- hibits) shall be signed by the party fil- ice of a copy of the signed original of ing it or by his representative. The sig- the complaint, together with a copy of nature constitutes a representation by

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the signer that he has read the plead- pleadings and documents is complete ing, letter or other document, that to upon mailing. Where a pleading or doc- the best of his knowledge, information ument is served by mail, five (5) days and belief, the statements made there- shall be added to the time allowed by in are true, and that it is not inter- these rules for the filing of a responsive posed for delay. pleading or document. (4) The initial document filed by any (e) Ex parte discussion of proceeding. person shall contain his name, address At no time after the issuance of the and telephone number. Any changes in complaint shall the Presiding Officer, this information shall be commu- or any other person who is likely to ad- nicated promptly to the Hearing Clerk, vise these officials in the decision on Presiding Officer, and all parties to the the case, discuss ex parte the merits of proceeding. A party who fails to fur- the proceeding with any interested per- nish such information and any changes son outside the Agency, with any Agen- thereto shall be deemed to have waived cy staff member who performs a pros- his right to notice and service under ecutorial or investigative function in these rules. the proceeding or other factually related proceeding, or with any rep- § 672.5 Filing and service of rulings, resentative of such person. Any ex orders, and decisions. parte memorandum or other commu- (a) All rulings, orders, decisions, and nication addressed to the Presiding Of- other documents issued by the Pre- ficer during the pendency of the pro- siding Officer shall be filed with the ceeding and relating to the merits Hearing Clerk. Copies of all such docu- thereof, by or on behalf of any party, ments shall be served personally, or by shall be regarded as argument made in certified mail, return receipt re- the proceeding and shall be served upon quested, upon all parties. all other parties. The Presiding Officer (b) Computation. In computing any shall give the other parties an oppor- period of time prescribed or allowed in tunity to reply. these rules, except as otherwise pro- (f) Subject to the provisions of law vided, computation is by calendar days restricting the public disclosure of con- and does not include the day of the fidential information, any person may, event from which the designated period during Agency business hours, inspect begins to run. When a stated time ex- and copy any document filed in any pires on a Saturday, Sunday or legal proceeding. Such documents shall be holiday, the stated time period shall be made available by the Hearing Clerk. extended to include the next business (g) The person seeking copies of any day. documents filed in a proceeding shall (c) Extensions of time. The Presiding bear the cost of duplication. Upon a Officer may grant an extension of time formal request the Agency may waive for the filing of any pleading, docu- this cost in appropriate cases. ment, or motion (1) upon timely motion of a party to the proceeding, for § 672.6 Appearances. good cause shown, and after consider- (a) Appearances. Any party may ap- ation of prejudice to other parties, or pear in person or by counsel or other (2) upon his own motion. Such a mo- representative. A partner may appear tion by a party may only be made after on behalf of a partnership and an offi- notice to all other parties, unless the cer may appear on behalf of a corpora- movant can show good cause why serv- tion. Persons who appear as counsel or ing notice is impracticable. The mo- other representative must conform to tion shall be filed in advance of the the standards of conduct and ethics re- date on which the pleading, document quired of practitioners before the or motion is due to be filed, unless the courts of the United States. failure of a party to make timely mo- (b) Intervention. A motion for leave to tion for extension of time was the re- intervene in any proceeding conducted sult of excusable neglect. under these rules must set forth the (d) Service by mail. Service of the grounds for the proposed intervention, complaint is complete when the return the position and interest of the mov- receipt is signed. Service of all other ant, and whether the intervention will

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cause delay. Any person already a not adversely affect the rights of par- party to the proceeding may file an an- ties engaged in otherwise separate pro- swer to a motion to intervene, making ceedings. specific reference to the factors set (g) Severance. The Presiding Officer forth in the foregoing sentence and may, by motion or sua sponte, for good paragraph (c) of this section, within cause shown order any proceedings sev- ten (10) days after service of the mo- ered with respect to any or all parties tion for leave to intervene. or issues. (c) A motion for leave to intervene in a proceeding must ordinarily be filed § 672.7 Issuance of complaint. before the first prehearing conference, (a) General. If the complainant has or if there is no such conference, prior reason to believe that a person has vio- to the setting of a time and place for a lated any provision of the Antarctic hearing. Any motion filed after that Conservation Act, other Act or attend- time must include, in addition to the ant regulations, or a permit issued information set forth in paragraph (b) under the ACA, he may institute a proof this section, a statement of good ceeding for the assessment of a civil cause for the failure to file in a timely penalty or other sanctions by issuing a manner. Agreements, arrangements, complaint under the Act and these and other matters previously resolved rules. during the proceeding are binding on (b) If the complainant has reason to the intervenor. believe that (1) a permittee violated (d) Disposition. The Presiding Officer any term or condition of the permit, or may grant leave to intervene only if (2) a permittee misrepresented or inac- the movant demonstrates that (1) his curately described any material fact in presence in the proceeding would not the permit application or failed to dis- unduly prolong or otherwise prejudice close all relevant facts in the permit the adjudication of the rights of the application, or (3) other good cause ex- original parties; (2) the movant will be ists for such action, he may institute a adversely affected by a final order; and proceeding for the revocation or sus- (3) the interests of the movant are not pension of a permit by issuing a com- being adequately represented by the plaint under the Act and these rules. A original parties. The intervenor be- complaint may seek suspension or rev- comes a full party to the proceeding ocation of a permit in addition to the upon the granting of leave to inter- assessment of a civil penalty. vene. (c) Content and amendment of the com- (e) Amicus curiae. Persons not parties plaint. All complaints shall include: to the proceeding who wish to file (1) A statement reciting the sec- briefs may so move. The motion shall tion(s) of the Act, regulations, and/or identify the interest of the applicant permit authorizing the issuance of the and shall state the reasons why the complaint; proposed amicus brief is desirable. If (2) A concise statement of the factual the motion is granted, the Presiding basis for all alleged violations; and Officer or Director shall issue an order (3) Notice of the respondent’s right to setting the time for filing such brief. request a hearing on any material fact An amicus curiae is eligible to partici- contained in the complaint, or on the pate in any briefing after his motion is appropriateness of the proposed sanc- granted, and shall be served with all tion. briefs, motions, and orders relating to (d) Each complaint for the assess- issues to be briefed. ment of a civil penalty shall also in- (f) Consolidation. The Presiding Offi- clude: cer may, by motion or sua sponte, con- (1) Specific reference to each provi- solidate any or all matters at issue in sion of the Act and implementing regu- two or more proceedings docketed lations which respondent is alleged to under these rules where (1) there exists have violated; common parties or common questions (2) The amount of the civil penalty of fact or law; (2) consolidation would which is proposed to be assessed; and expedite and simplify consideration of (3) A statement explaining the rea- the issues; and (3) consolidation would soning behind the proposed penalty;

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

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and (4) be accompanied by any affi- order issued upon default. If the com- davit, certificate, or other evidence or plaint is for the revocation or suspen- legal memorandum relied upon. sion of a permit, the conditions of rev- (b) Response to motions. A party must ocation or suspension proposed in the file a response to any written motion complaint shall become effective with- within ten (10) days after service of out further proceedings on the date such motion, unless the Presiding Offi- designated by the Presiding Officer in cer allows additional time. The re- his final order issued upon default. De- sponse shall be accompanied by any af- fault by the complainant shall result in fidavit, certificate, other evidence, or the dismissal of the complaint with legal memorandum relied upon. If no prejudice. response is filed within the designated (b) Procedures upon default. When the period, the Presiding Officer may deem Presiding Officer finds a default has oc- the parties to have waived any objec- curred, he shall issue a default order tion to the granting of the motion. The against the defaulting party. This Presiding Officer may also set a short- order shall constitute the initial deci- er time for response, or make such sion, and shall be filed with the Hear- other appropriate orders concerning ing Clerk. the disposition of motions. (c) Contents of a default order. A de- (c) Ruling on Motions. The Presiding fault order shall include findings of Officer shall rule on all motions, unless fact showing the grounds for the order, otherwise provided in these rules. The conclusions regarding all material Presiding Officer may permit oral ar- issues of law or discretion, and the pen- gument if he considers it necessary or alty which is recommended, or the desirable. terms and conditions of permit revoca- § 672.10 Default order. tion or suspension, or other sanctions. (d) The Presiding Officer may set (a) Default. The Presiding Officer aside a default order for good cause may find a party in default (1) after shown. motion, upon failure to file a timely answer to the complaint; (2) after mo- § 672.11 Informal settlement; consent tion or sua sponte, upon failure to com- agreement and order. ply with a prehearing or hearing order of the Presiding Officer; or (3) after (a) Settlement policy. The Agency en- motion or sua sponte, upon failure to courages settlement of a proceeding at appear at a conference or hearing with- any time if the settlement is con- out good cause being shown. No finding sistent with the provisions and objec- of default on the basis of a failure to tives of the Act and applicable regula- appear at a hearing shall be made tions. The respondent may confer with against the respondent unless the com- complainant concerning settlement plainant presents sufficient evidence to whether or not the respondent requests the Presiding Officer to establish a a hearing. Settlement conferences prima facie case against the respond- shall not affect the respondent’s obli- ent. Any motion for a default order gation to file a timely answer. shall include a proposed default order (b) Consent agreement. The parties and shall be served upon all parties. shall forward a written consent agree- The alleged defaulting party shall have ment and a proposed consent order to twenty (20) days from service to reply the Presiding Officer whenever settle- to the motion. Default by respondent ment or compromise is proposed. The constitutes, for purposes of the pending consent agreement shall state that, for action only, an admission of all facts the purpose of this proceeding, re- alleged in the complaint and a waiver spondent (1) admits the jurisdictional of respondent’s right to a hearing on allegations of the complaint; (2) admits such factual allegations. If the com- the facts stipulated in the consent plaint is for the assessment of a civil agreement or neither admits nor denies penalty, the penalty proposed in the specific factual allegations contained complaint shall become due and pay- in the complaint; and (3) consents to able by respondent without further the assessment of a stated civil penalty proceedings sixty (60) days after a final or to the stated permit revocation or

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suspension, or to other sanctions or ac- pected testimony, and (2) copies of all tions in mitigation. The consent agree- documents and exhibits which each ment shall include any and all terms of party intends to introduce into evi- the agreement, and shall be signed by dence. Documents and exhibits shall be all parties or their counsel or rep- marked for identification as ordered by resentatives. the Presiding Officer. The Presiding Of- (c) Consent order. No settlement or ficer may exclude from evidence any consent agreement shall dispose of any document or testimony not disclosed proceeding under the rules without a at the prehearing conference. If the consent order from the Director or his Presiding Officer permits the submittal delegatee. Before signing such an of new evidence, he will grant parties a order, the Director or his delegatee reasonable opportunity to respond. may require that the parties to the set- (c) Record of the prehearing conference. tlement appear before him to answer No transcript of a prehearing con- inquiries relating to the consent agree- ference relating to settlement shall be ment or order. made. With respect to other prehearing (d) Actions by respondent to clean, pro- conferences, no transcript of any pre- tect, enhance, or benefit the environment. hearing conferences shall be made un- NSF may accept from respondent envi- less ordered by the Presiding Officer ronmentally beneficial actions, in lieu upon motion of a party or sua sponte. of penalties, in whole or in part, as- The Presiding Officer shall prepare and sessed under the Antarctic Conserva- file for the record a written summary tion Act. An assessment of the mone- of the action taken at the conference. tary value of any action in mitigation The summary shall incorporate any shall be made before that action is in- written stipulations or agreements of corporated as a part of any consent the parties and all rulings and appro- agreement and order. priate orders containing directions to the parties. § 672.12 Prehearing conference. (d) Unavailability of a prehearing con- (a) Purpose of prehearing conference. ference. If a prehearing conference is Unless a conference appears unneces- unnecessary or impracticable, the Pre- sary, the Presiding Officer, at any time siding Officer, on motion or sua sponte, before the hearing begins, shall direct may conduct a telephonic conference the parties and their counsel or other or direct the parties to correspond with representatives to appear at a con- him to accomplish any of the objec- ference before him to consider: tives set forth in this section. (1) The settlement of the case; (e) Other discovery. (1) Except as pro- (2) The simplification of issues and vided by paragraph (b) of this section, stipulation of facts not in dispute; further discovery shall be permitted (3) The necessity or desirability of only upon determination by the Pre- amendments to pleadings; siding Officer that (i) such discovery (4) The exchange of exhibits, docu- will not in any way unreasonably delay ments, prepared testimony, and admis- the proceeding; (ii) the information to sions or stipulations of fact which will be obtained is not otherwise obtain- avoid unnecessary proof; able; and (iii) such information has sig- (5) The limitation of the number of nificant probative value. expert or other witnesses; (2) The Presiding Officer shall order (6) Setting a time and place for the depositions upon oral questions only hearing; and upon a showing of good cause and upon (7) Any other matters which may ex- a finding that (i) the information pedite the proceeding. sought cannot be obtained by alter- (b) Exchange of witness lists and docu- native methods; or (ii) there is substan- ments. Unless otherwise ordered by the tial reason to believe that relevant and Presiding Officer, each party at the probative evidence may otherwise not prehearing conference shall make be preserved for presentation by a wit- available to all other parties (1) the ness at the hearing. names of the expert and other wit- (3) Any party may request further nesses he intends to call, together with discovery by motion. Such a motion a brief narrative summary of their ex- shall set forth (i) the circumstances

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warranting the taking of the discovery; uncontroverted, and the issues and (ii) the nature of the information ex- claims upon which the hearing will pected to be discovered; and (iii) the proceed. proposed time and place where it will be taken. If the Presiding Officer deter- § 672.14 Scheduling the hearing. mines that the motion should be grant- (a) When an answer is filed, the Hear- ed, he shall issue an order granting dis- ing Clerk shall forward the complaint, covery, with any qualifying conditions the answer, and any other documents and terms. filed thus far in the proceeding to the (4) When the information sought to Presiding Officer, who will notify the be obtained is within the control of one parties of his assignment. of the parties, failure to comply with (b) Notice of hearing. If the respondent an order issued pursuant to this para- requests a hearing in his answer, or one graph may lead to (i) the inference that is ordered by the Presiding Officer, the the information to be discovered would Presiding Officer shall serve upon the be adverse to the party from whom the parties a notice setting forth a time information was sought; or (ii) the and place for the hearing. The Pre- issuance of a default. siding Officer may issue the notice of hearing at any appropriate time, but § 672.13 Accelerated decision; decision not later than twenty (20) days prior to to dismiss. the date set for the hearing. (a) General. The Presiding Officer, (c) Postponement of hearing. The Pre- upon motion of any party or sua siding Officer will not grant a request sponte, may at any time render an ac- for postponement of a hearing except celerated decision in favor of the com- upon motion and for good cause shown. plainant or the respondent as to all or any part of the proceeding, without § 672.15 Evidence. further hearing or upon such limited (a) General. The Presiding Officer additional evidence, such as affidavits, shall admit all evidence which is not as he may require, if no genuine issue irrelevant, immaterial, unduly repeti- of material fact exists and a party is tious, or otherwise unreliable or of lit- entitled to judgment as a matter of law tle probative value. Notwithstanding regarding all or any part of the pro- the preceding sentence, evidence relat- ceeding. In addition, the Presiding Offi- ing to settlement which would be ex- cer, upon motion of the respondent, cluded in the federal courts under Ru1e may at any time dismiss an action 408 of the Federal Rules of Evidence is without further hearing or upon such inadmissible. In the presentation, ad- limited additional evidence as he remission, disposition, and use of evi- quires, if complainant fails to establish dence, the Presiding Officer shall pre- a prima facie case, or if other grounds serve the confidentiality of trade se- show complainant has no right to re- crets and other commercial and finan- lief. cial information. The confidential or (b) Effect. (1) If an accelerated deci- trade secret status of any information sion or a decision to dismiss is issued shall not, however, preclude its intro- as to all the issues and claims in the duction into evidence. The Presiding proceeding, the decision constitutes an Officer may review such evidence in initial decision of the Presiding Offi- camera, and issue appropriate protec- cer, and shall be filed with the Hearing tive orders. Clerk. (b) Examination of witnesses. Parties (2) If an accelerated decision or a de- shall examine witnesses orally, under cision to dismiss is rendered on less oath or affirmation, except as other- than all issues or claims in the pro- wise provided in these rules or by the ceeding, the Presiding Officer shall de- Presiding Officer. Parties shall have termine what material facts exist with- the right to cross-examine a witness out substantial controversy and what who appears at the hearing. material facts remain controverted in (c) Verified statements. The Presiding good faith. He shall then issue an inter- Officer may admit into the record as locutory order specifying the facts evidence, in lieu of oral testimony, which appear substantially statements of fact or opinion prepared

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

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

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interlocutory appeal, it may be re- ceeding. If the Director determines viewed by the Director only upon ap- that issues raised, but not appealed by peal from the initial decision. the parties, should be argued, he shall (d) Stay of proceedings. The Presiding give the parties or their representa- Officer may stay the proceedings for an tives written notice of such determina- interlocutory appeal. Proceedings will tion to permit preparation of adequate not be stayed except in extraordinary argument. Nothing herein shall pro- circumstances. Where the Presiding Of- hibit the Director from remanding the ficer grants a stay of more than thirty case to the Presiding Officer for further (30) days, such stay must be separately proceedings. approved by the Director. (d) Argument. The Director may, upon request of a party or sua sponte, assign § 672.22 Appeal from or review of ini- a time and place for oral argument. tial decision. (a) Notice of appeal. Any party may § 672.23 Final order on appeal. appeal any adverse initial decision of (a) Contents of the final order. When the Presiding Officer by filing a notice an appeal has been taken or the Direc- of appeal and an accompanying appel- tor issues a notice of intent to conduct late brief with the Hearing Clerk and review sua sponte, the Director shall upon all other parties and amicus cu- issue a final order as soon as prac- riae within twenty (20) days after the ticable after the filing of all appellate initial decision is served upon the par- briefs or oral argument. The Director ties. The notice of appeal shall set shall adopt, modify or set aside the forth alternative findings of fact, alter- findings and conclusions contained in native conclusions regarding issues of the decision or order being reviewed law or discretion, and a proposed order and shall set forth in the final order together with relevant references to the reasons for his actions. The Direc- the record and the initial decision. The tor may, in his discretion, increase or appellant’s brief shall contain a state- decrease the assessed penalty from the ment of the issues presented for review, amount recommended in the decision argument on the issues presented, and or order being reviewed, except that if a short conclusion stating the precise the order being reviewed is a default relief sought, together with appro- order, the Director may not increase priate references to the record. Within the amount of the penalty. twenty (20) days of the service of no- (b) Payment of a civil penalty. The re- tices of appeal and briefs, any other spondent shall pay the full amount of party or amicus curiae may file with the civil penalty assessed in the final the Hearing Clerk a reply brief re- order within sixty (60) days after responding to argument raised by the ap- ceipt of the final order unless other- pellant, together with references to the wise agreed by the parties. Payment relevant portions of the record, initial shall be made by forwarding to the decision, or opposing brief. Reply briefs Hearing Clerk a cashier’s check or cer- shall be limited to the scope of the ap- tified check in the amount of the pen- peal brief. alty assessed in the final order, payable (b) Sua sponte review by the Director. to the Treasurer, United States of Whenever the Director determines sua America. sponte to review an initial decision, (c) Money due and owing the United the Hearing Clerk shall serve notice of States by virtue of an unappealed final such intention on the parties within decision or settlement order may be forty-five (45) days after the initial de- collected by referral to the Department cision is served upon the parties. The of Justice for appropriate civil action notice shall include a statement of against respondent. issues to be briefed by the parties and a time schedule for the service and fil- § 672.24 Maximum civil monetary pen- ing of briefs. alties for violations. (c) Scope of appeal or review. The ap- (a) For violations occurring prior to peal of the initial decision shall be lim- August 1, 2016, the maximum civil pen- ited to those issues raised by the par- alty is $6500 for any violation and ties during the course of the pro- $11,000 for knowing violations.

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(b) For violations occurring after Au- States is required under the Antarctic gust 1, 2016, but before January 1, 2017, Treaty, who use non-flagged vessels en- the maximum civil penalty is adjusted sure that the vessel owner or operator to $16,250 for any violation and $27,500 has an appropriate emergency response for knowing violations. plan. This part is also designed to en- (c) For violations occurring on or sure that expedition members are in- after January 1, 2017, the maximum formed of their environmental protec- penalty, which may be assessed under tion obligations under the Antarctic part 672 of the title, is the larger of: Conservation Act. (1) The amount for the previous cal- (Approved by the Office of Management and endar year, or Budget under control number 3145–0180) (2) An amount adjusted for inflation, calculated by multiplying the amount § 673.2 Scope. for the previous calendar year by the The requirements in this part apply percentage by which the CPI–U for the to non-governmental expeditions to or month of October preceding the cur- within Antarctica for which the United rent calendar year exceeds the CPI–U States is required to give advance no- for the month of October of the cal- tice under Paragraph (5) of Article VII endar year two years prior to the cur- of the Antarctic Treaty. rent calendar year, adding that amount to the amount for the previous cal- § 673.3 Definitions. endar year, and rounding the total to the nearest dollar. In this part: (d) Notice of the maximum penalty Antarctica means the area south of 60 which may be assessed under part 672 degrees south latitude. of this title for calendar years after Expedition means an activity under- 2016 will be published by the NSF in taken by one or more non-governmental persons organized within or the FEDERAL REGISTER on an annual basis on or before January 15 of each proceeding from the United States to calendar year. or within Antarctica for which advance notification is required under Para- [81 FR 41452, June 27, 2016] graph 5 of Article VII of the Antarctic Treaty. PART 673—ANTARCTIC NON- Person has the meaning given that GOVERNMENTAL EXPEDITIONS term in section 1 of title 1, United States Code, and includes any person Sec. subject to the jurisdiction of the 673.1 Purpose of regulations. United States except that the term 673.2 Scope. does not include any department, agen- 673.3 Definitions. cy, or other instrumentality of the 673.4 Environmental protection informa- Federal Government. tion. 673.5 Emergency response plan. § 673.4 Environmental protection in- AUTHORITY: 16 U.S.C. 2401 et. seq. formation. SOURCE: 66 FR 42451, Aug. 13, 2001, unless (a) Any person who organizes a non- otherwise noted. governmental expedition to Antarctica and who does business in the United § 673.1 Purpose of regulations. States shall notify expedition members The purpose of the regulations in this of the environmental protection obli- part is to implement the Antarctic gations of the Antarctic Conservation Conservation Act of 1978, Public Law Act. 95–541, as amended by the Antarctic (b) The National Science Founda- Science, Tourism and Conservation Act tion’s Office of Polar Programs may of 1996, Public Law 104–227, and Article prepare for publication and distribu- 15 of the Protocol on Environmental tion explanation of the prohibited acts Protection to the Antarctic Treaty set forth in the Antarctic Conservation done at Madrid on October 4, 1991. Spe- Act, as well as other appropriate edu- cifically, this part requires that all cational material for tour operators, non-governmental expeditions, for their clients, and employees. Such ma- which advance notice by the United terial provided to tour operators for

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

SOURCE: 68 FR 15379, Mar. 31, 2003, unless Person has the meaning given that otherwise noted. term in section 1 of title 1, United States Code, and includes any person § 674.1 Purpose of regulations. subject to the jurisdiction of the The purpose of the regulations in this United States. part is to implement the Antarctic

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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(iii) The Deputy Director will review 690.115 IRB records. the investigation report and OIG’s rec- 690.116 General requirements for informed ommended disposition. Before issuing a consent. disposition the Deputy Director may 690.117 Documentation of informed consent. 690.118 Applications and proposals lacking initiate further hearings or investiga- definite plans for involvement of human tion. Normally within 120 days after re- subjects. ceiving OIG’s recommendations or 690.119 Research undertaken without the in- after completion of any further pro- tention of involving human subjects. ceedings, the Deputy Director will send 690.120 Evaluation and disposition of appli- the affected individual or institution a cations and proposals for research to be written disposition, specifying actions conducted or supported by a Federal department or agency. to be taken. The decision will include 690.121 [Reserved] instructions on how to pursue an ap- 690.122 Use of Federal funds. peal to the Director. 690.123 Early termination of research support: Evaluation of applications and pro- [67 FR 11937, Mar. 18, 2002, as amended at 72 posals. FR 4944, Feb. 2, 2007] 690.124 Conditions. § 689.10 Appeals. AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b). (a) An affected individual or institu- SOURCE: 82 FR 7259, 7273, Jan. 19, 2017, un- tion may appeal to the Director in less otherwise noted. writing within 30 days after receiving the Deputy Director’s written decision. § 690.101 To what does this policy The Deputy Director’s decision be- apply? comes a final administrative action if (a) Except as detailed in § 690.104, this it is not appealed within the 30 day pe- policy applies to all research involving riod. human subjects conducted, supported, (b) The Director may appoint an un- or otherwise subject to regulation by involved NSF officer or employee to re- any Federal department or agency that view an appeal and make recommenda- takes appropriate administrative actions. tion to make the policy applicable to (c) The Director will normally inform such research. This includes research the appellant of a final decision within conducted by Federal civilian employ- 60 days after receiving the appeal. That ees or military personnel, except that decision will be the final administra- each department or agency head may tive action of the Foundation adopt such procedural modifications as may be appropriate from an adminis- PART 690—PROTECTION OF trative standpoint. It also includes re- HUMAN SUBJECTS search conducted, supported, or otherwise subject to regulation by the Fed- Sec. eral Government outside the United 690.101 To what does this policy apply? States. Institutions that are engaged 690.102 Definitions for purposes of this pol- in research described in this paragraph icy. and institutional review boards (IRBs) 690.103 Assuring compliance with this pol- reviewing research that is subject to icy—research conducted or supported by this policy must comply with this pol- any Federal department or agency. icy. 690.104 Exempt research. 690.105–690.106 [Reserved] (b) [Reserved] 690.107 IRB membership. (c) Department or agency heads re- 690.108 IRB functions and operations. tain final judgment as to whether a 690.109 IRB review of research. particular activity is covered by this 690.110 Expedited review procedures for cer- policy and this judgment shall be exer- tain kinds of research involving no more cised consistent with the ethical prin- than minimal risk, and for minor ciples of the Belmont Report.62 changes in approved research. 690.111 Criteria for IRB approval of research. 62 The National Commission for the Protec- 690.112 Review by institution. tion of Human Subjects of Biomedical and 690.113 Suspension or termination of IRB Behavioral Research.– Belmont Report. approval of research. Washington, DC: U.S. Department of Health 690.114 Cooperative research. and Human Services. 1979.

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

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(ii) Research for which IRB review (iii) Research for which a determina- was waived pursuant to § 690.101(i) of tion is made that the research is ex- the pre-2018 Requirements before Janu- empt on or after January 21, 2019. ary 21, 2019; and (m) Severability: Any provision of (iii) Research for which a determina- this part held to be invalid or unen- tion was made that the research was forceable by its terms, or as applied to exempt under § 690.101(b) of the pre-2018 any person or circumstance, shall be Requirements before January 21, 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, and January 20, 2019, the research [82 FR 7259, 7273, Jan. 19, 2017, as amended at shall: 83 FR 28519, July 19, 2018] (A) Beginning on the date of such § 690.102 Definitions for purposes of documentation through January 20, this policy. 2019, comply with the pre-2018 Require- ments, except that the research shall (a) Certification means the official no- comply with the following: tification by the institution to the sup- (1) Section 690.102(l) of the 2018 Re- porting Federal department or agency quirements (definition of research) (in- component, in accordance with the re- stead of § 690.102(d) of the pre-2018 Re- quirements of this policy, that a requirements); search project or activity involving (2) Section 690.103(d) of the 2018 Re- human subjects has been reviewed and quirements (revised certification re- approved by an IRB in accordance with quirement that eliminates IRB review an approved assurance. of application or proposal) (instead of (b) Clinical trial means a research § 690.103(f) of the pre-2018 Require- study in which one or more human sub- ments); and jects are prospectively assigned to one (3) Section 690.109(f)(1)(i) and (iii) of or more interventions (which may in- the 2018 Requirements (exceptions to clude placebo or other control) to mandated continuing review) (instead evaluate the effects of the interven- of § 690.103(b), as related to the require- tions on biomedical or behavioral ment for continuing review, and in ad- health-related outcomes. dition to § 690.109, of the pre-2018 Re- (c) Department or agency head means quirements); and the head of any Federal department or (B) Beginning on January 21, 2019, agency, for example, the Secretary of comply with the 2018 Requirements. HHS, and any other officer or employee (ii) If the determination to transition of any Federal department or agency is documented on or after January 21, to whom the authority provided by 2019, the research shall, beginning on these regulations to the department or the date of such documentation, com- agency head has been delegated. ply with the 2018 Requirements. (d) Federal department or agency refers (5) Research subject to 2018 Require- to a federal department or agency (the ments. The 2018 Requirements shall department or agency itself rather apply to the following research: than its bureaus, offices or divisions) (i) Research initially approved by an that takes appropriate administrative IRB on or after January 21, 2019; action to make this policy applicable (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,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part Page 700 [Reserved] 701 Organization and functions of the Commission ...... 243 702 Rules on hearings, reports, and meetings of the Commission ...... 246 703 Operations and functions of State Advisory Com- mittees ...... 255 704 Information disclosure and communications ...... 258 705 Materials available pursuant to 5 U.S.C. 552a ...... 265 706 Employee responsibilities and conduct ...... 270 707 Enforcement of nondiscrimination on the basis of disability in programs or activities conducted by U.S. Commission on Civil Rights ...... 271 708 Collection by salary offset from indebted current and former employees ...... 277 709–799 [Reserved]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part Page 800 Multi-State Plan Program ...... 285 801–899 [Reserved]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part Page 900 National Environmental Policy Act implementing procedures ...... 305 901–999 [Reserved]

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

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

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

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

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

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

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

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

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A2. Routine activities that the Commis- ramp and door improvements, weatheriza- sion does to support its program partners tion and energy efficiency related improve- and stakeholders, such as serving on task ments, HVAC renovations, painting, floor forces, ad hoc committees or representing system replacement, repaving parking lots Commission interests in other forums. and ground maintenance, that do not result A3. Approving and issuing grants for ad- in a change in the functional use of the real ministrative overhead support. property. A4. Approving and issuing grants for social B2. Engineering studies and investigations services, education and training programs, that do not permanently change the environ- including but not limited to support for Head ment. Start, senior citizen programs, drug treat- B3. Construction or lease of new infra- ment programs, and funding internships, ex- structure including, but not limited to, cept for projects involving construction, ren- health care facilities, community buildings, ovation, or changes in land use. housing, and bulk fuel storage and power A5. Approving and issuing grants for facil- generation plants, where such lease or con- ity planning and design. struction: A6. Nondestructive data collection, inven- (a) Is at the site of existing infrastructure tory, study, research, and monitoring activi- and capacity is not substantially increased; ties (e.g., field, aerial and satellite surveying or and mapping). (b) Is for infrastructure of less than 12,000 A7. Research, planning grants and tech- square feet of useable space when less than nical assistance projects that are not reason- two aces of surface land area are involved at ably expected to commit the federal govern- a new site. ment to a course of action, to result in legis- B4. Construction or modification of elec- lative proposals, or to result in direct devel- tric power stations or interconnection facili- opment. ties (including, but not limited to, switching A8. Acquisition and installation of equip- stations and support facilities). ment including, but not limited to, EMS, emergency and non-expendable medical B5. Construction of electric powerlines ap- equipment (e.g., digital imaging devices and proximately ten miles in length or less, or dental equipment), and communications approximately 20 miles in length or less equipment (e.g., computer upgrades). within previously disturbed or developed powerline or pipeline rights-of-way. B. Program Categorical Exclusions B6. Upgrading or rebuilding approximately twenty miles in length or less of existing Actions consistent with any of the fol- electric powerlines, which may involve lowing categories are, in the absence of ex- minor relocations of small segments or the traordinary circumstances, categorically ex- powerlines. cluded from further analysis and documenta- B7. Demolition, disposal, or improvements tion in an EA or EIS upon completion of the involving buildings or structures when done Denali Commission CATEX checklist: in accordance with applicable regulations, B1. Upgrade, repair, maintenance, replace- including those regulations applying to re- ment, or minor renovations and additions to moval of asbestos, polychlorinated biphenyls buildings, roads, harbors and other maritime (PCBs), and other hazardous materials. facilities, grounds, equipment, and other facilities, including but not limited to, roof replacement, foundation repair, ADA access PARTS 901–999 [RESERVED]

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Part Page 1000 Individual development account reserve funds established pursuant to Grants for Assets for Inde- pendence ...... 317 1050 Charitable choice under the Community Services Block Grant Act programs ...... 317 1080 Emergency Community Services Homeless Grant Program ...... 319 1081–1099 [Reserved]

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

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

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

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

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

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

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

SUBCHAPTER A—GENERAL

Part Page 1100 Statement for the guidance of the public—Organi- zation, procedure and availability of information 325 1105 Standards of conduct for employees ...... 329 1110 Nondiscrimination in federally assisted programs 329

SUBCHAPTER B—NATIONAL ENDOWMENT FOR THE ARTS 1116–1147 [Reserved] 1148 Procedures for disclosure of records under the Freedom of Information Act (FOIA) ...... 341 1149 Program Fraud Civil Remedies Act regulations ..... 353 1150 Collection of claims ...... 370 1151 Nondiscrimination on the basis of handicap ...... 383 1152 Intergovernmental review of National Endowment for the Arts programs and activities ...... 391 1153 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the National Endowment for the Arts ...... 395 1156 Nondiscrimination on the basis of age ...... 401 1157 Arts Endowment guidance documents ...... 407 1158 New restrictions on lobbying ...... 411 1159 Implementation of the Privacy Act of 1974 ...... 423

SUBCHAPTER C—FEDERAL COUNCIL ON THE ARTS AND THE HUMANITIES 1160 Indemnities under the Arts and Artifacts Indem- nity Act ...... 432

SUBCHAPTER D—NATIONAL ENDOWMENT FOR THE HUMANITIES 1168 New restrictions on lobbying ...... 437 1169 Privacy Act regulations ...... 447

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Part Page 1170 Nondiscrimination on the basis of handicap in federally assisted programs or activities ...... 453 1171 Public access to NEH records under the Freedom of Information Act ...... 465 1172 Nondiscrimination on the basis of age in federally assisted programs or activities ...... 475 1173 Processes and procedures for issuing guidance documents (Eff. 10-14-20) ...... 482 1174 [Reserved] 1175 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the National Endowment for the Humanities ...... 486 1176 Part-time career employment ...... 492 1177 Claims collection...... 493 1178 Use of penalty mail in the location and recovery of missing children ...... 496 1179 Salary offset...... 497

SUBCHAPTER E—INSTITUTE OF MUSEUM AND LIBRARY SERVICES 1180 [Reserved] 1181 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Institute of Museum and Library Services .... 502 1182 Implementation of the Privacy Act of 1974 ...... 507 1183 [Reserved] 1184 Implementation of the Freedom of Information Act ...... 516 1185–1199 [Reserved]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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agency (and each other State or local or political subdivision, any public or government entity) to which the as- private agency, institution, or organi- sistance is extended, in the case of as- zation, or other entity or any indi- sistance to a State or local govern- vidual, in any State, to whom Federal ment; financial assistance is extended, di- (2)(i) A college, university, or other rectly or through another recipient, in- postsecondary institution, or a public cluding any successor, assign, or trans- system of higher education; or feree thereof, but such term does not (ii) A local educational agency (as de- include any ultimate beneficiary. fined in 20 U.S.C. 7801), system of voca- (j) The term primary recipients means tional education, or other school sys- any recipient which is authorized or re- tem; quired to extend Federal financial as- (3)(i) An entire corporation, partner- sistance to another recipient. ship, or other private organization, or (k) The term applicant means one an entire sole proprietorship— who submits an application, request, or (A) If assistance is extended to such plan required to be approved by a re- corporation, partnership, private orga- sponsible Endowment official, or by a nization, or sole proprietorship as a primary recipient, as a condition to whole; or eligibility for Federal financial assist- (B) Which is principally engaged in ance, and the term application means the business of providing education, such an application, request, or plan. health care, housing, social services, or parks and recreation; or [38 FR 17991, July 5, 1973, as amended at 62 FR 66826, Dec. 22, 1997; 68 FR 51383, Aug. 26, (ii) The entire plant or other com- 2003] parable, geographically separate facility to which Federal financial assist- APPENDIX A TO PART 1110—FEDERAL FI- ance is extended, in the case of any NANCIAL ASSISTANCE TO WHICH THIS other corporation, partnership, private PART APPLIES organization, or sole proprietorship; or (4) Any other entity which is estab- 1. Assistance to groups for projects and lished by two or more of the entities productions in the arts. 2. Surveys, research and planning in the described in paragraph (g)(1), (2), or (3) arts. of this section. 3. Assistance to State arts agencies for (h) The term facility includes all or projects and productions in the arts. any portion of structures, equipment, 4. Support of research in the humanities. or other real or personal property or 5. Support of educational programs in the interests therein, and the provision of humanities, including the training of stu- facilities includes the construction, ex- dents and teachers. pansion, renovation, remodeling, alter- 6. Assistance to promote the interchange of information in the humanities. ation or acquisition of facilities. 7. Assistance to foster public under- (i) The term recipient means any standing and appreciation of the humanities. State, political subdivision of any 8. Support of the publication of scholarly State, or instrumentality of any State works in the humanities.

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PARTS 1116–1147 [RESERVED] in an electronic format may be accessed through the Arts Endow- PART 1148—PROCEDURES FOR DIS- ment’s open government page, available at https://www.arts.gov/open. The CLOSURE OF RECORDS UNDER Arts Endowment will determine which THE FREEDOM OF INFORMATION of its records should be made publicly ACT (FOIA) available, identify additional records of interest to the public that are appro- Sec. priate for public disclosure, and post 1148.1 What is the purpose and scope of and index such records. The Arts En- these regulations? dowment will ensure that its website of 1148.2 How will the Arts Endowment make proactive disclosures? posted records and indices is reviewed 1148.3 How can I make a FOIA request? and updated on an ongoing basis. 1148.4 How will the Arts Endowment respond to my request? § 1148.3 How can I make a FOIA re- 1148.5 When will the Arts Endowment request? spond to my request? (a) General information. To make a re- 1148.6 How will I receive responses to my request for records, a requester should quests? write directly to the Arts Endowment 1148.7 How does the Arts Endowment handle at National Endowment for the Arts, confidential commercial information? 1148.8 How can I appeal a denial of my re- Office of General Counsel, 400 7th St. quest? SW, Second Floor, Washington, DC 1148.9 What are the Arts Endowment poli- 20506. Requests may also be sent by fac- cies regarding preservation of records? simile to the General Counsel’s office 1148.10 How will fees be charged? at (202) 682–5572, or by email to 1148.11 What other rules apply to Arts En- [email protected]. dowment FOIA requests? (b) Identity requirements. Depending AUTHORITY: 5 U.S.C. 552; 28 U.S.C. 1746; 31 on the type of document you ask for, U.S.C. 3717; E.O. 12600, 52 FR 23781, 3 CFR, the Arts Endowment may require 1987 Comp. verification of your identity or the SOURCE: 84 FR 6345, Feb. 27, 2019, unless identity of a third party. otherwise noted. (1) A requester who is making a request for records about himself or her- § 1148.1 What is the purpose and scope self must comply with the Arts Endow- of these regulations? ment’s verification requirements as set This part contains the rules that the forth in § 1159.9 of this chapter. Arts Endowment follows in processing (2) Where a request for records per- requests for records under the Freedom tains to another individual, a requester of Information Act (FOIA), 5 U.S.C. 552. may receive greater access by submit- These rules should be read in conjunc- ting either a notarized authorization tion with the text of the FOIA and the signed by that individual or a declara- Uniform Freedom of Information Fee tion made in compliance with the re- Schedule and Guidelines published by quirements set forth in 28 U.S.C. 1746 the Office of Management and Budget by that individual authorizing disclo- (OMB Guidelines). Requests made by sure of the records to the requester, or individuals for records about them- by submitting proof that the individual selves under the Privacy Act of 1974, 5 is deceased (e.g., a copy of a death cer- U.S.C. 552a, are processed in accord- tificate or an obituary). As an exercise ance with the Arts Endowment’s Pri- of administrative discretion, the Arts vacy Act regulations as well as under Endowment may require a requester to this part. supply additional information if necessary in order to verify that a par- § 1148.2 How will the Arts Endowment ticular individual has consented to dis- make proactive disclosures? closure. Records that the Arts Endowment (c) Description of records sought. Re- makes available for public inspection questers must describe the records

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sought in sufficient detail to enable of the date that it begins its search. If Arts Endowment personnel to locate any other date is used, the Arts Endow- them with a reasonable amount of ef- ment will inform the requester of that fort. To the extent possible, requesters date. A record that is excluded from should include specific information the requirements of the FOIA pursuant that may help the Arts Endowment to 5 U.S.C. 552(c), is not considered re- identify the requested records, such as sponsive to a request. the date, title or name, author, recipi- (b) Authority to grant or deny requests. ent, subject matter of the record, case The Arts Endowment Chairperson or number, file designation, or reference his/her designee is authorized to grant number. Before submitting their re- or to deny any requests for records quests, requesters may contact the that are maintained by the Arts En- Arts Endowment’s designated FOIA dowment. contact or FOIA Public Liaison to dis- (c) Consultation and referral. When re- cuss the records they seek and to reviewing records located by the Arts En- ceive assistance in describing the dowment in response to a request, the records. Contact information for the Arts Endowment will determine wheth- Arts Endowment’s designated FOIA er another agency of the Federal Gov- contact and FOIA Public Liaison is ernment is better able to determine available on the Arts Endowment’s whether the record is exempt from dis- FOIA website (https://www.arts.gov/foia- closure under the FOIA. As to any such contacts), or can be obtained by calling record, the Arts Endowment will pro- (202) 682–54184. If after receiving a re- ceed in one of the following ways: quest, the Arts Endowment determines (1) Consultation. When records origi- that it does not reasonably describe nated with the Arts Endowment, but the records sought, the Arts Endow- contain within them information of in- ment will inform the requester what terest to another agency or other Fed- additional information is needed or eral Government office, the Arts En- why the request is otherwise insuffi- dowment will typically consult with cient. Requesters who are attempting that other entity prior to making a re- to reformulate or modify such a release determination. quest may discuss their request with (2) Referral. (i) When the Arts Endow- the Arts Endowment’s designated FOIA ment believes that a different agency contact or FOIA Public Liaison. If a re- is best able to determine whether to quest does not reasonably describe the disclose the record, the Arts Endow- records sought, the Arts Endowment’s ment typically should refer the respon- response to the request may be de- sibility for responding to the request layed. regarding that record to that agency. (d) Format specifications. Requests Ordinarily, the agency that originated may specify the preferred form or for- the record is presumed to be the best mat (including electronic formats) for agency to make the disclosure deter- the records you seek. The Arts Endow- mination. However, if the Arts Endow- ment will accommodate your request if ment and the originating agency joint- the record is readily reproducible in ly agree that the Arts Endowment is in that form or format. the best position to respond regarding (e) Contact information requirements. the record, then the record may be Requesters must provide contact infor- handled as a consultation. mation, such as their phone number, (ii) Whenever the Arts Endowment email address, and/or mailing address, refers any part of the responsibility for to assist the Arts Endowment in com- responding to a request to another municating with them and providing agency, it will document the referral, released records. maintain a copy of the record that it refers, and notify the requester of the § 1148.4 How will the Arts Endowment referral, informing the requester of the respond to my request? name(s) of the agency to which the (a) In general. In determining which record was referred, including that records are responsive to a request, the agency’s FOIA contact information. Arts Endowment ordinarily will in- (d) Timing of responses to consultations clude only records in its possession as and referrals. The Arts Endowment will

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consider a FOIA request to be a per- tunity to modify the request or ar- fected FOIA request if it complies with range an alternative time period for this section. All consultations and re- processing the original or modified referrals received by the Arts Endow- quest. The Arts Endowment will make ment will be handled in the order of available its designated FOIA contact the date that the first agency received or FOIA Public Liaison for this pur- the perfected FOIA request. pose. The Arts Endowment will also (e) Agreements regarding consultations alert requesters to the availability of and referrals. The Arts Endowment may the Office of Government Information establish agreements with other agen- Services (OGIS) to provide dispute res- cies to eliminate the need for consulta- olution services. tions or referrals with respect to par- (d) Aggregating requests. To satisfy ticular types of records. unusual circumstances under the FOIA, the Arts Endowment may aggre- § 1148.5 When will the Arts Endow- gate requests in cases where it reason- ment respond to my request? ably appears that multiple requests, (a) In general. The Arts Endowment submitted either by a requester or by a ordinarily will respond to requests ac- group of requesters acting in concert, cording to their order of receipt. constitute a single request that would (b) Multitrack processing. The Arts En- otherwise involve unusual cir- dowment will designate a specific cumstances. The Arts Endowment will track for requests that are granted ex- not aggregate multiple requests that pedited processing, in accordance with involve unrelated matters. the standards set forth in paragraph (e) (e) Expedited processing. Consistent of this section. The Arts Endowment with 5 U.S.C. 552(a)(6)(E)(i), the Arts may also designate additional proc- Endowment may grant expedited processing tracks that distinguish between essing under certain circumstances: simple and more complex requests (1) The Arts Endowment will process based on the estimated amount of work requests and appeals on an expedited or time needed to process the request. basis whenever it is determined that Among the factors the Arts Endow- they involve: ment may consider are the number of (i) Circumstances in which the lack records requested, the number of pages of expedited processing could reason- involved in processing the request and ably be expected to pose an imminent the need for consultations or referrals. threat to the life or physical safety of The Arts Endowment will advise re- an individual; or questers of the track into which their (ii) An urgency to inform the public request falls and, when appropriate, about an actual or alleged Federal Gov- will offer the requesters an opportunity ernment activity, if made by a person to narrow or modify their request so who is primarily engaged in dissemi- that it can be placed in a different nating information. processing track. (2) A request for expedited processing (c) Unusual circumstances. Whenever may be made at any time. Requests the Arts Endowment cannot meet the based on paragraphs (e)(1)(i) and (ii) of statutory time limit for processing a this section must be submitted to the request because of ‘‘unusual cir- Arts Endowment’s Office of General cumstances,’’ as defined in the FOIA, Counsel. When making a request for ex- and the Arts Endowment extends the pedited processing of an administrative time limit on that basis, the Arts En- appeal, the request should be sub- dowment will, before expiration of the mitted to the Arts Endowment’s FOIA 20 business day period to respond, no- Appeals Office per § 1148.8(a). tify the requester in writing of the un- (3) A requester who seeks expedited usual circumstances involved and of processing must submit a statement, the date by which the Arts Endowment certified to be true and correct, ex- estimates processing of the request will plaining in detail the basis for making be completed. Where the extension ex- the request for expedited processing. ceeds 10 working days, the Arts Endow- For example, under paragraph (e)(1)(ii) ment will, as described by the FOIA, of this section, a requester who is not provide the requester with an oppor- a full-time member of the news media

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must establish that the requester is a sponses, releasing the records on a roll- person whose primary professional ac- ing basis. tivity or occupation is information dis- (d) Grants of requests. Once the Arts semination, though it need not be the Endowment determines it will grant a requester’s sole occupation. Such a re- request in full or in part, it will notify quester also must establish a par- the requester in writing. The Arts En- ticular urgency to inform the public dowment will also inform the requester about the government activity in- of any fees charged under § 1148.10 and volved in the request—one that extends will disclose the requested records to beyond the public’s right to know the requester promptly upon payment about government activity generally. of any applicable fees. The Arts Endow- The existence of numerous articles ment will inform the requester of the published on a given subject can be availability of its FOIA Public Liaison helpful in establishing the requirement to offer assistance. that there be an ‘‘urgency to inform’’ (e) Adverse determinations of requests. the public on the topic. As a matter of If the Arts Endowment makes an ad- administrative discretion, the Arts En- verse determination denying a request dowment may waive the formal certifi- in any respect, it will notify the re- cation requirement. quester of that determination in writ- (4) The Arts Endowment will notify ing. Adverse determinations, or denials the requester within 10 calendar days of requests, include decisions that: the of the receipt of a request for expedited requested record is exempt, in whole or processing of its decision whether to in part; the request does not reason- grant or deny expedited processing. If ably describe the records sought; the expedited processing is granted, the re- information requested is not a record quest must be given priority, placed in subject to the FOIA; the requested the processing track for expedited re- record does not exist, cannot be lo- quests, and must be processed as soon cated, or has been destroyed; or the reas practicable. If a request for expe- quested record is not readily reproduc- dited processing is denied, the Arts En- ible in the form or format sought by dowment will act on any appeal of that the requester. Adverse determinations decision expeditiously. also include denials involving fees or § 1148.6 How will I receive responses fee waiver matters or denials of re- to my requests? quests for expedited processing. (f) The denial will (a) In general. The Arts Endowment, Content of denial. to the extent practicable, will commu- be signed by the Arts Endowment’s nicate with requesters having access to General Counsel or designee and will the internet electronically, such as include: email or web portal. (1) The name and title or position of (b) Acknowledgments of requests. The the person responsible for the denial; Arts Endowment will acknowledge the (2) A brief statement of the reasons request in writing and assign it an infor the denial, including any FOIA ex- dividualized tracking number if it will emption applied by the Arts Endow- take longer than 10 working days to ment in denying the request; process. The Arts Endowment will in- (3) An estimate of the volume of any clude in the acknowledgment a brief records or information withheld, such description of the records sought to as the number of pages or some other allow requesters to more easily keep reasonable form of estimation, al- track of their requests. though such an estimate is not re- (c) Estimated dates of completion and quired if the volume is otherwise indi- interim responses. Upon request, the cated by deletions marked on records Arts Endowment will provide an esti- that are disclosed in part or if pro- mated date by which the Arts Endow- viding an estimate would harm an in- ment expects to provide a response to terest protected by an applicable ex- the requester. If a request involves a emption; voluminous amount of material, or (4) A statement that: searches in multiple locations, the Arts (i) The denial may be appealed under Endowment may provide interim re- § 1148.8(a);

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(ii) That the requester has 90 days to justification for a longer designation file an appeal in order for it to be con- period. sidered timely, and that the Arts En- (c) When notice to submitters is re- dowment will not process or consider quired. The following rules and proce- appeals that were not filed within 90 dures determine when the Arts Endow- days of the receipt of an adverse deter- ment will provide written notice to mination; and submitters of confidential commercial (iii) A description of the appeal re- information that their information quirements; and may be disclosed under FOIA. (5) A statement notifying the re- (1) The Arts Endowment will prompt- quester of the assistance available ly provide written notice to the sub- from the Arts Endowment’s FOIA Pub- mitter of confidential commercial in- lic Liaison and the dispute resolution formation whenever records containing services offered by OGIS. such information are requested under (g) Use of record exclusions. In the the FOIA if the Arts Endowment deter- event that the Arts Endowment identi- mines that it may be required to dis- fies records that may be subject to ex- close the records, provided: clusion from the requirements of the (i) The requested information has FOIA pursuant to 5 U.S.C. 552(c), the been designated in good faith by the Arts Endowment will confer with De- submitter as information considered protected from disclosure under Ex- partment of Justice, Office of Informa- emption 4; or tion Policy (OIP), to obtain approval to (ii) The Arts Endowment has a rea- apply the exclusion. The Arts Endow- son to believe that the requested infor- ment, when invoking an exclusion will mation may be protected from disclo- maintain an administrative record of sure under Exemption 4, but has not the process of invocation and approval yet determined whether the informa- of the exclusion by OIP. tion is protected from disclosure. § 1148.7 How does the Arts Endowment (2) The notice will either describe the handle confidential commercial in- commercial information requested or formation? include a copy of the requested records or portions of records containing the (a) Definitions. The following defini- information. In cases involving a volu- tions apply to this section. minous number of submitters, the Arts (1) Confidential commercial information Endowment may post or publish a no- means commercial or financial infor- tice in a place or manner reasonably mation obtained by the Arts Endow- likely to inform the submitters of the ment from a submitter that may be proposed disclosure, instead of sending protected from disclosure under Ex- individual notifications. emption 4 of the FOIA, 5 U.S.C. (d) Exceptions to submitter notice re- 552(b)(4). quirements. The notice requirements of (2) Submitter means any person or en- this section do not apply if: tity, including a corporation, State, or (1) The Arts Endowment determines foreign government, but not including that the information is exempt under another Federal Government entity, the FOIA, and therefore will not be dis- that provides confidential commercial closed; information, either directly or indi- (2) The information has been lawfully rectly to the Federal Government. published or has been officially made (b) Designation of confidential commer- available to the public; cial information. A submitter of con- (3) Disclosure of the information is fidential commercial information must required by a statute other than the use good faith efforts to designate by FOIA or by a regulation issued in ac- appropriate markings, at the time of cordance with the requirements of Ex- submission, any portion of its submis- ecutive Order 12600 of June 23, 1987; or sion that it considers to be protected (4) The designation made by the sub- from disclosure under Exemption 4. mitter under paragraph (b) of this sec- These designations expire 10 years tion appears obviously frivolous. In after the date of the submission unless such case, the Arts Endowment will the submitter requests and provides give the submitter written notice of

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any final decision to disclose the infor- compel the disclosure of confidential mation within a reasonable number of commercial information, the Arts En- days prior to a specified disclosure dowment will promptly notify the sub- date. mitter. (e) Opportunity to object to disclosure. (i) Requester notification. The Arts En- A submitter will have the opportunity dowment will notify the requester to object to disclosure of information whenever it provides the submitter under FOIA. with notice and an opportunity to ob- (1) The Arts Endowment will specify ject to disclosure; whenever it notifies a reasonable time period within which the submitter of its intent to disclose the submitter must respond to the no- the requested information; and when- tice referenced in paragraph (c) of this ever a submitter files a lawsuit to pre- section. (2) If a submitter has any objections vent the disclosure of the information. to disclosure, it must provide the Arts § 1148.8 How can I appeal a denial of Endowment a detailed written state- my request? ment that specifies all grounds for withholding the particular information (a) Requirements for making an appeal. under any exemption of the FOIA. In A requester may appeal any adverse de- order to rely on Exemption 4 as basis terminations to the Arts Endowment’s for nondisclosure, the submitter must office designated to receive FOIA ap- explain why the information con- peals (‘‘FOIA Appeals Office’’). Exam- stitutes a trade secret or commercial ples of adverse determinations are pro- or financial information that is con- vided in § 1148.6(e). Requesters can sub- fidential. mit appeals by mail by writing to Arts (3) A submitter who fails to respond Endowment Chairman, c/o Office of within the time period specified in General Counsel, National Endowment paragraph (e)(1) of this section will be for the Arts, 400 7th Street SW, Wash- considered to have no objection to dis- ington, DC 20506, or online in accord- closure of the information. The Arts ance with instructions on the Arts En- Endowment is not required to consider dowment’s website (https:// any information received after the date www.arts.gov/freedom-information-act- of any disclosure decision. Any infor- guide). The requester must make the mation provided by a submitter under appeal in writing and to be considered this part may itself be subject to dis- timely it must be postmarked, or in closure under the FOIA. (f) Analysis of objections. The Arts En- the case of electronic submissions, dowment must consider a submitter’s transmitted, within 90 calendar days objections and specific grounds for non- after the date of the adverse deter- disclosure in deciding whether to dis- mination. The appeal should clearly close the requested information. identify the Arts Endowment’s deter- (g) Notice of intent to disclose. When- mination that is being appealed and ever the Arts Endowment decides to the assigned request number. To facili- disclose information over the objection tate handling, the requester should of a submitter, the Arts Endowment mark both the appeal letter and enve- will provide the submitter written no- lope, or subject line of the electronic tice, which will include: transmission, ‘‘Freedom of Information (1) A statement of the reasons why Act Appeal.’’ each of the submitter’s disclosure ob- (b) Adjudication of appeals. (1) The jections was not sustained; Arts Endowment’s Chairperson or his/ (2) A description of the information her designee will act on behalf of the to be disclosed or copies of the records Arts Endowment’s Chief FOIA Officer as the Arts Endowment intends to re- on all appeals under this section. lease them; and (2) An appeal ordinarily will not be (3) A specified disclosure date, which adjudicated if the request becomes a will be a reasonable time after the no- matter of FOIA litigation. tice. (h) Notice of FOIA lawsuit. Whenever a (c) Decisions on appeals. The Arts En- requester files a lawsuit seeking to dowment will provide its decision on an

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appeal in writing. A decision that up- dispose of or destroy records while they holds the Arts Endowment’s deter- are the subject of a pending request, mination in whole or in part will con- appeal, or lawsuit under the FOIA. tain a statement that identifies the reasons for its decision, including any § 1148.10 How will fees be charged? FOIA exemptions applied. The decision (a) In general. (1) The Arts Endow- will provide the requester with notifi- ment will charge for processing re- cation of the statutory right to file a quests under the FOIA in accordance lawsuit and will inform the requester with the provisions of this section and of the dispute resolution services of- with the OMB Guidelines. For purposes fered by the Office of Government In- of assessing fees, the FOIA establishes formation Services (OGIS) of the Na- three categories of requesters: tional Archives and Records Adminis- (i) Commercial use requesters; tration as a non-exclusive alternative (ii) Non-commercial scientific or edu- to litigation. If the Arts Endowment’s cational institutions or news media re- decision is remanded or modified on ap- questers; and peal, the Arts Endowment will notify (iii) All other requesters. the requester of that determination in (2) Different fees are assessed depend- writing. The Arts Endowment will then ing on the category. Requesters may further process the request in accord- seek a fee waiver. The Arts Endowment ance with that appeal determination will consider requests for fee waiver in and will respond directly to the re- accordance with the requirements in quester. paragraph (k) of this section. To re- (d) Engaging in dispute resolution serv- solve any fee issues that arise under ices provided by OGIS. Dispute resolu- this section, the Arts Endowment may tion is a voluntary process. If the Arts contact a requester for additional in- Endowment agrees to participate in formation. The Arts Endowment will the dispute resolution services pro- ensure that searches, review, and dupli- vided by OGIS, it will actively engage cation are conducted in the most effi- as a partner to the process in an at- cient and the least expensive manner. tempt to resolve the dispute. The Arts Endowment ordinarily will (e) When appeal is required. Before collect all applicable fees before send- seeking review by a court of the Arts ing copies of records to a requester. Re- Endowment’s adverse determination, a questers must pay fees by check or requester generally must first submit a money order made payable to the timely administrative appeal. Treasury of the United States, or by (f) Timing of appeal. After receiving another method as determined by the the Arts Endowment’s adverse deter- Arts Endowment. mination, a requester has 90 calendar (b) Definitions. For purposes of this days to file an appeal in order for it to section: be considered timely. The Arts Endow- (1) Commercial use request is a request ment will not process or consider ap- that asks for information for a use or a peals that were not filed within 90 cal- purpose that furthers a commercial, endar days of the date of an adverse de- trade, or profit interest, which can in- termination. clude furthering those interests through litigation. The Arts Endow- § 1148.9 What are the Arts Endowment ment’s decision to place a requester in policies regarding preservation of the commercial use category will be records? made on a case-by-case basis based on The Arts Endowment will preserve the requester’s intended use of the in- all correspondence pertaining to the re- formation. The Arts Endowment will quests that it receives under this part, notify requesters of their placement in as well as copies of all requested this category. records, until disposition or destruc- (2) Direct costs are those expenses tion is authorized pursuant to title 44 that the Arts Endowment incurs in of the United States Code or the Gen- searching for and duplicating (and, in eral Records Schedule 4.2 of the Na- the case of commercial use requests, tional Archives and Records Adminis- reviewing) records in order to respond tration. The Arts Endowment will not to a FOIA request. For example, direct

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costs include the salary of the em- dustry. A requester in this category ployee performing the work (i.e., the must show that the request is author- basic rate of pay for the employee, plus ized by and is made under the auspices 16 percent of that rate to cover bene- of a qualifying institution and that the fits) and the cost of operating com- records are sought to further scientific puters and other electronic equipment, research and are not for a commercial such as photocopiers and scanners. Di- use. The Arts Endowment will advise rect costs do not include overhead ex- requesters of their placement in this penses such as the costs of space, and category. of heating or lighting a facility. (6) Representative of the news media is (3) Duplication is reproducing a copy any person or entity that gathers in- of a record, or of the information con- formation of potential interest to a tained in it, necessary to respond to a FOIA request. Copies can take the form segment of the public, uses its editorial of paper, audiovisual materials, or skills to turn the raw materials into a electronic records, among others. distinct work, and distributes that (4) Educational institution is any work to an audience. The term ‘‘news’’ school that operates a program of means information that is about cur- scholarly research. A requester in this rent events or that would be of current fee category must show that the re- interest to the public. Examples of quest is made in connection with his or news media entities include television her role at the educational institution. or radio stations that broadcast The Arts Endowment may seek ‘‘news’’ to the public at large and pub- verification from the requester that lishers of periodicals that disseminate the request is in furtherance of schol- ‘‘news’’ and make their products avail- arly research and the Arts Endowment able through a variety of means to the will advise requesters of their place- general public, including news organi- ment in this category. zations that disseminate solely on the (i) Example 1. A request from a pro- internet. A request for records sup- fessor of architecture at a university porting the news-dissemination func- for records relating to Arts Endowment tion of the requester will not be consid- grants related to architecture, written ered to be for a commercial use. on letterhead of the Department of Ge- ‘‘Freelance’’ journalists who dem- ology, would be presumed to be from an onstrate a solid basis for expecting educational institution. publication through a news media enti- (ii) Example 2. A request from the ty will be considered as a representa- same professor of architecture seeking translation grant information from the tive of the news media. A publishing Arts Endowment in furtherance of a contract would provide the clearest murder mystery he is writing would evidence that publication is expected; not be presumed to be an institutional however, the Arts Endowment may request, regardless of whether it was also consider a requester’s past publi- written on institutional stationery. cation record in making this deter- (iii) Example 3. A student who makes mination. The Arts Endowment will a request in furtherance of their advise requesters of their placement in coursework or other school-sponsored this category. activities and provides a copy of a (7) Review is the examination of a course syllabus or other reasonable record located in response to a request documentation to indicate the research in order to determine whether any por- purpose for the request, would qualify tion of it is exempt from disclosure. as part of this fee category. Review time includes processing any (5) Noncommercial scientific institution record for disclosure, such as doing all is an institution that is not operated that is necessary to prepare the record on a ‘‘commercial’’ basis, as defined in for disclosure, including the process of paragraph (b)(1) of this section and redacting the record and marking the that is operated solely for the purpose appropriate exemptions. Review costs of conducting scientific research the are properly charged even if a record results of which are not intended to ultimately is not disclosed. Review promote any particular product or in-

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time also includes time spent both ob- (iii) The Arts Endowment will charge taining and considering any formal ob- the direct costs associated with con- jection to disclosure made by a conducting any search that requires the fidential commercial information sub- creation of a new computer program to mitter under § 1148.7, but it does not in- locate the requested records. The Arts clude time spent resolving general Endowment will notify the requester of legal or policy issues regarding the ap- the costs associated with creating such plication of exemptions. a program, and the requester must (8) Search is the process of looking for agree to pay the associated costs before and retrieving records or information the costs may be incurred. responsive to a request. Search time (iv) For requests that require the re- includes page-by-page or line-by-line trieval of records stored by the Arts identification of information within Endowment at a Federal records center records and the reasonable efforts ex- operated by the National Archives and pended to locate and retrieve informa- Records Administration (NARA), the tion from electronic records. Arts Endowment will charge additional (c) Charging fees. In responding to costs in accordance with the Trans- FOIA requests, the Arts Endowment actional Billing Rate Schedule estab- will charge the following fees unless a lished by NARA. waiver or reduction of fees has been (2) Duplication. The Arts Endowment granted under paragraph (k) of this will charge duplication fees to all re- section. Because the fee amounts pro- questers, subject to the restrictions of vided in paragraphs (c)(1) through (3) of paragraph (d) of this section. The Arts this section already account for the di- Endowment will honor a requester’s rect costs associated with a given fee preference for receiving a record in a type, the Arts Endowment will not add particular form or format where the any additional costs to charges cal- Arts Endowment can readily reproduce culated under this section. it in the form or format requested. (1) Searches. The following fee poli- Where photocopies are supplied, the cies apply to searches: Arts Endowment will provide one copy (i) Requests made by educational in- per request at the cost of $.10 per single stitutions, noncommercial scientific sided page, and $.20 per double sided institutions, or representatives of the page. For copies of records produced on news media are not subject to search tapes, disks, or other media, the Arts fees. The Arts Endowment will charge Endowment will charge the direct costs search fees for all other requesters, of producing the copy, including oper- subject to the restrictions of paragraph ator time. Where paper documents (d) of this section. The Arts Endow- must be scanned in order to comply ment may properly charge for time with a requester’s preference to receive spent searching even if the Arts En- the records in an electronic format, the dowment does not locate any respon- requester must also pay the direct sive records or if the Arts Endowment costs associated with scanning those determines that the records are en- materials. For other forms of duplica- tirely exempt from disclosure. tion, the Arts Endowment will charge (ii) For manual searches, the fee the direct costs. charged will be the salary rate or rates (3) Review. The Arts Endowment will of the employee or employees con- charge review fees to requesters who ducting the search. For computer make commercial use requests. Review searches, the fee charged will be the ac- fees will be assessed in connection with tual direct cost of providing the serv- the initial review of the record, i.e., the ice, including the salary rate or rates review conducted by the Arts Endow- of the operator(s) or programmer(s) ment to determine whether an exemp- conducting the search. The salary rate tion applies to a particular record or is calculated as the particular employ- portion of a record. No charge will be ee’s basic pay plus 16.1 percent. The made for review at the administrative Arts Endowment may charge fees even appeal stage of exemptions applied at if the documents are determined to be the initial review stage. However, if a exempt from disclosure or cannot be particular exemption is deemed to no located. longer apply, any costs associated with

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the Arts Endowment’s re-review of the fees incurred in the processing of the records in order to consider the use of request. other exemptions may be assessed as (5) If a court has determined that ex- review fees. Review fees will be charged ceptional circumstances exist, as de- at the same rates as those charged for fined by the FOIA, a failure to comply a search under paragraph (c)(1)(ii) of with the time limits shall be excused this section. for the length of time provided by the (d) Restrictions on charging fees. The court order. Arts Endowment will adhere to the fol- (6) No search or review fees will be lowing restrictions regarding fees it charged for a quarter-hour period un- charges: less more than half of that period is re- (1) When the Arts Endowment deter- quired for search or review. mines that a requester is an edu- (7) Except for requesters seeking cational institution, non-commercial records for a commercial use, the Arts scientific institution, or representative Endowment will provide without of the news media, and the records are charge: not sought for commercial use, it will (i) The first 100 pages of duplication not charge search fees. (or the cost equivalent for other (2) If the Arts Endowment fails to media); and comply with the FOIA’s time limits in (ii) The first two hours of search. (8) No fee will be charged when the which to respond to a request, it will total fee, after deducting the 100 free not charge search fees, or, in the in- pages (or its cost equivalent) and the stances of requests from requesters de- first two hours of search, is equal to or scribed in paragraph (d)(1) of this sec- less than $25. tion, may not charge duplication fees, (e) Notice of anticipated fees in excess except as described in paragraphs (d)(3) of $25.00. The following procedures through (5) of this section. apply when the Arts Endowment an- (3) If the Arts Endowment has deter- ticipates fees to be in excess of $25.00. mined that unusual circumstances as (1) When the Arts Endowment deter- defined by the FOIA apply and the Arts mines or estimates that the fees to be Endowment provided timely written assessed in accordance with this sec- notice to the requester in accordance tion will exceed $25.00, the Arts Endow- with the FOIA, a failure to comply ment will notify the requester of the with the time limit shall be excused for actual or estimated amount of the fees, an additional 10 working days. including a breakdown of the fees for (4) If the Arts Endowment has deter- search, review or duplication, unless mined that unusual circumstances, as the requester has indicated a willing- defined by the FOIA, apply and more ness to pay fees as high as those antici- than 5,000 pages are necessary to re- pated. If only a portion of the fee can spond to the request, the Arts Endow- be estimated readily, the Arts Endow- ment may charge search fees, or, in the ment will advise the requester accord- case of requesters described in para- ingly. If the request is not for non- graph (d)(1) of this section, may charge commercial use, the notice will specify duplication fees, if the following steps that the requester is entitled to the are taken: statutory entitlements of 100 pages of (i) The Arts Endowment provided duplication at no charge and, if the re- timely written notice of unusual cir- quester is charged search fees, two cumstances to the requester in accord- hours of search time at no charge, and ance with the FOIA; and will advise the requester whether those (ii) The Arts Endowment discussed entitlements have been provided. with the requester via written mail, (2) If the Arts Endowment notifies email, or telephone (or made not less the requester that the actual or esti- than three good-faith attempts to do mated fees are in excess of $25.00, the so) how the requester could effectively request will not be considered received limit the scope of the request in ac- and further work will not be completed cordance with 5. U.S.C. 552(a)(6)(B)(ii). until the requester commits in writing If this exception is satisfied, the Arts to pay the actual or estimated total Endowment may charge all applicable fee, or designates some amount of fees

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the requester is willing to pay, or in Stat. 1749), as amended, and its admin- the case of a noncommercial use re- istrative procedures, including the use quester who has not yet been provided of consumer reporting agencies, collec- with the requester’s statutory entitle- tion agencies, and offset. ments, designates that the requester (h) Aggregating requests. When the seeks only that which can be provided Arts Endowment reasonably believes by the statutory entitlements. The re- that a requester or a group of request- quester must provide the commitment ers acting in concert is attempting to or designation in writing, and must, divide a single request into a series of when applicable, designate an exact requests for the purpose of avoiding dollar amount the requester is willing fees, the Arts Endowment may aggre- to pay. The Arts Endowment is not re- gate those requests and charge accord- quired to accept payments in install- ingly. The Arts Endowment may pre- ments. sume that multiple requests of this (3) If the requester has indicated a type made within a 30 calendar day pe- willingness to pay some designated riod have been made in order to avoid amount of fees, but the Arts Endow- fees. For requests separated by a longer ment estimates that the total fee will period, the Arts Endowment will aggre- exceed that amount, the Arts Endow- gate them only where there is a reason- ment will toll the processing of the re- able basis for determining that aggre- quest when it notifies the requester of gation is warranted in view of all the the estimated fees in excess of the circumstances involved. Multiple re- amount the requester has indicated a quests involving unrelated matters willingness to pay. The Arts Endow- cannot be aggregated. ment will inquire whether the re- (i) Advance payments. The following quester wishes to revise the amount of policies and procedures apply to ad- fees the requester is willing to pay or vanced payments of fees: modify the request. Once the requester (1) For requests other than those de- responds, the time to respond will re- scribed in paragraph (i)(2) or (3) of this sume from where it was at the date of the notification. section, the Arts Endowment will not (4) The Arts Endowment will make require the requester to make an ad- available its FOIA Public Liaison or vance payment before work is com- other designated FOIA contact to as- menced or continued on a request. Pay- sist any requester in reformulating a ment owed for work already completed request to meet the requester’s needs (i.e., payment before copies are sent to at a lower cost. a requester) is not an advance pay- (f) Charges for other services. Although ment. not required to provide special serv- (2) When the Arts Endowment deter- ices, if the Arts Endowment chooses to mines or estimates that a total fee to do so as a matter of administrative dis- be charged under this section will ex- cretion, the direct costs of providing ceed $250.00, it may require that the re- the service will be charged. Examples quester make an advance payment up of such services include certifying that to the amount of the entire anticipated records are true copies, providing mul- fee before beginning to process the re- tiple copies of the same document, or quest. The Arts Endowment may elect sending records by means other than to process the request prior to col- first class mail. lecting fees when it receives a satisfac- (g) Charging interest. The Arts Endow- tory assurance of full payment from a ment may charge interest on any un- requester with a history of prompt pay- paid bill starting on the 31st day fol- ment. lowing the date of billing the re- (3) Where a requester has previously quester. Interest charges will be as- failed to pay a properly charged FOIA sessed at the rate provided in 31 U.S.C. fee to any agency within 30 calendar 3717 and will accrue from the billing days of the billing date, the Arts En- date until payment is received by the dowment may require that the re- Arts Endowment. The Arts Endowment quester pay the full amount due, plus will follow the provisions of the Debt any applicable interest on that prior Collection Act of 1982 (Pub. L. 97–365, 96 request, and the Arts Endowment may

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require that the requester make an ad- cern identifiable operations or activi- vance payment of the full amount of ties of the Federal Government with a any anticipated fee before the Arts En- connection that is direct and clear, not dowment begins to process a new re- remote or attenuated. quest or continues to process a pending (ii) Disclosure of the requested infor- request or any pending appeal. Where mation is likely to contribute signifi- the Arts Endowment has a reasonable cantly to public understanding of those basis to believe that a requester has operations or activities. This factor is misrepresented the requester’s identity satisfied when the following criteria in order to avoid paying outstanding are met: fees, it may require that the requester (A) Disclosure of the requested provide proof of identity. records must be meaningfully inform- (4) In cases in which the Arts Endow- ative about government operations or ment requires advance payment, the activities. The disclosure of informa- request will not be considered received tion that already is in the public do- and further work will not be completed main, in either the same or a substan- until the required payment is received. tially identical form, would not be If the requester does not pay the ad- meaningfully informative if nothing vance payment within 30 calendar days new would be added to the public’s un- after the date of the Arts Endowment’s derstanding. fee determination, the request will be (B) The disclosure must contribute to closed. the understanding of a reasonably (j) Other statutes specifically providing broad audience of persons interested in for fees. The fee schedule of this section the subject, as opposed to the indi- does not apply to fees charged under vidual understanding of the requester. any statute that specifically requires A requester’s expertise in the subject the Arts Endowment to set and collect area as well as the requester’s ability fees for particular types of records. In and intention to effectively convey in- instances where records responsive to a formation to the public must be consid- request are subject to a statutorily- ered. The Arts Endowment will pre- based fee schedule program, the Arts sume that a representative of the news Endowment will inform the requester media will satisfy this consideration. of the contact information for that (iii) The disclosure must not be pri- program. marily in the commercial interest of (k) Requirements for waiver or reduc- the requester. To determine whether tion of fees. The following policies and disclosure of the requested information procedures apply to fee waivers or re- is primarily in the commercial interest ductions of fees. of the requester, the Arts Endowment (1) Requesters may seek a waiver of will consider the following criteria: fees by submitting a written applica- (A) The Arts Endowment will iden- tion demonstrating how disclosure of tify whether the requester has any the requested information is in the commercial interest that would be public interest because it is likely to furthered by the requested disclosure. contribute significantly to public un- A commercial interest includes any derstanding of the operations or activi- commercial, trade, or profit interest. ties of the government and is not pri- Requesters will be given an oppor- marily in the commercial interest of tunity to provide explanatory informa- the requester. tion regarding this consideration. (2) The Arts Endowment will furnish (B) If there is an identified commer- records responsive to a request without cial interest, the Arts Endowment will charge or at a reduced rate when it de- determine whether that is the primary termines, based on all available infor- interest furthered by the request. A mation, that the factors described in waiver or reduction of fees is justified paragraphs (k)(2)(i) through (iii) of this when the requirements of paragraphs section are satisfied: (k)(2)(i) and (ii) of this section are sat- (i) Disclosure of the requested infor- isfied and any commercial interest is mation would shed light on the oper- not the primary interest furthered by ations or activities of the government. the request. The Arts Endowment ordi- The subject of the request must con- narily will presume that when a news

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media requester has satisfied the fac- Subpart C—Basis for Liability tors in paragraphs (k)(2)(i) and (ii) of 1149.8 What kind of conduct results in pro- this section, the request is not pri- gram fraud enforcement? marily in the commercial interest of 1149.9 What civil penalties and assessments the requester. Disclosure to data bro- may I be subjected to? kers or others who merely compile and market government information for di- Subpart D—Procedures Leading to the rect economic return will not be pre- Issuance of a Complaint sumed to primarily serve the public in- 1149.10 How is program fraud investigated? terest. 1149.11 May the investigating official issue (3) Where only some of the records to a subpoena? be released satisfy the requirements for 1149.12 What happens if program fraud is a waiver of fees, a waiver will be grant- suspected? 1149.13 When may the NEA issue a com- ed for those records. plaint? (4) Requests for a waiver or reduction 1149.14 What is contained in a complaint? of fees should be made when the re- 1149.15 How will the complaint be served? quest is first submitted to the Arts En- 1149.16 What constitutes proof of service? dowment and should address the cri- Subpart E—Procedures Following Service teria referenced in paragraphs (k)(1) of a Complaint through (3) of this section. A requester may submit a fee waiver request at a 1149.17 How do you respond to the com- later time so long as the underlying plaint? record request is pending or on admin- 1149.18 May I file a general answer? 1149.19 What happens once an answer is istrative appeal. When a requester who filed? has committed to pay fees subse- 1149.20 What must the notice of hearing in- quently asks for a waiver of those fees clude? and that waiver is denied, the re- 1149.21 When must the ALJ serve the notice quester must pay any costs incurred up of oral hearing? to the date the fee waiver request was 1149.22 What happens if you fail to file an answer? received. 1149.23 May I file a motion to reopen my [84 FR 6345, Feb. 27, 2019; 84 FR 8003, Mar. 6, case? 1149.24 What happens if my motion to re- 2019] open is denied? 1149.25 When, if ever, will time be tolled? § 1148.11 What other rules apply to Arts Endowment FOIA requests? Subpart F—Hearing Procedures Nothing in this part shall be con- 1149.26 What kind of hearing is construed to entitle any person, as of templated? right, to any service or to the disclo- 1149.27 What is the role of the ALJ? sure of any record to which such person 1149.28 What does the ALJ have the author- is not entitled under the FOIA. ity to do? 1149.29 What rights do you have at the hearing? PART 1149—PROGRAM FRAUD 1149.30 How are the functions of the ALJ CIVIL REMEDIES ACT REGULATIONS separated from those of the investigating official and the reviewing official? Subpart A—Purpose and Definitions 1149.31 Can the reviewing official or the ALJ be disqualified? Sec. 1149.32 Do you have a right to review docu- 1149.1 Purpose. ments? 1149.33 What type of discovery is authorized 1149.2 Definitions. and how is it conducted? 1149.34 How are motions for discovery han- Subpart B—Claims and Statements dled? 1149.3 What is a claim? 1149.35 When may an ALJ grant a motion for discovery? 1149.4 When is a claim made? 1149.36 How are depositions handled? 1149.5 What is a false claim? 1149.37 Are witness lists and exhibits ex- 1149.6 What is a statement? changed before the hearing? 1149.7 What is a false statement? 1149.38 Can witnesses be subpoenaed?

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1149.39 Who pays the costs for a subpoena? SOURCE: 79 FR 67081, Nov. 12, 2014, unless 1149.40 When may I file a motion to quash a otherwise noted. subpoena? 1149.41 Are protective orders available? 1149.42 What does a protective order pro- Subpart A—Purpose and tect? Definitions 1149.43 How are documents filed and served with the ALJ? § 1149.1 Purpose. 1149.44 What must documents filed with the This part implements the Program ALJ include? Fraud Civil Remedies Act of 1986, 31 1149.45 How is time computed? 1149.46 Where is the hearing held? U.S.C. 3801–3812 (PFCRA). The PFCRA 1149.47 How will the hearing be conducted? provides the NEA, and other Federal 1149.48 Who has the burden of proof? agencies, with an administrative rem- 1149.49 How is evidence presented at the edy to impose civil penalties and as- hearing? sessments against you if you make or 1149.50 How is witness testimony presented? cause to be made false, fictitious, or 1149.51 How can I exclude a witness? fraudulent claims or written state- 1149.52 Will the hearing proceedings be re- ments to the NEA. The PFCRA also corded? provides due process protections to you 1149.53 Are ex parte communications between a party and the ALJ permitted? if you are subject to administrative 1149.54 Are there sanctions for misconduct? proceedings under this part. 1149.55 What happens if I fail to comply with an order? § 1149.2 Definitions. 1149.56 Are post-hearing briefs required? For the purposes of this part— Subpart G—Decisions and Appeals Authority means the National Endow- ment for the Arts. 1149.57 How is the case decided? Authority Head means the Chair- 1149.58 When will the ALJ serve the initial person/head of the National Endow- decision? ment for the Arts or the Chairperson/ 1149.59 How are penalty and assessment authority head/s designee. amounts determined? 1149.60 What factors are considered in deter- Benefit means anything of value, in- mining the amount of penalties and as- cluding but not limited to, any advan- sessments to impose? tage, preference, privilege, license, per- 1149.61 Can a party request reconsideration mit, favorable decision, ruling, status, of the initial decision? or loan guarantee. 1149.62 When does the initial decision of the Defendant means any person alleged ALJ become final? in a complaint to be liable for a civil 1149.63 What are the procedures for appealing the ALJ decision? penalty or assessment pursuant to the 1149.64 What happens if an initial decision is PFCRA. appealed? Government means the United States 1149.65 Are there any limitations on the Government. right to appeal to the authority head? Group of related claims submitted at the 1149.66 How does the authority head dispose same time means only those claims aris- of an appeal? ing from the same transaction (such as 1149.67 Who represents the NEA on an appeal? a grant, loan, application, or contract) 1149.68 What judicial review is available? which are submitted together as part 1149.69 Can the administrative complaint be of a single request, demand, or submis- settled voluntarily? sion. 1149.70 How are civil penalties and assess- Initial decision means the written de- ments collected? cision of the Administrative Law Judge 1149.71 Is there a right to administrative (ALJ), and includes a revised initial de- offset? cision issued following a remand or a 1149.72 What happens to collections? 1149.73 What if the investigation indicates motion for reconsideration. criminal misconduct or a violation of the Investigating official means: False Claims Act? (1) The NEA Inspector General; or 1149.74 How does the NEA protect your (2) A designee of the NEA Inspector rights? General. AUTHORITY: 5 U.S.C. App. 8G(a)(2); 20 U.S.C. Knows or has reason to know means 959; 28 U.S.C. 2461 note; 31 U.S.C. 3801–3812. that a person:

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(1) Has actual knowledge that the (ii) Will reimburse such recipient or claim or statement is false, fictitious, party for any portion of the money or fraudulent; or paid on such request or demand; or (2) Acts in deliberate ignorance of the (4) Made to the NEA which has the truth or falsity of the claim or state- effect of decreasing an obligation to ment; or pay or account for property, services, (3) Acts in reckless disregard of the or money. truth or falsity of the claim or state- (b) A claim can relate to grants, ment. loans, insurance, or other benefits, and Makes, whenever it appears, must in- includes the NEA guaranteed loans clude the terms presents, submits, and made by participating lenders. causes to be made, presented, or sub- (c) Each voucher, invoice, claim mitted. As the context requires, making form, or individual request or demand or made must likewise include the cor- for property, services, or money con- responding forms of such terms. stitutes a separate claim. Person means any individual, partnership, corporation, association, or § 1149.4 When is a claim made? private organization, and includes the A claim is made to the NEA, when plural of that term. such claim is actually made to: Representative means an attorney who (a) An agent, fiscal intermediary, or is in good standing of the bar of any other person or entity, including any State, Territory, or possession of the State or political subdivision of a United States, or of the District of Co- State, acting for or on behalf of the lumbia, or the Commonwealth of Puer- NEA; or to Rico, or any other individual des- (b) A recipient of property, services, ignated in writing by you. or money from the Government, or the Reviewing official means the General party to a contract with the NEA. Counsel of the NEA or the General § 1149.5 What is a false claim? Counsel’s designee. (a) A claim submitted to the NEA is Subpart B—Claims and ‘‘false’’ if it: (1) Is false, fictitious or fraudulent; Statements (2) Includes or is supported by a written statement which asserts or con- § 1149.3 What is a claim? tains a material fact which is false, fic- (a) Claim means any request, de- titious, or fraudulent; mand, or submission: (3) Includes or is supported by a writ- (1) Made to the NEA for property, ten statement which is false, fictitious services, or money (including money or fraudulent because it omits a mate- representing grants, loans, insurance rial fact that you have a duty to in- or benefits); clude in the statement; or (2) Made to a recipient of property or (4) Is for payment for the provision of services from the NEA, or to a party to property or services which you have a contract with the NEA for property not provided as claimed. or services if the United States: (b) [Reserved] (i) Provided such property or services; § 1149.6 What is a statement? (ii) Provided any portion of the funds (a) A statement means any written for the purchase of such property or representation, certification, affirma- services; or tion, document, record, or accounting (iii) Will reimburse such recipient or or bookkeeping entry made with re- party for the purchase of such property spect to a claim (including relating to or services; eligibility to make a claim) or to ob- (3) Made to the NEA for the payment tain the approval or payment of a of money (including money rep- claim (including relating to eligibility resenting grants, loans, insurance, or to make a claim); or with respect to benefits) if the United States: (including relating to eligibility for) a (i) Provided any portion of the money contract, bid or proposal for a contract requested or demanded; or with the NEA, or a grant, loan or other

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benefit from the NEA, including appli- (1) A civil penalty of not more than cations and proposals for such grants, $11,664 for each false, fictitious or loans, or other benefits, if the United fraudulent statement or claim; and States Government provides any por- (2) If the NEA has made any pay- tion of the money or property under ment, transferred property, or provided such contract or for such grant, loan or services in reliance on a false claim, benefit, or if the Government will re- you are also subject to an assessment imburse any party for any portion of of not more than twice the amount of the money or property under such con- the false claim. This assessment is in tract or for such grant, loan, or ben- lieu of damages sustained by the NEA efit. because of the false claim. (b) A statement is made, presented, (b) Each false, fictitious, or fraudu- or submitted to the NEA when such lent claim for property, services, or statement is actually made to an money is subject to a civil penalty re- agent, fiscal intermediary, or other gardless of whether such property, person or entity acting for or on behalf services, or money is actually delivered of the NEA, including any State or po- or paid. litical subdivision of a State, acting for (c) No proof of specific intent to de- or on behalf of the NEA; or the recipi- fraud is required to establish liability ent of property, services, or money under this section for either false from the Government; or the party to a claims or false statements. contract with the NEA. (d) [Reserved] (e) In any case in which it is deter- § 1149.7 What is a false statement? mined that more than one person is lia- (a) A statement submitted to the ble for making a false, fictitious, or NEA is a false statement if you make fraudulent claim or statement under the statement, or cause the statement this section, each such person may be to be made, while knowing or having held liable for a civil penalty and as- reason to know that the statement: sessment under this section. (1) Asserts a material fact that is (f) In any case in which it is deter- false, fictitious, or fraudulent; or mined that more than one person is lia- (2) Is false, fictitious, or fraudulent ble for making a claim under this sec- because it omits a material fact that tion on which the Government has you have a duty to include in the state- made payment (including transferred ment and contains or is accompanied property or provided services), an as- by an express certification or affirma- sessment may be imposed against any tion of the truthfulness and accuracy such person or jointly and severally of the contents of the statement. against any combination of persons. (b) Each written representation, cer- [79 FR 67081, Nov. 12, 2014, as amended at 84 tification, or affirmation constitutes a FR 1404, Feb. 4, 2019; 85 FR 1760, Jan. 13, 2020] separate statement. Subpart D—Procedures Leading to Subpart C—Basis for Liability the Issuance of a Complaint

§ 1149.8 What kind of conduct results § 1149.10 How is program fraud inves- in program fraud enforcement? tigated? If you make false claims or false The Inspector General, or his/her des- statements, you may be subject to civil ignee, is the investigating official re- penalties and assessments under the sponsible for investigating allegations PFCRA. that you have made a false claim or statement. § 1149.9 What civil penalties and assessments may I be subjected to? § 1149.11 May the investigating official (a) In addition to any other penalties issue a subpoena? that may be prescribed by law, the (a) Yes. The Inspector General has PFCRA may subject you to the fol- authority to issue administrative sub- lowing: poenas for the production of records

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and documents. If an investigating offi- (3) The evidence that supports liabil- cial concludes that a subpoena is war- ity; ranted, he/she may issue a subpoena. (4) An estimate of the amount of (1) The issued subpoena must notify money or the value of property, serv- you of the authority under which it is ices, or other benefits requested or de- issued and must identify the records or manded in the false claim or state- documents sought; ment; (2) The investigating official may (5) Any exculpatory or mitigating designate a person to act on his or her circumstances that may relate to the behalf to receive the documents claims or statements known by the re- sought; and viewing official or the investigating of- (3) You are required to tender to the ficial; and investigating official, or the person (6) A statement that there is a rea- designated to receive the documents, a sonable prospect of collecting an ap- certification that: propriate amount of penalties and as- (i) The documents sought have been sessments. produced; (c) If, at any time, the Attorney Gen- (ii) Such documents are not available eral or his or her designee requests in and the reasons therefore; or writing that this administrative proc- (iii) Such documents, suitably identi- ess be stayed, the authority head must fied, have been withheld based upon the stay the process immediately. The au- assertion of an identified privilege. thority head may order the process re- (b) Nothing in this section precludes sumed only upon receipt of the written or limits an investigating official’s dis- authorization of the Attorney General. cretion to refer allegations within the Department of Justice for suit under § 1149.13 When may the NEA issue a the False Claims Act or other civil re- complaint? lief, or to defer or postpone a report or The NEA may issue a complaint: referral to the reviewing official to (a) If the Attorney General, or his/her avoid interference with a criminal in- designee, approves the referral of the vestigation or prosecution. allegations for adjudication in a writ- (c) Nothing in this section modifies ten statement; and any responsibility of an investigating (b) In a case of submission of false official to report violations of criminal claims, if the amount of money or the law to the appropriate component of value of property or services demanded the Department of Justice. or requested in a false claim, or a group of related claims submitted at § 1149.12 What happens if program the same time, does not exceed $150,000. fraud is suspected? (a) If the investigating official con- § 1149.14 What is contained in a com- cludes that an action under this part is plaint? warranted, the investigating official (a) A complaint is a written statement submits a report containing the find- giving you notice of the specific allega- ings and conclusions of the investigations being referred for adjudication tion to the reviewing official. and of your right to request a hearing (b) If the reviewing official deter- regarding those allegations. mines that the report provides ade- (b) The reviewing official may join in quate evidence that you have made a a single complaint, false claims or false, fictitious or fraudulent claim or statements that are unrelated, or that statement, the reviewing official shall were not submitted simultaneously, so transmit to the Attorney General writ- long as each claim made does not exten notice of an intention to refer the ceed the amount provided in 31 U.S.C. matter for adjudication, with a request 3803(c). for approval of such referral. This no- (c) The complaint must state that tice will include the reviewing offi- the NEA seeks to impose civil pen- cial’s statements concerning: alties, assessments, or both, against (1) The reasons for the referral; you and will include: (2) The claims or statements upon (1) The allegations of liability which liability would be based; against you, including the statutory

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basis for liability, identification of the with a copy of this part and 31 U.S.C. claims or statements involved, and the 3801–3812. reasons liability allegedly arises from such claims or statements; Subpart E—Procedures Following (2) The maximum amount of penalties and assessments for which you Service of a Complaint may be held liable; § 1149.17 How do you respond to the (3) A statement that you may request complaint? a hearing by filing an answer and may be represented by a representative; (a) You may respond to the com- (4) Instructions for filing such an an- plaint by filing an answer with the re- swer; and viewing official within 30 days of serv- (5) A warning that failure to file an ice of the complaint. A timely answer answer within 30 days of service of the will be considered a request for an oral complaint will result in imposition of hearing. the maximum amount of penalties and (b) In the answer, you— assessments. (1) Must admit or deny each of the al- (d) The reviewing official must serve legations of liability contained in the you with any complaint and, if you re- complaint (a failure to deny an allega- quest a hearing, provide a copy to the tion is considered an admission); ALJ assigned to the case. (2) Must state any defense on which § 1149.15 How will the complaint be you intend to rely; served? (3) May state any reasons why you believe the penalties, assessments, or (a) The complaint must be served on you as an individual directly, on a both should be less than the statutory partnership through a general partner, maximum; and and on corporations or on unincor- (4) Must state the name, address, and porated associations through an execu- telephone number of the person author- tive officer or a director. Service may ized by you to act as your representa- also be made on any person authorized tive, if any. by appointment or by law to receive process for you or a legal entity. § 1149.18 May I file a general answer? (b) The complaint may be served ei- (a) If you are unable to file a timely ther by: answer which meets the requirements (1) Registered or certified mail; or set forth in § 1149.17(b), you may file (2) Personal delivery by anyone 18 with the reviewing official a general years of age or older. answer denying liability, requesting a (c) The date of service is the date of hearing, and requesting an extension of personal delivery or, in the case of time in which to file a complete an- service by registered or certified mail, swer. A general answer must be filed the date of postmark. within 30 days of service of the com- § 1149.16 What constitutes proof of plaint. service? (b) If you file a general answer re- (a) Proof of service is established by questing an extension of time, the re- the following: viewing official must promptly file (1) When service is made by reg- with the ALJ the complaint, the gen- istered or certified mail, the return eral answer, and the request for an ex- postal receipt will serve as proof of tension of time. service. (c) For good cause shown, the ALJ (2) When service is made by personal may grant you up to 30 additional days delivery, an affidavit of the individual within which to file an answer meeting serving the complaint, or written ac- the requirements of paragraph (b) of knowledgment of your receipt or of re- this section. You must file the answer ceipt by a representative, will serve as with the ALJ and serve a copy on the proof of service. reviewing official. (b) When served with the complaint, the serving party must also serve you

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§ 1149.19 What happens once an an- (d) Except as otherwise provided in swer is filed? this section, when you fail to file a (a) When the reviewing official re- timely answer, you waive any right to ceives an answer, he/she must simulta- further review of the penalties and as- neously file the complaint, the answer, sessments imposed in the initial deci- and a designation of the NEA’s rep- sion. This initial decision will become resentative with the ALJ. final and binding 30 days after it is (b) When the ALJ receives the com- issued. plaint and the answer, he/she will § 1149.23 May I file a motion to reopen promptly serve a notice of hearing my case? upon you and the NEA representative, in the same manner as the complaint. (a) You may file a motion with the At the same time, the ALJ must send ALJ asking him/her to reopen the case a copy of such notice to the reviewing at any time before an initial decision official or his designee. becomes final. The ALJ may only reopen a case if, in this motion, he/she § 1149.20 What must the notice of hear- determines that you set forth extraor- ing include? dinary circumstances that prevented you from filing a timely answer. The The notice must include: initial decision will be stayed until the (a) The tentative time, place, and na- ALJ makes a decision on your motion ture of the hearing; to reopen. The reviewing official may (b) The legal authority and jurisdic- respond to the motion. tion under which the hearing is being (b) If the ALJ determines that you held; have demonstrated extraordinary cir- (c) The matters of fact and law to be cumstances excusing your failure to asserted; file a timely answer, the ALJ will (d) A description of the procedures withdraw the initial decision and grant for the conduct of the hearing; you an opportunity to answer the com- (e) The name, address, and telephone plaint. number of your representative and the (c) A decision by the ALJ to deny NEA’s representative; and your motion to reopen a case is not (f) Such other matters as the ALJ subject to review or reconsideration. deems appropriate. § 1149.24 What happens if my motion § 1149.21 When must the ALJ serve the to reopen is denied? notice of oral hearing? (a) You may appeal the decision de- Unless the parties agree otherwise, nying a motion to reopen to the au- the ALJ must serve the notice of oral thority head by filing a notice of ap- hearing within six years of the date on peal with the authority head within 15 which the claim or statement is made. days after the ALJ denies the motion. The timely filing of a notice of appeal § 1149.22 What happens if you fail to must stay the initial decision until the file an answer? authority head decides the issue. (a) If you do not file any answer (b) If you file a timely notice of ap- within 30 days after service of the com- peal with the authority head, the ALJ plaint, the reviewing official may refer must forward the record of the pro- the complaint to the ALJ. ceeding to the authority head. (b) Once the complaint is referred, (c) The authority head must decide the ALJ will promptly serve on you a promptly, based solely on the record notice that he/she will issue an initial previously before the ALJ, whether ex- decision. traordinary circumstances excuse your (c) The ALJ will assume the facts al- failure to file a timely answer. leged in the complaint are true. If such (d) If the authority head decides that facts establish liability under the stat- extraordinary circumstances excused ute, the ALJ will issue an initial deci- your failure to file a timely answer, sion imposing the maximum amount of the authority head must remand the penalties and assessments allowed case to the ALJ with instructions to under the PFCRA. grant you an opportunity to answer.

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(e) If the authority head decides that (1) Set and change the date, time, your failure to file a timely answer is and place of the hearing upon reason- not excused, the authority head must able notice to the parties; reinstate the initial decision of the (2) Continue or recess the hearing, in ALJ, which becomes final and binding whole or in part, for a reasonable pe- upon the parties 30 days after the au- riod of time; thority head issues such a decision. (3) Hold conferences to identify or simplify the issues or to consider other § 1149.25 When, if ever, will time be matters that may aid in the expedi- tolled? tious disposition of the proceeding; Time will be tolled in the following (4) Administer oaths and affirma- instances: tions; (a) If you are granted a 30 day exten- (5) Issue subpoenas requiring the at- sion to file your answer, the 30 days tendance of witnesses and the produc- will be tolled to the six year oral hear- tion of documents at depositions or at ing limitation thereby providing the hearings; ALJ six years and 30 days to serve the (6) Rule on motions and other proce- notice of oral hearing as discussed in dural matters; § 1149.18(c); (7) Regulate the scope and timing of (b) If a notice of appeal is filed as dis- discovery; cussed in § 1149.24(a); (8) Regulate the course of the hearing (c) If a motion is filed to disqualify a and the conduct of representatives and reviewing official or an ALJ disquali- parties; fies himself/herself as discussed in (9) Examine witnesses; § 1149.31(c); or (10) Receive, rule on, exclude, or (d) In any other instance in which limit evidence; time is suspended or delayed as a result (11) Upon motion of a party, take of- of an appeal, request for reconsider- ficial notice of facts; ation, untimely filing, or extensions. (12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed Subpart F—Hearing Procedures issue of material fact; (13) Conduct any conference, argu- § 1149.26 What kind of hearing is contemplated? ment or hearing on motions in person or by telephone; and The hearing is a formal proceeding (14) Exercise such other authority as conducted by the ALJ during which is necessary to carry out the respon- you will have the opportunity to dis- sibilities of the ALJ under this part. pute liability, present testimony, and (b) The ALJ does not have the au- cross-examine witnesses. thority to find Federal statutes or regulations invalid. § 1149.27 What is the role of the ALJ? (a) An ALJ, who will be retained by § 1149.29 What rights do you have at the NEA, serves as the presiding officer the hearing? at all hearings. ALJs are selected by Each party to the hearing has the the Office of Personnel Management. right to: The ALJ is assigned to cases in rota- (a) Be represented by a representation so far as practicable, and may not tive; perform duties inconsistent with their (b) Request a pre-hearing conference duties and responsibilities as adminis- and participate in any conference held trative law judges. by the ALJ; (b) The ALJ must conduct a fair and (c) Conduct discovery; impartial hearing, avoid delay, main- (d) Agree to stipulations of fact or tain order, and assure that a record of law which will be made a part of the the proceeding is made. record; (e) Present evidence relevant to the § 1149.28 What does the ALJ have the issues at the hearing; authority to do? (f) Present and cross-examine wit- (a) The ALJ has the authority to— nesses;

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(g) Present arguments at the hearing However, if the ALJ denies a motion to as permitted by the ALJ; and disqualify, the matter will be deter- (h) Submit written briefs and pro- mined by the authority head only dur- posed findings of fact and conclusions ing his/her review of the initial deci- of law after the hearing, as permitted sion on appeal. by the ALJ. § 1149.32 Do you have a right to review § 1149.30 How are the functions of the documents? ALJ separated from those of the investigating official and the review- (a) Yes. Once the ALJ issues a hearing official? ing notice, and upon written request to (a) The investigating official, the re- the reviewing official, you may: viewing official, and any employee or (1) Review any relevant and material agent of the authority who takes part documents, transcripts, records, and in investigating, preparing, or pre- other materials that relate to the alle- senting a particular case may not, in gations set out in the complaint and such case or a factually related case: upon which the findings and conclu- (1) Participate in the hearing as the sions of the investigating official are ALJ; based, unless such documents are sub- (2) Participate or advise in the review ject to a privilege under Federal law. of the initial decision by the authority Upon payment of fees for duplication, head; or you may obtain copies of such docu- (3) Make the collection of penalties ments; and and assessment. (2) Obtain a copy of all exculpatory (b) The ALJ must not be responsible information in the possession of the re- to or subject to the supervision or di- viewing official or investigating offi- rection of the investigating official or cial relating to the allegations in the the reviewing official. complaint. You may obtain excul- § 1149.31 Can the reviewing official or patory information even if it is con- the ALJ be disqualified? tained in a document that would otherwise be privileged. If the document (a) A reviewing official or an ALJ may disqualify himself or herself at would otherwise be privileged, only any time. that portion containing exculpatory in- (b) Upon motion of any party, the re- formation must be disclosed. viewing official or ALJ may be dis- (b) The notice sent to the Attorney qualified as follows: General from the reviewing official is (1) The motion must be supported by not discoverable under any cir- an affidavit containing specific facts cumstances. establishing that personal bias or other (c) If the reviewing official does not reason for disqualification exists, in- respond to your request within 20 days, cluding the time and circumstances of you may file a motion to compel dis- the discovery of such facts; closure of the documents with the ALJ (2) The motion must be filed prompt- subject to the provisions of this sec- ly after discovery of the grounds for tion. Such a motion may only be filed disqualification or the objection will be with the ALJ following the filing of an deemed waived; and answer. (3) The party, or representative of record, must certify in writing that the § 1149.33 What type of discovery is au- motion is made in good faith. thorized and how is it conducted? (c) Once a motion has been filed to (a) The following types of discovery disqualify the reviewing official or the are authorized: ALJ, the ALJ will halt the proceedings until resolving the matter of disquali- (1) Requests for production of docu- fication. If the ALJ determines that ments for inspection and copying; the reviewing official is disqualified, (2) Requests for admissions of the au- the ALJ will dismiss the complaint thenticity of any relevant document or without prejudice. If the ALJ disquali- of the truth of any relevant fact; fies himself/herself, the case will be (3) Written interrogatories; and promptly reassigned to another ALJ. (4) Depositions.

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(b) For the purpose of this section, (2) The party seeking to depose must the term documents includes informa- serve the subpoena in the manner pre- tion, documents, reports, answers, scribed by § 1149.12. records, accounts, papers, electronic (3) The deponent may file with the data and other data and documentary ALJ a motion to quash the subpoena or evidence. Nothing contained herein a motion for a protective order within must be interpreted to require the cre- 10 days of service. ation of a document. (4) The party seeking to depose must (c) Unless mutually agreed to by the provide for the taking of a verbatim parties, discovery is available only as transcript of the deposition, which it ordered by the ALJ. The ALJ must reg- must make available to all other par- ulate the timing of discovery. ties for inspection and copying. (b) Each party must bear its own § 1149.34 How are motions for dis- costs of discovery. covery handled? Motions for discovery must be han- § 1149.37 Are witness lists and exhibits exchanged before the hearing? dled according to the following: (a) A party seeking discovery may (a) The parties must exchange wit- file a motion with the ALJ. Such a mo- ness lists and copies of proposed hear- tion must be accompanied by a copy of ing exhibits at least 15 days before the the requested discovery, or in the case hearing or at such other time as or- of depositions, a summary of the scope dered by the ALJ. This includes copies of the proposed deposition. of any written statements or tran- (b) Within 10 days of service, a party scripts of deposition testimony that may file an opposition to the motion each party intends to offer in lieu of and/or a motion for protective order. live testimony. (b) If a party objects, the ALJ will § 1149.35 When may an ALJ grant a not admit into evidence the testimony motion for discovery? of any witness whose name does not appear on the witness list or any exhibit (a) The ALJ may grant a motion for not provided to an opposing party in discovery only if he/she finds that the advance unless the ALJ finds good discovery sought— cause for the omission or concludes (1) Is necessary for the expeditious, that there is no prejudice to the object- fair, and reasonable consideration of ing party. the issues; (c) Documents exchanged in accord- (2) Is not unduly costly or burden- ance with this section are deemed to be some; authentic for the purpose of admissi- (3) Will not unduly delay the pro- bility at the hearing unless a party ob- ceeding; and jects within the time set by the ALJ. (4) Does not seek privileged information. § 1149.38 Can witnesses be subpoe- (b) The burden of showing that dis- naed? covery should be allowed is on the (a) A party wishing to procure the party seeking discovery. appearance and testimony of any indi- (c) The ALJ may grant discovery vidual at the hearing may request that subject to a protective order. the ALJ issue a subpoena. (b) A subpoena requiring the attend- § 1149.36 How are depositions han- ance and testimony of an individual dled? may also require the individual to (a) Depositions are to be handled in produce documents at the hearing. the following manner: (c) A party seeking a subpoena must (1) If a motion for deposition is file a written request not less than 15 granted, the ALJ must issue a sub- days before the date of the hearing un- poena for the deponent, which may re- less otherwise allowed by the ALJ upon quire the deponent to produce docu- a showing of good cause. Such request ments. The subpoena must specify the must specify any documents to be pro- time and place at which the deposition duced, must designate the witnesses, will be held. and describe the address and location

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of the desired witness with sufficient (b) That the discovery may be had particularity to permit such witnesses only under specified terms and condi- to be found. tions, including a designation of the (d) The subpoena must specify the time or place; time and place at which the witness is (c) That the discovery may be had to appear and any documents the wit- only through a different method of dis- ness is to produce. covery than requested; (e) The party seeking the subpoena (d) That certain matters are not in- must serve it in the manner prescribed quired into, or that the scope of dis- in § 1149.11. A subpoena on a party or covery is limited to certain matters; upon an individual under the control of (e) That only those persons des- a party may be served by first class ignated by the ALJ may be present mail. during discovery; (f) That the contents of the discovery § 1149.39 Who pays the costs for a sub- or evidence are sealed; poena? (g) That a sealed deposition is opened The party requesting a subpoena only by order of the ALJ; must pay the cost of the fees and mile- (h) That a trade secret or other con- age of any witness subpoenaed in the fidential research, development, com- amounts that would be payable to a mercial information, or facts per- witness in a proceeding in United taining to any criminal investigation, States District Court. A check for wit- proceeding, or other administrative in- ness fees and mileage must accompany vestigation not be disclosed or be dis- the subpoena when served, except that closed only in a designated way; or when a subpoena is issued on behalf of (i) That the parties simultaneously the NEA, a check for witness fees and file specified documents or information mileage need not accompany the sub- enclosed in sealed envelopes to be poena. opened as directed by the ALJ.

§ 1149.40 When may I file a motion to § 1149.43 How are documents filed and quash a subpoena? served with the ALJ? A party, entity or the person to (a) Documents are considered filed whom the subpoena is directed, may when they are mailed. The date of file with the ALJ a motion to quash mailing may be established by a cer- the subpoena: tificate from the party or his/her rep- (a) Within 10 days after service; or resentative, or by proof that the docu- (b) On or before the time specified in ment was sent by certified or reg- the subpoena for compliance if it is less istered mail. than 10 days after service. (b) A party filing a document with the ALJ must, at the time of filing, § 1149.41 Are protective orders avail- serve a copy of such document on every able? other party. When a party is rep- A party or prospective witness or de- resented by a representative, the par- ponent may file a motion for a protec- ty’s representative must be served in tive order with respect to discovery lieu of the party. sought by an opposing party or with re- (c) A certificate of the individual spect to the hearing, seeking to limit serving the document by personal de- the availability of an individual or dis- livery or mail and setting forth the closure of evidence. manner of service will be proof of service. § 1149.42 What does a protective order (d) Service upon any party of any protect? document other than the complaint In issuing a protective order, the must be made by delivering a copy or ALJ may make any order which justice by placing a copy in the United States requires to protect a party or person mail, postage prepaid and addressed to from annoyance, embarrassment, op- the party’s last known address. pression, or undue burden or expense, (e) If a party consents in writing, including one or more of the following: documents may be sent electronically. (a) That the discovery not be had; In this instance, service is complete

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upon transmission unless the serving (b) In which you reside or transact party receives electronic notification business; or that transmission of the communica- (c) In which the claim or statement tion was not completed. on which liability is based was made to the NEA; or § 1149.44 What must documents filed (d) In such other place as agreed upon with the ALJ include? by you and the ALJ. (a) Documents filed with the ALJ must include: § 1149.47 How will the hearing be con- (1) An original; and ducted? (2) Two copies. (a) The ALJ conducts a hearing on (b) Every document filed in the pro- the record in order: ceeding must contain: (1) A title, for example, ‘‘motion to (1) To determine whether you are lia- quash subpoena’’; ble for a civil penalty, assessment, or (2) A caption setting forth the title of both; and the action; and (2) If so, to determine the appropriate (3) The case number assigned by the amount of the penalty and/or assess- ALJ. ment, considering any aggravating or (c) Every document must be signed mitigating factors. by the filer, or his/her representative, (b) The hearing will be recorded and and contain the address or telephone transcribed, and the transcript of testi- number of that person. mony, exhibits admitted at the hearing, and all papers filed in the pro- § 1149.45 How is time computed? ceeding constitute the record for a de- (a) In computing any period of time cision by the ALJ. under this part or in an order issued (c) The hearing will be open to the under it, the time begins with the day public unless otherwise ordered by the following the act, event, or default, and ALJ for good cause shown. includes the last day of the period, unless it is a Saturday, Sunday, or legal § 1149.48 Who has the burden of proof? holiday observed by the Federal gov- (a) The NEA must prove your liabil- ernment, in which event it includes the ity and any aggravating factors by a next business day. preponderance of the evidence. (1) Time calculating example. If the (b) You must prove any affirmative ALJ denies your motion for an appeal defenses and any mitigating factors by on Wednesday, December 10th you have a preponderance of the evidence. 15 days to file the notice of appeal. Since the 15th day falls on Christmas, § 1149.49 How is evidence presented at a legal holiday observed by the Federal the hearing? government, the deadline will be the next business day, Friday, December (a) The ALJ determines the admissi- 26th. bility of evidence. (2) [Reserved] (b) Except as provided in this part, (b) When the period of time allowed the ALJ is not bound by the Federal is less than seven days, intermediate Rules of Evidence. However, the ALJ Saturdays, Sundays, and legal holidays may choose to apply the Federal Rules observed by the Federal government of Evidence where he/she deems appro- must be excluded from the computa- priate, for example, to exclude unreli- tion. able evidence. (c) Where a document has been served (c) The ALJ must exclude irrelevant or issued by placing it in the mail, an and immaterial evidence. additional five days will be added to (d) Although relevant, evidence may the time permitted for any response. be excluded if its probative value is substantially outweighed by the danger § 1149.46 Where is the hearing held? of unfair prejudice, confusion of the The ALJ may hold the hearing: issues, or by considerations of undue (a) In any judicial district of the delay or needless presentation of cumu- United States: lative evidence.

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(e) Although relevant, evidence may (1) Make the interrogation and pres- be excluded if it is privileged under entation effective for ascertaining the Federal law. truth; (f) The following evidence concerning (2) Avoid needless consumption of offers of compromise or settlement is time; and inadmissible when offered to prove li- (3) Protect witnesses from harass- ability for, invalidity of, or amount of ment and undue embarrassment. a claim that was disputed as to valid- (d) The ALJ must permit the parties ity or amount, or to impeach through a to conduct such cross examination as prior inconsistent statement or con- may be required for a full and true dis- tradiction: closure of the facts. (1) Providing, offer, or promising to (e) At the discretion of the ALJ, a provide a valuable consideration in witness may be cross examined on mat- compromising or attempting to com- ters relevant to the proceeding without promise the claim; regard to the scope of his or her direct (2) Accepting, offering, or promising examination. To the extent permitted to accept a valuable consideration in by the ALJ, cross-examination on mat- compromising or attempting to com- ters outside the scope of direct exam- promise the claim; and ination must be conducted in the man- (3) Conduct or statements made in ner of direct examination. Leading compromise negotiations regarding the questions may be used only if the wit- claim, except when offered in a crimi- ness is a hostile witness, an adverse nal case and the negotiations related party, or a witness identified with an to a claim by a public office or author- adverse party. ity in the exercise of regulatory, investigative, or enforcement authority. § 1149.51 How can I exclude a witness? (g) The ALJ must permit the parties to introduce rebuttal witnesses and Upon motion of any party, the ALJ evidence. must order witnesses excluded from the (h) All documents and other evidence hearing room so that they cannot hear taken for the record must be open to the testimony of other witnesses. This examination by all parties unless oth- rule does not authorize exclusion of— erwise ordered by the ALJ. (a) A party who is an individual; (b) In the case of a party that is not § 1149.50 How is witness testimony an individual, an officer or employee of presented? the party appearing for the entity pro (a) Except as provided in paragraph se or designated by the party’s rep- (b) of this section, testimony at the resentative; or hearing must be given orally by wit- (c) An individual whose presence is nesses under oath or affirmation. shown by a party to be essential to the (b) At the discretion of the ALJ, tes- presentation of its case, including an timony may be admitted in the form of individual employed by the Govern- a written statement or deposition. ment engaged in assisting the rep- (1) Any such statement must be pro- resentative for the Government. vided to all other parties along with the last known address of such witness, § 1149.52 Will the hearing proceedings in a manner which allows sufficient be recorded? time for other parties to subpoena the (a) The hearing will be recorded and witness for cross-examination at the transcribed. Transcripts may be ob- hearing. tained after the conclusion of the hear- (2) Prior written statements of wit- ing and at a cost no greater than the nesses proposed to testify at the hear- actual cost of duplication. ing and deposition transcripts must be (b) The transcript of testimony, ex- exchanged. hibits and other evidence admitted at (c) The ALJ must exercise reasonable the hearing, and all papers and re- control over the mode and order of in- quests filed in the proceeding con- terrogating witnesses and presenting stitute the record for the decision by evidence so as to: the ALJ and the authority head.

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(c) The hearings will be recorded ei- (4) Strike any part of the pleadings ther electronically or by a court re- or other submissions of the party fail- porter. If the authority does not intend ing to comply with such a request. to arrange for a court reporter, you can (b) If a party fails to prosecute or de- arrange for one. If you do, you have to fend an action under this part com- pay the reporter’s appearance fees. menced by service of a notice of hear- (d) Upon payment of a reasonable fee, ing, the ALJ may dismiss the action or the record may be inspected and copied may issue an initial decision imposing by anyone, unless otherwise ordered by penalties and assessments. the ALJ. (c) The ALJ may refuse to consider any motion, request, response, brief or § 1149.53 Are ex parte communications other document which is not filed in a between a party and the ALJ per- timely fashion. mitted? Ex parte communications between a § 1149.56 Are post-hearing briefs re- party and the ALJ are not permitted quired? unless the other party consents to such Any party may file a post-hearing a communication taking place. This brief; but, such briefs are not required, does not prohibit a party from inquir- unless ordered by the ALJ. The ALJ ing about the status of a case or asking must fix the time for filing such briefs, routine questions concerning adminis- not to exceed 60 days from the date the trative functions or procedures. parties receive the transcript of the hearing or, if applicable, the stipulated § 1149.54 Are there sanctions for mis- record. Such briefs may be accom- conduct? panied by proposed findings of fact and (a) The ALJ may sanction a person, conclusions of law. The ALJ may per- including any party or representative, mit the parties to file reply briefs. as outlined in § 1149.55, for the following: (1) Failing to comply with an order, Subpart G—Decisions and rule, or procedure governing the pro- Appeals ceeding; § 1149.57 How is the case decided? (2) Failing to prosecute or defend an action; or (a) The ALJ will issue an initial deci- (3) Engaging in other misconduct sion based only on the record. The that interferes with the speedy, or- record must contain findings of fact, derly, and fair conduct of a hearing. conclusions of law, and the amount of (b) Any sanction issued under this any penalties and assessments im- section must reasonably relate to the posed. severity and nature of the misconduct. (b) The findings of fact must include a finding on each of the following § 1149.55 What happens if I fail to com- issues: ply with an order? (1) Whether any one or more of the (a) When a party fails to comply with claims or statements identified in the an order, including an order for taking complaint, in whole or in part, violate a deposition, the production of evi- this part; and dence within the party’s control, or a (2) If you are liable for penalties or request for admission, the ALJ may: assessments, the appropriate amount (1) Draw an inference in favor of the of any such penalties or assessments, requesting party with regard to the in- considering any mitigating or aggra- formation sought; vating factors that are proven by a pre- (2) In the case of requests for admis- ponderance of the evidence during the sion, deem each matter of which an ad- hearing. mission is requested to be admitted; (3) Prohibit the party failing to com- § 1149.58 When will the ALJ serve the ply with such order from introducing initial decision? evidence concerning, or otherwise rely- (a) The ALJ will serve the initial de- ing upon testimony relating to the in- cision on all parties within 90 days formation sought; and after the close of the hearing, or within

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90 days after the final post-hearing damages and the cost of the investiga- brief was filed. tion; (b) At the same time as the initial (6) The relationship of the amount decision, the ALJ must serve a state- imposed as civil penalties to the ment describing your rights if you are amount of the Government’s loss; found liable for a civil penalty or as- (7) The potential or actual impact of sessment to file a motion for reconsid- the misconduct upon national defense, eration with the ALJ or a notice of ap- public health or safety, or public con- peal with the authority head. fidence in the management of Govern- (c) If the ALJ fails to meet the dead- ment programs and operations, espe- line contained in this section, he or she cially upon the public confidence of must notify the parties of the reason those intended to benefit from Govern- for the delay and must set a new dead- ment programs; line. (8) Whether you have engaged in a (d) Unless the initial decision of the pattern of the same or similar mis- ALJ is timely appealed to the author- conduct; ity head, or a motion for reconsider- (9) Whether you attempted to conceal ation of the initial decision is timely the misconduct; filed, the initial decision must con- (10) The degree to which you have institute the final decision of the author- volved others in the misconduct or in ity head and must be final and binding concealing it; on the parties 30 days after it is issued (11) Where the misconduct of employ- by the ALJ. ees or agents is imputed to you, the extent to which your practices fostered § 1149.59 How are penalty and assess- or attempted to preclude such mis- ment amounts determined? conduct; (12) Whether you cooperated in or ob- In determining an appropriate structed an investigation of the mis- amount of civil penalties and assess- conduct; ments, the ALJ and the authority (13) Whether you assisted in identi- head, upon appeal, should evaluate any fying and prosecuting other wrong- circumstances that mitigate or aggra- doers; vate the violation and should articu- (14) The complexity of the program late in their opinions the reasons that or transaction, and the degree of your support the penalties and assessments sophistication with respect to it, in- they impose. cluding the extent of your prior par- § 1149.60 What factors are considered ticipation in the program or in similar in determining the amount of pen- transactions; alties and assessments to impose? (15) Whether you have been found, in any criminal, civil, or administrative (a) Although not exhaustive, the fol- proceeding, to have engaged in similar lowing factors are among those that misconduct or dealt dishonestly with may influence the ALJ and the author- the Government of the United States ity head in determining the amount of or a state, directly or indirectly; and penalties and assessments to impose (16) The need to deter you and others with respect to the misconduct charged from engaging in the same or similar in the complaint: misconduct. (1) The number of false, fictitious, or (b) Nothing in this section must be fraudulent claims or statements; construed to limit the ALJ or the au- (2) The time period over which such thority head from considering any claims or statements were made; other factors that in any given case (3) The degree of your culpability may mitigate or aggravate the offense with respect to the misconduct; for which penalties and assessments (4) The amount of money or the value are imposed. of the property, services, or benefit falsely claimed; § 1149.61 Can a party request reconsid- (5) The value of the Government’s ac- eration of the initial decision? tual loss as a result of the misconduct, (a) Any party may file a motion for including foreseeable consequential reconsideration of the initial decision

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with the ALJ within 20 days of receipt authority head may extend this dead- of the initial decision. If the initial de- line for up to an additional 30 days if cision was served by mail, there is a re- an extension request is filed within the buttable presumption that the initial initial 30-day period and shows good decision was received by the party 5 cause. days from the date of mailing. (c) Your appeal will not be considered (b) A motion for reconsideration until all timely motions for reconsider- shall be accompanied by a supporting ation have been resolved. brief and must specifically describe the (d) If a timely motion for reconsider- issue and nature of each allegedly erro- ation is denied, a notice of appeal may neous decision. be filed within 30 days following such (c) Responses to a motion for recon- denial or issuance of a revised initial sideration will only be allowed if it is decision, whichever applies. requested by the ALJ. (e) A notice of appeal must be sup- (d) The ALJ will dispose of a motion ported by a written brief specifying for reconsideration by denying it or by why the initial decision should be reissuing a revised initial decision. versed or modified. (e) If the ALJ issues a revised initial (f) The NEA representative may file a decision upon motion of a party, no brief in opposition to the notice of ap- further motions for reconsideration peal within 30 days of receiving your may be filed by any party. appeal and supporting brief. (f) If the ALJ issues a revised initial (g) If you timely file a notice of ap- decision, that decision shall constitute peal, and the time for filing reconsider- the final decision of the authority head ation motions has expired, the ALJ and shall be final and binding on the will forward the record of the pro- parties 30 days after it is issued, unless ceeding to the authority head. it is timely appealed to the authority head. § 1149.64 What happens if an initial decision is appealed? § 1149.62 When does the initial deci- (a) An initial decision is stayed auto- sion of the ALJ become final? matically pending disposition of a mo- (a) The initial decision of the ALJ be- tion for reconsideration or of an appeal comes the final decision of the NEA to the authority head. and binds all parties 30 days after it is (b) No administrative stay is avail- issued, unless a party timely files a able following a final decision of the motion for reconsideration or timely authority head. appeals to the authority head of NEA, as set forth in § 1149.64. § 1149.65 Are there any limitations on (b) If the ALJ disposes of a motion the right to appeal to the authority for reconsideration by denying it or by head? issuing a revised initial decision, the (a) You have no right to appear per- ALJ’s order on the motion for recon- sonally, or through a representative, sideration becomes the final decision of before the authority head. NEA 30 days after the order is issued. (b) There is no right to appeal any interlocutory ruling. § 1149.63 What are the procedures for (c) The authority head will not con- appealing the ALJ decision? sider any objection or evidence that (a) Any defendant who submits a was not raised before the ALJ, unless timely answer and is found liable for a you demonstrate that the failure to ob- civil penalty or assessment in an ini- ject was caused by extraordinary cir- tial decision may appeal the decision cumstances. If you demonstrate to the to the authority head by filing a notice satisfaction of the authority head that of appeal with the authority head in extraordinary circumstances prevented accordance with this section. the presentation of evidence at the (b) You may file a notice of appeal hearing, and that the additional evi- with the authority head within 30 days dence is material, the authority head following issuance of the initial deci- may remand the matter to the ALJ for sion, serving a copy of the notice of ap- consideration of the additional evi- peal on all parties and the ALJ. The dence.

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§ 1149.66 How does the authority head action to recover penalties and assess- dispose of an appeal? ments is initiated. (a) The authority head may affirm, (e) The investigating official may reduce, reverse, compromise, remand, recommend settlement terms to the re- or settle any penalty or assessment im- viewing official, the authority head, or posed by the ALJ in the initial decision the Attorney General, as appropriate. or reconsideration decision. (b) The authority head will promptly § 1149.70 How are civil penalties and assessments collected? serve each party to the appeal and the ALJ with a copy of his or her decision. (a) Civil actions to recover penalties This decision must contain a state- or assessments must commence within ment describing the right of any per- 3 years after the date of a final decision son, against whom a penalty or assess- determining your liability. ment has been made, to seek judicial (b) The Attorney General is respon- review. sible for judicial enforcement of civil penalties or assessments imposed. He/ § 1149.67 Who represents the NEA on she has exclusive authority to com- an appeal? promise or settle any penalty or assess- The authority head will designate ment during the pendency of any ac- the NEA’s representative in the event tion to collect penalties or assessments of an appeal. under 31 U.S.C. 3806. (c) Penalties or assessments imposed § 1149.68 What judicial review is avail- by a final decision may be recovered in able? a civil action brought by the Attorney Section 3805 of title 31, United States General. Code, authorizes Judicial review by the (1) The district courts of the United appropriate United States District States have jurisdiction of such civil Court of any final NEA decision by the actions. authority head imposing penalties or (2) The United States Court of Fed- assessments under this part. To obtain eral Claims has jurisdiction of any judicial review, you must file a peti- civil action to recover any penalty or tion with the appropriate court in a assessment if the cause of action is as- timely manner. (See paragraphs (a) serted by the government as a counter- through (e) of 31 U.S.C. 3805 for a de- claim in a matter pending in such scription of how judicial review is au- court. thorized.) (3) Civil actions may be joined and consolidated with or asserted as a § 1149.69 Can the administrative com- counterclaim, cross-claim, or set off by plaint be settled voluntarily? the government in any other civil ac- (a) Parties may make offers of com- tion which includes you and the gov- promise or settlement at any time. ernment as parties. Any compromise or settlement must be (4) Defenses raised at the hearing, or in writing. that could have been raised, may not (b) The reviewing official has the ex- be raised as a defense in the civil ac- clusive authority to compromise or tion. Determination of liability and of settle the case anytime after the date the amounts of penalties and assess- on which the reviewing official is per- ments must not be subject to review. mitted to issue a complaint and before the ALJ issues an initial decision. § 1149.71 Is there a right to adminis- (c) The authority head has exclusive trative offset? authority to compromise or settle the The amount of any penalty or assess- case anytime after the date of the ment which has become final, or for ALJ’s initial decision until the initi- which a judgment has been entered, or ation of any judicial review or any ac- any amount agreed upon in a com- tion to collect the penalties and assess- promise or settlement, may be col- ments. lected by administrative offset, except (d) The Attorney General has exclu- that an administrative offset may not sive authority to compromise or settle be made under this subsection against a case once any judicial review or any a refund of an overpayment of Federal

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taxes, then or later owing by the PART 1150—COLLECTION OF United States to you. CLAIMS § 1149.72 What happens to collections? Subpart A—General Provisions All amounts collected pursuant to this part must be deposited as mis- Sec. cellaneous receipts in the Treasury of 1150.1 What definitions apply to the regulations in this part? the United States. 1150.2 What is the Endowment’s authority to issue these regulations? § 1149.73 What if the investigation in- 1150.3 What other regulations also apply to dicates criminal misconduct or a the Endowment’s debt collection efforts? violation of the False Claims Act? 1150.4 What types of claims are excluded (a) Investigating officials may: from these regulations? (1) Refer allegations of criminal mis- 1150.5 What notice will I be provided if I owe a debt to the Endowment? conduct or a violation of the False 1150.6 What opportunity do I have to obtain Claims Act directly to the Department a review of my debt within the Endow- of Justice for prosecution and/or civil ment? action, as appropriate; 1150.7 What interest, penalty charges, and (2) Defer or postpone a report or re- administrative costs will I have to pay ferral to the reviewing official to avoid on a debt owed to the Endowment? 1150.8 Will failure to pay my debt affect my interference with a criminal or civil in- eligibility for Endowment programs? vestigation, prosecution or litigation; 1150.9 How can I resolve the Endowment’s or claim through a voluntary repayment (3) Issue subpoenas under any other agreement? statutory authority. 1150.10 What is the extent of the Chair- (b) Nothing in this part limits the re- person’s authority to compromise debts owed to the Endowment, or to suspend or quirement that NEA employees report terminate collection action on such suspected false or fraudulent conduct, debts? claims or statements, and violations of 1150.11 How does subdividing or joining criminal law to the NEA Office of In- debts owed to the Endowment affect the spector General or to the Attorney Chairperson’s compromise, suspension, General. or termination authority? 1150.12 How will the Endowment use credit § 1149.74 How does the NEA protect reporting agencies to collect its claims? your rights? 1150.13 How will the Endowment contract for collection services? These procedures separate the func- 1150.14 When will the Endowment refer tions of the investigating official, re- claims to the DOJ? viewing official, and the ALJ, each of 1150.15 Will the Endowment use a cross- whom report to a separate organiza- servicing agreement with the Treasury tional authority. Except for purposes to collect its claims? 1150.16 May I use the Endowment’s failure of settlement, or as a witness or a rep- to comply with these regulations as a de- resentative in public proceedings, no fense? investigating official, reviewing official, or NEA employee or agent who Subpart B—Salary Offset helps investigate, prepare, or present a case may (in such case, or a factually 1150.20 What debts are included or excluded from coverage of these regulations on related case) participate in the initial salary offset? decision or the review of the initial de- 1150.21 May I ask the Endowment to waive cision by the authority head. This sep- an overpayment that otherwise would be aration of functions and organization collected by offsetting my salary as a is designed to assure the independence Federal employee? and impartiality of each government 1150.22 What are the Endowment’s proce- official during every stage of the pro- dures for salary offset? 1150.23 How will the Endowment coordinate ceeding. The representative for the salary offsets with other agencies? NEA may be employed in the offices of 1150.24 Under what conditions will the En- either the investigating official or the dowment make a refund of amounts col- reviewing official. lected by salary offset?

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1150.25 Will the collection of a claim by sal- (d) Creditor agency means the agency ary offset act as a waiver of my rights to to which the debt is owed. dispute the claimed debt? (e) Day means calendar day. To count days, include the last day of the period Subpart C—Tax Refund Offset unless it is a Saturday, a Sunday, or a 1150.30 Which debts can the Endowment Federal legal holiday. refer to the Treasury for collection by (f) Debt and claim are deemed synony- offsetting tax refunds? mous and interchangeable. These terms 1150.31 What are the Endowment’s proce- mean money owed by a person to the dures for collecting debts by tax refund offset? United States for any reason, including loans made or guaranteed by the Subpart D—Administrative Offset United States, fees, leases, rents, royalties, services, sales of real or per- 1150.40 Under what circumstances will the sonal property, overpayments, dam- Endowment collect amounts that I owe ages, interests, penalties, fines, forfeit- to the Endowment (or some other Fed- eral agency) by offsetting the debt ures, and all other similar sources. For against payments that the Endowment the purpose of administrative offset (or some other Federal agency) owes me? under 31 U.S.C. 3716 and subpart D of 1150.41 How will the Endowment request these regulations, the terms debt and that my debt to the Endowment be col- claim also include money or property lected by offset against some payment owed by a person to a State, the Dis- that another Federal agency owes me? trict of Columbia, American Samoa, 1150.42 What procedures will the Endow- ment use to collect amounts I owe to a Guam, the United States Virgin Is- Federal agency by offsetting a payment lands, the Commonwealth of the North- that the Endowment would otherwise ern Marina Islands, or the Common- make to me? wealth of Puerto Rico. 1150.43 When may the Endowment make an (g) Debtor means a person who owes a offset in an expedited manner? debt. Uses of the terms ‘‘I,’’ ‘‘you,’’ 1150.44 Can a judgment I have obtained ‘‘me,’’ and similar references to the against the United States be used to sat- reader of the regulations in this part isfy a debt that I owe to the Endowment? are meant to apply to debtors as de- AUTHORITY: 31 U.S.C. 3711, 3716–3718, 3720A; fined in this paragraph (g). 5 U.S.C. 5514. (h) Delinquent debt means a debt that SOURCE: 65 FR 37486, June 15, 2000, unless has not been paid within the time limit otherwise noted. prescribed by the Endowment. (i) Disposable pay means the part of Subpart A—General Provisions an employee’s pay that remains after deductions that are required to be § 1150.1 What definitions apply to the withheld by law have been made. regulations in this part? (j) Employee means a current em- As used in this part: ployee of an agency, including a cur- (a) Administrative offset means the rent member of the Armed Forces or withholding of funds payable by the Reserve of the Armed Forces of the United States (including funds payable United States. by the United States on behalf of a (k) Endowment means the National State government) to any person, or Endowment for the Arts. the withholding of funds held by the (l) Federal Claims Collection Standards United States for any person, in order means the standards currently pub- to satisfy a debt owed to the United lished at 4 CFR Chapter II. The DOJ States. and the Treasury have proposed a revi- (b) Agency means a department, agen- sion that would move the Federal cy, court, court administrative office, Claims Collection Standards to 31 CFR or instrumentality in the executive, ju- parts 900–904. The Endowment will dicial, or legislative branch of govern- amend these regulations, as necessary, ment, including a government corpora- after the revised Federal Claims Col- tion. lection Standards have been issued as (c) Chairperson means the Chair- final regulations. person of the Endowment, or his or her (m) Paying agency means the agency designee. that employs the individual who owes a

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debt to the United States. In some plements the Federal Claims Collection cases, the Endowment may be both the Standards by prescribing procedures creditor agency and the paying agency. and directives necessary and appro- (n) Payroll office means the office in priate for operations of the Endow- the paying agency that is primarily re- ment. sponsible for payroll records and the coordination of pay matters with the § 1150.4 What types of claims are ex- appropriate personnel office. cluded from these regulations? (o) Person includes a natural person (a) The regulations in this part do or persons, profit or non-profit corpora- not apply to any claim as to which tion, partnership, association, trust, there is an indication of fraud or mis- estate, consortium, state or local gov- representation, as described in the Fed- ernment, or other entity that is capa- eral Claims Collection Standards, un- ble of owing a debt to the United less returned to the Endowment by the States; however, agencies of the United DOJ for handling. States are excluded. (b) The regulations in this subpart, (p) Private collection contractor means subpart B, and subpart D do not apply a private debt collector under contract to debts arising under the Internal with an agency to collect a non-tax Revenue Code of 1986, as amended (26 debt owed to the United States. U.S.C. 1 et seq.); the Social Security (q) Salary offset means a payroll pro- Act (42 U.S.C. 301 et seq.); and the tariff cedure to collect a debt under 5 U.S.C. laws of the United States. 5514 by deduction(s) at one or more of- (c) Remedies and procedures de- ficially established pay intervals from scribed in this part may be authorized the current pay account of an em- with respect to claims that are exempt ployee, without his or her consent. from the Debt Collection Act of 1982 (r) Tax refund offset means the reduc- and the Debt Collection Improvement tion of a tax refund by the amount of a Act of 1996, to the extent that they are past-due legally enforceable debt owed authorized under some other statute or to the Endowment or any other Fed- the common law. eral agency. § 1150.5 What notice will I be provided § 1150.2 What is the Endowment’s au- if I owe a debt to the Endowment? thority to issue these regulations? The Endowment is issuing the regu- (a) When the Chairperson determines lations in this part under 31 U.S.C. 3711, that you owe a debt to the Endowment, 3716–3718, and 3720A. These sections re- he or she will send you a written notice flect the Federal Claims Collection Act (Notice). The Notice will be hand-deliv- of 1966, as amended by the Debt Collec- ered or sent to you by certified mail, tion Act of 1982 and the Debt Collection return receipt requested at the most Improvement Act of 1996. The Endow- current address known to the Endow- ment is also issuing the regulations in ment. The Notice will inform you of this part in conformity with the Fed- the following: eral Claims Collection Standards, (1) The amount, nature, and basis of which prescribe standards for the han- the debt; dling of the Federal government’s (2) That a designated Endowment of- claims for money or property. The En- ficial has reviewed the claim and deter- dowment is further issuing the regula- mined that it is valid; tions in this part in conformity with 5 (3) That payment of the debt is due U.S.C. 5514 and the salary offset regula- as of the date of the Notice, and that tions published by the OPM at 5 CFR the debt will be considered delinquent part 550, subpart K. if you do not pay it within 30 days of the date of the Notice; § 1150.3 What other regulations also (4) The Endowment’s policy con- apply to the Endowment’s debt col- cerning interest, penalty charges, and lection efforts? administrative costs (see § 1150.7), in- All provisions of the Federal Claims cluding a statement that such assess- Collection Standards also apply to the ments must be made against you un- regulations in this part. This part sup- less excused in accordance with the

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Federal Claims Collection Standards (7) By liquidation of security or col- and this part; lateral. When the Endowment holds se- (5) That you have the right to inspect curity or collateral that may be liq- and copy Endowment records per- uidated and the proceeds applied to taining to your debt, or to receive cop- your debt through the exercise of a ies of those records if personal inspec- power of sale in the security instru- tion is impractical; ment or a nonjudicial foreclosure, such (6) That you have the opportunity to procedures may be followed unless the enter into an agreement, in writing cost of disposing of the collateral will and signed by both you and the Chair- be disproportionate to its value or spe- person, for voluntary repayment of the cial circumstances require judicial debt (see § 1150.9); and foreclosure. (7) The address, telephone number, (c) Notice of opportunity for review. and name of the Endowment official The Notice provided by the Chair- available to discuss the debt. person under paragraph (a) of this sec- (b) Notice of possible collection actions. The Notice provided by the tion will also advise you of the oppor- Chairperson under paragraph (a) of this tunity to obtain a review within the section will also advise you that, if Endowment concerning the existence your debt (including any interest, pen- or amount of the debt, the proposed alty charges, and administrative costs) schedule for offset of Federal employee is not paid within 60 days of the date of salary payments, or whether the debt the Notice, or you do not enter into a is past due or legally enforceable. The voluntary repayment agreement within Notice shall also advise you of the fol- 60 days of the date of the Notice, then lowing: the Endowment may enforce collection (1) The name, address, and telephone of the debt by any or all of the fol- number of an officer or employee of the lowing methods: Endowment whom you may contact (1) By referral to a credit reporting concerning procedures for requesting a agency (see § 1150.12), a collection agen- review; cy (see § 1150.13), or the DOJ (see (2) The method and time period for § 1150.14); requesting a review; (2) By transferring any debt delin- (3) That the filing of a request for a quent for more than 180 days to the review on or before the 60th day fol- Treasury for collection under a cross- lowing the date of the Notice will stay servicing agreement with the Treasury the commencement of collection pro- (see § 1150.15); ceedings; (3) If you are an Endowment em- (4) The name and address of the offi- ployee, by deducting money from your cer or employee of the Endowment to disposable pay account (in the amount whom you should send the request for a and with the frequency, approximate review; beginning date, and duration specified (5) That a final decision on the re- by the Endowment) until the debt (and view (if one is requested) will be issued all accumulated interest, penalty at the earliest practical date, but not charges, and administrative costs) is later than 60 days after the receipt of paid in full (see subpart B). Such pro- the request for a review, unless you re- ceedings are governed by 5 U.S.C. 5514; quest, and the review official grants, a (4) If you are an employee of a Fed- eral agency other than the Endow- delay in the proceedings; ment, by initiating certification proce- (6) That any knowingly false or frivo- dures to implement a salary offset by lous statements, representations, or that Federal agency (see subpart B). evidence may subject you to: Such proceedings are governed by 5 (i) Disciplinary procedures appro- U.S.C. 5514; priate under 5 U.S.C. Chapter 75, 5 CFR (5) By referring the debt to the Treas- part 752, or any other applicable stat- ury for offset against any refund of ute or regulations; overpayment of tax (see subpart C); (ii) Penalties under the False Claims (6) By administrative offset (see sub- Act (31 U.S.C. 3729–3733) or any other part D); or applicable statutory authority; and

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(iii) Criminal penalties under 18 ment official designated in the Notice U.S.C. 286, 287, 1001, and 1002, or any stating your intention. Your letter other applicable statutory authority; must be received within 30 days of the (7) Any other rights available to you date of the Notice. to dispute the validity of the debt or to (2) In response to the timely request have recovery of the debt waived, or described in paragraph (b)(1) of this remedies available to you under stat- section, the designated Endowment of- utes or regulations governing the pro- ficial will notify you of the location gram for which the collection is being and time when you may inspect and made; and copy records related to the debt. (8) That unless there are applicable (3) If personal inspection of Endow- contractual or statutory provisions to ment records related to the debt is im- the contrary, amounts paid on or de- practical, reasonable arrangements ducted for the debt that are later will be made to send you copies of waived or found not owed will be those records. promptly refunded to you. (c) Review official. The Chairperson (d) The Endowment will respond shall designate an officer or employee promptly to communications from you. of the Endowment (who was not involved in the determination of the § 1150.6 What opportunity do I have to debt) as the review official. When re- obtain a review of my debt within quired by law or regulation, the En- the Endowment? dowment may request an administra- (a) Request for review. If you desire a tive law judge to conduct the review, review within the Endowment con- or may obtain a review official who is cerning the existence or amount of an official, employee, or agent of the your debt, the proposed schedule for United States, but who is not under the offset of Federal employee salary pay- supervision or control of the Chair- ments, or whether the debt is past due person. However, unless the review is or legally enforceable, you must send conducted by an official or employee of such a request to the officer or em- the Endowment, any unresolved dis- ployee of the Endowment designated in pute you have regarding whether all or the Notice (see § 1150.5(c)(4)). part of the debt is past due or legally (1) Your request for review must enforceable (for purposes of collection carry your signature and fully identify by tax refund offset under § 1150.31) and explain with reasonable specificity must be referred to the Chairperson for all the facts and evidence that support ultimate administrative disposition, your position. Your request for review and the Chairperson must notify you of should be accompanied by available his or her determination. evidence to support your contentions. (d) Review procedure. After you re- (2) Your request for review must be quest a review, the review official will received by the designated officer or notify you of the form of the review to employee of the Endowment on or be- be provided. The review official shall fore the 60th day following the date of determine whether an oral hearing is the Notice. Timely filing will stay the required, or if a review of the written commencement of collection proce- record is sufficient, in accordance with dures. If you file a request for a review the Federal Claims Collection Stand- after the 60-day period provided for in ards. In either case, the review official this section, the Endowment will ac- shall conduct the review in accordance cept the request if you can show that with the Federal Claims Collection the delay was the result of cir- Standards. If the review will include an cumstances beyond your control or be- oral hearing, the notice sent to you by cause you did not receive notice of the the review official will set forth the filing deadline (unless you had actual date, time, and location of the hearing. notice of the filing deadline). (e) Date of decision. The review offi- (b) Inspection of Endowment records re- cial will issue a written decision, based lated to the debt. (1) In accordance with upon either the written record or docu- § 1150.5, if you want to inspect or copy mentary evidence and information de- Endowment records related to the debt, veloped at an oral hearing, as soon as you must send a letter to the Endow- practical, but not later than 60 days

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after the date on which the Endowment (c) Administrative costs. The Endow- received your request for a review, un- ment will assess charges to cover ad- less you request, and the review official ministrative costs incurred as a result grants, a delay in the proceedings. of your failure to pay a debt before it (f) Content of review decision. The re- becomes delinquent. Administrative view official will prepare a written de- costs include the additional costs in- cision that includes: curred in processing and handling the (1) A statement of the facts presented debt because it became delinquent, to support the origin, nature, and such as costs incurred in obtaining a amount of the debt; credit report or in using a private col- (2) The review official’s findings, lection contractor, or service fees analysis, and conclusions; and charged by a Federal agency for collec- (3) The terms of any repayment tion activities undertaken on behalf of schedule, if applicable. the Endowment. (g) Interest, penalty charge, and admin- (d) Allocation of payments. A partial istrative cost accrual during review pe- or installment payment by a debtor riod. Interest, penalty charges, and ad- will be applied first to outstanding pen- ministrative costs authorized by law alty assessments, second to adminis- will continue to accrue during the re- trative costs, third to accrued interest, view period. and fourth to the outstanding debt principal. § 1150.7 What interest, penalty charges, and administrative costs (e) Additional authority. The Endow- will I have to pay on a debt owed to ment may assess interest, penalty the Endowment? charges, and administrative costs on debts that are not subject to 31 U.S.C. (a) Interest. (1) The Endowment will 3717 to the extent authorized under assess interest on all delinquent debts common law or other applicable statu- unless prohibited by statute, regulatory authority. tion, or contract. (2) Interest begins to accrue on all (f) Waiver. (1) The Chairperson may debts from the date that the debt be- (without regard to the amount of the comes delinquent. The Endowment will debt) waive collection of all or part of not recover interest if you pay the debt accrued interest, penalty charges, or within 30 days of the date on which in- administrative costs, if he or she deter- terest begins to accrue. The Endow- mines that collection of these charges ment shall assess interest at the rate would be against equity and good con- established annually by the Secretary science or not in the best interest of of the Treasury under 31 U.S.C. 3717, the Endowment. unless a different rate is either nec- (2) A decision to waive interest, pen- essary to protect the interests of the alty charges, or administrative costs Endowment or established by a con- may be made at any time before a debt tract, repayment agreement, or statis paid. However, where these charges ute. The Endowment will notify you of have been collected before the waiver the basis for its finding when a dif- decision, they will not be refunded. The ferent rate is necessary to protect the Chairperson’s decision to waive or not interests of the Endowment. waive collection of these charges is (3) The Chairperson may extend the final and is not subject to further re- 30-day period for payment without in- view. terest where he or she determines that such action is in the best interest of § 1150.8 Will failure to pay my debt af- the Endowment. A decision to extend fect my eligibility for Endowment or not to extend the payment period is programs? final and is not subject to further re- In the event that you fail to pay your view. debt to the Endowment within a rea- (b) Penalty. The Endowment will as- sonable period of time after the date of sess a penalty charge, not to exceed 6 the Notice of debt, the General Counsel percent a year, on any portion of a debt of the Endowment shall place your that is delinquent for more than 90 name on the Endowment’s list of days. debarred, suspended, and ineligible

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contractors, grantees, and other par- any reduction or compromise of a ticipants in programs sponsored by the claim will be governed by 31 U.S.C. Endowment. You will be advised of this 3711. action. § 1150.10 What is the extent of the § 1150.9 How can I resolve the Endow- Chairperson’s authority to comment’s claim through a voluntary promise debts owed to the Endow- repayment agreement? ment, or to suspend or terminate In response to a Notice of debt, you collection action on such debts? may propose to the Endowment that (a) The Chairperson may exercise his you be allowed to repay the debt or her authority to compromise, or to through a voluntary repayment agree- suspend or terminate collection action ment in lieu of the Endowment taking on, those debts owed to the Endowment other collection actions under this and not exceeding $100,000, excluding part. interest, in conformity with the Fed- (a) Your request to enter into a vol- eral Claims Collection Act of 1966, as untary repayment agreement must: amended; the Federal Claims Collec- (1) Be in writing; tion Standards issued thereunder; and (2) Admit the existence of the debt; this part, except where standards are and established by other statutes or au- (3) Either propose payment of the thorized regulations issued pursuant to debt (together with interest, penalty them. charges, and administrative costs) in a (b) The portion of a debt owed to the lump sum, or set forth a proposed re- Endowment that is unrecovered as the payment schedule. result of a compromise shall be re- (b) The Endowment will collect ported to the Internal Revenue Service claims in full or one lump sum when- (IRS) as income to the debtor. ever feasible. However, if you are unable to pay your debt in one lump sum, § 1150.11 How does subdividing or the Endowment may accept payment joining debts owed to the Endow- in regular installments that bear a rea- ment affect the Chairperson’s com- sonable relationship to the size of the promise, suspension, or termination debt and your ability to pay. authority? (c) The Endowment will consider a A debtor’s liability arising from a request to enter into a voluntary re- particular transaction or contract will payment agreement in accordance with be considered as a single claim in de- the Federal Claims Collection Stand- termining whether the claim is one of ards. The Chairperson may request ad- not more than $100,000, excluding inter- ditional information from you, includ- est, for the purpose of compromise or ing financial statements if you request suspension or termination of collection to make payments in installments, in action. Such a claim may not be sub- order to make a determination of divided to avoid the monetary ceiling whether to accept a voluntary repay- established by the Federal Claims Col- ment agreement. It is within the Chair- lection Act of 1966, as amended. Join- person’s discretion to accept a repay- ing two or more claims in a demand ment agreement instead of proceeding upon a debtor for payment of more with other collection actions under than $100,000 does not preclude com- this part, and to set the necessary promise or suspension or termination terms of any voluntary repayment of collection action with regard to any agreement. No repayment agreement one claim not exceeding $100,000, ex- will be binding on the Endowment un- cluding interest. less it is in writing and signed by both you and the Chairperson. At the En- § 1150.12 How will the Endowment use dowment’s option, you may be required credit reporting agencies to collect to enter into a confess-judgment note its claims? or bond of indemnity with surety as (a) The Endowment may report delin- part of an agreement to make pay- quent debts to appropriate credit re- ments in installments. Notwith- porting agencies by providing the fol- standing the provisions of this section, lowing information:

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(1) A statement that the debt is valid § 1150.13 How will the Endowment and overdue; contract for collection services? (2) The name, address, taxpayer iden- The Endowment will use the services tification number, and any other infor- of a private collection contractor mation necessary to establish the iden- where it determines that such use is in tity of the debtor; the best interest of the Endowment. (3) The amount, status, and history When the Endowment determines that of the debt; and there is a need to contract for collec- (4) The program or pertinent activity tion services, it will: under which the debt arose. (a) Retain sole authority to: (b) Before disclosing debt informa- (1) Resolve any dispute with the debt- tion to a credit reporting agency, the or regarding the validity of the debt; (2) Compromise the debt; Endowment will: (3) Suspend or terminate collection (1) Take reasonable action to locate action; the debtor if a current address is not (4) Refer the debt to the DOJ for liti- available; gation; and (2) Provide the notice required under (5) Take any other action under this § 1150.5 if a current address is available; part which does not result in full col- and lection of the debt; (3) Obtain satisfactory assurances (b) Require the contractor to comply from the credit reporting agency that with the Privacy Act of 1974, as amend- it complies with the Fair Credit Re- ed, to the extent specified in 5 U.S.C. porting Act (15 U.S.C. 1681 et seq.) and 552a(m); with the Fair Debt Collection other Federal laws governing the provi- Practices Act (15 U.S.C. 1692–1692o) and sion of credit information. other applicable Federal and State (c) At the time debt information is laws pertaining to debt collection prac- submitted to a credit reporting agency, tices; and with the applicable regula- the Endowment will provide a written tions of the Endowment in this chap- statement to the reporting agency that ter; (c) Require the contractor to account all required actions have been taken. accurately and fully for all amounts In addition, the Endowment will, collected; and thereafter, ensure that the credit re- (d) Require the contractor to provide porting agency is promptly informed of to the Endowment, upon request, all any substantive change in the condi- data and reports contained in its files tions or amount of the debt, and related to its collection actions on a promptly verify or correct information debt. relevant to the debt. (d) If a debtor disputes the validity of § 1150.14 When will the Endowment the debt, the credit reporting agency refer claims to the DOJ? will refer the matter to the appropriate The Chairperson will refer to the Endowment official. The credit report- DOJ for litigation claims on which aging agency will exclude the debt from gressive collection actions have been its reports until the Endowment cer- taken but which could not be collected, tifies in writing that the debt is valid. compromised, suspended, or termi- (e) The Endowment may disclose to a nated. Referrals will be made as early commercial credit bureau information as possible, consistent with aggressive concerning a commercial debt, includ- Endowment collection action, and ing the following: within the period for bringing a timely suit against the debtor. (1) Information necessary to establish the name, address, and employer § 1150.15 Will the Endowment use a identification number of the commer- cross-servicing agreement with the cial debtor; Treasury to collect its claims? (2) The amount, status, and history (a) The Endowment will enter into a of the debt; and cross-servicing agreement that author- (3) The program or pertinent activity izes the Treasury to take the collection under which the debt arose. actions described in this part on behalf

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of the Endowment. These debt collec- ered was accumulated over four or tion services will be provided to the fewer pay periods. Endowment in accordance with 31 U.S.C. Chapter 37. § 1150.21 May I ask the Endowment to (b) The Endowment shall transfer to waive an overpayment that other- the Treasury any past due, legally en- wise would be collected by offsetting my salary as a Federal em- forceable, non-tax debt that has been ployee? delinquent for a period of 180 days or more so that the Secretary of the Yes. The regulations in this subpart Treasury may take appropriate action do not preclude you from requesting in accordance with 31 U.S.C. 3716, 5 waiver of an overpayment under 5 U.S.C. 5514, the Federal Claims Collec- U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 tion Standards, 5 CFR 550.1108, and 31 U.S.C. 716, or other statutory provi- CFR part 285. The categories of debts sions pertaining to the particular debts described in 31 U.S.C. 3711(g)(2) are ex- being collected. cluded from transfer under this paragraph (b). § 1150.22 What are the Endowment’s procedures for salary offset? § 1150.16 May I use the Endowment’s (a) The Endowment will coordinate failure to comply with these regula- salary deductions under this subpart as tions as a defense? appropriate. No. The failure of the Endowment to (b) If you are an Endowment em- comply with any standard prescribed in ployee, the Endowment’s payroll office the Federal Claims Collection Stand- will determine the amount of your dis- ards or these regulations shall not be posable pay and will implement the available to any debtor as a defense. salary offset. (c) Deductions will begin within Subpart B—Salary Offset three official pay periods following receipt by the Endowment’s payroll of- § 1150.20 What debts are included or fice of certification of debt from the excluded from coverage of these creditor agency. regulations on salary offset? (d) Types of collection—(1) Lump-sum (a) The regulations in this subpart offset. If the amount of the debt is provide Endowment procedures for the equal to or less than 15 percent of dis- collection by salary offset of a Federal posable pay, the debt generally will be employee’s pay to satisfy certain debts collected through one lump-sum offset. owed to the Endowment or to other (2) Installment deductions. Installment Federal agencies. deductions will be made over a period (b) The regulations in this subpart do not greater than the anticipated period not apply to any case where collection of employment. The size and frequency of a debt by salary offset is explicitly of installment deductions will bear a provided for or prohibited by another reasonable relation to the size of the statute. debt and your ability to pay. However, (c) Nothing in the regulations in this the amount deducted from any period subpart precludes the compromise, sus- will not exceed 15 percent of the dispos- pension, or termination of collection able pay from which the deduction is actions under the Federal Claims Col- made unless you have agreed in writing lection Act of 1966, as amended, or the to the deduction of a greater amount. Federal Claims Collection Standards. If possible, installment payments will (d) A levy pursuant to the Internal be sufficient in size and frequency to Revenue Code takes precedence over a liquidate the debt in three years or salary offset under this subpart, as pro- less. vided in 5 U.S.C. 5514(d). (3) Deductions from final check. A de- (e) This subpart does not apply to duction exceeding the 15 percent of dis- any adjustment to pay arising out of posable pay limitation may be made your election of coverage or a change from any final salary payment under 31 in coverage under a Federal benefits U.S.C. 3716 and the Federal Claims Col- program requiring periodic deductions lection Standards, in order to liquidate from pay, if the amount to be recov- the debt, whether the employee is

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being separated voluntarily or involun- (iii) Information regarding the com- tarily. pletion of procedures required by 5 (4) Deductions from other sources. If an U.S.C. 5514, including the actions taken employee subject to salary offset is and the dates of those actions. separated from the Endowment, and (4) If the employee is in the process the balance of the debt cannot be liq- of separating and has not received a uidated by offset of the final salary final salary check or other final pay- check, then the Endowment may offset ment(s) from the paying agency, the later payments of any kind against the Endowment must submit its claim to balance of the debt, as allowed by 31 the paying agency for collection under U.S.C. 3716 and the Federal Claims Col- 31 U.S.C. 3716. The paying agency will lection Standards. (under its regulations adopted under 5 (e) Multiple debts. In instances where U.S.C. 5514 and 5 CFR part 550, subpart two or more creditor agencies are seek- K), certify the total amount of its col- ing salary offsets, or where two or lection on the debt and notify the em- more debts are owed to a single cred- ployee and the Endowment. If the pay- itor agency, the Endowment’s payroll ing agency’s collection does not fully office may, at its discretion, determine satisfy the debt, and the paying agency whether one or more debts should be is aware that the debtor is entitled to offset simultaneously within the 15 payments from the Civil Service Re- percent limitation. tirement and Disability Fund or other similar payments that may be due the § 1150.23 How will the Endowment co- debtor employee from other Federal ordinate salary offsets with other government sources, then (under its agencies? regulations adopted under 5 U.S.C. 5514 (a) Responsibilities of the Endowment and 5 CFR part 550, subpart K), the as the creditor agency. Upon completion paying agency will provide written no- of the procedures established in this tice of the outstanding debt to the subpart and pursuant to 5 U.S.C. 5514, agency responsible for making the the Endowment must submit a claim other payments to the debtor em- to a paying agency. ployee. The written notice will state (1) In its claim, the Endowment must that the employee owes a debt, the certify, in writing, the following: amount of the debt, and that the provi- (i) That the employee owes the debt; sions of this section have been fully (ii) The amount and basis of the debt; complied with. However, the Endow- (iii) The date the Endowment’s right ment must submit a properly certified to collect the debt first accrued; and claim under this paragraph (a)(4) to the (iv) That the Endowment’s regula- agency responsible for making the pay- tions in this subpart have been ap- ments before the collection can be proved by OPM under 5 CFR part 550, made. subpart K. (5) Separated employee. If the em- (2) If the collection must be made in ployee is already separated and all pay- installments, the Endowment’s claim ments due from his or her former pay- will also advise the paying agency of ing agency have been paid, the Endow- the amount or percentage of disposable ment may request, unless otherwise pay to be collected in each installment. prohibited, that money due and pay- The Endowment may also advise the able to the employee from the Civil paying agency of the number of install- Service Retirement and Disability ments to be collected and the date of Fund or other similar funds be admin- the first installment, if that date is istratively offset to collect the debt. other than the next officially estab- (6) Employee transfer. When an em- lished pay period. ployee transfers from one paying agen- (3) The Endowment shall also include cy to another paying agency, the En- in its claim: dowment will not repeat the due proc- (i) The employee’s written consent to ess procedures described in 5 U.S.C. the salary offset; 5514 and this subpart to resume the col- (ii) The employee’s signed statement lection. The Endowment will submit a acknowledging receipt of the proce- properly certified claim to the new dures required by 5 U.S.C. 5514; or paying agency and will subsequently

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

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(5) With respect to which the Endow- requirements of § 1150.30(b) have been ment has satisfied. (i) given the debtor at least 60 days (d) For purposes of this section, no- to present evidence that all or part of tice that collection of the debt is af- the debt is not past due or legally en- fected by a bankruptcy proceeding in- forceable, volving the debtor will bar referral of (ii) considered evidence presented by the debt to the Treasury. the debtor, and (e) The Endowment shall promptly (iii) determined that an amount of notify the Treasury to correct data the debt is past due and legally en- when it: forceable; (1) Determines that an error has been (6) Has been disclosed by the Endow- made with respect to a debt that has ment to a credit reporting agency as been referred; authorized by 31 U.S.C. 3711(e) and (2) Receives or credits a payment on § 1150.12 of this part, unless the credit the debt; or reporting agency would be prohibited (3) Receives notice that the person from reporting information concerning owing the debt has filed for bankruptcy the debt by reason of 15 U.S.C. 1681c; under Title 11 of the United States (7) With respect to which the Endow- Code or has been adjudicated bankrupt ment has notified or has made a rea- and the debt has been discharged. sonable attempt to notify the debtor (f) When advising debtors of an intent that: to refer a debt to the Treasury for off- (i) The debt is past due, and set, the Endowment will also advise (ii) Unless repaid within 60 days of debtors of remedial actions available the date of the Notice, the debt may be to defer the offset or prevent it from referred to the Treasury for offset taking place. against any refund of overpayment of tax; and Subpart D—Administrative Offset (8) All other requirements of 31 U.S.C. 3720A and the Treasury regula- § 1150.40 Under what circumstances tions relating to the eligibility of a will the Endowment collect debt for tax return offset (31 CFR 285.2) amounts that I owe to the Endow- have been satisfied. ment (or some other Federal agency) by offsetting the debt against § 1150.31 What are the Endowment’s payments that the Endowment (or procedures for collecting debts by some other Federal agency) owes tax refund offset? me? (a) The Chairperson will be the point (a) The regulations in this subpart of contact with the Treasury for ad- apply to the collection of any debts ministrative matters regarding the off- you owe to the Endowment, or to any set program. request from another Federal agency (b) The Endowment will ensure that that the Endowment collect a debt you the procedures prescribed by the Treas- owe by offsetting your debt against a ury are followed in developing informa- payment the Endowment owes you. Ad- tion about past-due debts and submit- ministrative offset is authorized under ting the debts to the Treasury. Section 5 of the Federal Claims Collec- (c) The Endowment will submit to tion Act of 1966, as amended (31 U.S.C. the Treasury a notification of a tax- 3716). The Endowment shall carry out payer’s liability for past-due legally administrative offset in accordance enforceable debt. This notification will with the provisions of the Federal contain the following: Claims Collection Standards; the regu- (1) The name and taxpayer identifica- lations in this subpart are intended tion number of the debtor; only to supplement the provisions of (2) The amount of the past-due and the Federal Claims Collection Stand- legally enforceable debt; ards. (3) The date on which the original (b) The Chairperson, after attempting debt became past due; and to collect a debt you owe to the Endow- (4) A statement certifying that, with ment under Section 3(a) of the Federal respect to each debt reported, all of the Claims Collection Act of 1966, as

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amended (31 U.S.C. 3711(a)), may col- order to collect a debt you owe to that lect the debt by administrative offset, agency. The Endowment will initiate subject to the following: the requested offset only upon: (1) The debt you owe is certain in (1) Receipt of written certification amount; and from the creditor agency stating: (2) It is in the best interest of the En- (i) That you owe the debt; dowment to collect your debt by ad- (ii) The amount and basis of the debt; ministrative offset because of the de- (iii) That the agency has prescribed creased costs of collection and accel- regulations for the exercise of adminis- eration in the payment of the debt. trative offset; and (c) No collection by administrative offset will be made on any debt that (iv) That the agency has complied has been outstanding for more than 10 with its own administrative offset reg- years unless facts material to the En- ulations and with the applicable provi- dowment or a federal agency’s right to sions of the Federal Claims Collection collect the debt were not known, and Standards, including providing you reasonably could not have been known, with any required hearing or review; by the official or officials responsible and for discovering and collecting the debt. (2) A determination by the Chair- (d) The regulations in this subpart do person that offsetting funds payable to not apply to: you by the Endowment in order to col- (1) A case in which administrative lect a debt owed by you would be in the offset of the type of debt involved is ex- best interest of the United States as plicitly prohibited by statute; or determined by the facts and cir- (2) Debts owed to the Endowment by cumstances of the particular case, and Federal agencies. that such an offset would not otherwise be contrary to law. § 1150.41 How will the Endowment re- (b) Multiple debts. In instances where quest that my debt to the Endow- two or more creditor agencies are seek- ment be collected by offset against some payment that another Federal ing administrative offsets, or where agency owes me? two or more debts are owed to a single creditor agency, the Endowment may, The Chairperson may request that in its discretion, allocate the amount funds due and payable to you by an- it owes to you to the creditor agencies other Federal agency instead be paid to in accordance with the best interest of the Endowment to satisfy a debt you the United States as determined by the owe to the Endowment. In requesting facts and circumstances of the par- administrative offset, the Endowment ticular case, paying special attention will certify in writing to the Federal to applicable statutes of limitations. agency that is holding funds for you: (a) That you owe the debt; § 1150.43 When may the Endowment (b) The amount and basis of the debt; make an offset in an expedited and manner? (c) That the Endowment has complied with the requirements of 31 The Endowment may effect an ad- U.S.C. 3716, its own administrative off- ministrative offset against a payment set regulations in this subpart, and the to be made to you before completion of applicable provisions of the Federal the procedures required by §§ 1150.41 Claims Collection Standards with re- and 1150.42 if failure to take the offset spect to providing you with due proc- would substantially jeopardize the En- ess. dowment’s ability to collect the debt and the time before the payment is to § 1150.42 What procedures will the En- be made does not reasonably permit dowment use to collect amounts I the completion of those procedures. An owe to a Federal agency by offset- expedited offset will be followed ting a payment that the Endowment promptly by the completion of those would otherwise make to me? procedures. Amounts recovered by off- (a) Any Federal agency may request set, but later found not to be owed to that the Endowment administratively the Endowment, will be promptly re- offset funds due and payable to you in funded.

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§ 1150.44 Can a judgment I have ob- SOURCE: 44 FR 22734, Apr. 17, 1979, unless tained against the United States be otherwise noted. used to satisfy a debt that I owe to the Endowment? Subpart A—General Provisions Collection by offset against a judgment obtained by a debtor against the § 1151.1 Purpose. United States will be accomplished in The purpose of this part is to imple- accordance with 31 U.S.C. 3728. ment section 504 of the Rehabilitation Act of 1973, which is designed to elimi- PART 1151—NONDISCRIMINATION nate discrimination on the basis of ON THE BASIS OF HANDICAP handicap in any program or activity receiving Federal financial assistance. Subpart A—General Provisions § 1151.2 Application. Sec. 1151.1 Purpose. This part applies to each recipient of 1151.2 Application. financial assistance from the National 1151.3 Definitions. Endowment for the Arts and to each 1151.4 Notice. program or activity that receives such 1151.5 Inconsistent State laws and effect of assistance. employment opportunities. 1151.6–1151.10 [Reserved] [44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003] Subpart B—Standards for Determining Who Are Handicapped Persons § 1151.3 Definitions. As used in this part, the term: 1151.11 Handicapped person. 1151.12 Qualified handicapped person. (a) The Act means the Rehabilitation 1151.13–1151.15 [Reserved] Act of 1973, Public Law 93–112, as amended by the Rehabilitation Act Subpart C—Discrimination Prohibited Amendments of 1974, (Pub. L. 93–516, 29 U.S.C. 706 et seq.) and the Comprehen- GENERAL sive Rehabilitation Services Amend- 1151.16 General prohibitions against dis- ments of 1978, (Pub. L. 95–602). crimination. (b) Section 504 means section 504 of 1151.17 Specific discriminatory actions pro- the Act. hibited. 1151.18 Illustrative examples. (c) Endowment means the National 1151.19–1151.20 [Reserved] Endowment for the Arts. (d) Chairman means the Chairman, ACCESSIBILITY National Endowment for the Arts. 1151.21 Discrimination prohibited. (e) Recipient means any state or its 1151.22 Existing facilities. political subdivision, any instrumen- 1151.23 New construction. tality of a state or its political subdivi- 1151.24 Historic properties. [Reserved] sion, any public or private agency, in- 1151.25–1151.30 [Reserved] stitution, organization, or other enti- EMPLOYMENT ty, or any person to which federal financial assistance is extended directly 1151.31 Discrimination prohibited. 1151.32 Reasonable accommodation. or through another recipient, including 1151.33 Employment criteria. any successor, assignee, or transferee 1151.34 Preemployment inquiries. of a recipient, but excluding the ulti- 1151.35–1151.40 [Reserved] mate beneficiary of the assistance. (f) Federal financial assistance means Subpart D—Enforcement any grant, loan, contract (other than a 1151.41 Assurances required. procurement contract or a contract of 1151.42 Self evaluation. insurance or guaranty), or any other 1151.43 Adoption of grievance procedures. arrangement by which the Endowment 1151.44 Endowment enforcement and com- provides or otherwise makes available pliance procedures. assistance in the form of: 1151.45–1151.50 [Reserved] (1) Funds; AUTHORITY: 29 U.S.C. 794. (2) Services of federal personnel; or

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(3) Real and personal property or any described in paragraph (h)(1), (2), or (3) interest in or use of such property, in- of this section. cluding: [44 FR 22734, Apr. 17, 1979, as amended at 68 (i) Transfers of leases of such prop- FR 51384, Aug. 26, 2003] erty for less than fair market value or for reduced consideration; and, § 1151.4 Notice. (ii) proceeds from a subsequent trans- (a) A recipient shall take appropriate fer or lease of such property if the fed- initial and continuing steps to notify eral share of its fair market value is participants, beneficiaries, applicants, not returned to the Federal Govern- and employees, including those with ment. impaired vision or hearing, and unions (g) Facility means all or any portion or professional organizations holding of buildings, structures, equipment, collective bargaining or professional roads, walks, parking lots, or other agreements with the recipient that it real or personal property or interest in does not discriminate on the basis of such property. handicap in violation of section 504 and (h) Program or activity means all of this part. The notification shall state, the operations of any entity described where appropriate, that the recipient in paragraphs (h)(1) through (4) of this does not discriminate in admission or section, any part of which is extended access to, or employment in, its pro- Federal financial assistance: grams or activities. Methods of initial (1)(i) A department, agency, special and continuing notification may in- purpose district, or other instrumen- clude the posting of notices, publica- tality of a State or of a local govern- tion in print, audio, and visual media, ment; or placement of notices in a recipient’s (ii) The entity of such State or local publication, and distribution of other government that distributes such as- written and verbal communications. sistance and each such department or agency (and each other State or local (b) If a recipient publishes or uses re- government entity) to which the as- cruitment materials or publications sistance is extended, in the case of as- containing general information that it sistance to a State or local govern- makes available to participants, bene- ment; ficiaries, applicants, or employees, it (2)(i) A college, university, or other shall include in those materials or pub- postsecondary institution, or a public lications a statement of the policy de- system of higher education; or scribed in paragraph (a) of this section. (ii) A local educational agency (as de- A recipient may meet the requirement fined in 20 U.S.C. 7801), system of voca- of this paragraph either by including tional education, or other school sys- appropriate inserts in existing mate- tem; rials and publications or by revising (3)(i) An entire corporation, partner- and reprinting the materials and publi- ship, or other private organization, or cations. an entire sole proprietorship— [44 FR 22734, Apr. 17, 1979, as amended at 68 (A) If assistance is extended to such FR 51384, Aug. 26, 2003] corporation, partnership, private organization, or sole proprietorship as a § 1151.5 Inconsistent State laws and ef- whole; or fect of employment opportunities. (B) Which is principally engaged in (a) Recipients are not excused from the business of providing education, complying with this part as a result of health care, housing, social services, or state or local laws which limit the eli- parks and recreation; or gibility of handicapped persons to re- (ii) The entire plant or other com- ceive services or to practice a profes- parable, geographically separate facil- sion or occupation. ity to which Federal financial assist- (b) The presence of limited employ- ance is extended, in the case of any ment opportunities in a particular pro- other corporation, partnership, private fession does not excuse a recipient organization, or sole proprietorship; or from complying with the regulation. (4) Any other entity which is estab- For example, a music school receiving lished by two or more of the entities Endowment financial assistance could

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not deny admission to a qualified blind hearing, speaking, breathing, learning, applicant because a blind singer may and working. experience more difficulty than a non- (3) Has a record of such an impairment handicapped singer in finding a job. means has a history of, or has been misclassified as having, a mental or §§ 1151.6–1151.10 [Reserved] physical impairment that substantially limits one or more major life activi- Subpart B—Standards for Deter- ties. mining Who Are Handi- (4) Is regarded as having an impairment capped Persons means: (i) Has a physical or mental impair- § 1151.11 Handicapped person. ment that does not substantially limit major life activities but that is treated (a) Handicapped person means any by a recipient as constituting such a person who has a physical or mental limitation; impairment that substantially limits (ii) Has a physical or mental impair- one or more major life activities, has a ment that substantially limits major record of such an impairment, or is re- life activities only as a result of the at- garded as having such an impairment. titudes of others toward such impair- For purposes of section 504, in connec- ment; tion with employment, this term does (iii) Has none of the impairments de- not include any individual who is an al- fined in paragraph (b)(1) of this section coholic or drug abuser whose current but is treated by a recipient as having use of alcohol or drugs prevents such such an impairment. individual from performing the duties of the job in question or whose employ- § 1151.12 Qualified handicapped per- ment, by reason of such current alco- son. hol or drug abuse, would constitute a Qualified handicapped person means: direct threat to the property or safety (a) With respect to employment, a of others. handicapped person who, with reason- (b) As used in paragraph (a) of this able accommodation, can perform the section, the phrase: essential functions of the job in ques- (1) Physical or mental impairment tion; and means: (b) With respect to services, a handi- (i) Any physiological disorder or con- capped person who meets the essential dition, cosmetic disfigurement, or ana- eligibility requirements for the receipt tomical loss affecting one or more of of such services. the following body systems: Neuro- logical; musculoskeletal; special sense §§ 1151.13–1151.15 [Reserved] organs; respiratory, including speech organs; cardiovascular; reproductive; Subpart C—Discrimination digestive; genito-urinary; hemic and Prohibited lymphatic; skin; and endocrine; or (ii) Any mental or psychological dis- GENERAL order, such as mental retardation, organic brain syndrome, emotional and § 1151.16 General prohibitions against mental illness, and specific learning discrimination. disabilities. The term physical or mental (a) No qualified handicapped person impairment includes, but is not limited shall, on the basis of handicap, be ex- to, such diseases and conditions as or- cluded from participation in, be denied thopedic, visual, speech, and hearing the benefits of, or otherwise be sub- impairments, cerebral palsy, epilepsy, jected to discrimination under any pro- muscular dystrophy, multiple sclerosis, gram or activity which receives federal cancer, heart disease, diabetes, mental financial assistance. retardation, emotional illness, and (b) These regulations do not prohibit drug addiction and alcoholism. the exclusion of nonhandicapped per- (2) Major life activities means func- sons or persons with a specific type of tions such as caring for one’s self, per- handicap from aid, benefits, or services forming manual tasks, walking, seeing, limited by Federal statute or executive

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order to handicapped persons or per- discriminates on the basis of handicap sons with a different type of handicap. in providing any aid, benefit, or service (c) Recipients shall take appropriate to beneficiaries of the recipient’s pro- steps to insure that no handicapped in- gram or activity; dividual is denied the benefits of, ex- (6) Deny a qualified handicapped per- cluded from participation in, or other- son the opportunity to participate as a wise subjected to discrimination in any member of planning or advisory boards; program or activity receiving Endow- or ment financial assistance because of (7) Otherwise limit a qualified handi- the absence of appropriate auxiliary capped person in the enjoyment of any aids for individuals with impaired sen- right, privilege, advantage, or oppor- sory, manual, or speaking skills. tunity enjoyed by others receiving an (d) Recipients shall take appropriate aid, benefit, or service. steps to insure that communications (b) Despite the existence of separate with their applicants, employees, and or different aid, benefits, or services beneficiaries are available to persons provided in accordance with this part, with impaired vision and hearing. a recipient may not deny a qualified (e) Recipients shall administer pro- handicapped person the opportunity to grams or activities in the most inte- participate in such aid, benefits, or grated setting appropriate to the needs services that are not separate or dif- of qualified handicapped persons. ferent. [44 FR 22734, Apr. 17, 1979, as amended at 68 (c) A recipient may not, directly or FR 51384, Aug. 26, 2003] through contractual or other arrangements, utilize criteria or methods of § 1151.17 Specific discriminatory ac- administration: tions prohibited. (1) That have the effect of subjecting (a) A recipient, in providing any aid, qualified handicapped persons to dis- benefit, or service, either directly or crimination on the basis of handicap; through contractual, licensing, or (2) That have the purpose or effect of other arrangements, shall not, on the defeating or substantially impairing basis of handicap: accomplishment of the objectives of (1) Deny a qualified handicapped per- the recipient’s program or activity son the opportunity to participate in with respect to handicapped persons; or or benefit from the aid, benefit, or (3) That perpetuate the discrimina- service; tion of another recipient if both recipi- (2) Afford a qualified handicapped ents are subject to common adminis- person an opportunity to participate in trative control or are agencies of the or benefit from the aid, benefit, or same state. service that is not equal to that af- (d) A recipient may not, in deter- forded others; mining the site or location of a facil- (3) Provide a qualified handicapped ity, make selections: person with an aid, benefit, or service (1) That have the effect of excluding that is not as effective in affording handicapped persons from, denying equal opportunity to obtain the same them the benefits of, or otherwise sub- result, to gain the same benefit, or to jecting them to discrimination under reach the same level of achievement as any program or activity that receives that provided to others; federal financial assistance; or (4) Provide different or separate aid, (2) That have the purpose or effect of benefits, or services to handicapped defeating or substantially impairing persons or to any class of handicapped the accomplishment of the objectives persons unless such action is necessary of the program or activity with respect to provide qualified handicapped per- to handicapped persons. sons with aid, benefits, or services that (e) As used in this section, the aid, are as effective as those provided to benefit, or service provided under a others; program or activity receiving federal (5) Aid or perpetuate discrimination financial assistance includes any aid, against a qualified handicapped person benefit, or service provided in or by providing significant assistance to through a facility that has been con- an agency, organization, or person that structed, expanded, altered, leased or

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rented, or otherwise acquired, in whole federal funds so as to ensure that or in part, with federal financial assist- handicapped persons are not subjected ance. to discrimination on the basis of handi- [44 FR 22734, Apr. 17, 1979, as amended at 68 cap either by sub-grantees or by the FR 51384, Aug. 26, 2003] manner in which the funds are distributed. § 1151.18 Illustrative examples. (d) In the event Endowment funds are (a) The following examples will illus- utilized to construct, expand, alter, trate the application of the foregoing lease or rent a facility, the aid, bene- provisions to some of the activities fits, or services provided in or through funded by the National Endowment for that facility must be conducted in ac- the Arts. cordance with these regulations, e.g., a (1) A museum exhibition catalogue or museum receiving a grant to renovate small press editions supported by the an existing facility must assure that Endowment may be made usable by the all museum aid, benefits, or services blind and the visually impaired conducted in that facility are acces- through cassette tapes, records, discs, sible to handicapped persons. braille, readers and simultaneous pub- (e) In carrying out the mandate of lications; section 504 and these implementing (2) A theatre performance supported regulations recipients should make by Federal funds may be made avail- every effort to administer Endowment able to deaf and hearing impaired persons through the use of a sign language assisted programs or activities in a set- interpreter or by providing scripts in ting in which able-bodied and disabled advance of the performance. persons are integrated, e.g., tours made (3) A performing arts organization re- available to the hearing impaired ceiving Federal funds and offering, for should be open to the public at large example, a specific event in an inacces- and everyone should be permitted to sible facility may arrange to provide a enjoy the benefits of a tactile experi- reasonable opportunity for that spe- ence in a museum. cific event to be offered to the public [44 FR 22734, Apr. 17, 1979, as amended at 68 at large in an alternative accessible FR 51384, Aug. 26, 2003] space; e.g., a theatre offering four different plays a season may offer at least §§ 1151.19–1151.20 [Reserved] one performance of each play in an alternative accessible space. ACCESSIBILITY (4) Recipients of federal funds should make every effort to assure that they § 1151.21 Discrimination prohibited. do not support organizations or indi- No qualified handicapped person viduals that discriminate; shall, because a recipient’s facilities (5) A handicapped person with experi- are inaccessible to or unusable by ence and expertise equal to qualifica- handicapped persons, be denied the tion standards established by a plan- benefits of, be excluded from participa- ning or advisory board may not be ex- tion in, or otherwise be subjected to cluded from participation on the board discrimination under any program or on the basis of handicap. This does not activity to which this part applies. mean that every planning or advisory board necessarily must include a § 1151.22 Existing facilities. handicapped person. (b) Despite the existence of permis- (a) A recipient shall operate each sible separate or different aid, benefits, program or activity to which this part or services, e.g., periodic performances applies so that when each part is in alternative accessible spaces, a viewed in its entirety it is readily ac- physically handicapped person who cessible to and usable by handicapped wishes to be, and can be, escorted to a persons. This paragraph does not nec- seat, may not be denied such access to essarily require a recipient to make an otherwise inaccessible theatre. each of its existing facilities or every (c) State arts agencies are obligated part of a facility accessible to and usa- to develop methods of administering ble by handicapped persons.

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(b) A recipient may comply with the section and, if the time period of the requirement f paragraph (a) of this sec- transition plan is longer than one year, tion through alteration of existing fa- identify steps that will be taken during cilities, the construction of new facili- each year of the transition period; and ties, or any other methods that result (4) Indicate the person responsible for in making its program or activity ac- implementation of the plan. cessible to handicapped persons. A re- [44 FR 22734, Apr. 17, 1979, as amended at 68 cipient is not required to make struc- FR 51384, Aug. 26, 2003] tural changes in existing facilities where other methods are effective in § 1151.23 New construction. achieving compliance with paragraph (a) Design, construction, and alteration. (a) of this section. In choosing among New facilities shall be designed and available methods for meeting the re- constructed to be readily accessible to quirement of paragraph (a) of this sec- and usable by handicapped persons. Al- tion, a recipient shall give priority to terations to existing facilities shall, to those methods that serve handicapped the maximum extent feasible, be de- persons in the most integrated setting signed and constructed to be readily appropriate. accessible to and usable by handi- (c) Time period. A recipient shall com- capped persons. ply with the requirement of paragraph (a) of this section within sixty days of (b) Conformance with Uniform Federal the effective date of this part except Accessibility Standards. (1) Effective as that where structural changes are nec- of January 18, 1991, design, construc- essary such changes shall be made as tion, or alteration of buildings in con- soon as possible but in no event later formance with sections 3-8 of the Uni- than three years after the effective form Federal Accessibility Standards date of this part. (USAF) (appendix A to 41 CFR subpart (d) Transition plan. In the event 101–19.6) shall be deemed to comply structural changes to facilities are nec- with the requirements of this section essary to meet the requirement of with respect to those buildings. Depar- paragraph (a) of this section, a recipi- tures from particular technical and ent shall develop, within one year of scoping requirements of UFAS by the the effective date of this part, a transi- use of other methods are permitted tion plan setting forth the steps nec- where substantially equivalent or essary to complete such changes. The greater access to and usability of the plan shall be developed with the assist- building is provided. ance of interested persons, including (2) For purposes of this section, sec- handicapped persons or organizations tion 4.1.6(1)(g) of UFAS shall be inter- representing handicapped persons. preted to exempt from the require- Upon request, the recipient shall make ments of UFAS only mechanical rooms available for public inspection a copy and other spaces that, because of their of the transition plan. The plan shall, intended use, will not require accessi- at a minimum: bility to the public or beneficiaries or (1) Identify physical obstacles in the result in the employment or residence recipient’s facilities that limit the ac- therein of persons with physical handi- cessibility of its program or activity to caps. handicapped persons; (3) This section does not require re- (2) Describe in detail the methods cipients to make building alterations that will be used to make the facilities that have little likelihood of being ac- accessible; complished without removing or alter- (3) Specify the schedule for taking ing a load-bearing structural member. the steps necessary to achieve full ac- [44 FR 22734, Apr. 17, 1979, as amended at 55 cessibility under paragraph (a) of this FR 52138, 52142, Dec. 19, 1990]

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§ 1151.24 Historic properties. [Re- (7) Selection and financial support served] for training, including apprenticeship, professional meetings, conferences, and §§ 1151.25–1151.30 [Reserved] other related activities, and selection for leaves of absence to pursue train- EMPLOYMENT ing; (8) Employer sponsored activities, in- § 1151.31 Discrimination prohibited. cluding those that are social or rec- (a) No qualified handicapped person reational; and shall, on the basis of handicap, be sub- (9) Any other term, condition, or jected to discrimination in employ- privilege of employment. ment under any program or activity (e) A recipient’s obligation to comply that receives federal financial assist- with this subpart is not affected by any ance. inconsistent term of any collective (b) A recipient shall make all deci- bargaining agreement to which it is a sions concerning employment under party. any program or activity to which this part applies in a manner which ensures [44 FR 22734, Apr. 17, 1979, as amended at 68 that discrimination on the basis of FR 51384, Aug. 26, 2003] handicap does not occur and may not § 1151.32 Reasonable accommodation. limit, segregate, or classify applicants or employees in any way that ad- (a) A recipient shall make reasonable versely affects their opportunities or accommodation to the known physical status because of handicap. or mental limitations of an otherwise (c) A recipient may not participate in qualified handicapped applicant or em- a contractual or other relationship ployee unless the recipient can dem- that has the effect of subjecting quali- onstrate that the accommodation fied handicapped applicants or employ- would impose an undue hardship on the ees to discrimination prohibited by operation of its program or activity. this subpart. The relationships referred (b) Reasonable accommodation may to in this paragraph include relation- include: ships with employment and referral (1) Making facilities used by employ- agencies, with labor unions, with orga- ees readily accessible to and usable by nizations providing or administering handicapped persons; and fringe benefits to employees of the re- (2) Job restructuring, part-time or cipients, and with organizations pro- modified work schedules, acquisition, viding training and apprenticeships. or modification of equipment or de- (d) The prohibition against discrimi- vices, such as use of telecommuni- nation in employment applies to the cation devices and amplifiers on tele- following activities: phones, the provision of readers or in- (1) Recruitment, advertising, and the terpreters, and other similar actions. processing of applications for employ- (c) In determining pursuant to para- ment; graph (a) of this section whether an ac- (2) Hiring, upgrading, promotion, commodation would impose an undue award of tenure, demotion, transfer, hardship on the operation of a recipi- layoff, termination, right of return ent’s program or activity, factors to be from layoff, and rehiring; considered include: (3) Rates of pay or any other form of (1) The overall size of the recipient’s compensation and changes in com- program or activity with respect to pensation; number of employees, number and type (4) Job assignments, job classifica- of facilities, and size of budget; tions, organizational structures, posi- (2) The type of the recipient’s oper- tion descriptions, lines of progression, ation, including the composition and and seniority lists; structure of the recipient’s workforce; (5) Leaves of absences, sick leave, or and any other leave; (3) The nature and cost of the accom- (6) Fringe benefits available by vir- modation needed. tue of employment, whether or not ad- [44 FR 22734, Apr. 17, 1979, as amended at 68 ministered by the recipient; FR 51384, Aug. 26, 2003]

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§ 1151.33 Employment criteria. confidential as provided in paragraph (a) A recipient may not make use of (c) of this section, that refusal to pro- any employment test or other selection vide it will not subject the applicant or criterion that screens out or tends to employee to any adverse treatment, screen out handicapped persons or any and that it will be used only in accord- class of handicapped persons unless: ance with this part. (1) The test score or other selection (b) Nothing in this section shall pro- criterion, as used by the recipient, is hibit a recipient from conditioning an shown to be job-related for the position offer of employment on the results of a in question; and medical examination conducted prior (2) Alternative job-related tests or to the employee’s entrance on duty, criteria are unavailable. provided, that: (b) A recipient shall select and ad- (1) All entering employees are sub- minister tests concerning employment jected to such an examination regard- so as best to ensure that, when admin- less of handicap; and istered to an applicant or employee (2) The results of such an examina- who has a handicap that impairs sen- tion are used only in accordance with sory, manual, or speaking skills, the the requirements of this part. test results accurately reflect the ap- (c) Information obtained in accord- plicant’s or employee’s job skills, apti- ance with this section as to the med- tude, or other factors relevant to ade- ical condition or history of the appli- quate performance of the job in ques- cant shall be collected and maintained tion. on separate forms that shall be accorded confidentiality as medical § 1151.34 Preemployment inquiries. records, except that: A recipient may not, except as pro- (1) Supervisors and managers may be vided below, conduct a preemployment informed regarding restrictions on the medical examination, make preemploy- work or duties of handicapped persons ment inquiry as to whether the appli- and regarding necessary accommoda- cant is a handicapped person, or in- tions; quire as to the nature or severity of a (2) First aid and safety personnel handicap. A recipient may, however, may be informed, where appropriate, if make preemployment inquiry into an the condition might require emergency applicant’s ability to perform job-re- treatment; and lated functions. (3) Government officials inves- (a) When a recipient is taking reme- tigating compliance with the Act shall dial action to correct the effects of be provided relevant information upon past discrimination, when a recipient request. is taking voluntary action to overcome the effects of conditions that resulted [44 FR 22734, Apr. 17, 1979; 45 FR 57129, Aug. in limited participation in its federally 27, 1980] assisted program or activity, or when a §§ 1151.35–1151.40 [Reserved] recipient is taking affirmative action pursuant to section 504 of the Act, the recipient may invite applicants for em- Subpart D—Enforcement ployment to indicate whether and to what extent they are handicapped, pro- § 1151.41 Assurances required. vided, that: (a) An applicant for federal financial (1) The recipient states clearly on assistance to which this part applies any written questionnaire used for this shall submit an assurance, on a form purpose or makes clear orally if no specified by the Chairman, that the written questionnaire is used that the program or activity will be operated in information requested is intended for compliance with this part. An appli- use solely in connection with its reme- cant may incorporate these assurances dial action obligations or its voluntary by reference in subsequent applications or affirmative action efforts; and to the Endowment. (2) The recipient states clearly that (b) Duration of obligation. (1) In the the information is being requested on a case of federal financial assistance ex- voluntary basis, that it will be kept tended to provide personal property,

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the assurance will obligate the recipi- (iii) A description of any modifica- ent for the period during which it re- tions made and of any remedial steps tains ownership or possession of the taken. property. (5) The completed self-evaluation (2) In all other cases the assurance should be signed by a responsible offi- will obligate the recipient for the pe- cial designated to coordinate the re- riod during which federal financial as- cipient’s efforts in connection with this sistance is extended. section. (c) Covenants. Where property is purchased or improved with federal finan- § 1151.43 Adoption of grievance proce- cial assistance, the recipient shall dures. agree to include in any instrument ef- A recipient may adopt an internal fecting or recording any transfer of the grievance procedure in order to provide property a covenant running with the for the prompt and equitable resolution property assuring nondiscrimination of complaints alleging any action pro- for the period during which the real hibited by this part. A responsible offi- property is used for a purpose for which cial should be designated to coordinate the federal financial assistance is ex- the recipient’s efforts in connection tended or for another purpose involving with this section. Such procedures need the provision of similar services or not be established with respect to com- benefits. plaints from applicants for employment. [44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003] § 1151.44 Endowment enforcement and compliance procedures. § 1151.42 Self evaluation. The procedural provisions applicable (a) A recipient shall within six to title VI of the Civil Rights Act of months of the effective date of this 1964 apply to this part. These proce- part: dures are found in §§ 1110.8 through (1) Evaluate, with the assistance of 1110.11 of part 1110 of this title. interested persons, including handicapped persons or organizations rep- §§ 1151.45–1151.50 [Reserved] resenting handicapped persons, its current policies and practices and the ef- PART 1152—INTERGOVERNMENTAL fects thereof that do not or may not REVIEW OF NATIONAL ENDOW- meet the requirements of this part; MENT FOR THE ARTS PROGRAMS (2) Modify, after consultation with interested persons, including handi- AND ACTIVITIES capped persons or organizations representing handicapped persons, any Sec. 1152.1 What is the purpose of these regula- policies and practices that do not meet tions? the requirements of this part; and 1152.2 What definitions apply to these regu- (3) Take, after consultation with in- lations? terested persons, including handi- 1152.3 What programs and activities of the capped persons or organizations rep- Endowment are subject to these regula- resenting handicapped persons, appro- tions? priate remedial steps to eliminate the 1152.4 What are the Chairman’s general re- effects of any discrimination that responsibilities under the Order? 1152.5 What is the Chairman’s obligation sulted from adherence to these policies with respect to Federal interagency co- and practices. ordination? (4) Maintain on file, make available 1152.6 What procedures apply to the selec- for public inspection, and provide to tion of programs and activities under the Endowment upon request, for at these regulations? least three years following completion 1152.7 How does the Chairman communicate of the self-evaluation: with state and local officials concerning the Endowment’s programs and activi- (i) A list of the interested persons ties? consulted; 1152.8 How does the Chairman provide (ii) A description of areas examined states with an opportunity to comment and any problems identified; and, on proposed Federal financial assistance?

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1152.9 How does the Chairman receive and wealth of the Northern Mariana Is- respond to comments? lands, Guam, American Samoa, the 1152.10 How does the Chairman make efforts U.S. Virgin Islands, or the Trust Terri- to accommodate intergovernmental concerns? tory of the Pacific Islands. 1152.11 What are the Chairman’s obligations in interstate situations? § 1152.3 What programs and activities 1152.12 How may a state simplify, consoli- of the Endowment are subject to date, or substitute federally required these regulations? state plans? The Chairman publishes in the FED- 1152.13 May the Chairman waive any provision of these regulations? ERAL REGISTER a list of the Endow- ment’s programs and activities that AUTHORITY: E.O. 12372, July 14, 1982 (47 FR are subject to these regulations. 30959), as amended April 8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Coopera- tion Act of 1968, as amended (31 U.S.C. 6506) § 1152.4 What are the Chairman’s general responsibilities under the SOURCE: 48 FR 29352, June 24, 1983, unless Order? otherwise noted. (a) The Chairman provides opportuni- § 1152.1 What is the purpose of these ties for consultation by elected offi- regulations? cials of those state and local govern- (a) The regulations in this part im- ments that would provide the non-Fed- plement Executive Order 12372, ‘‘Inter- eral funds for, or that would be directly governmental Review of Federal Pro- affected by, proposed Federal financial grams,’’ issued July 14, 1982 and amend- assistance from the Endowment. ed on April 8, 1983. These regulations (b) If a state adopts a process under also implement applicable provisions of the Order to review and coordinate pro- section 401 of the Intergovernmental posed Federal financial assistance the Cooperation Act of 1968. Chairman, to the extent permitted by (b) these regulations are intended to law: foster an intergovernmental partner- (1) Uses the state process to deter- ship and a strengthened Federalism by mine official views of state and local relying on state processes and on state, elected officials; areawide, regional and local coordina- (2) Communicates with state and tion for review of proposed Federal fi- local elected officials as early in a pro- nancial assistance and direct Federal gram planning cycle as is reasonably development. feasible to explain specific plans and (c) These regulations are intended to actions; improve the internal management of the Endowment, and are not intended (3) Makes efforts to accommodate to create any right or benefit enforce- state and local elected officials’ con- able at law by a party against the En- cerns with proposed Federal financial dowment or its officers. assistance that is communicated through the state process; § 1152.2 What definitions apply to (4) Allows the states to simplify and these regulations? consolidate existing federally required Chairman means the Chairman of the state plan submissions; National Endowment for the Arts or an (5) Where state planning and budg- official or employee of the Endowment eting systems are sufficient and where acting for the Chairman under a dele- permitted by law, encourages the sub- gation of authority. stitution of state plans for federally re- Endowment means the National En- quired state plans; dowment for the Arts. (6) Seeks the coordination of views of Order means Executive Order 12372, affected state and local elected offi- issued July 14, 1982, and amended April cials in one state with those of another 8, 1983 and titled ‘‘Intergovernmental state when proposed Federal financial Review of Federal Programs.’’ assistance has an impact on interstate State means any of the 50 states, the District of Columbia, the Common- metropolitan urban centers or other wealth of Puerto Rico, the Common- interstate areas; and

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(7) Supports state and local govern- proposed Federal financial assistance ments by discouraging the reauthoriza- if— tion or creation of any planning orga- (1) The state has not adopted a proc- nization which is federally-funded, ess under the Order; or which has a limited purpose, and which (2) The assistance or development is is not adequately representative of, or under program or activity not selected accountable to, state or local elected for the state process. officials. This notice is made by the publication § 1152.5 What is the Chairman’s obliga- in the FEDERAL REGISTER or other ap- tion with respect to Federal inter- propriate means which the Endowment agency coordination? in its discretion deems appropriate. The Chairman to the extent practicable, consults with and seeks advice § 1152.8 How does the Chairman provide states with an opportunity to from all other substantially affected comment on proposed Federal fi- Federal departments and agencies in nancial assistance? an effort to assure full coordination between such agencies and the Endow- (a) Except in unusual circumstance, ment regarding programs and activi- the Chairman gives state processes or ties covered under these regulations. directly affected state, areawide, regional and local officials and entities— § 1152.6 What procedures apply to the (1) [Reserved] selection of programs and activities (2) At least 60 days from the date es- under these regulations? tablished by the Chairman to comment (a) A state may select any program on proposed Federal financial assist- or activity published in the FEDERAL ance. REGISTER in accordance with § 1152.3 of (b) This section also applies to com- this part for intergovernmental review ments in cases in which the review, co- under these regulations. Each state, ordination, and communication with before selecting programs and activi- the Endowment have been delegated. ties shall consult with local elected officials. § 1152.9 How does the Chairman re- (b) Each state that adopts a process ceive and respond to comments? shall notify the Chairman of the En- (a) The Chairman follows the proce- dowment’s programs and activities se- dures in § 1152.10 if: lected for that process. (1) A state office or official is des- (c) A state may notify the Chairman ignated to act as a single point of con- of changes in its selections at any tact between a state process and all time. For each change, the state shall Federal agencies; and submit to the Chairman an assurance (2) That office or official transmits a that the state has consulted with elect- state process recommendation for a ed local officials regarding the change. program selected under § 1152.6. The Endowment may establish deadlines by which states are required to (b)(1) The single point of contact is inform the Chairman of changes in not obligated to transmit comments their program selections. from state, areawide, regional or local (d) The Chairman uses a state’s proc- officials and entities where there is no ess as soon as feasible, depending on in- state process recommendation. dividual programs and activities, after (2) If a state process recommendation the Chairman is notified of its selec- is transmitted by a single point of con- tions. tact, all comments from state, areawide, regional, and local officials § 1152.7 How does the Chairman com- and entities that differ from it must municate with state and local offi- also be transmitted. cials concerning the Endowment’s (c) If a state has not established a programs and activities? process, or is unable to submit a state (a) [Reserved] process recommendation, state, (b) The Chairman provides notice to areawide, regional and local officials directly affected state, areawide, re- and entities may submit comments to gional, and local entities in a state of the Endowment.

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(d) If a program or activity is not se- § 1152.11 What are the Chairman’s ob- lected for a state process, state, ligations in interstate situations? areawide, regional and local officials (a) The Chairman is responsible for: and entities may submit comments to (1) Identifying proposed Gederal fi- the Endowment. In addition, if a state nancial assistance that has an impact process recommendation for a non- on interstate areas; selected program or activity is trans- (2) Notifying appropriate officials mitted to the Endowment by the single and entities in states which have point of contact, the Chairman follows adopted a process and which select the the procedure of § 1152.10 of this part. Endowment’s program or activity; (e) The Chairman considers com- (3) Making efforts to identify and no- ments which do not constitute a state tify the affected state, areawide, reprocess recommendation submitted gional, and local officials and entities under these regulations and for which in those states that have not adopted a the Chairman is not required to apply process under the Order or do not se- the procedures of § 1152.10 of this part, lect the Endowment’s program or ac- when such comments are provided by a tivity; single point of contact or directly to (4) Responding pursuant to § 1152.10 of the Endowment by a commenting this part if the Chairman receives a party. recommendation from a designated areawide agency transmitted by a sin- § 1152.10 How does the Chairman make efforts to accommodate inter- gle point of contact, in cases in which governmental concerns? the review, coordination, and communication with the Endowment have (a) If a state process provides a state been delegated. process recommendation to the Endow- (b) The Chairman uses the procedures ment through its single point of con- in § 1152.10 if a state process provides a tact, the Chairman either: state process recommendation to the (1) Accepts the recommendation; Endowment through a single point of (2) Reaches a mutually agreeable so- contact. lution with the state process; or (3) Provides the single point of con- § 1152.12 How may a state simplify, tact with such written explanation of consolidate, or substitute federally the decision, as the Chairman in his or required state plans? her discretion deems appropriate. The (a) As used in this section: Chairman may supplement the written (1) Simplify means that a state may explanation by also providing the ex- develop its own format, choose its own planation to the single point of contact submission date, and select the plan- by telephone other telecommunication, ning period for a state plan. or other means. (2) Consolidate means that a state (b) In any explanation under para- may meet statutory and regulatory re- graph (a)(3) of this section the Chair- quirements by combining two or more man informs the single point of con- plans into one document and that the tact that: state can select the format, submission (1) The Endowment will not imple- date, and planning period for the con- ment its decision for ten days after the solidated plan. single point of contact receives the ex- (3) Substitute means that a state may planation; or use a plan or other document that it (2) The Chairman has reviewed the has developed for its own purposes to decision and determined that, because meet Federal requirements. of unusual circumstances, the ten-day (b) If not inconsistent with law, a waiting period is not feasible. state may decide to try to simplify, (c) For purposes of computing the consolidate, or substitute Federally re- waiting period under paragraph (b)(1) quired state plans without prior ap- of this section, a single point of con- proval by the Chairman. tact is presumed to have received writ- (c) The Chairman reviews each state ten notification 5 days after the date of plan that a state has simplified, con- mailing of such notification. solidated, or substituted and accepts

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the plan only if it meets Federal re- § 1153.103 Definitions. quirements. For purposes of this part, the term— Assistant Attorney General means the § 1152.13 May the Chairman waive any provision of these regulations? Assistant Attorney General, Civil Rights Division, United States Depart- In an emergency, the Chairman may ment of Justice. waive any provision of these regula- Auxiliary aids means services or de- tions. vices that enable persons with impaired sensory, manual, or speaking PART 1153—ENFORCEMENT OF skills to have an equal opportunity to NONDISCRIMINATION ON THE participate in, and enjoy the benefits BASIS OF HANDICAP IN PRO- of, programs or activities conducted by GRAMS OR ACTIVITIES CON- the agency. For example, auxiliary aids useful for persons with impaired vision DUCTED BY THE NATIONAL EN- include readers, brailled materials, DOWMENT FOR THE ARTS audio recordings, telecommunications devices and other similar services and Sec. devices. Auxiliary aids useful for per- 1153.101 Purpose. sons with impaired hearing include 1153.102 Application. telephone handset amplifiers, tele- 1153.103 Definitions. phones compatible with hearing aids, 1153.104–1153.109 [Reserved] 1153.110 Self-evaluation. telecommunication devices for deaf 1153.111 Notice. persons (TDD’s), interpreters, 1153.112–153.129 [Reserved] notetakers, written materials, and 1153.130 General prohibitions against dis- other similar services and devices. crimination. Complete complaint means a written 1153.131–1153.139 [Reserved] statement that contains the complain- 1153.140 Employment. ant’s name and address and describes 1153.141–1153.148 [Reserved] the agency’s alleged discriminatory ac- 1153.149 Program accessibility: Discrimina- tion in sufficient detail to inform the tion prohibited. agency of the nature and date of the al- 1153.150 Program accessibility: Existing fa- leged violation of section 504. It shall cilities. be signed by the complainant or by 1153.151 Program accessibility: New construction and alterations. someone authorized to do so on his or 1153.152–1153.159 [Reserved] her behalf. Complaints filed on behalf 1153.160 Communications. of classes or third parties shall describe 1153.161–1153.169 [Reserved] or identify (by name, if possible) the 1153.170 Compliance procedures. alleged victims of discrimination. 1153.171–1153.999 [Reserved] Facility means all or any portion of AUTHORITY: 29 U.S.C. 794. buildings, structures, equipment, roads, walks, parking lots, rolling SOURCE: 51 FR 22895, 22896, June 23, 1986, stock or other conveyances, or other unless otherwise noted. real or personal property. § 1153.101 Purpose. Handicapped person means any person who has a physical or mental impair- This part effectuates section 119 of ment that substantially limits one or the Rehabilitation, Comprehensive more major life activities, has a record Services, and Developmental Disabil- of such an impairment, or is regarded ities Amendments of 1978, which as having such an impairment. amended section 504 of the Rehabilita- As used in this definition, the phrase: tion Act of 1973 to prohibit discrimina- (1) Physical or mental impairment in- tion on the basis of handicap in pro- cludes— grams or activities conducted by Exec- (i) Any physiological disorder or con- utive agencies or the United States dition, cosmetic disfigurement, or ana- Postal Service. tomical loss affecting one or more of the following body systems: Neuro- § 1153.102 Application. logical; musculoskeletal; special sense This part applies to all programs or organs; respiratory, including speech activities conducted by the agency. organs; cardiovascular; reproductive;

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digestive; genitourinary; hemic and regulation, or agency policy to receive lymphatic; skin; and endocrine; or education services from the agency. (ii) Any mental or psychological dis- (2) With respect to any other agency order, such as mental retardation, or- program or activity under which a per- ganic brain syndrome, emotional or son is required to perform services or mental illness, and specific learning to achieve a level of accomplishment, a disabilities. The term physical or mental handicapped person who meets the es- impairment includes, but is not limited sential eligibility requirements and to, such diseases and conditions as or- who can acheive the purpose of the pro- thopedic, visual, speech, and hearing gram or activity without modifications impairments, cerebral palsy, epilepsy, in the program or activity that the muscular dystrophy, multiple sclerosis, agency can demonstrate would result cancer, heart disease, diabetes, mental in a fundamental alteration in its na- retardation, emotional illness, and ture; drug addiction and alocoholism. (3) With respect to any other pro- (2) Major life activities includes func- gram or activity, a handicapped person tions such as caring for one’s self, performing manual tasks, walking, seeing, who meets the essential eligibility re- hearing, speaking, breathing, learning, quirements for participation in, or re- and working. ceipt of benefits from, that program or (3) Has a record of such an impairment activity; and means has a history of, or has been (4) Qualified handicapped person is de- misclassified as having, a mental or fined for purposes of employment in 29 physical impairment that substantially CFR 1613.702(f), which is made applica- limits one or more major life activi- ble to this part by § 1153.140. ties. Section 504 means section 504 of the (4) Is regarded as having an impairment Rehabilitation Act of 1973 (Pub. L. 93– means— 112, 87 Stat. 394 (29 U.S.C. 794)), as (i) Has a physical or mental impair- amended by the Rehabilitation Act ment that does not substantially limit Amendments of 1974 (Pub. L. 93–516, 88 major life activities but is treated by Stat. 1617), and the Rehabilitation, the agency as constituting such a limi- Comprehensive Services, and Develop- tation; mental Disabilities Amendments of (ii) Has a physical or mental impair- 1978 (Pub. L. 95–602, 92 Stat. 2955). As ment that substantially limits major used in this part, section 504 applies life activities only as a result of the at- only to programs or activities con- titudes of others toward such impair- ducted by Executive agencies and not ment; or to federally assisted programs. (iii) Has none of the impairments de- Substantial impairment means a sig- fined in paragraph (1) of this definition nificant loss of the integrity of finished but is treated by the agency as having materials, design quality, or special such an impairment. character resulting from a permanent Historic preservation programs means alteration. programs conducted by the agency that have preservation of historic properties §§ 1153.104–1153.109 [Reserved] as a primary purpose. Historic properties means those prop- § 1153.110 Self-evaluation. erties that are listed or eligible for (a) The agency shall, by August 24, listing in the National Register of His- 1987, evaluate its current policies and toric Places or properties designated as practices, and the effects thereof, that historic under a statute of the appro- do not or may not meet the require- priate State or local government body. ments of this part, and, to the extent Qualified handicapped person means— modification of any such policies and (1) With respect to preschool, elemen- practices is required, the agency shall tary, or secondary education services proceed to make the necessary modi- provided by the agency, a handicapped fications. person who is a member of a class of persons otherwise entitled by statute,

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(b) The agency shall provide an op- equal opportunity to obtain the same portunity to interested persons, includ- result, to gain the same benefit, or to ing handicapped persons or organiza- reach the same level of achievement as tions representing handicapped per- that provided to others; sons, to participate in the self-evalua- (iv) Provide different or separate aid, tion process by submitting comments benefits, or services to handicapped (both oral and written). persons or to any class of handicapped (c) The agency shall, until three persons than is provided to others un- years following the completion of the less such action is necessary to provide self-evaluation, maintain on file and qualified handicapped persons with aid, make available for public inspection: benefits, or services that are as effec- (1) A description of areas examined tive as those provided to others; and any problems identified, and (v) Deny a qualified handicapped per- (2) A description of any modifications son the opportunity to participate as a made. member of planning or advisory boards; or § 1153.111 Notice. (vi) Otherwise limit a qualified The agency shall make available to handicapped person in the enjoyment employees, applicants, participants, of any right, privilege, advantage, or beneficiaries, and other interested per- opportunity enjoyed by others receiv- sons such information regarding the ing the aid, benefit, or service. provisions of this part and its applica- (2) The agency may not deny a quali- bility to the programs or activities fied handicapped person the oppor- conducted by the agency, and make tunity to participate in programs or such information available to them in activities that are not separate or dif- such manner as the head of the agency ferent, despite the existence of permis- finds necessary to apprise such persons sibly separate or different programs or of the protections against discrimina- activities. tion assured them by section 504 and (3) The agency may not, directly or this regulation. through contractual or other arrangments, utilize criteria or meth- §§ 1153.112–1153.129 [Reserved] ods of administration the purpose or ef- § 1153.130 General prohibitions fect of which would— against discrimination. (i) Subject qualified handicapped per- (a) No qualified handicapped person sons to discrimination on the basis of shall, on the basis of handicap, be ex- handicap; or cluded from participation in, be denied (ii) Defeat or substantially impair ac- the benefits of, or otherwise be sub- complishment of the objectives of a jected to discrimination under any pro- program or activity with respect to gram or activity conducted by the handicapped persons. agency. (4) The agency may not, in deter- (b)(1) The agency, in providing any mining the site or location of a facil- aid, benefit, or service, may not, di- ity, make selections the purpose or ef- rectly or through contractual, licens- fect of which would— ing, or other arrangements, on the (i) Exclude handicapped persons basis of handicap— from, deny them the benefits of, or oth- (i) Deny a qualified handicapped per- erwise subject them to discrimination son the opportunity to participate in under any program or activity con- or benefit from the aid, benefit, or ducted by the agency; or service; (ii) Defeat or substantially impair (ii) Afford a qualified handicapped the accomplishment of the objectives person an opportunity to participate in of a program or activity with respect or benefit from the aid, benefit, or to handicapped persons. service that is not equal to that af- (5) The agency, in the selection of forded others; procurement contractors, may not use (iii) Provide a qualified handicapped criteria that subject qualified handi- person with an aid, benefit, or service capped persons to discrimination on that is not as effective in affording the basis of handicap.

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(6) The agency may not administer a § 1153.150 Program accessibility: Exist- licensing or certification program in a ing facilities. manner that subjects qualified handi- (a) General. The agency shall operate capped persons to discrimination on each program or activity so that the the basis of handicap, nor may the program or activity, when viewed in its agency establish requirements for the entirety, is readily accessible to and programs or activities of licensees or usable by handicapped persons. This certified entities that subject qualified paragraph does not— handicapped persons to discrimination (1) Necessarily require the agency to on the basis of handicap. However, the make each of its existing facilities ac- programs or activities of entities that cessible to and usable by handicapped are licensed or certified by the agency persons; are not, themselves, covered by this (2) In the case of historic preserva- part. tion programs, require the agency to (c) The exclusion of nonhandicapped take any action that would result in a persons from the benefits of a program substantial impairment of significant limited by Federal statute or Execu- historic features of an historic prop- tive order to handicapped persons or erty; or the exclusion of a specific class of (3) Require the agency to take any handicapped persons from a program action that it can demonstrate would limited by Federal statute or Execu- result in a fundamental alteration in tive order to a different class of handi- the nature of a program or activity or capped persons is not prohibited by in undue financial and administrative this part. burdens. In those circumstances where agency personnel believe that the pro- (d) The agency shall administer proposed action would fundamentally grams and activities in the most inte- alter the program or activity or would grated setting appropriate to the needs result in undue financial and adminis- of qualified handicapped persons. trative burdens, the agency has the burden of proving that compliance with §§ 1153.131–1153.139 [Reserved] § 1153.150(a) would result in such alter- § 1153.140 Employment. ation or burdens. The decision that compliance would result in such alter- No qualified handicapped person ation or burdens must be made by the shall, on the basis of handicap, be sub- agency head or his or her designee jected to discrimination in employ- after considering all agency resources ment under any program or activity available for use in the funding and op- conducted by the agency. The defini- eration of the conducted program or tions, requirements, and procedures of activity, and must be accompanied by section 501 of the Rehabilitation Act of a written statement of the reasons for 1973 (29 U.S.C. 791), as established by reaching that conclusion. If an action the Equal Employment Opportunity would result in such an alteration or Commission in 29 CFR part 1613, shall such burdens, the agency shall take apply to employment in federally con- any other action that would not result ducted programs or activities. in such an alteration or such burdens but would nevertheless ensure that §§ 1153.141–1153.148 [Reserved] handicapped persons receive the benefits and services of the program or ac- § 1153.149 Program accessibility: Dis- tivity. crimination prohibited. (b) Methods—(1) General. The agency Except as otherwise provided in may comply with the requirements of § 1153.150, no qualified handicapped per- this section through such means as re- son shall, because the agency’s facili- design of equipment, reassignment of ties are inaccessible to or unusable by services to accessible buildings, assign- handicapped persons, be denied the ment of aides to beneficiaries, home benefits of, be excluded from participa- visits, delivery of services at alternate tion in, or otherwise be subjected to accessible sites, alteration of existing discrimination under any program or facilities and construction of new fa- activity conducted by the agency. cilities, use of accessible rolling stock,

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or any other methods that result in or organizations representing handi- making its programs or activities read- capped persons, to participate in the ily accessible to and usable by handi- development of the transition plan by capped persons. The agency is not re- submitting comments (both oral and quired to make structural changes in written). A copy of the transition plan existing facilities where other methods shall be made available for public in- are effective in achieving compliance spection. The plan shall, at a min- with this section. The agency, in mak- imum— ing alterations to existing buildings, (1) Identify physical obstacles in the shall meet accessibility requirements agency’s facilities that limit the acces- to the extent compelled by the Archi- sibility of its programs or activities to tectural Barriers Act of 1968, as amend- handicapped persons; ed (42 U.S.C. 4151 through 4157), and any (2) Describe in detail the methods regulations implementing it. In choos- that will be used to make the facilities ing among available methods for meet- accessible; ing the requirements of this section, (3) Specify the schedule for taking the agency shall give priority to those the steps necessary to achieve compli- methods that offer programs and ac- ance with this section and, if the time tivities to qualified handicapped per- period of the transition plan is longer sons in the most integrated setting ap- than one year, identify steps that will propriate. be taken during each year of the tran- (2) Historic preservation programs. In sition period; and meeting the requirements of (4) Indicate the official responsible § 1153.150(a) in historic preservation for implementation of the plan. programs, the agency shall give priority to methods that provide physical § 1153.151 Program accessibility: New access to handicapped persons. In cases construction and alterations. where a physical alteration to an historic property is not required because Each building or part of a building of § 1153.150(a)(2) or (a)(3), alternative that is constructed or altered by, on methods of achieving program accessi- behalf of, or for the use of the agency bility include— shall be designed, constructed, or al- (i) Using audio-visual materials and tered so as to be readily accessible to devices to depict those portions of an and usable by handicapped persons. historic property that cannot other- The definitions, requirements, and wise be made accessible; standards of the Architectural Barriers (ii) Assigning persons to guide handi- Act (42 U.S.C. 4151 through 4157), as es- capped persons into or through por- tablished in 41 CFR 101–19.600 to 101– tions of historic properties that cannot 19.607, apply to buildings covered by otherwise be made accessible; or this section. (iii) Adopting other innovative methods. §§ 1153.152–1153.159 [Reserved] (c) Time period for compliance. The § 1153.160 Communications. agency shall comply with the obligations established under this section by (a) The agency shall take appropriate October 21, 1986, except that where steps to ensure effective communica- structural changes in facilities are un- tion with applicants, participants, per- dertaken, such changes shall be made sonnel of other Federal entities, and by August 22, 1989, but in any event as members of the public. expeditiously as possible. (1) The agency shall furnish appro- (d) Transition plan. In the event that priate auxiliary aids where necessary structural changes to facilities will be to afford a handicapped person an equal undertaken to achieve program acces- opportunity to participate in, and sibility, the agency shall develop, by enjoy the benefits of, a program or ac- February 23, 1987, a transition plan set- tivity conducted by the agency. ting forth the steps necessary to com- (i) In determining what type of auxil- plete such changes. The agency shall iary aid is necessary, the agency shall provide an opportunity to interested give primary consideration to the re- persons, including handicapped persons quests of the handicapped person.

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(ii) The agency need not provide indi- §§ 1153.161–1153.169 [Reserved] vidually prescribed devices, readers for personal use or study, or other devices § 1153.170 Compliance procedures. of a personal nature. (a) Except as provided in paragraph (2) Where the agency communicates (b) of this section, this section applies with applicants and beneficiaries by to all allegations of discrimination on telephone, telecommunication devices the basis of handicap in programs or for deaf person (TDD’s) or equally ef- activities conducted by the agency. fective telecommunication systems (b) The agency shall process com- shall be used. plaints alleging violations of section (b) The agency shall ensure that in- 504 with respect to employment accord- terested persons, including persons ing to the procedures established by with impaired vision or hearing, can the Equal Employment Opportunity obtain information as to the existence Commission in 29 CFR part 1613 pursu- and location of accessible services, ac- ant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The Director, Office for Civil (c) The agency shall provide signage Rights, shall be responsible for coordi- at a primary entrance to each of its in- nating implementation of this section. accessible facilities, directing users to Complaints may be sent to the Office of a location at which they can obtain in- General Counsel, National Endowment formation about accessible facilities. for the Arts, 1100 Pennsylvania Avenue The international symbol for accessi- NW., Washington, DC 20506. bility shall be used at each primary en- (d) The agency shall accept and in- trance of an accessible facility. vestigate all complete complaints for (d) This section does not require the which it has jurisdiction. All complete agency to take any action that it can complaints must be filed within 180 demonstrate would result in a funda- days of the alleged act of discrimina- mental alteration in the nature of a tion. The agency may extend this time program or activity or in undue finan- period for good cause. cial and adminstrative burdens. In (e) If the agency receives a complaint those circumstances where agency per- over which it does not have jurisdic- sonnel believe that the proposed action tion, it shall promptly notify the com- would fundamentally alter the program plainant and shall make reasonable ef- or activity or would result in undue fi- forts to refer the complaint to the ap- nancial and administrative burdens, propriate government entity. the agency has the burden of proving (f) The agency shall notify the Archi- that compliance with § 1153.160 would tectural and Transportation Barriers result in such alteration or burdens. Compliance Board upon receipt of any The decision that compliance would re- complaint alleging that a building or facility that is subject to the Architec- sult in such alteration or burdens must tural Barriers Act of 1968, as amended be made by the agency head or his or (42 U.S.C. 4151–4157), or section 502 of her designee after considering all agen- the Rehabilitation Act of 1973, as cy resources available for use in the amended (29 U.S.C. 792), is not readily funding and operation of the conducted accessible to and usable by handi- program or activity, and must be ac- capped persons. companied by a written statement of (g) Within 180 days of the receipt of a the reasons for reaching that conclu- complete complaint for which it has ju- sion. If an action required to comply risdiction, the agency shall notify the with this section would result in such complainant of the results of the inves- an alteration or such burdens, the tigation in a letter containing— agency shall take any other action (1) Findings of fact and conclusions that would not result in such an alter- of law; ation or such burdens but would never- (2) A description of a remedy for each theless ensure that, to the maximum violation found; and extent possible, handicapped persons (3) A notice of the right to appeal. receive the benefits and services of the (h) Appeals of the findings of fact and program or activity. conclusions of law or remedies must be

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filed by the complainant within 90 days Subpart D—Investigation, Conciliation, and of receipt from the agency of the letter Enforcement Procedures required by § 1153.170(g). The agency may extend this time for good cause. 1156.14 Compliance reviews. 1156.15 Complaints. (i) Timely appeals shall be accepted 1156.16 Mediation. and processed by the head of the agen- 1156.17 Investigation. cy. 1156.18 Prohibition against intimidation or (j) The head of the agency shall no- retaliation. tify the complainant of the results of 1156.19 Compliance procedure. the appeal within 60 days of the receipt 1156.20 Alternate funds disbursal procedure. of the request. If the head of the agen- 1156.21 Exhaustion of administrative remedies. cy determines that additional information is needed from the complainant, AUTHORITY: 42 U.S.C. 6101 et seq.; 45 CFR he or she shall have 60 days from the part 90. date of receipt of the additional infor- SOURCE: 63 FR 6876, Feb. 11, 1998, unless mation to make his or her determina- otherwise noted. tion on the appeal. (k) The time limits cited in para- Subpart A—General graphs (g) and (j) of this section may be extended with the permission of the § 1156.1 Purpose. Assistant Attorney General. The purpose of this part is to imple- (l) The agency may delegate its au- ment the Age Discrimination Act of thority for conducting complaint in- 1975 (‘‘Act’’), as amended, and as re- vestigations to other Federal agencies, quired by the general age discrimina- except that the authority for making tion regulations at 45 CFR part 90. The the final determination may not be Age Discrimination Act of 1975, as delegated to another agency. amended, is designed to prohibit dis- [51 FR 22895, 22896, June 23, 1986, as amended crimination on the basis of age in pro- at 51 FR 22895, June 23, 1986] grams or activities receiving Federal financial assistance. The Act also per- §§ 1153.171–1153.999 [Reserved] mits federally assisted programs or activities, and recipients of Federal funds PART 1156—NONDISCRIMINATION to continue to use certain age distinctions and factors other than age which ON THE BASIS OF AGE meet the requirements of the Act and the regulations in this part. Subpart A—General [63 FR 6876, Feb. 11, 1998, as amended at 68 Sec. FR 51385, Aug. 26, 2003] 1156.1 Purpose. 1156.2 Application. § 1156.2 Application. 1156.3 Definitions. (a) The Age Discrimination Act of 1156.4 [Reserved] 1975 and the regulations in this part Subpart B—Standards for Determining apply to any program or activity re- Discriminatory Practices ceiving financial assistance from the National Endowment for the Arts. 1156.5 Purpose. (b) The Age Discrimination Act of 1156.6 Rules against age discrimination. 1975 does not apply to: 1156.7 Exceptions to the rules against age (1) Any age distinction contained in discrimination. that part of Federal, State, or local 1156.8 Burden of proof. statute or ordinance adopted by an elected general purpose legislative Subpart C—Responsibilities of Endowment body which: Recipients (i) Provides benefits or assistance to 1156.9 [Reserved] persons based on age; or 1156.10 General responsibilities. (ii) Establishes criteria for participa- 1156.11 Notice to subrecipients. tion in age-related terms; or 1156.12 Self-evaluation. (iii) Describes intended beneficiaries 1156.13 Information requirements. or target groups in age related terms.

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(2) Any employment practice of any in paragraphs (h)(1) through (4) of this employer, employment agency, labor section, any part of which is extended organization, or any labor-manage- Federal financial assistance: ment joint apprenticeship training pro- (1)(i) A department, agency, special gram, except for any program or activ- purpose district, or other instrumen- ity receiving Federal financial assist- tality of a State or of a local governance for public service employment ment; or under the Job Training Partnership (ii) The entity of such State or local Act (JTPA). government that distributes such as- [63 FR 6876, Feb. 11, 1998, as amended at 68 sistance and each such department or FR 51385, Aug. 26, 2003] agency (and each other State or local government entity) to which the as- § 1156.3 Definitions. sistance is extended, in the case of as- As used in the regulation in this part, sistance to a State or local govern- the term: ment; (a) Act means the Age Discrimination (2)(i) A college, university, or other Act of 1975, as amended (Title III of postsecondary institution, or a public Pub. L. 94–135). system of higher education; or (b) Action means any act, activity, (ii) A local educational agency (as de- policy, rule, standard, or method of ad- fined in 20 U.S.C. 7801), system of voca- ministration; or the use of any policy, tional education, or other school sys- rule, standard, or method of adminis- tem; tration. (3)(i) An entire corporation, partner- (c) Age means how old a person is or ship, or other private organization, or the number of elapsed years from the an entire sole proprietorship— date of a person’s birth. (A) If assistance is extended to such (d) Age distinction means any action corporation, partnership, private orga- using age or any age-related term. nization, or sole proprietorship as a (e) Age-related term means a word or whole; or words which necessarily imply a par- (B) Which is principally engaged in ticular age or range of ages (for exam- the business of providing education, ple, ‘‘children,’’ ‘‘adult,’’ ‘‘older per- health care, housing, social services, or son,’’ but not ‘‘student’’). parks and recreation; or (f) Federal financial assistance means any grant, entitlement, loan, coopera- (ii) The entire plant or other com- tive agreement, contract (other than a parable, geographically separate facil- procurement contract or a contract of ity to which Federal financial assist- insurance or guaranty), or any other ance is extended, in the case of any arrangement by which the agency pro- other corporation, partnership, private vides or otherwise makes available as- organization, or sole proprietorship; or sistance in the form of: (4) Any other entity which is estab- (1) Funds; lished by two or more of the entities (2) Services of Federal personnel; or described in paragraph (h)(1), (2), or (3) (3) Real and personal property includ- of this section. ing: (i) Recipient means any State or its (i) Transfers or leases of property for political subdivision, any instrumen- less than fair market value or for re- tality of a State or its political sub- duced consideration; and division, any public or private agency, (ii) Proceeds from a subsequent institution, organization, or other enti- transfer or lease of property if the Fed- ty, or any person to which Federal fi- eral share of its fair market value is nancial assistance is extended, directly not returned to the Federal govern- or through another recipient. Recipient ment. includes any successor, assignee, or (g) Normal operation means the oper- transferee, but excludes the ultimate ation of a program or activity without beneficiary of the assistance. significant changes that would impair (j) Statutory objective means any pur- its ability to meet its objectives. pose of a program or activity expressly (h) Program or activity means all of stated in any Federal statute, state the operations of any entity described statute, or local statute or ordinance

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adopted by an elected, general purpose (1) Excluding individuals from, deny- legislative body. ing them the benefits of, or subjecting (k) Sub-recipient means any of the en- them to discrimination under a pro- tities in the definition of recipient to gram or activity receiving Federal fi- which a recipient extends or passes on nancial assistance; or Federal financial assistance and has all (2) Denying or limiting individuals in the duties of a recipient in the regula- their opportunity to participate in any tions in this part. program or activity receiving Federal (l) Endowment means the National financial assistance. Endowment for the Arts. (c) The specific forms of age discrimi- (m) Chairperson means the Chair- nation listed in paragraph (b) of this person of the National Endowment for section do not necessarily constitute a the Arts. complete list of discriminatory ac- (n) Secretary means the Secretary of tions. the Department of Health and Human Services. § 1156.7 Exceptions to the rules (o) United States means the fifty against age discrimination. States, the District of Columbia, Puer- (a) Normal operation or statutory objec- to Rico, the Virgin Islands, American tive of any program or activity. A recipi- Somoa, Guam, Wake Island, the Canal ent is permitted to take an action oth- Zone, the Federated States of Micro- erwise prohibited by § 1156.6 if the ac- nesia and the Republic of Palau, the tion reasonably takes into account age Northern Marianas, and the territories as a factor necessary to the normal op- and possessions of the United States. eration or the achievement of any statutory objective of a program or activ- [63 FR 6876, Feb. 11, 1998, as amended at 68 ity, if: FR 51385, Aug. 26, 2003] (1) Age is used as a measure or ap- § 1156.4 [Reserved] proximation of one or more other characteristics; and (2) The other characteristic(s) must Subpart B—Standards for Deter- be measured or approximated in order mining Discriminatory Prac- for the normal operation of the pro- tices gram or activity to continue, or to achieve any statutory objective of the § 1156.5 Purpose. program or activity; and The purpose of this subpart is to set (3) The other characteristic(s) can be forth the prohibitions against age dis- reasonably measured or approximated crimination and the exceptions to by the use of age; and those prohibitions. (4) The other characteristic(s) are impractical to measure directly on an § 1156.6 Rules against age discrimina- individual basis. tion. (b) Reasonable factors other than age. The rules stated in this section are A recipient is permitted to take an ac- limited by the exceptions contained in tion otherwise prohibited by § 1156.6 § 1156.7 (b) and (c). which is based on a factor other than (a) General rule. No person in the age, even though that action may have United States shall, on the basis of age, a disproportionate effect on persons of be excluded from participation in, be different ages. An action may be based denied the benefits of, or be subjected on a factor other than age only if the to discrimination under any program factor bears a direct and substantial or activity receiving Federal financial relationship to the normal operation of assistance. the program or activity or to the (b) Specific rules. A recipient may not, achievement of a statutory objective. in any program or activity receiving (c) Remedial and affirmative action by Federal financial assistance, directly recipients. If a recipient operating a or through contractual, licensing, or program or activity which serves the other arrangements use age distinc- elderly or children in addition to per- tions or take any other actions which sons of other ages, provides special have the effect, on the basis of age, of: benefits to the elderly or to children

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the provision of those benefits shall be ceiving Federal financial assistance presumed to be voluntary affirmative from the Endowment to assess the reaction provided that it does not have cipient’s compliance with the Act. the effect of excluding otherwise eligi- (b) Each recipient shall take correc- ble persons from participation in the tive and remedial action whenever a program or activity. self-evaluation indicates a violation of [63 FR 6876, Feb. 11, 1998, as amended at 68 the Act. FR 51385, Aug. 26, 2003] (c) Each recipient shall make the self-evaluation available on request to § 1156.8 Burden of proof. the Endowment and to the public for a The recipient of Federal financial as- period of three years following its com- sistance bears the burden of proving pletion. that an age distinction or other action falls within the exceptions outlined in § 1156.13 Information requirements. § 1156.7. Each recipient shall: (a) Make available to the Endow- Subpart C—Responsibilities of ment, upon request, information nec- Endowment Recipients essary to determine whether the recipient is complying with the regulations § 1156.9 [Reserved] in this part. (b) Permit reasonable access by the § 1156.10 General responsibilities. Endowment to the books, accounts and A recipient has primary responsi- other recipient facilities and sources of bility to ensure that its programs or information to the extent necessary to activities are in compliance with the determine whether the recipient is in Age Discrimination Act, to take steps compliance with the Act. to eliminate violations of the Act, and to provide notice to beneficiaries of its programs and activities concerning Subpart D—Investigation, Concil- protection against discrimination pro- iation, and Enforcement Pro- vided by the Act and the regulations in cedures this part. A recipient also has responsibility to maintain records, provide in- § 1156.14 Compliance reviews. formation, and to afford access to its The Endowment may conduct com- records to the Endowment to the ex- pliance reviews, pre-award reviews and tent required to determine whether it other similar procedures in order to in- is in compliance with the Act. vestigate and correct violations of the [63 FR 6876, Feb. 11, 1998, as amended at 68 Act and regulations. The Endowment FR 51385, Aug. 26, 2003] may conduct these reviews in the absence of a compliant against the recipi- § 1156.11 Notice to subrecipients. ent. In the event a compliance review Where a recipient passes on Federal or pre-award review indicates a viola- financial assistance from the Endow- tion of the regulations in this part, the ment to subrecipients, the recipient Endowment will attempt to achieve shall provide the subrecipients with voluntary compliance with the Act. If written notice regarding the subrecipi- voluntary compliance cannot be ent’s obligations under the Act and the achieved, enforcement efforts will pro- regulations in this part. ceed as described in § 1156.19.

§ 1156.12 Self-evaluation. § 1156.15 Complaints. (a) Each recipient employing the (a) Any person, individually or as a equivalent of 15 or more full time em- member of a class or on behalf of oth- ployees may be required to complete a ers, may file a complaint with the En- written self-evaluation, in a manner dowment, alleging discrimination pro- specified by the responsible Endow- hibited by the Act and the regulations ment official during the course of an in this part based on an action occur- investigation, of any age distinction ring on or after July 1, 1979. A com- imposed in its program or activity re- plainant shall file a complaint within

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180 days from the date that the com- not possible. There must be at least plainant first had knowledge of the alone meeting with the mediator before leged act of discrimination. However, the Endowment will accept a judgment for good cause, the Endowment may that an agreement is not possible. extend this time limit. The Endowment However, the recipient and the com- will consider the date a complaint is plainant need not meet with the medi- filed to be the date upon which the ator at the same time. complaint is sufficient to be processed. (c) If the complainant and recipient (b) Complaints must include a writ- reach a mutually satisfactory resolu- ten statement identifying the parties tion of the complaint during the medi- involved, describing the alleged viola- ation period, they shall reduce the tion, and stating the date on which the agreement to wiring. The mediator complainant first had knowledge of the shall send a copy of the settlement to alleged violation. Complaints must be the Endowment. No further action signed by the complainant. The Endow- shall be taken by the Endowment based ment will return any complaint that on that complaint unless it appears does not contain the necessary infor- that the complainant or the recipient mation, that is not signed by the com- has failed to comply with the agree- plainant, or that is not within the En- ment. dowment’s jurisdiction for any other (d) The mediator shall protect the reason. The Endowment will provide an confidentiality of all information ob- explanation for all such returned com- tained in the course of the mediation plaints. process. No mediator shall testify in (c) The Endowment will attempt to any adjudicative proceeding, produce facilitate the filing of complaints any document, or otherwise disclose wherever possible, including taking the any information obtained in the course following measures: of the mediation process without prior (1) Widely disseminating information approval of the head of the mediation regarding the obligations of recipients agency. under the Act and the regulations in this part. (e) Not more than 60 days after the (2) Notifying the complainant and Endowment receives the complaint, the recipient of their rights and obliga- the mediator shall return a still unre- tions under the complaint procedure, solved complaint to the Endowment for including the right to have a represent- initial investigation. The mediator ative at all stages of the complaint may return a complaint at any time procedure. before the end of the 60-day period if it (3) Notifying the complainant and appears that the complaint cannot be the recipient (or their representatives) resolved through mediation. The medi- of their right to contact the Endow- ator may extend this 60-day period, ment for information and assistance provided the Endowment concurs, for regarding the complaint resolution not more than 30 days, if the mediator process. determines that resolution is likely to occur within such period. § 1156.16 Mediation. § 1156.17 Investigation. (a) Referral of complaints for mediation. The Endowment will promptly refer all (a) Informal investigation. (1) The En- complaints to the agency designated by dowment will investigate complaints the Secretary of HHS to manage the that are unresolved after mediation or mediation process that: are reopened because of a violation of a (1) Fall within the jurisdiction of the mediation agreement. regulations in this part; and (2) As part of the initial investiga- (2) Contain all information necessary tion, the Endowment will use informal for further processing. fact-finding methods, including joint (b) Both the complainant and the re- or separate discussions with the com- cipient shall participate in the medi- plainant and the recipient to establish ation process to the extent necessary the facts, and, if possible, resolve the to reach an agreement or make an in- complaint to the mutual satisfaction of formal judgment that an agreement is the parties. The Endowment may seek

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the assistance of any involved State Endowment unless it is reopened be- agency. cause of a violation of the agreement. (3) The Endowment will put any (2) Any other means authorized by agreement in writing and have it law including, but not limited to: signed by the parties and an authorized (i) Referral to the Department of Jus- official at the Endowment. tice for proceedings to enforce any (4) The settlement shall not affect rights of the United States or obliga- the operation of any other enforcement tions of the recipient created by the effort of the Endowment, including Act or the regulations in this part. compliance reviews and investigation (ii) Use of any requirement of or re- of other complaints which may involve ferral to any Federal, State, or local the recipient. government agency that will have the (5) The settlement is not a finding of effect of correcting a violation of the discrimination against a recipient. Act or the regulations in this part. (b) Formal investigation, conciliation, (b) The Endowment will limit any and hearing. If the Endowment cannot termination under paragraph (a)(1) of resolve the complaint during the early this section to the particular recipient stages of the investigation, it shall: and particular program or activity or (1) Complete the investigation of the portion thereof that the Endowment complaint. finds in violation of the regulations in (2) Attempt to achieve voluntary this part. The Endowment will not base compliance satisfactory to the Endow- any part of a termination on a finding ment, if the investigation indicates a with respect to any program or activ- violation. ity of the recipient which does not re- (3) Arrange for enforcement as de- ceive Federal financial assistance from scribed in § 1156.19, if necessary. the Endowment. [63 FR 6876, Feb. 11, 1998, as amended at 68 (c) The Endowment will not take ac- FR 51385, Aug. 26, 2003] tion under paragraph (a) of this section until: § 1156.18 Prohibition against intimida- (1) The Chairperson has advised the tion or retaliation. recipient of its failure to comply with A recipient may not engage in acts of the Act and the regulations in this part intimidation or retaliation against any and has determined that voluntary person who: compliance cannot be obtained. (a) Attempts to assert a right pro- (2) Thirty days have elapsed after the tected by the Act; or Chairperson has sent a written report (b) Cooperates in any mediation, in- of the circumstances and grounds of vestigation, hearing, or other part of the action to the committees of the the Endowment’s investigation, concil- Congress having legislative jurisdic- iation and enforcement process. tion over the program or activity involved. The Chairperson will file a re- § 1156.19 Compliance procedure. port whenever any action is taken (a) The Endowment may enforce the under paragraph (a) of this section. Act and the regulations in this part (d) The Chairperson also may defer through: granting new Federal financial assist- (1) Termination of a recipient’s Fed- ance from the Endowment to a recipi- eral financial assistance from the En- ent when a hearing under paragraph dowment under the program or activ- (a)(1) of this section is initiated. ity involved where the recipient has (1) New Federal financial assistance violated the Act and the regulations in from the Endowment includes all as- this part. The determination of the re- sistance for which the Endowment recipient’s violation may be made only quires an application or approval, in- after a recipient has had an oppor- cluding renewal or continuation of ex- tunity for a hearing on the record be- isting activities, or authorization of fore an administrative law judge. new activities, during the deferral pe- Therefore, a case which is settled in riod. New Federal financial assistance mediation, or prior to a hearing, will from the Endowment does not include not involve termination of a recipient’s assistance approved prior to the begin- Federal financial assistance from the ning of a termination hearing under

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paragraph (a)(1) of this section or ining in favor of the recipient, the En- creases in funding as a result of dowment will: changed computation of formula (1) Promptly advise the complainant awards. if either of the conditions of paragraph (2) The Endowment will not begin a (a) of this section has been met; deferral until the recipient has re- (2) Advise the complainant of his or ceived a notice of an opportunity for a her right to bring a civil action for in- hearing under paragraph (a)(1) of this junctive relief that will effect the pur- section. The Endowment will not con- pose of the Act; tinue a deferral for more than 60 days (3) Inform the complainant: unless a hearing has begun within that (i) That the complainant may bring a time or the time for beginning the civil action only in the United States hearing has been extended by mutual district court for the district in which consent of the recipient and the Chair- the recipient is located or transacts person. The Endowment will not con- business; tinue a deferral for more than 30 days (ii) That a complainant prevailing in after the close of the hearing, unless a civil action has the right to be the hearing results in a finding against awarded the costs of the action, includ- the recipient. If the hearing results in ing reasonable attorney’s fees, but that a finding against the recipient, the En- the complainant must demand these dowment must terminate funds. costs in the complaint; [63 FR 6876, Feb. 11, 1998, as amended at 68 (iii) That before commencing the ac- FR 51385, Aug. 26, 2003] tion the complainant shall give 30 days notice by registered mail to the Chair- § 1156.20 Alternate funds disbursal person of the Endowment, the Sec- procedure. retary, the Attorney General of the (a) When the endowment withholds United States, and the recipient; funds from a recipient under the regu- (iv) That the notice must state: the lations in this part, the Chairperson alleged violation of the Act; the relief may disburse the withheld funds di- requested; the court in which the com- rectly to an alternate recipient other- plainant is bringing the action; and wise eligible for Endowment support: whether or not the attorney’s fees are any public or nonprofit private organi- demanded in the event the complainant zation or agency, or State or political prevails; and subdivision of the State. (v) That the complainant may not (b) The Chairperson will require any bring an action if the same alleged vio- alternate recipient to demonstrate: lation of the Act by the same recipient (1) The ability to comply with the is the subject of a pending action in regulations in this part; and any court of the United States. (2) The ability to achieve the goals of the Federal statute authorizing the PART 1157—ARTS ENDOWMENT Federal financial assistance. GUIDANCE DOCUMENTS [63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003] Sec. 1157.1 General. § 1156.21 Exhaustion of administrative 1157.2 Review and clearance. remedies. 1157.3 Requirements for clearance. 1157.4 Public access to effective guidance (a) A complainant may file a civil ac- documents. tion following the exhaustion of admin- 1157.5 Definitions of ‘‘significant guidance istrative remedies under the Act. Ad- document’’ and guidance documents that ministrative remedies are exhausted if: are ‘‘otherwise of importance to the Arts (1) 180 days have elapsed since the Endowment’s interests.’’ complainant filed the complaint and 1157.6 Notice-and-comment procedures. the Endowment has made no finding 1157.7 Petitions for guidance. with regard to the complaint; or 1157.8 Rescinded guidance. 1157.9 Exigent circumstances. (2) The Endowment issues a finding 1157.10 No judicial review or enforceable in favor of the recipient. rights. (b) If the Endowment fails to make a 1157.11 Reports to Congress and Government finding within 180 days or issues a find- Accountability Office (GAO).

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AUTHORITY: 20 U.S.C. 959. (e.g., case or investigatory letters re- SOURCE: 85 FR 53187, Aug. 28, 2020, unless sponding to complaints, warning let- otherwise noted. ters, determinations related to historic preservation), notices regarding par- § 1157.1 General. ticular locations or facilities (e.g., (a) This part governs all National En- guidance pertaining to the use, oper- dowment for the Arts (‘‘Arts Endow- ation, or control of a government facil- ment’’ or ‘‘NEA’’) employees and con- ity or property), and correspondence tractors involved with all phases of with individual persons or entities issuing Arts Endowment guidance doc- (e.g., congressional correspondence), uments. except documents ostensibly directed (b) Subject to the qualifications and to a particular party but designed to exemptions contained in this part, the guide the conduct of the broader regu- procedures in this part apply to all lated public; guidance documents issued by the Arts (8) Legal briefs, other court filings, Endowment after August 28, 2020. or positions taken in litigation or en- (c) For purposes of this part, the forcement actions; term ‘‘guidance document’’ means an (9) Agency statements that do not set agency statement of general applica- forth a policy on a statutory, regu- bility, intended to have future effect on latory, or technical issue or an inter- the behavior of regulated parties, that pretation of a statute or regulation, in- sets forth a policy on a statutory, regu- cluding speeches and individual presen- latory, or technical issue, or an inter- tations, editorials, media interviews, pretation of a statute or regulation. press materials, or congressional testi- The term is not confined to formal mony that do not set forth for the first written documents; guidance may time a new regulatory policy; come in a variety of forms, including (10) Guidance pertaining to military (but not limited to) letters, memo- or foreign affairs functions; randa, circulars, bulletins, and (11) Grant solicitations, guidelines advisories, and may include video, and awards; audio, and web-based formats. See Of- (12) Contract solicitations and fice of Management and Budget (OMB) awards; and Bulletin 07–02, ‘‘Agency Good Guidance (13) Purely internal Agency policies Practices,’’ (January 25, 2007) (‘‘OMB or guidance directed solely to Arts En- Good Guidance Bulletin’’). dowment employees or contractors or (d) This part does not apply to: to other Federal agencies that are not (1) Rules promulgated pursuant to intended to have substantial future ef- notice and comment under section 553 fect on the behavior of regulated par- of title 5, United States Code, or simi- ties. lar statutory provisions; (2) Rules exempt from rulemaking re- § 1157.2 Review and clearance. quirements under 5 U.S.C. 553(a); (3) Rules of Agency organization, pro- All Arts Endowment guidance docu- cedure, or practice; ments, as defined in § 1157.1(c), require (4) Decisions of Agency adjudications review and clearance in accordance under 5 U.S.C. 554 or similar statutory with this part. provisions; § 1157.3 Requirements for clearance. (5) Internal guidance directed to the issuing agency or other agencies that The Arts Endowment’s review and is not intended to have substantial fu- clearance of guidance shall ensure that ture effect on the behavior of regulated each guidance document proposed by parties; the Arts Endowment satisfies the fol- (6) Internal executive branch legal lowing requirements: advice or legal advisory opinions ad- (a) The guidance document complies dressed to executive branch officials; with all relevant statutes and regula- (7) Agency statements of specific ap- tion (including any statutory deadlines plicability, including advisory or legal for Agency action); opinions directed to particular parties (b) The guidance document identifies about circumstance-specific questions or includes:

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(1) The term ‘‘guidance’’ or its func- document’s title and date of issuance tional equivalent; or revision and its RIN, if applicable, (2) If applicable, the issuing Arts En- are on its website in a single, search- dowment responsible office name; able, indexed database, and available (3) A unique identifier, including, at to the public in accordance with a minimum, the date of issuance and § 1157.7; title of the document and its regu- (b) Note on its website that guidance latory identification number (RIN), if documents lack the force and effect of applicable; law, except as authorized by law or as (4) The activity or entities to which incorporated into a contract; the guidance applies; (c) Advertise on its website where the (5) Citations to applicable statutes public can comment electronically on and regulations; any guidance documents that are sub- (6) A statement noting whether the ject to the notice-and-comment proce- guidance is intended to revise or re- dures described in § 1157.6 and to submit place any previously issued guidance requests electronically for issuance, re- and, if so, sufficient information to consideration, modification, or rescis- identify the previously issued guid- sion of guidance documents. Guidance ance; and documents that do not appear on the (7) A short summary of the subject Agency’s single, searchable, indexed matter covered in the guidance docu- database are rescinded; and ment at the top of the document; (d) Designate an office to receive and (c) The guidance document avoids address complaints from the public using mandatory language, such as that the Arts Endowment is not fol- ‘‘shall,’’ ‘‘must,’’ ‘‘required,’’ or ‘‘re- lowing the requirements of OMB’s quirement,’’ unless the language is de- Good Guidance Bulletin or is improp- scribing an established statutory or erly treating a guidance document as a regulatory requirement or is addressed binding requirement. to Arts Endowment employees and will § 1157.5 Definitions of ‘‘significant not foreclose the Arts Endowment’s guidance document’’ and guidance consideration of positions advanced by documents that are ‘‘otherwise of affected private parties; importance to the Arts Endow- (d) The guidance document is written ment’s interests.’’ in plain and understandable English; (a) The term ‘‘significant guidance and document’’ means a guidance docu- (e) All guidance documents should in- ment that will be disseminated to regu- clude the following disclaimer promi- lated entities or the general public and nently in each guidance document: that may reasonably be anticipated: ‘‘The contents of this document do not (1) To lead to an annual effect on the have the force and effect of law and are economy of $100 million or more or ad- not meant to bind the public in any versely affect in a material way the way. This document is intended only to U.S. economy, a sector of the U.S. provide clarity to the public regarding economy, productivity, competition, existing requirements under the law or jobs, the environment, public health or agency policies.’’ When an Arts Endow- safety, or state, local, or tribal government guidance document is binding be- ments or communities. Historically, cause binding guidance is authorized the Arts Endowment has not issued by law or because the guidance is in- any significant guidance documents corporated into a contract, the Arts with these implications; Endowment will modify the disclaimer (2) To create serious inconsistency or in the preceding sentence to reflect ei- otherwise interfere with an action ther of those facts. taken or planned by another Federal agency; § 1157.4 Public access to effective guid- (3) To alter materially the budgetary ance documents. impact of entitlements, grants, user The Arts Endowment shall: fees, or loan programs or the rights and (a) Ensure all effective guidance doc- obligations of recipients thereof; or uments, identified by a unique identi- (4) To raise novel legal or policy fier which includes, at a minimum, the issues arising out of legal mandates,

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the President’s priorities, or the prin- § 1157.6 Notice-and-comment proce- ciples set forth in E.O. 12866, as further dures. amended. (a) Except as provided in paragraph (b) The term ‘‘significant guidance (b) of this section, all proposed Arts document’’ does not include the cat- Endowment guidance documents deter- egories of documents excluded by this mined to be a ‘‘significant guidance part or any other category of guidance document’’ within the meaning of documents exempted in writing by the § 1157.5 are subject to notice-and-com- Arts Endowment in consultation with ment procedures. The Arts Endowment the Office of Information and Regu- shall publish an advance notice in the latory Affairs (OIRA). FEDERAL REGISTER of the proposed (c) Significant and economically sig- guidance document and invite public nificant guidance documents must be comments for a minimum of 30 days, reviewed by OIRA under E.O. 12866 be- then publish a response to major con- fore issuance and must demonstrate cerns raised in the comments when the compliance with the applicable re- final guidance document is published. quirements for regulations, including (b) All significant guidance docu- significant regulatory actions, set ments must have approval and signa- forth in applicable Executive orders. ture on a non-delegable basis by the NEA will seek significance determina- Chairman or Senior Deputy Chairman, tions from OIRA for guidance docu- before issuance. ments, as appropriate, in the same (c) The requirements of paragraph (a) manner as for rulemakings. Prior to of this section will not apply to any publishing these guidance documents, significant guidance document unless and with sufficient time to allow OIRA the Arts Endowment finds, in consulta- to review the document in the event tion with OIRA, good cause that no- that a significance determination is tice-and-comment procedures thereon made. NEA will provide OIRA with an are impracticable, unnecessary, or con- opportunity to review the designation trary to the public interest (and incorporates the finding of good cause and a request or the guidance document, if brief statement of reasons in the guid- requested, to determine if it meets the ance issued). The Arts Endowment and definition of ‘‘significant’’ or ‘‘eco- OIRA may establish an agreement on nomically significant’’ under Executive presumptively exempted categories of Order 13891. guidance; such documents will be pre- (d) Even if not ‘‘significant,’’ a guid- sumptively exempt from the require- ance document will be considered ments of paragraph (a) of this section. ‘‘otherwise of importance to the Arts (d) Where appropriate, the Arts En- Endowment’s interests’’ within the dowment may determine a particular meaning of this paragraph (d) if it may guidance document that is otherwise of reasonably be anticipated: importance to the Arts Endowment’s (1) To relate to a major program, pol- interests shall also be subject to the icy, or activity of the Arts Endowment notice-and-comment procedures de- or a high-profile issue pending decision scribed in paragraph (a) of this section. before the Arts Endowment; (2) To involve one of the Chairman’s § 1157.7 Petitions for guidance. top policy priorities; (a) Interested parties may submit pe- (3) To garner significant press or con- titions to the Arts Endowment request- gressional attention; or ing withdrawal or modification of any (4) To raise significant questions or effective guidance document by concerns from constituencies of impor- emailing [email protected], or tance to the Arts Endowment, such as sending the petition by mail to Na- Committees of Congress, states, Indian tional Endowment for the Arts, Attn: tribes, the White House or other de- Office of General Counsel, 400 7th St. partments of the executive branch, SW, Washington DC 20506. Please in- courts, consumer or public interest clude ‘‘Guidance Petition’’ in the sub- groups, or leading representatives of ject line of any correspondence to en- industry. sure the letter is routed properly.

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(b) Interested parties should include and GAO in accordance with the proce- the guidance document’s title and a dures described in 5 U.S.C. 801 (the summarized justification describing ‘‘Congressional Review Act’’). why the document should be withdrawn, how it should be modified, or PART 1158—NEW RESTRICTIONS ON the nature of the complaint in the peti- LOBBYING tion in order to receive an expedited response. Subpart A—General (c) The appropriate Arts Endowment official will review the petition and de- Sec. termine if withdrawal or modification 1158.100 Conditions on use of funds. is necessary or the best way to resolve 1158.105 Definitions. 1158.110 Certification and disclosure. the complaint, and respond to the petitioner with a decision no later than 90 Subpart B—Activities by Own Employees days after receipt of the request. 1158.200 Agency and legislative liaison. § 1157.8 Rescinded guidance. 1158.205 Professional and technical services. 1158.210 Reporting. The Arts Endowment may not cite, use, or rely on guidance documents Subpart C—Activities by Other Than Own that are rescinded, except to establish Employees historical facts. 1158.300 Professional and technical services. § 1157.9 Exigent circumstances. Subpart D—Penalties and Enforcement In emergency situations or when the Arts Endowment is required by statu- 1158.400 Penalties. tory deadline or court order to act 1158.405 Penalty procedures. more quickly than normal review pro- 1158.410 Enforcement. cedures allow, the Arts Endowment shall notify OIRA as soon as possible Subpart E—Exemptions and, to the extent practicable, comply 1158.500 Secretary of Defense. with the requirements of this part at the earliest opportunity. Wherever Subpart F—Agency Reports practicable, the Arts Endowment will 1158.600 Semi-annual compilation. alter its proceedings to permit suffi- 1158.605 Inspector General report. cient time to comply with the proce- APPENDIX A TO PART 1158—CERTIFICATION RE- dures set forth in this part. GARDING LOBBYING APPENDIX B TO PART 1158—DISCLOSURE FORM § 1157.10 No judicial review or en- TO REPORT LOBBYING forceable rights. AUTHORITY: 20 U.S.C. 959; 28 U.S.C. 2461; 31 This part is intended to improve the U.S.C. 1352. internal management of the Arts En- dowment. As such, it is for the use of SOURCE: 55 FR 6737, 6755, Feb. 26, 1990, unless otherwise noted. Arts Endowment personnel only and is not intended to, and does not create CROSS REFERENCE: See also Office of Man- any right or benefit, substantive or agement and Budget notice published at 54 procedural, enforceable by law or in eq- FR 52306, December 20, 1989. uity by any party against the United States, its agencies or other entities, Subpart A—General its officers or employees, or any other person. § 1158.100 Conditions on use of funds. (a) No appropriated funds may be ex- § 1157.11 Reports to Congress and Gov- pended by the recipient of a Federal ernment Accountability Office contract, grant, loan, or cooperative (GAO). ageement to pay any person for influ- Unless otherwise determined in writ- encing or attempting to influence an ing by the Arts Endowment, it is the officer or employee of any agency, a policy of the Agency that upon issuing Member of Congress, an officer or em- a guidance document the Arts Endow- ployee of Congress, or an employee of a ment will submit a report to Congress Member of Congress in connection with

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any of the following covered Federal (a) Agency, as defined in 5 U.S.C. actions: the awarding of any Federal 552(f), includes Federal executive de- contract, the making of any Federal partments and agencies as well as inde- grant, the making of any Federal loan, pendent regulatory commissions and the entering into of any cooperative Government corporations, as defined in agreement, and the extension, continu- 31 U.S.C. 9101(1). ation, renewal, amendment, or modi- (b) Covered Federal action means any fication of any Federal contract, grant, of the following Federal actions: loan, or cooperative agreement. (1) The awarding of any Federal con- (b) Each person who requests or re- tract; ceives from an agency a Federal con- (2) The making of any Federal grant; tract, grant, loan, or cooperative (3) The making of any Federal loan; agreement shall file with that agency a (4) The entering into of any coopera- certification, set forth in appendix A, tive agreement; and, that the person has not made, and will (5) The extension, continuation, re- not make, any payment prohibited by newal, amendment, or modification of paragraph (a) of this section. any Federal contract, grant, loan, or (c) Each person who requests or re- cooperative agreement. ceives from an agency a Federal contract, grant, loan, or a cooperative Covered Federal action does not in- agreement shall file with that agency a clude receiving from an agency a com- disclosure form, set forth in appendix mitment providing for the United B, if such person has made or has States to insure or guarantee a loan. agreed to make any payment using Loan guarantees and loan insurance nonappropriated funds (to include prof- are addressed independently within its from any covered Federal action), this part. which would be prohibited under para- (c) Federal contract means an acquisi- graph (a) of this section if paid for with tion contract awarded by an agency, appropriated funds. including those subject to the Federal (d) Each person who requests or re- Acquisition Regulation (FAR), and any ceives from an agency a commitment other acquisition contract for real or providing for the United States to in- personal property or services not sub- sure or guarantee a loan shall file with ject to the FAR. that agency a statement, set forth in (d) Federal cooperative agreement appendix A, whether that person has means a cooperative agreement en- made or has agreed to make any pay- tered into by an agency. ment to influence or attempt to influ- (e) Federal grant means an award of ence an officer or employee of any financial assistance in the form of agency, a Member of Congress, an offi- money, or property in lieu of money, cer or employee of Congress, or an em- by the Federal Government or a direct ployee of a Member of Congress in con- appropriation made by law to any per- nection with that loan insurance or son. The term does not include tech- guarantee. nical assistance which provides serv- (e) Each person who requests or re- ices instead of money, or other assist- ceives from an agency a commitment ance in the form of revenue sharing, providing for the United States to in- loans, loan guarantees, loan insurance, sure or guarantee a loan shall file with interest subsidies, insurance, or direct that agency a disclosure form, set forth United States cash assistance to an in- in appendix B, if that person has made dividual. or has agreed to make any payment to (f) Federal loan means a loan made by influence or attempt to influence an of- an agency. The term does not include ficer or employee of any agency, a loan guarantee or loan insurance. Member of Congress, an officer or em- (g) Indian tribe and tribal organization ployee of Congress, or an employee of a have the meaning provided in section 4 Member of Congress in connection with of the Indian Self-Determination and that loan insurance or guarantee. Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included § 1158.105 Definitions. under the definitions of Indian tribes in For purposes of this part: that Act.

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(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 (4) An individual who is a member of 130 working days within one year im- a Federal advisory committee, as de- mediately preceding the date of the fined by the Federal Advisory Com- submission that initiates agency con- mittee Act, title 5, U.S. Code appendix sideration of such person shall be con- 2. sidered to be regularly employed as (l) means an individual, cor- Person soon as he or she is employed by such poration, company, association, au- person for 130 working days. thority, firm, partnership, society, State, and local government, regard- (q) State means a State of the United less of whether such entity is operated States, the District of Columbia, the for profit or not for profit. This term Commonwealth of Puerto Rico, a terri- excludes an Indian tribe, tribal organi- tory or possession of the United States, zation, or any other Indian organiza- an agency or instrumentality of a tion with respect to expenditures spe- State, and a multi-State, regional, or cifically permitted by other Federal interstate entity having governmental law. duties and powers. (m) Reasonable compensation means, § 1158.110 Certification and disclosure. with respect to a regularly employed officer or employee of any person, com- (a) Each person shall file a certifi- pensation that is consistent with the cation, and a disclosure form, if re- normal compensation for such officer quired, with each submission that ini- or employee for work that is not fur- tiates agency consideration of such nished to, not funded by, or not fur- person for:

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(1) Award of a Federal contract, shall file a certification, and a disclo- grant, or cooperative agreement ex- sure form, if required, to the next tier ceeding $100,000; or above. (2) An award of a Federal loan or a (e) All disclosure forms, but not cer- commitment providing for the United tifications, shall be forwarded from States to insure or guarantee a loan tier to tier until received by the person exceeding $150,000. referred to in paragraph (a) or (b) of (b) Each person shall file a certifi- this section. That person shall forward cation, and a disclosure form, if re- all disclosure forms to the agency. quired, upon receipt by such person of: (f) Any certification or disclosure (1) A Federal contract, grant, or co- form filed under paragraph (e) of this operative agreement exceeding $100,000; section shall be treated as a material or representation of fact upon which all (2) A Federal loan or a commitment receiving tiers shall rely. All liability providing for the United States to in- arising from an erroneous representa- sure or guarantee a loan exceeding tion shall be borne solely by the tier $150,000, filing that representation and shall not 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 paragraph (a) or (b) of this sec- process prior to December 23, 1989, but tion. An event that materially affects not made before that date, certifi- the accuracy of the information re- cations shall be required at award or ported includes: commitment, covering activities oc- (1) A cumulative increase of $25,000 or curring between December 23, 1989, and more in the amount paid or expected to the date of award or commitment. be paid for influencing or attempting However, for awards and commitments to influence a covered Federal action; in process prior to the December 23, or 1989 effective date of these provisions, (2) A change in the person(s) or indi- but not made before December 23, 1989, vidual(s) influencing or attempting to disclosure forms shall not be required influence a covered Federal action; or, at time of award or commitment but (3) A change in the officer(s), em- shall be filed within 30 days. ployee(s), or Member(s) contacted to (h) No reporting is required for an ac- influence or attempt to influence a tivity paid for with appropriated funds covered Federal action. if that activity is allowable under ei- (d) Any person who requests or re- ther subpart B or C. ceives from a person referred to in paragraph (a) or (b) of this section: Subpart B—Activities by Own (1) A subcontract exceeding $100,000 Employees at any tier under a Federal contract; (2) A subgrant, contract, or sub- § 1158.200 Agency and legislative liai- contract exceeding $100,000 at any tier son. under a Federal grant; (a) The prohibition on the use of ap- (3) A contract or subcontract exceed- propriated funds, in § 1158.100 (a), does ing $100,000 at any tier under a Federal not apply in the case of a payment of loan exceeding $150,000; or, reasonable compensation made to an (4) A contract or subcontract exceed- officer or employee of a person requesting $100,000 at any tier under a Federal ing or receiving a Federal contract, cooperative agreement, grant, loan, or cooperative agreement

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

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reasonably expected to be required by or a technical person (such as a li- law or regulation, and any other re- censed accountant) are not allowable quirements in the actual award docu- under this section unless they provide ments. advice and analysis directly applying (d) Only those services expressly au- their professional or technical exper- thorized by this section are allowable tise and unless the advice or analysis is under this section. rendered directly and solely in the preparation, submission or negotiation § 1158.210 Reporting. of a covered Federal action. Thus, for No reporting is required with respect example, communications with the in- to payments of reasonable compensa- tent to influence made by a lawyer tion made to regularly employed offi- that do not provide legal advice or cers or employees of a person. analysis directly and solely related to the legal aspects of his or her client’s Subpart C—Activities by Other proposal, but generally advocate one Than Own Employees proposal over another are not allowable under this section because the § 1158.300 Professional and technical lawyer is not providing professional services. legal services. Similarly, communica- (a) The prohibition on the use of ap- tions with the intent to influence made propriated funds, in § 1158.100 (a), does by an engineer providing an engineer- not apply in the case of any reasonable ing analysis prior to the preparation or payment to a person, other than an of- submission of a bid or proposal are not ficer or employee of a person request- allowable under this section since the ing or receiving a covered Federal ac- engineer is providing technical services tion, if the payment is for professional but not directly in the preparation, or technical services rendered directly submission or negotiation of a covered in the preparation, submission, or ne- Federal action. gotiation of any bid, proposal, or appli- (d) Requirements imposed by or pur- cation for that Federal contract, grant, suant to law as a condition for receiv- loan, or cooperative agreement or for ing a covered Federal award include meeting requirements imposed by or those required by law or regulation, or pursuant to law as a condition for re- reasonably expected to be required by ceiving that Federal contract, grant, law or regulation, and any other re- loan, or cooperative agreement. quirements in the actual award docu- (b) The reporting requirements in ments. § 1158.110 (a) and (b) regarding filing a (e) Persons other than officers or em- disclosure form by each person, if re- ployees of a person requesting or required, shall not apply with respect to ceiving a covered Federal action in- professional or technical services ren- clude consultants and trade associa- dered directly in the preparation, sub- tions. mission, or negotiation of any commit- (f) Only those services expressly au- ment providing for the United States thorized by this section are allowable to insure or guarantee a loan. under this section. (c) For purposes of paragraph (a) of this section, professional and technical Subpart D—Penalties and services shall be limited to advice and Enforcement analysis directly applying any professional or technical discipline. For ex- § 1158.400 Penalties. ample, drafting or a legal document ac- (a) Any person who makes an expend- companying a bid or proposal by a law- iture prohibited herein shall be subject yer is allowable. Similarly, technical to a civil penalty of not less than advice provided by an engineer on the $20,478 and not more than $204,891.64 for performance or operational capability each such expenditure. of a piece of equipment rendered di- (b) Any person who fails to file or rectly in the negotiation of a contract amend the disclosure form (see appen- is allowable. However, communications dix B of this part) to be filed or amend- with the intent to influence made by a ed if required herein, shall be subject professional (such as a licensed lawyer) to a civil penalty of not less than

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$20,478 and not more than $204,891.64 for ously implemented and enforced in each such failure. that agency. (c) A filing or amended filing on or after the date on which an administra- Subpart E—Exemptions tive action for the imposition of a civil penalty is commenced does not prevent § 1158.500 Secretary of Defense. the imposition of such civil penalty for (a) The Secretary of Defense may ex- a failure occurring before that date. An empt, on a case-by-case basis, a cov- administrative action is commenced ered Federal action from the prohibi- with respect to a failure when an inves- tion whenever the Secretary deter- tigating official determines in writing mines, in writing, that such an exemp- to commence an investigation of an al- tion is in the national interest. The legation of such failure. Secretary shall transmit a copy of each (d) In determining whether to impose such written exemption to Congress a civil penalty, and the amount of any immediately after making such a de- such penalty, by reason of a violation termination. by any person, the agency shall con- (b) The Department of Defense may sider the nature, circumstances, ex- issue supplemental regulations to im- tent, and gravity of the violation, the plement paragraph (a) of this section. effect on the ability of such person to continue in business, any prior violations by such person, the degree of cul- Subpart F—Agency Reports pability of such person, the ability of § 1158.600 Semi-annual compilation. the person to pay the penalty, and such (a) The head of each agency shall col- other matters as may be appropriate. (e) First offenders under paragraph lect and compile the disclosure reports (see appendix B) and, on May 31 and (a) or (b) of this section shall be subject November 30 of each year, submit to to a civil penalty of $20,478, absent ag- the Secretary of the Senate and the gravating circumstances. Second and Clerk of the House of Representatives a subsequent offenses by persons shall be report containing a compilation of the subject to an appropriate civil penalty information contained in the disclo- between $20,478 and $204,891.64, as deter- sure reports received during the six- mined by the agency head or his or her month period ending on March 31 or designee. September 30, respectively, of that (f) An imposition of a civil penalty year. under this section does not prevent the (b) The report, including the com- United States from seeking any other pilation, shall be available for public remedy that may apply to the same inspection 30 days after receipt of the conduct that is the basis for the impo- report by the Secretary and the Clerk. sition of such civil penalty. (c) Information that involves intel- [55 FR 6737, 6755, Feb. 26, 1990, as amended at ligence matters shall be reported only 82 FR 27434, June 15, 2017; 83 FR 2073, Jan. 16, to the Select Committee on Intel- 2018; 84 FR 1404, Feb. 4, 2019; 85 FR 1760, Jan. ligence of the Senate, the Permanent 13, 2020] Select Committee on Intelligence of the House of Representatives, and the § 1158.405 Penalty procedures. Committees on Appropriations of the Agencies shall impose and collect Senate and the House of Representa- civil penalties pursuant to the provi- tives in accordance with procedures sions of the Program Fraud and Civil agreed to by such committees. Such in- Remedies Act, 31 U.S.C. sections 3803 formation shall not be available for (except subsection (c)), 3804, 3805, 3806, public inspection. 3807, 3808, and 3812, insofar as these pro- (d) Information that is classified visions are not inconsistent with the under Executive Order 12356 or any suc- requirements herein. cessor order shall be reported only to the Committee on Foreign Relations of § 1158.410 Enforcement. the Senate and the Committee on For- The head of each agency shall take eign Affairs of the House of Represent- such actions as are necessary to ensure atives or the Committees on Armed that the provisions herein are vigor- Services of the Senate and the House of

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Representatives (whichever such com- (d) The annual report shall include mittees have jurisdiction of matters the following: All alleged violations re- involving such information) and to the lating to the agency’s covered Federal Committees on Appropriations of the actions during the year covered by the Senate and the House of Representa- report, the actions taken by the head tives in accordance with procedures of the agency in the year covered by agreed to by such committees. Such in- the report with respect to those alleged formation shall not be available for violations and alleged violations in public inspection. previous years, and the amounts of (e) The first semi-annual compilation civil penalties imposed by the agency shall be submitted on May 31, 1990, and in the year covered by the report. shall contain a compilation of the disclosure reports received from Decem- ber 23, 1989 to March 31, 1990. (f) Major agencies, designated by the APPENDIX A TO PART 1158— 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 The undersigned certifies, to the best of his of the House of Representatives no 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- to provide machine-readable compila- gress, an officer or employee of Congress, or tions to the Secretary of the Senate an employee of a Member of Congress in connection 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, amend- files of the agency. ment, or modification of any Federal contract, grant, loan, or cooperative agreement. § 1158.605 Inspector General report. (2) If any funds other than Federal appropriated funds have been paid or will be paid (a) The Inspector General, or other to any person for influencing or attempting official as specified in paragraph (b) of to influence an officer or employee of any this section, of each agency shall pre- agency, a Member of Congress, an officer or pare and submit to Congress each year, employee of Congress, or an employee of a commencing with submission of the Member of Congress in connection with this Federal contract, grant, loan, or cooperative President’s Budget in 1991, an evalua- agreement, the undersigned shall complete tion of the compliance of that agency and submit Standard Form-LLL, ‘‘Disclosure with, and the effectiveness of, the re- Form to Report Lobbying,’’ in accordance quirements herein. The evaluation may with its instructions. include any recommended changes that (3) The undersigned shall require that the may be necessary to strengthen or im- language of this certification be included in prove the requirements. the award documents for all subawards at all (b) In the case of an agency that does tiers (including subcontracts, subgrants, and contracts under grants, loans, and coopera- not have an Inspector General, the tive agreements) and that all subrecipients agency official comparable to an In- shall certify and disclose accordingly. spector General shall prepare and sub- This certification is a material representa- mit the annual report, or, if there is no tion of fact upon which reliance was placed such comparable official, the head of when this transaction was made or entered the agency shall prepare and submit into. Submission of this certification is a the annual report. prerequisite for making or entering into this transaction imposed by section 1352, title 31, (c) The annual report shall be sub- U.S. Code. Any person who fails to file the mitted at the same time the agency required certification shall be subject to a submits its annual budget justifica- civil penalty of not less than $20,478 and not tions to Congress. more than $204,891.64 for each such failure.

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Statement for Loan Guarantees and Loan Form-LLL, ‘‘Disclosure Form to Report Lob- Insurance bying,’’ in accordance with its instructions. Submission of this statement is a pre- The undersigned states, to the best of his requisite for making or entering into this or her knowledge and belief, that: transaction imposed by section 1352, title 31, If any funds have been paid or will be paid U.S. Code. Any person who fails to file the to any person for influencing or attempting required statement shall be subject to a civil to influence an officer or employee of any penalty of not less than $20,478 and not more agency, a Member of Congress, an officer or than $204,891.64 for each such failure. employee of Congress, or an employee of a Member of Congress in connection with this [55 FR 6737, 6755, Feb. 26, 1990, as amended at commitment providing for the United States 82 FR 27434, June 15, 2017; 83 FR 2073, Jan. 16, to insure or guarantee a loan, the under- 2018; 84 FR 1404, Feb. 4, 2019; 85 FR 1760, Jan. signed shall complete and submit Standard 13, 2020]

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APPENDIX B TO PART 1158—DISCLOSURE FORM TO REPORT LOBBYING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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PART 1168—NEW RESTRICTIONS ON Member of Congress in connection with LOBBYING any of the following covered Federal actions: the awarding of any Federal Subpart A—General contract, the making of any Federal grant, the making of any Federal loan, Sec. the entering into of any cooperative 1168.100 Conditions on use of funds. agreement, and the extension, continu- 1168.105 Definitions. 1168.110 Certification and disclosure. ation, renewal, amendment, or modification of any Federal contract, grant, Subpart B—Activities by Own Employees loan, or cooperative agreement. (b) Each person who requests or re- 1168.200 Agency and legislative liaison. ceives from an agency a Federal con- 1168.205 Professional and technical services. 1168.210 Reporting. tract, grant, loan, or cooperative agreement shall file with that agency a Subpart C—Activities by Other Than Own certification, set forth in appendix A, Employees that the person has not made, and will not make, any payment prohibited by 1168.300 Professional and technical services. paragraph (a) of this section. Subpart D—Penalties and Enforcement (c) Each person who requests or receives from an agency a Federal con- 1168.400 Penalties. tract, grant, loan, or a cooperative 1168.405 Penalty procedures. agreement shall file with that agency a 1168.410 Enforcement. disclosure form, set forth in appendix Subpart E—Exemptions B, if such person has made or has agreed to make any payment using 1168.500 Secretary of Defense. nonappropriated funds (to include profits from any covered Federal action), Subpart F—Agency Reports which would be prohibited under para- 1168.600 Semi-annual compilation. graph (a) of this section if paid for with 1168.605 Inspector General report. appropriated funds. APPENDIX A TO PART 1168—CERTIFICATION RE- (d) Each person who requests or re- GARDING LOBBYING ceives from an agency a commitment APPENDIX B TO PART 1168—DISCLOSURE FORM providing for the United States to in- TO REPORT LOBBYING sure or guarantee a loan shall file with AUTHORITY: 20 U.S.C. 959(a)(1); 28 U.S.C. that agency a statement, set forth in 2461 note; 31 U.S.C. 1352. appendix A, whether that person has SOURCE: 55 FR 6737, 6755, Feb. 26, 1990, un- made or has agreed to make any pay- less otherwise noted. ment to influence or attempt to influ- CROSS REFERENCE: See also Office of Man- ence an officer or employee of any agement and Budget notice published at 54 agency, a Member of Congress, an offi- FR 52306, December 20, 1989. cer or employee of Congress, or an employee of a Member of Congress in con- Subpart A—General nection with that loan insurance or guarantee. § 1168.100 Conditions on use of funds. (e) Each person who requests or re- (a) No appropriated funds may be ex- ceives from an agency a commitment pended by the recipient of a Federal providing for the United States to in- contract, grant, loan, or cooperative sure or guarantee a loan shall file with ageement to pay any person for influ- that agency a disclosure form, set forth encing or attempting to influence an in appendix B, if that person has made officer or employee of any agency, a or has agreed to make any payment to Member of Congress, an officer or em- influence or attempt to influence an of- ployee of Congress, or an employee of a ficer or employee of any agency, a

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

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

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

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

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(c) For purposes of paragraph (a) of (f) Only those services expressly au- this section, ‘‘professional and tech- thorized by this section are allowable nical services’’ shall be limited to ad- under this section. vice and analysis directly applying any professional or technical discipline. Subpart D—Penalties and For example, drafting or a legal docu- Enforcement ment accompanying a bid or proposal by a lawyer is allowable. Similarly, § 1168.400 Penalties. technical advice provided by an engi- (a) Any person who makes an expend- neer on the performance or operational iture prohibited herein shall be subject capability of a piece of equipment ren- to a civil penalty of not less than dered directly in the negotiation of a $20,489 and not more than $204,892 for contract is allowable. However, com- each such expenditure. munications with the intent to influ- (b) Any person who fails to file or ence made by a professional (such as a amend the disclosure form (see appen- licensed lawyer) or a technical person dix B) to be filed or amended if re- (such as a licensed accountant) are not quired herein, shall be subject to a civil allowable under this section unless penalty of not less than $20,489and not they provide advice and analysis di- more than $204,892 for each such fail- rectly applying their professional or ure. technical expertise and unless the ad- (c) A filing or amended filing on or vice or analysis is rendered directly after the date on which an administra- and solely in the preparation, submis- tive action for the imposition of a civil sion or negotiation of a covered Fed- penalty is commenced does not prevent eral action. Thus, for example, commu- the imposition of such civil penalty for nications with the intent to influence a failure occurring before that date. An made by a lawyer that do not provide administrative action is commenced legal advice or analysis directly and with respect to a failure when an inves- solely related to the legal aspects of tigating official determines in writing his or her client’s proposal, but gen- to commence an investigation of an al- erally advocate one proposal over an- legation of such failure. other are not allowable under this sec- (d) In determining whether to impose tion because the lawyer is not pro- a civil penalty, and the amount of any viding professional legal services. such penalty, by reason of a violation Similarly, communications with the by any person, the agency shall con- intent to influence made by an engi- sider the nature, circumstances, ex- neer providing an engineering analysis tent, and gravity of the violation, the prior to the preparation or submission effect on the ability of such person to of a bid or proposal are not allowable continue in business, any prior violations by such person, the degree of cul- under this section since the engineer is pability of such person, the ability of providing technical services but not di- the person to pay the penalty, and such rectly in the preparation, submission other matters as may be appropriate. or negotiation of a covered Federal ac- (e) First offenders under paragraph tion. (a) or (b) of this section shall be subject (d) Requirements imposed by or pur- to a civil penalty of $20,489, absent ag- suant to law as a condition for receiv- gravating circumstances. Second and ing a covered Federal award include subsequent offenses by persons shall be those required by law or regulation, or subject to an appropriate civil penalty reasonably expected to be required by between $20,489 and $204,892, as deter- law or regulation, and any other re- mined by the agency head or his or her quirements in the actual award docu- designee. ments. (f) An imposition of a civil penalty (e) Persons other than officers or em- under this section does not prevent the ployees of a person requesting or re- United States from seeking any other ceiving a covered Federal action in- remedy that may apply to the same clude consultants and trade associa- conduct that is the basis for the impo- tions. sition of such civil penalty.

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(g) The penalty amounts listed under September 30, respectively, of that paragraphs (a), (b), and (e) of this sec- year. tion shall be adjusted annually for in- (b) The report, including the com- flation. NEH will publish a document pilation, shall be available for public in the FEDERAL REGISTER containing inspection 30 days after receipt of the the new penalty amounts no later than report by the Secretary and the Clerk. January 15 of each year. (c) Information that involves intel- [55 FR 6737, 6755, Feb. 26, 1990, as amended at ligence matters shall be reported only 85 FR 22028, Apr. 21, 2020] to the Select Committee on Intel- ligence of the Senate, the Permanent § 1168.405 Penalty procedures. Select Committee on Intelligence of Agencies shall impose and collect the House of Representatives, and the civil penalties pursuant to the provi- Committees on Appropriations of the sions of the Program Fraud and Civil Senate and the House of Representa- Remedies Act, 31 U.S.C. sections 3803 tives in accordance with procedures (except subsection (c)), 3804, 3805, 3806, agreed to by such committees. Such in- 3807, 3808, and 3812, insofar as these pro- formation shall not be available for visions are not inconsistent with the public inspection. requirements herein. (d) Information that is classified under Executive Order 12356 or any suc- § 1168.410 Enforcement. cessor order shall be reported only to The head of each agency shall take the Committee on Foreign Relations of such actions as are necessary to ensure the Senate and the Committee on For- that the provisions herein are vigor- eign Affairs of the House of Represent- ously implemented and enforced in atives or the Committees on Armed that agency. Services of the Senate and the House of Representatives (whichever such committees have jurisdiction of matters Subpart E—Exemptions involving such information) and to the Committees on Appropriations of the § 1168.500 Secretary of Defense. Senate and the House of Representa- (a) The Secretary of Defense may ex- tives in accordance with procedures empt, on a case-by-case basis, a cov- agreed to by such committees. Such in- ered Federal action from the prohibi- formation shall not be available for tion whenever the Secretary deter- public inspection. mines, in writing, that such an exemp- (e) The first semi-annual compilation tion is in the national interest. The shall be submitted on May 31, 1990, and Secretary shall transmit a copy of each shall contain a compilation of the dis- such written exemption to Congress closure reports received from Decem- immediately after making such a de- ber 23, 1989 to March 31, 1990. termination. (f) Major agencies, designated by the (b) The Department of Defense may Office of Management and Budget issue supplemental regulations to im- (OMB), are required to provide ma- plement paragraph (a) of this section. chine-readable compilations to the Secretary of the Senate and the Clerk Subpart F—Agency Reports of the House of Representatives no later than with the compilations due § 1168.600 Semi-annual compilation. on May 31, 1991. OMB shall provide de- (a) The head of each agency shall col- tailed specifications in a memorandum lect and compile the disclosure reports to these agencies. (see appendix B) and, on May 31 and (g) Non-major agencies are requested November 30 of each year, submit to to provide machine-readable compila- the Secretary of the Senate and the tions to the Secretary of the Senate Clerk of the House of Representatives a and the Clerk of the House of Rep- report containing a compilation of the resentatives. information contained in the disclo- (h) Agencies shall keep the originals sure reports received during the six- of all disclosure reports in the official month period ending on March 31 or files of the agency.

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§ 1168.605 Inspector General report. (2) If any funds other than Federal appropriated funds have been paid or will be paid (a) The Inspector General, or other to any person for influencing or attempting official as specified in paragraph (b) of to influence an officer or employee of any this section, of each agency shall pre- agency, a Member of Congress, an officer or pare and submit to Congress each year, employee of Congress, or an employee of a commencing with submission of the Member of Congress in connection with this President’s Budget in 1991, an evalua- Federal contract, grant, loan, or cooperative tion of the compliance of that agency agreement, the undersigned shall complete with, and the effectiveness of, the re- and submit Standard Form-LLL, ‘‘Disclosure quirements herein. The evaluation may Form to Report Lobbying,’’ in accordance include any recommended changes that with its instructions. may be necessary to strengthen or im- (3) The undersigned shall require that the prove the requirements. language of this certification be included in the award documents for all subawards at all (b) In the case of an agency that does tiers (including subcontracts, subgrants, and not have an Inspector General, the contracts under grants, loans, and coopera- agency official comparable to an In- tive agreements) and that all subrecipients spector General shall prepare and sub- shall certify and disclose accordingly. mit the annual report, or, if there is no This certification is a material representa- such comparable official, the head of tion of fact upon which reliance was placed the agency shall prepare and submit when this transaction was made or entered the annual report. into. Submission of this certification is a (c) The annual report shall be sub- prerequisite for making or entering into this mitted at the same time the agency transaction imposed by section 1352, title 31, submits its annual budget justifica- U.S. Code. Any person who fails to file the tions to Congress. required certification shall be subject to a civil penalty of not less than $20,489 and not (d) The annual report shall include more than $204,892 for each such failure. the following: All alleged violations relating to the agency’s covered Federal Statement for Loan Guarantees and Loan actions during the year covered by the Insurance report, the actions taken by the head The undersigned states, to the best of his of the agency in the year covered by or her knowledge and belief, that: the report with respect to those alleged If any funds have been paid or will be paid violations and alleged violations in to any person for influencing or attempting previous years, and the amounts of to influence an officer or employee of any civil penalties imposed by the agency agency, a Member of Congress, an officer or in the year covered by the report. employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the under- APPENDIX A TO PART 1168— signed shall complete and submit Standard CERTIFICATION REGARDING LOBBYING Form-LLL, ‘‘Disclosure Form to Report Lob- bying,’’ in accordance with its instructions. Certification for Contracts, Grants, Loans, and Submission of this statement is a pre- Cooperative Agreements requisite for making or entering into this transaction imposed by section 1352, title 31, The undersigned certifies, to the best of his or her knowledge and belief, that: U.S. Code. Any person who fails to file the (1) No Federal appropriated funds have required statement shall be subject to a civil been paid or will be paid, by or on behalf of penalty of not less than $20,489 and not more the undersigned, to any person for influ- than $204,892 for each such failure. encing or attempting to influence an officer Annual Adjustments for Inflation or employee of an agency, a Member of Con- gress, an officer or employee of Congress, or The penalty amounts listed in this appen- an employee of a Member of Congress in con- dix will be adjusted annually for inflation. nection with the awarding of any Federal NEH will publish a document in the FEDERAL contract, the making of any Federal grant, REGISTER containing the new penalty the making of any Federal loan, the entering amounts no later than January 15 of each into of any cooperative agreement, and the year. extension, continuation, renewal, amendment, or modification of any Federal con- [55 FR 6737, 6755, Feb. 26, 1990, as amended at tract, grant, loan, or cooperative agreement. 85 FR 22028, Apr. 21, 2020]

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APPENDIX B TO PART 1168—DISCLOSURE FORM TO REPORT LOBBYING

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PART 1169—PRIVACY ACT 1169.2 Definitions. 1169.3 Inquiries about NEH’s systems of REGULATIONS records or implementation of the Privacy Act. Sec. 1169.4 Procedures for determining if an indi- 1169.1 Purpose and scope. vidual is the subject of an NEH record.

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1169.5 Procedures for acquiring access to General Counsel means the General NEH records pertaining to an individual. Counsel of NEH, or his or her designee; 1169.6 Identification required when request- Individual means any citizen of the ing access to NEH records pertaining to United States or an alien lawfully ad- an individual. mitted for permanent residence. 1169.7 Procedures for amending or correcting an individual’s NEH record. Maintain means to collect, use, store, 1169.8 The appeals process. or disseminate records, as well as any 1169.9 Fees charged to locate, review, or combination of these recordkeeping copy records. functions. The term also includes exer- 1169.10 NEH systems of records that are cov- cise of control over and, therefore, re- ered by exemptions under the Privacy sponsibility and accountability for, Act. systems of records. 1169.11 Penalties for obtaining an NEH NEH means the National Endowment record under false pretenses. for the Humanities. AUTHORITY: 5 U.S.C. 552a(f). NEH system means a system of records maintained by NEH. SOURCE: 84 FR 34789, July 19, 2019, unless otherwise noted. Privacy Act means the Privacy Act of 1974, as amended (5 U.S.C. 552a). § 1169.1 Purpose and scope. Record means any item, collection, or grouping of information about an indi- The regulations in this part set forth vidual, including, but not limited to, NEH’s procedures under the Privacy information regarding an individual’s Act, as required by 5 U.S.C. 552a(f), education, financial transactions, med- with respect to systems of records ical history, and criminal or employ- maintained by NEH. These regulations ment history and that contains the in- establish procedures by which an indi- dividual’s name or another identifying vidual may exercise the rights granted particular, such as a number or symbol by the Privacy Act to determine assigned to the individual, or his or her whether an NEH system of records con- fingerprints, voice print, or photo- tains a record pertaining to him or her; graph. gain access to such records; and re- Routine use means, with respect to quest correction or amendment of such disclosure of a record, the use of a records. The regulations also set iden- record for a purpose that is compatible tification requirements; establish pro- with the purpose for which it was col- cedures by which an individual may ap- lected. peal within NEH an adverse agency determination; prescribe fees which NEH System of records means a group of will charge for copying records; and es- records under the control of NEH from tablish exemptions from certain re- which NEH retrieves information by quirements of the Privacy Act for cer- use of an individual’s name or by some tain NEH systems of records or parts number, symbol, or other identifying thereof. particular assigned to an individual. § 1169.3 Inquiries about NEH’s systems § 1169.2 Definitions. of records or implementation of the The definitions of the Privacy Act Privacy Act. apply to this part. In addition, as used Inquiries about NEH’s systems of in this part: records or implementation of the Pri- Agency means any executive depart- vacy Act should be sent by email to ment, military department, Govern- [email protected] or by mail to the ment corporation, or other establish- following address: National Endow- ment in the executive branch of the ment for the Humanities, Office of the Federal government, including the Ex- General Counsel, 400 Seventh Street ecutive Office of the President or any SW, Room 4060, Washington, DC 20506. independent regulatory agency. Business day means a calendar day, § 1169.4 Procedures for determining if excluding Saturdays, Sundays, and an individual is the subject of an legal public holidays. NEH record. Chairperson means the Chairperson of (a) NEH has published notice of its NEH, or his or her designee. systems of records in the FEDERAL

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REGISTER and also has made such infor- may retrieve the individual’s records, mation available on the privacy pro- or describe the type of record in suffi- gram page of the NEH website. Any in- cient detail such that NEH may rea- dividual desiring to know whether a sonably identify the relevant system of specific system of records contains a records. The request should further record pertaining to him or her should state that it is made pursuant to the address such inquiries in writing to the Privacy Act. In addition, the request Office of the General Counsel at the should include any other information email or physical address identified in which may permit NEH to identify the § 1169.3. record for which access is being re- (b) The written inquiry described in quested, such as maiden name, dates of § 1169.4(a) should refer to the specific employment, etc. system or systems of records listed in (c) Where an individual requests the NEH Notice of Systems of Records, records pertaining to himself or her- or describe the type of record in suffi- self, NEH will process such request cient detail reasonably to identify the under both these regulations and relevant system of records. NEH’s regulations implementing the (c) At a minimum, the request should Freedom of Information Act (‘‘FOIA’’), contain sufficient identifying informa- set forth in 45 CFR part 1171, so as to tion to allow NEH to determine if there provide the greatest degree of lawful is a record pertaining to the individual access. making the request in a particular sys- (d) Upon receipt of any such request, tem of records. NEH reserves the right NEH will determine whether the to solicit from an individual submit- records identified by the requester ting such inquiry proof of identifica- exist and whether they are subject to tion, depending upon the sensitivity of any exemption under § 1169.10. Should the request. NEH determine that the records are re- (d) NEH will attempt to respond to leasable under the Privacy Act and an inquiry regarding whether a record these regulations, and upon verifying exists within 10 business days of receiv- the individual’s identity per § 1169.6, ing the inquiry, or 10 business days NEH will provide access to copies of from the time any required identifica- the records by transmitting them to tion is established, whichever is later. the requester at the mailing or email Such a response will contain or ref- address provided by the requester, or erence the procedures that the indi- by permitting the requester to inspect vidual must follow in order to gain ac- the records at NEH’s offices should the cess to any such records. requester ask for in-person inspection § 1169.5 Procedures for acquiring ac- or where the requester is a current cess to NEH records pertaining to NEH employee. an individual. (e) NEH will acknowledge a request (a) An individual may request access for access as soon as practicable, and in to his or her own records contained no event in less than 5 business days. within an NEH system of records by Consistent with the agency’s FOIA reg- writing to the Office of the General ulations, NEH will otherwise sub- Counsel at the email or physical ad- stantively answer a request for access dress identified in § 1169.3. The indi- in no less than 20 business days, except vidual making the request should in- when NEH determines otherwise, in clude his or her full name, address, which case NEH will inform the person email address, and telephone number. making the request of the reasons for The individual making the request the delay and the estimated date by should also specifically indicate wheth- which NEH will answer the request. er he or she wishes to review such When NEH can answer the request records in person. within 20 business days, the response (b) The request for access to a record shall include the following: within a system of records should refer (1) A statement that there is no to the specific system or systems of record as requested or a statement that records listed in the NEH Notice of there is no such record in the systems Systems of Records within which NEH of records maintained by NEH;

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(2) A statement as to whether NEH § 1169.6 Identification required when will grant access by providing a copy of requesting access to NEH records the record through the mail or email; pertaining to an individual. or, where an individual requests in-per- (a) Before granting access to personal son inspection, the address of the loca- information under the Privacy Act, tion and the date and time at which NEH may require that the individual the record may be examined. In the requesting such access provide reason- event the person requesting access is able proof of his or her identity. unable to meet the specified date and (b) Except in the case of NEH em- time, he or she may make alternative ployees and those individuals who re- arrangements with NEH; quest in-person inspection, NEH gen- (3) The amount of fees charged, if any erally will endeavor to provide access (see § 1169.9); to records via mail or email. In such (4) Any documentation required by instances, NEH will first confirm that NEH to verify the identity of the per- the physical and/or email addresses son making the request. provided by the requester match those (f) NEH will provide only one copy of contained with the NEH system of each requested record, based on the fee records. Depending upon the sensi- schedule in § 1169.9. tivity of the records requested, and (g) Per 5 U.S.C. 552a(h), a parent of a whether the addresses match as de- minor, upon presenting suitable per- scribed in the preceding sentence, NEH sonal identification, may act on behalf may also request that the individual of the minor to gain access to any verify his or her identity by providing record pertaining to the minor main- certain minimum identifying data, tained by NEH in a system of records. such as date or place of birth and/or A legal guardian may similarly act on copies of a valid driver’s license or behalf of an individual declared to be passport. Where the information incompetent due to physical or mental sought is of a particularly sensitive nature, and/or where the individual can- incapacity or age by a court of com- not provide minimum identifying data, petent jurisdiction, upon the presen- NEH may require that the individual tation of the documents authorizing seeking access submit a notarized the legal guardian to so act, and upon statement of identity or a signed state- suitable personal identification of the ment asserting and acknowledging that guardian. knowingly or willfully seeking or ob- (h) In the event NEH gains access to taining access to records about another a record by permitting in-person in- person under false pretenses may result spection, the individual to which the in a fine of up to $5,000. record pertains may be accompanied by (c) NEH will provide access by in-per- a person of his or her choice to review son examination to NEH employees as the record. Under such circumstances, well as to individuals who specifically NEH may require that the individual request disclosure in person. In such who is the subject of the record furnish instances, the individual requesting a written statement authorizing dis- disclosure may prove identity by pro- cussion of the record in the accom- ducing an employee identification panying person’s presence. card, driver’s license, or other license, (i) In accordance with this provision, permit or pass used for routine identi- NEH will disclose medical or psycho- fication purposes. If the individual is logical records pertaining to an indi- unable to provide suitable documenta- vidual to whom they pertain unless tion or identification, NEH may re- NEH determines, in consultation with quire that he or she stipulate, in writ- a physician, that disclosure of such ing, that knowingly or willingly seek- records might adversely affect the indi- ing or obtaining access to records vidual to whom they pertain. Under about another person under false pre- these circumstances, NEH will disclose tenses is punishable by a fine of up to this information to a licensed physi- $5,000. cian designated by such individual in (d) Identity verification procedures writing. shall not:

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(1) Be so complicated as to discour- practicable, and in no event less than 5 age unnecessarily individuals from business days. seeking access to information about (d) When NEH has previously verified themselves; the individual’s identity pursuant to (2) Be required of an individual seek- § 1169.6(b) or § 1169.6(c), it will not re- ing access to records that normally quire further verification of identity so would be available under FOIA (see 45 long as the request for amendment or CFR part 1171); correction does not suggest a need for (3) Require, as a condition to access, additional verification. If NEH has not the provision of a social security num- previously verified the individual’s ber, unless a social security number is identity, it may require that the indi- the only means by which NEH may re- vidual validate his or her identity as trieve the records that are the subject described in § 1169.6(b) or § 1169(c). of the request. (e) To the extent possible, NEH will (4) Require that the individual ex- render a decision upon a request to plain or justify his or her need for ac- amend a record no less than 20 business cess to any record under this part. days after receiving such a request. In the event NEH cannot render a deci- § 1169.7 Procedures for amending or sion within that time frame, it will so correcting an individual’s NEH inform the individual who made the re- record. quest and provide an expected date for a decision. Any such decision will in- (a) Individuals are entitled to request clude the following information: amendments or corrections of records (1) NEH’s decision whether to grant pertaining to themselves pursuant to 5 in whole, or deny any part of, the re- U.S.C. 552a(d)(2). Normally, amend- quest to amend or correct the record; ments to this part are limited to cor- (2) The reasons for the determination recting factual matters and not mat- for any portion of the request which is ters of official judgment, such as grant denied; proposal evaluations, performance rat- (3) A statement that any denial may ings, promotion potential, and job per- be appealed pursuant to the procedures formance appraisals. An individual set forth in § 1169.8; and seeking action under this provision (4) The name and address of the offi- bears the burden of demonstrating to cial to whom an individual may submit NEH that a record should be amended an appeal of denial. or corrected. (f) NEH will forward requests to (b) Individuals may request the amend or correct a record governed by amendment of records pertaining to the regulations of another agency to themselves by submitting a letter in such agency for processing, and inform writing to the NEH Office of the Gen- the person who submitted such request eral Counsel at the email or physical in writing of its referral. address identified in § 1169.3. Such letter shall include the following informa- § 1169.8 The appeals process. tion: (a) An individual whose request for (1) Identification of the particular access to, or correction or amendment record to be amended or corrected; of, a record is initially denied by NEH (2) The NEH system from which the and who wishes to appeal that denial record was retrieved; may do so by sending a letter within 90 (3) The precise correction or amend- days of receipt of the initial denial to ment sought, preferably in the form of the Chairperson. If an appeal concerns an edited copy of the record reflecting records retrieved from the OIG’s Inves- the desired modification; tigative Files, the OIG will act on the (4) Reasons for requesting amend- appeal and will carry out all respon- ment or correction of the record, in- sibilities with respect to Privacy Act cluding copies of available documen- appeals otherwise assigned to the tary evidence supporting the request, Chairperson under this section. where applicable. (b) The appeal letter must: (c) NEH will acknowledge a request (1) Specify the records subject to the for amendment or correction as soon as appeal;

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(2) Include the information specified statements of disagreement available in § 1169.7(b); in subsequent disclosures of the record, (3) Include copies of the correspond- together with a statement from NEH ence from NEH in which it initially de- (if deemed appropriate) summarizing nied the request for access, or for the agency’s refusal. amendment or correction; and (5) The requester’s right to seek judi- (4) Explain why NEH’s denial of ac- cial review under 5 U.S.C. 552a(g)(1)(a). cess, amendment or correction was er- [84 FR 34789, July 19, 2019, as amended at 84 roneous. FR 59314, Nov. 4, 2019] (c) Appeals should be directed to the NEH Office of the General Counsel at § 1169.9 Fees charged to locate, review, the physical address or email address or copy records. identified in § 1169.3. The Office of the (a) NEH will not charge fees for the General Counsel will refer the appeal search or review of requested records, letter to the Chairperson (or his or his or the amendment or correction of or her designee), or in the case of records. records retrieved from NEH’s OIG In- (b) NEH will not charge fees for pro- vestigative Files, will refer the appeal viding the first copy of a record or any letter to the NEH OIG. portion of a record to whom the record (d) The Chairperson will review the pertains. NEH will otherwise charge initial request for access to, or amend- copying fees at the same rate, and ment or correction of, the record, using the same procedures, that NEH NEH’s refusal, and any other pertinent has established for FOIA requests. material relating to the appeal. NEH will not hold a hearing on the appeal. § 1169.10 NEH systems of records that (e) The Chairperson will render a are covered by exemptions under final decision on the appeal within 30 the Privacy Act. business days of its receipt by NEH, (a) Pursuant to and limited by 5 unless the Chairperson, for good cause U.S.C. 552a(j)(2), the NEH system enti- shown, extends the 30-day period. tled ‘‘Office of the Inspector General Should the Chairperson extend the 30- Investigative Files’’ shall be exempted day period, NEH will inform the re- from the provisions of 5 U.S.C. 552a, ex- quester of the extension and the cir- cept for subsections (b); (c)(1) and (2); cumstances of the delay. (e)(4)(A) through (F); (e)(6), (7), (9), (10), (f) In conducting appeals under this and (11); and (i), insofar as that NEH provision, the Chairperson will be guid- system contains information per- ed by the requirements of 5 U.S.C. taining to criminal law enforcement 552a(e)(1) and (e)(5). investigations. NEH has implemented (g) NEH will notify a requester, in this exemption because application of writing, when the Chairperson deter- these provisions of the Privacy Act mines to grant an appeal in whole or in might alert investigation subjects to part, and will grant the requester ac- the existence or scope of investiga- cess to his or her record, or correct or tions; lead to suppression, alteration, amend the record, in accordance with fabrication, or destruction of evidence; the Chairperson’s determination. disclose investigative techniques or (h) When the Chairperson determines procedures; reduce the cooperativeness to deny an appeal, in whole or in part, or safety of witnesses; or otherwise im- NEH will notify the requester in writ- pair investigations. ing of the following: (b) Pursuant to and limited by 5 (1) The basis for the decision; U.S.C. 552a(k)(2), the NEH system enti- (2) That the requester may submit to tled ‘‘Office of the Inspector General NEH a concise statement setting forth Investigative Files’’ shall be exempted the reasons for disagreeing with NEH’s from 5 U.S.C. 552a(c)(3); (d); (e)(1); decision. (e)(4)(G), (H), and (I); and (f), insofar as (3) The procedures for filing such that NEH system consists of investiga- statement of disagreement. tory material compiled for law enforce- (4) That, in a case where the Chair- ment purposes, other than material person refuses a request to amend or within the scope of the exemption at 5 correct a record, NEH will make such U.S.C. 552a(j)(2).

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(c) Pursuant to and limited by 5 Subpart C—Employment Practices U.S.C. 552a(k)(5), the NEH system entitled ‘‘Grants and Cooperative Agree- 1170.21 Discrimination prohibited. ments: Electronic Grant Management 1170.22 Reasonable accommodation. 1170.23 Employment criteria. System’’ shall be exempted from 5 1170.24 Preemployment inquiries. U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), 1170.25–1170.30 [Reserved] (H), and (I); and (f), insofar as that NEH system consists of materials Subpart D—Accessibility which would reveal the identity of references for fellowship or grant appli- 1170.31 Discrimination prohibited. cants. 1170.32 Existing facilities. (d) Records on applicants for employ- 1170.33 New construction. ment at NEH are covered by the Office 1170.34 Historic properties. [Reserved] of Personnel Management government- 1170.35–1170.40 [Reserved] wide system notice ‘‘Recruiting, Exam- Subpart E—Postsecondary Education ining, and Placement Records.’’ These records are exempted as claimed in 5 1170.41 Application of this subpart. CFR 297.501(b)(7). 1170.42 Admissions and recruitment. (e) Pursuant to 5 U.S.C. 552a(d)(5), 1170.43 Treatment of students; general. nothing within these regulations shall 1170.44 Academic adjustments. allow an individual access to any infor- 1170.45 Housing. mation compiled in reasonable antici- 1170.46 Financial and employment assist- pation of a civil action or proceeding. ance to students. 1170.47 Nonacademic services. (f) NEH may also assert exemptions 1170.48–1170.50 [Reserved] for records received from another agency that could properly be claimed by Subpart F—Enforcement that agency in responding to a request. 1170.51 Assurances required. § 1169.11 Penalties for obtaining an 1170.52 Remedial action, voluntary action, NEH record under false pretenses. and self-evaluation. 1170.53 Designation of responsible employee Under 5 U.S.C. 552a(i)(3), any person and adoption of grievance procedures. who knowingly and willfully requests 1170.54 Notice. or obtains any record from NEH con- 1170.55 Endowment enforcement and com- cerning an individual under false pre- pliance procedures. tenses shall be guilty of a misdemeanor 1170.56–1170.99 [Reserved] and fined not more than $5,000. AUTHORITY: 29 U.S.C. 794.

SOURCE: 46 FR 55897, Nov. 12, 1981, unless PART 1170—NONDISCRIMINATION otherwise noted. ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS Subpart A—General Provisions OR ACTIVITIES § 1170.1 Purpose. Subpart A—General Provisions The purpose of this part is to imple- Sec. ment section 504 of the Rehabilitation 1170.1 Purpose. Act of 1973, which is designed to elimi- 1170.2 Application. nate discrimination on the basis of 1170.3 Definitions. handicap in any program or activity 1170.4 Effect of State or local law or other receiving Federal financial assistance. requirements and effect of employment opportunities. § 1170.2 Application. 1170.5–1170.10 [Reserved] This part applies to each recipient of Subpart B—Discrimination Prohibited Federal financial assistance from the National Endowment for the Human- 1170.11 General prohibition against dis- ities and to each program or activity crimination. that receives such assistance. 1170.12 Discriminatory actions prohibited. 1170.13 Illustrative examples. [46 FR 55897, Nov. 12, 1981, as amended at 68 1170.14–1170.20 [Reserved] FR 51386, Aug. 26, 2003]

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§ 1170.3 Definitions. which is extended Federal financial as- As used in this part: sistance: (a) Section 504 means section 504 of (1)(i) A department, agency, special the Rehabilitation Act of 1973, Pub. L. purpose district, or other instrumen- 93–112, as amended by the Rehabilita- tality of a State or of a local govern- tion Act Amendments of 1974, Pub. L. ment; or 93–516, 29 U.S.C. 794 et seq. by the Reha- (ii) The entity of such State or local bilitation, Comprehensive Services De- government that distributes such as- velopmental Disabilities Amendments sistance and each such department or of 1978, Pub. L. 95–602, and by the Civil agency (and each other State or local Rights Restoration Act of 1987, Pub. L. government entity) to which the as- 100–259. sistance is extended, in the case of as- (b) The term Endowment or the term sistance to a State or local govern- agency means the National Endowment ment; for the Humanities. (2)(i) A college, university, or other (c) The term Chairman means the postsecondary institution, or a public Chairman of the National Endowment system of higher education; or for the Humanities. (ii) A local educational agency (as de- (d) The term responsible Endowment fined in 20 U.S.C. 7801), system of voca- official with respect to any program or tional education, or other school sys- activity receiving Federal financial as- tem; sistance means the Chairman of the (3)(i) An entire corporation, partner- Endowment, the Director of the Office ship, or other private organization, or of Equal Employment Opportunity, or an entire sole proprietorship— other Endowment official designated (A) If assistance is extended to such by the Chairman. corporation, partnership, private orga- (e) The term United States means the nization, or sole proprietorship as a States of the United States, the Dis- whole; or trict of Columbia, Puerto Rico, the (B) Which is principally engaged in Virgin Islands, American Samoa, the business of providing education, Guam, the Northern Mariana Islands, health care, housing, social services, or Wake Island, the Canal Zone, and the parks and recreation; or territories and possessions of the United States, and the term State (ii) The entire plant or other com- means any one of the foregoing. parable, geographically separate facil- (f) Federal financial assistance means ity to which Federal financial assist- any grant, loan, contract (other than a ance is extended, in the case of any procurement contract or a contract of other corporation, partnership, private insurance or guaranty), or any other organization, or sole proprietorship; or arrangement by which the agency pro- (4) Any other entity which is estab- vides or otherwise makes available as- lished by two or more of the entities sistance in the form of: described in paragraph (g)(1), (2), or (3) (1) Funds; of this section. (2) Services of Federal personnel; or (h) Facility means all or any portion (3) Real and personal property or any of buildings, structures, equipment, interest in or use of such property, in- roads, walks, parking lots, or other cluding: real or personal property or interest in (i) Transfers or leases of such prop- such property. erty for less than fair market value or (i) Recipient means any state or its for reduced consideration; and political subdivision, any instrumen- (ii) Proceeds from a subsequent tality of a state or its political subdivi- transfer or lease of such property if the sion, any public or private agency, in- Federal share of its fair market value stitution, organization, or other enti- is not returned to the Federal govern- ty, or any person to which Federal fi- ment. nancial assistance is extended directly (g) The term program or activity or through another recipient, including means all of the operations of any enti- any successor, assignee, or transferee ty described in paragraphs (g)(1) of a recipient, but excluding the ulti- through (4) of this section, any part of mate beneficiary of the assistance.

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(j) Handicapped person means any per- (i) Has a physical or mental impair- son who has a physical or mental im- ment that does not substantially limit pairment that substantially limits one major life activities but is treated by a or more major life activities, has a recipient as constituting such a limita- record of such an impairment, or is re- tion; garded as having such an impairment. (ii) Has a physical or mental impair- For purposes of section 504, in connec- ment that substantially limits major tion with employment, this term does life activities only as a result of the at- not include any individual who is an al- titudes of others toward such impair- coholic or drug abuser whose current ment; or use of alcohol or drugs prevents such (iii) Has none of the impairments de- individual from performing the duties fined in paragraph (j)(1) of this section of the job in question or whose employ- but is treated by a recipient as having ment, by reason of such current alco- such an impairment. hol or drug abuse, would constitute a (k) Qualified handicapped person direct threat to the property or the means: safety of others. As used in this para- (1) With respect to employment, a graph, the phrase: handicapped person who, with reason- (1) Physical or mental impairment able accommodation, can perform the means: essential functions of the job in ques- (i) Any physiological disorder or con- tion and dition, cosmetic disfigurement, or ana- (2) With respect to postsecondary and tomical loss affecting one or more of vocational education services, a handi- the following body systems: Neuro- capped person who meets the academic logical; musculoskeletal; special sense and technical standards requisite to organs; respiratory, including speech admission or participation in the re- organs; cardiovascular; reproductive; cipient’s education program or activ- digestive; genitourinary; hemic and ity; lymphatic; skin; and endocrine; or (ii) Any mental or psychological dis- (3) With respect to services, a handi- order, such as mental retardation, or- capped person who meets the essential ganic brain syndrome, emotional or eligibility requirements for the receipt mental illness, and specific learning of such services. disabilities. The term physical or mental [46 FR 55897, Nov. 12, 1981, as amended at 68 impairment includes, but is not limited FR 51386, Aug. 26, 2003] to, such diseases and conditions as orthopedic, visual, speech, and hearing § 1170.4 Effect of State or local law or impairments, cerebral palsy, epilepsy, other requirements and effect of muscular dystrophy, multiple sclerosis, employment opportunities. cancer, heart disease, diabetes, mental (a) The obligation to comply with retardation, emotional illness, and this part is not obviated or alleviated drug addiction and alcoholism. by the existence of any state or local (2) Major life activities means func- law or other requirement that, on the tions such as caring for one’s self, per- basis of handicap, imposes prohibitions forming manual tasks, walking, seeing, or limits upon the eligibility of quali- hearing, speaking, breathing, learning, fied handicapped persons to receive and working. services or to practice any occupation (3) Has a record of such impairment or profession. means has a history of, or has been (b) The obligation to comply with misclassified as having, a mental or this part is not obviated or alleviated physical impairment that substantially because employment opportunities in limits one or more major life activi- any occupation or profession are or ties. may be more limited for handicapped (4) Is regarded as having an impairment persons than for nonhandicapped per- means sons.

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§§ 1170.5–1170.10 [Reserved] member of planning or advisory boards; or Subpart B—Discrimination (7) Otherwise limit a qualified handi- Prohibited capped person in the enjoyment of any right, privilege, advantage, or oppor- § 1170.11 General prohibition against tunity enjoyed by others receiving the discrimination. aid, benefit, or service. (b) A recipient may not deny a quali- No qualified handicapped person fied handicapped person the oppor- shall, on the basis of handicap, be ex- tunity to participate in aid, benefits, cluded from participation in, be denied or services that are not separate or dif- the benefits of, or otherwise be sub- ferent, despite the existence of permis- jected to discrimination under any pro- sibly separate or different aid, benefits, gram or activity that receives Federal or services. financial assistance. (c) A recipient may not, directly or [46 FR 55897, Nov. 12, 1981, as amended at 68 through contractual or other arrange- FR 51386, Aug. 26, 2003] ments, utilize criteria or methods of administration. § 1170.12 Discriminatory actions pro- (1) that have the effect of subjecting hibited. qualified handicapped persons to dis- (a) A recipient, in providing any aid, crimination on the basis of handicap, benefit, or service, may not, directly or (2) that have the purpose or effect of through contractual, licensing, or defeating or substantially impairing other arrangements, on the basis of accomplishment of the objectives of handicap: the recipient’s program or activity (1) Deny a qualified handicapped per- with respect to handicapped persons, or son the opportunity to participate in (3) that perpetuate the discrimina- or benefit from the aid, benefit, or tion of another recipient if both recipi- service; ents are subject to common adminis- (2) Afford a qualified handicapped trative control or are agencies of the person an opportunity to participate in same state. or benefit from the aid, benefit, or (d) A recipient may not, in deter- service that is not equal to that af- mining the site or location of a facil- forded others; ity, make selections (3) Provide a qualified handicapped (1) that have the effect of excluding person with an aid, benefit, or service handicapped persons from, denying that is not as effective in affording them the benefits of, or otherwise sub- equal opportunity to obtain the same jecting them to discrimination under result, to gain the same benefit, or to any program or activity that receives reach the same level of achievement as Federal financial assistance or that provided to others; (2) that have the purpose or effect of (4) Provide different or separate aid, defeating or substantially impairing benefits, or services to handicapped the accomplishment of the objectives persons or to any class of handicapped of the program or activity with respect persons than is provided to others un- to handicapped persons. less such action is necessary to provide (e) The exclusion of nonhandicapped qualified handicapped persons with aid, persons from aid, benefits, or services benefits, or services that are as effec- limited by Federal statute or executive tive as those provided to others; order to handicapped persons or the ex- (5) Aid or perpetuate discrimination clusion of a specific class of handi- against a qualified handicapped person capped persons from aid, benefits, or by providing significant assistance to services limited by Federal statute or an agency, organization, or person that executive order to a different class of discriminates on the basis of handicap handicapped persons is not prohibited in providing any aid, benefit, or service by this part. to beneficiaries of the recipient’s pro- (f) Recipients shall administer program or activity; grams or activities in the most inte- (6) Deny a qualified handicapped per- grated setting appropriate to the needs son the opportunity to participate as a of qualified handicapped persons.

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(g) Recipients shall take appropriate fits, or services conducted in that facil- steps to ensure that communications ity are accessible to handicapped per- with their applicants, employees, and sons. beneficiaries are available to persons (d) In carrying out the mandate of with impaired vision and hearing. section 504 and these implementing [46 FR 55897, Nov. 12, 1981, as amended at 68 regulations recipients should admin- FR 51386, Aug. 26, 2003] ister Endowment assisted programs or activities in the most integrated set- § 1170.13 Illustrative examples. ting appropriate, e.g., tours made (a) The following examples will illus- available to the hearing impaired trate the application of the foregoing should be open to the public at large provisions to some of the activities and everyone should be permitted to funded by the National Endowment for enjoy the benefits of a tactile experi- the Humanities. ence in a museum. (1) A publication or a museum cata- [46 FR 55897, Nov. 12, 1981, as amended at 68 logue supported by the Endowment FR 51386, Aug. 26, 2003] may be made usable by the blind and the visually impaired through cassette §§ 1170.14–1170.20 [Reserved] tapes, records, discs, braille, readers and simultaneous publications. Subpart C—Employment Practices (2) A lecture, meeting or symposium supported by Federal funds may be § 1170.21 Discrimination prohibited. made available to deaf and hearing impaired persons through the use of a (a) General. No qualified handicapped sign language interpreter or by pro- person shall, on the basis of handicap, viding scripts in advance of the per- be subjected to discrimination in em- formance. ployment under any program or activ- (3) Specific aid, benefits, or services ity that receives Federal financial as- supported by Federal funds may be of- sistance. fered in an inaccessible facility pro- (b) A recipient shall make all deci- vided that the same aid, benefit, or sions concerning employment under service is also offered to the public at any program or activity to which this large in an accessible space. part applies in a manner which ensures (4) A qualified handicapped person is that discrimination on the basis of one who is able to meet all require- handicap does not occur and may not ments in spite of his handicap. An edu- limit, segregate, or classify applicants cational institution is not required to or employees in any way that ad- disregard the disabilities of handi- versely affects their opportunities or capped individuals or to lower or to status because of handicap. make substantial modifications of (c) A recipient may not participate in standards to accommodate a handi- a contractual or other relationship capped person. that has the effect of subjecting quali- (b) State humanities committees are fied handicapped applicants or employ- obligated to develop methods of admin- ees to discrimination prohibited by istering Federal funds so as to ensure this subpart. The relationships referred that handicapped persons are not sub- to in this paragraph include relation- jected to discrimination on the basis of ships with employment and referral handicap either by sub-grantees or by agencies, with labor unions, with orga- the manner in which the funds are dis- nizations providing or administering tributed. fringe benefits to employees of the re- (c) In the event Endowment funds are cipient, and with organizations pro- utilized to construct, expand, alter, viding training and apprenticeships. lease or rent a facility, the benefits of (d) Specific activities. The provisions the program or activity provided in or of this subpart apply to: through that facility must be con- (1) Recruitment, advertising, and the ducted in accordance with these regu- processing of applications for employ- lations, e.g., a museum receiving a ment; grant to renovate an existing facility (2) Hiring, upgrading, promotion, must assure that all museum aid, bene- award of tenure, demotion, transfer,

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layoff, termination, right of return (1) The overall size of the recipient’s from layoff and rehiring; program or activity with respect to (3) Rates of pay or any other form of number of employees, number and type compensation and changes in com- of facilities, and size of budget; pensation; (2) The type of the recipient’s oper- (4) Job assignments, job classifica- ation, including the composition and tions, organizational structures, posi- structure of the recipient’s workforce; tion descriptions, lines of progression, and and seniority lists; (3) The nature and cost of the accom- (5) Leaves of absence, sick leave, or modation needed. any other leave; [46 FR 55897, Nov. 12, 1981, as amended at 68 (6) Fringe benefits available by vir- FR 51386, Aug. 26, 2003] tue of employment, whether or not administered by the recipient; § 1170.23 Employment criteria. (7) Selection and financial support (a) A recipient may not make use of for training, including apprenticeship, any employment test or other selection professional meetings, conferences, and criterion that screens out or tends to other related activities, and selection screen out handicapped persons or any for leaves of absence to pursue train- class of handicapped persons unless: ing; (1) The test score or other selection (8) Employer sponsored activities, in- criterion, as used by the recipient, is cluding those that are social or rec- shown to be job-related for the position reational; and in question; and (9) Any other term, condition, or (2) Alternative job-related tests or privilege of employment. criteria are unavailable. (e) A recipient’s obligation to comply (b) A recipient shall select and ad- with this subpart is not affected by any minister tests concerning employment inconsistent term of any collective so as best to ensure that, when admin- bargaining agreement to which it is a istered to an applicant or employee party. who has a handicap that impairs sensory, manual, or speaking skills, the [46 FR 55897, Nov. 12, 1981, as amended at 68 test results accurately reflect the ap- FR 51386, Aug. 26, 2003] plicant’s or employee’s job skills, aptitude, or other factors relevant to ade- § 1170.22 Reasonable accommodation. quate performance of the job in ques- (a) A recipient shall make reasonable tion. accommodation to the known physical or mental limitations of an otherwise § 1170.24 Preemployment inquiries. qualified handicapped applicant or em- (a) A recipient may not, except as ployee unless the recipient can dem- provided below, conduct a preemploy- onstrate that the accommodation ment medical examination, make pre- would impose an undue hardship on the employment inquiry as to whether the operation of its program or activity. applicant is a handicapped person, or (b) Reasonable accommodation may inquire as to the nature or severity of include: a handicap. A recipient may, however, (1) Making facilities used by employ- make preemployment inquiry into an ees readily accessible to and usable by applicant’s ability to perform job-re- handicapped persons, and lated functions. (2) Job restructuring, part-time or (b) If a recipient is taking remedial modified work schedules, acquisition action to correct the effects of past dis- or modification of equipment or de- crimination, if a recipient is taking vices, the provision of readers or inter- voluntary action to overcome the ef- preters, and other similar actions. fects of conditions that resulted in lim- (c) In determining pursuant to para- ited participation in its federally as- graph (a) of this section whether an ac- sisted program or activity, or if a re- commodation would impose an undue cipient is taking affirmative action hardship on the operation of a recipi- under section 503 of the Rehabilitation ent’s program or activity, factors to be Act, the recipient may invite appli- considered include: cants for employment to indicate

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whether and to what extent they are inaccessible to or unusable by handi- handicapped, provided, that: capped persons, be denied the benefits (1) The recipient states clearly on of, be excluded from participation in, any written questionnaire used for this or otherwise be subjected to discrimi- purpose or makes clear orally if no nation under any program or activity written questionnaire is used that the to which this part applies. information requested is intended for use solely in connection with its reme- § 1170.32 Existing facilities. dial action obligations or its voluntary (a) Accessibility. A recipient shall op- or affirmative action efforts; and erate each program or activity to (2) The recipient states clearly that which this part applies so that when the information is being requested on a each part is viewed in its entirety it is voluntary basis, that it will be kept readily accessible to handicapped per- confidential as provided in paragraph sons. This paragraph does not nec- (d) of this section, that refusal to pro- essarily require a recipient to make vide it will not subject the applicant or each of its existing facilities or every employee to any adverse treatment, part of a facility accessible to and usa- and that it will be used only in accord- ble by handicapped persons. ance with this part. (b) Methods. A recipient may comply (c) Nothing in this section shall pro- with the requirements of paragraph (a) hibit a recipient from conditioning an of this section through such means as offer of employment on the results of a redesign of equipment, reassignment of medical examination conducted prior classes or other services to accessible to the employee’s entrance on duty, buildings, alteration of existing facili- provided, that: ties and construction of new facilities (1) All entering employees are sub- in conformance with the requirements jected to such an examination regard- of § 1170.33, or any other methods that less of handicap; and result in making its program or activ- (2) The results of such an examina- ity accessible to handicapped persons. tion are used only in accordance with A recipient is not required to make the requirements of this part. structural changes in existing facilities (d) Information obtained in accord- where other methods are effective in ance with this section as to the med- achieving compliance with paragraph ical condition or history of the appli- (a) of this section. In choosing among cant shall be collected and maintained available methods for meeting the re- on separate forms that shall be ac- quirement of paragraph (a) of this sec- corded confidentiality as medical tion, a recipient shall give priority to records, except that: those methods that serve handicapped (1) Supervisors and managers may be persons in the most integrated setting informed regarding restrictions on the appropriate. work or duties of handicapped persons (c) Time period. A recipient shall com- and regarding necessary accommoda- ply with the requirement of paragraph tions; (a) of this section within sixty days of (2) First aid and safety personnel the effective date of this part except may be informed, where appropriate, if that where structural changes in facili- the condition might require emergency ties are necessary, such changes shall treatment; and be made within three years of the ef- (3) Government officials inves- fective date of this part, but in any tigating compliance with the Act shall event as expeditiously as possible. be provided relevant information upon (d) Transition plan. In the event that request. structural changes to facilities are necessary to meet the requirement of §§ 1170.25–1170.30 [Reserved] paragraph (a) of this section, a recipient shall develop, within one year of Subpart D—Accessibility the effective date of this part, a transition plan setting forth the steps nec- § 1170.31 Discrimination prohibited. essary to complete such changes. The No qualified handicapped person plan shall be developed with the assist- shall, because recipient’s facilities are ance of interested persons, including

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handicapped persons or organizations greater access to and usability of the representing handicapped persons. A building is provided. copy of the transition plan shall be (2) For purposes of this section, sec- made available upon request for public tion 4.1.6(1)(g) of UFAS shall be inter- inspection. The plan shall, at a min- preted to exempt from the require- imum: ments of UFAS only mechanical rooms (1) Identify physical obstacles in the and other spaces that, because of their recipient’s facilities that limit the ac- intended use, will not require accessi- cessibility of its program or activity to bility to the public or beneficiaries or handicapped persons; result in the employment or residence (2) Describe in detail the methods therein of persons with physical handi- that will be used to make the facilities caps. accessible; (3) This section does not require re- (3) Specify the schedule for taking cipients to make building alterations the steps necessary to achieve full ac- that have little likelihood of being accessibility under paragraph (a) of this complished without removing or alter- section and, if the time period of the ing a load-bearing structural member. transition plan is longer than one year, [46 FR 55897, Nov. 12, 1981, as amended at 55 identify the steps that will be taken FR 52138, 52142, Dec. 19, 1990] during each year of the transition period; and § 1170.34 Historic properties. [Re- served] (4) Indicate the person responsible for implementation of the plan. §§ 1170.35–1170.40 [Reserved] (e) Notice. The recipient shall adopt and implement procedures to ensure Subpart E—Postsecondary that interested persons, including per- Education sons with impaired vision or hearing can obtain information as to the exist- § 1170.41 Application of this subpart. ence and location of services, activi- Subpart E applies to postsecondary ties, and facilities that are accessible education programs or activities, in- to and usable by handicapped persons. cluding postsecondary vocational edu- [46 FR 55897, Nov. 12, 1981, as amended at 68 cation programs or activities, that re- FR 51386, Aug. 26, 2003] ceive Federal financial assistance and to recipients that operate, or that re- § 1170.33 New construction. ceive Federal financial assistance for (a) Design, construction, and alteration. the operation of, such programs or ac- New facilities shall be designed and tivities. constructed to be readily accessible to [46 FR 55897, Nov. 12, 1981, as amended at 68 and usable by handicapped persons. Al- FR 51386, Aug. 26, 2003] terations to existing facilities shall, to the maximum extent feasible, be de- § 1170.42 Admissions and recruitment. signed and constructed to be readily (a) General. Qualified handicapped accessible to and usable by handi- persons may not, on the basis of handicapped persons. cap, be denied admission or be sub- (b) Conformance with Uniform Federal jected to discrimination in admission Accessibility Standards. (1) Effective as or recruitment by a recipient to which of January 18, 1991, design, construc- this subpart applies. tion, or alteration of buildings in con- (b) Admissions. In administering its formance with sections 3-8 of the Uni- admission policies, a recipient to which form Federal Accessibility Standards this subpart applies: (USAF) (appendix A to 41 CFR subpart (1) May not apply limitations upon 101–19.6) shall be deemed to comply the number or proportion of handi- with the requirements of this section capped persons who may be admitted; with respect to those buildings. Depar- (2) May not make use of any test or tures from particular technical and criterion for admission that has a dis- scoping requirements of UFAS by the proportionate, adverse effect on handi- use of other methods are permitted capped persons or any class of handi- where substantially equivalent or capped persons unless

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(i) The test or criterion, as used by dial action obligations or its voluntary the recipient, has been validated as a action efforts; and predictor of success in the education (2) The recipient states clearly that program or activity in question and the information is being requested on a (ii) Alternate tests or criteria that voluntary basis, that it will be kept have a less disproportionate, adverse confidential, that refusal to provide it effect are not shown by the Chairman will not subject the applicant to any to be available. adverse treatment, and that it will be (3) Shall assure itself that: used only in accordance with this part. (i) Admissions tests are selected and (d) Validity studies. For the purpose of administered so as best to ensure that, paragraph (b)(2) of this section, a re- when a test is administered to an appli- cipient may base prediction equations cant who has a handicap that impairs on first year grades, but shall conduct sensory, manual, or speaking skills, periodic validity studies against the the test results accurately reflect the criterion of overall success in the edu- applicant’s aptitude or achievement cation program or activity in question level or whatever other factor the test in order to monitor the general valid- purports to measure, rather than re- ity of the test scores. flecting the applicant’s impaired sensory, manual, or speaking skills (ex- § 1170.43 Treatment of students; gen- cept where those skills are the factors eral. that the test purports to measure); (a) No qualified handicapped student (ii) Admissions tests that are de- shall, on the basis of handicap, be ex- signed for persons with impaired sensory, manual, or speaking skills are of- cluded from participation in, be denied fered as often and in as timely a man- the benefits of, or otherwise be sub- ner as are other admissions tests; and jected to discrimination under any aca- (iii) Admissions tests are adminis- demic, research, occupational training, tered in facilities that, on the whole, housing, health insurance, counseling, are accessible to handicapped persons; financial aid, physical education, ath- and letics, recreation, transportation, or (4) Except as provided in paragraph other postsecondary education aid, (c) of this section, may not make benefit, or service to which this sub- preadmission inquiry as to whether an part applies. applicant for admission is a handi- (b) A recipient to which this subpart capped person but, after admission, applies that considers participation by may make inquiries on a confidential students in education programs or ac- basis as to handicaps that may require tivities not operated wholly by the re- accommodation. cipient as part of, or equivalent to, an (c) Preadmission inquiry exception. education program or activity operated When a recipient is taking remedial ac- by the recipient shall assure itself that tion to correct the effects of past dis- the other education program or activ- crimination pursuant to § 1170.52(a) or ity, as a whole, provides an equal op- when a recipient is taking voluntary portunity for the participation of action to overcome the effects of condi- qualified handicapped persons. tions that resulted in limited partici- (c) A recipient to which this subpart pation in its federally assisted program applies may not, on the basis of handi- or activity pursuant to § 1170.52(b), the cap, exclude any qualified handicapped recipient may invite applicants for ad- student from any course, course of mission to indicate whether and to study, or other part of its education what extent they are handicapped, pro- program or activity. vided, that: (d) A recipient to which this subpart (1) The recipient states clearly on applies shall operate its program or ac- any written questionnaire used for this tivity in the most integrated setting purpose or makes clear orally if no appropriate. written questionnaire is used that the information requested is intended for [46 FR 55897, Nov. 12, 1981, as amended at 68 use solely in connection with its reme- FR 51386, Aug. 26, 2003]

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§ 1170.44 Academic adjustments. (2) Auxiliary aids may include taped texts, interpreters or other effective (a) A recipient Academic requirements. methods of making orally delivered to which this subpart applies shall materials available to students with make such modifications to its aca- hearing impairments, readers in librar- demic requirements as are necessary to ies for students with visual impair- ensure that such requirements do not ments, classroom equipment adapted discriminate or have the effect of dis- for use by students with manual im- criminating, on the basis of handicap, pairments, and other similar services against a qualified handicapped appli- and actions. Recipients need not pro- cant or student. Academic require- vide attendants, individually pre- ments that the recipient can dem- scribed devices, readers for personal onstrate are essential to the instruc- use or study, or other devices or serv- tion being pursued by such student or ices of a personal nature. to any directly related licensing requirement will not be regarded as dis- [46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003] criminatory within the meaning of this section. Modifications may include § 1170.45 Housing. changes in the length of time per- (a) Housing provided by the recipient. A mitted for the completion of degree re- recipient that provides housing to its quirements, substitution of specific nonhandicapped students shall provide courses required for the completion of comparable, convenient, and accessible degree requirements, and adaptation of housing to handicapped students at the the manner in which specific courses same cost as to others. At the end of are conducted. the transition period provided for in (b) Other rules. A recipient to which Subpart D, such housing shall be avail- this subpart applies may not impose able in sufficient quantity and variety upon handicapped students other rules, so that the scope of handicapped stu- such as the prohibitation of tape re- dents’ choice of living accommodations corders in classrooms or of dog guides is, as a whole, comparable to that of in campus buildings, that have the ef- nonhandicapped students. fect of limiting the participation of (b) Other housing. A recipient that as- handicapped students in the recipient’s sists any agency, organization, or per- education program or activity. son in making housing available to any (c) Course examinations. In its course of its students shall take such action examinations or other procedures for as may be necessary to assure itself evaluating students’ academic achieve- that such housing is, as a whole, made ment, a recipient to which this subpart available in a manner that does not re- applies shall provide such methods for sult in discrimination on the basis of evaluating the achievement of students handicap. who have a handicap that impairs sensory, manual, or speaking skills as will § 1170.46 Financial and employment best ensure that the results of the eval- assistance to students. uation represents the student’s (a) Provision of financial assistance. (1) achievement in the course, rather than In providing financial assistance to reflecting the student’s impaired sen- qualified handicapped persons, a recipi- sory, manual, or speaking skills (ex- ent to which this subpart applies may cept where such skills are the factors not that the test purports to measure). (i) On the basis of handicap, provide (d) Auxiliary aids. (1) A recipient to less assistance than is provided to non- which this subpart applies shall take handicapped persons, limit eligibility such steps as are necessary to ensure for assistance, or otherwise discrimi- that no handicapped student is denied nate or the benefits of, excluded from partici- (ii) Assist any entity or person that pation in, or otherwise subjected to provides assistance to any of the re- discrimination because of the absence cipient’s students in a manner that dis- of educational auxiliary aids for stu- criminates against qualified handi- dents with impaired sensory, manual, capped persons on the basis of handi- or speaking skills. cap.

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(2) A recipient may administer or as- The recipient shall ensure that quali- sist in the administration of scholar- fied handicapped students are not ships, fellowships, or other forms of fi- counseled toward more restrictive ca- nancial assistance established under reer objectives than are nonhandi- wills, trusts, bequests, or similar legal capped students with similar interests instruments that require awards to be and abilities. This requirement does made on the basis of factors that dis- not preclude a recipient from providing criminate or have the effect of dis- factual information about licensing criminating on the basis of handicap and certification requirements that only if the overall effect of the award may present obstacles to handicapped of scholarships, fellowships, and other persons in their pursuit of particular forms of financial assistance is not dis- careers. criminatory on the basis of handicap. (b) Assistance in making available out- (c) Social organizations. A recipient side employment. A recipient that as- that provides significant assistance to sists any agency, organization, or per- fraternities, sororities, or similar orga- son in providing employment opportu- nizations shall assure itself that the nities to any of its students shall as- membership practices of such organiza- sure itself that such employment options do not permit discrimination oth- portunities, as a whole, are made avail- erwise prohibited by this subpart. able in a manner that would not vio- [46 FR 55897, Nov. 12, 1981, as amended at 68 late subpart C if they were provided by FR 51386, Aug. 26, 2003] the recipient. (c) Employment of students by recipi- §§ 1170.48–1170.50 [Reserved] ents. A recipient that employs any of its students may not do so in a manner that violates subpart C. Subpart F—Enforcement

§ 1170.47 Nonacademic services. § 1170.51 Assurances required. (a) Physical education and athletics. (1) (a) Assurances. An applicant for Fed- In providing physical education courses eral financial assistance to which this and athletics and similar aid, benefits, part applies shall submit an assurance, or services to any of its students, a re- on a form specified by the responsible cipient to which this subpart applies Endowment official, that the program may not discriminate on the basis of or activity will be operated in compli- handicap. A recipient that offers phys- ance with this part. An applicant may ical education courses or that operates incorporate these assurances by ref- or sponsors intercollegiate, club, or in- erence in subsequent applications to tramural athletics shall provide to the Endowment. qualified handicapped students an (b) Duration of obligation. (1) In the equal opportunity for participation in case of Federal financial assistance ex- these activities. tended in the form of real property or (2) A recipient may offer to handi- to provide real property or structures capped students physical education and on the property, the assurance will ob- athletic activities that are separate or ligate the recipient or, in the case of a different only if separation or differen- subsequent transfer, the transferee, for tiation is consistent with the requirements of § 1170.43(d) and only if no the period during which the real prop- qualified handicapped student is denied erty or structures are used for the pur- the opportunity to compete for teams pose for which Federal financial assist- or to participate in courses that are ance is extended or for another purpose not separate or different. involving the provision of similar serv- (b) Counseling and placement services. ices or benefits. A recipient to which this subpart ap- (2) In the case of Federal financial as- plies that provides personal, academic, sistance extended to provide personal or vocational counseling, guidance, or property, the assurance will obligate placement services to its students shall the recipient for the period during provide these services without dis- which it retains ownership or posses- crimination on the basis of handicap. sion of the property.

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(3) In all other cases the assurance deems necessary to overcome the ef- will obligate the recipient for the pe- fects of the discrimination. riod during which Federal financial as- (2) Where a recipient is found to have sistance is extended. discriminated against persons on the (c) Covenants. (1) Where Federal fi- basis of handicap in violation of sec- nancial assistance is provided in the tion 504 or this part and where another form of real property or interest in the recipient exercises control over the re- property from the Endowment, the in- cipient that has discriminated, the strument effecting or recording this Chairman, where appropriate, may re- transfer shall contain a covenant run- quire either or both recipients to take ning with the land to assure non- remedial action. discrimination for the period during (3) The Chairman may, where nec- which the real property is used for a essary to overcome the effects of dis- purpose for which the Federal financial crimination in violation of section 504 assistance is extended or for another or this part, require a recipient to take purpose involving the provision of remedial action: similar services or benefits. (i) With respect to handicapped per- (2) Where no transfer of property is sons who are no longer participants in involved but property is purchased or the recipient’s program or activity but improved with Federal financial assist- who were participants in the program ance, the recipient shall agree to in- or activity when such discrimination clude the covenant described in para- occurred, or graph (b)(2) of this section in the in- (ii) With respect to handicapped per- strument effecting or recording any sons who would have been participants subsequent transfer of the property. in the program or activity had the dis- (3) Where Federal financial assist- crimination not occurred. ance is provided in the form of real (b) Voluntary action. A recipient may property or interest in the property take steps, in addition to any action from the Endowment, the covenant that is required by this part, to over- shall also include a condition coupled come the effects of conditions that re- with a right to be reserved by the En- sulted in limited participation in the dowment to revert title to the property recipient’s program or activity by in the event of a breach of the cov- qualified handicapped persons. enant. If a transferee of real property (c) A recipient shall within one year proposes to mortgage or to otherwise of the effective date of this part: encumber the real property as security (1) Evaluate, with the assistance of for financing construction of new, or interested persons, including handi- improvement of existing, facilities on capped persons or organizations rep- the property for the purposes for which resenting handicapped persons, its cur- the property was transferred, the re- rent policies and practices and the ef- sponsible Endowment official may, fects thereof that do not or may not upon request of the transferee and if meet the requirements of this part; necessary to accomplish such financing (2) Modify, after consultation with and upon such conditions as he or she interested persons, including handi- deems appropriate, agree to forbear the capped persons or organizations rep- exercise of such right to revert title for resenting handicapped persons, any so long as the lien of such mortgage or policies and practices that do not meet other encumbrance remains effective. the requirements of this part; [46 FR 55897, Nov. 12, 1981, as amended at 68 (3) Take, after consultation with in- FR 51386, Aug. 26, 2003] terested persons, including handicapped persons or organizations rep- § 1170.52 Remedial action, voluntary resenting handicapped persons, appro- action, and self-evaluation. priate remedial steps to eliminate the (a) Remedial action. (1) If the Chair- effects of any discrimination that re- man finds that a recipient has dis- sulted from adherence to these policies criminated against persons on the basis and practices. of handicap in violation of section 504 (4) A recipient that employs fifteen or this part, the recipient shall take or more persons shall maintain on file, such remedial action as the Chairman make available for public inspection,

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and provide to the Endowment upon redesignated pursuant to § 1170.53(a). A quest, for at least three years following recipient shall make the initial notifi- completion of the self-evaluation: cation required by this paragraph with- (i) A list of the interested persons in 90 days of the effective date of this consulted; part. Methods of initial and continuing (ii) A description of areas examined notification may include the posting of and any problems identified; and notices, publication in newspapers and (iii) A description of any modifica- magazines, placement of notices in re- tions made and of any remedial steps cipients’ publication, and distribution taken. of memoranda or other written com- (5) The completed self-evaluation munications. should be signed by a responsible offi- (b) If a recipient publishes or uses re- cial designated to coordinate the recruitment materials or publications cipient’s efforts in connection with this containing general information that it section. makes available to participants, bene- [46 FR 55897, Nov. 12, 1981, as amended at 68 ficiaries, applicants, or employees, it FR 51386, Aug. 26, 2003] shall include in those materials or publications a statement of the policy de- § 1170.53 Designation of responsible scribed in paragraph (a) of this section. employee and adoption of grievance A recipient may meet the requirement procedures. of this paragraph either by including (a) Designation of responsible employee. appropriate inserts in existing mate- A recipient that employs fifteen or rials and publications or by revising more persons shall designate at least and reprinting the materials and publi- one person to coordinate its efforts to cations. comply with this part. [46 FR 55897, Nov. 12, 1981, as amended at 68 (b) Adoption of grievance procedures. A FR 51386, Aug. 26, 2003] recipient that employs fifteen or more persons shall adopt grievance proce- § 1170.55 Endowment enforcement and dures that incorporate appropriate due compliance procedures. process standards and that provide for The procedural provisions applicable the prompt and equitable resolution of to Title VI of the Civil Rights Act of complaints alleging any action prohib- 1964 apply to this part. These proce- ited by this part. Such procedures need dures are found in §§ 1110.6 through not be established with respect to com- 1110.11 of part 1100 of this title. plaints from applicants for employment or from applicants for admission §§ 1170.56–1170.99 [Reserved] to postsecondary educational institutions. PART 1171—PUBLIC ACCESS TO § 1170.54 Notice. NEH RECORDS UNDER THE FREE- (a) A recipient that employs fifteen DOM OF INFORMATION ACT or more persons shall take appropriate Sec. initial and continuing steps to notify 1171.1 About the National Endowment for participants, beneficiaries, applicants, the Humanities. and employees, including those with 1171.2 General provisions. impaired vision or hearing, and unions 1171.3 Information policy. or professional organizations holding 1171.4 Public availability of records. collective bargaining or professional 1171.5 Requests for records. agreements with the recipient that it 1171.6 Responsibilities for processing and re- does not discriminate on the basis of sponding to requests. 1171.7 Timing of responses to requests. handicap in violation of section 504 and 1171.8 Responses to requests. this part. The notification shall state, 1171.9 Confidential commercial information. where appropriate, that the recipient 1171.10 Administrative appeals. does not discriminate in admission or 1171.11 Fees. access to, or treatment or employment 1171.12 Preservation of records. in, its programs or activities. The noti- 1171.13 Other rights and services. fication shall also include an identi- AUTHORITY: 5 U.S.C. 552; 20 U.S.C. 959; 31 fication of the responsible employee U.S.C. 3717; E.O. 12600.

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SOURCE: 79 FR 9415, Feb. 19, 2014, unless releases, and summaries of awarded otherwise noted. grant applications) without following this part. As a matter of policy, the § 1171.1 About the National Endow- NEH makes discretionary disclosures ment for the Humanities. of records or information otherwise ex- The National Endowment for the Hu- empt under the FOIA whenever disclo- manities (NEH) was established by the sure would not foreseeably harm an in- National Foundation on the Arts and terest protected by a FOIA exemption. Humanities Act of 1965, 20 U.S.C. 951 et This policy, however, does not create seq., and is an independent grant-mak- any right enforceable in court. ing agency of the United States government dedicated to supporting re- § 1171.4 Public availability of records. search, education, preservation, and (a) In accordance with 5 U.S.C. public programs in the humanities. The 552(a)(2), the NEH will make the fol- NEH is directed by a Chairman and has lowing records available for public in- an advisory council composed of twen- spection in an electronic format (un- ty-six presidentially-appointed and less they are published and copies are Senate-confirmed members. offered for sale) without a FOIA request: § 1171.2 General provisions. (1) Final opinions, including concur- This part contains the regulations ring and dissenting opinions, as well as the NEH follows in processing requests orders made in the adjudication of for NEH records under the Freedom of cases, Information Act (FOIA), 5 U.S.C. 552, (2) Statements of policy and interpre- as amended. The NEH also follows tations which have been adopted by the these regulations to process all FOIA agency and are not published in the requests made to the Federal Council FEDERAL REGISTER, on the Arts and the Humanities (3) Administrative staff manuals and (FCAH), an organization established by instructions to staff that affect a mem- the National Foundation on the Arts ber of the public, and Humanities Act of 1965 for which (4) Copies of all records, regardless of the NEH provides legal counsel. These format, which have been released to regulations should be read together any person under 5 U.S.C. 552(a)(3) and with the FOIA and OMB’s Free Guide- which because of their subject matter, lines, which provides additional infor- the NEH determines have become or mation about access to NEH and FCAH are likely to become subject to subse- records. FOIA applies to requests for quent requests for substantially the records concerning the general activi- same records, or have been requested ties of the government and of the NEH three (3) or more times; and in particular. When individuals seek (5) A general index of the records re- records about themselves under the ferred to in paragraph (b) of this sec- Privacy Act of 1974, 5 U.S.C. 552a, NEH tion. processes those requests under both (b) The NEH will also maintain and NEH’s Privacy regulations at part 1115 make available for public inspection in of this chapter, and this part. Although an electronic format current indexes as requests are considered either FOIA re- required by 5 U.S.C. 552(a)(2) of the quests or Privacy Act requests, agen- FOIA. However, since the NEH has de- cies process requests in accordance termined that publication and distribu- with both laws, which provides the tion of these indexes is unnecessary greatest degree of lawful access while and impracticable, the NEH will pro- safeguarding an individual’s personal vide these indexes upon request at a privacy. cost not to exceed the direct cost of the duplication. § 1171.3 Information policy. (c) NEH proactively identifies The NEH may provide information records of interest to the public, such the agency routinely makes available as past awards, press releases, grant to the public through its regular ac- guidelines, and grant terms and condi- tivities (for example, program an- tions, and makes these records avail- nouncements and solicitations, press able on the NEH’s Web site at

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www.neh.gov. In addition, copies of the General, National Endowment for the NEH’s policy statements, information Humanities, 400 7th Street SW., Room about the NEH’s FOIA program, sam- 2200, Washington, DC 20506. You may ple grant narratives, and other fre- also send your request to the Inspector quently requested records are available General by facsimile at 202–606–8329 or in the NEH’s Electronic Library. by email at [email protected]. [79 FR 9415, Feb. 19, 2014, as amended at 82 [79 FR 9415, Feb. 19, 2014, as amended at 80 FR 45, Jan. 3, 2017] FR 42066, July 16, 2015]

§ 1171.5 Requests for records. § 1171.6 Responsibilities for processing (a) How to make a request. Your FOIA and responding to requests. request need not be in any particular (a) Processing requests. The NEH Of- format, but it must be in writing, in- fice of the General Counsel (OGC) is the clude your full name, mailing address, central office for processing requests daytime telephone number. If you for records, except when it’s necessary choose to submit your request on the for the NEH Office of Inspector General NEH Web site, the request must also (OIG) to process a request to maintain include your email address. Your re- the OIG’s independence or ability to quest should be clearly identified as a carry out its statutorily mandated du- FOIA request in both the text of the re- ties. If the request is for OIG records, quest and on the envelope (or on the the NEH will inform the requester facsimile or in the subject heading of which office will be processing the re- an email message) and must describe quest. the requested records in enough detail to enable NEH staff to locate them (b) Authority to grant or deny requests. with a reasonable amount of effort. The NEH General Counsel (or designee) Whenever possible, your request should is authorized to grant or deny requests include specific information about each for NEH records (excluding requests for record sought, such as the date, title or OIG records), and/or FCAH records. The name, author, recipient, and subject NEH Deputy Inspector General (or des- matter of the record. The NEH has no ignee) is authorized to grant or deny obligation to answer questions posed as requests for OIG records. The NEH FOIA requests or to create records to General Counsel (or designee) is au- satisfy a FOIA request. thorized to grant or deny requests on (b) Agreement to pay fees. If you make any fee matters and requests for expe- a FOIA request, the NEH will consider dited treatment, including OIG-related it an agreement by you to pay all ap- requests. plicable fees charged under this part, (c) Consultations and referrals. When subject to the fee limitations of the NEH receives a request for a record § 1171.11(d). When making a request, in its possession, the agency will deter- you may specify a willingness to pay a mine whether another Federal govern- greater or lesser amount. ment agency is better able to decide (c) Where to send a request. (1) For whether the record should or should NEH records (except NEH Office of the not be disclosed under the FOIA. Ordi- Inspector General records) and/or narily, the agency that originated a FCAH records, write to: The General record will be presumed to be best able Counsel, Office of the General Counsel, to determine whether to disclose it. National Endowment for the Human- (1) If the NEH determines that it is ities, 400 7th Street SW., Room 4060, the agency best able to process the Washington, DC, 20506. You may also record in response to the request, then send your request to the NEH General it will do so, after consultation with Counsel by facsimile at 202–606–8600, by the other agency that has a substantial email at [email protected], or interest in the requested records. through the NEH’s electronic FOIA re- (2) If the NEH determines that it is quest system, which is available on the not the agency best able to process the NEH Web site at www.neh.gov. record, then it will refer the record (or (2) For NEH Office of the Inspector portion thereof) to the other Federal General records, write to: The Inspec- agency, but only if that agency is sub- tor General, Office of the Inspector ject to the FOIA.

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(d) Notice of referral. Whenever the circumstances and the expected re- NEH refers all or any part of the response date; and sponsibility for responding to a request (ii) If the extension will be for more to another agency, the NEH will notify than ten (10) working days, the NEH the requester of the referral, provide will provide the requester with an op- the name of the agency to which the portunity either to modify the request referral was directed, and include that so that it may be processed within the agency’s FOIA contact information. time limit or to arrange an alternative NEH will notify the requester of the time period to process the request or a part of the request that has been re- modified request. To aid the requester, ferred, unless such notification would NEH shall make available its FOIA disclose information otherwise exempt. Public Liaison, who shall assist in the If notification to the requester about resolution of any disputes between the the referral would cause a harm meant requester and the agency, and shall no- to be protected against by the FOIA, tify the requester of his or her right to NEH will coordinate with the agency seek dispute resolution services from rather than referring the records to it. the Office of Government Information Services. § 1171.7 Timing of responses to re- (2) If the NEH reasonably believes quests. that multiple requests submitted by a (a) In general. The NEH customarily requester, or a group of requesters act- will respond to requests according to ing in concert, constitute a single re- their order of receipt. In determining quest that would otherwise involve un- which records are responsive to a re- usual circumstances, and the requests quest, the NEH will include only those involve clearly related matters, the records in its possession as of the date NEH may aggregate the requests. The it begins its search for records. If any NEH will not aggregate multiple re- other date is used, the NEH will inform quests involving unrelated matters. the requester of that date. (e) Expedited processing. (1) The NEH (b) Timing for initial response. Ordi- will process requests and appeals on an narily, the NEH will determine wheth- expedited basis whenever it determines er to grant or deny a request for that they involve: records within twenty (20) days (week- (i) Circumstances in which the lack ends and Federal holidays excluded) of of expedited treatment could reason- when the NEH receives a request. ably be expected to pose an imminent (c) Tolling of time limits. The NEH may threat to the life or physical safety of toll the 20-day time period to: an individual; or (1) Make one request for information (ii) An urgency to inform the public it reasonably requests from the re- about actual or alleged Federal govern- quester; or ment activity if the expedited proc- (2) Clarify the applicability or essing request is made by a person pri- amount of any fees, if necessary, with marily engaged in disseminating infor- the requester. mation. (3) Under paragraphs (c)(1) or (2) of (2) A requester may seek expedited this section, the tolling period ends processing at the time of the request- upon the NEH’s receipt of the informa- er’s initial request for records or at tion or clarification from the re- any later time. quester. (3) To request expedited processing, a (d) Unusual circumstances. (1) When requester must submit a statement, the NEH cannot meet the statutory certified to be true and correct to the time limits for processing a request be- requester’s best knowledge and belief, cause of unusual circumstances as de- explaining in detail the basis for re- fined in the FOIA, the NEH may extend questing expedited processing. the response time as follows: (4) Within ten (10) calendar days of (i) If the extension will be for ten (10) receipt of a request for expedited proc- or fewer working days (i.e., weekends essing, the NEH will decide whether to and Federal holidays excluded), the grant it and will notify the requester of NEH will notify the requester as soon the decision. If the NEH grants a reas practicable in writing of the unusual quest for expedited processing, the

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NEH will place the request in the expe- FOIA Public Liaison or the Office of dited processing track and then process Government Information Services; and the request as soon as practicable. If (5) A statement that the requester the NEH denies a request for expedited may appeal the denial under § 1171.10 processing, the NEH will act upon any and a description of the requirements appeal of that decision expeditiously. to appeal. [79 FR 9415, Feb. 19, 2014, as amended at 82 [79 FR 9415, Feb. 19, 2014, as amended at 82 FR 45, Jan. 3, 2017] FR 45, Jan. 3, 2017]

§ 1171.8 Responses to requests. § 1171.9 Confidential commercial infor- (a) Acknowledgment of requests. Upon mation. receipt of a request that will take (a) In general. The NEH will not dis- longer than ten (10) days to process, close confidential commercial informa- the NEH will send the requester an action in response to a FOIA request, ex- knowledgment letter that assigns the cept as described in this section. request an individualized tracking (b) Definitions. For purposes of this number. section: (b) Grants of requests. If the NEH makes a determination to grant a re- (1) Confidential commercial information quest in whole or in part, it will notify means commercial or financial infor- the requester in writing of such deter- mation obtained by the NEH from a mination and the reasons therefore, submitter that may be protected from and the requester’s right to seek assist- disclosure under Exemption 4 of the ance from NEH’s FOIA Public Liaison. FOIA. The NEH will inform the requester of (2) Submitter means any person or en- any applicable fees and will disclose tity from whom the NEH obtains con- records to the requester promptly on fidential commercial information, di- payment of any applicable fees. The rectly or indirectly. The term includes NEH will mark or annotate records dis- corporations; state, local, and tribal closed in part to show the amount of governments; and foreign governments. information deleted pursuant to a (c) Designation of confidential commer- FOIA exemption, unless doing so would cial information. A submitter of con- harm an interest protected by an appli- fidential commercial information will cable FOIA exemption. If technically use good-faith efforts to designate by feasible, the NEH will also indicate, on appropriate markings, either at the the agency record(s) it provides, the lo- time of submission or at a reasonable cation of the information deleted. time thereafter, any portions of its (c) Denials of requests. If the NEH submission that it considers to be pro- makes a determination to deny a re- tected from disclosure under Exemp- quest in any respect, the NEH will also tion 4. These designations will expire notify the requester in writing of: ten years after the date of the submis- (1) The name and title or position of the person responsible for the denial; sion unless the submitter requests, and (2) A brief statement of the reason(s) provides justification for, a longer des- for the denial, including any FOIA ex- ignation period. emption applied by the NEH in denying (d) When notice to submitters is re- the request; quired. (1) The NEH will give notice to (3) An estimate of the volume of a submitter whenever: records or information withheld, if ap- (i) The submitter, in good faith, has plicable, although such an estimate is designated the requested information not required if the volume is otherwise as information considered protected indicated through deletion on the from disclosure under Exemption 4; or records disclosed in part, or if pro- (ii) The NEH has reason to believe viding such an estimate would harm an that the information may be protected interest protected by an applicable ex- from disclosure under Exemption 4. emption; (2) The notice will either describe the (4) The requester’s right to seek dis- confidential commercial information pute resolution services from NEH’s

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requested or include copies of the re- (g) Notice of intent to disclose. The quested records or record portions con- NEH will consider a submitter’s objec- taining the information. In cases in- tions and specific grounds for non- volving a voluminous number of sub- disclosure in deciding whether to dis- mitters, the NEH may make notice by close confidential commercial informa- posting or publishing the notice in a tion. Whenever the NEH decides to displace reasonably likely to accomplish close confidential commercial informa- it. tion over the objection of a submitter, (e) Exceptions to submitter notice re- the NEH will provide the submitter quirements. The notice requirements of written notice, which will include: this section will not apply if: (1) A statement of the reason(s) why (1) The NEH determines that the re- each of the submitter’s disclosure ob- quested information is exempt under jections was not sustained; the FOIA; (2) A description of the business in- (2) The information lawfully has been formation to be disclosed; and published or has been officially made (3) A specified disclosure date, which available to the public; will be a reasonable time after the no- (3) Disclosure of the information is tice. required by statute (other than the (h) Notice of FOIA lawsuit. Whenever a FOIA) or by a regulation issued in ac- requester files a lawsuit seeking to cordance with the requirements of Ex- compel the disclosure of confidential ecutive Order 12600 of June 23, 1987; or commercial information, the NEH will (4) The designation made by the sub- promptly notify the submitter. mitter under paragraph (c) of this sec- (i) Requester notification. The NEH tion appears obviously frivolous, ex- will notify the requester whenever the cept that, in such a case, the NEH will NEH provides the submitter with no- give the submitter written notice of tice and an opportunity to object to any final decision to disclose the infor- disclosure; whenever the NEH notifies mation within a reasonable number of the submitter of its intent to disclose days prior to a specified disclosure the requested information; and when- date. ever a submitter files a lawsuit to pre- (f) Opportunity to object to disclosure. vent the disclosure of the information. (1) The NEH will specify a reasonable time period within which the submitter § 1171.10 Administrative appeals. must respond to the notice described in (a) You may appeal a denial of your paragraph (d)(2) of this section. If a request for NEH records (except NEH submitter has any objection to disclo- OIG records) and/or FCAH records to sure, it must submit a detailed written The Deputy Chairman, National En- statement to the NEH specifying all dowment for the Humanities, 400 7th grounds for withholding any portion of Street SW., Room 4053, Washington, DC the information under any exemption 20506. You may also send your appeal to of the FOIA. If the submitter relies on the NEH General Counsel by facsimile Exemption 4 as a basis of nondisclo- at 202–606–8600, by email at sure, the submitter must explain why [email protected], or through the the information constitutes a trade se- NEH’s electronic FOIA request system, cret, or commercial or financial infor- which is available on the NEH Web site mation that is privileged or confiden- at www.neh.gov. For a denial of your tial. request for OIG records, you may ap- (2) The NEH will consider a sub- peal by facsimile at 202–606–8329, by mitter who fails to respond with the email at [email protected] or by mail to The time period specified on the notice to Inspector General, National Endow- have no objection to disclosure of the ment for the Humanities, 400 7th Street information. The NEH will not con- SW., Room 2200, Washington, DC 20506. sider information it receives from a Your appeal must be in writing and re- submitter after the date of any disclo- ceived by NEH within ninety (90) days sure decision. Any information proof the date of the letter denying your vided by a submitter under this section request in whole or in part. Your ap- may itself be subject to disclosure peal letter must clearly identify the under the FOIA. NEH decision that you are appealing

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and contain the tracking number, if as- all applicable fees before sending copies signed. You should clearly mark your of records to a requester. Requesters appeal letter and envelope ‘‘Freedom of must pay fees by check or money order Information Act Appeal.’’ made payable to the Treasury of the (b) Responses to appeals. The Deputy United States. Chairman (or designee) or the Inspec- (b) Definitions. For purposes of this tor General (or designee) will make a section: written determination on your appeal (1) Commercial use request means a re- within twenty (20) days (weekends and quest from or on behalf of a person who Federal holidays excluded) after the seeks information for a use or purpose agency receives your appeal, except as that furthers his or her commercial, provided by 1171.7(d). If the appeal deci- trade, or profit interest, which can in- sion affirms the denial of your request, clude furthering those interests the NEH will notify you in writing of through litigation. When it appears the reason(s) for the decision, including that the requester will put the records the applicable FOIA exemption(s), and to a commercial use, either because of inform you of the FOIA provisions for the nature of the request itself or be- court review of the decision. If the de- cause the NEH has reasonable cause to nial of your request is reversed or doubt a requester’s stated use, the NEH modified, in whole or in part, the NEH will provide the requester a reasonable will reprocess your request in accord- opportunity to submit further clari- ance with that appeal decision and no- fication. tify you of that decision in writing. A (2) Direct costs means those expenses response to an appeal will advise the that an agency actually incurs in requester that the 2007 amendments to searching for and duplicating (and, in FOIA created the Office of Government the case of commercial use requests, Information Services (OGIS) to offer reviewing) records to respond to a mediation services to resolve disputes FOIA request. Direct costs include, for between FOIA requesters and Federal example, the salary of the employee agencies as a non-exclusive alternative performing the work (the basic rate of to litigation. A requester may contact pay for the employee, plus 16 percent of OGIS in any of the following ways: Of- that rate to cover benefits) and the fice of Government Information Serv- cost of operating duplication machin- ices, National Archives and Records ery. Not included in direct costs are Administration, 8601 Adelphi Road— overhead expenses such as the costs of OGIS, College Park, MD 20740; https:// space and heating or lighting of the fa- ogis.archives.gov; email: [email protected]; cility in which the records are kept. telephone: 202–741–5770; facsimile: 202– (3) Duplication means the making of a 741–5769; toll-free: 1–877–684–6448. copy of a record, or of the information (c) When appeal is required. If you contained in it, necessary to respond to wish to seek review by a court of any a FOIA request. Copies can take the denial by the NEH, you must first sub- form of paper, microform, audiovisual mit a timely administrative appeal to materials, or electronic records among the NEH. others. [79 FR 9415, Feb. 19, 2014, as amended at 80 (4) Educational institution means any FR 42066, July 16, 2015; 82 FR 46, Jan. 3, 2017] school that operates a program of scholarly research. A requester in this § 1171.11 Fees. category must show that the request is (a) In general. The NEH will assess authorized by and made under the aus- fees for processing FOIA requests in ac- pices of a qualifying institution and cordance with this section and with the that the records are not sought for a Uniform Freedom of Information Fee commercial use, but are sought to fur- Schedule and Guidelines published by ther scholarly research. the Office of Management and Budget (5) Noncommercial scientific institution at 52 FR 10012 (Mar. 27, 1987). In order means an institution that is not oper- to resolve any fee issues that arise ated on a ‘‘commercial’’ basis, as de- under this section, the NEH may confined in paragraph (b)(1) above, and tact a requester for additional informa- that is operated solely for the purpose tion. The NEH ordinarily will collect of conducting scientific research, the

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results of which are not intended to identification of information within promote any particular product or in- records and the reasonable efforts ex- dustry. A requester in this category pended to locate and retrieve informa- must show that the request is author- tion from electronic records. The NEH ized by and made under the auspices of will ensure that searches are done in a qualifying institution and that the the most efficient and least expensive records are not sought for a commer- manner reasonably possible. cial use or to promote any particular (c) Fee schedule. In responding to product or industry, but are sought to FOIA requests, the NEH will charge further scientific research. the following fees for requests, subject (6) Representative of the news media to paragraphs (d), (e), and (f) of this means any person or entity that gath- section: ers information of potential interest to (1) Search. (i) The NEH will charge a segment of the public, uses its edi- $4.00 for each quarter hour spent by torial skills to turn the raw materials clerical personnel in searching for and into a distinct work, and distributes retrieving a requested record. When that work to an audience. The term clerical personnel cannot perform the ‘‘news’’ means information that is search and retrieval (e.g. identification about current events or that would be of records within scope of request re- of current interest to the public. Exam- quires professional personnel), the NEH ples of news-media entities include tel- will charge $7.00 for each quarter hour evision or radio stations broadcasting of search time spent by professional to the public at large, and publishers of personnel. Where the time of manage- periodicals (but only if such entities rial personnel is required, the fee will qualify as disseminators of ‘‘news’’) be $10.00 for each quarter hour of time who make their products available for spent by those personnel. The NEH purchase or by subscription or by free may charge for time spent searching distribution to the general public. The even if it does not locate any respon- NEH will regard ‘‘freelance’’ journal- sive records or if it determines that the ists as working for a news-media orga- records are entirely exempt from dis- nization if they demonstrate a solid closure. basis for expecting publication though (ii) For computer searches of records, that organization. A publication con- the NEH will charge the actual direct tract would provide the clearest evi- cost of conducting the search. dence, but the NEH will also consider a (2) Duplication. The fee for a photo- requester’s past publication record in copy of a record on one-side of an 81⁄2 × making this determination. 11 inch sheet of paper is ten cents per (7) Review means the process of exam- page. For copies of records produced on ining a record located in response to a tapes, disks, or other electronic media, request in order to determine whether the NEH will charge the direct costs of any portion of it is exempt from disclo- producing the copy, including operator sure. Review includes processing any time. For other forms of duplication, record for disclosure, such as doing all the NEH will charge the direct costs of that is necessary to redact it and pre- that duplication. The NEH will honor a pare it for disclosure. It also includes requester’s preference for receiving a time spent both obtaining and consid- record in a particular form or format ering any formal objection to disclo- where it is readily reproducible by the sure made by a confidential commer- NEH in the form or format requested. cial information submitter under (3) Review. The NEH will charge re- § 1171.9, but it does not include time view fees to requesters who make a spent resolving general legal or policy commercial use request. Review fees issues regarding the application of ex- will be charged only for the initial emptions. Review costs are recoverable record review (i.e., the review the NEH even if the NEH ultimately does not conducted to determine whether an ex- disclose a record. emption applies to a particular record (8) Search means the process of look- or record portion at the initial request ing for and retrieving records or infor- stage). No charge will be made for re- mation responsive to a request. It in- view at the administrative appeal stage cludes page-by-page or line-by-line for exemptions applied at the initial

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review stage. However, if the NEH re- (iii) If a court has determined that reviews the records for the applica- exceptional circumstances exist, as de- bility of other exemptions that it did fined by the FOIA, a failure to comply not previously consider, then the costs with the time limits shall be excused for the subsequent review are assess- for the length of time provided by the able. Review fees will be charged at the court order. same rates as those charged for a (e) Categories of requesters. There are search under paragraph (c)(1)(i). The four categories of FOIA requesters: NEH may charge for review even if it commercial use requesters; educational ultimately decides not to disclose a and non-commercial scientific institu- record. tions; representatives of the news (d) Limitations on charging requesters. media; and all other requesters. The (1) Except for requesters seeking NEH will assess fees for these cat- records for commercial use, the NEH egories of requesters as follows: will provide without charge: (1) Commercial use requesters. The NEH (i) The first 100 pages of duplication will charge the full direct costs for (or the cost equivalent); and searching for, reviewing, and dupli- (ii) The first two hours of search (or cating requested records. the cost equivalent). (2) Educational and non-commercial sci- (2) When, after first deducting the 100 entific institution requesters. The NEH pages (or its cost equivalent) and the will charge for duplication only, ex- first two hours of search, the total fee cluding costs for the first 100 pages. is $25.00 or less for any request, the (3) News media requesters. The NEH NEH will not charge a fee. will charge for duplication only, ex- (3) If NEH fails to comply with the cluding costs for the first 100 pages. FOIA’s time limits in which to respond (4) All other requesters. The NEH will to a request, it may not charge search charge requesters who do not fit into fees, or, in the instances of requests any of the categories above the full from requesters described in para- reasonable direct cost of searching for graphs (b)(4) through (6) of this section, and reproducing records, excluding may not charge duplication fees, ex- costs for the first 100 pages and the cept as described in paragraphs (d)(3)(i) first two hours of search time. through (iii) of this section. (f) Requirements for fee waivers or re- (i) If NEH has determined that un- duction of fees. (1) The NEH will furnish usual circumstances, as defined by the responsive records without charge or at FOIA, apply and NEH has provided a reduced charge if it determines, timely written notice to the requester based on all available information, in accordance with the FOIA, a failure that the requester has demonstrated to comply with the time limit shall be that: excused for an additional ten (10) work- (i) Disclosure of the requested infor- ing days. mation is in the public interest because (ii) If NEH has determined that unit is likely to contribute significantly usual circumstances, as defined by the to public understanding of the oper- FOIA, apply and more than 5,000 pages ations or activities of the government, are necessary to respond to the re- and quest, NEH may charge search fees, or, (ii) Disclosure of the information is in the case of requesters described in not primarily in the commercial inter- paragraphs (b)(4) through (6) of this est of the requester. section, may charge duplication fees, (2) To determine whether the first fee provided NEH provided timely written requirement is met, the NEH will con- notice of unusual circumstances to the sider the following factors: requester in accordance with the FOIA (i) The subject of the requested and NEH discussed with the requester records must concern identifiable oper- via written mail, email, or telephone ations or activities of the Federal gov- (or made not less than three good-faith ernment, with a connection that is di- attempts to do so) how the requester rect and clear, not remote or attenu- could effectively limit the scope of the ated. request in accordance with 5 U.S.C. (ii) The disclosable portions of the re- 552(a)(6)(B)(ii). quested records must be meaningfully

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informative about government oper- the underlying record request is pend- ations or activities in order to be ing or on administrative appeal. ‘‘likely to contribute’’ to an increased (g) Notice of anticipated fees in excess public understanding of those oper- of $25.00. (1) When the NEH determines ations or activities. Disclosure of infor- or estimates that the fees to be mation already in the public domain, charged under this section will exceed in either duplicative or substantially $25.00, it will notify the requester of identical form, is unlikely to con- the actual or estimated fees, unless the tribute to such understanding where requester has indicated a willingness to nothing new would be added to the pay fees as high as those anticipated. If public’s understanding. the NEH can only readily estimate a (iii) The disclosure must contribute portion of the fees, it will advise the to the understanding of a reasonably requester that the estimated fee may broad audience of persons interested in be only a portion of the total fee. the subject, as opposed to the indi- (2) The notice will offer the requester vidual understanding of the requester. an opportunity to confer with NEH per- A requester’s expertise in the subject sonnel in order to reformulate the re- area as well as his or her ability and quest to meet the requester’s needs at intention to effectively convey infor- a lower cost and inform the requester mation to the public will be consid- of paragraph (d)(1) of this section, if ap- ered. It will ordinarily be presumed plicable. A commitment by the re- that a representative of the news quester to pay the anticipated fee must media satisfies this consideration. be in writing and must be received by (iv) The public’s understanding of the the NEH within thirty (30) calendar subject in question must be enhanced days from the date of notification of by the disclosure to a significant ex- the fee estimate. Until the requester tent. The NEH will make no value agrees to pay the anticipated fee, the NEH will not consider the request as judgments about whether the informa- received by the agency and no further tion at issue is ‘‘important’’ enough to work will be done on the request. If a be made public. requester fails to respond within this (3) To determine whether the second timeframe, the NEH will administra- fee waiver requirement is met, the tively close the request. NEH will consider the following fac- (h) Charges for other services. When tors: the NEH chooses, in its sole discretion, (i) The NEH will identify any com- to provide a requested special service mercial interest of the requester, as de- (e.g. certifying that records are true fined in paragraph (b)(1) of this section, copies or sending them by other than that would be furthered by the re- ordinary mail), it will charge the di- quested disclosure. Requesters will be rect costs of providing the service to given an opportunity to provide ex- the requester. planatory information regarding this (i) Charging interest. The NEH may consideration. charge interest on any unpaid bill (ii) A fee waiver or reduction is justi- starting on the 31st day following the fied where the public interest is greater date of billing the requester. The NEH than any identified commercial inter- will assess interest charges at the rate est in disclosure. provided in 31 U.S.C. 3717 and such (4) Where only some of the requested charges will accrue from the billing records satisfy the requirements for a date until the NEH receives payment fee waiver, a waiver will be granted for from the requester. The NEH will fol- those records. low the provisions of the Debt Collec- (5) Requesters should make fee waiv- tion Act of 1982 (Pub. L. 97–365, 96 Stat. er or reduction requests when they 1749), as amended, and its administra- first submit a FOIA request to the tive procedures, including the use of NEH. Fee waiver or reduction requests consumer reporting agencies, collec- should address the factors listed in tion agencies, and offset. paragraphs (f)(2) and (3) of this section. (j) Advance payment. (1) For requests Fee waiver or reduction requests may other than those described in para- be submitted at a later time so long as graphs (j)(2) and (3) of this section, the

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NEH will not require the requester to multiple requests involving unrelated make an advance payment before it matters. commences or continues work on a re- [79 FR 9415, Feb. 19, 2014, as amended at 82 quest. Payment owed for work already FR 46, Jan. 3, 2017] completed (i.e., payment before copies are sent to a requester) is not an ad- § 1171.12 Preservation of records. vance payment. NEH will preserve all correspondence (2) When the NEH determines or esti- pertaining to the requests that it re- mates that a total fee to be charged ceives as well as copies of all requested under this section will be more than records, until disposition or destruc- $250.00, it may require the requester to tion is authorized by the agency’s Gen- make an advance payment of an eral Records Schedule of the National amount up to the amount of the entire Archives and Records Administration anticipated fee before beginning to (NARA) or other NARA-approved process the request, except where it re- records schedule. Records will not be ceives a satisfactory assurance of full disposed of while they are the subject payment from a requester that has a of a pending request, appeal, or lawsuit history of prompt payment. under the Act. (3) When a requester has previously § 1171.13 Other rights and services. failed to pay a properly charged fee to the NEH within thirty (30) days of the Nothing in this part will be con- billing date, the NEH may require the strued to entitle any person, as of requester to pay the full amount due, right, to any service or to the disclo- plus any applicable interest, and to sure of any record to which such person make an advance payment of the full is not entitled under the FOIA. amount of any anticipated fee, before the NEH begins to process a new re- PART 1172—NONDISCRIMINATION quest or continues to process a pending ON THE BASIS OF AGE IN FEDER- request from that requester. ALLY ASSISTED PROGRAMS OR (4) When there is an advance pay- ACTIVITIES ment request, the NEH will not consider the request as received by the Subpart A—General agency and no further work will be Sec. done on the request until the required 1172.1 Purpose. payment is received. If the requester 1172.2 Application. fails to respond within thirty (30) cal- 1172.3 Definitions. endar days after the date of the advance payment request, the NEH will Subpart B—Standards for Determining Age administratively close the request. Discrimination (k) Aggregating requests. When the 1172.11 Rules against age discrimination. NEH reasonably believes that a re- 1172.12 Exceptions to the rules against age quester or a group of requesters acting discrimination. together is attempting to divide a re- 1172.13 Burden of proof. quest into a series of requests for the Subpart C—Responsibilities of NEH purpose of avoiding fees, the NEH may Recipients aggregate those requests and charge accordingly. The NEH may presume 1172.21 General responsibilities. that multiple requests of this type 1172.22 Notice to subrecipients. made within a 30-day period have been 1172.23 Self-evaluation. made in order to avoid fees. For re- 1172.24 Information requirements. quests separated by a longer period, Subpart D—Investigation, Conciliation, and the NEH will aggregate them only Enforcement Procedures when there is a reasonable basis for determining that aggregation is war- 1172.31 Compliance reviews. ranted in view of all the circumstances 1172.32 Complaints. 1172.33 Mediation. involved. The NEH will not aggregate 1172.34 Investigation.

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1172.35 Prohibition against intimidation or (ii) Establishes criteria for participa- retaliation. tion in age-related terms; or 1172.36 Enforcement procedure. (iii) Describes intended beneficiaries 1172.37 Hearings, decisions, post-termination proceedings. or target groups in age-related terms. 1172.38 Remedial action by recipients. (2) Any employment practice of any 1172.39 Alternate funds disbursal procedure. employer, employment agency, labor 1172.40 Exhaustion of administrative rem- organization, or with respect to any edies. labor-management joint apprenticeship AUTHORITY: 42 U.S.C. 6101–6107; 45 CFR 90. training program. (3) The rights or responsibilities of SOURCE: 79 FR 26633, May 9, 2014, unless otherwise noted. any person or party pursuant to the ADEA, the EEOC regulations under the ADEA, or any statements of policy pro- Subpart A—General mulgated by the EEOC under the § 1172.1 Purpose. ADEA. The purpose of this part is to set out § 1172.3 Definitions. the National Endowment for the Hu- As used in this part, the term: manities’ (NEH) policies and procedures for implementing the Age Dis- Act means the Age Discrimination crimination Act of 1975, as amended, 42 Act of 1975, as amended, 42 U.S.C. 6101 (Pub. L. 94–135). U.S.C. 6101 et seq., (the Act or the Age et seq. Act). The Act is designed to prohibit Action means any act, activity, pol- discrimination on the basis of age in icy, rule, standard, or method of ad- programs or activities receiving Fed- ministration; or the use of any policy, eral financial assistance. The Act also rule, standard, or method of adminis- permits federally assisted programs or tration. activities, and recipients of Federal ADEA means the Age Discrimination funds, to continue to use certain age in Employment Act of 1967, as amend- distinctions and factors other than age ed, 29 U.S.C. 621 et seq. (Pub. L. 90–202). which meet the requirements of the Age means how old a person is, or the Act and the regulations in this part. number of elapsed years from the date The regulations in this part are based of a person’s birth. upon the general, government-wide age Age distinction means any action discrimination regulations issued by using age or an age-related term. the United States Department of Age-related term means a word or Health and Human Services (HHS) at 45 words which necessarily imply a par- CFR part 90. Complaints of employ- ticular age or range of ages (for exam- ment discrimination based on age may ple, children, adult, older persons, but be subject to the Age Discrimination in not student). Employment Act of 1967, as amended, Agency means a Federal department 29 U.S.C. 621 et seq., (ADEA) and should or agency that is empowered to extend be filed administratively with the financial assistance. Equal Employment Opportunity Com- Chairman means the Chairman of the mission (EEOC) (29 CFR part 1626). National Endowment for the Human- ities. § 1172.2 Application. Federal financial assistance means any (a) The Act and the regulations in grant, entitlement, loan, cooperative this part apply to each recipient and to agreement, contract (other than a pro- any program or activity receiving fi- curement contract or a contract of in- nancial assistance from the NEH. surance or guaranty), or any other ar- (b) The Act does not apply to: rangement by which NEH provides or (1) Any age distinction contained in otherwise makes available assistance that part of a Federal, State or local in the form of: statute or ordinance adopted by an (1) Funds; elected, general purpose legislative (2) Services of Federal personnel; or body which: (3) Real and personal property or any (i) Provides any benefits or assist- interest in or use of property, includ- ance to persons based on age; ing:

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(i) Transfers or leases of property for institution, organization, or other enti- less than fair market value or for re- ty, or any person to which Federal fi- duced consideration; and nancial assistance is extended, directly (ii) Proceeds from a subsequent or through another recipient. Recipient transfer or lease of property if the Fed- includes any successor, assignee, or eral share of its fair market value is transferee, but excludes the ultimate not returned to the Federal Govern- beneficiary of the assistance. ment. Secretary means the Secretary of the Normal operation means the operation Department of Health and Human of a program or activity without sig- Services. nificant changes that would impair its Statutory objective means any purpose ability to meet its objectives. of a program or activity expressly stat- Program or activity means all of the ed in any Federal statute, State stat- operations of: ute, or local statute or ordinance (1)(i) A department, agency, special adopted by an elected, general purpose purpose district, or other instrumen- legislative body. tality of a State or local government, Subrecipient means any of the entities or in the definition of recipient to which a (ii) The entity of such State or local recipient extends or passes on Federal government that distributes Federal fi- financial assistance. A subrecipient is nancial assistance and each such de- generally regarded as a recipient of partment or agency (and each other Federal financial assistance and has all State or local government entity) to the duties of a recipient in the regula- which the assistance is extended, in the tions in this part. case of assistance to a State or local United States means the fifty states, government; the District of Columbia, Puerto Rico, (2)(i) A college, university, or other the Virgin Islands, American Samoa, postsecondary institution, or a public Guam, Wake Island, the Trust Terri- system of higher education, or tory of the Pacific Islands, the North- (ii) A local educational agency (as de- ern Marianas, and the territories and fined in 20 U.S.C. 7801), system of voca- possessions of the United States. tional education, or other school system; Subpart B—Standards for (3)(i) An entire corporation, partner- Determining Age Discrimination ship, or other private organization, or an entire sole proprietorship— § 1172.11 Rules against age discrimina- (A) If assistance is extended to such tion. corporation, partnership, private orga- The rules stated in this section are nization, or sole proprietorship as a limited by the exceptions contained in whole, or § 1172.12. (B) Which is principally engaged in (a) General rule. No person in the the business of providing education, United States shall, on the basis of age, health care, housing, social services, or be excluded from participation in, be parks and recreation; or denied the benefits of, or be subjected (ii) The entire plant or other com- to discrimination under, any program parable, geographically separate facil- or activity receiving Federal financial ity to which Federal financial assist- assistance. ance is extended, in the case of any (b) Specific rules. A recipient may not, other corporation, partnership, private in any program or activity receiving organization, or sole proprietorship; or Federal financial assistance, directly (4) Any other entity which is estab- or through contractual, licensing, or lished by two or more of the entities other arrangements use age distinc- described in paragraph (1), (2), or (3) of tions or take any other actions which this definition, any part of which is ex- have the effect, on the basis of age, of: tended Federal financial assistance. (1) Excluding individuals from, deny- Recipient means any State or its po- ing them the benefits of, or subjecting litical subdivision, any instrumen- them to discrimination under, a pro- tality of a State or its political sub-di- gram or activity receiving Federal fi- vision, any public or private agency, nancial assistance, or

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(2) Denying or limiting individuals in use of age distinctions shall be pre- their opportunity to participate in any sumed to be necessary to the normal program or activity receiving Federal operation of the program or activity, financial assistance. notwithstanding the provisions of (c) The specific forms of age discrimi- § 1172.12(a). nation listed in paragraph (b) of this (e) Age distinctions in NEH regulations. section do not necessarily constitute a Any age distinction in a regulation complete list of discriminatory ac- issued by NEH is presumed to be nec- tions. essary to the achievement of a statutory objective of the program or activ- § 1172.12 Exceptions to the rules against age discrimination. ity to which the regulation applies, notwithstanding the provisions of (a) Normal operation or statutory objec- § 1172.12(a). tive of any program or activity. A recipient may take an action otherwise pro- § 1172.13 Burden of proof. hibited by § 1172.11 if the action reasonably takes into account age as a factor The recipient of Federal financial as- necessary to the normal operation or sistance bears the burden of proving the achievement of any statutory ob- that an age distinction or other action jective of a program or activity, if: falls within the exceptions outlined in (1) Age is used as a measure or ap- § 1172.12. proximation of one or more other characteristics; Subpart C—Responsibilities of NEH (2) The other characteristic(s) must Recipients be measured or approximated in order for the normal operation of the pro- § 1172.21 General responsibilities. gram or activity to continue, or to achieve any statutory objective of the A recipient has responsibility to en- program or activity; sure that its programs or activities are (3) The other characteristic(s) can be in compliance with the Act and the reasonably measured or approximated regulations in this part and to take by the use of age; and steps to eliminate violations of the Act (4) The other characteristic(s) are and the regulations in this part. A re- impractical to measure directly on an cipient also has responsibility to main- individual basis. tain records, provide information, and (b) Reasonable factors other than age. afford NEH access to its records to the A recipient may take an action other- extent NEH finds necessary to deter- wise prohibited by § 1172.11 which is mine whether the recipient is in com- based on a reasonable factor other than pliance with the Act and the regula- age, even though that action may have tions in this part. a disproportionate effect on persons of different ages. An action may be based § 1172.22 Notice to subrecipients. on a reasonable factor other than age Where a recipient passes on Federal only if the factor bears a direct and financial assistance from NEH to sub- substantial relationship to the normal recipients, the recipient must provide operation of the program or activity or the subrecipients with written notice to the achievement of a statutory ob- of their obligations under the Act and jective. the regulations in this part. Each re- (c) Affirmative action by recipient. cipient must also make necessary in- Even in the absence of a finding of dis- formation available to its beneficiaries crimination, a recipient may take affirmative action to overcome the ef- in order to inform them about the pro- fects or conditions that resulted in lim- tections against discrimination pro- ited participation in the recipient’s vided by the Act and the regulations in program or activity on the basis of age. this part. (d) Special benefits for children and the elderly. If a recipient operating a pro- § 1172.23 Self-evaluation. gram or activity provides special bene- As part of a compliance review under fits to the elderly or to children, such § 1172.31 or a complaint investigation

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under § 1172.34, NEH may require a re- § 1172.32 Complaints. cipient employing the equivalent of fif- (a) Any person, individually or as a teen (15) or more full time employees member of a class or on behalf of oth- to complete a written self-evaluation, ers, may file a complaint with NEH, al- in a manner specified by NEH, of any leging discrimination prohibited by the age distinction imposed in its program Act and the regulations in this part or activity receiving Federal financial based on an action occurring on or assistance. A recipient must take cor- after July 1, 1979. A complainant must rective and remedial action whenever a file a complaint in writing within one self-evaluation indicates a violation of hundred eighty (180) days from the date the Act, and the recipient must make that the complainant first had knowl- the self-evaluation available upon re- edge of the alleged act of discrimina- quest to NEH and to the public for a tion. However, for good cause, NEH period of three (3) years following its may extend this time limit. NEH will completion. consider the date a complaint is filed as the date when the complaint is suffi- § 1172.24 Information requirements. cient to be processed. Each recipient shall keep records (b) Complaints must include a writ- containing information necessary for ten and signed statement identifying NEH to determine whether the recipi- the parties involved, describing the alent is in compliance with the Act and leged violation, and stating the date on the regulations in this part, and shall which the complainant first had knowl- provide any such records to NEH upon edge of the alleged violation. request and in the preferred format (c) NEH will attempt to facilitate the specified by NEH. Each recipient shall filing of complaints wherever possible, also permit reasonable access by NEH including taking the following meas- to its books, records, accounts, and ures, as appropriate: other facilities and sources of informa- (1) Widely disseminating information tion, to the extent necessary for NEH regarding the obligations of recipients to determine whether the recipient is under the Act and this part, in compliance with the Act and this (2) Permitting a complainant to add part. information to the complaint to meet the requirements of a sufficient complaint, Subpart D—Investigation, Concil- (3) Notifying the complainant and iation, and Enforcement Pro- the recipient (or their representatives) cedures of their rights and obligations under the complaint procedure, including the § 1172.31 Compliance reviews. right to have a representative at all (a) NEH may conduct compliance re- stages of the complaint procedure, and/ views, pre-award reviews, and other or similar procedures in order to inves- (4) Notifying the complainant and tigate and correct violations of the Act the recipient (or their representatives) and the regulations in this part. NEH of their right to contact NEH for infor- may conduct these reviews even in the mation and assistance regarding the absence of a complaint against the re- complaint resolution process. cipient. Reviews may be as comprehen- (d) NEH will return any complaint sive as necessary to determine whether that is unsigned or that is not within a recipient is in compliance with the NEH’s jurisdiction for any other rea- Act and this part. son, and NEH will provide an expla- (b) If a compliance review or pre- nation for the return. award review indicates a violation of the Act and the regulations in this § 1172.33 Mediation. part, NEH will attempt to contact the (a) Referral of complaints for mediation. recipient and achieve the recipient’s Unless the age distinction complained voluntary compliance. If the recipient of is clearly within an exception, NEH does not comply voluntarily, NEH may will promptly refer all complaints that pursue enforcement efforts as described fall within the jurisdiction of the regu- in § 1172.36. lations in this part, and that contain

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all information necessary for further ing methods, including joint or sepa- processing, to the Mediation Agency rate discussions with the complainant designated by the Secretary of the De- and the recipient to establish the facts, partment of Health and Human Serv- and, if possible, resolve the complaint ices. to the mutual satisfaction of the par- (b) Both the complainant and the re- ties. NEH may seek the assistance of cipient shall participate in the medi- any involved State agency. ation process to the extent necessary (ii) NEH will put any settlement to reach an agreement, or for the medi- agreement in writing and have it ator to make an informed judgment signed by the parties and NEH. The that an agreement is impossible. settlement is not a finding of discrimi- (c) If the complainant and recipient nation against a recipient. reach a mutually satisfactory resolu- (2) The settlement shall not affect tion of the complaint during the medi- the operation of any other enforcement ation period, the mediator shall pre- effort of NEH, including compliance re- pare a mediation agreement in writing, views and investigation of other com- to be signed by the complainant and re- plaints which may involve the recipi- cipient, and send a copy of the signed ent. agreement to NEH. NEH will take no (b) Formal investigation and finding. If further action based on that complaint NEH cannot resolve the complaint dur- unless the complainant or the recipient ing the initial investigation, it will has failed to comply with the agree- complete the investigation of the comment. plaint and make a formal finding. If (d) The mediator shall protect the the formal investigation indicates a confidentiality of all information ob- violation of the Act or the regulations tained in the course of the mediation in this part, NEH will attempt to process, and no mediator shall testify achieve voluntary compliance. If NEH in any adjudicative proceeding, cannot obtain voluntary compliance, it produce any document, or otherwise will begin appropriate enforcement ac- disclose any information obtained in tion as provided in § 1172.36. the course of the mediation process without prior approval of the head of § 1172.35 Prohibition against intimida- the mediation agency. tion or retaliation. (e) If the complainant and recipient do not reach a mutually satisfactory A recipient may not engage in acts of resolution during mediation within intimidation or retaliation against any sixty (60) days after NEH receives the person who attempts to assert a right complaint, the mediator shall return protected by the Act or this part, or the complaint to NEH for investiga- cooperates in any mediation, investigation. The mediator may return a com- tion, hearing, or other part of NEH’s plaint at any time before the end of the investigation, conciliation, and en- sixty-day period if it appears that the forcement process. complaint cannot be resolved through mediation or if an agreement is § 1172.36 Enforcement procedure. reached. The mediator may extend this (a) NEH may enforce the Act and the sixty-day period, provided NEH con- regulations in this part through: curs, for not more than thirty (30) (1) Termination of a recipient’s Fed- days, if the mediator determines that eral financial assistance under the pro- resolution is likely to occur within gram or activity involved where the re- such period. cipient has violated the Act or the regulations in this part. Prior to such ter- § 1172.34 Investigation. mination, a recipient must have the (a) Initial investigation. (1) NEH will opportunity for a hearing on record be- investigate complaints that are unre- fore an administrative law judge who solved after mediation or are reopened must determine that a violation has because of a violation of a mediation occurred. Therefore, NEH will not ter- agreement. minate a recipient’s Federal financial (i) As part of this initial investiga- assistance in a case that has been set- tion, NEH will use informal fact-find- tled in mediation, or prior to a hearing,

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unless the case is reopened because of a (2) NEH will not begin a deferral violation of the settlement agreement. until the recipient has received a no- (2) Any other means authorized by tice of an opportunity for a hearing law, including but not limited to: under § 1172.36(a)(1). NEH will not con- (i) Referral to the Department of Jus- tinue a deferral for more than sixty (60) tice for proceedings to enforce any days unless a hearing has begun within rights of the United States or obliga- that time, or the time for beginning tions of the recipient created by the the hearing has been extended by mu- Act or the regulations in this part. tual written consent of the recipient (ii) Use of any requirement of, or re- and NEH. NEH will not continue a deferral to, any Federal, State, or local ferral for more than thirty (30) days government agency that will have the after the close of the hearing, unless effect of correcting a violation of the the hearing results in a finding against Act or this part. the recipient. (b) NEH will limit any termination (3) NEH will limit any deferral to the under § 1172.36(a)(1) to the particular re- particular recipient and particular pro- cipient and particular program or ac- gram or activity, or portion thereof, tivity, or portion thereof, that NEH that NEH finds in violation of the Act finds in violation of the Act or the reg- or the regulations in this part. NEH ulations in this part. NEH will not base will not base the deferral decision any its decision to terminate on any find- finding with respect to any other pro- ings with respect to any other program gram or activity of the recipient that or activity of the recipient that does does not receive Federal financial as- not receive Federal financial assist- sistance from NEH. ance from NEH. (c) NEH will not take action under § 1172.37 Hearings, decisions, post-ter- § 1172.36(a) until: mination proceedings. (1) The Chairman has advised the re- Certain NEH procedural provisions cipient of its failure to comply with applicable to Title VI of the Civil the Act or the regulations in this part, Rights Act of 1964 apply to NEH en- and that NEH has determined that vol- forcement of the regulations in this untary compliance cannot be obtained, part. They are found at 45 CFR chapter and XI, subchapter A, 1110.9 through 1110.11. (2) Thirty (30) days have elapsed after the Chairman has sent a written report § 1172.38 Remedial action by recipi- of the circumstances and grounds of ents. the action to the Congressional Com- Where NEH finds a recipient has dis- mittee(s) having legislative jurisdic- criminated on the basis of age, the re- tion over the program or activity in- cipient shall take any remedial action volved. The Chairman will file such re- that NEH may require to overcome the port whenever it takes action under effects of discrimination. If another re- § 1172.36(a). cipient exercises control over the re- (d) NEH also may defer granting new cipient that has discriminated, NEH Federal financial assistance to a recipi- may require both recipients to take re- ent when a hearing under § 1172.36(a)(1) medial action. is initiated. (1) New Federal financial assistance § 1172.39 Alternate funds disbursal includes all assistance for which NEH procedure. requires an application or approval, in- When NEH withholds funds from a re- cluding renewal or continuation of ex- cipient under the regulations in this isting activities, or authorization of part, the Chairman may disburse the new activities, during the deferral pe- withheld funds directly to an alternate riod. New Federal financial assistance recipient otherwise eligible for NEH does not include assistance approved support. NEH will require any alter- prior to the beginning of a termination nate recipient to demonstrate the abil- hearing under § 1172.36(a)(1), or in- ity to comply with the regulations in creases in funding as a result of this part and to achieve the goals of changed computation of formula the National Foundation on the Arts awards. and the Humanities Act of 1965, Pub. L.

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89–209 (20 U.S.C. 951)—the Federal stat- PART 1173—PROCESSES AND PRO- ute authorizing the Federal financial CEDURES FOR ISSUING GUID- assistance. ANCE DOCUMENTS (Eff. 10-14- § 1172.40 Exhaustion of administrative 20) remedies. Sec. (a) A complainant may file a civil ac- 1173.1 Purpose and scope. tion under the Act and the regulations 1173.2 Definition of guidance document. in this part following the exhaustion of 1173.3 Review and clearance. administrative remedies. Administra- 1173.4 Requirements for clearance. tive remedies are exhausted if one hun- 1173.5 Public access to guidance documents. dred eighty (180) days have elapsed 1173.6 Waiver of publication of guidance since the complainant filed the com- documents. plaint and NEH has made no finding 1173.7 Good faith cost estimates. with regard to the complaint, or NEH 1173.8 Definition of significant guidance document. issues any finding in favor of the re- 1173.9 Procedures for significant guidance cipient. documents. (b) If either of the conditions set 1173.10 Notice-and-comment procedures. forth in § 1172.40(a) is satisfied, NEH 1173.11 Petitions to withdraw or modify will: guidance. (1) Promptly advise the complainant 1173.12 Rescinded guidance. of this fact, 1173.13 Exigent circumstances. (2) Advise the complainant of his or 1173.14 Reports to Congress and the Govern- ment Accountability Office (GAO). her right, to bring a civil action for in- 1173.15 No judicial review or enforceable junctive relief, and rights. (3) Inform the complainant: AUTHORITY: 5 U.S.C. 301; 20 U.S.C. 956. (i) That a civil action can only be brought in a United States district SOURCE: 85 FR 56526, Sept. 14, 2020, unless court for the district in which the re- otherwise noted. cipient is found or transacts business, EFFECTIVE DATE NOTE: At 85 FR 56526, (ii) That a complainant prevailing in Sept. 14, 2020, part 1173 was added, effective a civil action has the right to be Oct. 14, 2020. awarded the costs of the action, includ- § 1173.1 Purpose and scope. ing reasonable attorney’s fees, but that these costs must be demanded in the (a) This part prescribes general pro- complaint, cedures that apply to guidance docu- (iii) That before commencing the ac- ments issued by the National Endow- tion, the complainant must give thirty ment for the Humanities (NEH). (30) days’ notice by registered mail to (b) This part governs all NEH em- the Secretary, the Attorney General of ployees and contractors (collectively, the United States, the Chairman, and NEH staff) involved with all phases of the recipient, issuing NEH guidance documents. (iv) That the notice must state the (c) This part applies to all NEH guidance documents in effect on or after alleged violation of the Act, the relief October 14, 2020. requested, the court in which the complainant is bringing the action, and, § 1173.2 Definition of guidance docu- whether or not attorney’s fees are de- ment. manded in the event the complainant (a) For purposes of this part, the prevails, and term guidance document means any (v) That no action may be brought if agency statement of general applica- the same alleged violation of the Act bility, intended to have future effect on by the same recipient is the subject of the behavior of regulated parties, that a pending action in any court of the sets forth a policy on a statutory, regu- United States. latory, or technical issue, or an interpretation of a statute or regulation, but does not include the following:

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(1) Rules promulgated pursuant to § 1173.3 Review and clearance. notice and comment under 5 U.S.C. 553 All NEH guidance documents, as de- or similar statutory provisions; fined in § 1173.2, require review and (2) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a); clearance in accordance with this part. (3) Rules of agency organization, pro- All agency guidance documents must cedure, or practice; be reviewed and cleared by NEH’s Of- (4) Decisions of agency adjudications fice of the General Counsel (OGC). under 5 U.S.C. 554 or similar statutory § 1173.4 Requirements for clearance. provisions; (5) Internal guidance directed to the The NEH OGC’s review and clearance issuing agency or other agencies that of guidance documents shall ensure is not intended to have substantial fu- that each guidance document the agen- ture effect on the behavior of regulated cy proposes to issue satisfies the fol- parties; lowing requirements: (6) Internal executive branch legal (a) The guidance document complies advice or legal opinions addressed to with all relevant statutes and regula- executive branch officials; tions (including any statutory dead- (7) Agency statements of specific ap- lines for agency action); plicability, including advisory or legal (b) The guidance document identifies opinions directed to particular parties or includes: about circumstance-specific questions (1) The term ‘‘guidance’’ or its func- (e.g., case or investigatory letters re- tional equivalent; sponding to complaints, warning let- (2) A concise name for the guidance ters), notices regarding particular loca- document; tions or facilities (e.g., guidance per- (3) The NEH office or division issuing taining to the use, operation, or con- the guidance document; trol of a government facility or prop- (4) A unique identifier, including, at erty), and correspondence with indi- a minimum, the date of issuance, title vidual persons or entities (e.g., congres- of the document, and a number as- sional correspondence), except docu- signed by NEH’s OGC (or, in the case of ments ostensibly directed to a par- a significant guidance document, the ticular party but designed to guide the Z–RIN (regulatory identification num- conduct of the broader regulated pub- ber)); lic; (8) Legal briefs, other court filings, (5) The general topic that the guid- or positions taken in litigation or en- ance document addresses; forcement actions; (6) Citations to applicable statutes (9) Agency statements that do not set and regulations; forth a policy on a statutory, regu- (7) A statement noting whether the latory, or technical issue or an inter- guidance is intended to revise or re- pretation of a statute or regulation, in- place any previously issued guidance cluding speeches and individual presen- and, if so, sufficient information to tations, editorials, media interviews, identify the previously issued guid- press materials, or congressional testi- ance; and mony that do not set forth for the first (8) A concise summary of the guid- time a new regulatory policy; ance document’s content. (10) Guidance pertaining to military (c) The guidance document avoids or foreign affairs functions; using mandatory language, such as (11) Grant solicitations and awards; ‘‘shall,’’ ‘‘must,’’ ‘‘required,’’ or ‘‘re- (12) Contract solicitations and quirement,’’ unless the language is de- awards; or scribing an established statutory or (13) Purely internal agency policies regulatory requirement or is addressed or guidance directed solely to NEH to NEH staff and will not foreclose staff or other federal agencies that are NEH’s consideration of positions ad- not intended to have substantial future vanced by affected private parties; effect on the behavior of regulated par- (d) The guidance document is written ties. in plain and understandable English; (b) [Reserved] and

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(e) All guidance documents include a § 1173.6 Waiver of publication of guid- clear and prominent statement declar- ance documents. ing that the contents of the document (a) Sections 1173.5(b) and (e) do not do not have the force and effect of law, apply to guidance documents for which are not meant to bind the public in any a waiver has been applied from the way, and the document is intended OMB Director pursuant to Subsection only to provide clarity to the public re- 3(c) of Executive Order (E.O.) 13891. garding existing requirements under (b) Requests for waivers must be the law or NEH’s policies. written and signed by a senior policy official at the agency. § 1173.5 Public access to guidance documents. § 1173.7 Good faith cost estimates. NEH will: (a) NEH will, to the extent prac- (a) Oversee the creation of a guidance ticable, make a good faith effort to es- portal on the agency’s website; timate the likely economic cost impact (b) Ensure all effective guidance doc- of the guidance document to determine uments, identified by a unique identi- whether the document might be signifi- fier as described in § 1173.4(b)(4), are on cant. the guidance portal in a single, search- (b) When assessing or explaining able, indexed database, and available whether it believes a guidance docu- to the public; ment is significant, NEH will, at a min- (c) Note on the agency’s guidance imum, provide the same level of analysis that would be required for a major portal that guidance documents lack determination under the Congressional the force and effect of law, except as Review Act.2 authorized by law or as incorporated (c) When OMB’s Office of Information into a contract; and Regulatory Affairs (OIRA) deter- (d) Maintain and publish on NEH’s mines that a guidance document will guidance portal a means for the public be economically significant, NEH will to comment electronically on any conduct and publish an assessment of guidance documents that are subject to the potential costs and benefits of the notice-and-comment procedures, and to regulatory action (which may entail a submit requests electronically for regulatory impact analysis) of the sort issuance, reconsideration, modifica- that would accompany an economically tion, or rescission of guidance docu- significant rulemaking, to the extent ments in accordance with § 1173.11; reasonably possible. (e) Include on the agency’s guidance portal the date on which all guidance § 1173.8 Definition of significant guid- documents were posted to the website ance document. and a hyperlink to all guidance docu- (a) The term significant guidance doc- ments; ument means a guidance document that (f) Receive and address complaints will be disseminated to regulated enti- from the public that NEH is not fol- ties or the general public and that may lowing the requirements of OMB’s reasonably be anticipated: Good Guidance Bulletin or that NEH is (1) To lead to an annual effect on the improperly treating a guidance docu- economy of $100 million or more or adversely affect in a material way the ment as a binding requirement; United States economy, a sector of the (g) Note on the agency’s guidance United States economy, productivity, portal that any guidance document not competition, jobs, the environment, posted on the guidance portal is republic health or safety, or state, local, scinded, and that neither the agency or tribal governments or communities; nor a party may cite, use, or rely on (2) To create serious inconsistency or any guidance document that is not otherwise interfere with an action that posted on the guidance portal, except to establish historical facts; and 2 See OMB Memorandum M–19–14, Guidance (h) Include a link to this part on the on Compliance with the Congressional Re- agency’s guidance portal. view Act (April 11, 2019).

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another federal agency has taken or (2) Post the draft guidance document planned; on its website, at www.neh.gov/guid- (3) To alter materially the budgetary ance; impact of entitlements, grants, user (3) Invite public comment on the fees, or loan programs or the rights and draft document for a minimum of thir- obligations of recipients thereof; or ty (30) days; and (4) To raise novel legal or policy (4) Prepare and post a public response issues arising out of legal mandates, to major concerns raised in the com- the President’s priorities, or the prin- ments, as appropriate, on its guidance ciples set forth in E.O. 12866, as further portal, either before or when the guid- amended. ance document is finalized and issued. (b) The term significant guidance (b) The requirements of paragraph (a) document does not include the cat- of this section will not apply to any egories of documents excluded by this significant guidance documents or cat- part or any other category of guidance egories of significant guidance docu- documents that NEH’s OGC, in con- ments for which NEH’s OGC finds—in sultation with OIRA, has exempted in consultation with OIRA, the proposing writing. NEH office/division, and the NEH Chairperson—good cause that notice § 1173.9 Procedures for significant and public procedure thereon are im- guidance documents. practicable, unnecessary, or contrary (a) NEH will make an initial, pre- to the public interest (and incorporates liminary determination about a guid- the finding of good cause and a brief ance document’s significance. There- statement of reasons therefor in the after, NEH will submit the document issued guidance). to OIRA to determine whether a guid- (c) Where appropriate, NEH’s OGC ance document is significant, unless may recommend to the NEH Chair- the guidance is otherwise exempted person that a particular guidance docu- from such a determination by the Ad- ment that is otherwise of importance ministrator of OIRA. to the agency’s interests should also be (b) If OIRA designates a guidance subject to the informal notice-and- document as significant, NEH will sub- comment procedures described in para- mit the guidance document to OIRA graph (a) of this section. for review under E.O. 12866 prior to issuing it; and NEH will process signifi- § 1173.11 Petitions to withdraw or cant guidance in compliance with the modify guidance. applicable requirements for regulations (a) Any person may submit a petition or rules, including significant regu- to NEH requesting withdrawal or modi- latory actions, as set forth in E.O. fication of any effective guidance docu- 12866, E.O. 13563, E.O. 13609, E.O. 13771, ment by writing to the NEH Office of and E.O. 13777. the General Counsel at: (c) The NEH Chairperson signs or ap- [email protected], or National En- proves significant guidance documents. dowment for the Humanities, Attn: Of- fice of the General Counsel, 400 Sev- § 1173.10 Notice-and-comment proce- enth Street SW, Washington, DC 20506. dures. (b) The petition must: Except as provided in paragraph (b) (1) Describe the nature of the request of this section, all proposed NEH guid- and provide the title or substance of ance documents determined to be sig- the guidance you are requesting that nificant guidance documents within NEH withdraw or modify; and the meaning of § 1173.8 will be subject (2) Explain, with justification, how to the following informal notice-and- the document should be modified or comment procedures. why the document should be with- (a) NEH’s OGC will: drawn. (1) Publish a notice in the FEDERAL (c) NEH will review each request and REGISTER announcing that a draft of determine whether to grant the request the proposed guidance document is or deny it in whole or in part. NEH will publicly available; respond to all requests in a timely

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manner, but no later than ninety (90) PART 1174 [RESERVED] days after receipt of the request.

§ 1173.12 Rescinded guidance. PART 1175—ENFORCEMENT OF (a) NEH’s OGC, in consultation with NONDISCRIMINATION ON THE the NEH office/division that issued the BASIS OF HANDICAP IN PRO- guidance document, shall determine GRAMS OR ACTIVITIES CON- whether to rescind a guidance docu- DUCTED BY THE NATIONAL EN- ment. DOWMENT FOR THE HUMANITIES (b) Once rescinded, NEH will remove the hyperlink to the guidance docu- Sec. ment from the guidance portal. The 1175.101 Purpose. agency will list on the guidance portal, 1175.102 Application. for at least one year after rescission, 1175.103 Definitions. the guidance document’s name, title, 1175.104–1175.109 [Reserved] unique identifier, and date of rescis- 1175.110 Self-evaluation. 1175.111 Notice. sion. 1175.112–1175.129 [Reserved] (c) No NEH office/division or NEH 1175.130 General prohibitions against dis- staff may cite, use, or rely on guidance crimination. documents that are rescinded, except 1175.131–1175.139 [Reserved] to establish historical facts. 1175.140 Employment. 1175.141–1175.148 [Reserved] § 1173.13 Exigent circumstances. 1175.149 Program accessibility: Discrimina- In emergency situations, or when tion prohibited. 1175.150 Program accessibility: Existing fa- NEH is required by statutory deadline cilities. or court order to act more quickly 1175.151 Program accessibility: New con- than normal review procedures allow, struction and alterations. NEH will notify OIRA as soon as pos- 1175.152–1175.159 [Reserved] sible and, to the extent practicable, 1175.160 Communications. comply with the requirements of this 1175.161–1175.169 [Reserved] part at the earliest opportunity. Wher- 1175.170 Compliance procedures. ever practicable, NEH should schedule 1175.171–1175.999 [Reserved] its proceedings to permit sufficient AUTHORITY: 29 U.S.C. 794. time to comply with the procedures set SOURCE: 51 FR 4578, 4579, Feb. 5, 1986, unless forth in this part. otherwise noted.

§ 1173.14 Reports to Congress and the § 1175.101 Purpose. Government Accountability Office (GAO). This part effectuates section 119 of Unless otherwise determined in writ- the Rehabilitation, Comprehensive ing, NEH will, upon issuing a guidance Services, and Developmental Disabil- document, submit a report to Congress ities Amendments of 1978, which and GAO in accordance with the proce- amended section 504 of the Rehabilita- dures described in the Congressional tion Act of 1973 to prohibit discrimina- Review Act. tion on the basis of handicap in programs or activities conducted by Exec- § 1173.15 No judicial review or en- utive agencies or the United States forceable rights. Postal Service. This part is intended to improve the § 1175.102 Application. internal management of the National Endowment for the Humanities. As This part applies to all programs or such, it is for the use of NEH personnel activities conducted by the agency. only and is not intended to, and does not, create any right or benefit, sub- § 1175.103 Definitions. stantive or procedural, enforceable at For purposes of this part, the term— law or in equity by any party against Assistant Attorney General means the the United States, its agencies or other Assistant Attorney General, Civil entities, its officers or employees, or Rights Division, United States Depart- any other person. ment of Justice.

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Auxiliary aids means services or de- disabilities. The term physical or mental vices that enable persons with im- impairment includes, but is not limited paired sensory, manual, or speaking to, such diseases and conditions as or- skills to have an equal opportunity to thopedic, visual, speech, and hearing participate in, and enjoy the benefits impairments, cerebral palsy, epilepsy, of, programs or activities conducted by muscular dystrophy, multiple sclerosis, the agency. For example, auxiliary aids cancer, heart disease, diabetes, mental useful for persons with impaired vision retardation, emotional illness, and include readers, Brailled materials, drug addition and alcholism. audio recordings, telecommunications (2) Major life activities includes func- devices and other similar services and tions such as caring for one’s self, per- devices. Auxiliary aids useful for performing manual tasks, walking, seeing, sons with impaired hearing include hearing, speaking, breathing, learning, telephone handset amplifiers, tele- and working. phones compatible with hearing aids, (3) Has a record of such an impairment telecommunication devices for deaf means has a history of, or has been persons (TDD’s), interpreters, misclassified as having, a mental or notetakers, written materials, and physical impairment that substantially other similar services and devices. limits one or more major life activi- Complete complaint means a written ties. statement that contains the complain- (4) Is regarded as having an impairment ant’s name and address and describes means— the agency’s alleged discriminatory ac- (i) Has a physical or mental impair- tion in sufficient detail to inform the ment that does not substantially limit agency of the nature and date of the al- major life activities but is treated by leged violation of section 504. It shall the agency as constituting such a limi- be signed by the complainant or by tation; someone authorized to do so on his or (ii) Has a physical or mental impair- her behalf. Complaints filed on behalf ment that substantially limits major of classes or third parties shall describe life activities only as a result of the at- or identify (by name, if possible) the titudes of others toward such impair- alleged victims of discrimination. ment; or Facility means all or any portion of (iii) Has none of the impairments de- buildings, structures, equipment, fined in paragraph (1) of this definition roads, walks, parking lots, rolling but is treated by the agency as having stock or other conveyances, or other such an impairment. real or personal property. Qualified handicapped person means— Handicapped person means any person (1) With respect to any agency pro- who has a physical or mental impair- gram or activity under which a person ment that substantially limits one or is required to perform services or to more major life activities, has a record achieve a level of accomplishment, a of such an impairment, or is regarded handicapped person who meets the es- as having such an impairment. sential eligibility requirements and As used in this definition, the phrase: who can achieve the purpose of the pro- (1) Physical or mental impairment in- gram or activity without modifications cludes— in the program or activity that the (i) Any physiological disorder or con- agency can demonstrate would result dition, cosmetic disfigurement, or ana- in a fundamental alteration in its na- tomical loss affecting one of more of ture; or the following body systems: Neuro- (2) With respect to any other pro- logical; musculoskeletal; special sense gram or activity, a handicapped person organs; respiratory, including speech who meets the essential eligibility re- organs; cardiovascular; reproductive; quirements for participation in, or re- digestive; genitourinary; hemic and ceipt of benefits from, that program or lymphatic; skin; and endocrine; or activity. (ii) Any mental or psychological dis- (3) Qualified handicapped person is de- order, such as mental retardation, or- fined for purposes of employment in 29 ganic brain syndrome, emotional or CFR 1613.702(f), which is made applica- mental illness, and specific learning ble to this part by § 1175.140.

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Section 504 means section 504 of the §§ 1175.112–1175.129 [Reserved] Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as § 1175.130 General prohibitions amended by the Rehabilitation Act against discrimination. Amendments of 1974 (Pub. L. 93–516, 88 (a) No qualified handicapped person Stat. 1617), and the Rehabilitation, shall, on the basis of handicap, be ex- Comprehensive Services, and Develop- cluded from participation in, be denied mental Disabilities Amendments of the benefits of, or otherwise be sub- 1978 (Pub. L. 95–602, 92 Stat. 2955). As jected to discrimination under any pro- used in this part, section 504 applies gram or activity conducted by the only to programs or activities con- agency. ducted by Executive agencies and not (b)(1) The agency, in providing any to federally assisted programs. aid, benefit, or service, may not, directly or through contractual, licens- [51 FR 4578, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986] ing, or other arrangements, on the basis of handicap— §§ 1175.104–1175.109 [Reserved] (i) Deny a qualified handicapped person the opportunity to participate in § 1175.110 Self-evaluation. or benefit from the aid, benefit, or (a) The agency shall, by April 9, 1987, service; evaluate its current policies and prac- (ii) Afford a qualfied handicapped tices, and the effects thereof, that do person an opportunity to participate in not or may not meet the requirements or benefit from the aid, benefit, or of this part, and, to the extent modi- service that is not equal to that af- fication of any such policies and prac- forded others; tices is required, the agency shall pro- (iii) Provide a qualified handicapped ceed to make the necessary modifica- person with an aid, benefit, or service tions. that is not as effective in affording equal opportunity to obtain the same (b) The agency shall provide an op- result, to gain the same benefit, or to portunity to interested persons, includ- reach the same level of achievement as ing handicapped persons or organiza- that provided to others; tions representing handicapped per- (iv) Provide different or separate aid, sons, to participate in the self-evalua- benefits, or services to handicapped tion process by submitting comments persons or to any class of handicapped (both oral and written). persons than is provided to others un- (c) The agency shall, until three less such action is necessary to provide years following the completion of the qualified handicapped persons with aid, self-evaluation, maintain on file and benefits, or services that are as effec- make available for public inspections: tive as those provided to others; (1) A description of areas examined (v) Deny a qualified handicapped per- and any problems identified, and son the opportunity to participate as a (2) A description of any modifications member of planning or advisory boards; made. or (vi) Otherwise limit a qualified § 1175.111 Notice. handicapped person in the enjoyment The agency shall make available to of any right, privilege, advantage, or employees, applicants, participants, opportunity enjoyed by others receiv- beneficiaries, and other interested per- ing the aid, benefit, or service. sons such information regarding the (2) The agency may not deny a quali- provisions of this part and its applica- fied handicapped person the oppor- bility to the programs or activities tunity to participate in programs or conducted by the agency, and make activities that are not separate or dif- such information available to them in ferent, despite the existence of permis- such manner as the head of the agency sibly separate or different programs or finds necessary to apprise such persons activities. of the protections against discrimina- (3) The agency may not, directly or tion assured them by section 504 and through contractual or other arrange- this regulation. ments, utilize criteria or methods of

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administration the purpose or effect of §§ 1175.141–1175.148 [Reserved] which would— (i) Subject qualified handicapped per- § 1175.149 Program accessibility: Dis- sons to discrimination on the basis of crimination prohibited. handicap; or Except as otherwise provided in (ii) Defeat or substantially impair ac- § 1175.150, no qualified handicapped per- complishment of the objectives of a son shall, because the agency’s facili- program or activity with respect to ties are inaccessible to or unusable by handicapped persons. handicapped persons, be denied the (4) The agency may not, in deter- benefits of, be excluded from participa- mining the site or location of a facil- tion in, or otherwise be subjected to discrimination under any program or ity, make selections the purpose or ef- activity conducted by the agency. fect of which would— (i) Exclude handicapped persons § 1175.150 Program accessibility: Exist- from, deny them the benefits of, or oth- ing facilities. erwise subject them to discrimination (a) General. The agency shall operate under any program or activity con- each program or activity so that the ducted by the agency; or program or activity, when viewed in its (ii) Defeat or substantially impair entirety, is readily accessible to and the accomplishment of the objectives usable by handicapped persons. This of a program or activity with respect paragraph does not— to handicapped persons. (1) Necessarily require the agency to (5) The agency, in the selection of make each of its existing facilities ac- procurement contractors, may not use cessible to and usable by handicapped criteria that subject qualified handi- persons; or capped persons to discrimination on (2) Require the agency to take any the basis of handicap. action that it can demonstrate would (c) The exclusion of nonhandicapped result in a fundamental alteration in persons from the benefits of a program the nature of a program or activity or limited by Federal statute or Execu- in undue financial and administrative tive order to handicapped persons or burdens. In those circumstances where the exclusion of a specific class of agency personnel believe that the pro- handicapped persons from a program posed action would fundamentally limited by Federal statute or Execu- alter the program or activity or would tive order to a different class of handi- result in undue financial and adminis- capped persons is not prohibited by trative burdens, the agency has the this part. burden of proving that compliance with § 1175.150(a) would result in such alter- (d) The agency shall administer pro- ation or burdens. The decision that grams and activities in the most inte- compliance would result in such alter- grated setting appropriate to the needs ation or burdens must be made by the of qualified handicapped persons. agency head or his or her designee after considering all agency resources §§ 1175.131–1175.139 [Reserved] available for use in the funding and op- § 1175.140 Employment. eration of the conducted program or activity, and must be accompanied by No qualified handicapped person a written statement of the reasons for shall, on the basis of handicap, be sub- reaching that conclusion. If an action jected to discrimination in employ- would result in such an alteration or ment under any program or activity such burdens, the agency shall take conducted by the agency. The defini- any other action that would not result tions, requirements, and procedures of in such an alteration or such burdens section 501 of the Rehabilitation Act of but would nevertheless ensure that 1973 (29 U.S.C. 791), as established by handicapped persons receive the bene- the Equal Employment Opportunity fits and services of the program or ac- Commission in 29 CFR part 1613, shall tivity. apply to employment in federally con- (b) Methods. The agency may comply ducted programs or activities. with the requirements of this section

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through such means as redesign of (2) Describe in detail the methods equipment, reassignment of services to that will be used to make the facilities accessible buildings, assignment of accessible; aides to beneficiaries, home visits, de- (3) Specify the schedule for taking livery of services at alternate acces- the steps necessary to achieve compli- sible sites, alteration of existing facili- ance with this section and, if the time ties and construction of new facilities, period of the transition plan is longer use of accessible rolling stock, or any than one year, identify steps that will other methods that result in making be taken during each year of the tran- its programs or activities readily ac- sition period; and cessible to and usable by handicapped (4) Indicate the official responsible persons. The agency is nor required to for implementation of the plan. make structural changes in existing fa- [51 FR 4578, 4579, Feb. 5, 1986; 51 FR 7543, Mar. cilities where other methods are effec- 5, 1986] tive in achieving compliance with this section. The agency, in making alter- § 1175.151 Program accessibility: New ations to existing buildings, shall meet construction and alterations. accessibility requirements to the ex- Each building or part of a building tent compelled by the Architectural that is constructed or altered by, on Barriers Act of 1968, as amended (42 behalf of, or for the use of the agency U.S.C. 4151 through 4157), and any regu- shall be designed, constructed, or al- lations implementing it. In choosing tered so as to be readily accessible to among available methods for meeting and usable by handicapped persons. the requirements of this section, the The definitions, requirements, and agency shall give priority to those standards of the Architectural Barriers methods that offer programs and ac- Act (42 U.S.C. 4151 through 4157), as es- tivities to qualified handicapped per- tablished in 41 CFR 101–19.600 to 101– sons in the most integrated setting ap- 19.607, apply to buildings covered by propriate. this section. (c) Time period for compliance. The agency shall comply with the obliga- §§ 1175.152–1175.159 [Reserved] tions established under this section by June 6, 1986, except that where struc- § 1175.160 Communications. tural changes in facilities are under- (a) The agency shall take appropriate taken, such changes shall be made by steps to ensure effective communica- April 7, 1989, but in any event as expe- tion with applicants, participants, per- ditiously as possible. sonnel of other Federal entities, and (d) Transition plan. In the event that members of the public. structural changes to facilities will be (1) The agency shall furnish appro- undertaken to achieve program acces- priate auxiliary aids where necessary sibility, the agency shall develop, by to afford a handicapped person an equal October 7, 1986, a transition plan set- opportunity to participate in, and ting forth the steps necessary to com- enjoy the benefits of, a program or ac- plete such changes. The agency shall tivity conducted by the agency. provide an opportunity to interested (i) In determining what type of auxil- persons, including handicapped persons iary aid is necessary, the agency shall or organizations representing handi- give primary consideration to the re- capped persons, to participate in the quests of the handicapped person. development of the transition plan by (ii) The agency need not provide indi- submitting comments (both oral and vidually prescribed devices, readers for written). A copy of the transition plan personal use or study, or other devices shall be made available for public in- of a personal nature. spection. The plan shall, at a min- (2) Where the agency communicates imum— with applicants and beneficiaries by (1) Identify physical obstacles in the telephone, telecommunication devices agency’s facilities that limit the acces- for deaf persons (TDD’s) or equally ef- sibility of its programs or activities to fective telecommunication systems handicapped persons; shall be used.

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(b) The agency shall ensure that ining to the procedures established by terested persons, including persons the Equal Employment Opportunity with impaired vision or hearing, can Commission in 29 CFR part 1613 pursu- obtain information as to the existence ant to section 501 of the Rehabilitation and location of accessible services, ac- Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The Director, Office of Equal Op- (c) The agency shall provide signage portunity shall be responsible for co- at a primary entrance to each of its in- ordinating implementation of this sec- accessible facilities, directing users to tion. Complaints may be sent to Direc- a location at which they can obtain in- tor, Office of Equal Opportunity, Na- formation about accessible facilities. tional Endowment for the Humanities, The international symbol for accessi- 1100 Pennsylvania Avenue, NW., Room bility shall be used at each primary en- 419, Washington, DC 20506. trance of an accessible facility. (d) The agency shall accept and in- (d) This section does not require the vestigate all complete complaints for agency to take any action that it can which it has jurisdiction. All complete demonstrate would result in a funda- complaints must be filed within 180 mental alteration in the nature of a days of the alleged act of discrimina- program or activity or in undue finan- tion. The agency may extend this time cial and administrative burdens. In period for good cause. those circumstances where agency per- (e) If the agency receives a complaint sonnel believe that the proposed action over which it does not have jurisdic- would fundamentally alter the program tion, it shall promptly notify the com- or activity or would result in undue fi- plainant and shall make reasonable ef- nancial and administrative burdens, forts to refer the complaint to the ap- the agency has the burden of proving propriate government entity. that compliance with § 1175.160 would (f) The agency shall notify the Archi- result in such alteration or burdens. tectural and Transportation Barriers The decision that compliance would re- Compliance Board upon receipt of any sult in such alteration or burdens must complaint alleging that a building or be made by the agency head or his or facility that is subject to the Architec- her designee after considering all agen- tural Barriers Act of 1968, as amended cy resources available for use in the (42 U.S.C. 4151 through 4157), or section funding and operation of the conducted 502 of the Rehabilitation Act of 1973, as program or activity, and must be ac- amended (29 U.S.C. 792), is not readily companied by a written statement of accessible to and usable by handi- the reasons for reaching that conclu- capped persons. sion. If an action required to comply (g) Within 180 days of the receipt of a with this section would result in such complete complaint for which it has ju- an alteration or such burdens, the risdiction, the agency shall notify the agency shall take any other action complainant of the results of the inves- that would not result in such an alter- tigation in a letter containing— ation or such burdens but would never- (1) Findings of fact and conclusions theless ensure that, to the maximum of law; extent possible, handicapped persons (2) A description of a remedy for each receive the benefits and services of the violation found; program or activity. (3) A notice of the right to appeal. (h) Appeals of the findings of fact and §§ 1175.161–1175.169 [Reserved] conclusions of law or remedies must be filed by the complainant within 90 days § 1175.170 Compliance procedures. of receipt from the agency of the letter (a) Except as provided in paragraph required by § 1175.170(g). The agency (b) of this section, this section applies may extend this time for good cause. to all allegations of discrimination on (i) Timely appeals shall be accepted the basis of handicap in programs or and processed by the head of the agen- activities conducted by the agency. cy. (b) The agency shall process com- (j) The head of the agency shall no- plaints alleging violations of section tify the complainant of the results of 504 with respect to employment accord- the appeal within 60 days of the receipt

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of the request. If the head of the agen- tional training. In view of this, the Na- cy determines that additional informa- tional Endowment for the Humanities tion is needed from the complainant, will operate a part-time career employ- he or she shall have 60 days from the ment program, consistent with its re- date of receipt of the additional infor- sponsibilities and in accordance with mation to make his or her determina- Public Law 95–437, the Federal Employ- tion on the appeal. ees’ Part-Time Career Employment (k) The time limits cited in para- Act of 1978. graphs (g) and (j) of this section may be (b) Program Coordinator. The Per- extended with the permission of the sonnel Officer is responsible for pro- Assistant Attorney General. gram operation and coordination. (l) The agency may delegate its authority for conducting complaint in- § 1176.2 Definitions. vestigations to other Federal agencies, (a) Part-time employment means em- except that the authority for making ployment of 16 to 32 hours a week the final determination may not be under a schedule consisting of an equal delegated to another agency. or varied number of hours per day, [51 FR 4578, 4579, Feb. 5, 1986, as amended at whether in a position which would be 51 FR 4578, Feb. 5, 1986] part-time without regard to the Act or one established to allow job-sharing or §§ 1175.171–1175.999 [Reserved] comparable arrangements, but does not include employment on a temporary or PART 1176—PART-TIME CAREER intermittent basis. EMPLOYMENT (b) Career employment includes competitive and excepted service employ- Sec. ees in tenure groups I and II. 1176.1 General. 1176.2 Definitions. § 1176.3 Criteria. 1176.3 Criteria. 1176.4 Establishing and converting part- Positions becoming vacant, unless time positions. excepted as provided by § 1176.8, will be 1176.5 Annual plan. reviewed to determine the feasibility of 1176.6 Review and evaluation. converting them to part-time. Among 1176.7 Publicizing vacancies. the criteria which may be used when 1176.8 Exceptions. 1176.9–1176.99 [Reserved] conducting this review are: (a) Mission requirements. AUTHORITY: Federal Employees Part-Time Career Employment Act of 1978, Pub. L. 95– (b) Workload. 437, 92 Stat. 1055, 5 U.S.C. 3401–3408. (c) Employment ceilings and budgetary considerations. SOURCE: 46 FR 35647, July 10, 1981, unless otherwise noted. (d) Availability of qualified applicants willing to work part-time. § 1176.1 General. § 1176.4 Establishing and converting (a) Purpose. Many individuals in soci- part-time positions. ety possess great productive potential which goes unrealized because they Position management and other in- cannot meet the requirements of a ternal reviews may indicate that posi- standard workweek. Permanent part- tions may be either converted from time employment also provides bene- full-time or initially established as fits to other individuals in a variety of part-time positions. Criteria listed in ways, such as providing older individ- § 1176.3 may be used during these re- uals with a gradual transition into reviews. If a decision is made to convert tirement, providing employment op- to or to establish a part-time position, portunities to handicapped individuals regular position management and clas- or others who require a reduced work- sification procedures will be followed. week, providing parents with opportunities to balance family responsibil- § 1176.5 Annual plan. ities with the need for added income, (a) An agencywide plan for promoting and assisting students who must fi- part-time employment opportunities nance their own education or voca- will be developed annually. This plan

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will establish annual goals and set in- time frame for the increase in hours terim and final deadlines for achieving above 32 hours per week; and these goals. This plan will be applica- (3) The Program Coordinator will de- ble throughout the agency, and will be cide if the request meets the intent of transmitted to the Office of Personnel the law and this agency’s policy. Management with the required report to OPM on the status of the program as §§ 1176.9–1176.99 [Reserved] of September 30 of each year. (b) Beginning in FY 1981 in admin- PART 1177—CLAIMS COLLECTION istering personnel ceilings, part-time career employees shall be counted Sec. against ceiling authorizations as a 1177.1 Purpose and scope. fraction. This will be determined by di- 1177.2 Definitions. viding 40 hours into the average num- 1177.3 Other remedies. ber of hours of such employee’s regu- 1177.4 Claims involving criminal activity or larly scheduled workweek. misconduct. 1177.5 Collection. § 1176.6 Review and evaluation. 1177.6 Notice to debtor. Regular employment reports will be 1177.7 Interest, penalties, and administra- used to determine levels of part-time tive costs. employment. This program will also be 1177.8 Administrative offset. designated an item of special interest 1177.9 Use of credit reporting agencies. to be reviewed during personnel man- 1177.10 Collection services. agement reviews. 1177.11 Referral to the Department of Jus- tice or the General Accounting Office. § 1176.7 Publicizing vacancies. 1177.12 Compromise, suspension and termination. When applicants from outside the 1177.13 Omissions not a defense. Federal service are desired, part-time 1177.14–1177.99 [Reserved] vacanies may be publicized through various recruiting means, such as: AUTHORITY: 31 U.S.C. 3711, 3716–3719. (a) Federal Job Information Centers. SOURCE: 51 FR 20484, June 5, 1986, unless (b) State Employment Offices. otherwise noted. (c) Veterans’ Administration Re- cruiting Bulletins. § 1177.1 Purpose and scope. This part prescribes standards and § 1176.8 Exceptions. procedures for officers and employees (a) The Personnel Officer may except of the National Endowment for the Hu- positions from inclusion in this pro- manities who are responsible for the gram to provide fewer than 16 hours collection and disposition of debts per week. This will normally be done in owed to the United States. The author- furtherance of special hiring programs ity for this part is the Federal Claims such as the Stay-in-School or Handi- Collection Act of 1966, as amended, 31 capped Employment Program. U.S.C. 3711 and 3716 through 3719; the (b) On occasions when it becomes Federal Claims Collection Standards at necessary to allow supervisors and 4 CFR parts 101 through 105, as amend- managers to temporarily increase the ed by 49 FR 8889, 5 U.S.C. 552a, and Of- hours of duty of employees above 32 fice of Management and Budget Cir- hours per week for limited and specific cular A–129. The activities covered in- periods of time to meet heavy work- clude: collecting claims in any amount; loads, perform special assignments, compromising claims, or suspending or permit employee training, etc., the En- terminating the collection of claims dowment policy is as follows: that do not exceed $20,000 exclusive of (1) Requests to work NEH employees interest and charges, and referring on a 32 hour/week appointment more debts that cannot be disposed of by the than 32 hours must be submitted in ad- Endowment to the Department of Jus- vance to the Personnel Office; tice or to the General Accounting Of- (2) Justification should be concise fice for further administrative action but specific and must state the exact or litigation.

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§ 1177.2 Definitions. States for compensation for the mis- For the purpose of this part the fol- appropriated funds. The Endowment lowing definitions will apply: will refer these cases to the appro- (a) Claim or debt means an amount of priate law enforcement agency for property owed to the United States. prosecution. These include but are not limited to: (b) Debts involving fraud, false, Overpayments to program bene- claims, or misrepresentation shall not ficiaries; overpayments to contractors be compromised, terminated, sus- and grantees, including overpayments pended, or otherwise disposed of under arising from audit disallowances; ex- this rule. Only the Department of Jus- cessive cash advances to grantees and tice is authorized to compromise, ter- contractors; and civil penalties and as- minate, suspend, or otherwise dispose sessments. A debt is overdue or delin- of such debts. quent if it is not paid by the due date § 1177.5 Collection. specified in the initial notice of the debt (see § 1177.6 of this part) or if the (a) The Endowment will take aggres- debtor fails to satisfy his or her obliga- sive action to collect debts and reduce tion under a repayment agreement. delinquencies. Collection efforts shall (b) Debtor means an individual, orga- include sending to the debtor’s last nization, group, association, partner- known address a total of three progres- ship, or corporation indebted to the sively stronger written demands for United States, or the person or entity payment at not more than 30 day inter- with legal responsibility for assuming vals. When necessary to protect the the debtor’s obligation. Government’s interest, written demand (c) Endowment means the National may be preceded by other appropriate Endowment for the Humanities. action, including immediate referral (d) Administrative offset means satis- for litigation. Other contact with the fying a debt by withholding money debtor or his or her representative or payable by the United States to or held guarantor by telephone, in person and/ by the United States for a debtor. or in writing may be appropriate to demand prompt payment, to discuss the § 1177.3 Other remedies. debtor’s position regarding the exist- The remedies and sanctions available ence, amount and repayment of the to the National Endowment for the Hu- debt, and to inform the debtor of his or manities under this part are not in- her rights and the effect of non- tended to be exclusive. The Chair- payment or delayed payment. A debtor person of the National Endowment for who disputes a debt must promptly the Humanities or his designee may provide available supporting evidence. impose other appropriate sanctions (b) If a debtor is involved in insol- upon a debtor for prolonged or repeated vency proceedings, the debt will be re- failure to pay a debt. For example, the ferred to the appropriate United States Chairperson or his designee may place Attorney to file a claim. The United the debtor’s name on a list of debarred, States may have a priority over other suspended, or ineligible grantees and creditors under 31 U.S.C. 3713. contractors, convert the method of payment under a grant from an ad- § 1177.6 Notice to debtor. vance to a reimbursement method, or The first written demand for pay- revoke a grantee’s letter of credit. In ment must inform the debtor of the fol- such cases the debtor will be advised of lowing: the Endowment’s action. (a) The amount and nature of the debt: § 1177.4 Claims involving criminal ac- (b) The date payment is due, which tivity or misconduct. will generally be 30 days from the date (a) A debtor whose indebtedness in- the notice was mailed; volves criminal activity such as fraud, (c) The assessment of interest under embezzlement, theft, or misuse of gov- § 1177.7 from the date the notice was ernment funds or property is subject to mailed if payment is not received with- punishment by fine or imprisonment as in the 30 days; well as to a civil claim by the United (d) The right to dispute the debt;

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(e) The office, address and telphone States. The Endowment shall waive the number that the debtor should contact collection of interest on the debt or to discuss repayment and reconsider- any part of the debt which is paid with- ation of the debt and; in 30 days after the date on which in- (f) The sanctions available to the Na- terest began to accrue. tional Endowment for the Humanities to collect a delinquent debt including, § 1177.8 Administrative offset. but not limited to, referral of the debt (a) The Endowment may collect debts to a credit reporting agency, a private owed by administrative offset if: collection bureau, or the Department of Justice for litigation. (1) The debt is certain in amount; (2) Efforts to obtain direct payment § 1177.7 Interest, penalties, and admin- have been, or would most likely be un- istrative costs. successful, or the Endowment and the (a) Interest will accrue on all debts debtor agree to the offset; from the date when the first notice of (3) Offset is cost effective or has sig- the debt and the interest requirement nificant deterrent value; and is mailed to the last known address or (4) Offset is best suited to further and hand-delivered to the debtor if the debt protect the Government’s interest. is not paid within 30 days from the date (b) The Endowment may offset a debt the first notice was mailed. The En- owed to another Federal agency from dowment will charge an annual rate of amounts due or payable by the Endow- interest that is equal to the average in- ment to the debtor or request another vestment rate for the Treasury tax and Federal agency to offset a debt owed to loan accounts on September 30 of each the Endowment; year, rounded to the nearest whole per (c) Prior to initiating administrative centum. This rate, which represents offset, the National Endowment for the the current value of funds to the United States Treasury, may be revised Humanities will send the debtor writ- quarterly by the Secretary of the ten notice of the following: Treasury and is published by the Sec- (1) The nature and amount of the retary of the Treasury annually or debt and the agency’s intention to col- quarterly in the FEDERAL REGISTER and lect the debt by offset 30 days from the the Treasury Financial Manual Bul- date the notice was mailed if neither letins. payment nor a satisfactory response is (b) The rate of interest initially as- received by that date; sessed will remain fixed for the dura- (2) The debtor’s right to an oppor- tion of the indebtedness, except that if tunity to submit a good faith alter- a debtor defaults on a repayment native repayment schedule to inspect agreement interest may be set at the and copy agency records pertaining to Treasury rate in effect on the date a the debt, to request a review of the de- new agreement is executed. termination of indebtedness; and to (c) The Endowment shall charge enter into a written agreement to debtors for administrative costs in- repay the debt and; curred in handling overdue debts. (3) The applicable interest. (d) Interest will not be charged on ad- (d) The National Endowment for the ministrative costs. Humanities may effect an administra- (e) The Endowment shall assess a penalty charge, not to exceed 6 per tive offset against a payment to be cent per year on debts which have been made to a debtor prior to the comple- delinquent for more than 90 days. This tion of the procedures required by charge shall accrue from the date that paragraph (c) of this section if: the debt became delinquent. (1) Failure to offset would substan- (f) The Chairperson or his designee tially prejudice the Government’s abil- may waive in whole or in part the col- ity to collect the debt and lection of interest and administrative (2) The time before the payment is to and penalty charges if determined that be made does not reasonably permit collection would be against equity or completion of those procedures. not in the best interests of the United

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§ 1177.9 Use of credit reporting agen- neither be collected nor otherwise dis- cies. posed of will be referred for litigation (a) The Endowment may report delin- to the United States Attorney in whose quent accounts to credit reporting judicial district the debtor is located. agencies consistent with the notice re- Claims for amounts exceeding $100,000 quirements contained in the § 1177.6 of shall be referred for litigation to the this part. Individual debtors must be Commercial Litigation Branch, Civil given at least 60 days written notice Division of the Department of Justice. that the debt is overdue and will be re- § 1177.12 Compromise, suspension and ported to a credit reporting agency. termination. (b) Debts may be reported to consumer or commercial reporting agen- (a) The Chairperson of the National cies. Consumer reporting agencies are Endowment for the Humanities or his defined in 31 U.S.C. 3701(a)(3) pursuant designee may compromise, suspend or to 5 U.S.C. 552a(b)(12) and 31 U.S.C. terminate the collection of debts where 3711(f). The Endowment may disclose the outstanding principal is not great- only an individual’s name, address, so- er than $20,000. Endowment procedures cial security number, and the nature, for writing off outstanding accounts amount, status and history of the debt are available to the public. and the program under which the claim (b) The Chairperson of the National arose. Endowment for the Humanities may compromise, suspend or terminate col- § 1177.10 Collection services. lection of debts where the outstanding principal is greater than $20,000 only (a) The Endowment may contract for with the approval of, or by referral to collection services to recover out- the United States Attorney or the De- standing debts. The Endowment may partment of Justice. refer delinquent debts to private col- (c) The Chairman of the National En- lection agencies listed on the schedule dowment for the Humanities will refer compiled by the General Services Ad- to the General Accounting Office ministration. In such contracts, the (GAO) debts arising from GAO audit National Endowment for the Human- exceptions. ities will retain the authority to resolve disputes, compromise claims, ter- § 1177.13 Omissions not a defense. minate or suspend collection, and refer Failure to comply with any provi- the matter to the Department of Jus- sions of this rule may not serve as a de- tice or the General Accounting Office. fense to any debtor. (b) The contractor shall be subject to the disclosure provisions of the Privacy §§ 1177.14–1177.99 [Reserved] Act of 1974, as amended (5 U.S.C. 552a(m)), and to applicable federal and state laws and regulations pertaining PART 1178—USE OF PENALTY MAIL to debt collection practices, including IN THE LOCATION AND RECOV- the Fair Debt Collection Practices Act, ERY OF MISSING CHILDREN 15 U.S.C. 1692. The contractor shall be strictly accountable for all amounts Sec. collected. 1178.1 Purpose and scope. 1178.2 Withdrawal of information. (c) The contractor shall be required to provide to the Endowment any data AUTHORITY: 39 U.S.C. 3220. contained in its files relating to the debt account upon agency request or § 1178.1 Purpose and scope. upon returning an account to the En- (a) The Chairperson of the National dowment for referral to the Depart- Endowment for the Humanities (NEH) ment of Justice for litigation. may direct the agency to use penalty mail to assist in the location and re- § 1177.11 Referral to the Department covery of missing children. When de- of Justice or the General Account- termined to be appropriate and cost-ef- ing Office. fective, the National Endowment for Debts over $600 but less than $100,000 the Humanities may print, insert or which the Endowment determines can use any other effective method to affix

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pictures and biographical data relating 1179.11 Non-waiver of rights. to missing children on NEH mail. The 1179.12 Interest, penalties, and administra- contact person for matters related to tive costs. the implementation of this part is AUTHORITY: 5 U.S.C. 5514, E.O. 11809 (redes- Tracy J. Joselson, Esq. Office of the ignated E.O. 12107), and 5 CFR part 550, sub- General Counsel, National Endowment part K. for the Humanities, 1100 Pennsylvania SOURCE: 52 FR 28472, July 30, 1987, unless Avenue, NW., Washington, DC 20506, otherwise noted. (202) 786–0322. (b) The National Center for Missing § 1179.1 Purpose and scope. and Exploited Children will be the ex- (a) This regulation provides proce- clusive source from which the National dures for the collection by administra- Endowment for the Humanities will ob- tive offset of a Federal employee’s sal- tain photographic and biographical in- ary without his/her consent to satisfy formation for dissemination to the certain debts owed to the Federal gov- public. ernment. These regulations apply to all (c) It is estimated that the National Federal employees who owe debts to Endowment for the Humanities will the National Endowment for the Hu- incur no additional costs to implement manities (NEH) and to current employ- this program during its initial year. ees of the National Endowment for the This estimate is based on a review of Humanities who owe debts to other Endowment mailings that would maxi- Federal agencies. This regulation does mize dissemination of this informa- not apply when the employee consents tion. to recovery from his/her current pay [51 FR 20974, June 10, 1986] account. (b) This regulation does not apply to § 1178.2 Withdrawal of information. debts or claims arising under: (1) The Internal Revenue Code of 1954, The National Endowment for the Hu- as amended, 26 U.S.C. 1 et seq; manities will withdraw or exhaust the (2) The Social Security Act, 42 U.S.C. supply of all materials bearing the pho- 301 et seq; tograph and biographical information (3) The tariff laws of the United of a missing child within a three month States; or period from the date the National Cen- (4) Any case where a collection of a ter for Missing and Exploited Children debt by salary offset is explicitly pro- receives notice that the child has been vided for or prohibited by another stat- recovered or that the parents or guard- ute. ian of the child have revoked permis- (c) This regulation does not apply to sion to use the information. The Na- any adjustment to pay arising out of tional Center for Missing and Exploited an employee’s selection of coverage or Children will be responsible for imme- a change in coverage under a Federal diately notifying the agency contact, benefits program requiring periodic de- in writing, of the need to withdraw or ductions from pay if the amount to be remove this material. recovered was accumulated over four [51 FR 20974, June 10, 1986] pay periods or less. (d) This regulation does not preclude PART 1179—SALARY OFFSET the compromise, suspension, or termination of collection action where ap- Sec. propriate under the standards imple- 1179.1 Purpose and scope. menting the Federal Claims Collection 1179.2 Definitions. Act 31 U.S.C. 3711 et seq. 4 CFR parts 101 1179.3 Applicability. through 105 45 CFR part 1177. 1179.4 Notice requirements. (e) This regulation does not preclude 1179.5 Hearing. an employee from requesting waiver of 1179.6 Written decision. an overpayment under 5 U.S.C. 5584, 10 1179.7 Coordinating offset with another Fed- eral agency. U.S.C. 2774 or 32 U.S.C. 716 or in any 1179.8 Procedures for salary offset. way questioning the amount or valid- 1179.9 Refunds. ity of the debt by submitting a subse- 1179.10 Statute of limitations. quent claim to the General Accounting

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Office. This regulation does not pre- Chairperson of the National Endow- clude an employee from requesting a ment for the Humanities. waiver pursuant to other statutory Paying Agency means the agency that provisions applicable to the particular employes the individual who owes the debt being collected. debt and authorizes the payment of his/ (f) Matters not addressed in these her current pay. regulations should be reviewed in ac- Salary offset means an administrative cordance with the Federal Claims Col- offset to collect a debt pursuant to 5 lection Standards at 4 CFR 101.1 et seq. U.S.C. 5514 by deduction(s) at one or more officially established pay inter- § 1179.2 Definitions. vals from the current pay account of For the purposes of the part the fol- an employee without his/her consent. lowing definitions will apply: § 1179.3 Applicability. Agency means an executive agency as is defined at 5 U.S.C. 105 including the (a) These regulations are to be fol- U.S. Postal Service, the U.S. Postal lowed when: Commission, a military department as (1) The National Endowment for the defined at 5 U.S.C. 102, an agency or Humanities is owed a debt by an indi- court in the judicial branch, an agency vidual currently employed by another of the legislative branch including the Federal agency; U.S. Senate and House of Representa- (2) The National Endowment for the tives and other independent establish- Humanities is owed a debt by an indi- ments that are entities of the Federal vidual who is a current employee of the government. National Endowment for the Human- Chairperson means the Chairperson of ities; or the National Endowment for the Hu- (3) The National Endowment for the manities or the Chairperson’s designee. Humanities employs an individual who Creditor agency means the agency to owes a debt to another Federal agency. which the debt is owed. § 1179.4 Notice requirements. Debt means an amount owed to the United States from sources which in- (a) Deductions shall not be made un- clude loans insured or guaranteed by less the employee is provided with the United States and all other written notice signed by the Chair- amounts due the United States from person of the debt at least 30 days be- fees, leases, rents, royalties, services, fore salary offset commences. sales or real or personal property, over- (b) The written notice shall contain: payments, penalties, damages, inter- (1) A statement that the debt is owed ests, fines, forfeitures, (except those and an explanation of its nature, and arising under the Uniform Code of Mili- amount; tary Justice) and all other similar (2) The agency’s intention to collect sources. the debt by deducting from the employ- Disposable pay means the amount ee’s current disposable pay account; that remains from an employee’s Fed- (3) The amount, frequency proposed eral pay after required deductions for beginning date, and duration of the in- social security, Federal, state or local tended deduction(s); income tax, health insurance pre- (4) An explanation of interest, pen- miums, retirement contributions, life alties, and administrative charges, in- insurance premiums, Federal employ- cluding a statement that such charges ment taxes, and any other deductions will be assessed unless excused in ac- that are required to be withheld by cordance with the Federal Claims Col- law. lections Standards at 4 CFR 101.1 et Hearing official means an individual seq.; responsible for conducting any hearing (5) The employee’s right to inspect, with respect to the existence or request, or receive a copy of govern- amount of a debt claimed, and who ren- ment records relating to the debt; ders a decision on the basis of such (6) The opportunity to establish a hearing. A hearing official may not be written schedule for the voluntary re- under the supervision or control of the payment of the debt;

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(7) The right to a hearing conducted § 1179.6 Written decision. by an impartial hearing official; (a) The hearing official shall issue a (8) The methods and time period for written opinion no later than 60 days petitioning for hearings; after the hearing. (9) A statement that the timely filing (b) The written opinion will include: of a petition for a hearing will stay the a statement of the facts presented to commencement of collection pro- demonstrate the nature and origin of ceedings; the alleged debt; the hearing official’s (10) A statement that a final decision analysis, findings and conclusions; the on the hearing will be issued not later amount and validity of the debt, and than 60 days after the filing of the peti- the repayment schedule. tion requesting the hearing unless the employee requests and the hearing offi- § 1179.7 Coordinating offset with an- cial grants a delay in the proceedings; other Federal agency. (11) A statement that knowingly (a) The Endowment as the creditor false or frivolous statements, represen- agency. (1) When the Chairperson deter- tations, or evidence may subject the mines that an employee of a Federal employee to appropriate disciplinary agency owes a delinquent debt to the procedures; National Endowment for the Human- (12) A statement of other rights and ities, the Chairperson shall as appro- remedies available to the employee priate: under statutes or regulations gov- (i) Arrange for a hearing upon the erning the program for which the col- proper petitioning by the employee; lection is being made; and (ii) Certify in writing that the employee owes the debt, the amount and (13) Unless there are contractual or basis of the debt, the date on which statutory provisions to the contrary, a payment is due, the date the Govern- statement that amounts paid on or de- ment’s right to collect the debt ac- ducted for the debt which are later crued, and that Endowment regula- waived or found not owed to the United tions for salary offset have been ap- States will be prompty refunded to the proved by the Office of Personnel Man- employee. agement; (iii) If collection must be made in in- § 1179.5 Hearing. stallments, the Chairperson must ad- (a) Request for hearing. (1) An em- vise the paying agency of the amount ployee must file a petition for a hear- or percentage of disposable pay to be ing in accordance with the instructions collected in each installment; outlined in the agency’s notice to off- (iv) Advise the paying agency of the set. (2) A hearing may be requested by actions taken under 5 U.S.C. 5514(b) filing a written petition addressed to and provide the dates on which action the Chairperson of the National En- was taken unless the employee has dowment for the Humanities stating consented to salary offset in writing or why the employee disputes the exist- signed a statement acknowledging re- ence or amount of the debt. The peti- ceipt of procedures required by law. tion for a hearing must be received by The written consent or acknowledg- the Chairperson no later than fifteen ment must be sent to the paying agen- (15) calendar days after the date of the cy; notice to offset unless the employee (v) If the employee is in the process can show good cause for failing to meet of separating, the Endowment must the deadline date. submit its debt claim to the paying (b) Hearing procedures. (1) The hear- agency as provided in this part. The ing will be presided over by an impar- paying agency must certify any tial hearing official. (2) The hearing amounts already collected, notify the shall conform to procedures contained employee, and send a copy of the cer- in the Federal Claims Collection tification and notice of the employee’s Standards 4 CFR 102.3(c). The burden separation to the creditor agency. If shall be on the employee to dem- the paying agency is aware that the onstrate that the existence or the employee is entitled to Civil Service amount of the debt is in error. Retirement and Disability Fund or

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similar payments, it must certify to (c) Installment deductions will be the agency responsible for making such made over a period not greater than payments the amount of the debt and the anticipated period of employment. that the provisions of this part have The size of installment deductions been followed; and must bear a reasonable relationship to (vi) If the employee has already sepa- the size of the debt and the employee’s rated and all payments due from the ability to pay. The deduction for the paying agency have been paid, the pay intervals for any period must not Chairperson may request unless other- exceed 15% of disposable pay unless the wise prohibited, that money payable to employee has agreed in writing to a de- the employee from the Civil Service duction of a greater amount. Retirement and Disability Fund or (d) Unliquidated debts may be offset other similar funds be collected by ad- against any financial payment due to a ministrative offset. separated employee including but not (b) The Endowment as the paying agen- limited to final salary payment or cy. (1) Upon receipt of a properly cer- leave in accordance with 31 U.S.C. 3716. tified debt claim from another agency, deductions will be scheduled to begin § 1179.9 Refunds. at the next established pay interval. (a) The National Endowment for the The employee must receive written no- Humanities will refund promptly any tice that the National Endowment for amounts deducted to satisfy debts the Humanities has received a certified owed to the NEH when the debt is debt claim from the creditor agency, waived, found not owed to the NEH, or the amount of the debt, the date salary when directed by an administrative or offset will begin, and the amount of the judicial order. deduction(s). The National Endowment (b) The creditor agency will promptly for the Humanities shall not review the return any amounts deducted by NEH merits of the creditor agency’s deter- to satisfy debts owed to the creditor mination of the validity or the amount agency when the debt is waived, found of the certified claim. not owed, or when directed by an ad- (2) If the employee transfers to an- ministrative or judicial order. other agency after the creditor agency (c) Unless required by law, refunds has submitted its debt claim to the Na- under this section shall not bear inter- tional Endowment for the Humanities est. and before the debt is collected completely, the National Endowment for § 1179.10 Statute of limitations. the Humanities must certify the total amount collected. One copy of the cer- If a debt has been outstanding for tification must be furnished to the em- more than 10 years after the agency’s ployee. A copy must be furnished the right to collect the debt first accrued, creditor agency with notice of the em- the agency may not collect by salary ployee’s transfer. offset unless facts material to the Gov- ernment’s right to collect were not § 1179.8 Procedures for salary offset. known and could not reasonably have (a) Deductions to liquidate an em- been known by the official or officials ployee’s debt will be by the method and who were charged with the responsi- in the amount stated in the Chair- bility for discovery and collection of person’s notice of intention to offset as such debts. provided in § 1179.4. Debts will be collected in one lump sum where possible. § 1179.11 Non-waiver of rights. If the employee is financially unable to An employee’s involuntary payment pay in one lump sum, collection must of all or any part of a debt collected be made in installments. under these regulations will not be (b) Debts will be collected by deduc- construed as a waiver of any rights tion at officially established pay inter- that employee may have under 5 U.S.C. vals from an employee’s current pay 5514 or any other provision of contract account unless alternative arrange- law unless there are statutes or con- ments for repayment are made. tract(s) to the contrary.

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§ 1179.12 Interest, penalties, and ad- accordance with the Federal Claims ministrative costs. Collection Standards, 4 CFR 102.13. Charges may be assessed for interest, penalties, and administrative costs in

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

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

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

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

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

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to all allegations of discrimination on (i) Timely appeals shall be accepted the basis of handicap in programs or and processed by the head of the agen- activities conducted by the agency. cy. (b) The agency shall process com- (j) The head of the agency shall no- plaints alleging violations of section tify the complainant of the results of 504 with respect to employment accord- the appeal within 60 days of the receipt ing to the procedures established by of the request. If the head of the agen- the Equal Employment Opportunity cy determines that additional informa- Commission in 29 CFR part 1613 pursu- tion is needed from the complainant, ant to section 501 of the Rehabilitation he or she shall have 60 days from the Act of 1973 (29 U.S.C. 791). date of receipt of the additional infor- (c) The Director shall be responsible mation to make his or her determina- for coordinating implementation of tion on the appeal. this section. Complaints may be sent (k) The time limits cited in para- to Director, Institute of Museum and graphs (g) and (j) of this section may be Library Services, 955 L’Enfant Plaza extended with the permission of the North SW, Suite 4000, Washington, DC, Assistant Attorney General. 20024–2135. (l) The agency may delegate its au- (d) The agency shall accept and in- thority for conducting complaint investigate all complete complaints for vestigations to other Federal agencies, which it has jurisdiction. All complete except that the authority for making complaints must be filed within 180 the final determination may not be days of the alleged act of discrimina- delegated to another agency. tion. The agency may extend this time [51 FR 4578, 4579, Feb. 5, 1986, as amended at period for good cause. 51 FR 4578, Feb. 5, 1986; 84 FR 22945, May 21, (e) If the agency receives a complaint 2019] over which it does not have jurisdiction, it shall promptly notify the com- §§ 1181.171–1181.999 [Reserved] plainant and shall make reasonable efforts to refer the complaint to the ap- PART 1182—IMPLEMENTATION OF propriate government entity. THE PRIVACY ACT OF 1974 (f) The agency shall notify the Archi- tectural and Transportation Barriers Sec. Compliance Board upon receipt of any 1182.1 Purpose and scope of these regula- complaint alleging that a building or tions. facility that is subject to the Architec- 1182.2 Definitions. tural Barriers Act of 1968, as amended 1182.3 Inquiries about the Institute’s sys- (42 U.S.C. 4151–4157), or section 502 of tems of records or implementation of the the Rehabilitation Act of 1973, as Privacy Act. 1182.4 Procedures for notifying the public of amended (29 U.S.C. 792), is not readily the Institute’s systems of records. accessible to and usable by handi- 1182.5 Procedures for notifying government capped persons. entities of the Institute’s proposed (g) Within 180 days of the receipt of a changes to its systems of records. complete complaint for which it has ju- 1182.6 Limits that exist as to the contents risdiction, the agency shall notify the of the Institute’s systems of records. complainant of the results of the inves- 1182.7 Institute procedures for collecting in- tigation in a letter containing— formation from individuals for its records. (1) Findings of fact and conclusions 1182.8 Procedures for acquiring access to In- of law; stitute records pertaining to an indi- (2) A description of a remedy for each vidual. violation found; 1182.9 Identification required when request- (3) A notice of the right to appeal. ing access to Institute records pertaining (h) Appeals of the findings of fact and to an individual. 1182.10 Procedures for amending or cor- conclusions of law or remedies must be recting an individual’s Institute record. filed by the complainant within 90 days 1182.11 Procedures for appealing a refusal to of receipt from the agency of the letter amend or correct an Institute record. required by § 1181.170(g). The agency 1182.12 Fees charged to locate, review, or may extend this time for good cause. copy records.

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1182.13 Policies and procedures for Institute (c) Director means the Director of the disclosure of its records. Institute, or his or her designee; 1182.14 Procedures for maintaining accounts of disclosures made by the Institute from (d) General Counsel means the Gen- its systems of records. eral Counsel of the Institute, or his or 1182.15 Institute responsibility for main- her designee. taining adequate technical, physical, and (e) Individual means any citizen of security safeguards to prevent unauthor- the United States or an alien lawfully ized disclosure or destruction of manual admitted for permanent residence; and automatic record systems. 1182.16 Procedures to ensure that Institute (f) Institute means the Institute of employees involved with its systems of Museum and Library Services; records are familiar with the require- (g) Institute system means a system of ments of the Privacy Act. records maintained by the Institute; 1182.17 Institute systems of records that are covered by exemptions in the Privacy (h) Maintain means to collect, use, Act. store, or disseminate records, as well 1182.18 Penalties for obtaining an Institute as any combination of these record- record under false pretenses. keeping functions. The term also in- 1182.19 Restrictions that exist regarding the cludes exercise of control over and, release of mailing lists. therefore, responsibility and account- AUTHORITY: 5 U.S.C. 552a(f). ability for, systems of records; SOURCE: 71 FR 6375, Feb. 8, 2006, unless oth- (i) Privacy Act or Act means the Pri- erwise noted. vacy Act of 1974, as amended (5 U.S.C. 552a); § 1182.1 Purpose and scope of these regulations. (j) Record means any item, collection, or grouping of information about an in- The regulations in this part set forth dividual that is maintained by an agen- the Institute’s procedures under the cy and contains the individual’s name Privacy Act, as required by 5 U.S.C. or another identifying particular, such 552a(f), with respect to systems of as a number or symbol assigned to the records maintained by the Institute. These regulations establish procedures individual, or his or her fingerprint, by which an individual may exercise voice print, or photograph. The term the rights granted by the Privacy Act includes, but is not limited to, infor- to determine whether an Institute sys- mation regarding an individual’s edu- tem contains a record pertaining to cation, financial transactions, medical him or her; to gain access to such history, and criminal or employment records; and to request correction or history; amendment of such records. These reg- (k) Routine use means, with respect ulations also set identification require- to the disclosure of a record, the use of ments, prescribe fees to be charged for a record for a purpose that is compat- copying records, and establish exemp- ible with the purpose for which it was tions from certain requirements of the collected; Act for certain Institute systems or (l) Subject individual means the indi- components thereof: vidual to whom a record pertains. Uses of the terms ‘‘I’’, ‘‘you’’, ‘‘me’’, and § 1182.2 Definitions. other references to the reader of the The definitions of the Privacy Act regulations in this part are meant to apply to this part. In addition, as used apply to subject individuals as defined in this part: in this paragraph (l); and (a) Agency means any executive de- (m) System of records means a group of partment, military department, gov- records under the control of any agen- ernment corporation, or other establishment in the executive branch of the cy from which information is retrieved Federal government, including the Ex- by use of the name of the individual or ecutive Office of the President or any by some number, symbol, or other independent regulatory agency. identifying particular assigned to the (b) Business day means a calendar individual. day, excluding Saturdays, Sundays, and legal public holidays.

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§ 1182.3 Inquiries about the Institute’s ment to make an inquiry in person. In- systems of records or implementa- quiries should be presented in writing tion of the Privacy Act. and should specifically identify the In- Inquiries about the Institute’s sys- stitute systems involved. The Institute tems of records or implementation of will attempt to respond to an inquiry the Privacy Act should be sent to the regarding whether a record exists with- following address: Institute of Museum in 10 business days of receiving the in- and Library Services; Office of the Gen- quiry. eral Counsel, 955 L’Enfant Plaza North SW, Suite 4000, Washington, DC 20024– § 1182.5 Procedures for notifying gov- 2135. ernment entities of the Institute’s proposed changes to its systems of [84 FR 22945, May 21, 2019] records. § 1182.4 Procedures for notifying the When the Institute proposes to estab- public of the Institute’s systems of lish or significantly change any of its records. systems of records, it shall provide ade- (a) From time to time, the Institute quate advance notice of such proposal shall review its systems of records in to the United States House Committee the FEDERAL REGISTER, and publish, if on Oversight and Government Reform, necessary, any amendments to those the United States Senate Committee systems of records. Such publication on Homeland Security and Govern- shall not be made for those systems of mental Affairs, and the Office of Man- records maintained by other agencies agement and Budget (OMB), in order to while in the temporary custody of the permit an evaluation of the probable or Institute. potential effect of such proposal on the (b) At least 30 days prior to publica- privacy or other rights of individuals. tion of information under paragraph (a) This report will be submitted in ac- of this section, the Institute shall pub- cordance with guidelines provided by lish in the FEDERAL REGISTER a notice the OMB. of its intention to establish any new routine uses of any of its systems of [71 FR 6375, Feb. 8, 2006, as amended at 84 FR 22945, May 21, 2019] records, thereby providing the public an opportunity to comment on such § 1182.6 Limits that exist as to the con- uses. This notice published by the In- tents of the Institute’s systems of stitute shall contain the following: records. (1) The name of the system of records for which the routine use is to be es- (a) The Institute shall maintain only tablished; such information about an individual (2) The authority for the system; as is relevant and necessary to accom- (3) The purpose for which the record plish a purpose of the agency required is to be maintained; by statute or by executive order of the (4) The proposed routine use(s); President. In addition, the Institute (5) The purpose of the routine use(s); shall maintain all records that are used and in making determinations about any (6) The categories of recipients of individual with such accuracy, rel- such use. evance, timeliness, and completeness (c) Any request for additions to the as is reasonably necessary to ensure routine uses of Institute systems fairness to that individual in the mak- should be sent to the Office of the Gen- ing of any determination about him or eral Counsel (see § 1182.3). her. However, the Institute shall not be (d) Any individual who wishes to required to update retired records. know whether an Institute system con- (b) The Institute shall not maintain tains a record pertaining to him or her any record about any individual with should write to the Office of the Gen- respect to or describing how such indi- eral Counsel (see § 1182.3). Such individ- vidual exercises rights guaranteed by uals may also call the Office of the the First Amendment of the Constitu- General Counsel at (202) 653–4787 on tion of the United States, unless ex- business days, between the hours of 9 pressly authorized by statute or by the a.m. and 5 p.m., to schedule an appoint- subject individual, or unless pertinent

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to and within the scope of an author- copy made of any such record about ized law enforcement activity. you. Only one copy of each requested record will be supplied, based on the fee § 1182.7 Institute procedures for col- schedule in § 1182.12. lecting information from individ- (c) The Institute will comply prompt- uals for its records. ly with requests made in person at The Institute shall collect informa- scheduled appointments, if the require- tion, to the greatest extent prac- ments of this section are met and the ticable, directly from you when the in- records sought are immediately avail- formation may result in adverse deter- able. The institute will acknowledge, minations about your rights, benefits, within 10 business days, mailed re- or privileges under Federal programs. quests or personal requests for docu- In addition, the Institute shall inform ments that are not immediately avail- you of the following, either on the form able, and the information requested it uses to collect the information or on will be provided promptly thereafter. a separate form that you can retain, (d) If you make your request in per- when it asks you to supply informa- son at a scheduled appointment, you tion: may, upon your request, be accom- (a) The statutory or executive order panied by a person of your choice to re- authority that authorizes the solicita- view your record. The Institute may tion of the information; require that you furnish a written (b) Whether disclosure of such infor- statement authorizing discussion of mation is mandatory or voluntary; your record in the accompanying per- (c) The principal purpose(s) for which son’s presence. A record may be dis- the information is intended to be used; closed to a representative chosen by (d) The routine uses that may be you upon your proper written consent. made of the information, as published (e) Medical or psychological records pursuant to § 1182.4; and pertaining to you shall be disclosed to (e) Any effects on you of not pro- you unless, in the judgment of the In- viding all or any part of the required or stitute, access to such records might requested information. have an adverse effect upon you. When such a determination has been made, § 1182.8 Procedures for acquiring ac- the Institute may refuse to disclose cess to Institute records pertaining such information directly to you. The to an individual. Institute will, however, disclose this The following procedures apply to information to a licensed physician records that are contained in an Insti- designated by you in writing. tute system: (a) You may request review of § 1182.9 Identification required when records pertaining to you by writing to requesting access to Institute the Office of the General Counsel (see records pertaining to an individual. § 1182.3). You also may call the Office of The Institute shall require reason- the General Counsel at (202) 653–4787 on able identification of all individuals business days, between the hours of 9 who request access to records in an In- a.m. and 5 p.m., to schedule an appoint- stitute system to ensure that they are ment to make such a request in person. disclosed to the proper person. A request for records should be pre- (a) The amount of personal identi- sented in writing and should identify fication required will of necessity vary specifically the Institute systems in- with the sensitivity of the record involved. volved. In general, if you request dis- (b) Access to the record, or to any closure in person, you shall be required other information pertaining to you to show an identification card, such as that is contained in the system shall be a driver’s license, containing your pho- provided if the identification require- tograph and sample signature. How- ments of § 1182.9 are satisfied and the ever, with regard to records in Insti- record is determined otherwise to be tute systems that contain particularly releasable under the Privacy Act and sensitive and/or detailed personal in- these regulations. The Institute shall formation, the Institute reserves the provide you an opportunity to have a right to require additional means of

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

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business days of its receipt by the In- expended by the Institute to review a stitute, unless the Director, for good record. However, the Institute may cause shown, extends the 30-day period. charge fees where you request that a Should the Director extend the appeal copy be made of a record to which you period, you will be informed in writing have been granted access. Where a copy of the extension and the circumstances of the record must be made in order to of the delay. provide access to the record (e.g., com- (d) If the Director determines that puter printout where no screen reading the record that is the subject of the ap- is available), the copy will be made peal should be amended or corrected, available to you without cost. the record will be so modified, and you (b) Copies of records made by photo- will be informed in writing of the copy or similar process will be charged amendment or correction. Where an ac- to you at the rate of $0.10 per page. counting was made of prior disclosures Where records are not susceptible to of the record, all previous recipients of photocopying (e.g., punch cards, mag- the record will be informed of the cor- netic tapes, or oversize materials), you rective action taken. will be charged actual cost as deter- (e) If your appeal is denied, you will mined on a case-by-case basis. A copy- be informed in writing of the following: ing fee totaling $3.00 or less shall be (1) The denial and the reasons for the waived, but the copying fees for con- denial; temporaneous requests by the same in- (2) That you may submit to the Insti- dividual shall be aggregated to deter- tute a concise statement setting forth mine the total fee. the reasons for your disagreement as to (c) Special and additional services the disputed record. Under the proce- provided at your request, such as cer- dures set forth in paragraph (f) of this tification or authentication, postal in- section, your statement will be dis- surance, and special mailing arrange- closed whenever the disputed record is ment costs, will be charged to you. disclosed; and (d) A copying fee shall not be charged (3) That you may seek judicial review of the Director’s determination under 5 or, alternatively, it may be reduced, U.S.C. 552a(g)(1)(a). when the General Counsel determines, (f) Whenever you submit a statement based on a petition, that the peti- of disagreement to the Institute in ac- tioning individual is indigent and that cordance with paragraph (e)(2) of this the Institute’s resources permit a waiv- section, the record will be annotated to er of all or part of the fee. indicate that it is disputed. In any sub- (e) All fees shall be paid before any sequent disclosure, a copy of your copying request is undertaken. Pay- statement of disagreement will be dis- ments shall be made by check or closed with the record. If the Institute money order payable to the ‘‘Institute deems it appropriate, a concise state- of Museum and Library Services.’’ ment of the Director’s reasons for denying our appeal also may be disclosed § 1182.13 Policies and procedures for Institute disclosure of its records. with the record. While you will have access to this statement of the Direc- (a) The Institute will not disclose tor’s reasons for denying your appeal, any record that is contained in a sys- such statement will not be subject to tem of records to any person or to an- correction or amendment. Where an ac- other agency, except pursuant to a counting was made of prior disclosures written request by or with the prior of the record, all previous recipients of written consent of the subject indi- the record will be provided a copy of vidual, unless disclosure of the record your statement of disagreement, as is: well as any statement of the Director’s (1) To those officers or employees of reasons for denying your appeal. the Institute who maintain the record and who have a need for the record in § 1182.12 Fees charged to locate, re- the performance of their official duties; view, or copy records. (2) Required under the provisions of (a) The Institute shall charge no fees the Freedom of Information Act (5 for search time or for any other time U.S.C. 552). Records required to be

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made available by the Freedom of In- (9) To either House of Congress, or, to formation Act will be released in re- the extent of matter within its juris- sponse to a request to the Institute for- dictions, any committee or sub- mulated in accordance with the Na- committee thereof, any joint com- tional Foundation on the Arts and the mittee of Congress, or subcommittee of Humanities regulations published at 45 any such joint committee; CFR part 1184; (10) To the Comptroller General, or (3) For a routine use as published in any of his or her authorized representa- the annual notice in the FEDERAL REG- tives, in the course of the performance ISTER; of official duties of the General Ac- (4) To the Census Bureau for purpose counting Office; of planning or carrying out a census; (11) To a consumer reporting agency survey, or related activity pursuant to in accordance with 31 U.S.C. 3711(e); or the provisions of Title 13 of the United (12) Pursuant to an order of a court of States Code; competent jurisdiction. In the event (5) To a recipient who has provided that any record is disclosed under such the Institute with adequate advance compulsory legal process, the Institute written assurance that the record will shall make reasonable efforts to notify be used solely as a statistical research the subject individual after the process or reporting record, and the record is becomes a matter of public record. to be transferred in a form that is not (b) Before disseminating any record individually identifiable; about any individual to any person (6) To the National Archives and other than an Institute employee, the Records Administration as a record Institute shall make reasonable efforts that has sufficient historical or other to ensure that such records are, or at value to warrant its continued preser- the time they were collected were, ac- vation by the United States govern- curate, complete, timely, and relevant ment, or for evaluation by the Archi- for Institute purposes. This paragraph vist of the United States, or his or her (b) does not apply to dissemination designee, to determine whether the made pursuant to the provisions of the record has such value; Freedom of Information Act (5 U.S.C. (7) To another agency or to an instru- 552) and paragraph (a)(2) of this sec- mentality of any governmental juris- tion. diction within or under the control of [71 FR 6375, Feb. 8, 2006, as amended at 84 FR the United States for a civil or crimi- 22945, May 21, 2019] nal law enforcement activity, if the activity is authorized by law, and if the § 1182.14 Procedures for maintaining head of the agency or instrumentality accounts of disclosures made by the has made a written request to the In- Institute from its systems of stitute for such records specifying the records. particular portion desired and the law (a) The Office of the General Counsel enforcement activity for which the shall maintain a log containing the record is sought. The Institute also date, nature, and purpose of each dis- may disclose such a record to a law en- closure of a record to any person or to forcement agency on its own initiative another agency. Such accounting also in situations in which criminal conduct shall contain the name and address of is suspected, provided that such disclo- the person or agency to whom each dis- sure has been established as a routine closure was made. This log need not in- use, or in situations in which the mis- clude disclosures made to Institute em- conduct is directly related to the pur- ployees in the course of their official pose for which the record is main- duties, or pursuant to the provisions of tained; the Freedom of Information Act (5 (8) To a person pursuant to a showing U.S.C. 552). of compelling circumstances affecting (b) The Institute shall retain the ac- the health or safety of an individual if, counting of each disclosure for at least upon such disclosure, notification is five years after the accounting is made transmitted to the last known address or for the life of the record that was of such individual; disclosed, whichever is longer.

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(c) The Institute shall make the ac- (3) Access to and use of a system of counting of disclosures of a record per- records shall be permitted only to pertaining to you available to you at your sons whose duties require such access request. Such a request should be made within the Institute, for routine uses in accordance with the procedures set as defined in § 1182.2 as to any given forth in § 1182.8. This paragraph (c) does system, or for such other uses as may not apply to disclosures made for law be provided in this part. enforcement purposes under 5 U.S.C. (4) Other than for access within the 552a(b)(7) and § 1182.13(a)(7). Institute to persons needing such § 1182.15 Institute responsibility for records in the performance of their of- maintaining adequate technical, ficial duties or routine uses as defined physical, and security safeguards to in § 1182.1, or such other uses as pro- prevent unauthorized disclosure or vided in this part, access to records destruction of manual and auto- within a system of records shall be per- matic record systems. mitted only to the individual to whom The Chief Information Officer has the the record pertains or upon his or her responsibility of maintaining adequate written request to the General Counsel. technical, physical, and security safe- (5) Access to areas where a system of guards to prevent unauthorized disclo- records is stored will be limited to sure or destruction of manual and those persons whose duties require automatic record systems. These secu- work in such areas. There shall be an rity safeguards shall apply to all sys- accounting of the removal of any tems in which identifiable personal data are processed or maintained, in- records from such storage areas uti- cluding all reports and outputs from lizing a log, as directed by the Chief In- such systems that contain identifiable formation Officer. The log shall be personal information. Such safeguards maintained at all times. must be sufficient to prevent negligent, (6) The Institute shall ensure that all accidental, or unintentional disclosure, persons whose duties require access to modification or destruction of any per- and use of records contained in a sys- sonal records or data, and must fur- tem of records are adequately trained thermore minimize, to the extent prac- to protect the security and privacy of ticable, the risk that skilled techni- such records. cians or knowledgeable persons could (7) The disposal and destruction of improperly obtain access to modify or records within a system of records destroy such records or data and shall shall be in accordance with rules pro- further insure against such casual mulgated by the General Services Ad- entry by unskilled persons without of- ministration. ficial reasons for access to such records (b) Automated systems. (1) Identifiable or data. personal information may be processed, (a) Manual systems. (1) Records con- stored, or maintained by automated tained in a system of records as defined data systems only where facilities or in this part may be used, held, or stored only where facilities are ade- conditions are adequate to prevent un- quate to prevent unauthorized access authorized access to such systems in by persons within or outside the Insti- any form. Whenever such data, whether tute. contained in punch cards, magnetic (2) All records, when not under the tapes, or discs, are not under the per- personal control of the employees au- sonal control of an authorized person, thorized to use the records, must be such information must be stored in a stored in a locked filing cabinet. Some locked or secured room, or in such systems of records are not of such con- other facility having greater safe- fidential nature that their disclosure guards than those provided for in this would constitute a harm to an indi- part. vidual who is the subject of such (2) Access to and use of identifiable record. However, records in this cat- personal data associated with auto- egory also shall be maintained in mated data systems shall be limited to locked filing cabinets or maintained in those persons whose duties require a secured room with a locking door. such access. Proper control of personal

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data in any form associated with auto- and (2); (e)(4)(A) through (F); (e)(6), (7), mated data systems shall be main- (9), (10), and (11); and (i), insofar as that tained at all times, including mainte- Institute system contains information nance of accountability records show- pertaining to criminal law enforcement ing disposition of input and output doc- investigations. uments. (b) Pursuant to and limited by 5 (3) All persons whose duties require U.S.C. 552a(k)(2), the Institute system access to processing and maintenance entitled ‘‘Office of the Inspector Gen- of identifiable personal data and auto- eral Investigative Files’’ shall be ex- mated systems shall be adequately empted from 5 U.S.C. 552a(c)(3); (d); trained in the security and privacy of (e)(1); (e)(4)(G), (H), and (I); and (f), in- personal data. sofar as that Institute system consists (4) The disposal and disposition of of investigatory material compiled for identifiable personal data and auto- law enforcement purposes, other than mated systems shall be done by shred- material within the scope of the ex- ding, burning, or, in the case of tapes emption at 5 U.S.C. 552a(j)(2). or discs, degaussing, in accordance (c) The Institute system entitled with regulations of the General Serv- ‘‘Office of the Inspector General Inves- ices Administration or other appro- tigative Files’’ is exempt from the propriate authority. visions of the Privacy Act noted in this [71 FR 6375, Feb. 8, 2006, as amended at 84 FR section because their application 22945, May 21, 2019] might alert investigation subjects to the existence or scope of investiga- § 1182.16 Procedures to ensure that In- tions; lead to suppression, alteration, stitute employees involved with its fabrication, or destruction of evidence; systems of records are familiar with disclose investigative techniques or the requirements of the Privacy Act. procedures; reduce the cooperativeness or safety of witnesses; or otherwise im- (a) The Director shall ensure that all pair investigations. persons involved in the design, development, operation, or maintenance of § 1182.18 Penalties for obtaining an In- any Institute system are informed of stitute record under false pre- all requirements necessary to protect tenses. the privacy of subject individuals. The (a) Under 5 U.S.C. 552a(i)(3), any per- Director also shall ensure that all In- son who knowingly and willfully re- stitute employees having access to quests or obtains any record from the records receive adequate training in Institute concerning an individual their protection, and that records have under false pretenses shall be guilty of adequate and proper storage with suffi- a misdemeanor and fined not more cient security to assure the privacy of than $5,000. such records. (b) A person who falsely or fraudu- (b) All employees shall be informed lently attempts to obtain records of the civil remedies provided under 5 under the Privacy Act also may be sub- U.S.C. 552a(g)(1) and other implications ject to prosecution under other stat- of the Privacy Act, and the fact that utes, including 18 U.S.C. 494, 495, and the Institute may be subject to civil 1001. remedies for failure to comply with the provisions of the Privacy Act and the § 1182.19 Restrictions that exist re- regulations in this part. garding the release of mailing lists. § 1182.17 Institute systems of records The Institute may not sell or rent an that are covered by exemptions in individual’s name and address unless the Privacy Act. such action specifically is authorized (a) Pursuant to and limited by 5 by law. This section shall not be con- U.S.C. 552a(j)(2), the Institute system strued to require the withholding of entitled ‘‘Office of the Inspector Gen- names and addresses otherwise per- eral Investigative Files’’ shall be ex- mitted to be made public. empted from the provisions of 5 U.S.C. 552a, except for subsections (b); (c)(1) PART 1183 [RESERVED] 515

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PART 1184—IMPLEMENTATION OF protected by a FOIA exemption or oth- THE FREEDOM OF INFORMATION erwise be prohibited by law. ACT (b) Records available at the IMLS FOIA Electronic Reading Room. IMLS makes records available on its website Read- Sec. 1184.1 What are the purpose and scope of ing Room in accordance with 5 U.S.C. this part? 552(a)(2), as amended, as well as other 1184.2 What are IMLS’s general policies records that have been requested three with respect to FOIA? or more times or that, because of the 1184.3 How do I request records? nature of their subject matter, are 1184.4 When will I receive a response to my likely to be the subject of FOIA re- request? quests. IMLS establishes categories of 1184.5 How will my request be processed? records that can be disclosed regularly 1184.6 How can I appeal a denial of my re- and proactively identifies and discloses quest? 1184.7 How will fees be charged? additional records of interest to the 1184.8 How can I address concerns regarding public. To save time and money, and my request? maximize efficiency, IMLS strongly 1184.9 What are IMLS’ policies regarding urges individuals who seek information disclosure of confidential business infor- from IMLS to review documents avail- mation? able at the IMLS FOIA Electronic 1184.10 Disclaimer. Reading Room before submitting a AUTHORITY: 5 U.S.C. 552. FOIA request. (c) Definitions. For purposes of this SOURCE: 79 FR 9423, Feb. 19, 2014, unless otherwise noted. part, IMLS adopts all of the terms defined in the Freedom of Information § 1184.1 What are the purpose and Act, and the OMB Guidelines, unless scope of this part? otherwise defined in this part. (a) This part describe how the Insti- (1) Commercial use request. A request tute of Museum and Library Services by or on behalf of anyone who seeks in- (IMLS) processes requests for records formation for a use or purpose that fur- under the Freedom of Information Act thers his or her commercial, trade, or (FOIA), 5 U.S.C. 552 as amended. The profit interests, which can include fur- regulations in this part apply only to thering those interests through litiga- records that are both: tion. (2) Direct costs. Those expenses that (1) Created or obtained by IMLS; and IMLS actually incurs in searching for (2) Under the agency’s control at the and duplicating (and, in the case of time of the FOIA request. commercial use requests, reviewing) (b) The rules in this part should be records in order to respond to a FOIA read in conjunction with the text of request. Direct costs include, for exam- the FOIA and the Uniform Freedom of ple, the salary of the employee per- Information Fee Act Schedule and forming the work (the basic rate of pay Guidelines published by the Office of for the employee, plus 16.1 percent of Management and Budget (the ‘‘OMB that rate to cover benefits) and the Guidelines’’). Requests made by indi- cost of operating duplication machin- viduals for records about themselves ery. Not included in direct costs are under the Privacy Act of 1974, 5 U.S.C. overhead expenses such as the costs of 552a, are processed under 45 CFR part space and heating or lighting of the fa- 1182 as well as under this part. cility in which the records are kept. [84 FR 22945, May 21, 2019] (3) Duplication. The making of a copy of a record, or of the information con- § 1184.2 What are IMLS’s general poli- tained in it, necessary to respond to a cies with respect to FOIA? FOIA request. Copies can take the form (a) Presumption of openness. IMLS ad- of paper, audiovisual materials, or ministers the FOIA with a presumption electronic records (for example, mag- of openness. Under this presumption, netic tape or disk), among others. IMLS makes discretionary disclosures (4) Educational institution. Any school of records whenever such disclosure that operates a program of scholarly would not foreseeably harm an interest research. A requester in this category

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must show that the request is author- ty will be considered as a representa- ized by, and is made under the auspices tive of the news media. A publishing of, a qualifying institution and that contract would provide the clearest the records are not sought for a com- evidence that publication is expected; mercial use, but rather are sought to however, agencies can also consider a further scholarly research. requester’s past publication record in (5) Fee waiver. The waiver or reduc- making this determination. Agencies tion of processing fees if a requester will advise requesters of their place- can demonstrate that certain statutory ment in this category. standards are satisfied including that (9) Requester Category. One of the the information is in the public inter- three categories that IMLS places re- est and is not requested for a commer- questers in for the purpose of deter- cial interest. mining whether a requester will be (6) FOIA Public Liaison. An IMLS offi- charged fees for search, review and du- cial who is responsible for assisting in plication, and include commercial re- reducing delays, increasing trans- questers; non-commercial scientific or parency and understanding of the sta- educational institutions or news media tus of FOIA requests, and assisting in requesters, and all other requesters. the resolution of disputes. (10) Review. The examination of a (7) Non-commercial scientific institu- record located in response to a request tion. An institution that is not oper- to determine whether any portion of it ated on a ‘‘commercial’’ basis, as de- is exempt from disclosure. Review time fined in paragraph (c)(1) of this section, includes all of the processing that is and that is operated solely for the pur- necessary to prepare any record for dispose of conducting scientific research closure, including, as applicable, re- the results of which are not intended to dacting portions of the record and promote any particular product or in- marking the appropriate exemptions. dustry. A requester in this category Review costs are properly charged even must show that the request is author- if a record ultimately is not disclosed. ized by and is made under the auspices Review time also includes time spent of a qualifying institution and that the both obtaining and considering any for- records are sought to further scientific mal objection to disclosure made by a research and not for a commercial use. confidential business information sub- (8) Representative of the news media. mitter under § 1184.9 but it does not in- Representative of the news media is clude time spent resolving general any person or entity that gathers in- legal or policy issues regarding the ap- formation of potential interest to a plicability of exemptions. segment of the public, uses its editorial (11) Search. The process of looking for skills to turn the raw materials into a and retrieving records or information distinct work, and distributes that responsive to a FOIA request. Search work to an audience. The term ‘‘news’’ time includes page-by-page or line-by- means information that is about cur- line identification of information with- rent events or that would be of current in records; and the reasonable efforts interest to the public. Examples of expended to locate and retrieve infor- news media entities include television mation from both hard copy and elec- or radio stations that broadcast tronic records. ‘‘news’’ to the public at large and pub- (12) Working day. A regular Federal lishers of periodicals that disseminate work day constitutes a working day. It ‘‘news’’ and make their products avail- does not include Saturdays, Sundays, able through a variety of means to the or Federal holidays. general public, including news organizations that disseminate solely on the [79 FR 9423, Feb. 19, 2014, as amended at 84 internet. A request for records sup- FR 22945, May 21, 2019] porting the news-dissemination function of the requester will not be consid- § 1184.3 How do I request records? ered to be for a commercial use. (a) Where to send a request. You may ‘‘Freelance’’ journalists who dem- make a FOIA request for IMLS records onstrate a solid basis for expecting by completing the online prompts in publication through a news media enti- the FOIA Online Portal via FOIA.gov

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or via https://www.imls.gov/about/foia-re- (a) and (b) of this section to be a per- quest/form or by sending an email to fected request. The agency considers a [email protected] or by submitting a re- request to be received on the date that quest in writing via regular U.S. Mail the request is perfected. addressed directly to the FOIA Public [79 FR 9423, Feb. 19, 2014, as amended at 84 Liaison, Institute of Museum and Li- FR 22946, May 21, 2019] brary Services, 955 L’Enfant Plaza North SW, Suite 4000, Washington, DC § 1184.4 When will I receive a response 20024–2135. Requests may also be sent in to my request? writing via facsimile to the FOIA Offi- (a) Responses within 20 working days. cer at (202) 653–4625. IMLS will ordinarily grant, partially (b) Form of request. Your FOIA re- grant, or deny your request for records quest need not be in any particular for- within 20 working days after receiving mat, but it must be in writing, include a perfected request. your name and mailing address, and (b) Extensions of response time in ‘‘un- should be clearly identified as a Free- usual circumstances’’. (1) Where the dom of Information Act or ‘‘FOIA’’ re- time limits for processing a request quest. You must describe the records cannot be met because of ‘‘unusual cir- you seek with sufficient specificity to cumstances,’’ as defined in the FOIA, enable the agency to identify and lo- the FOIA Officer will notify you as cate the records, including, if possible, soon as practicable in writing of the dates, subjects, titles, or authors of the unusual circumstances and may extend records requested. Before submitting a the response period for up to ten (10) request, you may contact IMLS’s FOIA working days. contact or FOIA Officer to discuss the (2) Where the extension is for more records you seek and to receive assist- than ten (10) working days, the FOIA ance in describing the records. If upon Officer will provide you with an oppor- receiving your request IMLS deter- tunity either to modify the request so mines that it does not reasonably de- that it may be processed within the scribe the requested records, IMLS will time limits or to arrange an agreed advise you what additional information upon alternative time period for proc- is required to perfect your request, or essing the request or a modified re- why your request is otherwise insuffi- quest. cient. You should also indicate if you (c) Expedited processing. (1) IMLS have a preferred form or format in must process requests and appeals on which you would like to receive the re- an expedited basis whenever it is deter- quested records. mined that they involve: (c) Electronic format records. IMLS (i) Circumstances in which the lack will provide the responsive records in of expedited processing could reason- the form or format you request if the ably be expected to pose an imminent records are readily reproducible by threat to the life or physical safety of IMLS in that form or format. IMLS an individual; or will make reasonable efforts to main- (ii) An urgency to inform the public tain its records in forms or formats about an actual or alleged Federal Gov- that are reproducible for the purpose of ernment activity, if made by a person disclosure. IMLS may disclose records who is primarily engaged in dissemi- in electronic format if the records can nating information. be downloaded or transferred intact (2) A request for expedited processing through electronic media currently in may be made at any time. When mak- use by the agency. In responding to a ing a request for expedited processing request for records, IMLS will make of an administrative appeal, the re- reasonable efforts to search for the quest should be submitted as required records in electronic form or format, by § 1184.6. except where such efforts would signifi- (3) A requester who seeks expedited cantly interfere with the operation of processing must submit a statement, the agency’s automated information certified to be true and correct, ex- system(s). plaining in detail the basis for making (d) Date of receipt. IMLS considers a the request for expedited processing. request that complies with paragraphs For example, under paragraph (c)(1)(ii)

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of this section, a requester who is not IMLS may provide interim responses, a full-time member of the news media releasing the records on a rolling basis. must establish that the requester is a (d) Referrals of requests. Whenever person whose primary professional ac- IMLS refers all or any part of the re- tivity or occupation is information dis- sponsibility for responding to a request semination, though it need not be the to another agency, IMLS will notify requester’s sole occupation. Such a re- you of the name of the agency to which quester also must establish a par- the request has been referred. ticular urgency to inform the public (e) Grants of requests. When respon- about the government activity in- sive records are located, IMLS will volved in the request—one that extends apply a presumption of disclosure and beyond the public’s right to know openness. If IMLS decides to grant about government activity generally. your request in whole or in part, the The existence of numerous articles agency will notify you in writing. The published on a given subject can be notice will include any applicable fee helpful in establishing the requirement and the agency will disclose records to that there be an ‘‘urgency to inform’’ you promptly upon payment of applica- the public on the topic. As a matter of ble fees. IMLS will mark or annotate administrative discretion, IMLS may any records disclosed in part to show waive the formal certification require- the amount, the location, and the ment. FOIA exemptions under which the re- daction is made, unless doing so would (4) IMLS must notify the requester harm an interest protected by an appli- within 10 calendar days of the receipt cable exemption. of a request for expedited processing of (f) Denials of requests. Denials of your its decision whether to grant or deny FOIA request, either whole or in part, expedited processing. If expedited proc- will be made in writing by the FOIA essing is granted, the request must be Public Liaison. IMLS will inform you given priority, placed in the processing of the reasons for the denial, including track for expedited requests, and must any FOIA exemption(s) applied by the be processed as soon as practicable. If a agency in denying the request, and no- request for expedited processing is de- tify you of your right to appeal the denied, IMLS must act on any appeal of termination as described in § 1184.6. that decision expeditiously. IMLS will, as appropriate, provide a [79 FR 9423, Feb. 19, 2014, as amended at 84 brief description of the information FR 22946, May 21, 2019] being withheld. In addition, IMLS will provide information about the medi- § 1184.5 How will my request be proc- ation services provided by the Office of essed? Government Information Services of (a) Acknowledgment of requests. IMLS the National Archives and Records Ad- will assign a tracking number to your ministration. request and will, as soon as prac- [79 FR 9423, Feb. 19, 2014, as amended at 84 ticable, advise you in writing of this FR 22946, May 21, 2019] tracking number, and, as appropriate, a brief description of the request, and § 1184.6 How can I appeal a denial of relevant IMLS contact information, in- my request? cluding the name and contact informa- (a) Submission of an appeal. If your tion of the FOIA Public Liaison. FOIA request has been denied in whole (b) Clarifications. If there is any un- or in part, or if the agency has not certainty, IMLS will attempt to com- found any records in response to your municate with you to clarify the scope request, you may file an appeal no of your request. later than ninety (90) calendar days fol- (c) Estimated dates of completion and lowing the date of the notification of interim responses. Upon request, IMLS denial. Your appeal must include a de- will provide an estimated date by scription of the initial request, the rea- which the agency expects to provide a son for the appeal, and why you believe response to the requester. If a request the agency’s response was incorrect. involves a voluminous amount of mate- Your appeal must be in writing, signed, rial, or searches in multiple locations, and filed with the IMLS Director, c/o

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Office of the General Counsel, 955 for searching for and duplicating the L’Enfant Plaza North SW, Suite 4000, requested records. Washington, DC 20024–2135. Appeals (5) Status of Requester. IMLS’ decision may also be sent via email to regarding the categorization of a re- [email protected], or via facsimile to (202) quester will be made on a case-by-case 653–4625. basis based upon the requester’s in- (b) Decisions on appeal. The Director tended use of the requested records. of IMLS will make a determination (b) General fee schedule. The following with respect to your appeal within fees will be charged in accordance with twenty (20) working days after the paragraph (a) of this section. agency has received the appeal, except (1) Manual search fee. The fee charged as provided in § 1184.4(b). If the decision will be the salary rate(s) (i.e., basic pay on appeal is favorable to you, the Di- plus 16.1 percent) of the employee(s) rector of IMLS will take action to as- conducting the search. sure prompt dispatch of the records to (2) Computer search fee. The fee you. If the decision on appeal is ad- charged will be the actual direct cost verse to you, in whole or in part, you of providing the service including the will be informed by the Director of cost of operating the central processing IMLS of the reasons for the decision unit for the operating time that is di- and of the provisions for judicial re- rectly attributed to searching for view set forth in the FOIA. As appro- records responsive to a request and the priate, IMLS will advise you in a re- operator/programmer salary sponse to an appeal that the 2007 FOIA apportionable to the search. amendments created the Office of Gov- (3) Review fee. The fee charged will ernment Information Services to offer equal the salary rate(s) (i.e., basic pay mediation services to resolve disputes plus 16.1 percent) of the employee(s) between FOIA requesters and Federal conducting the review. agencies as a non-exclusive alternative (4) Duplication fee. Copies of records to litigation. photocopied on an 81⁄2 × 11 inch sheet of [79 FR 9423, Feb. 19, 2014, as amended at 84 paper will be provided at $.10 per page. FR 22946, May 21, 2019] For duplication of other materials, the charge will be the direct cost of dupli- § 1184.7 How will fees be charged? cation. (a) In general. IMLS will use the most (c) Restrictions on charging fees. (1) Ex- efficient and least costly methods to cept for records provided in response to comply with FOIA requests. IMLS will a commercial use request, the first 100 charge fees to recover all allowable di- pages of duplication and the first two rect costs incurred, and may charge (2) hours of search time will be pro- fees for searching for and reviewing re- vided at no charge. quested records even if the records are (2) Fees will not be charged to any re- determined to be exempt from disclo- quester, including commercial use re- sure or cannot be located. IMLS will questers, if the total amount cal- charge fees in accordance with the cat- culated under this section is less than egory of the FOIA requester. $25. (1) Commercial use requests. IMLS will (d) Fees likely to exceed $25. If the assess charges to recover the full direct total fee charges are likely to exceed cost of searching for, reviewing and du- $25, IMLS will notify you of the esti- plicating the requested records. IMLS mated amount of the charges, includ- may recover the cost of searching for ing a breakdown of the fees for search, and reviewing records even if there is review and/or duplication, unless you ultimately no disclosure. have indicated in advance that you are (2) Requests from educational and non- willing to pay higher fees and will offer commercial scientific institutions. IMLS you an opportunity to confer with the will charge for duplication costs. FOIA Public Liaison to revise the re- (3) Requests by representatives of the quest to meet your needs at a lower news media. IMLS will charge for dupli- cost. cation costs. (e) Waiver or reduction of fees. (1) (4) All other requests. IMLS will assess IMLS will disclose records without charges to recover the full direct cost charge or at a reduced charge if the

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agency determines that disclosure of (B) You have failed previously to pay the information is in the public inter- a fee in a timely fashion. est because it is likely to contribute (ii) When IMLS requests an advance significantly to public understanding payment, the time limits described in of the operations or activities of the section (a)(6) of the FOIA will begin government and is not primarily in the only after IMLS has received advanced commercial interest of the requester. full payment in full. (2) IMLS will use the following fac- (g) Failure to comply. In the absence tors to determine whether a fee will be of unusual or exceptional cir- waived or reduced: cumstances, IMLS will not assess fees (i) The subject of the request. Whether if the agency fails to comply with any the subject of the requested records time limit set forth in this part, unless concerns the ‘‘operations or activities the agency has determined that un- of the government’’; usual circumstances apply and more (ii) The informative value of the infor- than 5,000 pages are necessary to re- mation to be disclosed. Whether the dis- spond to the request. closure is ‘‘likely to contribute’’ to an (h) IMLS may waive fees in understanding of government oper- Waivers. ations or activities; other circumstances solely at its discretion, consistent with 5 U.S.C. 552. (iii) The contribution to an understanding of the subject by the general [79 FR 9423, Feb. 19, 2014, as amended at 84 public likely to result from disclosure. FR 22946, May 21, 2019] Whether disclosure of the requested information will contribute to ‘‘public § 1184.8 How can I address concerns understanding’’; regarding my request? (iv) The significance of the contribution (a) FOIA Public Liaison. If you have to public understanding. Whether disclo- questions or concerns regarding your sure is likely to contribute ‘‘signifi- request, your first point of contact cantly’’ to public understanding of gov- should be the FOIA Public Liaison, ernment operations or activities; who is responsible for reducing delays, (v) The existence and magnitude of a increasing transparency and under- commercial interest. Whether you have a standing of the status of requests, and commercial interest that would be assisting in the resolution of disputes. furthered by the disclosure; and if so (b) Additional resource. The National (vi) The primary interest in disclosure. Archives and Records Administration Whether the magnitude of your com- (NARA), Office of Government Infor- mercial interest is sufficiently large in mation Services (OGIS) offers non- comparison with the public interest in compulsory, non-binding mediation disclosure, that disclosure is primarily in the your commercial interest. services to help resolve FOIA disputes. If you seek information regarding (f) Assessment and collection of fees. (1) If you fail to pay your bill within thir- OGIS and/or the services it offers, ty (30) days, interest will accrue from please contact OGIS directly at Office the date the bill was mailed, and will of Government Information Services, be assessed at the rate prescribed in 31 National Archives and Records Admin- U.S.C. 3717. istration, 8601 Adelphi Road-OGIS, Col- (2) If IMLS reasonably believes that lege Park, MD 20740–6001, Email: you are attempting to divide a request [email protected], Phone: (202) 741–5770 or into a series of requests to avoid the toll free (877) 684–6448, Fax: (202) 741– assessment of fees, the agency may ag- 5769. This information is provided as a gregate such requests and charge ac- public service only. By providing this cordingly. information, IMLS does not commit to (3) Advance payment. (i) Advance pay- refer disputes to OGIS, or to defer to ment of fees will generally not be re- OGIS’ mediation decision in particular quired. IMLS may request an advance cases. payment of the fee, however, if: [79 FR 9423, Feb. 19, 2014, as amended at 84 (A) The charges are likely to exceed FR 22947, May 21, 2019] $250; or

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

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(2) The information lawfully has been tice and an opportunity to object to published or has been officially made disclosure under paragraph (d) of this available to the public; section, IMLS will also notify the re- (3) Disclosure of the information is quester(s). If IMLS notifies a submitter required by statute (other than FOIA) of its intent to disclose requested infor- or by a regulation issued in accordance mation under paragraph (g) of this sec- with the requirements of Executive tion, IMLS will also notify the re- Order 12600; or quester(s). If a submitter files a lawsuit (4) The designation made by the sub- seeking to prevent the disclosure of mitter under paragraph (c) of this sec- confidential business information, tion appears obviously frivolous—ex- IMLS will notify the requester(s) of the cept that, in such a case, IMLS will, filing of the lawsuit. within a reasonable time prior to a specified disclosure date, give the sub- [79 FR 9423, Feb. 19, 2014, as amended at 84 FR 22947, May 21, 2019] mitter written notice of any final decision to disclose the information. § 1184.10 Disclaimer. (i) Notice of FOIA lawsuit. If a requester files a lawsuit seeking to com- Nothing in the regulations in this pel the disclosure of confidential busi- part will be construed to entitle any ness information, IMLS will promptly person, as a right, to any service or to notify the submitter of the filing of the the disclosure of any record to which lawsuit. such person is not entitled under FOIA. (j) Corresponding notice to requesters. If IMLS provides a submitter with no- PARTS 1185–1199 [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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L Rural Business-Cooperative Service, Rural Housing Service, and Rural Utilities Service, Department of Agriculture (Parts 5001—5099)

Title 8—Aliens and Nationality

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

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of 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 500—599) [Reserved] VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX (Parts 900—999)[Reserved]

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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) 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)

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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) 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]

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I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

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

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V 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)

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I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

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

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) 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) II—III [Reserved] IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—699) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1099)

Title 43—Public Lands: Interior

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

Title 44—Emergency Management and Assistance

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

Title 45—Public Welfare

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

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

Title 46—Shipping

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

Title 47—Telecommunication

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

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

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) [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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2015 45 CFR—Continued 81 FR Page 45 CFR 80 FR Chapter X—Continued Page 1050.3 (h) revised ...... 19428 Chapter VIII 800 Republished ...... 9655 2017 Correctly revised ...... 16577 Chapter XI 45 CFR 82 FR Page 1155 Removed ...... 33157 Chapter V 1157 Regulation at 79 FR 76091 confirmed (Editor’s Note: This 500 Authority citation revised; is actually supposed to be 2 interim...... 16126 CFR Part 3255) ...... 36930 500.3 (c) added; interim ...... 16126 1171.5 (c)(1) and (2) amended ...... 42066 500.4 (a)(3) revised; interim ...... 16126 1171.10 (a) amended ...... 42066 510 (Subchapter D) Added; in- 1174 Regulation at 79 FR 76091 terim...... 16126 confirmed...... 55505 Chapter VI 1180 Regulation at 79 FR 76090 690 Revised; eff. 1-19-18 ...... 7273 confirmed...... 56893 Chapter XI 1183 Regulation at 79 FR 76090 1149 Authority citation revised; confirmed...... 56893 interim...... 27434 Regulation at 82 FR 27434 con- 2016 firmed...... 58350 45 CFR 81 FR 1149.9 (a)(1) amended; interim ...... 27434 Page 1158 Authority citation revised; Chapter VI interim...... 27434 672.24 Revised; interim ...... 41452 Regulation at 82 FR 27434 con- 681.3 (f) and (g) added; interim ...... 41452 firmed...... 58350 1158.400 (a) and (b) amended; in- Chapter IX terim...... 27434 Chapter IX Established ...... 53033 1158 Appendix A amended; in- 900 Added ...... 53033 terim...... 27434 Chapter X 1171 Authority citation re- 1000.3 (a) and (b) amended; in- vised ...... 45 terim ...... 3021 1171.4 (a) and (b) revised...... 45

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45 CFR—Continued 82 FR 45 CFR—Continued 84 FR Page Page Chapter XI—Continued Chapter XI—Continued 1171.7 (d)(1)(ii) revised ...... 45 1182.5 Amended...... 22945 1171.8 (b) and (c) revised ...... 45 1182.13 (a) introductory text and 1171.10 (a) revised ...... 46 (2) amended ...... 22945 1171.11 (d)(3) revised ...... 46 1182.15 (a)(3) amended ...... 22945 1182.16 Heading revised ...... 22945 2018 1184.1 Revised ...... 22945 1184.2 (a), (b), (c) introductory 45 CFR 83 FR Page text, (8), (10), and (12) revised; Subtitle B (c)(11) amended...... 22945 Chapter VI 1184.3 (a) and (b) revised ...... 22946 690 Regulation at 82 FR 7273 eff. 1184.4 (c) added...... 22946 date delayed to 7-19-18 ...... 2885 1184.5 (c), (d), and (e) redesignated 690.101 (l)(3) and (4) revised; in- as (d), (e), and (f); new (c) added; terim ...... 2894 new (f) amended ...... 22946 (l)(1) heading and (5) added; (l)(2), 1184.6 (a) revised; (b) amended ...... 22946 (3), and (4) revised...... 28519 1184.7 (f)(3)(ii) and (g) revised ...... 22946 1184.8 (b) amended ...... 22947 Chapter XI 1184.9 (b)(2) amended...... 22947 1149.9 (a)(1) revised...... 2073 1158.400 (a), (b), and (e) revised ...... 2073 1158 Appendix A amended ...... 2073 2020 (Regulations published from January 1, 2019 2020, through October 1, 2020) 45 CFR 84 FR 45 CFR 85 FR Page Page Chapter VI Chapter XI 670.29 Revised ...... 16792 1149.9 (a)(1) revised...... 1760 Chapter XI 1157 Added; interim ...... 53187 1115 Removed ...... 66320 1158.400 (a), (b), and (e) amend- 1148 Added ...... 6345 ed...... 1760 1148.10 Second (a)(1)(ii) redesig- 1158 Appendix A amended ...... 1760 nated as (a)(1)(iii) ...... 8003 1168 Authority citation re- 1149.9 (a)(1) revised...... 1404 vised...... 22028 1158.400 (a), (b), and (e) amend- 1168.400 (a), (b), and (e) amended; ed...... 1404 (g) added; interim ...... 22028 1158 Appendix A amended ...... 1404 1168.400 Regulation at 85 FR 22028 1169 Added ...... 34789 confirmed...... 35567 1169.8 Correction: second (b) 1168 Appendix A amended; in- through (g) redesignated as (c) terim...... 22028 through (h) ...... 59314 1168 Regulation at 85 FR 22028 1181.170 (c) amended...... 22945 confirmed...... 35567 1182.3 Revised ...... 22945 1173 Added ...... 56526 Æ

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