45 Part 1200 to End Revised as of October 1, 2000
Public Welfare
Containing a Codification of documents of general applicability and future effect
As of October 1, 2000
With Ancillaries
Published by Office of the Federal Register National Archives and Records Administration
As a Special Edition of the Federal Register
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For sale by U.S. Government Printing Office Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402–9328
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Page Explanation ...... vi
Title 45:
Subtitle B—Regulations Relating to Public Welfare—Continued:
Chapter XII—Corporation for National and Community Service .... 5
Chapter XIII—Office of Human Development Services, Depart- ment of Health and Human Services ...... 145
Chapter XVI—Legal Services Corporation ...... 409
Chapter XVII—National Commission on Libraries and Informa- tion Science ...... 505
Chapter XVIII—Harry S. Truman Scholarship Foundation ...... 525
Chapter XXI—Commission of Fine Arts ...... 545
Chapter XXIII—Arctic Research Commission ...... 565
Chapter XXIV—James Madison Memorial Fellowship Foundation 575
Chapter XXV—Corporation for National and Community Service 595
Finding Aids:
Table of CFR Titles and Chapters ...... 833
Alphabetical List of Agencies Appearing in the CFR ...... 851
Redesignation Table ...... 861
List of CFR Sections Affected ...... 863
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To cite the regulations in this volume use title, part and section num- ber. Thus, 45 CFR 1201.1 refers to title 45, part 1201, 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 agen- cies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to deter- mine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2000, consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usu- ally not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.
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RAYMOND A. MOSLEY, Director, Office of the Federal Register. October 1, 2000.
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Title 45—PUBLIC WELFARE is composed of four volumes. The parts in these vol- umes are arranged in the following order: Parts 1–199, 200–499, 500–1199, and 1200 to end. Volume one (parts 1–199) contains all current regulations issued under subtitle A—Department of Health and Human Services. Volume two (parts 200– 499) contains all current regulations issued under subtitle B—Regulations Relat- ing to Public Welfare, chapter II—Office of Family Assistance (Assistance Pro- grams), Administration for Children and Families, Department of Health and Human Services, chapter III—Office of Child Support Enforcement (Child Support Enforcement Program), Administration for Children and Families, Department of Health and Human Services, and chapter IV—Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services. Volume three (parts 500–1199) contains all current regulations issued under chapter V—Foreign Claims Settlement Commission of the United States, Department of Justice, chapter VI—National Science Foundation, chapter VII— Commission on Civil Rights, chapter VIII—Office of Personnel Management, chapter X—Office of Community Services, Administration for Children and Fami- lies, Department of Health and Human Services, and chapter XI—National Foun- dation on the Arts and the Humanities. Volume four (part 1200 to end) contains all current regulations issued under chapter XII—Corporation for National and Community Service, chapter XIII—Office of Human Development Services, De- partment of Health and Human Services, chapter XVI—Legal Services Corpora- tion, chapter XVII—National Commission on Libraries and Information Science, chapter XVIII—Harry S Truman Scholarship Foundation, chapter XXI—Commis- sion 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, 2000.
A subject index to 45 CFR parts 680–684 appears at the end of chapter VI in the volume containing parts 500–1199. Those amendments to part 801—Voting Rights Program, Appendixes A, B, and D, which apply to Texas also appear in Spanish following Appendix D.
Redesignation tables appear in the Finding Aids section of volumes one and four.
For this volume, Linda L. Jones was Chief Editor. The Code of Federal Regula- tions publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.
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(This book contains part 1200 to end)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE— Continued Part
CHAPTER XII—Corporation for National and Community Service ...... 1201
CHAPTER XIII—Office of Human Development Services, De- partment of Health and Human Services ...... 1300
CHAPTER XVI—Legal Services Corporation ...... 1600
CHAPTER XVII—National Commission on Libraries and Infor- mation Science ...... 1700
CHAPTER XVIII—Harry S. Truman Scholarship Foundation ... 1800
CHAPTER XXI—Commission of Fine Arts ...... 2101
CHAPTER XXIII—Arctic Research Commission ...... 2301
CHAPTER XXIV—James Madison Memorial Fellowship Foun- dation ...... 2400
CHAPTER XXV—Corporation for National and Community Service ...... 2500
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Part Page 120l Production or disclosure of official information in response to court orders, subpoenas, notices of depositions, requests for admissions, interrog- atories, or in connection with Federal or State litigation ...... 7 1203 Nondiscrimination in Federally assisted pro- grams—effectuation of title VI of the Civil Rights Act of 1964 ...... 11 1204 Official seal ...... 20 1206 Grants and contracts—suspension and termination and denial of application for refunding ...... 21 1210 VISTA trainee deselection and volunteer early ter- mination procedures ...... 31 1211 Volunteer grievance procedures ...... 38 1212 Volunteer agencies procedures for National grant volunteers [Reserved] 1213 ACTION cooperative volunteer program ...... 44 1214 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by ACTION ...... 51 1216 Nondisplacement of employed workers and non- impairment of contracts for service ...... 56 1217 VISTA volunteer leader ...... 58 1218 VISTA volunteers—hearing opportunity ...... 59 1219 Competitive service eligibility ...... 60 1220 Payment of volunteer legal expenses ...... 61 1222 Participation of project beneficiaries ...... 63 1225 Volunteer discrimination complaint procedure ...... 64 1226 Prohibitions on electoral and lobbying activities ... 71 1229 Governmentwide debarment and suspension (non- procurement) and governmentwide requirements for drug–free workplace (grants) ...... 76 1230 New restrictions on lobbying ...... 94
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Part Page 1232 Non-discrimination on basis of handicap in pro- grams receiving federal financial assistance from ACTION ...... 105 1233 Intergovernmental review of ACTION programs ..... 111 1234 Uniform administrative requirements for grants and cooperative agreements to State and local governments ...... 114 1235 Locally generated contributions in Older American Volunteer Programs ...... 141
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determinations or other actions to be directed to any component of the Cor- made by the General Counsel under poration or Corporation Employees, this part, relating to employees or offi- whether civil or criminal in nature, cial information within the Office of for: Inspector General, shall be made by the (1) Material, including documents, Inspector General. contained in the files of the Corpora- [63 FR 4598, Jan. 30, 1998, as amended at 63 tion; FR 64199, Nov. 19, 1998] (2) Information, including testimony, affidavits, declarations, admissions, re- § 1201.3 Service of summonses and complaints. sponse to interrogatories, or informal statements, relating to material con- (a) Only the Corporation’s General tained in the files of the Corporation or Counsel or his/her designee (hereinafter which any Corporation employee ac- ‘‘General Counsel’’), is authorized to quired in the course and scope of the receive and accept summonses or com- plaints sought to be served upon the performance of official duties; Corporation or its employees. All such (3) Garnishment or attachment of documents should be delivered or ad- compensation of Corporation Employ- dressed to General Counsel, Corpora- ees; or tion for National and Community Serv- (4) The performance or non-perform- ice, 1201 New York Avenue, NW., Suite ance of any official Corporation duty. 8200, Washington, DC 20525. (b) In the event that any subpoena, (b) In the event any summons or demand, or request is sought to be de- complaint is delivered to a Corporation livered to a Corporation Employee Employee other than in the manner other than in the manner prescribed in specified in this part, such attempted paragraph (a) of this section, such at- service shall be ineffective, and the re- tempted service shall be ineffective. cipient thereof shall either decline to Such Corporation Employee shall, after accept the proffered service or return consultation with the General Counsel, such document under cover of a writ- decline to accept the subpoena, and de- ten communication that refers the per- mand or request the return of it under son attempting to effect service to the cover of a written communication re- procedures set forth in this part. ferring to the procedures prescribed in (c) Except as otherwise provided in § 1201.4(c), the Corporation is not an au- this part. thorized agent for service of process (c) Except as otherwise provided in with respect to civil litigation against this part, the Corporation is not an Corporation Employees purely in their agent for service or otherwise author- personal, non-official capacity. Copies ized to accept on behalf of Corporation of summonses or complaints directed Employees any subpoenas, show-cause to Corporation Employees in connec- orders, or similar compulsory process tion with legal proceedings arising out of federal or state courts, or requests of the performance of official duties from private individuals or attorneys, may, however, be served upon the Gen- which are not related to the employees’ eral Counsel. official duties except upon the express, written authorization of the individual § 1201.4 Service of subpoenas, court Corporation Employee to whom such orders, and other demands or re- quests for official information or demand or request is directed. action. (d) Acceptance of such documents by (a) Except in cases in which the Cor- the General Counsel does not con- poration is represented by legal coun- stitute a waiver of any defenses that sel who have entered an appearance or might otherwise exist with respect to otherwise given notice of their rep- service under the Federal Rules of Civil resentation, only the General Counsel or Criminal Procedure at 28 U.S.C. Ap- is authorized to receive and accept sub- pendix, Rules 4–6 or 18 USC Appendix poenas, or other demands or requests or other applicable rules.
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§ 1201.5 Testimony and production of ule of all reasonably foreseeable de- documents prohibited unless ap- mands, including but not limited to the proved by appropriate Corporation names of all current and former Cor- officials. poration Employees from whom dis- (a) Unless authorized to do so by the covery will be sought, areas of inquiry, General Counsel, no Corporation Em- expected duration of proceedings re- ployee shall, in response to a demand quiring oral testimony, and identifica- or request in connection with any liti- tion of potentially relevant documents. gation, whether criminal or civil, pro- (c) The General Counsel will notify vide oral or written testimony by depo- the Corporation Employee and such sition, declaration, affidavit, or other- other persons as circumstances may wise concerning any information ac- warrant of the decision regarding com- quired: pliance with the request or demand. (1) While such person was a Corpora- (d) The General Counsel will consult tion Employee; with the Department of Justice regard- (2) As part of the performance of that ing legal representation for Corpora- person’s official duties; or tion Employees in appropriate cases. (3) By virtue of that person’s official status. § 1201.7 Procedure when response to (b) No Corporation Employee shall, demand is required prior to receiv- in response to a demand or request in ing instructions. connection with any litigation, produce for use at such proceedings (a) If a response to a demand or re- any document or any other material quest for Official Information pursuant acquired as part of the performance of to litigation is required before the Gen- that individual’s duties or by virtue of eral Counsel renders a decision, the that individual’s official status, unless Corporation will request that either a authorized to do so by the General Department of Justice attorney or a Counsel. Corporation attorney designated for the purpose: § 1201.6 Procedure when testimony or (1) Appear, if feasible, with the em- production of documents is sought. ployee upon whom the demand has (a) If Official Information is sought, been made; either through testimony or otherwise, (2) Furnish the court or other author- the party seeking such information ity with a copy of the regulations con- must (except as otherwise required by tained in this part; federal law or authorized by the Gen- (3) Inform the court or other author- eral Counsel) set forth in writing with ity that the demand or request has as much specificity as possible, the na- been or is being, as the case may be, re- ture and relevance of the Official Infor- ferred for the prompt consideration of mation sought. The party must iden- the General Counsel; and tify the record or reasonably describe (4) Respectfully request the court or it in terms of date, format, subject authority to stay the demand or re- matter, the offices originating or re- quest pending receipt of the requested ceiving the record, and the names of all persons to whom the record is known instructions. to relate. Corporation Employees may (b) In the event that an immediate produce, disclose, release, comment demand or request for production or upon, or testify concerning only those disclosure is made in circumstances matters that were specified in writing that would preclude the proper des- and properly approved by the General ignation or appearance of a Depart- Counsel. The General Counsel may ment of Justice or Corporation attor- waive this requirement in appropriate ney on behalf of the Corporation em- circumstances. ployee, the Corporation Employee shall (b) To the extent it deems necessary respectfully request the court or other or appropriate, the Corporation may authority for a reasonable stay of pro- also require from the party seeking ceedings for the purpose of obtaining such testimony or documents a sched- instructions from the Corporation.
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§ 1201.8 Procedure in the event of an (1) Violate a statute, a rule of proce- adverse ruling. dure, a specific regulation, or an execu- If the court or other authority de- tive order; clines to stay the effect of the demand (2) Reveal information properly clas- or request in response to a request sified in the interest of national secu- made pursuant to § 1201.7, or if the rity; court or other authority rules that the (3) Reveal confidential commercial or demand or request must be complied financial information or trade secrets with irrespective of the Corporation’s without the owner’s consent; instructions not to produce the mate- (4) Reveal the internal deliberative rial or disclose the information sought, processes of the Executive Branch; or the Corporation Employee upon whom (5) Potentially impede or prejudice the demand or request has been made an ongoing law enforcement investiga- shall, if so directed by the General tion. Counsel, respectfully decline to comply § 1201.10 Prohibition on providing ex- with the demand or request, citing pert or opinion testimony. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in (a) Except as provided in this section, this part. Corporation Employees shall not pro- vide opinion or expert testimony based § 1201.9 Considerations in determining upon information that they acquired in whether the Corporation will com- the scope and performance of their offi- ply with a demand or request. cial Corporation duties, except on be- (a) In deciding whether to comply half of the United States or a party with a demand or request, Corporation represented by the Department of Jus- officials and attorneys are encouraged tice. to consider: (b) Upon a showing by the requester (1) Whether such compliance would of exceptional need or unique cir- be unduly burdensome or otherwise in- cumstances and that the anticipated appropriate under the applicable rules testimony will not be adverse to the in- of discovery or the rules of procedure terests of the United States, the Gen- governing the case or matter in which eral Counsel, in the exercise of discre- the demand arose; tion, may grant special, written au- (2) Whether compliance is appro- thorization for Corporation Employees priate under the relevant substantive to appear and testify as expert wit- law concerning privilege or disclosure nesses at no expense to the United of information; States. (3) The public interest; (c) If, despite the final determination (4) The need to conserve the time of of the General Counsel, a court of com- Corporation Employees for the conduct petent jurisdiction or other appro- of official business; priate authority orders the appearance (5) The need to avoid spending the and expert or opinion testimony of a time and money of the United States Corporation Employee such individual for private purposes; shall immediately inform the General (6) The need to maintain impartiality Counsel of such order. If the General between private litigants in cases Counsel determines that no further where a government interest is not im- legal review of or challenge to the plicated; court’s order will be made, the Cor- (7) Whether compliance would have poration Employee shall comply with an adverse effect on performance by the order. If so directed by the General the Corporation of its mission and du- Counsel, however, the individual shall ties; and respectfully decline to testify. (8) The need to avoid involving the Corporation in controversial issues not § 1201.11 Authority. related to its mission. The Corporation receives authority (b) Among those demands and re- to change its governing regulations quests in response to which compliance from the National and Community may not ordinarily be authorized are Service Act of 1990 as amended (42 those when compliance would: U.S.C. 12501 et seq.).
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PART 1203—NONDISCRIMINATION (1) Federal financial assistance by IN FEDERALLY ASSISTED PRO- way of insurance or guaranty con- GRAMS—EFFECTUATION OF TITLE tracts; (2) Money paid, property transferred, VI OF THE CIVIL RIGHTS ACT OF or other assistance extended under a 1964 program before the effective date of this part, except when the assistance Sec. was subject to the title VI regulations 1203.1 Purpose. of an agency whose responsibilities are 1203.2 Application of this part. now exercised by ACTION; 1203.3 Definitions. 1203.4 Discrimination prohibited. (3) Assistance to any individual who 1203.5 Assurances required. is the ultimate beneficiary under a pro- 1203.6 Compliance information. gram; or 1203.7 Conduct of investigations. (4) Employment practices, under a 1203.8 Procedure for effecting compliance. program, of an employer, employment 1203.9 Hearings. agency, or labor organization, except 1203.10 Decisions and notices. to the extent described in § 1203.4(c). 1203.11 Judicial review. 1203.12 Effect on other regulations, forms, The fact that a program is not listed in and instructions. Appendix A to this part does not mean, if title VI is otherwise applicable, that APPENDIX A TO PART 1203—PROGRAMS TO WHICH THIS PART APPLIES the program is not covered. Other pro- APPENDIX B TO PART 1203—PROGRAMS TO grams under statutes now in force or WHICH THIS PART APPLIES WHEN A PRI- hereinafter enacted may be added to MARY OBJECTIVE OF THE FEDERAL FINAN- Appendix A to this part. CIAL ASSISTANCE IS TO PROVIDE EMPLOY- (b) In a program receiving Federal fi- MENT nancial assistance in the form, or for AUTHORITY: Sec. 602, 78 Stat. 252; 42 U.S.C. the acquisition, of real property or an 2000d–1. interest in real property, to the extent SOURCE: 39 FR 27322, July 26, 1974, unless that rights to space on, over, or under otherwise noted. that property are included as part of the program receiving that assistance, § 1203.1 Purpose. the nondiscrimination requirement of The purpose of this part is to effec- this part extends to a facility located tuate the provisions of title VI of the wholly or in part in that space. Civil Rights Act of 1964 (hereafter re- § 1203.3 Definitions. ferred to as title VI), to the end that a person in the United States shall not, Unless the context requires other- on the ground of race, color, or na- wise, in this part: tional origin, be excluded from partici- (a) Applicant means a person who sub- pation in, be denied the benefits of, or mits an application, request, or plan be otherwise subjected to discrimina- required to be approved by ACTION, or tion under a program or activity re- by a primary recipient, as a condition ceiving Federal financial assistance to eligibility for Federal financial as- from ACTION. sistance, and ‘‘application’’ means that application, request, or plan. § 1203.2 Application of this part. (b) Facility includes all or any part of (a) This part applies to each program structures, equipment, or other real or for which Federal financial assistance personal property or interests therein, is authorized under a law administered and the provision of facilities includes by ACTION, including the federally as- the construction, expansion, renova- sisted programs listed in appendix A to tion, remodeling, alteration, or acqui- this part. It also applies to money paid, sition of facilities. property transferred, or other Federal (c) Federal financial assistance in- financial assistance extended under a cludes: program after the effective date of this (1) Grants and loans of Federal funds; part pursuant to an application ap- (2) The grant or donation of Federal proved before that effective date. This property and interests in property; part does not apply to: (3) The detail of Federal personnel;
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(4) The sale and lease of, and the per- the Commonwealth of Puerto Rico, or mission to use (on other than a casual territory or possession of the United or transient basis), Federal property or States, to whom Federal financial as- any interest in the property without sistance is extended, directly or consideration or at a nominal consider- through another recipient, for any pro- ation, or at a consideration which is re- gram, including any successor, as- duced for the purpose of assisting the signee, or transferee thereof, but the recipient, or in recognition of the pub- term does not include any ultimate lic interest to be served by the sale or beneficiary under a program. lease to the recipient; and (g) Director means the Director of AC- (5) A Federal agreement, arrange- TION or any person to whom he has ment, or other contract which has as delegated his authority in the matter one of its purposes the provision of as- concerned. sistance. (d) Primary recipient means a recipi- § 1203.4 Discrimination prohibited. ent that is authorized or required to (a) General. A person in the United extend Federal financial assistance to States shall not, on the ground of race, another recipient for the purpose of color, or national origin be excluded carrying out a program. from participation in, be denied the (e) Program includes a program, benefits of, or be otherwise subjected project, or activity for the provision of to discrimination under, a program to services, financial aid, or other bene- which this part applies. fits to individuals (including education (b) Specific discriminatory actions pro- or training or other services whether hibited. (1) A recipient under a program provided through employees of the re- to which this part applies may not, di- cipient of Federal financial assistance rectly or through contractual or other or provided by others through con- arrangements, on the ground of race, tracts or other arrangements with the color, or national origin— recipient, and including work opportu- nities), or for the provision of facilities (i) Deny a person a service, financial for furnishing services, financial aid, or aid, or other benefit provided under the other benefits to individuals. The serv- program; ices, financial aid, or other benefits (ii) Provide a service, financial aid, provided under a program receiving or other benefit to a person which is Federal financial assistance are different, or is provided in a different deemed to include a service, financial manner, from that provided to others aid, or other benefits provided: under the program; (1) With the aid of Federal financial (iii) Subject a person to segregation assistance, or separate treatment in any matter (2) With the aid of any non-Federal related to his receipt of a service, fi- funds, property, or other resources re- nancial aid, or other benefit under the quired to be expended or made avail- program; able for the program to meet the (iv) Restrict a person in any way in matching requirements or other condi- the enjoyment of an advantage or tions which must be met in order to re- privilege enjoyed by others receiving a ceive the Federal financial assistance, service, financial aid, or other benefit or under the program; (3) In or through a facility provided (v) Treat a person differently from with the aid of Federal financial assist- others in determining whether he satis- ance or such non-Federal resources. fies an admission, enrollment, quota, (f) Recipient may mean any State, the eligibility, membership, or other re- District of Columbia, the Common- quirement or condition which persons wealth of Puerto Rico, a territory or must meet in order to be provided a possession of the United States, or any service, financial aid, or other benefit political subdivision thereof, or instru- provided under the program; mentality thereof, any public or pri- (vi) Deny a person an opportunity to vate agency, institution, or organiza- participate in the program through the tion, or other entity, or any individual provision of services or otherwise or af- in any State, the District of Columbia, ford him an opportunity to do so which
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is different from that afforded others motion, transfer, layoff, termination, under the program; or rates of pay, or other forms of com- (vii) Deny a person the opportunity pensation or benefits, selection for to participate as a member of a plan- training or apprenticeship, use of fa- ning or advisory body which is an inte- cilities, and treatment of employees). gral part of the program. A recipient shall take affirmative ac- (2) A recipient, in determining the tion to insure that applicants are em- types of services, financial aid, or other ployed, and employees are treated dur- benefits, or facilities which will be pro- ing employment, without regard to vided under a program or the class of race, color, or national origin. The re- persons to whom, or the situations in quirements applicable to construction which, the services, financial aid, other employment under a program are those benefits, or facilities will be provided specified in or pursuant to part III of under a program, or the class of per- Executive Order 11246 or any Executive sons to be afforded an opportunity to order which supersedes it. participate in a program, may not, di- (2) Federal financial assistance to rectly or through contractual or other programs under laws funded or admin- arrangements, utilize criteria or meth- istered by ACTION which have as a pri- ods of administration which have the mary objective the providing of em- effect of subjecting persons to discrimi- ployment include those set forth in Ap- nation because of their race, color, or pendix B to this part. national origin, or have the effect of (3) Where a primary objective of the defeating or substantially impairing Federal financial assistance is not to accomplishment of the objectives of provide employment, but discrimina- the program with respect to individ- tion on the ground of race, color, or na- uals of a particular race, color, or na- tional origin in the employment prac- tional origin. tices of the recipient tends, on the (3) The enumeration of specific forms ground of race, color, or national ori- of prohibited discrimination in this gin, to exclude persons from participa- paragraph does not limit the generality tion in, to deny them the benefits of, or of the prohibition in paragraph (a) of to subject them to discrimination this section. under any program to which this part (4)(i) In administering a program re- applies, the provisions of paragraph garding which the recipient had pre- (c)(1) of this section apply to the em- viously discriminated against persons ployment practices of the recipient to on the ground of race, color, or na- the extent necessary to assure equality tional origin, the recipient shall take of opportunity to and nondiscrim- affirmative action to overcome the ef- inatory treatment of beneficiaries. fects of prior discrimination. (d) In determining the site or loca- (ii) Even in the absence of prior dis- tion of facilities, a recipient or appli- crimination a recipient in admin- cant may not make selections with the istering a program may take affirma- purpose or effect of excluding individ- tive action to overcome the effect of uals from, denying them the benefits conditions which resulted in limiting of, or subjecting them to discrimina- participation by persons of a particular tion under, a program to which this race, color, or national origin. part applies, on the ground of race, (c) Employment practices. (1) When a color, or national origin; or with the primary objective of a program of Fed- purpose or effect of defeating or sub- eral financial assistance to which this stantially impairing the accomplish- part applies is to provide employment, ment of the objectives of title VI of a recipient or other party subject to this part. this part shall not, directly or through contractual or other arrangements, § 1203.5 Assurances required. subject a person to discrimination on (a) General. (1) An application for the ground of race, color, or national Federal financial assistance to carry origin in its employment practices out a program to which this part ap- under the program (including recruit- plies, except a program to which para- ment or recruitment advertising, hir- graph (d) of this section applies, and ing, firing, upgrading, promotion, de- every application for Federal financial
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assistance to provide a facility shall, as volved, but property is acquired or im- a condition to its approval and the ex- proved under a program of Federal fi- tension of Federal financial assistance nancial assistance, the recipient shall pursuant to the application, contain or agree to include a covenant in any sub- be accompanied by, assurances that the sequent transfer of the property. When program will be conducted or the facil- the property is obtained from the Fed- ity operated in compliance with the re- eral Government, the covenant may quirements imposed by or pursuant to also include a condition coupled with a this part. Every program of Federal fi- right to be reserved by ACTION to re- nancial assistance shall require the vert title to the property in the event submission of these assurances. In the of a breach of the covenant where, in case where the Federal financial assist- the discretion of ACTION, such a con- ance is to provide or is in the form of dition and right of reverter is appro- personal property, or real property or priate to the program under which the interest therein or structures thereon, real property is obtained and to the na- the assurances shall obligate the re- ture of the grant and the grantee. In cipient, or, in the case of a subsequent the event a transferee of real property transfer, the transferee, for the period during which the property is used for a proposes to mortgage or otherwise en- purpose for which the Federal financial cumber the real property as security assistance is extended or for another for financing construction of new, or purpose involving the provision of improvement of existing, facilities on similar services or benefits, or for as property for the purposes for which the long as the recipient retains ownership property was transferred, ACTION may or possession of the property, which- agree, on request of the transferee and ever is longer. In other cases, the as- if necessary to accomplish the financ- surances obligate the recipient for the ing, and on conditions as he deems ap- period during which the Federal finan- propriate, to subordinate a right of re- cial assistance is extended to the pro- version to the lien of a mortgage or gram. In the case where the assistance other encumbrance. is sought for the construction of a fa- (b) Assurances from Government agen- cility or part of a facility, the assur- cies. In the case of an application from ances shall extend to the entire facility a department, agency, or office of a and to the facilities operated in con- State or local government for Federal nection therewith. ACTION shall speci- financial assistance for a specified pur- fy the form of the foregoing assurances pose, the assurance required by this for each program, and the extent to section shall extend to any other de- which like assurances will be required partment, agency, or office of the same of subgrantees, contractors and sub- governmental unit if the policies of the contractors, transferees, successors in other department, agency, or office interest, and other participants in the will substantially affect the project for program. The assurances shall include which Federal financial assistance is provisions which give the United requested. That requirement may be States the right to seek judicial en- waived by the responsible ACTION offi- forcement. cial if the applicant establishes, to the (2) When Federal financial assistance satisfaction of the responsible ACTION is provided in the form of a transfer of real property, structures, or improve- official, that the practices in other ments thereon, or interest therein, agencies or parts or programs of the from the Federal Government, the in- governmental unit will in no way af- strument effecting or recording the fect: transfer shall contain a covenant run- (1) Its practices in the program for ning with the land assuring non- which Federal financial assistance is discrimination for the period during sought, or which the real property is used for a (2) The beneficiaries of or partici- purpose involving the provision of pants in or persons affected by the pro- similar services or benefits. When no gram, or transfer of property of interest therein (3) Full compliance with this part as from the Federal Government is in- respects the program.
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(c) Assurance from academic and other ments imposed by or pursuant to this institutions. (1) In the case of an appli- part. cation for Federal financial assistance by an academic institution, the assur- (Approved by the Office of Management and Budget under control number 3001–0016, para- ance required by this section extends graph (a)(1)) to admission practices and to all other practices relating to the treatment of [39 FR 27322, July 26, 1974, as amended at 47 students. FR 3553, Jan. 26, 1982] (2) The assurance required by an aca- demic institution, detention or correc- § 1203.6 Compliance information. tional facility, or any other institution (a) Cooperation and assistance. AC- or facility, relating to the institution’s TION, to the fullest extent practicable, practices with respect to admission or shall seek the cooperation of recipients other treatment of individuals as stu- in obtaining compliance with this part dents, patients, wards, inmates, per- and shall provide assistance and guid- sons subject to control, or clients of ance to recipients to help them comply the institution or facility or to the op- voluntarily with this part. portunity to participate in the provi- (b) Compliance reports. Each recipient sion of services, disposition, treatment, shall keep records and submit to AC- or benefits to these individuals, is ap- TION timely, complete, and accurate plicable to the entire institution or fa- compliance reports at the times, and in cility unless the applicant establishes, the form and containing the informa- to the satisfaction of the responsible tion ACTION may determine necessary ACTION official, that the practices in to enable it to ascertain whether the designated parts or programs of the in- recipient has complied or is complying stitution or facility will in no way af- with this part. In the case of a program fect its practices in the program of the under which a primary recipient ex- institution or facility for which Fed- tends Federal financial assistance to eral financial assistance is sought, or other recipients, the other recipients the beneficiaries of or participants in shall also submit compliance reports to the program. If the assistance sought is the primary recipient as may be nec- for the construction of a facility or essary to enable the primary recipient part of a facility, the assurance shall to carry out its obligations under this extend to the entire facility and to fa- cilities operated in connection there- part. In general, recipients should have with. available for ACTION racial and ethnic (d) Continuing State programs. Every data showing the extent to which mem- application by a State or a State agen- bers of minority groups are bene- cy to carry out a program involving ficiaries of federally assisted programs. continuing Federal financial assistance (c) Access to sources of information. to which this part applies (including Each recipient shall permit access by the programs listed in Appendix A to ACTION during normal business hours this part) shall as a condition to its ap- to its books, records, accounts, and proval and the extension of Federal fi- other sources of information, and its nancial assistance pursuant to the ap- facilities as may be pertinent to ascer- plication: tain compliance with this part. When (1) Contain or be accompanied by a information required of a recipient is statement that the program is (or, in in the exclusive possession of an other the case of a new program, will be) con- agency, institution, or person and this ducted in compliance with the require- agency, institution, or person fails or ments imposed by or pursuant to this refuses to furnish this information, the part, and recipient shall so certify in its report (2) Provide or be accompanied by pro- and shall set forth what efforts it has vision for methods of administration made to obtain the information. for the program as are found by AC- (d) Information to beneficiaries and TION to give reasonable guarantee participants. Each recipient shall make that the applicant and all recipients of available to participants, beneficiaries, Federal financial assistance under the and other interested persons the infor- program will comply with the require- mation regarding the provisions of this
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part and its applicability to the pro- of title VI of this part, or because he gram under which the recipient re- has made a complaint, testified, as- ceived Federal financial assistance, sisted, or participated in any manner and make this information available to in an investigation, proceeding, or them in the manner, as ACTION finds hearing under this part. The identity of necessary, to apprise the persons of the complainants shall be kept confiden- protections against discrimination as- tial, except to the extent necessary to sured them by title VI and this part. carry out the purposes of this part, in- cluding the conduct of an investiga- § 1203.7 Conduct of investigations. tion, hearing, or judicial proceeding (a) Periodic compliance reviews. AC- arising thereunder. TION may from time to time review the practices of recipients to determine § 1203.8 Procedure for effecting com- whether they are complying with this pliance. part. (a) General. (1) If there appears to be (b) Complaints. Any person who be- a failure or threatened failure to com- lieves himself or any specific class of persons to be subjected to discrimina- ply with this part, and if the non- tion prohibited by this part may by compliance or threatened noncompli- himself or by a representative file with ance cannot be corrected by informal ACTION a written complaint. A com- means, compliance with this part may plaint shall be filed not later than 180 be effected by the suspension or termi- days after the date of the alleged dis- nation of or refusal to grant or to con- crimination, unless the time for filing tinue Federal financial assistance or by is extended by ACTION. other means authorized by law. (c) Investigations. ACTION will make (2) Other means may include, but are a prompt investigation whenever a not limited to: (i) A reference to the compliance review, report, complaint, Department of Justice with a rec- or other information indicates a pos- ommendation that appropriate pro- sible failure to comply with this part. ceedings be brought to enforce the The investigation will include, when rights of the United States under a law appropriate, a review of the pertinent of the United States (including other practices and policies of the recipient, titles of the Civil Rights Act of 1964) or the circumstances under which the pos- an assurance or other contractual un- sible noncompliance with this part oc- dertaking, and curred, and other factors relevant to a (ii) An applicable proceeding under determination as to whether the recipi- State or local law. ent has failed to comply with this part. (b) Noncompliance with § 1203.5. 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 § 1203.5 or of this section indicates a failure to otherwise fails or refuses to comply comply with this part, ACTION will so inform the recipient and the matter with a requirement imposed by or pur- will be resolved by voluntary means suant to that section, Federal financial whenever possible. If it has been deter- assistance may be refused in accord- mined that the matter cannot be re- ance with the procedures of paragraph solved by voluntary means, action will (c) of this section. ACTION shall not be be taken as provided for in § 1203.8. required to provide assistance in that (2) If an investigation does not war- case during the pendency of the admin- rant action pursuant to paragraph istrative proceedings under this para- (d)(1) of this section, ACTION will so graph. Subject, however, to § 1203.12, inform, in writing, the recipient and ACTION shall continue assistance dur- the complainant, if any. ing the pendency of the proceedings (e) Intimidatory or retaliatory acts pro- where the assistance is due and payable hibited. A recipient or other person pursuant to an application approved shall not intimidate, threaten, coerce, prior to the effective date of this part. or discriminate against an individual (c) Termination of or refusal to grant or for the purpose of interfering with a to continue Federal financial assistance. right or privilege secured by section 601 An order suspending, terminating, or
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refusing to grant or to continue Fed- fected applicant or recipient. This no- eral financial assistance shall not be- tice shall advise the applicant or re- come effective until— cipient of the action proposed to be (1) ACTION has advised the applicant taken, the specific provision under or recipient of his failure to comply which the proposed action against it is and has determined that compliance to be taken, and the matters of fact or cannot be secured by informal vol- law asserted as the basis for this ac- untary means; tion, and either: (2) There has been an express finding (1) Fix a date not less than 20 days on the record, after opportunity for after the date of notice within which hearing, of a failure by the applicant or the applicant or recipient may request recipient to comply with a requirement of ACTION that the matter be sched- imposed by or pursuant to this part; uled for hearing; or (3) The action has been approved by (2) Advise the applicant or recipient the Director pursuant to § 1203.10(e); that the matter in question has been and set down for hearing at a stated time (4) The expiration of 30 days after the and place. The time and place so fixed Director has filed with the committee shall be reasonable and subject to of the House and the committee of the change for cause. The complainant, if Senate having legislative jurisdiction any, shall be advised of the time and over the program involved, a full writ- place of the hearing. An applicant or ten report of the circumstances and the recipient may waive a hearing and sub- grounds for the action. mit written information and argument An action to suspend or terminate or for the record. The failure of an appli- refuse to grant or to continue Federal cant or recipient to request a hearing financial assistance shall be limited to under this paragraph or to appear at a the particular political entity, or part hearing for which a date has been set is thereof, or other applicant or recipient deemed to be a waiver of the right to a as to whom a finding has been made hearing under section 602 of title VI and shall be limited in its effect to the and § 1203.8(c) and consent to the mak- particular program, or part thereof, in ing of a decision on the basis of the in- which the noncompliance has been so formation available. found. (b) Time and place of hearing. Hear- (d) Other means authorized by law. An ings shall be held at the offices of AC- action to effect compliance with title TION in Washington, DC, at a time VI by other means authorized by law fixed by ACTION unless it determines shall not be taken by ACTION until— that the convenience of the applicant (1) ACTION has determined that com- or recipient or of ACTION requires that pliance cannot be secured by voluntary another place be selected. Hearings means; shall be held before the Director, or at (2) The recipient or other person has his discretion, before a hearing exam- been notified of its failure to comply iner appointed in accordance with sec- and of the action to be taken to effect tion 3105 of title 5, United States Code, compliance; and or detailed under section 3344 of title 5, (3) The expiration of at least 10 days United States Code. from the mailing of a notice to the re- (c) Right to counsel. In all proceedings cipient or person. During this period of under this section, the applicant or re- at least 10 days, additional efforts shall cipient and ACTION have the right to be made to persuade the recipient or be represented by counsel. other person to comply with the regu- (d) Procedures, evidence, and record. (1) lation and to take corrective action as The hearing, decision, and an adminis- may be appropriate. trative review thereof shall be con- ducted in conformity with sections 554 § 1203.9 Hearings. through 557 of title 5, United States (a) Opportunity for hearing. When an Code, and in accordance with the rules opportunity for a hearing is required of procedure as are proper (and not in- by § 1203.8(c), reasonable notice shall be consistent with this section) relating given by registered or certified mail, to the conduct of the hearing, giving of return receipt requested, to the af- notices subsequent to those provided
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for in paragraph (a) of this section, tire record including his recommended taking of testimony, exhibits, argu- findings and proposed decision to the ments, and briefs, requests for findings, Director for a final decision, and a copy and other related matters. Both AC- of the initial decision or certification TION and the applicant or recipient are shall be mailed to the applicant or re- entitled to introduce relevant evidence cipient. When the initial decision is on the issues as stated in the notice for made by the hearing examiner, the ap- hearing or as determined by the officer plicant or recipient may, within 30 conducting the hearing at the outset of days after the mailing of a notice of or during the hearing. initial decision, file with the Director (2) Technical rules of evidence do not his exceptions to the initial decision, apply to hearings conducted pursuant with his reasons therefor. In the ab- to this part, but rules or principles de- sence of exceptions, the Director may, signed to assure production of the most on his own motion, within 45 days after credible evidence available and to sub- the initial decision, serve on the appli- ject testimony to test by cross-exam- cant or recipient a notice that he will ination shall be applied where deter- review the decision. On the filing of the mined reasonably necessary by the offi- exceptions or of notice of review, the cer conducting the hearing. The hear- Director shall review the initial deci- ing officer may exclude irrelevant, im- sion and issue his own decision thereon material, or unduly repetitious evi- including the reasons therefor. In the dence. Documents and other evidence absence of either exceptions or a notice offered or taken for the record shall be of review the initial decision, subject open to examination by the parties and to paragraph (e) of this section, shall opportunity shall be given to refute constitute the final decision of the Di- facts and arguments advanced on ei- rector. ther side of the issues. A transcript (b) Decisions on record or review by the shall be made of the oral evidence ex- Director. When a record is certified to cept to the extent the substance there- the Director for decision or the Direc- of is stipulated for the record. Deci- tor reviews the decision of a hearing sions shall be based on the hearing examiner pursuant to paragraph (a) of record and written findings shall be this section, or when the Director con- made. ducts the hearing, the applicant or re- (e) Consolidated or joint hearings. In cipient shall be given reasonable oppor- cases in which the same or related tunity to file with it briefs or other facts are asserted to constitute non- written statements of the recipient’s compliance with this part with respect contentions, and a written copy of the to two or more programs to which this final decision of the Director will be part applies, or noncompliance with sent to the applicant or recipient and this part and the regulations of one or to the complainant, if any. more other Federal departments or (c) Decisions on record where a hearing agencies issued under title VI, ACTION is waived. When a hearing is waived may, by agreement with the other de- pursuant to § 1203.9, a decision shall be partments or agencies, when applica- made by ACTION on the record and a ble, provide for the conduct of consoli- written copy of the decision shall be dated or joint hearings, and for the ap- sent to the applicant or recipient, and plication to these hearings of rules or to the complainant, if any. procedures not inconsistent with this (d) Rulings required. Each decision of part. Final decisions in these cases, in- a hearing examiner or the Director sofar as this regulation is concerned, shall set forth a ruling on each finding, shall be made in accordance with conclusion, or exception presented, and § 1203.10. shall identify the requirement or re- quirements imposed by or pursuant to § 1203.10 Decisions and notices. this part with which it is found that (a) Procedure on decisions by hearing the applicant or recipient has failed to examiner. If the hearing is held by a comply. hearing examiner, the hearing exam- (e) Approval by ACTION. A final deci- iner shall either make an initial deci- sion by an official of ACTION other sion, if so authorized, or certify the en- than by the Director, which provides
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for the suspension or termination of, or be given an expeditious hearing, with a the refusal to grant or continue Fed- decision on the record in accordance eral financial assistance, or the imposi- with the rules or procedures issued by tion of any other sanction available ACTION. The applicant or recipient under this part or title VI, shall shall be restored to eligibility if it promptly be transmitted to the Direc- proves at the hearing that it satisfied tor, who may approve the decision, va- the requirements of paragraph (g)(1) of cate it, or remit or mitigate a sanction this section. While proceedings under imposed. this paragraph are pending, the sanc- (f) Content of orders. The final deci- tions imposed by the order issued sion may provide for suspension or ter- under paragraph (f) of this section re- mination of, or refusal to grant or con- main in effect. tinue Federal financial assistance, in whole or in part, under the program in- § 1203.11 Judicial review. volved, and may contain the terms, Action taken pursuant to section 602 conditions, and other provisions as are of title VI is subject to judicial review consistent with and will effectuate the as provided in section 603 of title VI. purposes of title VI and this part, in- cluding provisions designed to assure § 1203.12 Effect on other regulations, that Federal financial assistance will forms, and instructions. not thereafter be extended under the (a) Effect on other regulations. Regula- programs to the applicant or recipient tions, orders, or like directions issued determined by the decision to be in de- before the effective date of this part by fault in its performance of an assur- ACTION which impose requirements ance given by it under this part, or to designed to prohibit discrimination have otherwise failed to comply with against individuals on the ground of this part, unless and until it corrects race, color, or national origin under a its noncompliance and satisfies AC- program to which this part applies, and TION that it will fully comply with which authorizes the suspension or ter- this part. mination of or refusal to grant or to (g) Post-termination proceedings. (1) An continue Federal financial assistance applicant or recipient adversely af- to an applicant for or recipient of as- fected by an order issued under para- sistance under a program for failure to graph (f) of this section shall be re- comply with the requirements, are su- stored to full eligibility to receive Fed- perseded to the extent that discrimina- eral financial assistance if it satisfies tion is prohibited by this part, except the terms and conditions of the order that nothing in this part relieves a per- for eligibility, or if it brings itself into son of an obligation assumed or im- compliance with this part and provides posed under a superseded regulation, reasonable assurance that it will fully order, instruction, or like direction, be- comply with this part. fore the effective date of this part. This (2) An applicant or recipient ad- part does not supersede any of the fol- versely affected by an order entered lowing (including future amendments pursuant to paragraph (f) of this sec- thereof): tion may at any time request ACTION (1) Executive Order 11246 (3 CFR, 1965 to restore fully its eligibility to receive Supp.) and regulations issued there Federal financial assistance. A request under or shall be supported by information (2) Any other orders, regulations, or showing that the applicant or recipient instructions, insofar as these orders, has met the requirements of paragraph regulations, or instructions prohibit (g)(1) of this section. If ACTION deter- discrimination on the ground of race, mines that those requirements have color, or national origin in a program been satisfied, it shall restore the eligi- or situation to which this part is inap- bility. plicable, or prohibit discrimination on (3) If ACTION denies a request, the any other ground. applicant or recipient may submit a re- (b) Forms and instructions. ACTION quest for a hearing in writing, speci- shall issue and promptly make avail- fying why it believes ACTION is in able to all interested persons forms and error. The applicant or recipient shall detailed instructions and procedures
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for effectuating this part as applied to AUTHORITY: Sec. 402, Pub. L. 93–113, 87 Stat. programs to which this part applies, 407 (42 U.S.C. 5042). and for which it is responsible. SOURCE: 38 FR 34118, Dec. 11, 1973, unless (c) Supervision and coordination. AC- otherwise noted. TION may from time to time assign to officials of ACTION, or to officials of § 1204.1 Authority. other departments or agencies of the Pursuant to section 402(9) of Pub. L. Government with the consent of the 93–113, the ACTION official seal and de- departments or agencies, responsibil- sign thereof which accompanies and is ities in connection with the effec- made part of this document, is hereby tuation of the purposes of title VI and adopted and approved, and shall be ju- this part (other than responsibilities dicially noticed. for final decision as provided in § 1203.10), including the achievement of [52 FR 20714, June 3, 1987] effective coordination and maximum uniformity within ACTION and within § 1204.2 Description. the executive branch in the application The official seal of ACTION is de- of title VI and this part to similar pro- scribed as follows: grams and in similar situations. An ac- (a) The words ‘‘The Federal Domestic tion taken, determination made, or re- Volunteer Agency USA’’ are in blue quirement imposed by an official of an- capital letters and form the outer cir- other department or agency acting pur- cle of the seal. suant to an assignment of responsi- (b) Within the circle of letters, on a bility under this paragraph shall have field of white, appears the logotype the same effect as though the action word ‘‘ACTION’’ in blue, capital letters had been taken by ACTION. and in Italic type. (c) The logotype word ‘‘ACTION’’ is APPENDIX A TO PART 1203—PROGRAMS split; ‘‘ACT’’ on a higher level and TO WHICH THIS PART APPLIES ‘‘ION’’ drops down to a slightly lower 1. Grants for the development or operation level. of retired senior volunteer programs pursu- (d) Two red bars, also split on two ant to section 601 of the Older Americans Act levels, underline the logotype word of 1965, as amended (42 U.S.C. 3044). ‘‘ACTION.’’ 2. Grants for the development and oper- The official seal of ACTION is modi- ation of foster grandparents projects pursu- fied when reproduced in black and ant to section 611 of the Older Americans Act white and when embossed, as it appears of 1965, as amended (42 U.S.C. 3044b). below. APPENDIX B TO PART 1203—PROGRAMS TO WHICH THIS PART APPLIES WHEN A PRIMARY OBJECTIVE OF THE FED- ERAL FINANCIAL ASSISTANCE IS TO PROVIDE EMPLOYMENT
1. Grants for the development or operation of retired senior volunteer programs pursu- ant to section 601 of the Older Americans Act of 1965, as amended (42 U.S.C. 3044). 2. Grants for the development and oper- ation of foster grandparents projects pursu- ant to section 611 of the Older Americans Act of 1965, as amended (42 U.S.C. 3044b).
PART 1204—OFFICIAL SEAL
Sec. 1204.1 Authority. 1204.2 Description. 1204.3 Custody and authorization to affix. [52 FR 20714, June 3, 1987]
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§ 1204.3 Custody and authorization to AUTHORITY: 42 U.S.C. 4951 et R 1996, Jan. 16, affix. 1974, unless otherwise noted. (a) The seal is the official emblem of ACTION and its use is therefore per- Subpart A—Suspension and mitted only as provided in this part. Termination of Assistance (b) The seal shall be kept in the cus- § 1206.1–1 Purpose and scope. tody of the General Counsel, or any other person he authorizes, and should (a) This subpart establishes rules and be affixed by him, the Director or the review procedures for the suspension Deputy Director to all commissions of and termination of assistance provided officials of ACTION, and used to au- by ACTION pursuant to various sec- thenticate records of ACTION and for tions of titles I, II and III of the Do- other official purposes. The General mestic Volunteer Service Act of 1973, 87 Counsel may redelegate and authorize Stat. 394, Pub. L. 93–113, (hereinafter redelegations of, this authority. the Act) because of a material failure of a recipient to comply with the terms (c) The Director shall designate and and conditions of any grant or contract prescribe by internal written delega- providing assistance under these sec- tions and policies the use of the seal tions of the Act, including applicable for other publication and display pur- laws, regulations, issued program poses and those ACTION officials au- guidelines, instructions, grant condi- thorized to affix the seal for these pur- tions or approved work programs. poses. (b) However, this subpart shall not (d) Use by any person or organization apply to any administrative action of outside of the Agency may be made the ACTION Agency based upon any only with the Agency’s prior written violation, or alleged violation, of title approval. Such request must be made VI of the Civil Rights Act of 1964 and in writing to the General Counsel. sections 417 (a) and (b) of Pub. L. 93–113 relating to nondiscrimination. In the PART 1206—GRANTS AND CON- case of any such violation or alleged TRACTS—SUSPENSION AND TER- violation other provisions of this chap- MINATION AND DENIAL OF AP- ter shall apply. PLICATION FOR REFUNDING § 1206.1–2 Application of this part. Subpart A—Suspension and Termination of This subpart applies to programs au- Assistance thorized under titles I, II, and III of the Act. Sec. 1206.1–1 Purpose and scope. § 1206.1–3 Definitions. 1206.1–2 Application of this part. As used in this subpart— 1206.1–3 Definitions. (a) The terms ‘‘ACTION’’ or ‘‘AC- 1206.1–4 Suspension. TION Agency’’ include each Regional 1206.1–5 Termination. Office. 1206.1–6 Time and place of termination hearings. (b) The term Director means the Di- 1206.1–7 Termination hearing procedures. rector of the ACTION Agency. 1206.1–8 Decisions and notices regarding ter- (c) The term responsible ACTION offi- mination. cial means the Director and Deputy Di- 1206.1–9 Right to counsel; travel expenses. rector of ACTION, appropriate Re- 1206.1–10 Modification of procedures by con- gional Director and any ACTION head- sent. quarters or regional office official who 1206.1–11 Other remedies. is authorized to make the grant of as- sistance in question. In addition to the Subpart B—Denial of Application for foregoing officials, in the case of the Refunding suspension proceedings described in 1206.2–1 Applicability of this subpart. § 1206.1–4, the term ‘‘responsible AC- 1206.2–2 Purpose. TION official’’ shall also include a des- 1206.2–3 Definitions. ignee of an ACTION official who is au- 1206.2–4 Procedures. thorized to make the grant of assist- 1206.2–5 Right to counsel. ance in question.
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(d) The term assistance means assist- ure to comply with any requirement ance under titles I, II and III of the Act stated in § 1206.1–1. Such suspension in the form of grants or contracts in- shall be pursuant to notice and oppor- volving Federal funds for the adminis- tunity to show cause why assistance tration of which ACTION has primary should not be suspended as provided in responsibility. paragraph (b) of this section. However, (e) The term recipient means a public in emergency cases, where the respon- or private agency, institution or orga- sible ACTION official determines sum- nization or a State or other political mary action is appropriate, the alter- jurisdiction which has received assist- native summary procedure of para- ance under title I, II, or III of the Act, graph (c) of this section shall be fol- but does not include individuals who lowed. ultimately receive benefits under any (b) Suspension on notice. (1) Except as program of assistance or volunteers provided in paragraph (c) of this sec- participating in any program. tion, the procedure for suspension shall (f) The term agency means a public or be on notice of intent to suspend as private agency, institution, or organi- hereinafter provided. zation or a State or other political ju- (2) The responsible ACTION official risdiction with which the recipient has shall notify the recipient by letter or entered into an arrangement, contract by telegram that ACTION intends to or agreement to assist in its carrying suspend assistance in whole or in part out of the development, conduct and unless good cause is shown why assist- administration of all or part of a ance should not be suspended. In such project assisted under titles I, II and letter or telegram the responsible AC- III. TION official shall specify the grounds (g) The term party in the case of a for the proposed suspension and the termination hearing means ACTION, proposed effective date of the suspen- the recipient concerned, and any other sion. agency or organization which has a (3) The responsible ACTION official right or which has been granted per- shall also inform the recipient of its mission by the presiding officer to par- right to submit written material in op- ticipate in a hearing concerning termi- position to the intended suspension and nation of assistance to the recipient of its right to request an informal pursuant to § 1206.1–5(e). meeting at which the recipient may re- (h) The term termination means any spond and attempt to show why such action permanently terminating or suspension should not occur. The pe- curtailing assistance to all or any part riod of time within which the recipient of a program prior to the time that may submit such written material or such assistance is concluded by the request the informal meeting shall be terms and conditions of the document established by the responsible ACTION in which such assistance is extended, official in the notice of intent to sus- but does not include the refusal to pro- pend. However, in no event shall the vide new or additional assistance. period of time within which the recipi- (i) The term suspension means any ac- ent must submit written material or tion temporarily suspending or cur- request such a meeting be less than 5 tailing assistance in whole or in part, days after the notice of intent to sus- to all or any part of a program, prior to pend assistance has been sent. If the re- the time that such assistance is con- cipient requests a meeting, the respon- cluded by the terms and conditions of sible ACTION official shall fix a time the document in which such assistance and place for the meeting, which shall is extended, but does not include the not be less than 5 days after the recipi- refusal to provide new or additional as- ent’s request is received by ACTION. sistance. (4) In lieu of the provisions of para- graph (b)(3) of this section dealing with § 1206.1–4 Suspension. the right of the recipient to request an (a) General. The responsible ACTION informal meeting, the responsible AC- official may suspend assistance to a re- TION official may on his own initiative cipient in whole or in part for a mate- establish a time and place for such a rial failure or threatened material fail- meeting and notify the recipient in
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writing or by telegram. However, in no which led to the initiation of the sus- event shall such a meeting be sched- pension proceeding. uled less than seven days after the no- (9) The responsible ACTION official tice of intent to suspend assistance is shall consider any timely material pre- sent to the recipient. sented to him in writing, any material (5) The responsible ACTION official presented to him during the course of may in his discretion extend the period the informal meeting provided for in of time or date referred to in the pre- paragraphs (b) (3) and (4) of this section vious paragraphs of this section and as well as any showing that the recipi- shall notify the recipient in writing or ent has adequately corrected the defi- by telegram of any such extension. ciency which led to the initiation of suspension proceedings. If after consid- (6) At the time the responsible AC- ering the material presented to him TION official sends the notification re- the responsible ACTION official con- ferred to in paragraphs (b) (2), (3), and cludes the recipient has failed to show (4) of this section to the recipient, he cause why assistance should not be sus- shall also send a copy of it to any agen- pended, he may suspend assistance in cy whose activities or failures to act whole or in part and under such terms have substantially contributed to the and conditions as he shall specify. proposed suspension, and shall inform (10) Notice of such suspension shall such agency that it is entitled to sub- be promptly transmitted to the recipi- mit written material or to participate ent and shall become effective upon de- in the informal meeting referred to in livery. Suspension shall not exceed 30 paragraphs (b) (3) and (4) of this sec- days unless during such period of time tion. In addition the responsible AC- termination proceedings are initiated TION official may in his discretion in accordance with § 1206.1–5, or unless give such notice to any other agency. the responsible ACTION official and (7) Within 3 days of receipt of the no- the recipient agree to a continuation of tice referred to in paragraphs (b) (2), the suspension for an additional period (3), and (4) of this section, the recipient of time. If termination proceedings are shall send a copy of such notice and a initiated, the suspension of assistance copy of these regulations to all agen- shall remain in full force and effect cies which would be financially af- until such proceedings have been fully fected by the proposed suspension ac- concluded. tion. Any agency that wishes to submit (11) During a period of suspension no written material may do so within the new expenditures shall be made and no time stated in the notice. Any agency new obligations shall be incurred in that wishes to participate in the infor- connection with the suspended pro- mal meeting with the responsible AC- gram except as specifically authorized TION official contemplated herein may in writing by the responsible ACTION request permission to do so from the official. Expenditures to fulfill legally responsible ACTION official, who may enforceable commitments made prior in his discretion grant or deny such to the notice of suspension, in good permission. In acting upon any such re- faith and in accordance with the recipi- quest from an agency, the responsible ent’s approved work program, and not ACTION official shall take into ac- in anticipation of suspension or termi- count the effect of the proposed suspen- nation, shall not be considered new ex- sion on the particular agency, the ex- penditures. However, funds shall not be tent to which the meeting would be- recognized as committed solely be- come unduly complicated as a result of cause the recipient has obligated them granting such permission, and the ex- by contract or otherwise to an agency. tent to which the interests of the agen- NOTE: Willful misapplication of funds may cy requesting such permission appear violate Federal criminal statutes. to be adequately represented by other (12) The responsible ACTION official participants. may in his discretion modify the (8) In the notice of intent to suspend terms, conditions and nature of the assistance the responsible ACTION offi- suspension or rescind the suspension cial shall invite voluntary action to action at any time on his own initia- adequately correct the deficiency tive or upon a showing satisfactory to
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him that the recipient had adequately ever, funds shall not be recognized as corrected the deficiency which led to committed by a recipient solely be- the suspension and that repetition is cause the recipient obligated them by not threatened. Suspensions partly or contract or otherwise to an agency. fully rescinded may, in the discretion (See note under paragraph (b)(11) of of the responsible ACTION official be this section.) reimposed with or without further pro- (3) In the notice of summary suspen- ceedings: Provided however, That the sion the responsible ACTION official total time of suspension may not ex- shall advise the recipient that it may ceed 30 days unless termination pro- request ACTION to provide it with an ceedings are initiated in accordance opportunity to show cause why the with § 1206.1–5 or unless the responsible summary suspension should be re- ACTION official and the recipient scinded. If the recipient requests such agree to a continuation of the suspen- an opportunity, the responsible AC- sion for an additional period of time. If TION official shall immediately inform termination proceedings are initiated, the recipient in writing of the specific the suspension of assistance shall re- grounds for the suspension and shall main in full force and effect until such within 7 days after receiving such re- proceedings have been fully concluded. quest from the recipient hold an infor- (c) Summary suspension. (1) The re- mal meeting at which the recipient sponsible ACTION official may suspend may show cause why the summary sus- assistance without the prior notice and pension should be rescinded. Notwith- opportunity to show cause provided in standing the provisions of this para- paragraph (b) of this section if he de- graph, the responsible ACTION official termines in his discretion that imme- may proceed to initiate termination diate suspension is necessary because proceedings at any time even though of a serious risk of: (i) Substantial in- assistance to the recipient has been jury to or loss of project funds or prop- suspended in whole or in part. In the erty, or event that termination proceedings are (ii) Violation of a Federal, State or initiated, the responsible ACTION offi- local criminal statute, or cial shall nevertheless afford the re- (iii) Violation of section 403 of Pub. cipient, if it so requests, an oppor- L. 93–113 or of ACTION rules, regula- tunity to show cause why suspension tions, guidelines and instructions, pub- should be rescinded pending the out- lished in accordance with section 420 of come of the termination proceedings. Pub. L. 93–113, implementing this sec- (4) Copies of the notice of summary tion of the Act, and that such risk is suspension shall be furnished by the re- sufficiently serious to outweigh the cipient to agencies in the same manner general policy in favor of advance no- as notices of intent to suspend as set tice and opportunity to show cause. forth in paragraphs (b) (6), (7), and (8) (2) Notice of summary suspension of this section. Agencies may submit shall be given to the recipient by letter written material to the responsible AC- or by telegram, shall become effective TION official or to participate in the upon delivery to the recipient, and informal meeting as in the case of in- shall specifically advise the recipient tended suspension proceedings set forth of the effective date of the suspension in paragraphs (b) (6) and (7) of this sec- and the extent, terms, and condition of tion. any partial suspension. The notice (5) The effective period of a summary shall also forbid the recipient to make suspension of assistance may not ex- any new expenditures or incur any new ceed 30 days unless termination pro- obligations in connection with the sus- ceedings are initiated in accordance pended portion of the program. Expend- with § 1206.1–5, or unless the parties itures to fulfill legally enforceable agree to a continuation of summary commitments made prior to the notice suspension for an additional period of of suspension, in good faith and in ac- time, or unless the recipient, in accord- cordance with the recipient’s approved ance with paragraph (c)(3) of this sec- work program, and not in anticipation tion, requests an opportunity to show of suspension or termination, shall not cause why the summary suspension be considered new expenditures. How- should be rescinded.
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(6) If the recipient requests an oppor- the date of a hearing scheduled by AC- tunity to show cause why a summary TION. Any such hearing shall afford suspension action should be rescinded the recipient a full and fair oppor- the suspension of assistance shall con- tunity to demonstrate that it is in tinue in effect until the recipient has compliance with requirements speci- been afforded such opportunity and a fied in § 1206.1–1. In any termination decision has been made. Such a deci- hearing, ACTION shall have the burden sion shall be made within 5 days after of justifying the proposed termination the conclusion of the informal meeting action. However, if the basis of the pro- referred to in paragraph (c)(3) of this posed termination is the failure of a re- section. If the responsible ACTION offi- cipient to take action required by law, cial concludes, after considering all regulation, or other requirement speci- material submitted to him, that the re- fied in § 1206.1–1, the recipient shall cipient has failed to show cause why have the burden of proving that such the suspension should be rescinded, the action was timely taken. responsible ACTION official may con- tinue the suspension in effect for an ad- (c) If a recipient requests ACTION to ditional 7 days: Provided however, That hold a hearing in accordance with para- if termination proceedings are initi- graph (a) of this section, it shall send a ated, the summary suspension of as- copy of its request for such a hearing sistance shall remain in full force and to all agencies which would be finan- effect until all termination proceedings cially affected by the termination of have been fully concluded. assistance and to each agency identi- fied in the notice pursuant to para- § 1206.1–5 Termination. graph (a) of this section. This material (a) If the responsible ACTION official shall be sent to these agencies at the believes that an alleged failure to com- same time the recipient’s request is ply with any requirement stated in made to ACTION. The recipient shall § 1206.1–1 may be sufficiently serious to promptly send ACTION a list of the warrant termination of assistance, agencies to which it has sent such ma- whether or not assistance has been sus- terial and the date on which it was pended, he shall so notify the recipient sent. by letter or telegram. The notice shall (d) If the responsible ACTION official state that there appear to be grounds pursuant to paragraph (a) of this sec- which warrant terminating the assist- tion informs a recipient that a pro- ance and shall set forth the specific posed termination action has been set reasons therefor. If the reasons result for hearing, the recipient shall within 5 in whole or substantial part from the days of its receipt of this notice send a activities of an agency other than the copy of it to all agencies which would grantee, the notice shall identify that be financially affected by the termi- agency. The notice shall also advise nation and to each agency identified in the recipient that the matter has been the notice pursuant to paragraph (a) of set down for hearing at a stated time this section. The recipient shall send and place, in accordance with § 1206.1–6. the responsible ACTION official a list In the alternative the notice shall ad- of all agencies notified and the date of vise the recipient of its right to request a hearing and shall fix a period of time notification. which shall not be less than 10 days in (e) If the responsible ACTION official which the recipient may request such a has initiated termination proceedings hearing. because of the activities of an agency, (b) Termination hearings shall be that agency may participate in the conducted in accordance with the pro- hearing as a matter of right. Any other vision of §§ 1206.1–7 and 1206.1–8. They agency, person, or organization that shall be scheduled for the earliest prac- wishes to participate in the hearing ticable date, but not later than 30 days may, in accordance with § 1206.1–7(d), after a recipient has requested such a request permission to do so from the hearing in writing or by telegram. Con- presiding officer of the hearing. Such sideration shall be given to a request participation shall not, without the by a recipient to advance or postpone consent of ACTION and the recipient,
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alter the time limitations for the deliv- fair hearing, avoid delay, maintain ery of papers or other procedures set order, and make a sufficient record for forth in this section. a full and true disclosure of the facts (f) The results of the proceeding and and issues. To accomplish these ends, any measure taken thereafter by AC- the presiding officer shall have all pow- TION pursuant to this part shall be ers authorized by law, and he may fully binding upon the recipient and all make all procedural and evidentiary agencies whether or not they actually rulings necessary for the conduct of participated in the hearing. the hearing. The hearing shall be open (g) A recipient may waive a hearing to the public unless the presiding offi- by notice to the responsible ACTION cer for good cause shown shall other- official in writing and submit written wise determine. information and argument for the (2) After the notice described in para- record. Such material shall be sub- graph (f) of this section is filed with mitted to the responsible ACTION offi- the presiding officer, he shall not con- cial within a reasonable period of time sult any person or party on a fact in to be fixed by him upon the request of issue unless on written notice and op- the recipient. The failure of a recipient portunity for all parties to participate. to request a hearing, or to appear at a However, in performing his functions hearing for which a date has been set, under this part the presiding officer unless excused for good cause, shall be may use the assistance and advice of deemed a waiver of the right to a hear- an attorney designated by the General ing and consent to the making of a de- Counsel of ACTION or the appropriate cision on the basis of such information Regional Counsel: Provided, That the as is then in the possession of ACTION. attorney designated to assist him has (h) The responsible ACTION official not represented ACTION or any other may attempt, either personally or party or otherwise participated in a through a representative, to resolve proceeding, recommendation, or deci- the issues in dispute by informal means sion in the particular matter. prior to the date of any applicable (c) Presentation of evidence. Both AC- hearing. TION and the recipient are entitled to present their case by oral or documen- § 1206.1–6 Time and place of termi- tary evidence, to submit rebuttal evi- nation hearings. dence and to conduct such examination The termination hearing shall be and cross-examination as may be re- held in Washington, DC, or in the ap- quired for a full and true disclosure of propriate Regional Office, at a time all facts bearing on the issues. The and place fixed by the responsible AC- issues shall be those stated in the no- TION official unless he determines that tice required to be filed by paragraph the convenience of ACTION, or of the (f) of this section, those stipulated in a parties or their representatives, re- prehearing conference or those agreed quires that another place be selected. to by the parties. (d) Participation. (1) In addition to § 1206.1–7 Termination hearing proce- ACTION, the recipient, and any agency dures. which has a right to appear, the pre- (a) General. The termination hearing, siding officer in his discretion may per- decision, and any review thereof shall mit the participation in the pro- be conducted in accordance with the ceedings of such persons or organiza- rules of procedure set forth in this sec- tions as he deems necessary for a prop- tion and §§ 1206.1–8 and 1206.1–9. er determination of the issues involved. (b) Presiding officer. (1) The presiding Such participation may be limited to officer at the hearing shall be the re- those issues or activities which the sponsible ACTION official or, at the presiding officer believes will meet the discretion of the responsible ACTION needs of the proceeding, and may be official, an independent hearing exam- limited to the filing of written mate- iner designated as promptly as possible rial. in accordance with section 3105 of title (2) Any person or organization that 5 of the United States Code. The pre- wishes to participate in a proceeding siding officer shall conduct a full and may apply for permission to do so from
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the presiding officer. This application, of its intention to appear at the hear- which shall be made as soon as possible ing 3 days before it is scheduled to after the notice of suspension or pro- occur. Failing to do so may, at the dis- posed termination has been received by cretion of the presiding officer, be the recipient, shall state the appli- deemed a waiver of the right to a hear- cant’s interest in the proceeding, the ing. evidence or arguments the applicant (h) Form and date of service. All papers intends to contribute, and the neces- and documents filed or sent to party sity for the introduction of such evi- shall be signed in ink by the appro- dence or arguments. priate party or his authorized rep- (3) The presiding officer shall permit resentative. The date on which papers or deny such participation and shall are filed shall be the day on which the give notice of his decision to the appli- papers or documents are deposited, cant, the recipient, and ACTION, and, postage prepaid in the U.S. mail, or are in the case of denial, a brief statement delivered in person: Provided however, of the reasons therefor: Provided how- That the effective date of the notice ever, That the presiding officer may that there appear to be grounds which subsequently permit such participation warrant terminating assistance shall if, in his opinion, it is warranted by be the date of its delivery or attempted subsequent circumstances. If participa- delivery at the recipient’s last known tion is granted, the presiding officer address as reflected in the records of shall notify all parties of that fact and ACTION. may, in appropriate cases, include in (i) Prehearing conferences. Prior to the the notification a brief statement of commencement of a hearing the pre- the issues as to which participation is siding officer may, subject to the pro- permitted. visions of paragraph (b)(2) of this sec- (4) Permission to participate to any tion, require the parties to meet with extent is not a recognition that the him or correspond with him concerning participant has any interest which may the settlement of any matter which be adversely affected or that the par- will expedite a quick and fair conclu- ticipant may be aggrieved by any deci- sion of the hearing. sion, but is allowed solely for the aid (j) Evidence. Technical rules of evi- and information of the presiding offi- dence shall not apply to hearings con- cer. ducted pursuant to this subpart, but (e) Filing. All papers and documents the presiding officer shall apply rules which are required to be filed shall be or principles designed to assure produc- filed with the presiding officer. Prior to tion of relevant evidence and to subject filing, copies shall be sent to the other testimony to such examination and parties. crossexamination as may be required (f) Notice. The responsible ACTION of- for a full and true disclosure of the ficial shall send the recipient and any facts. The presiding officer may ex- other party a written notice which clude irrelevant, immaterial, or unduly states the time, place, nature of the repetitious evidence. A transcription hearing, the legal authority and juris- shall be made of the oral evidence and diction under which the hearing is to shall be made available to any partici- be held. The notice shall also identify pant upon payment of the prescribed with reasonable specificity the facts costs. All documents and other evi- relied on as justifying termination and dence submitted shall be open to exam- the ACTION requirements which it is ination by the parties and opportunity contended the recipient has violated. shall be given to refute facts and argu- The notice shall be filed and served not ments advanced on either side of the later than 10 days prior to the hearing issues. and a copy thereof shall be filed with (k) Depositions. If the presiding offi- the presiding officer. cer determines that the interests of (g) Notice of intention to appear. The justice would be served, he may au- recipient and any other party which thorize the taking of depositions pro- has a right or has been granted permis- vided that all parties are afforded an sion to participate in the hearing shall opportunity to participate in the tak- give written confirmation to ACTION ing of the depositions. The party who
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requested the deposition shall arrange and will effectuate the purposes of the for a transcript to be made of the pro- Act. ceedings and shall upon request, and at (c) If the hearing is held by an inde- his expense, furnish all other parties pendent hearing examiner rather than with copies of the transcript. by the responsible ACTION official, he (l) Official notice. Official notice may shall make an initial decision, and a be taken of a public document, or part copy of this initial decision shall be thereof, such as a statute, official re- mailed to all parties. Any party may, port, decision, opinion or published sci- within 20 days of the mailing of such entific date issued by any agency of the initial decision, or such longer period Federal Government or a State or local of time as the presiding officer speci- government and such document or data fies, file with the responsible ACTION may be entered on the record without official his written exceptions to the further proof of authenticity. Official initial decision and any supporting notice may also be taken of such mat- brief or statement. Upon the filing of ters as may be judicially noticed in the such exceptions, the responsible AC- courts of the United States, or any TION official shall, within 20 days of other matter of established fact within the mailing of the exceptions, review the general knowledge of ACTION. If the initial decision and issue his own the decision of the presiding officer written decision thereof, including the rests on official notice of a material reasons therefore. The decision of the fact not appearing in evidence, a party responsible ACTION official may in- shall on timely request be afforded an crease, modify, approve, vacate, remit, opportunity to show the contrary. or mitigate any sanction imposed in (m) Proposed findings and conclusions. the initial decision or may remand the After the hearing has concluded, but matter to the presiding officer for fur- before the presiding officer makes his ther hearing or consideration. decision, he shall afford each partici- (d) Whenever a hearing is waived, a pant a reasonable opportunity to sub- decision shall be made by the respon- mit proposed findings of fact and con- sible ACTION official and a written clusions. After considering each pro- copy of the final decision of the respon- posed finding or conclusion the pre- sible ACTION official shall be given to siding officer shall state in his decision the recipient. whether he has accepted or rejected (e) The recipient may request the Di- them in accordance with the provisions rector to review a final decision by the of § 1206.1–8(a). responsible ACTION official which pro- vides for the termination of assistance. § 1206.1–8 Decisions and notices re- Such a request must be made in writ- garding termination. ing within 15 days after the recipient (a) Each decision of a presiding offi- has been notified of the decision in cer shall set forth his findings of fact, question and must state in detail the and conclusions, and shall state wheth- reasons for seeking the review. In the er he has accepted or rejected each pro- event the recipient requests such a re- posed finding of fact and conclusion view, the Director or his designee shall submitted by the parties, pursuant to consider the reasons stated by the re- § 1206.1–7(m). Findings of fact shall be cipient for seeking the review and shall based only upon evidence submitted to approve, modify, vacate or mitigate the presiding officer and matters of any sanction imposed by the respon- which official notice has been taken. sible ACTION official or remand the The decision shall also specify the re- matter to the responsible ACTION offi- quirement or requirements with which cial for further hearing or consider- it is found that the recipient has failed ation. The decision of the responsible to comply. ACTION official will be given great (b) The decision of the presiding offi- weight by the Director or his designee cer may provide for continued suspen- during the review. During the course of sion or termination of assistance to the his review the Director or his designee recipient in whole or in part, and may may, but is not required to, hold a contain such terms, conditions, and hearing or allow the filing of briefs and other provisions as are consistent with arguments. Pending the decision of the
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Direct or his designee assistance shall ing may be paid from Federal grant or remain suspended under the terms and contract monies. Such travel and per conditions specified by the responsible diem expenses shall conform to the ACTION official, unless the responsible policies set forth in the Standard Gov- ACTION official or the Director or his ernment Travel Regulations and in designee otherwise determines. Every §§ 1206.3–1 and 1206.3–6 of this chapter. reasonable effort shall be made to com- plete the review by the Director or his § 1206.1–10 Modification of procedures designee within 30 days of receipt by by consent. the Director of the recipient’s request. The responsible ACTION official or The Director or his designee may how- the presiding officer of a termination ever extend this period of time if he de- hearing may alter, eliminate or modify termines that additional time is nec- essary for an adequate review. any of the provisions of this subpart with the consent of the recipient and, § 1206.1–9 Right to counsel; travel ex- in the case of a termination hearing, penses. with the consent of all agencies that In all proceedings under this subpart, have a right to participate in the hear- whether formal or informal, the recipi- ing pursuant to § 1206.1–5(e). Such con- ent and ACTION shall have the right to sent must be in writing or be recorded be represented by counsel or other au- in the hearing transcript. thorized representatives. If the recipi- ent and any agency which has a right § 1206.1–11 Other remedies. to participate in an informal meeting The procedures established by this pursuant to § 1206.1–4 or a termination subpart shall not preclude ACTION hearing pursuant to § 1206.1–7 do not from pursuing any other remedies au- have an attorney acting in that capac- thorized by law. ity as a regular member of the staff of the organization or a retainer arrange- ment with an attorney, the Boards of Subpart B—Denial of Application Directors of such recipient and agency for Refunding will be authorized to designate an at- torney to represent their organizations SOURCE: 47 FR 5719, Feb. 8, 1982, unless oth- at any such show cause proceeding or erwise noted. termination hearing and to transfer sufficient funds from the Federal grant § 1206.2–1 Applicability of this subpart. monies they have received for the This subpart applies to grantees and project to pay the fees, travel, and per contractors receiving financial assist- diem expenses of such attorney. The ance and to sponsors who receive vol- fees for such attorney shall be the rea- unteers under the Domestic Volunteer sonable and customary fees for an at- Service Act of 1973, as amended, 42 torney practicing in the locality of the U.S.C. 4951 et seq. The procedures in attorney. However, such fees shall not exceed $100 per day without the prior this subpart do not apply to review of express written approval of ACTION. applications for the following: Travel and per diem expenses may be (a) University Year for ACTION paid to such attorney only in accord- projects which have received federal ance with the policies set forth in the funds for five years; Standard Government Travel Regula- (b) Mini-grants; tions and in §§ 1206.3–1 and 1206.3–6 of (c) Other projects for which specific this chapter. The Boards of Directors time limits with respect to federal as- of the recipient or any agency which sistance are established in the original has a right to participate in an infor- notice of grant award or other docu- mal meeting pursuant to § 1206.1–4 or a ment providing assistance, where the termination hearing pursuant to specified time limit has been reached; § 1206.1–7 will also be authorized to des- and ignate two persons in addition to an at- (d) VISTA project extensions of less torney whose travel and per diem ex- than six months. penses to attend the meeting or hear-
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§ 1206.2–2 Purpose. The notice shall state the reasons for This subpart establishes rules and re- the tentative decision to which the re- view procedures for the denial of a cur- cipient shall address itself if it wishes rent recipient’s application for refund- to make a presentation as described in ing. paragraphs (c) and (d) of this section. (c) If the notice of tentative decision § 1206.2–3 Definitions. is based on any reasons, other than As used in this subpart—‘‘ACTION,’’ those described in paragraph (d) of this ‘‘Director,’’ and ‘‘recipient’’ shall be section, including, but not limited to, defined in accordance with § 1206.1–3. situations in which the recipient has Financial assistance and assistance in- ineffectively managed Agency re- clude the services of volunteers sup- sources or substantially failed to com- ported in whole or in part with AC- ply with agency policy and overall ob- TION funds. jectives under a contract or grant Program account means assistance agreement with the Agency, the recipi- provided by ACTION to support a par- ent shall be informed in the notice, of ticular program activity; for example, the opportunity to submit written ma- VISTA, Foster Grandparent Program, terial and to meet informally with an Senior Companion Program and Re- ACTION official to show cause why its tired Senior Volunteer Program. application for refunding should not be Refunding includes renewal of an ap- rejected or reduced. If the recipient re- plication for the assignment of volun- quests an informal meeting, such meet- teers. ing shall be held on a date specified by ACTION. However, the meeting may § 1206.2–4 Procedures. not, without the consent of the recipi- (a) The procedures set forth in para- ent, be scheduled sooner than 14 days, graphs (b) through (g) of this section nor more than 30 days, after ACTION shall apply only where an application has mailed the notice to the recipient. for refunding submitted by a current If the recipient requests an informal recipient is rejected or is reduced to 80 meeting, the meeting shall be sched- percent or less of the applied-for level uled by ACTION as soon as possible of funding or the recipient’s current after receipt of the request. The offi- level of operations, whichever is less. It cial who shall conduct this meeting is further a condition for application of shall be an ACTION official who is au- these procedures that the rejection or thorized to finally approve or make the reduction be based on circumstances grant of assistance in question, or his related to the particular grant or con- designee. tract. These procedures do not apply to reductions based on legislative require- (d) If the notice of tentative decision ments, or on general policy or in in- is based upon a specific charge of fail- stances where, regardless of a recipi- ure to comply with the terms and con- ent’s current level of operations, its ap- ditions of the grant or contract, alleg- plication for refunding is not reduced ing wrongdoing on the part of the re- by 20 percent or more. The fact that cipient, the notice shall offer the re- the basis for rejecting an application cipient an opportunity for an informal may also be a basis for termination hearing before a mutually agreed-upon under subpart A of this part shall not impartial hearing officer. The author- prevent the use of this subpart to the ity of such hearing officer shall be lim- exclusion of the procedures in subpart ited to conducting the hearing and of- A. fering recommendations. ACTION will (b) Before rejecting an application of retain all authority to make the final a recipient for refunding ACTION shall determination as to whether the appli- notify the recipient of its intention, in cation should be finally rejected or re- writing, at least 75 days before the end duced. If the recipient requests an in- of the recipient’s current program year formal hearing, such hearing shall be or grant budget period. The notice held at a date specified by ACTION. shall inform the recipient that a ten- However, such hearing may not, with- tative decision has been made to reject out the consent of the recipient, be or reduce an application for refunding. scheduled sooner than 14 days nor more
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than 30 days after ACTION has mailed PART 1210—VISTA TRAINEE the notice to the recipient. DESELECTION AND VOLUNTEER (e) In the selection of a hearing offi- EARLY TERMINATION PROCE- cial and the location of either an infor- DURES mal meeting or hearing, the Agency, while mindful of considerations of the Subpart A—General recipient, will take care to insure that costs are kept to a minimum. The in- Sec. formal meeting or hearing shall be held 1210.1–1 Purpose. 1210.1–2 Scope. in the city or county in which the re- 1210.1–3 Definitions. cipient is located, in the appropriate Regional Office, or another appropriate Subpart B—VISTA Trainee Deselection location. Within the limits stated in 1210.2–1 Grounds for deselection. the preceding sentence, the decision as 1210.2–2 Procedure for deselection. to where the meeting shall be held will be made by ACTION, after weighing Subpart C—VISTA Volunteer Early the convenience factors of the recipi- Termination ent. For the convenience of the recipi- 1210.3–1 Grounds for termination. ent, ACTION will pay the reasonable 1210.3–2 Removal from project. travel expenses for up to two represent- 1210.3–3 Suspension. atives of the recipient, if requested. 1210.3–4 Initiation of termination. (f) The recipient shall be informed of 1210.3–5 Preparation for appeal. the final Agency decision on refunding 1210.3–6 Appeal of termination. 1210.3–7 Inquiry by Hearing Examiner. and the basis for the decision by the 1210.3–8 Termination file and Examiner’s re- deciding official. port. (g) If the recipient’s budget period 1210.3–9 Decision by Director of VISTA. expires prior to the final decision by 1210.3–10 Reinstatement of Volunteer. the deciding official, the recipient’s au- 1210.3–11 Disposition of termination and ap- peal files. thority to continue program operations shall be extended until such decision is Subpart D—National Grant Trainees and made and communicated to the recipi- Volunteers ent. If a volunteer’s term of service ex- pires after receipt by a sponsor of a 1210.4 Early termination procedures for Na- tional Grant Trainees and Volunteers. tentative decision not to refund a project, the period of service of the vol- APPENDIX A TO PART 1210—STANDARD FOR EX- AMINERS unteer may be similarly extended. No volunteers may be reenrolled for a full AUTHORITY: Secs. 103(c), 402(14), Pub. L. 93– 12-month term, or new volunteers en- 113, 87 Stat. 397 and 407. rolled for a period of service while a SOURCE: 46 FR 35512, July 9, 1981, unless tentative decision not to refund is otherwise noted. pending. If program operations are so extended, ACTION and the recipient Subpart A—General shall provide, subject to the avail- ability of funds, operating funds at the § 1210.1–1 Purpose. same levels as in the previous budget This part establishes procedures period to continue program operations. under which certain Trainees and Vol- unteers serving in ACTION programs [50 FR 42025, Oct. 17, 1985] under Pub. L. 93–113 will be deselected from training or termininated from § 1206.2–5 Right to counsel. service and how they may appeal their In all proceedings under this subpart, deselection or termination. whether formal or informal, the recipi- ent and ACTION shall have the right to § 1210.1–2 Scope. be represented by counsel or other au- (a) This part applies to all Trainees thorized representatives, at their own and Volunteers enrolled under part A expense. of Title I of the Domestic Volunteer Service Act of 1973, Pub. L. 93–113, as
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amended, (42 U.S.C. 4951 et seq.,) (here- Subpart B—VISTA Trainee inafter the ‘‘Act’’) and full-time Volun- Deselection teers serving under part C of title I of the Act. § 1210.2–1 Grounds for deselection. (b) This part does not apply to the ACTION may deselect a Trainee out medical separation of any Trainee or of a training program for any of the Volunteer. Separate procedures, as de- following reasons: tailed in the VISTA Handbook, are ap- (a) Failure to meet training selection plicable for such separations. standards which includes, but is not limited to, the following conduct: § 1210.1–3 Definitions. (1) Inability or refusal to perform (a) Trainee means a person enrolled in training assignments; a program under part A of Title I of the (2) Disruptive conduct during train- Act or for full-time volunteer service ing sessions; under part C of Title I of the Act who (b) Conviction of any criminal of- has reported to training but has not fense under Federal, State or local yet completed training and been as- statute or ordinance; signed to a project. (c) Violation of any provision of the (b) Volunteer means a person enrolled Domestic Volunteer Service Act of and currently assigned to a project as a 1973, as amended, or any ACTION pol- icy, regulation, or instruction; full-time Volunteer under part A of (d) Intentional false statement, omis- title I of the Act, or under part C of sion, fraud, or deception in obtaining title I of the Act. selection as a Volunteer; or (c) Sponsor means a public or private (e) Refusal to accept Volunteer nonprofit agency to which ACTION has Placement. assigned Volunteers. (d) Hearing Examiner or Examiner § 1210.2–2 Procedure for deselection. means a person having the qualifica- (a) The Regional Director or designee tions described in Appendix A who has shall notify the Trainee in writing that been appointed to conduct an inquiry ACTION intends to deselect the Train- with respect to a termination. ee. The notice must contain the rea- (e) National Grant Program means a sons for the deselection and indicate program operated under part A, title I that the Trainee has 5 days to appeal. of the Act in which ACTION has award- (b) The Trainee is placed on Adminis- ed a grant to provide the direct costs of trative Hold at the time of the notice supporting VISTA Volunteers on a na- of deselection. tional or multi-regional basis. VISTA (c) The Trainee has 5 days after re- Volunteers may be assigned to local of- ceipt of the notice to appeal in writing fices or project affiliates. The national to the Regional Director, or designee grantee provides overall training, tech- specified in the notice, furnishing any nical assistance and management sup- supportive documentation. In the ap- port for project operations. peal letter, the Trainee may request an (f) Local component means a local of- opportunity to present his or her case fice or project affiliate of a national in person. grantee to which VISTA Volunteers (d) If the Trainee does not respond to are assigned under the VISTA National the notice, deselection becomes effec- tive at the expiration of the Trainee’s Grants Program. time to appeal. (g) means the removal of Termination (e) Within 5 days after receiving the a Volunteer from VISTA service by AC- Trainee’s appeal, if no personal presen- TION, and does not refer to removal of tation is requested, the Regional Direc- a Volunteer from a particular project tor or designee must issue a decision. If which has been requested by a sponsor a personal presentation is requested, or Governor under § 1210.3–2. the Regional Director or designee must (h) Deselection means the removal of schedule it within 5 days, and must a Trainee from VISTA service by AC- issue a decision 5 days after such pres- TION. entation. In either case, the decision of
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the Regional Director or designee is office. If the situation is not resolved final. at the end of the 15 day period, the Vol- unteer will be removed from the Subpart C—VISTA Volunteer Early project and placed on Administrative Termination Hold, pending a decision as set forth in paragraph (c) of this section. § 1210.3–1 Grounds for termination. (c) The State office will take one of ACTION may terminate or suspend a the following actions concerning a Vol- Volunteer based on the Volunteer’s unteer who has been removed from a conduct for the following reasons: project assignment: (a) Conviction of any criminal of- (1) Accept the Volunteer’s resigna- fense under Federal, State, or local tion; statute or ordinance; (2) If removal was requested for rea- (b) Violation of any provision of the sons other than those listed in § 1210.3– Domestic Volunteer Service Act of 1, ACTION will attempt to place the 1973, as amended, or any ACTION pol- icy, regulation, or instruction; Volunteer on another project. If reas- (c) Failure refusal or inability to per- signment is not possible, the Volunteer form prescribed project duties as out- will be terminated for lack of suitable lined in the Project Narrative and/or assignment, and he or she will be given volunteer assignment description and special consideration for reinstate- as directed by the sponsoring organiza- ment; or tion to which the Volunteer is as- (3) If removal from the project is ap- signed; proved based on any of the grounds for (d) Involvement in activities which early termination as set forth in substantially interfere with the Volun- § 1210.3–1, the Volunteer may appeal the teer’s performance of project duties; termination grounds as detailed in sub- (e) Intentional false statement, omis- part C of this part to establish whether sion, fraud, or deception in obtaining such termination is supported by suffi- selection as a Volunteer; cient evidence. If ACTION determines (f) Any conduct on the part of the that the removal based on grounds de- Volunteer which substantially dimin- tailed in § 1210.3–1 is not established by ishes his or her effectiveness as a adequate evidence, then the procedures VISTA Volunteer; or (g) Unsatisfactory performance of outlined in § 1210.3–2(c)(2) will be fol- Volunteer assignment. lowed. (d) A Volunteer’s removal during a § 1210.3–2 Removal from project. term of service may also occur as a re- (a) Removal of a Volunteer from the sult of either the termination of, or re- project assignment may be requested fusal to renew, the Memorandum of and obtained by a written request sup- Agreement between ACTION and the ported by a statement of reason by: sponsoring organization, or the termi- (1) The Governor or chief executive nation or completion of the initial Vol- officer of the State or similar jurisdic- unteer assignment. In such cases, the tion in which the Volunteer is assigned Volunteer will be placed in Adminis- or, trative Hold status while the Regional (2) The sponsoring organization. The Office attempts to reassign the Volun- sole responsibility for terminating or teer to another project. If no appro- transferring a Volunteer rests with the priate reassignment within the Region ACTION Agency. is found within the Administrative (b) A request for removal of a Volun- Hold period, the Volunteer will be ter- teer must be submitted to the ACTION minated but will receive special consid- State Director, who will in turn notify eration for reinstatement as soon as an the Volunteer of the request. The State appropriate assignment becomes avail- Director, after discussions with the able. If appropriate reassignment is of- Volunteer and in consultation with the Regional Director, if necessary, has 15 fered the Volunteer and declined, AC- days to attempt to resolve the situa- TION has no obligation to offer addi- tion with the sponsor or the Governor’s tional or alternative assignments.
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§ 1210.3–3 Suspension. receipt of the Volunteer’s answer, the (a) The ACTION State Director may State Director or designee will send a suspend a Volunteer for up to 30 days written Notice of Decision to the Vol- in order to determine whether suffi- unteer by certified mail. (If no answer cient evidence exists to start termi- is received from the Volunteer within nation proceedings against the Volun- the time specified, the State Director teer. Suspension is not warranted if the or designee will send such notice with- State Director determines that suffi- in 5 days after the expiration of the cient grounds already exist for the ini- Volunteer’s time to answer.) tiation of termination. In that event, (2) If the decision is to terminate the the termination procedures contained Volunteer, the Notice will set forth the in § 1210.3–4 will be followed. reasons for the decision, the effective (b) Notice of suspension may be writ- date of termination (which, if the Vol- ten or verbal and is effective upon de- unteer has filed an answer, may not be livery to the Volunteer. Within 3 days earlier than 10 days after the date of after initiation of the suspension, the the Notice of Decision), and the fact Volunteer will receive a written notice that the Volunteer has 10 days in which of suspension setting forth in specific to submit a written appeal to the Re- detail the reason for the suspension. gional Director. During the suspension period the Vol- (3) A Volunteer who has not filed an unteer may not engage in project ac- answer pursuant to the procedures out- tivities, but will continue to receive all lined above is not entitled to appeal allowances, including stipend. the decision or request a hearing and (c) At the end of the suspension pe- may be terminated on the date of the riod, the Volunteer must either be re- Notice. assigned to a project, or termination (d) Allowances and Project Activities. proceedings must be initiated. (1) A Volunteer who files an answer § 1210.3–4 Initiation of termination. within the 10 days allowed by § 1210.3– 4(b) with the State Director or designee (a) Opportunity for Resignation. In in- following receipt of the notice of pro- stances where ACTION has reason to posed termination, will be placed in believe that a Volunteer is subject to Administrative Hold status, and may termination for any of the grounds continue to receive regular allowances, cited in § 1210.3–1, an ACTION staff but no stipend, in accordance with AC- member will discuss the matter with TION policy, until the appeal is finally the Volunteer. If, after the discussion, decided. The Volunteer may not engage the staff member believes that grounds in any project related activities during for termination exist, the Volunteer this time. will be given an opportunity to resign. (2) If the proposed termination is re- If the Volunteer chooses not to resign, the administrative procedures outlined versed, the Volunteer’s stipend and any below will be followed. other allowances lost during the period (b) Notification of Proposed Termi- of review will be reinstated retro- nation. The Volunteer will be notified, actively. in writing by certified mail, of AC- § 1210.3–5 Preparation for appeal. TION’s intent to terminate him or her by the ACTION State Director at least (a) Entitlement to Representation. A 15 days in advance of the proposed ter- Volunteer may be accompanied, rep- mination date. The letter must give resented and advised by a representa- the reasons for termination, and notify tive of the Volunteer’s own choice at the Volunteer that he or she has 10 any stage of the appeal. A person cho- days within which to answer in writing sen by the Volunteer must be willing and to furnish any affidavits or written to act as representative and not be dis- material. This answer must be sub- qualified because of conflict of posi- mitted to the ACTION State Director tion. or a designee identified in the notice of (b) Time for Preparation and Presen- proposed termination. tation. (1) A Volunteer’s representative, (c) Review and Notice of Decision. (1) if a Volunteer or an employee of AC- Within 5 working days after the date of TION, must be given a reasonable
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amount of time off from assignment to § 1210.3–7 Inquiry by Hearing Exam- present the appeal. iner. (2) ACTION will not pay travel ex- (a) Scope of Inquiry. (1) The Examiner penses or per diem travel allowances shall conduct an inquiry of a nature for either a Volunteer or the Volun- and scope appropriate to the issues in- teer’s representative in connection volved in the termination. If the Exam- with the preparation of the appeal, ex- iner determines that the termination cept to attend the hearing as provided involves relevant disputed issues of in § 1210.3–7(c)(5). fact, the Examiner must hold a hearing (c) Access to Agency Records. (1) A Vol- unless it is waived by the Volunteer. If unteer is entitled to review any mate- the Examiner determines that the ter- rial in his or her official Volunteer mination does not involve relevant dis- folder and any relevant Agency docu- puted issues of facts, the Examiner ments to the extent permitted by the need not hold a hearing, but must pro- Privacy Act and the Freedom of Infor- vide the parties an opportunity for oral mation Act, (5 U.S.C. 552a; 5 U.S.C. 552). presentation of their respective posi- Examples of documents which may be tions. At the Examiner’s discretion, withheld from Volunteers include ref- the inquiry may include: erences obtained under a pledge of con- (i) The securing of documentary evi- fidentiality, official Volunteer folders dence; of other Volunteers and privileged (ii) Personal interviews, including intra-Agency memoranda. telephone interviews; (2) A Volunteer may review relevant (iii) Group meetings; or documents in the possession of a spon- (iv) Affidavits, written interrog- sor to the same extent ACTION would atories or depositions. be entitled to review them. (2) The Examiner’s inquiry shall com- mence within 7 days after referral by § 1210.3–6 Appeal of termination. the Regional Director. The Examiner shall issue a report as soon as possible, (a) Appeal to Regional Director. A Vol- but within 30 days after referral, except unteer has 10 days from the Notice of when a hearing is held. If hearing is Decision issued by the State Director held, the Examiner shall issue a report or designee in which to appeal to the within 45 days after the referral. Regional Director. The appeal must be (b) Conduct of Hearing. If a hearing is in writing and specify the reasons for held, the conduct of the hearing and the Volunteer’s disagreement with the production of witnesses shall conform decision. The Regional Director has 10 with the following requirements: days in which to render a written deci- (1) The hearing shall be held at a sion on the Volunteer’s appeal, indi- time and place determined by the Ex- cating the reason for the decision. In aminer who shall consider the conven- notifying the Volunteer of the decision, ience of parties and witnesses and ex- the Regional Director must also inform pense to the Government in making the Volunteer of his or her opportunity the decision. to request the appointment of a Hear- (2) Ordinarily, attendance at the ing Examiner and the procedure to be hearing will be limited to persons de- followed. termined by the Examiner to have a di- (b) Referral to Hearing Examiner. If the rect connection with it. If requested by Volunteer is dissatisfied with the deci- the Volunteer, the Examiner must sion of the Regional Director, the Vol- open the hearing to the public. unteer has 5 days in which to request (3) The hearing shall be conducted so the appointment of a Hearing Exam- as to bring out pertinent facts, includ- iner. The Regional Director must act ing the production of pertinent records. on that request within 5 days. The (4) Rules of evidence shall not be ap- Hearing Examiner must possess the plied strictly, but the Examiner may qualifications specified in Appendix A exclude irrelevant or unduly repeti- to this part, and may not be an em- tious testimony or evidence. ployee of ACTION unless his or her (5) Decisions on the admissibility of principal duties are those of Hearing evidence or testimony shall be made by Examiner. the Examiner.
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(6) Testimony shall be under oath or portions of the testimony shall be affirmation, administered by the Ex- made part of the record of proceedings. aminer. When agreed to in writing, the sum- (7) The Examiner shall give the par- mary constitutes the report of the ties an opportunity to present oral and hearing. If the Examiner and the par- written testimony that is relevant and ties fail to agree on the hearing sum- material, and to cross-examine wit- mary, the parties are entitled to sub- nesses who appear to testify. mit written exceptions to any part of (8) The Examiner may exclude any the summary, and these written excep- person from the hearing for conduct tions and the summary will constitute that obstructs the hearing. the report of the hearing and shall be (c) Witnesses. (1) All parties are enti- made part of the record of proceedings. tled to produce witnesses. (3) The Volunteer may make a re- (2) Volunteers, employees of a spon- cording of the hearing at the Volun- sor, and employees of ACTION shall be teer’s own expense if no verbatim tran- made available as witnesses when re- quested by the Examiner. The Exam- script is made. iner may request witnesses on his or § 1210.3–8 Termination file and Exam- her own initiative. Parties shall fur- iner’s report. nish to the Examiner and to opposing parties a list of proposed witnesses, and (a) Preparation and Content. The Ex- an explanation of what the testimony aminer shall establish a termination of each is expected to show, at least 10 file containing documents related to days before the date of the hearing. the termination, including statements The Examiner may waive the time of witnesses, records or copies thereof, limit in appropriate circumstances. and the report of the hearing when a (3) Employees of ACTION shall re- hearing was held. The Examiner shall main in a duty status during the time also prepare a report of findings and they are made available as witnesses. recommendations which shall be made (4) Volunteers, employees and any part of the termination file. other persons who serve as witnesses (b) Review by Volunteer. On comple- shall be free from coercion, discrimina- tion of the termination file, the Exam- tion, or reprisal for presenting their iner shall make it available to the Vol- testimony. unteer and representative for review (5) The Examiner must authorize and comment before submission to the payment of travel expense and per Director of VISTA. Any comments by diem at standard Government rates for the Volunteer or representative should the Volunteer and a representative to be submitted to the Hearing Examiner attend the hearing. for inclusion in the termination file (6) The Examiner may authorize pay- not later than 5 days after the file is ment of travel expense and per diem at made available to them. The comments standard Government rates for other should identify those parts of the Ex- necessary witnesses to attend the hear- aminer’s report which support the ap- ing if he or she determines that the re- peal. quired testimony cannot be satisfac- torily obtained by affidavit, written in- (c) Submission of termination file. Im- terrogatories or deposition at less cost. mediately upon receiving the com- (d) Report of Hearing. (1) The Exam- ments from the Volunteer the Hearing iner shall determine how any hearing Examiner shall submit the termination shall be reported and shall have either file to the Director of VISTA. a verbatim transcript or written sum- mary of the hearing prepared, which § 1210.3–9 Decision by Director of VISTA. shall include all pertinent documents and exhibits submitted and accepted. If The Director of VISTA shall issue a the hearing is reported verbatim, the written decision, including a statement Examiner shall make the transcript a of the basis for the decision, within 10 part of the record of the proceedings. days after receipt of the termination (2) If the hearing is not reported ver- file. The decision of the Director of batim, a suitable summary of pertinent VISTA is the final Agency decision.
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§ 1210.3–10 Reinstatement of Volun- (d) The final decision on a Volunteer teer. appeal will be made by the Director of (a) If the Regional Director or Direc- VISTA as provided in § 1210.3. tor of VISTA reinstates the Volunteer, APPENDIX A TO PART 1210—STANDARD the Regional Director may at his or FOR EXAMINERS her discretion reassign the Volunteer to the Volunteer’s previous project or (a) An Examiner must meet the require- to another project. The Regional Direc- ments specified in either paragraph (1), (2), tor, in making such a decision, must (3), or (4) of this appendix: (1)(a) Current employment in Grades GS–12 request the Volunteer’s views, but has or equivalent, or above; the final decision on the Volunteer’s (b) Satisfactory completion of a specialized placement. course of training prescribed by the Office of (b) If the Volunteer’s termination is Personnel Management for Examiners; reversed, stipend and other allowances (c) At least four years of progressively re- lost during the appeal period will be sponsible experience in administrative, man- paid retroactively. agerial, professional, investigative, or tech- nical work which has demonstrated the pos- session of: § 1210.3–11 Disposition of termination (i) The personal attributes essential to the and appeal files. effective performance of the duties of an Ex- All termination and appeal files shall aminer, including integrity, discretion, reli- be forwarded to the Director of VISTA ability, objectivity, impartiality, resource- after a final decision has been made fulness, and emotional stability. (ii) A high degree of ability to: and are subject to the provisions of the —Identify and select appropriate sources of Privacy Act and Freedom of Informa- information; collect, organize, analyze and tion Act. No part of any successful ter- evaluate information; and arrive at sound mination appeal may be made part of, conclusions on the basis of that information; or included in, a Volunteer’s official —Analyze situations; make an objective folder. and logical determination of the pertinent facts; evaluate the facts; and develop prac- tical recommendations or decisions on the Subpart D—National Grant basis of facts; Trainees and Volunteers —Recognize the causes of complex prob- lems and apply mature judgment in assess- § 1210.4 Early termination procedures ing the practical implications of alternative for National Grant Trainees and solutions to those problems; Volunteers. —Interpret and apply regulations and other complex written material; Trainees and Volunteers serving in —Communicate effectively orally and in the National Grant Program as defined writing, including the ability to prepare in § 1210.1–3(e) will be subject to the clear and concise written reports; and same termination procedure as stand- —Deal effectively with individuals and ard VISTA Trainees and Volunteers groups, including the ability to gain the co- operation and confidence of others. with the following exceptions: (iii) A good working knowledge of: (a) For Trainees, the deselection pro- —The relationship between Volunteer ad- cedure, [See § 1210.2–2] will be handled ministration and overall management con- by the Project Manager in ACTION/ cerns; and Headquarters. —The principles, systems, methods and ad- (b) The Initiation of termination, ministrative machinery for accomplishing [See § 1210.3–4 (a) and (b)] will be han- the work of an organization. (2) Designation as an arbitrator on a panel dled by the VISTA Project Manager in of arbitrators maintained by either the Fed- ACTION/Headquarters, with the con- eral Mediation and Conciliation Service or currence of the appropriate State Di- the American Arbitration Association. rector. The Review and Notice of Deci- (3) Current or former employment as, or sion, [See § 1210.3–4(c)] will be handled current eligibility on the Office of Personnel by the VISTA Project Manager in AC- Management’s register for Hearing Exam- TION/Headquarters. iner, GS–935–0. (4) Membership in good standing in the Na- (c) The Appeal of termination, [See tional Academy of Arbitrators. § 1210.3–6(a)] will be handled by the (b) A former Federal employee who, at the Chief of VISTA Branch and not the Re- time of leaving the Federal service, was in gional Director. Grade GS–12 or equivalent, or above, and
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who meets all the requirements specified for shall be deemed to be a volunteer for a an Examiner except completion of the pre- period of 90 days thereafter. scribed training course, may be used as an (b) Grievance means a matter arising Examiner upon satisfactory completion of out of, and directly affecting, the vol- the training course. unteer’s work situation, or a violation of those regulations governing the PART 1211—VOLUNTEER terms and conditions of service result- GRIEVANCE PROCEDURES ing in the denial or infringement of a right or benefit to the grieving volun- Sec. teer. Terms and conditions of service 1211.1–1 Purpose. refer to those rights and privileges ac- 1211.1–2 Applicability. 1211.1–3 Definitions. corded the volunteer either through 1211.1–4 Policy. statute, Agency regulation, or Agency 1211.1–5 Matters not covered. policy. 1211.1–6 Freedom to initiate grievances. (1) The relief requested must be di- 1211.1–7 Entitlement to representation. rected toward the correction of the 1211.1–8 Time for preparation and presen- matter involving the affected indi- tation. vidual volunteer or the affected group 1211.1–9 Access to agency records. of volunteers and may request the revi- 1211.1–10 Informal grievance procedure. 1211.1–11 Initiation of formal grievance pro- sion of existing policies and procedures cedure. to ensure against similar occurrences 1211.1–12 Investigation by Grievance Exam- in the future. Requests for relief by iner. more than one volunteer arising from a 1211.1–13 Grievance file and examiner’s re- common cause within one region may port. be treated as a single grievance. The 1211.1–14 Final determination by Director of following are examples of grievable VISTA. matters: 1211.1–15 Disposition of grievance appeal files. (i) A volunteer is assigned to an area 1211.1–16 Grievance procedure for National of harsh climate where special clothing VISTA Grant Volunteers. is necessary and not already possessed APPENDIX A TO PART 1211—STANDARDS FOR by the volunteer. A request for a spe- EXAMINERS cial allowance for such clothing is arbi- trarily refused. AUTHORITY: Secs. 104(d), 402(14), 420, Pub. L. 93–113, 87 Stat. 398, 407, and 414. (ii) A volunteer submits a request for reimbursement for transportation SOURCE: 45 FR 39271, June 10, 1980, unless costs incurred while on authorized otherwise noted. emergency leave which is denied. (iii) The project sponsor fails to pro- § 1211.1–1 Purpose. vide adequate support to the volunteer This part establishes procedures necessary for that volunteer to perform under which certain volunteers en- the assigned work, such as the spon- rolled under Pub. L. 93–113 may present sor’s failure to provide materials to the and obtain resolution of grievances. volunteer which is necessary for the performance of the volunteer’s work. § 1211.1–2 Applicability. (c) State Program Officer means that This part applies to all volunteers en- ACTION official who is directly respon- rolled under part A of title I of the Do- sible at the first level for the project in mestic Volunteer Service Act of 1973, which the volunteer is serving. as amended, Pub. L. 93–113, (42 U.S.C. (d) Sponsor means a public or private nonprofit agency to which ACTION has 4951 et seq.). assigned volunteers. (e) Grievance Examiner or Examiner § 1211.1–3 Definitions. means a person having the qualifica- (a) Volunteer means a person enrolled tions described in Appendix A who is and currently serving as a full-time appointed to conduct an inquiry or volunteer under part A of title I of the hearing with respect to a grievance. Domestic Volunteer Service Act of (f) National VISTA Grants Program 1973. For the purpose of this part, a vol- means a program operated under part unteer whose service has terminated A, title I of the Domestic Volunteer
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Service Act in which ACTION awards a § 1211.1–6 Freedom to initiate griev- grant to a national grantee to operate ances. a VISTA Volunteer program on a na- The initiation of a grievance shall tional or multi-regional basis. not be construed as reflecting on a vol- (g) Local component means a local of- unteer’s standing, performance or de- fice or project affiliate of a national sirability as a volunteer. ACTION in- grantee which has VISTA Volunteers tends that each supervisor and sponsor, assigned to it under the National as well as ACTION and its employees, VISTA Grants Program. maintain a healthy atmosphere in (h) The Act means the Domestic Vol- which a volunteer can speak freely and unteer Service Act of 1973, Pub. L. 93– have frank discussions of problems. A 113, (42 U.S.C. 4951 et seq.), as amended. volunteer who initiates a grievance shall not as a result of such an action § 1211.1–4 Policy. be subjected to restraint, interference, It is ACTION’s policy to provide vol- coercion, discrimination or reprisal. unteers the widest latitude to present their grievances and concerns to appro- § 1211.1–7 Entitlement to representa- priate officials of ACTION and of spon- tion. soring organizations. This regulation is A volunteer may be accompanied, designed to assure that the rights of in- represented, and advised by a rep- dividual volunteers are recognized and resentative of the volunteer’s own to provide formal ways for them to choice at any stage of the proceeding. seek redress with confidence that they The volunteer shall designate his or will obtain just treatment. her representative in writing. A person chosen by the volunteer must be will- § 1211.1–5 Matters not covered. ing to act as representative and have Matters not within the definition of a no conflict between his or her position grievance as defined in § 1211.1–3(b) are and the subject matter of the griev- not eligible for processing under this ance. procedure. The following are specific examples of excluded areas and are not § 1211.1–8 Time for preparation and intended as a complete listing of the presentation. matters excluded by this part: (a) Both a volunteer and a volun- (a) The establishment of a volunteer teer’s representative, if another volun- project, its continuance or discontinu- teer or an employee of ACTION, must ance, the number of volunteers as- be given a reasonable amount of ad- signed to it, increases or decreases in ministrative leave from their assign- the level of support provided to a ments to present a grievance or appeal. project, suspension or termination of a (b) ACTION will not pay travel ex- project, or selection and retention of pense or per diem travel allowances for project staff. either a volunteer or his or her rep- (b) Matters for which a separate ad- resentative in connection with the ministrative procedure is provided. preparation of a grievance or appeal, (c) The content of any law, published except in connection with a hearing rule, regulation, policy or procedure. and the examination of the grievant (d) Matters which are, by law, subject file as provided in § 1211.1–12(c). to final administrative review outside ACTION. (e) Actions taken in compliance with § 1211.1–9 Access to agency records. the terms of a contract, grant, or other (a) A volunteer is entitled to review agreement. any material in his or her official vol- (f) The internal management of the unteer folder and any relevant Agency ACTION Agency unless such manage- documents to the extent permitted by ment is specifically shown to individ- the Freedom of Information Act and ually and directly affect the volun- the Privacy Act, as amended, 5 U.S.C. teer’s work situation or the terms and 552, U.S.C. 552a. Examples of docu- conditions of service as defined in ments which may be withheld from vol- § 1211.1–3(b). unteers include references obtained
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under a pledge of confidentiality, offi- working days after receipt of the deci- cial volunteer folders of other volun- sion of the sponsor’s chief executive of- teers, and privileged intra-agency doc- ficer. The State Director or designee uments. may not refuse to receive a complaint, (b) A volunteer may review relevant even if he or she believes it does not documents in the possession of a spon- constitute a grievance, and shall re- sor to the extent such documents are spond to it in writing within five (5) disclosable under the Freedom of Infor- working days after receipt. The re- mation Act and Privacy Act. sponse may indicate that the matter is not grievable. If the State Director or § 1211.1–10 Informal grievance proce- designee fails to meet the time limit dure. for response, the volunteer may ini- (a) Initiation of grievance. A volunteer tiate a formal grievance. may initiate a grievance within 15 cal- (c) Discussion. All parties to the in- endar days after the event giving rise formal grievance procedure must be to the grievance occurs, or within 15 prepared to participate in full discus- calendar days after becoming aware of sion of the grievance, and to permit the the event. A grievance arising out of a participation of others who may have continuing condition or practice that knowledge of the circumstances of the individually affects the volunteer may grievance in the discussion. State Pro- be brought at any time. A volunteer gram Officers and other ACTION em- initiates a grievance by presenting it ployees may participate in discussions in writing to the chief executive officer and provide guidance with respect to of the sponsor, or the representative ACTION policies and procedures, at the designated to receive grievances from request of any party, even prior to sub- volunteers. The designated representa- mission of a grievance to them. tive may not be the immediate super- (d) Sponsor grievance procedure. A visor of volunteers assigned to the sponsor may substitute its own griev- sponsor. The chief executive officer of ance procedure for the procedure de- the sponsor or the designated rep- scribed in paragraph (a) of this section. resentative shall respond in writing to Any such procedure must provide the the grievance within five (5) working volunteer with an opportunity to days after receipt. The chief executive present a grievance at least as com- officer or designee may not refuse to prehensive as that contained in this respond to a complaint on the basis section, must meet the time limits of that it is not a grievance as defined in this section, and must be provided in § 1211.1–3(b), or that it is excluded from writing to all volunteers. In order to coverage under § 1211.1–5, but may, in utilize its own grievance procedures, the written response, refuse to grant the sponsor must obtain approval of the relief requested on either of these the procedure from the ACTION State grounds. Director and file a copy of this ap- If the grievance involves a matter proved procedure with the State Office. over which the sponsor has no control, or if the chief executive officer is the immediate supervisor of the volunteer, § 1211.1–11 Initiation of formal griev- the procedures described in this section ance procedure. may be omitted, and the volunteer may (a) Submission of grievance to Regional present the grievance in writing di- Director. If a volunteer is dissatisfied rectly to the State Director or designee with the response of the State Director as described in paragraph (b) of this or designee required by § 1211.1–10(b), he section within the time limits specified or she may present the grievance in in this paragraph (a). writing to the Regional Director. To be (b) Consideration by ACTION State Di- eligible for the formal grievance proce- rector or designee. If the matter is not dure, the volunteer must have com- resolved to the volunteer’s satisfaction pleted action under the informal proce- by the sponsor’s chief executive officer, dure contained in § 1211.1–10 or have al- the volunteer may submit the griev- leged that the State Director or des- ance in writing to the ACTION State ignee exceeded the time specified for Director or designee within five (5) response.
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(b) Contents of grievance. The volun- for the decision and of the volunteer’s teer’s grievance must be in writing, right to appeal. contain sufficient detail to identify the (f) Time Limit. If a volunteer is dissat- subject matter of the grievance, speci- isfied with the decision of the Regional fy the relief requested, and be signed Director or designee on the merits of by the volunteer or a person designated the grievance, he or she shall notify in writing by the volunteer to be the the Regional Director within five (5) representative for the purpose of the calendar days from receipt of the deci- grievance. sion and request the appointment of an (c) Time limit. The volunteer must Examiner. If the volunteer receives no submit the grievance to the Regional response from the Regional Director or Director or designee no later than 15 Office of General Counsel as required calendar days after receipt of the infor- by paragraphs (d) and (e) of this section mal response by the State Director or within five (5) calendar days after the designee. If no response is received by prescribed time limits, the volunteer the volunteer 15 calendar days after may request in writing that the Re- the grievance is received by the State gional Director appoint a Grievance Director or designee, the volunteer Examiner. Upon receipt of this request, may submit the grievance directly to the Regional Director or designee shall the Regional Director or designee for appoint within five (5) calendar days an consideration. Examiner who shall possess the quali- (d) Within ten (10) working days of the fications specified in Appendix A to receipt of the grievance, the Regional Di- this part. rector or designee shall, in whole or in part, either decide it on its merits or reject § 1211.1–12 Investigation by Grievance the grievance. A grievance may be re- Examiner. jected, in whole or in part, for the fol- lowing reasons: (a) Scope of investigation. The Exam- (1) It was not filed within the time iner shall conduct an investigation of a limit specified in paragraph (c) of this nature and scope appropriate to the section, or issues involved in the grievance. (2) The grievance consists of matters Unless waived by the volunteer, a not contained within the definition of a hearing must be held if the Examiner grievance. finds that the grievance involves dis- (e) Rejection of a grievance by the Re- puted questions of fact that go to the gional Director or designee may be ap- heart of the agency determination. pealed by the volunteer within ten (10) Only those facts found necessary by days of receipt of the notice to the Office the Examiner on which to base his or of General Counsel. The Office shall im- her findings go to the heart of the mediately request the grievance file Agency determination. from the Regional Director and, within If the grievance does not involve such five (5) working days of receipt of it, disputed questions of fact, or if the vol- determine the appropriateness of the unteer waives a hearing, the Examiner rejection. If the grievance was properly need not hold a hearing but must pro- rejected by the Regional Director, the vide the parties an opportunity for Office shall so notify the volunteer of presentation of their respective posi- its opinion and the reasons supporting tions. At the Examiner’s discretion, it, and that such rejection is the final the investigation may include: Agency decision in the matter. If the (1) The securing of documentary evi- Office determines that the grievance dence, was improperly rejected, it shall return (2) Personal interviews, including the grievance to the Regional Director telephone interviews, for a determination on its merits by (3) Group meetings, the Regional Director. Within ten (10) (4) Affidavits, written interrogatories working days of such notification and or depositions. receipt of the grievance file, the Re- (b) Conduct of Hearing. If a hearing is gional Director or designee shall notify held, the conduct of the hearing and the volunteer in writing of the decision production of witnesses shall conform on the merits and specify the grounds with the following requirements:
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(1) The hearing shall be held at a diem at standard Government rates for time and place determined by the Ex- the volunteer and the representative to aminer who shall consider the conven- attend the hearing. Payment of travel ience of parties and witnesses and ex- expenses and per diem at standard Gov- pense to the Government in making his ernment rates for other witnesses to or her decision. attend the hearing are authorized only (2) Attendance at the hearing will be after the Examiner determines that the limited to persons determined by the required testimony cannot be satisfac- Examiner to have a direct connection torily obtained by affidavit, written in- with the grievance. If requested by the terrogatories, or deposition, at a lesser volunteer, the Examiner must open the cost. hearing to the public. (d) Recording of Hearing. A grievant (3) The hearing shall be conducted so may make a recording of the hearing as to bring out pertinent facts, includ- at his or her own expense if no ver- ing the production of pertinent records. batim transcript is made. Such a re- (4) Formal rules of evidence shall not cording is in no way to be treated as be applied strictly, but the Examiner the official transcript of the hearing. may exclude irrelevant or unduly rep- (e) Report of Hearing. The Examiner etitious testimony or evidence. shall normally prepare a written sum- (5) Decisions on the admissibility of mary of the hearing which shall in- evidence or testimony shall be made by clude all documents and exhibits sub- the Examiner. mitted to and accepted by the Exam- (6) Testimony shall be under oath or iner during the course of the grievance. affirmation, administered by the Ex- An Examiner may require a verbatim aminer. transcript if he or she determines that (7) The Examiner shall give the par- the grievance is so complex as to re- ties an opportunity to present oral and quire such a transcript. If the hearing written testimony that is relevant and is reported verbatim, the Examiner material, and to cross-examine wit- shall make the transcript a part of the nesses who testify. record of the proceedings. If the hear- (8) The Examiner may exclude any ing is not reported verbatim, a suitable person from the hearing for conduct summary of pertinent portions of the that obstructs the hearing. testimony shall be made part of the (c) Witnesses. (1) All parties are enti- record of proceedings. In such cases, tled to produce witnesses. the summary together with exhibits (2) Volunteers, employees of a spon- shall constitute the report of the hear- sor, and employees of ACTION shall be ing. The parties are entitled to submit made available as witnesses when re- written exceptions to any part of the quested by the Examiner. The Exam- summary, and these written exceptions iner may request witnesses on his or shall be made part of the record of pro- her initiative. Parties shall furnish to ceedings. the Examiner and to opposing parties a list of proposed witnesses, and an ex- § 1211.1–13 Grievance file and exam- planation of what the testimony of iner’s report. each is expected to show, at least ten (a) Preparation and content. The Ex- (10) calendar days before the date of aminer shall establish a grievance file the hearing. The Examiner may waive containing all documents related to the time limit in appropriate cir- the grievance, including statements of cumstances. witnesses, records or copies thereof, (3) Employees of ACTION shall re- and the report of the hearing when a main in a duty status during the time hearing was held. The file shall also they are made available as witnesses. contain the Examiner’s report of find- (4) Volunteers, employees and any ings and recommendations. other persons who serve as witnesses (b) Review by volunteer. On comple- shall be free from coercion, discrimina- tion of the inquiry, the Examiner shall tion or reprisal for presenting their make the grievance file available to testimony. the volunteer and the representative, if (5) The Examiner must authorize any, for review and comment. Their payment of travel expenses and per coments, if any, shall be submitted to
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the Examiner within five (5) calendar the Regional Director as the official in days after the file is made available § 1211.1–11. and shall be included in the file. (c) Examiner’s report. After the volun- APPENDIX A TO PART 1211—STANDARDS teer has been given an opportunity to FOR EXAMINERS review the grievance file, the Examiner shall submit the complete grievance An examiner must meet the requirements file to the Director of VISTA. specified in either paragraph (1), (2), (3), or (4) of this appendix: (1) Current or former federal employees § 1211.1–14 Final determination by Di- now or formerly in grade GS–12 or equiva- rector of VISTA. lent, or above who have: The Director of VISTA or designee (a) At least four (4) years of progressively shall issue a written decision on the responsible experience in administrative, appeal to the volunteer within ten (10) managerial, professional, investigative, or working days after receipt of the ap- technical work which has demonstrated the peal file. The decision shall include a possession of: statement of the basis for the deter- (i) The personal attributes essential to the effective performance of the duties of an Ex- mination, and shall be the final Agency aminer, including integrity, discretion, reli- decision. ability, objectivity, impartiality, resource- fulness, and emotional stability. § 1211.1–15 Disposition of grievance (ii) A high degree of ability to: appeal files. Identify and select appropriate sources of All grievance appeal files shall be re- information; collect, organize, analyze, and tained by the Director of VISTA after evaluate information; and arrive at sound conclusions on the basis of that information; the grievance has been settled, or a Analyze situations; make an objective and final decision has been made and im- logical determinationn of the pertinent plemented. No part of a grievance or facts; evaluate the facts; and develop prac- appeal file may be made part of, or in- ticable recommendations or decisions on the cluded in, a volunteer’s official folder. basis of facts; Recognize the causes of complex problems § 1211.1–16 Grievance procedure for and apply mature judgment in assessing the National VISTA Grant Volunteers. practical implications of alternative solu- tions to those problems; The grievance procedure for National Interpret and apply regulations and other VISTA Grant Volunteers shall be the complex written material; same as that provided in this part with Communicate effectively, orally and in the following substitutions of officials: writing, including the ability to prepare (a) Informal grievance procedure: clear and concise written reports; and (1) The initiation of an informal Deal effectively with individuals and grievance for a National Grant VISTA, groups, including the ability to gain the co- see § 1211.1–10, shall normally be to the operation and confidence of others. sponsor of the local component. If the (iii) A good working knowledge of: grievance involves a matter solely The relationship between volunteer admin- within the control of the ACTION istration and overall management concerns; State Office, the volunteer may present and the grievance to the State Director or The principles, systems, methods, and ad- designee in lieu of the local component ministrative machinery for accomplishing sponsor. the work of an organization. (2) If the volunteer is not satisfied (2) Designation as an arbitrator on a panel of arbitrators maintained by either the Fed- with the response of the appropriate of- eral Mediation and Conciliation Service or ficial (sponsor of local component, or the American Arbitration Association. State Director or designee), the volun- (3) Current or former employment as, or teer may submit the grievance to the current eligibility on the Office of Personnel chief executive of the national grantee. Management register for Examiners (b) Formal grievance procedure: GS–935–0. The Chief, VISTA Program Develop- (4) Membership in good standing in the Na- ment Branch or designee shall replace tional Academy of Arbitrators.
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PART 1212—VOLUNTEER AGENCIES 1213.6–7 Evaluation. 1213.6–8 Limitation on labor and anti-labor PROCEDURES FOR NATIONAL activities. GRANT VOLUNTEERS [RESERVED] 1213.6–9 Loans and debts. PART 1213—ACTION COOPERATIVE Subpart G—Miscellaneous VOLUNTEER PROGRAM 1213.7–1 Student loan deferrals. 1213.7–2 Death benefits. Subpart A—General 1213.7–3 Firearms.
Sec. AUTHORITY: Secs. 121, 122, 402 (12) and (14) 1213.1–1 Introduction. and 420 of Pub. L. 93–113, 87 Stat. 395, 400, 401, 407 and 414. Subpart B—Description of Volunteer Service SOURCE: 40 FR 10670, Mar. 7, 1975, unless otherwise noted. 1213.2–1 Enrollment and duration of service. 1213.2–2 Provisional volunteers. 1213.2–3 Extension of service and reenroll- Subpart A—General ment. 1213.2–4 Living conditions. § 1213.1–1 Introduction. 1213.2–5 Role of the volunteer. (a) Section 122(a), part C, of the Do- mestic Volunteer Service Act of 1973 Subpart C—ACTION Provided Volunteer (the Act), Pub. L. 93–113, 87 Stat. 401, Support authorizes the Director of ACTION to 1213.3–1 Financial support. conduct and to make contracts for spe- 1213.3–2 Transportation. cial volunteer programs to encourage 1213.3–3 Health support. wider volunteer participation on a full- 1213.3–4 Legal support. time basis to strengthen and supple- 1213.3–5 Insurance. ment efforts to meet a broad range of 1213.3–6 Leave. 1213.3–7 Federal service. human, social, and environmental 1213.3–8 Lost property. needs, particularly those related to poverty. The ACTION Cooperative Vol- Subpart D—Sponsor Provided Volunteer unteer Program (ACV) is one of these Support special volunteer programs. It provides full-time volunteer service opportuni- 1213.4–1 Training. 1213.4–2 Supervision. ties for individuals in assignments with 1213.4–3 Job-related transportation. nonprofit and public agency sponsors 1213.4–4 Supplies and equipment and office involving a broad range of human, so- facilities. cial, and environmental needs, particu- 1213.4–5 Emergencies. larly those related to poverty. Organi- zations wishing to become sponsors Subpart E—Administrative Hold—Griev- enter into an agreement with ACTION ances, Removal, Resignation, Suspen- to share expenses associated with ACV sion, and Termination volunteer assignments. The sponsor’s 1213.5–1 Administrative hold. share consists of reimbursing ACTION 1213.5–2 Volunteer grievances. for the direct costs of volunteer sup- 1213.5–3 Resignation. port, i.e. allowances, stipend and other 1213.5–4 Sponsor request for removal of vol- direct benefits. unteer. (b) Section 122(b) requires that the 1213.5–5 Suspension and termination. assignment of ACV volunteers be on Subpart F—Special Conditions Affecting such terms and conditions as the Direc- Volunteer Service tor shall determine. (c) Section 122(c) provides that the 1213.6–1 Sponsor’s employment of volunteer. Director may provide to persons serv- 1213.6–2 Nondisplacement of employees and ing as full-time volunteers in a pro- impairment of contracts of service. gram of at least one year’s duration 1213.6–3 Nonappropriate assignments. 1213.6–4 Political activities and limitation such allowances and stipends as he de- of unlawful activities. termines are necessary. The kinds and 1213.6–5 Nondiscrimination. amount of such allowances and sti- 1213.6–6 Religious activities. pends may not exceed those authorized
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to be provided to VISTA volunteers § 1213.2–5 Role of the volunteer. (part A, title I, Pub. L. 93–113). The volunteer’s assignments are car- ried out under the auspices of the spon- Subpart B—Description of sor. The volunteer assumes a ‘‘live-in’’ Volunteer Service obligation carrying his work into all facets of community life and social ac- § 1213.2–1 Enrollment and duration of tivity. He is available for service with- service. out regard to regular working hours ACTION enrolls an individual in ACV seven days a week, except for periods of during the preservice processing it pro- approved leave. vides. Such enrollment is for a period comprising the time of such processing, Subpart C—ACTION Provided ACTION preservice orientation, and a Volunteer Support one-year assignment to a project. § 1213.3–1 Financial support. § 1213.2–2 Provisional volunteers. (a) Food and lodging. Each ACV vol- Individuals are considered to be pro- unteer receives from ACTION a food visional volunteers during the period of and lodging allowance approximately pre-service processing and ACTION commensurate with the actual stand- preservice orientation. They have all ard of living of the residents of the the rights and benefits and are subject community to which he is assigned. to all the duties of volunteers, except The amount of this allowance is deter- as expressly provided in these regula- mined by the Regional Office after con- tions or where it would appear from sultation with the sponsor. the language of a section of the regula- (b) Personal living allowance. ACTION tions to be inappropriate. also provides each volunteer a personal living allowance of $75 per month. It is § 1213.2–3 Extension of service and re- enrollment. intended to cover incidental expenses and local travel. In certain situations, a volunteer (c) Adjustment allowance. At the be- may have his period of volunteer serv- ginning of service, a volunteer may re- ice extended for not more than one ceive from ACTION an adjustment al- year, at the request of a sponsor and lowance when necessary to cover the the concurrence of the appropriate AC- initial cost of securing and setting up TION Regional Director. living quarters. Such an allowance is A volunteer may only be reenrolled usually provided only to volunteers for a period of at least one year. A who serve outside their home area. It is sponsor must request the reenrollment not usually available to volunteers re- and it must be approved by the appro- cruited locally for an assignment in priate ACTION Regional Director. No their home or nearby communities. volunteer may serve for more than a (d) Stipend. At the conclusion of the total of five years in full-time volun- term of service, each volunteer re- teer programs under Title I of Pub. L. ceives a stipend of $50 for each month 93–113. of service on an ACV project. Volun- Such extensions and reenrollments teers may be authorized to make bi- may be for the same or different weekly allotments from the stipend, projects and may include interregional not in excess of $12.50, in extraordinary and intraregional transfers. circumstances. These may include al- lotments for obligations incurred prior § 1213.2–4 Living conditions. to service for family support, insurance To the extent practicable volunteers or loan payments and income taxes. are expected to make a personal com- (e) Provisional volunteers. Provisional mitment to live among and at the eco- volunteers do not receive any allow- nomic level of the people served by the ances nor do they accrue stipends. Dur- project in which the volunteer works. ing the period they are provisional vol- The sponsor will insure that this com- unteers their food and lodging is pro- mitment is observed. vided by ACTION and they receive a
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nominal amount of money for living Each volunteer must specify a home expenses. of record at the time he is enrolled. (f) Emergencies. In case of emer- Subsequent modification of the home gencies, ACTION may provide the vol- of record may be authorized in certain unteer with assistance and support to circumstances at the discretion of the prevent injury or hardship to him, in- Regional Director. cluding a $500 advance against allow- ances and stipends due the volunteer or § 1213.3–3 Health support. to be paid subsequently to him during ACTION provides ACV volunteers his volunteer service. with a health benefits program at no (g) No dependent support. ACTION as- cost to the volunteers. sumes no financial responsibility for a Coverage includes most medical and non-volunteer spouse, a volunteer’s surgical costs, hospitalization, pre- children or other dependents. scription drugs, and emergency dental care. ACTION reserves the right to § 1213.3–2 Transportation. alter the extent, or the method of pro- viding health care for volunteers. In ACTION will be responsible for pro- nonemergency situations, the Regional viding the volunteer with needed trans- Office must clear hospitalization or portation for the following purposes: other serious (in excess of $150) treat- (a) To, and when appropriate, from ments. volunteer/sponsor staging; (b) To the pre-service processing site, § 1213.3–4 Legal support. whether it is the ACTION Regional Of- ACTION will pay certain legal ex- fice or any other designated facility; penses where volunteers are involved in (c) To the project site following com- criminal or civil judicial or adminis- pletion of pre-service processing, and trative proceedings to the extent pro- at the beginning of the volunteer’s vided in part 1220. terms of service; (d) For the return trip from the § 1213.3–5 Insurance. projects site to the volunteer’s home of (a) ACV volunteers are covered by record following completion of service; the Federal Employees Compensation (e) Whenever necessary to enable the Act. This provides a broad-based work- volunteer to travel outside the geo- men’s compensation-type coverage for graphic area to which he has been as- volunteer job-related accidents and oc- signed when he does so at the request cupational sickness. of the Government; (b) ACV volunteers are also Federal (f) When approved in cases of emer- employees for the purpose of the Fed- gency. eral Tort Claims Act. Any third-party For the purpose of paragraph (d) of claims for injury or damage to prop- this section, the term ‘‘home of erty arising out of the volunteer’s job- record’’ shall be either: related activities will be treated as (1) The legal residence of the volun- claims against the United States. teer’s parent or legal guardian if the volunteer had been residing with the § 1213.3–6 Leave. parent or legal guardian immediately (a) Vacation leave. Once on the job for prior to entering ACTION service, or if four months, an ACV volunteer earns the volunteer was a full-time student one day of leave for each full month of whose permanent residency was with service up to a maximum of seven days, the parent or legal guardian. including one weekend. No leave is to (2) The residence established by the be granted during the last month of volunteer while attending college im- service, except for emergencies. During mediately prior to entering ACTION. leave, the volunteer’s regular support (3) The residence established by the allowances are continued. No leave volunteer while employed immediately may be taken without the approval of prior to entering ACTION. the sponsor. (4) The legal residence established by (b) Emergency leave. Should a member the volunteer for purposes of voting of a volunteer’s immediate family— and/or payment of state tax. spouse, mother, father, sister, brother,
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child or guardian—become critically ill (b) In-service training will be con- or die, emergency leave may be grant- ducted by the sponsor in accordance ed by the sponsor for a period of up to with plans agreed upon during the pro- one week. Any additional time requires gram development process, and sub- the approval of the ACTION Regional mitted to ACTION as part of the agree- Office. It does not count against vaca- ment. Those plans must be tailored to tion leave. The volunteer will be paid the volunteer’s needs for additional for transportation by the fastest sched- skills and information in the perform- uled carrier to and from the emergency ance of assigned tasks. site and for actual travel expenses in- curred, but not in excess of those au- § 1213.4–2 Supervision. thorized in standard government travel regulations. The sponsor has the sole responsi- bility for providing appropriate super- § 1213.3–7 Federal service. vision, leadership, and direction to the volunteers in conformance with the Section 415(c) of the Act provides plan prepared in cooperation with AC- that should an ACV volunteer subse- TION and submitted with the project quently enter Federal service, his pe- riod of volunteer service counts as a proposal. The plan is to be executed in like period of Federal service for cer- such a manner that the volunteers can tain purposes, including job security attain project goals within the pro- and retirement benefits. posed time frame.
§ 1213.3–8 Lost property. § 1213.4–3 Job-related transportation. (a) The Regional Director may at his The sponsor is responsible for deter- discretion reimburse volunteers or mining the job-related transportation trainees for or replace lost, damaged, needs of the volunteer. The volunteers or stolen property; cash representing are expected to use public transpor- certain allowances; and equipment and tation in connection with their work supplies if: whenever it is available and adequate. (1) Reimbursement is essential to the When it is not, the sponsor shall pro- volunteer’s capacity to serve effec- vide suitable private transportation, tively in his particular assignment for including obtaining and maintaining the duration of his service, and motor vehicles for the job-related use (2) The loss, damage, or theft did not of the volunteers as appropriate. result from the volunteer’s negligence. Whether the sponsor purchases vehicles (b) Lost or stolen cash may be reim- or obtains them through a leasing ar- bursed only if it represents the volun- rangement, he is responsible for moni- teer’s food and lodging or living allow- toring the use of those vehicles and re- ance or other payments essential to stricting the use of transportation pro- the volunteer’s service. Lost or stolen vided to volunteers to work on the cash representing payment of stipend project. The volunteer and the sponsor or vacation allowances will not be re- are jointly responsible for compliance imbursed. with all state and local laws con- (c) No reimbursement will be made cerning vehicle registration, operator for luxury items, such as photographic licensing, and financial responsibility or phonographic equipment or jewelry. on any private vehicles used by the vol- unteer, either as part of his work as- Subpart D—Sponsor Provided signment or for personal convenience. Volunteer Support § 1213.4–4 Supplies and equipment and § 1213.4–1 Training. office facilities. (a) The sponsor is fully responsible The sponsor is responsible for pro- for designing and implementing a pro- viding most job-related support involv- gram of in-service training which will ing facilities, equipment, and completely equip the volunteer to per- consumable supplies needed by the vol- form the tasks to which he has been as- unteer, including telephone and secre- signed. tarial support.
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§ 1213.4–5 Emergencies. Grievance Procedure, part 1211, fur- In case of emergencies in which it is nished to each volunteer, applies to not possible for ACTION to provide a certain of these matters. This proce- volunteer with the necessary assist- dure is applicable to situations in ance and support in time to prevent in- which the volunteer believes there has jury or hardship to him, the sponsor been a deviation from, misinterpreta- may furnish the needed assistance, in- tion or misapplication of laws, regula- cluding an advance of up to $500 from tions, policies or procedures governing its own funds to the volunteer. Such his service. (b) The Grievance Procedure estab- advances, however, should be cleared in lishes a formal and informal mecha- advance by telephone with the ACTION nism to resolve such problems. The in- Regional Director or designee. formal mechanism aims to resolve dis- putes at the level of the sponsor and Subpart E—Administrative Hold— the state program officer. The formal Grievances, Removal, Res- part of the Grievance Procedure pro- ignation, Suspension and Ter- vides a hearing in certain cases and in- mination cludes appeals to ACTION’s national office in Washington. § 1213.5–1 Administrative hold. (c) The procedure that the sponsor (a) Volunteers will be placed in Ad- employs at the informal stage of the ministrative Hold Status under the fol- ACTION Grievance Procedure will also lowing circumstances: be used for any disputes between the (1) No placement after training. sponsor and a volunteer not involving a (2) Pending transfer to a new project. law or regulation or an ACTION policy (3) Leave taken for personal reasons and procedure. in excess of the seven days for vacation leave, seven days for emergency leave, § 1213.5–3 Resignation. seven days for extension beyond three A volunteer may resign at any time, months, and fourteen days for reenroll- by notifying the sponsoring organiza- ment. tion and the Regional Office. When (4) Absence from project site without practicable, thirty days advance notice authority of the sponsoring organiza- should be given to insure that the de- tion. parture will be only minimally disrup- (5) During termination action. tive to the project. In case of resigna- (6) Arrest and placement in jail with- tion, all outstanding advances, includ- out bail, depending on nature of ing unearned vacation allowances, are charges. deducted from the volunteer’s stipend. (7) Removal from site at request of The volunteer receives his final stipend sponsoring organization, pending deci- check three to five weeks after re- sion on transfer to new assignment. gional submission of the termination (b) Exceptions to these guidelines papers to ACTION/Washington. must be authorized by the Regional Di- rector. Volunteers may be placed in § 1213.5–4 Sponsor request for removal Administrative Hold status for up to 30 of volunteer. days. In exceptional circumstances, the The sponsoring organization may re- Regional Director may extend this pe- quest ACTION to remove a volunteer riod of time as appropriate. The Re- whose performance in its view is unsat- gional Director may modify any and all isfactory at any time. Before resorting allowances, including stipend, when a to a formal request for removal the volunteer is placed in Administrative sponsor should contact the appropriate Hold status. ACTION state official to seek help in trying to resolve any problem with a § 1213.5–2 Volunteer grievances. volunteer. The sponsor may then pre- (a) At times, a volunteer will con- pare a written request for removal and sider that he has been adversely af- submit it to the Regional Office. AC- fected in some matter arising out of his TION may, depending on the cir- work situation or the terms and condi- cumstances, follow one of three courses tions of his service. The Volunteer of action: (a) Suspend the volunteer, (b)
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terminate him, or (c) transfer him to termination is entitled to the following another project. administrative considerations: (1) Reassignment to another project § 1213.5–5 Suspension and termination. where possible. (a) Causes. ACTION may suspend or (2) If reassignment is not possible at terminate a volunteer for any of the the time of project close-out, and if the following reasons: volunteer wishes to resume service (1) Conviction of any criminal offense (provided that his/her job performance under Federal, state, or local statute has been satisfactory), he/she may, at or ordinance; the discretion of the Regional Director, (2) Violation of any provision of the receive special consideration for rein- Domestic Volunteer Service Act of statement as soon as an appropriate 1973, or any ACTION policy, regulation slot is open. or instruction; If a volunteer wishes, he/she may ter- (3) Failure, refusal or inability to minate without prejudice in the event perform prescribed project duties as that a Memorandum of Agreement be- outlined in the project proposal and di- tween ACTION and the sponsor is ter- rected by the sponsoring organization minated. to which the volunteer is assigned; (d) Deselection of a provisional volun- (4) Involvement in activities which teer. The Regional Director may substantially interfere with the volun- deselect a provisional volunteer on the teer’s performance of his/her duties on grounds listed in paragraph (a) of this the project; section or for a failure to meet training (5) Intentional false statement, omis- or selection standards during pre-serv- sion, fraud, or deception in obtaining ice orientation. Procedures for such selection as a volunteer; deselection are contained in part 1210. (6) Any conduct on the part of the volunteer which substantially dimin- [40 FR 10670, Mar. 7, 1975; 46 FR 6951, Jan. 22, ishes his/her effectiveness as a volun- 1981] teer; (7) Inability to perform the project Subpart F—Special Conditions duties because of serious illness, med- Affecting Volunteer Service ical disability, or pregnancy, as deter- mined by the attending physician, in § 1213.6–1 Sponsor’s employment of accordance with ACTION policy; volunteer. (8) Lack of a viable job for which the ACV volunteers make a commitment volunteer is qualified if the initial job to one full year of ACTION service. assignment ends or is terminated prior Similarly, ACTION asks that the spon- to completion of a period of service; sor on his part must honor the spirit of (9) Unsatisfactory job performance. that commitment and refrain from of- Procedures for the suspension and ter- fering fully paid employment to volun- mination of volunteers are contained teers during their first year of service. in part 1210. Volunteers may not perform services (b) Suspension. Volunteers may be or duties or engage in activities for suspended for up to 30 days to enable which the sponsor receives or requests ACTION to determine whether termi- any compensation. Volunteers may not nation proceedings should be started receive any other compensation, di- against the volunteer. Suspension is rectly or indirectly, from a sponsor not warranted if sufficient evidence ex- while serving as a volunteer. ists to start termination proceedings. (c) Termination of or refusal to renew § 1213.6–2 Nondisplacement of employ- ACTION/sponsoring organization agree- ees and impairment of contracts of ment. If the Memorandum of Agree- service. ment between ACTION and a spon- An ACV volunteer’s assignment is soring organization is terminated or limited to activities that would not not renewed, a volunteer who is re- otherwise be performed by employed moved from the project and whose re- workers and which will not supplant moval was not caused by conduct the hiring of or result in the displace- which would otherwise be grounds for ment of employed workers, or impair
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existing contracts for service. (part as part of their duties. Volunteers who 1216 implements this provision.) serve in an institution that gives reli- gious instruction or engages in other § 1213.6–3 Nonappropriate assign- religious activities will not be used as ments. replacements for regular personnel of (a) An assignment is not appropriate the institution. For example, volun- for a volunteer if: teers assigned to serve in a program (1) The service, duty, or activity is conducted under the auspices of a principally administrative or clerical, church-related school may not be used or as substitutes for regular teachers in (2) The volunteer is not directly in the school. They may, however, work contact with groups or individuals who in new programs which are carried on are to be served by the project or is not in addition to the school’s regular pro- performing services, duties, or engaged grams and which are conducted in con- in activities which are authorized formance with the above restrictions. under section 122(a) of the Act.
§ 1213.6–4 Political activities and limi- § 1213.6–7 Evaluation. tation of unlawful activities. (a) On a quarterly basis and two (a) ACV volunteers are covered by months prior to the termination of a the Hatch Act to the same extent as volunteer’s year of service, and at any Federal employees. This Act prohibits other time which circumstances may volunteers from engaging in partisan dictate, ACTION may inspect that por- political activities of any sort at any tion of a project with which the volun- and all times during their terms of teer is involved. The purpose of the in- service, including periods of official spection will be to independently ob- leave. serve and judge the extent to which the (b) Section 403 of Pub. L. 93–113 re- volunteer’s work has contributed to quires that a sponsor’s project be oper- the objectives of the program described ated in such a manner as to avoid in- in the project proposal. volvement of ACV volunteers in any (b) The sponsor is expected to cooper- partisan or nonpartisan political activ- ate fully with ACTION representatives, ity in an election for public or party of- and ACTION will in turn review results fice, voter transportation during elec- of the evaluation with the sponsor. tions, and voter registration drives. (c) While engaged in carrying out § 1213.6–8 Limitation on labor and their duties volunteers may, as a part anti-labor activities. of the project, participate in lawful and Volunteers may not engage in any nonpolitical demonstrations and pro- activities, services, or duties which as- test activities which are approved by sist any labor or anti-labor organizing the sponsor as a part of its project ac- tivity and which are not in violation of activity, or related activity. any ACTION policies. § 1213.6–9 Loans and debts. § 1213.6–5 Nondiscrimination. (a) ACVs have the same legal and fi- Part 1203 provides regulations con- nancial responsibilities as do all other cerning nondiscrimination in ACTION persons. Volunteers are encouraged to programs and activities. pay all legal debts promptly to avoid (a) No person with responsibilities in creating a situation which would im- the operation of an ACV project shall pair the volunteer’s ability to function. discriminate with respect to such pro- In cases of continued financial irre- gram because of race, creed, belief, sponsibility by a volunteer to the ex- color, national origin, sex, age, or po- tent of embarrassment or adverse re- litical affiliation. flection upon the sponsor organiza- tion’s project or ACTION, administra- § 1213.6–6 Religious activities. tive or disciplinary action may be Volunteers will not give religious in- taken by the Regional Office, up to and struction, conduct worship services, or including termination, where appro- engage in any other religious activity priate.
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(b) Volunteers are not authorized to § 1213.7–3 Firearms. obtain extension of credit by rep- ACTION volunteers may not nor- resenting themselves as a Federal Gov- mally possess, use, or carry firearms. If ernment employee. a volunteer wishes to keep firearms for hunting, approval must be obtained Subpart G—Miscellaneous from the sponsor, State Program Di- rector and the ACTION Regional Direc- § 1213.7–1 Student loan deferrals. tor in the region where the volunteer is (a) The Higher Education Act of 1965, assigned. The volunteer must request as amended, exempts full-time domes- approval for possession or use of fire- tic volunteers from repayment of Na- arms from his sponsor and his State tional Defense Education Act loans for Program Director. If he receives their a period of service not to exceed three approval, his request may then be con- years. Volunteers wishing to defer re- sidered by his ACTION Regional Direc- payment of NDEA loans must obtain tor. If approval is granted by the AC- the necessary forms from their univer- TION Regional Director, the volunteer sities. Regional Offices are authorized must adhere to all state and local regu- to certify these forms, but if the uni- lations relating to the possession and versity or volunteer should submit the use of firearms. form to Headquarters for certification, it will be sent to the appropriate Re- PART 1214—ENFORCEMENT OF gional Office for completion. NONDISCRIMINATION ON THE (b) If the volunteer is still in service BASIS OF HANDICAP IN PRO- at the time of ACTION’s certification, GRAMS OR ACTIVITIES CON- his anticipated termination date will DUCTED BY ACTION be furnished to the lender. (c) Repayment of other college loans Sec. may also be deferred. These repay- 1214.101 Purpose. ments, however, are deferred at the dis- 1214.102 Application. cretion of the lender. If the lender is 1214.103 Definitions. willing to defer payment, volunteers 1214.104—1214.109 [Reserved] must obtain the necessary forms from 1214.110 Self-evaluation. the lender and forward them to the Re- 1214.111 Notice. 1214.112—1214.129 [Reserved] gional Office for certification. If forms 1214.130 General prohibitions against dis- are not available from the lender, a let- crimination. ter to the university or lender may be 1214.131—1214.139 [Reserved] prepared certifying the dates of the 1214.140 Employment. volunteer’s service. 1214.141—1214.148 [Reserved] 1214.149 Program accessibility: Discrimina- § 1213.7–2 Death benefits. tion prohibited. 1214.150 Program accessibility: Existing fa- In case of the death of a volunteer cilities. away from his home of record, certain 1214.151 Program accessibility: New con- costs associated with transportation of struction and alterations. the body are reimbursable either under 1214.152—1214.159 [Reserved] the Federal Employees Compensation 1214.160 Communications. 1214.161—1214.169 [Reserved] Act or ACTION policy. Volunteers 1214.170 Compliance procedures. whose death results from personal in- jury or illness sustained in the per- AUTHORITY: 29 U.S.C. 794; 42 U.S.C. 5057. formance of his project duties are eligi- SOURCE: 55 FR 47761, Nov. 15, 1990, unless ble for reimbursement of certain fu- otherwise noted. neral expenses. Monthly benefits for el- igible dependents of deceased volun- § 1214.101 Purpose. teers may be available under the Fed- The purpose of this part is to effec- eral Employees Compensation Act. In tuate section 119 of the Rehabilitation, certain other unusual circumstances, Comprehensive Services, and Develop- payment of certain funeral expenses for mental Disabilities Amendments of volunteers not meeting the above re- 1978, which amended section 504 of the quirements may be authorized. Rehabilitation Act of 1973 to prohibit
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discrimination on the basis of handicap impairment that substantially limits in programs or activities conducted by one or more major life activities, has a Executive agencies or the United record of such an impairment, or is re- States Postal Service. garded as having such an impairment. As used in this definition, the phrase: § 1214.102 Application. (1) Physical or mental impairment in- This part applies to all programs or cludes— activities conducted by the agency, ex- (i) Any physiological disorder or con- cept for programs or activities con- dition, cosmetic disfigurement, or ana- ducted outside the United States that tomical loss affecting one or more of do not involve individuals with handi- the following body systems: Neuro- caps in the United States. logical; musculoskeletal; special sense organs; respiratory, including speech § 1214.103 Definitions. organs; cardiovascular; reproductive; For purposes of this part, the term— digestive; genitourinary; hemic and Agency means ACTION. lymphatic; skin; and endocrine; or Assistant Attorney General means the (ii) Any mental or psychological dis- Assistant Attorney General, Civil order, such as mental retardation, or- Rights Division, United States Depart- ganic brain syndrome, emotional or ment of Justice. mental illness, and specific learning Auxiliary aids means services or de- disabilities. The term ‘‘physical or vices that enable persons with im- mental impairment’’ includes, but is paired sensory, manual, or speaking not 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 aids sclerosis, cancer, heart disease, diabe- useful for persons with impaired vision tes, mental retardation, emotional ill- include readers, Brailled materials, ness, and drug addiction and alco- audio recordings, and other similar holism. services and devices. Auxiliary aids (2) Major life activities includes func- useful for persons with impaired hear- tions such as caring for one’s self, per- ing include telephone handset ampli- forming manual tasks, walking, seeing, fiers, telephones compatible with hear- hearing, speaking, breathing, learning, ing aids, telecommunication devices and working. for deaf persons (TDD’s), interpreters, (3) Has a record of such an impairment notetakers, written materials, and means has a history of, or has been other similar services and devices. misclassified as having, a mental or Complete complaint means a written physical impairment that substantially statement that contains the complain- limits one or more major life activi- ant’s name and address and describes ties. the agency’s alleged discriminatory ac- (4) Is regarded as having an impairment tion in sufficient detail to inform the means— agency of the nature and date of the al- (i) Has a physical or mental impair- leged violation of section 504 of the ment that does not substantially limit Act. It shall be signed by the complain- major life activities but is treated by ant or by someone authorized to do so the agency as constituting such a limi- on his or her behalf. Complaints filed tation; on behalf of classes or third parties (ii) Has a physical or mental impair- shall describe or identify (by name, if ment that substantially limit major possible) the alleged victims of dis- life activities only as a result of the at- crimination. titudes of others toward such impair- Facility means all or any portion of ment; or buildings, structures, equipment, (iii) Has none of the impairments de- roads, walks, parking lots, rolling fined in paragraph (1) of this definition stock or other conveyances, or other but is treated by the agency as having real or personal property. such an impairment. Individuals with handicaps means any Qualified individual with handicaps person who has a physical or mental means—
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(1) With respect to preschool, elemen- quired, the agency shall proceed to tary, or secondary education services make the necessary modifications. provided by the agency, an individual (b) The agency shall provide an op- with handicaps who is a member of a portunity to interested persons, includ- class of persons otherwise entitled by ing individuals with handicaps or orga- statute, regulation, or agency policy to nizations representing individuals with receive educational services from the handicaps, to participate in the self- agency; evaluation process by submitting com- (2) With respect to any other agency ments (both oral and written). program or activity under which a per- (c) The agency shall, for at least son is required to perform services or three years following completion of the to achieve a level of accomplishment, self-evaluation, required under para- an individual with handicaps who graph (a) of this section, maintain on meets the essential eligibility require- file and make available for public in- ments and who can achieve the purpose spection— of the program or activity without (1) A description of areas examined modifications in the program or activ- and any problems identified; and ity that the agency can demonstrate (2) A description of any modifications would result in a fundamental alter- made. ation in its nature; (3) With respect to any other pro- § 1214.111 Notice. gram or activity, an individual with handicaps who meets the essential eli- The agency shall make available to gibility requirements for participation employees, applicants, participants, in, or receipt of benefits from, that pro- beneficiaries, and other interested per- gram or activity; and sons such information regarding the (4) 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 agency, and make made applicable to this part by such information available to them in § 1214.140. such manner as the head of the agency Section 504 of the Act means section finds necessary to apprise such persons 504 of the Rehabilitation Act of 1973 of the protections against discrimina- (Pub. L. 93–112, 87 Stat. 394 (29 U.S.C. tion assured them by section 504 of the 794)), as amended by the Rehabilitation Act and this part. Act Amendments of 1974 (Pub. L. 93– §§ 1214.112—1214.129 [Reserved] 516, 88 Stat. 1617); the Rehabilitation, Comprehensive Services, and Develop- § 1214.130 General prohibitions mental Disabilities Amendments of against discrimination. 1978 (Pub. L. 95–602, 92 Stat. 2955); the Rehabilitation Act Amendments of 1986 (a) No qualified individual with (Pub. L. 99–506, 100 Stat. 1810), and the handicaps shall, on the basis of handi- Civil Rights Restoration Act of 1987 cap, be excluded from participation in, (Pub. L. 100–259, 102 Stat. 28). As used be denied the benefits of, or otherwise in this part, section 504 of the Act ap- be subjected to discrimination under plies only to programs or activities any program or activity conducted by conducted by Executive agencies and the agency. not to federally assisted programs. (b)(1) The agency, in providing any aid, benefit, or service, may not, di- §§ 1214.104—1214.109 [Reserved] rectly or through contractual, licens- ing, or other arrangements, on the § 1214.110 Self-evaluation. basis of handicap— (a) The agency shall, within one year (i) Deny a qualified individual with of the effective date of this part, evalu- handicaps the opportunity to partici- ate its current policies and practices, pate in or benefit from the aid, benefit, and the effects thereof, that do not or or service; may not meet the requirements of this (ii) Afford a qualified individual with part and, to the extent modification of handicaps an opportunity to partici- any such policies and practices is re- pate in or benefit from the aid, benefit,
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or 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 individual criteria that subject qualified individ- with handicaps with aid, benefit, or uals with handicaps to discrimination service that is not as effective in af- on the basis of handicap. fording equal opportunity to obtain the (c) The exclusion of nonhandicapped same result, to gain the same benefit, persons from the benefits of a program or to reach the same level of achieve- limited by Federal statute or Execu- ment as that provided to others; tive order to individuals with handi- (iv) Provide different or separate aid, caps or the exclusion of a specific class benefits, or services to individuals with of individuals with handicaps from a handicaps or to any class of individuals program limited by Federal statute or with handicaps than is provided to oth- Executive order to a different class of ers unless such action is necessary to individuals with handicaps is not pro- provide qualified individuals with hibited by this part. handicaps with aid, benefits, or serv- (d) The agency shall administer pro- ices that are as effective as those pro- grams and activities in the most inte- vided to others; grated setting appropriate to the needs (v) Deny a qualified individual with of qualified individuals with handicaps. handicaps the opportunity to partici- pate as a member of planning or advi- §§ 1214.131—1214.139 [Reserved] sory boards; or (vi) Otherwise limit a qualified indi- § 1214.140 Employment. vidual with handicaps in the enjoy- No qualified individual with handi- ment of any right, privilege, advan- caps shall, on the basis of handicap, be tage, or opportunity enjoyed by others subjected to discrimination in employ- receiving 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 individual with handicaps the op- tions, requirements, and procedures of portunity to participate in programs or section 501 of the Rehabilitation Act of activities that are not separate or dif- 1973 (29 U.S.C. 791), as established by ferent, despite the existence of permis- the Equal Employment Opportunity sibly separate or different programs or Commission in 29 CFR part 1613, shall activities. apply to employment in federally con- (3) The agency may not, directly or ducted programs or activities. through contractual or other arrange- ments, utilize criteria or methods of §§ 1214.141—1214.148 [Reserved] administration the purpose or effect of which would be to— § 1214.149 Program accessibility: Dis- (i) Subject qualified individuals with crimination prohibited. handicaps to discrimination on the Except as otherwise provided in basis of handicap; or § 1214.150, no qualified individual with (ii) Defeat or substantially impair ac- handicaps shall, because the agency’s complishment of the objectives of a facilities are inaccessible to or unus- program or activity with respect to in- able by individuals with handicaps, be dividuals with handicaps. denied the benefits of, be excluded from (4) The agency may not, in deter- participation in, or otherwise be sub- mining the site or location of a facil- jected to discrimination under any pro- ity, make selections the purpose or ef- gram or activity conducted by the fect of which would— agency. (i) Exclude individuals with handi- caps from, deny them the benefits of, § 1214.150 Program accessibility: Exist- or otherwise subject them to discrimi- ing facilities. nation under any program or activity (a) General. The agency shall operate conducted by the agency; or each program or activity so that the (ii) Defeat or substantially impair program or activity, when viewed in its the accomplishment of the objectives entirety, is readily accessible to and of a program or activity with respect usable by individuals with handicaps. to individuals with handicaps. This paragraph does not—
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(1) Necessarily require the agency to the requirements of this section, the make each of its existing facilities ac- agency shall give priority to those cessible to and usable by individuals methods that offer programs and ac- with handicaps; or tivities to qualified individuals with (2) Require the agency to take any handicaps in the most integrated set- action that it can demonstrate would ting appropriate. result in a fundamental alteration in (c) Time period for compliance. The the nature of a program or activity or agency shall comply with the obliga- in undue financial and administrative tions established under this section burdens. In those circumstances where within sixty days of the effective date agency personnel believe that the pro- of this part 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 result in undue financial and adminis- within three years of the effective date trative burdens, the agency has the of this part, but in any event as expedi- burden of proving that compliance with tiously as possible. § 1214.150(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, with- agency head or his or her designee in six months of the effective date of after considering all agency resources this part, a transition plan setting available for use in the funding and op- forth the steps necessary to complete eration of the conducted program or such changes. The agency shall provide activity and must be accompanied by a an opportunity to interested persons, written statement of the reasons for including individuals with handicaps or that conclusion. If an action would re- organizations representing individuals sult in such an alteration or such bur- with handicaps, to participate in the dens, the agency shall take any other development of the transition plan by action that would not result in such an submitting comments (both oral and alteration or such burdens but would written). A copy of the transition plan nevertheless ensure that individuals shall be made available for public in- with handicaps receive the benefits and spection. The plan shall, at a min- services of the program or activity. imum— (b) Methods. The agency may comply (1) Identify physical obstacles in the with the requirements of this section agency’s facilities that limit the acces- through such means as redesign of sibility of its programs or activities to equipment, reassignment of services to individuals with handicaps; accessible buildings, assignment of (2) Describe in detail the methods aides to beneficiaries, home visits, de- that will be used to make the facilities livery of services at alternate acces- accessible; sible sites, alteration of existing facili- (3) Specify the schedule for taking ties and construction of new facilities, the steps necessary to achieve compli- use of accessible rolling stock, or any ance with this section and, if the time other methods that result in making period of the transition plan is longer its programs or activities readily ac- than one year, identify steps that will cessible to and usable by individuals be taken during each year of the tran- with handicaps. The agency is not re- sition period; and quired to make structural changes in (4) Indicate the agency official re- existing facilities where other methods sponsible for implementation of the are effective in achieving compliance plan. with this section. The agency, in mak- ing alterations to existing buildings, § 1214.151 Program accessibility: New shall meet accessibility requirements construction and alterations. to the extent compelled by the Archi- Each building or part of a building tectural Barriers Act of 1968, as amend- that is constructed or altered by, on ed (42 U.S.C. 4151–4157), and any regula- behalf of, or for the use of the agency tions implementing it. In choosing shall be designed, constructed, or al- among available methods for meeting tered so as to be readily accessible to
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and usable by individuals with handi- those circumstances where agency per- caps. The definitions, requirements, sonnel believe that the proposed action and standards of the Architectural Bar- would fundamentally alter the program riers Act (42 U.S.C. 4151–4157), as estab- or activity or would result in undue fi- lished in 41 CFR 101–19.600 to 101–19.607, nancial and administrative burdens, apply to buildings covered by this sec- the agency has the burden of proving tion. that compliance with § 1214.160 would result in such alteration or burdens. §§ 1214.152—1214.159 [Reserved] The decision that compliance would re- sult in such alteration or burdens must § 1214.160 Communications. be made by the agency head or his or (a) The agency shall take appropriate her designee after considering all agen- steps to ensure effective communica- cy resources available for use in the tion with applicants, participants, per- funding and operation of the conducted sonnel of other Federal entities, and program or activity and must be ac- members of the public. companied by a written statement of (1) The agency shall furnish appro- the reasons for reaching that conclu- priate auxiliary aids where necessary sion. If an action required to comply to afford an individual with handicaps with this section would result in such an equal opportunity to participate in, alteration or such burdens, the agency and enjoy the benefits of, a program or shall take any other action that would activity conducted by the agency. not result in such an alteration or such (i) In determining what type of auxil- burdens but would nevertheless ensure iary aid will be provided, the agency that, to the maximum extent possible, shall give primary consideration to the individuals with handicaps receive the requests of the individual with handi- benefits and services of the program or caps. activity. (ii) The agency need not provide indi- vidually prescribed devices, readers for §§ 1214.161—1214.169 [Reserved] personal use or study, or other devices of a personal nature. § 1214.170 Compliance procedures. (2) Where the agency communicates (a) Except as provided in paragraph with applicants and beneficiaries by (b) of this section, this section applies telephone, telecommunication devices to all allegations of discrimination on for deaf persons (TDD’s) or equally ef- the basis of handicap in programs and fective telecommunication systems activities conducted by the agency. shall be used to communicate with per- (b) The agency shall process com- sons with impaired hearing. 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 tivities, and facilities. Act of 1973 (29 U.S.C. 791). (c) The agency shall provide a sign at (c) Responsibility for implementa- a primary entrance to each of its inac- tion and operation of this section shall cessible facilities, directing users to a be vested in the Director, Equal Oppor- location at which they can obtain in- tunity Staff. formation about accessible facilities. The international symbol for accessi- PART 1216—NONDISPLACEMENT bility shall be displayed at each pri- OF EMPLOYED WORKERS AND mary entrance to each accessible facil- NONIMPAIRMENT OF CON- ity. TRACTS FOR SERVICE (d) This section does not require the agency to take any action that it can Sec. demonstrate would result in a funda- 1216.1–1 Purpose. mental alteration in the nature of a 1216.1–2 Applicability of this part. program or activity or in undue finan- 1216.1–3 Policy. cial and administrative burdens. In 1216.1–4 Exceptions.
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AUTHORITY: Secs. 402(12), 404(a), 420 of Pub. (2) Employees who recently resigned L. 93–113, 87 Stat. 394, 408, 414. or were discharged, SOURCE: 40 FR 16209, Apr. 10, 1975, unless (3) Employees who are on leave (ter- otherwise noted. minal, temporary, vacation, emer- gency, or sick), or § 1216.1–1 Purpose. (4) Employees who are on strike or This part establishes rules to assure who are being locked out. that the services of volunteers are lim- (d) Volunteers referred to in para- ited to activities which would not oth- graph (a) of this section may not per- erwise be performed by employed work- form any services or duties or engage ers and which will not supplant the hir- in activities which impair existing con- ing of, or result in the displacement of, tracts for service. This prohibition is employed workers or impair existing violated if a contract for services is contracts for service. It implements modified or cancelled because an agen- section 404(a) of the Domestic Volun- cy or organization referred to in teer Service Act of 1973, Pub. L. 93–113 § 1216.1–2(b) engages a volunteer to pro- (the ‘‘Act’’). vide or perform all or a substantial part of any services, duties, or other § 1216.1–2 Applicability of this part. activities set forth in such contract. (a) All full-time and part-time volun- The term ‘‘contract for services’’ in- teers assigned, referred or serving pur- cludes but is not limited to contracts, suant to grants, contracts, or agree- understandings and arrangements, ei- ments made pursuant to the Act. ther written or oral, to provide profes- (b) All agencies and organizations to sional, managerial, technical, or ad- which the volunteers in paragraph (a) ministrative services. of this section are assigned, referred or (e) Agencies and organizations re- provide services. ferred to in § 1216.1–2(b) are prohibited from assigning or permitting volun- § 1216.1–3 Policy. teers referred to in § 1216.1–2(a) to per- form any services or duties or engage (a) Volunteers enrolled or partici- in any activities prohibited by para- pating in programs referred to in para- graphs (a) through (d) of this section. graphs (a) and (b) of § 1216.1–2 may not perform any services or duties or en- § 1216.1–4 Exceptions. gage in activities which would other- wise be performed by an employed (a) The requirements of § 1216.1–3 are worker as part of his assigned duties as not applicable to the following, or an employee. similar, situations: (b) Volunteer referred to in para- (1) Funds are unavailable for the em- graph (a) of this section may not per- ployment of sufficient staff to accom- form any services or duties or engage plish a program authorized or of a in activities which will supplant the character eligible for assistance under hiring of employed workers. This pro- the Act and the activity, service, or hibition is violated if, prior to engag- duty is otherwise appropriate for the ing a volunteer, an agency or organiza- assignment of a volunteer. tion referred to in § 1216.1–2(c) had in- (2) Volunteer services are required in tended to hire a person to undertake order to avoid or relieve suffering all or a substantial part of the services, threatened by or resulting from major duties, or other activities to be pro- natural disasters or civil disturbances. vided by the volunteer. (3) Reasonable efforts to obtain em- (c) Volunteers referred to in para- ployed workers have been unsuccessful graph (a) of this section may not per- due to the unavailability of persons form any services or duties or engage within the community who are able, in activities which result in the dis- willing, and qualified to perform the placement of employed workers. Such needed activities. volunteers may not perform services or (4) The assignment of volunteers will duties which have been performed by or significantly expand services to a tar- were assigned to, any of the following: get community over those which could (1) Presently employed workers, be performed by existing paid staff, and
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the activity, service or duty is other- § 1217.2 Establishment of position. wise appropriate for the assignment of A request for the proposed establish- a volunteer and no actual displacement ment of VISTA volunteer leader posi- of paid staff will occur as a result of tion for a specific project shall be sub- the assignment. mitted by a sponsor in writing in ad- (b) For the purposes of paragraphs vance to the appropriate ACTION Re- (a)(1) and (4) of this section, the assign- gional Director. Specific tasks, respon- ment is not appropriate for the assign- sibilities, qualifications, and the pro- ment of a volunteer if: posed supervisory structure are to be (1) The service, duty, or activity is detailed in the request. principally a routine administrative or clerical task. This definition applies § 1217.3 Qualifications. only to any service, duty, or activity performed by a volunteer receiving fi- A volunteer recommended for a nancial support apart from reimburse- VISTA volunteer leader position must ment for expenses. have: (2) The volunteer is not directly in (a) Completed a one-year term as a contact with groups or individuals VISTA volunteer. whom the Act is designed to serve or is (b) Demonstrated ability to work not performing services, duties, or en- constructively and communicate with gaged in activities authorized or of a volunteers, supervisor/sponsor, and the character eligible for assistance under target population. the Act. (c) Demonstrated ability to work well with and gain acceptance of other volunteers. PART 1217—VISTA VOLUNTEER (d) Demonstrated ability to provide LEADER self-motivation and self-direction, and maturity to accept supervision and di- Sec. rection from supervisor/sponsor. 1217.1 Introduction. (e) Sensitivity to the needs and atti- 1217.2 Establishment of position. tudes of others, and exhibit a sincere 1217.3 Qualifications. commitment to the mission of VISTA. 1217.4 Selection procedure. 1217.5 Allowances and benefits. § 1217.4 Selection procedure. 1217.6 Roles of volunteers. (a) Nomination. Candidates may be AUTHORITY: Secs. 104(b) and 420 of Pub. L. nominated in writing to the Regional 93–113, 87 Stat. 398 and 414. Director by the Program Officer or the SOURCE: 39 FR 44203, Dec. 23, 1974, unless State Program Director in whose area otherwise noted. the volunteer serves. The nomination shall include a copy of the completed § 1217.1 Introduction. ACTION Form V–95a, for the Regional Section 105(a)(1), Part A, of the Do- Director’s review. mestic Volunteer Service Act of 1973, (b) Selection. VISTA volunteer leaders Pub. L. 93–113, 87 Stat. 398, authorizes will be selected by the Regional Direc- the Director of ACTION to pay VISTA tor (or his designee). The criteria for volunteers a stipend not to exceed $50 selection shall include: per month and a stipend not to exceed (1) The recommendation of the volun- $75 a month in the case of VISTA vol- teer by the State Program Director or unteers who have served for at least a Program Officer. year and have been designated volun- (2) An overall rating by the super- teer leaders. Section 105(a)(1) further visor/sponsor of above average on the provides that the selection of volunteer ACTION Form V–95a. leaders shall be pursuant to standards, (3) A description of specific tasks, re- established in regulations which the sponsibilities, qualifications, and the Director shall prescribe, which shall be proposed supervisory structure, which based upon the experience and special justifies the establishment of the skills and the demonstrated leadership VISTA volunteer leader position. A se- of such persons among volunteers. lection decision is final.
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(c) Reenrollment. VISTA volunteer 1218.6 Freedom to present views. leaders may be reenrolled in accord- AUTHORITY: Secs. 104(d), 402(14) and 420 of ance with the VISTA reenrollment and Pub. L. 93–113, 87 Stat. 398, 407 and 414. extension policy. SOURCE: 39 FR 43725, Dec. 18, 1974, unless § 1217.5 Allowances and benefits. otherwise noted. The VISTA volunteer leader shall be § 1218.1 Introduction. entitled to all allowances and benefits of a VISTA volunteer at the level Section 104(d) of the Domestic Volun- which is consistent with the level for teer Service Act of 1973, Pub. L. 93–113, all volunteers on his/her project, except 87 Stat. 398 requires that the Director that: of ACTION establish a procedure, in- (a) The stipend will be increased from cluding notice and an opportunity to $50 to $75 per month effective on the be heard, for VISTA volunteers to date of selection of the VISTA volun- present views in connection with the teer leader. terms and conditions of their service. (b) Support for on-the-job transpor- tation may be increased, consistent § 1218.2 Applicability. with ACTION policy. This part applies to all volunteers en- rolled under part A of title I of the Do- § 1217.6 Roles of volunteers. mestic Volunteer Service Act of 1973, VISTA volunteer leaders may have Pub. L. 93–113, 87 Stat. 396. the following roles: (a) Primary contact with VISTA vol- § 1218.3 Policy. unteers on personal and administrative It is ACTION’s policy to encourage matters. the free exchange of views between vol- (b) Aid in communication of VISTA unteers and staff members with respect policies to VISTA volunteers. to the terms and conditions of the vol- (c) Encourage and develop VISTA unteers’ service. Ordinarily these ex- volunteer leadership and initiative on changes occur in the day-to-day con- projects. tact between volunteers and staff. (d) Aid as a resource in development However, there are occasions when it is and conduct of training programs. desirable to provide volunteers with an (e) Assist sponsor in preparation for opportunity to present their views with arrival of VISTA volunteers, and assist respect to the terms and conditions of new volunteers in settling-in, housing, their service in a more formal way. The orientation, etc. differences between ACTION regions (f) Aid in the development of mean- require that the means selected in each ingful relationship and understanding region to accomplish this result be ap- of individual program concepts with propriate to its particular needs. This VISTA volunteers and supervisor/spon- regulation provides standards within sor. which regions must establish a proce- (g) Advise supervisor on potential dure to enable volunteers to present problem areas, and needs of VISTA vol- their views to be heard with respect to unteers. the terms and conditions of their serv- (h) Aid supervisor/sponsor in the re- ice on a regular basis by appropriate development of projects to best meet ACTION officials and receive a timely goals and objectives addressing the response to their concerns. community’s problem(s). § 1218.4 Standards for regional plan. PART 1218—VISTA VOLUNTEERS— Each ACTION Domestic Regional Di- HEARING OPPORTUNITY rector shall recommend, after con- sultation with representative volun- Sec. teers, sponsors, and other interested 1218.1 Introduction. 1218.2 Applicability. persons, the specific procedures to be 1218.3 Policy. established for VISTA volunteers to 1218.4 Standards for regional plan. present their views concerning the 1218.5 Procedures for approval of plan. terms and conditions of their service.
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Each proposed plan must incorporate munication of volunteers’ views re- the following features: garding terms and conditions of their (a) A free and open opportunity for service; and volunteers to communicate their views (b) The adequacy of the procedures to to appropriate ACTION regional office provide for effective and efficient reso- officials. lution of volunteers’ problems or con- (b) An opportunity for all volunteers cerns regarding terms and conditions to be heard with respect to their views of their service. in connection with the terms and con- ditions of their service by a responsible § 1218.6 Freedom to present views. ACTION regional office official, either The expression by a volunteer of his personally, or through democratically views with respect to the terms and selected representatives, on a regular conditions of his service shall not be basis. The plan must provide such an construed as reflecting on a volunteer’s opportunity to the volunteer at least standing, performance or desirability twice in each year, and provide for no- as a volunteer. ACTION intends that tice to volunteers of the time and place its programs be conducted in an atmos- of the meeting at which they may be phere in which volunteers can speak heard. freely, and frankly discuss problems. (c) Appropriate provisions with re- Nor shall a volunteer who represents spect to volunteers’ or volunteers’ rep- such views be subjected to restraint, resentatives travel expense and per interference, coercion, discrimination diem which enable the volunteers or or reprisal because of presentation of their representatives to attend and his views. present their views to the regional of- fice officials at scheduled meetings. (d) Response to volunteer’s views by PART 1219—COMPETITIVE SERVICE appropriate ACTION officials in a pre- ELIGIBILITY scribed period of time. (e) Summary reports by each Re- Sec. gional Director to the Deputy Asso- 1219.1 Introduction. ciate Director for VISTA and ACTION 1219.2 Policy. Education Programs of problems and 1219.3 Procedure. concerns expressed by volunteers con- AUTHORITY: Secs. 415(d) and 420 of Pub. L. cerning terms and conditions of their 93–113, 87 Stat. 412 and 414. service and action taken in response to such problems and concerns. SOURCE: 39 FR 42915, Dec. 9, 1974, unless otherwise noted. (f) An opportunity for any volunteer who feels that his/her concerns have § 1219.1 Introduction. not been properly addressed to commu- nicate the same to the Regional Direc- Section 415(d), Title IV, of the Do- tor. Such communication shall be in- mestic Volunteer Service Act of 1973, cluded in the Regional Director’s re- Pub. L. 93–113, 87 Stat. 412, provides port to the Deputy Associate Director that VISTA Volunteers who have suc- and shall be reviewed by him. cessfully completed their period of service shall be eligible for appoint- § 1218.5 Procedures for approval of ment in the Federal competitive serv- plan. ice in the same manner as Peace Corps Each Regional Director shall submit Volunteers as prescribed in Executive the plan for his region to the Deputy Order No. 11103 (April 10, 1963). This Associate Director, VISTA and AC- section further provides that the Direc- TION Education Programs for ap- tor of ACTION shall determine who has proval. successfully completed his period of Approval by the Deputy Associate service in accordance with regulations Director for VISTA and ACTION Edu- he shall prescribe. cation Programs of the proposed re- gional plan shall be based upon: § 1219.2 Policy. (a) The adequacy of the procedures to Certificates of satisfactory service provide for systematic and open com- for the purpose of this order shall be
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issued only to persons who have com- court costs, bail or other expenses inci- pleted at least one full year of service dental to the volunteer’s defense. For as a full-time Volunteer under part A part-time volunteers, section 419 pro- of title I of the Domestic Volunteer vides that the proceeding must arise Service Act of 1973 (or title VIII of the directly out of the performance of ac- Economic Opportunity Act of 1964, as tivities pursuant to the Act. amended, 42 U.S.C. 2991–2994d), and who have not been terminated for cause. Subpart B—Criminal Proceedings
§ 1219.3 Procedure. § 1220.2–1 Full-time volunteers. (a) The Deputy Associate Director for (a)(1) ACTION will pay all reasonable VISTA and Anti-Poverty Programs expenses for defense of full-time volun- will ensure that each eligible VISTA teers up to and including arraignment Volunteer is promptly notified of his in Federal, state, and local criminal eligibility for competitive service, proceedings, except in cases where it is prior to the completion of his service. clear that the charged offense results (b) The Deputy Associate Director for from conduct which is not related to VISTA and Anti-Poverty Programs (or his service as a volunteer. his designee) shall, upon the request of (2) Situations where conduct is clear- a duly recognized representative of any ly unrelated to a volunteer’s service agency in the Executive Branch, cer- are those that arise either: tify the VISTA Volunteer’s service on (i) In a period prior to volunteer serv- ACTION Form A–507. ice, (ii) Under circumstances where the PART 1220—PAYMENT OF volunteer is not at his assigned volun- VOLUNTEER LEGAL EXPENSES teer project location, such as during periods of administrative, vacation, or Subpart A—General emergency leave, or Sec. (iii) When he is at his volunteer sta- 1220.1–1 Introduction. tion, but the activity or action giving rise to the charged offense is clearly Subpart B—Criminal Proceedings not part of, or required by, such assign- ment. 1220.2–1 Full-time volunteers. (b) Reasonable expenses in criminal 1220.2–2 Part-time volunteers. 1220.2–3 Procedure. proceedings beyond arraignment may be paid in cases where: Subpart C—Civil and Administrative (1) The charge against the volunteer Proceedings relates to his assignment or status as a volunteer, and not his personal status 1220.3–1 Full-time volunteers. or personal matters. A charge relating 1220.3–2 Part-time volunteers. 1220.3–3 Procedure. to a volunteer’s assignment arises out of any activity or action which is a AUTHORITY: Secs. 419 and 420 of Pub. L. 93– part of, or required by, such assign- 113, 87 Stat. 413 and 414. ment. A charge relating to a volun- SOURCE: 40 FR 28800, July 9, 1975, unless teer’s status is motivated exclusively otherwise noted. by the fact that a defendant is a volun- teer. Subpart A—General (2) The volunteer has not admitted a willful or knowing violation of law, and § 1220.1–1 Introduction. (3) The charge(s) is not a minor mis- Section 419 of the Domestic Volun- demeanor, such as a minor vehicle vio- teer Service Act of 1973 (the Act), Pub. lation for which a fine or bail forfeiture L. 93–113, 87 Stat. 413, authorizes the will not exceed $100. Director of ACTION to pay expenses in- (c) Notwithstanding the foregoing, curred in judicial and administrative there may be situations in which the proceedings for the defense of full-time criminal proceeding results from a sit- or part-time volunteers serving under uation which could give rise to a civil the Act. These include counsel fees, claim under the Federal Tort Claims
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Act. In such situations, the Justice De- responsible under this policy for the partment may agree to defend the vol- volunteer’s defense, any such advance unteer. In those cases, unless there is a may be recovered directly from the conflict between the volunteer’s inter- volunteer or from allowances, stipends, est and that of the government, AC- or out-of-pocket expenses which are TION will not pay for additional pri- payable or become payable to the vol- vate representation for the volunteer. unteer. In the case of a grassroots § 1220.2–2 Part-time volunteers. sponsor of full-time volunteers which is not able to provide the $500 the AC- (a) With respect to a part-time volun- TION state or regional office shall im- teer, ACTION will reimburse a sponsor mediately make such sum available to for the reasonable expenses it incurs the sponsor. for the defense of the volunteer in Fed- eral, state and local criminal pro- (c) Immediately upon receipt of noti- ceedings, including arraignment, only fication from the sponsor, the state or under the following circumstances: regional office shall notify the General (1) The proceeding arises directly out Counsel, giving all facts and cir- of the volunteer’s performance of ac- cumstances at that time known to tivities pursuant to the Act; such office. Thereafter the office shall (2) The volunteer receives, or is eligi- cooperate with the General Counsel in ble to receive, compensation, including making an investigation of all sur- allowances, stipend, or reimbursement rounding facts and circumstances and for out-of-pocket expenses, under an shall provide such information imme- ACTION grant project; and diately to the General Counsel. (3) The conditions specified in para- (d) The General Counsel shall, upon graphs (b) (2) and (3) in § 1220.2–1 are notification by the state or regional of- met. fice, determine the extent to which AC- (b) In certain circumstances volun- TION will provide funds for the volun- teers who are ineligible for reimburse- teer’s defense or reimburse a sponsor ment of legal expenses by ACTION may be eligible for representation under the for funds it spends on the volunteer’s Criminal Justice Act (18 U.S.C. 3006A). behalf. Included in this responsibility shall be the negotiation of fees and ap- § 1220.2–3 Procedure. proval of other costs and expenses. (a) Immediately upon the arrest of State and regional offices are not au- any volunteer under circumstances in thorized to commit ACTION to the which the payment of bail to prevent payment of volunteers’ legal expenses incarceration or other serious con- or to reimburse a sponsor except as sequences to the volunteer or the re- provided above, without the express tention of an attorney prior to arraign- consent of the General Counsel. Addi- ment is necessary and is covered under tionally, the General Counsel shall, in § 1220.2–1 or § 1220.2–2, sponsors shall im- cases arising directly out of the per- mediately notify the appropriate AC- formance of authorized project activi- TION state office or if the state office ties, ascertain whether the services of cannot be reached, the appropriate re- the United States Attorney can be gional office. The regional office shall made available to the volunteer. provide each sponsor with a 24-hour (e) The sponsor and the state and re- telephone number. gional office shall have a continuing (b) Immediately after notification of responsibility for cooperation and co- the appropriate office, and with the ap- ordination with the Office of General proval thereof, the sponsor shall ad- vance up to $500 for the payment of bail Counsel during the pendency of any or such other legal expenses as are nec- such litigation, and of notifying the essary prior to arraignment to prevent General Counsel of any facts and cir- the volunteer from being incarcerated. cumstances which come to the atten- In the event it is subsequently deter- tion of such office or the sponsor which mined that ACTION or a sponsor is not affects such litigation.
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Subpart C—Civil and 1222.3 Policy. 1222.4 Advisory group responsibilities. Administrative Proceedings 1222.5 Advisory group expenses. 1222.6 Sponsor’s responsibilities. § 1220.3–1 Full-time volunteers. AUTHORITY: Secs. 106 and 420 of Pub. L. 93– ACTION will pay reasonable expenses 113, 87 Stat. 398 and 414. incurred in the defense of full-time vol- unteers in Federal, state, and local SOURCE: 40 FR 57217, Dec. 8, 1975, unless civil judicial and administrative pro- otherwise noted. ceedings where: (a) The complaint or charge against § 1222.1 Purpose. the volunteer is directly related to his The purpose of these regulations is to volunteer service and not to his per- prescribe requirements for the estab- sonal activities or obligations. lishment of a continuing mechanism (b) The volunteer has not admitted for the meaningful participation of willfully or knowingly pursuing a project beneficiaries in the planning, course of conduct which would result development, and implementation of in the plaintiff or complainant initi- project activities utilizing full-time ating such a proceeding, and volunteers authorized under Title I of (c) If the judgment sought involves a the Domestic Volunteer Service Act of monetary award, the amount sought 1973, Pub. L. 93–113. This policy specifi- exceeds $100. cally implements Section 106, Title I, Pub. L. 93–113. § 1220.3–2 Part-time volunteers. ACTION will reimburse sponsors for § 1222.2 Applicability. the reasonable expenses incidental to These regulations apply to all full- the defense of part-time volunteers in time volunteer programs and projects Federal, state and local civil judicial under title I, Pub. L. 93–113, including and administrative proceedings where: grant programs. Included in these pro- (a) The proceeding arises directly out grams are VISTA (part A), University of the volunteer’s performance of ac- Year for ACTION (UYA) (part B), AC- tivities pursuant to the Act; TION Cooperative Volunteers (ACV) (b) The volunteer receives or is eligi- and Program for Local Services (PLS) ble to receive compensation, including (part C). allowances, stipend, or reimbursement for out-of-pocket expenses under an § 1222.3 Policy. ACTION grant; and (a) Each potential project sponsor (c) The conditions specified in para- shall establish an advisory group for graphs (b) and (c) in § 1220.3–1 are met. the project, to include substantial membership of potential project bene- § 1220.3–3 Procedure. ficiaries or, to the extent feasible, Immediately upon the receipt by a their democratically chosen represent- volunteer of any court papers or ad- atives, prior to the submission of an ministrative orders making him a part application to ACTION for volunteers. to any proceeding covered under (b) The term ‘‘substantial’’ means, in § 1220.3–1 or § 1220.3–2, the volunteer this case, a sufficient number of appro- shall immediately notify his sponsor priate persons to assure that the con- who in turn shall notify the appro- cerns and points of view of the poten- priate ACTION state office. The proce- tial project beneficiaries are ade- dures referred to in § 1220.2–3, para- quately presented and considered in graphs (c) through (e), shall thereafter the deliberations of the group. The be followed as appropriate. phrase ‘‘project beneficiaries’’ means, in this case, recipients of benefits ac- PART 1222—PARTICIPATION OF cruing directly from project activities PROJECT BENEFICIARIES as conducted by ACTION Volunteers. (c) Potential sponsoring organiza- Sec. tions that have an established gov- 1222.1 Purpose. erning, policy, or advisory group whose 1222.2 Applicability. membership is composed of at least
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50% of members of the beneficiary pop- included which specifies how the advi- ulation are not required to establish a sory group complied with its respon- separate project advisory group for the sibilities under § 1222.4 of these regula- purposes of these regulations. tions. This statement shall be signed by an authorized representative of the § 1222.4 Advisory group responsibil- advisory group (see § 1222.4–2 and 3). ities. (b) In each Sponsor’s Quarterly Pro- The advisory group shall have the gram Report (A–568), the sponsor shall following responsibilities for the intent include a brief statement describing and purposes of these requirements: the extent to which the advisory group (a) To the extent practical, assist the was involved in the continuing develop- sponsor in the initial planning of a new project proposal and in the planning of ment and implementation of the a continuation project application. project. (b) To review and provide written comments concerning any project ap- PART 1225—VOLUNTEER DISCRIMI- plication prior to the submission of the NATION COMPLAINT PROCE- application to ACTION. A copy of such DURE comments shall accompany each appli- cation to ACTION. Subpart A—General Provisions (c) To meet with the sponsoring orga- nization’s staff at periodic intervals, Sec. but no less than twice per project year, 1225.1 Purpose. for the purpose of reviewing and com- 1225.2 Policy. menting on the development and im- 1225.3 Definitions. plementation of the project. Such 1225.4 Coverage. project review and commentary should 1225.5 Representation. be directed toward the adequacy of the 1225.6 Freedom from reprisal. project to meet the identified needs of 1225.7 Review of allegations of reprisal. the project beneficiaries. (d) To submit, if it so chooses, writ- Subpart B—Processing Individual ten reports and/or copies of minutes of Complaints of Discrimination its meetings to the sponsor to accom- 1225.8 Precomplaint procedure. pany the Sponsor’s Quarterly Program 1225.9 Complaint procedure. Report (A–568) submitted to the appro- 1225.10 Corrective action. priate ACTION regional office. 1225.11 Amount of attorney fees. § 1222.5 Advisory group expenses. Subpart C—Processing Class Complaints of As permitted by law, ACTION re- Discrimination gional staff may pay for certain inci- dental out-of-pocket expenses incurred 1225.12 Precomplaint procedure. by the advisory group in connection 1225.13 Acceptance, rejection, or cancella- with its responsibilities under § 1222.4. tion of complaint. 1225.14 Consolidation of complaints. § 1222.6 Sponsor’s responsibilities. 1225.15 Notification and opting out. The sponsor or potential sponsor 1225.16 Investigation and adjustment of complaint. shall furnish the following evidence of 1225.17 Agency decision. the advisory group’s participation in 1225.18 Notification of class members of de- the planning, development, and imple- cision. mentation of the project: 1225.19 Corrective action. (a) Each new application to ACTION 1225.20 Claim appeals. for volunteers shall contain a state- 1225.21 Statutory rights. ment describing how the advisory group has participated in the planning AUTHORITY: Secs. 417, 402(14), 420, Pub. L. of the project proposal. This statement 93–113, 87 Stat. 398, 407, and 414; Sec. 5(a), shall be signed by an authorized rep- Pub. L. 87–293, 75 Stat. 613; Executive Order resentative of the Advisory group (see 12137, issued May 16, 1979. § 1222.4–2). For continuation project ap- SOURCE: 46 FR 1609, Jan. 6, 1981, unless oth- plications, a written statement shall be erwise noted.
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Subpart A—General Provisions Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). Further clarification of § 1225.1 Purpose. the scope of matters covered by this The purpose of this part is to estab- definition may be obtained by referring lish a procedure for the filing, inves- to the following regulations: Sex Dis- tigation, and administrative deter- crimination: 29 CFR part 1604; Reli- mination of allegations of discrimina- gious Discrimination: 29 CFR part 1605; tion based on race, color, national ori- National Origin Discrimination: 29 gin, religion, age, sex, handicap or po- CFR part 1606; Age Discrimination: 45 litical affiliation, which arise in con- CFR part 90; Handicap Discrimination: nection with the recruitment, selec- 29 CFR 1613.701 through 1613.707. tion, placement, service, or termi- (d) Applicant means a person who has nation of Peace Corps and ACTION ap- submitted to the appropriate agency plicants, trainees, and Volunteers for personnel a completed application re- full-time service. quired for consideration of eligibility § 1225.2 Policy. for Peace Corps or ACTION volunteer service. ‘‘Applicant’’ may also mean a It is the policy of Peace Corps and person who alleges that the actions of ACTION to provide equal opportunity agency personnel precluded him or her in all its programs for all persons and from submitting such an application or to prohibit discrimination based on any other information reasonably re- race, color, national origin, religion, age, sex, handicap or political affili- quired by the appropriate personnel as ation, in the recruitment, selection, necessary for a determination of the placement, service, and termination of individual’s eligibility for volunteer Peace Corps and ACTION Volunteers. service. It is the policy of Peace Corps and AC- (e) Trainee means a person who has TION upon determining that such pro- accepted an invitation issued by Peace hibited discrimination has occurred, to Corps or ACTION and has registered for take all necessary corrective action to Peace Corps or ACTION training. remedy the discrimination, and to pre- (f) Volunteer means a person who has vent its recurrence. completed successfully all necessary training; met all clearance standards; § 1225.3 Definitions. has taken, if required, the oath pre- Unless the context requires other- scribed in either section 5(j) of the wise, in this Part: Peace Corps Act (22 U.S.C. 2504), or sec- (a) Director means the Director of tion 104(c) of the Volunteer Service Act Peace Corps for all Peace Corps appli- of 1973, as amended (42 U.S.C. 104(c)) cant, trainee, or Volunteer complaints and has been enrolled as a full-time processed under this part, or the Direc- Volunteer by the appropriate agency. tor of ACTION for all domestic appli- (g) Complaint means a written state- cant, trainee, or Volunteer complaints ment signed by the complainant and processed under this part. The term submitted to the EO Director. A com- shall also refer to any designee of the plaint shall set forth specifically and respective Director. in detail: (b) EO Director means the Director of (1) A description of the Peace Corps the Equal Opportunity Division of the or ACTION management policy or Office of Compliance, ACTION. The term shall also refer to any designee of practice, if any, giving rise to the com- the EO Director. plaint; (c) Illegal discrimination means dis- (2) A detailed description including crimination on the basis of race, color, names and dates, if possible, of the ac- national origin, religion, age, sex, tions of the Peace Corps or ACTION of- handicap or political affiliation as de- ficials which resulted in the alleged il- fined in section 5(a) of the Peace Corps legal discrimination; Act (22 U.S.C. 2504); section 717 of the (3) The manner in which the Peace Civil Rights Act of 1964 (42 U.S.C. 2000– Corps or ACTION action directly af- 16); Title V of the Rehabilitation Act of fected the complainant; and 1973 (29 U.S.C. 791, et seq.); and the Age (4) The relief sought.
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A complaint shall be deemed filed on these procedures by an attorney or rep- the date it is received by the appro- resentative of his or her own choosing. priate agency official. When a com- An aggrieved party must immediately plaint does not conform with the above inform the agency if counsel is re- definition, it shall nevertheless be ac- tained. Attorney fees or other appro- cepted. The complainant shall be noti- priate relief may be awarded in the fol- fied of the steps necessary to correct lowing circumstances: the deficiencies of the complaint. The (a) Informal adjustment of a com- complainant shall have 30 days from plaint. An informal adjustment of a his or her receipt of notification of the complaint may include an award of at- complaint defects to resubmit an torney fees or other relief deemed ap- amended complaint. propriate by the EO Director. Where (h) Counselor means an official des- the parties agree on an adjustment of ignated by the EO Director to perform the complaint, but cannot agree on the functions of conciliation as de- whether attorney fees or costs should tailed in this part. be awarded, or on their amount, this (i) Agent means a class member who issue may be appealed to the appro- acts for the class during the processing priate Director to be determined in the of a class complaint. In order to be ac- manner detailed in § 1225.11 of this part. cepted as the agent for a class com- (b) Final Agency Decision. When dis- plaint, in addition to those require- crimination is found, the appropriate ments of a complaint found in Director shall advise the complainant § 1225.3(g) of this part, the complaint that any request for attorney fees or must meet the requirements for a class costs must be documented and sub- complaint as found in subpart C of mitted for review within 20 calendar these regulations. days after his or her receipt of the final § 1225.4 Coverage. agency decision. The amount of such awards shall be determined under (a) These procedures apply to all § 1225.11. In the unusual situation in Peace Corps or ACTION applicants, which it is determined not to award at- trainees, and Volunteers throughout torney fees or other costs to a pre- their term of service with the Peace vailing complainant, the appropriate Corps or ACTION. When an applicant, trainee, or Volunteer makes a com- Director in his or her final decision plaint which contains an allegation of shall set forth the specific reasons illegal discrimination in connection thereof. with an action that would otherwise be § 1225.6 Freedom from reprisal. processed under a grievance, early ter- mination, or other administrative sys- Aggrieved parties, their representa- tem of the agency, the allegation of il- tives, and witnesses will be free from legal discrimination shall be processed restraint, interference, coercion, dis- under this part. At the discretion of crimination, or reprisal at any stage in the appropriate Director, any other the presentation and processing of a issues raised may be consolidated with complaint, including the counseling the discrimination complaint for proc- stage described in § 1225.8 of this part, essing under these regulations. Any or any time thereafter. issues which are not so consolidated shall continue to be processed under § 1225.7 Review of allegations of re- those procedures in which they were prisal. originally raised. An aggrieved party, his or her rep- (b) The submission of class com- resentative, or a witness who alleges plaints alleging illegal discrimination restraint, interference, coercion, dis- as defined above will be handled in ac- crimination, or reprisal in connection cordance with the procedure outlined with the presentation of a complaint in subpart C. under this part, may, if covered by this part, request in writing that the alle- § 1225.5 Representation. gation be reviewed as an individual Any aggrieved party may be rep- complaint of discrimination subject to resented and assisted in all stages of the procedures described in Subpart B
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or that the allegation be considered as plaint of discrimination from the ag- an issue in the complaint at hand. grieved party.
Subpart B—Processing Individual § 1225.9 Complaint procedure. Complaints of Discrimination (a) EO Director. (1) The EO Director must accept a complaint if the process § 1225.8 Precomplaint procedure. set forth above has followed, and the (a) An aggrieved person who believes complaint states a charge of illegal dis- that he or she has been subject to ille- crimination. The agency will extend gal dicrimination shall bring such alle- the time limits set herein (a) when the gations to the attention of the appro- complainant shows that he or she was priate Counselor within 30 days of the not notified of the time limits and was alleged discrimination to attempt to not otherwise aware of them, or (b) the resolve them. The process for notifying complainant shows that he or she was the appropriate Counselor is the fol- prevented by circumstances beyond his lowing: or her control from submitting the (1) Aggrieved applicants, trainees or matter in a timely fashion, or (c) for Volunteers who have not departed for other reasons considered sufficiently overseas assignments, or who have re- by the agency. At any time during the turned to Washington for any adminis- complaint procedure, the EO Director trative reason shall direct their allega- may cancel a complaint because of fail- tions to the EO Director for assign- ure of the aggrieved party to prosecute ment to an appropriate Counselor. the complaint. If the complaint is re- (2) Aggrieved trainees or Volunteers jected for failure to meet one or more overseas shall direct their allegations of the requirements set out in the pro- to the designated Counselor for that cedure outlined in § 1225.8 or is can- post. celled, the EO Director shall inform (3) Aggrieved applicants, trainees, the aggrieved party in writing of this and Volunteers applying for, or en- Final Agency Decision; that the Peace rolled in ACTION domestic programs Corps or ACTION will take no further shall direct their allegations to the designated Counselor for that Region. action; and of the right, to file a civil (b) Upon receipt of the allegation, the action as described in § 1225.21 of this Counselor or designee shall make what- part. ever inquiry is deemed necessary into (2) Upon acceptance of the complaint the facts alleged by the aggrieved and receipt of the Counselor’s report, party and shall counsel the aggrieved the EO Director shall provide for the party for the purpose of attempting an prompt investigation of the complaint. informal resolution agreeable to all Whenever possible, the person assigned parties. The Counselor will keep a writ- to investigate the complaint shall oc- ten record of his or her activities which cupy a position in the agency which is will be submitted to the EO Director if not, directly or indirectly, under the a formal complaint concerning the jurisdiction of the head of that part of matter is filed. the agency in which the complaint (c) If after such inquiry and coun- arose. The investigation shall include a seling an informal resolution to the al- thorough review of the circumstances legation is not reached, the Counselor under which the alleged discrimination shall notify the aggrieved party in occurred, and any other circumstances writing of the right to file a complaint which may constitute, or appear to of discrimination with the EO Director constitute discrimination against the within 15 calendar days of the ag- complainant. The investigator shall grieved party’s receipt of the notice. compile an investigative file, which in- (d) The Counselor shall not reveal the cludes a summary of the investigation, identity of the aggrieved party who has recommended findings of fact and a come to him or her for consultation, recommended resolution of the com- except when authorized to do so by the plaint. The investigator shall forward aggrieved party. However, the identity the investigative file to the EO Direc- of the aggrieved party may be revealed tor and shall provide the complainant once the agency has accepted a com- with a copy.
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(3) The EO Director shall review the nied selection based on prohibited dis- complaint file including any additional crimination. statements provided by the complain- (b) Reappointment to Volunteer serv- ant, make findings of fact, and shall ice for aggrieved parties found to have offer an adjustment of the complaint if been early-terminated as a result of the facts support the complaint. If the prohibited discrimination. To the ex- proposed adjustment is agreeable to all tent possible, a Volunteer will be parties, the terms of the adjustment placed in the same position previously shall be reduced to writing, signed by held. However, reassignment to the both parties, and made part of the com- specific country of prior service, or to plaint file. A copy of the terms of the the specific position previously held, is adjustment shall be provided the com- contingent on several programmatic plainant. If the proposed adjustment of considerations such as the continued the complaint is not acceptable to the availability of the position, or program complainant, or the EO Director deter- in that country, and acceptance by the mines that such an offer is inappro- host country of such placement. If the priate, the EO Director shall forward same position is deemed to be no the complaint file with a written noti- longer available, the aggrieved party fication of the findings of facts, and his will be offered a reassignment to a po- or her recommendation of the proposed sition in as similar circumstances to disposition of the complaint to the ap- the position previously held, or to re- propriate Director. The aggrieved sign from service for reasons beyond party shall receive a copy of the notifi- his or her control. Such a reassignment cation and recommendation and shall may require both additional training be advised of the right to appeal the and an additional two year commit- recommended disposition to the appro- ment to volunteer service. priate Director. Within ten (10) cal- (c) Provision for reasonable attorney endar days of receipt of such notice, fees and other costs incurred by the ag- the complainant may submit his or her grieved party. appeal of the recommended disposition (d) Such other relief as may be to the appropriate Director. deemed appropriate by the Director of (b) Appeal to Director. If no timely no- Peace Corps or ACTION. tice of appeal is received from the ag- grieved party, the appropriate Director § 1225.11 Amount of attorney fees. or designee may adopt the proposed (a) When a decision of the agency disposition as the Final Agency Deci- provides for an award of attorney’s fees sion. If the aggrieved party appeals, or costs, the complainant’s attorney the appropriate Director or designee, shall submit a verified statement of after review of the total complaint file, costs and attorney’s fees as appro- shall issue a decision to the aggrieved priate, to the agency within 20 days of party. The decision of the appropriate receipt of the decision. A statement of Director shall be in writing, state the attorney’s fees shall be accompanied by reasons underlying the decision, shall an affidavit executed by the attorney be the Final Agency Decision, shall in- of record itemizing the attorney’s form the aggrieved party of the right charges for legal services. Both the to file a civil action as described in verified statement and the accom- § 1225.21 of this part, and, if appro- panying affidavit shall be made a part priate, designate the procedure to be of the complaint file. The amount of followed for the award of attorney fees attorney’s fees or costs to be awarded or costs. the complainant shall be determined by agreement between the complain- § 1225.10 Corrective action. ant, the complainant’s representative When it has been determined by and the appropriate Director. Such Final Agency Decision that the ag- agreement shall immediately be re- grieved party has been subjected to il- duced to writing. If the complainant, legal discrimination, the following cor- the representative and the agency can- rective actions may be taken: not reach an agreement on the amount (a) Selection as a Trainee for ag- of attorney’s fees or costs within 20 grieved parties found to have been de- calendar days of receipt of the verified
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statement and accompanying affidavit, the agency or which has been resolved the appropriate Director shall issue a or decided by the agency; decision determining the amount of at- (3) It is not within the purview of this torney fees or costs within 30 calendar subpart; days of receipt of the statement and af- (4) The agent failed to consult a fidavit. Such decision shall include the Counselor in a timely manner; specific reasons for determining the (5) It lacks specificity and detail; amount of the award. (6) It was not submitted in writing or (b) The amount of attorney’s fees shall be made in accordance with the was not signed by the agent; following standards: The time and (7) It does not meet the following pre- labor required, the novelty and dif- requisites. ficulty of the questions, the skills req- (i) The class is so numerous that a uisite to perform the legal service consolidated complaint of the members properly, the preclusion of other em- of the class is impractical; ployment by the attorney due to ac- (ii) There are questions of fact com- ceptance of the case, the customary mon to the class; fee, whether the fee is fixed or contin- (iii) The claims of the agent of the gent, time limitation imposed by the class are representative of the claims client or the circumstances, the of the class; amount involved and the results ob- (iv) The agent of the class, or his or tained, the experience, reputation, and her representative will fairly and ade- ability of the attorney, the undesir- quately protect the interest of the ability of the case, the nature and class. length of the professional relationship (b) If an allegation is not included in with the client, and the awards in simi- the Counselor’s report, the EO Director lar cases. shall afford the agent 15 calendar days to explain whether the matter was dis- Subpart C—Processing Class cussed and if not, why he or she did not Complaints of Discrimination discuss the allegation with the Coun- selor. If the explanation is not satisfac- § 1225.12 Precomplaint procedure. tory, the EO Director may decide to re- An applicant, trainee or Volunteer ject the allegation. If the explanation who believes that he or she is among a is satisfactory, the EO Director may group of present or former Peace Corps require further counseling of the agent. or ACTION Volunteers, trainees, or ap- (c) If an allegation lacks specificity plicants for volunteer service who have and detail, or if it was not submitted in been illegally discriminated against writing or not signed by the agent, the and who wants to be an agent for the EO Director shall afford the agent 30 class shall follow those precomplaint days from his or her receipt of notifica- procedures outlined in § 1225.8 of this tion of the complaint defects to resub- part. mit an amended complaint. The EO Di- § 1225.13 Acceptance, rejection or can- rector may decide that the agency re- cellation of complaint. ject the complaint if the agent fails to (a) Upon receipt of a class complaint, provide such information within the the Counselor’s report, and any other specified time period. If the informa- information pertaining to timeliness or tion provided contains new allegations other relevant circumstances related outside the scope of the complaint, the to the complaint, the EO Director shall EO Director must advise the agent how review the file to determine whether to to proceed on an individual or class accept or reject the complaint, or a basis concerning these allegations. portion thereof, for any of the fol- (d) The EO Director may extend the lowing reasons: time limits for filing a complaint and (1) It was not timely filed; for consulting with a Counselor when (2) It consists of an allegation which the agent, or his or her representative, is identical to an allegation contained shows that he or she was not notified of in a previous complaint filed on behalf the prescribed time limits and was not of the same class which is pending in otherwise aware of them or that he or
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she was prevented by circumstances be- (4) An explanation of the binding na- yond his or her control from acting ture of the final decision or resolution within the time limit. of the complaint. (e) When appropriate, the EO Direc- tor may determine that a class be di- § 1225.16 Investigation and adjustment vided into subclasses and that each of complaint. subclass be treated as a class, and the The complaint shall be processed provisions of this section then shall be promptly after it has been accepted. construed and applied accordingly. Once a class complaint has been ac- (f) The EO Director may cancel a cepted, the procedure outlined in complaint after it has been accepted § 1225.9 of this part shall apply. because of failure of the agent to pros- ecute the complaint. This action may § 1225.17 Agency decision. be taken only after: (a) If an adjustment of the complaint (1) The EO Director has provided the cannot be made the procedures out- agent a written request, including no- lined in § 1225.9 shall be followed by the tice of proposed cancellation, that he EO Director except that any notice re- or she provide certain information or quired to be sent to the aggrieved otherwise proceed with the complaint; party shall be sent to the agent of the and class or his or her representative. (2) Within 30 days of his or her re- (b) The Final Agency Decision on a ceipt of the request. class complaint shall be binding on all (g) An agent must be informed by the members of the class. EO Director in a request under para- graph (b) or (c) of this section that his § 1225.18 Notification of class members of decision. or her complaint may be rejected if the information is not provided. Class members shall be notified by the agency of the final agency decision § 1225.14 Consolidation of complaints. and corrective action, if any, using at the minimum, the same media em- The EO Director may consolidate the ployed to give notice of the existence complaint if it involves the same or of the class complaint. The notice, sufficiently similar allegations as where appropriate, shall include infor- those contained in a previous com- mation concerning the rights of class plaint filed on behalf of the same class members to seek individual relief and which is pending in the agency or of the procedures to be followed. Notice which has been resolved or decided by shall be given by the agency within ten the agency. (10) calendar days of the transmittal of its decision to the agent. § 1225.15 Notification and opting out. (a) Upon acceptance of a class com- § 1225.19 Corrective action. plaint, the agency, within 30 calendar (a) When discrimination is found, days, shall use reasonable means, such Peace Corps or ACTION must take ap- as delivery, mailing, distribution, or propriate action to eliminate or modify posting, to notify all class members of the policy or practice out of which the existence of the class complaint. such discrimination arose, and provide (b) A notice shall contain: individual corrective action to the (1) The name of the agency or organi- agent and other class members in ac- zational segment thereof, its location cordance with § 1225.10 of this part. and the date of acceptance of the com- (b) When discrimination is found and plaint; a class member believes that but for (2) A description of the issues accept- that discrimination he or she would ed as part of the class complaint; have been accepted as a Volunteer or (3) An explanation that class mem- received some other volunteer service bers may remove themselves from the benefit, the class member may file a class by notifying the agency within 30 written claim with the EO Director calendar days after issuance of the no- within thirty (30) calendar days of noti- tice; and fication by the agency of its decision.
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(c) The claim must include a specific, PART 1226—PROHIBITIONS ON detailed statement showing that the ELECTORAL AND LOBBYING AC- claimant is a class member who was af- TIVITIES fected by an action or matter resulting from the discriminatory policy or prac- Subpart A—General Provisions tice which arose not more than 30 days preceding the filing of the class com- Sec. 1226.1 Purpose. plaint. 1226.2 Scope. (d) The agency shall attempt to re- 1226.3 Definitions. solve the claim within sixty (60) cal- endar days after the date the claim was Subpart B—Sponsoring Organization postmarked, or, in the absence of a 1226.4 General. postmark, within sixty (60) calendar 1226.5 Electoral, voter registration, and days after the date it was received by other activities. the EO Director. Subpart C—Volunteer Activities § 1225.20 Claim appeals. 1226.6 General. (a) If the EO Director and claimant 1226.7 Scope. do not agree that the claimant is a 1226.8 Prohibited activities. 1226.9 Exceptions. member of the class, or upon the relief 1226.10 Hatch Act restrictions. to which the claimant is entitled, the 1226.11 Part time volunteers. EO Director shall refer the claim, with recommendations concerning it to the Subpart D—Sponsor Employee Activities appropriate Director for Final Agency 1226.12 Sponsor employees. Decision and shall so notify the claim- 1226.13 Obligation of sponsors. ant. The class member may submit AUTHORITY: Secs. 403, 415(b), Pub. L. 93–113, written evidence to the appropriate Di- 87 Stat. 408, 411–412. rector concerning his or her status as a SOURCE: 46 FR 8522, Jan. 27, 1981, unless member of the class. Such evidence otherwise noted. must be submitted no later than ten (10) calendar days after receipt of refer- Subpart A—General Provisions ral. (b) The appropriate Director shall de- § 1226.1 Purpose. cide the issue within thirty (30) days of This part implements provisions of the date of referral by the EO Director. the Domestic Volunteer Service Act, The claimant shall be informed in writ- 1973, 87 Stat. 394, Pub. L. 93–113, as ing of the decision and its basis and amended, hereinafter referred to as the that it will be the Final Agency Deci- Act, pertaining to the prohibited use of sion on the issue. Federal funds or the involvement of agency programs and volunteers in § 1225.21 Statutory rights. electoral and lobbying activities. These (a) A Volunteer, trainee, or applicant regulations are designed to define and is authorized to file a civil action in an clarify the nature and scope of prohib- appropriate U.S. District Court: ited activities to ensure that programs (1) Within thirty (30) calendar days of under the Act and volunteer activities his or her receipt of notice of final ac- are conducted within the statutory bounds established by the Act. The tion taken by the agency. penalties for violation of the regula- (2) After one hundred eighty (180) cal- tions are also prescribed. The statutory endar days from the date of filing a source of the prohibitions upon elec- complaint with the agency if there has toral and lobbying activities is section been no final agency action. 403 (a) and (b) of the Act. Rules apply- (b) For those complaints alleging dis- ing to the Hatch Act (Title III of chap- crimination that occur outside the ter 73, title 5, United States Code) to United States, the U.S. District Court full time and certain part time volun- for the District of Columbia shall be teers, as required by section 415(b) of deemed the appropriate forum. the Act, are also set forth herein.
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§ 1226.2 Scope. Subpart B—Sponsoring This part applies, except where oth- Organization erwise noted, to all full time and part time volunteers serving in a program § 1226.4 General. authorized by the Act, including Under section 403 of the Act, volun- VISTA, Service Learning and the Older teer programs may not be conducted in American Volunteer Programs. It also a manner which supports or results in applies to employees of sponsoring or- the identification of such programs ganizations, whose salaries, or other with prohibited activities. This section compensation, are paid, in whole or in prescribes the nature and extent of in- part, with agency funds. volvement in such activity by an orga- nization which would preclude the as- § 1226.3 Definitions. signment of volunteers to the organiza- (a) The Act means the Domestic Vol- tion. unteer Service Act of 1973, as amended, § 1226.5 Electoral, voter registration, Pub. L. 93–113 (42 U.S.C. 4951 et seq.). and other activities. (b) Assistance means funds, volunteers or volunteer training, which is paid for Volunteers or other assistance, in from funds appropriated for the pur- any program under the Act shall not be pose of supporting activities under the assigned or provided to an organization if a principal purpose or activity of the Act, and includes locally provided organization includes any of the fol- funds required by law, regulation or lowing activities: policy as a local contribution to activi- ties authorized by the Act. (a) Electoral Activities. Any activity designed to influence the outcome of (c) Full time when used in the context elections to any public office, such as: of volunteer service, means service of (1) Actively campaigning for or not less than 35 hours per week. against or supporting candidates for (d) when used in the context Part time public office; of volunteer service, means service (2) Raising, soliciting or collecting that is less than full time. funds for candidates for public office; (e) Recipient or sponsor organization (3) Preparing, distributing or pro- means any organization that receives viding funds for campaign literature assistance under the Act. for candidates, including leaflets pam- (f) Volunteer means an individual en- phlets, and material designed for the rolled for service in a program or print or electronic media; project that is authorized by or which (b) Voter Registration Activities. Any receives assistance under the Act. voter registration activity, such as (g) Legislative body includes the (1) Providing transportation of indi- United States Congress, State and Ter- viduals to voter registration sites; ritorial Legislatures and locally elect- (2) Providing assistance to individ- ed or appointed bodies with the author- uals in the process of registering to ity to enact laws. vote, including determinations of eligi- (h) Public office includes any Federal, bility; State, local elective, or party office. (3) Disseminating official voter reg- (i) Party office means an elective posi- istration material. tion in a national, state or local orga- (c) Transportation to the Polls. Pro- nization or committees or convention viding voters or prospective voters of such organization, which has, as a with transportation to the polls or principal purpose, support or opposi- raising, soliciting or collecting funds tion to candidates for public office. for such activity. (j) Legislation means bills, resolu- (d) Any program sponsor which, sub- tions, amendments, nominations and sequent to the receipt of any federal other matters pending or proposed in a assistance under the Act, makes as one legislative body and includes any other of its principal purposes or activities matter which may be the subject of ac- any of the activities described in tion by the legislative body. § 1226.5 hereof shall be subject to the
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suspension or termination of such as- tures on nominating petitions or simi- sistance, as provided in 45 CFR part lar documents for candidates for public 1206. office. (3) Raising, soliciting, or collecting Subpart C—Volunteer Activities funds for a candidate for public office; (4) Preparing, distributing or pro- § 1226.6 General. viding funds for campaign material for (a) All volunteers, full and part time, candidates, including leaflets, pam- are subject to the prohibitions on ex- phlets, brochures and material de- penditure of federal funds for partisan signed for the print or electronic and nonpartisan electoral activities, media; voter registration activities and trans- (5) Organizing political meetings or portation of voters to the polls, and ef- forums; forts to influence the passage or defeat (6) Canvassing voters on behalf of a of legislation, as contained in section candidate for public office; 403 of the Act. (7) Raising, soliciting or collecting (b) Full time volunteers, and certain funds for groups that engage in any of part time volunteers as specified here- the activities described in paragraphs in, are also subject to the restrictions (a) (1) through (6) of this section. in subchapter III, chapter 73 of title 5, (b) Voter Registration. Volunteers United States Code, commonly referred shall not engage in any voter registra- to as the Hatch Act, as provided in sec- tion activity, including: tion 415(b) of the Act. (1) Providing transportation of indi- viduals to voter registration sites; § 1226.7 Scope. (2) Providing assistance to individ- The provisions in this subpart are ap- uals in the process of registering to plicable to full time volunteers as de- vote, including determinations of eligi- fined in § 1226.3(c), and to such part bility; time volunteers as may be otherwise (3) The dissemination of official voter specified herein. Full time volunteers registration materials; or are deemed to be acting in their capac- (4) Raising, soliciting or collecting ity as volunteers: funds to support activities described in (a) When they are actually engaged paragraphs (b) (1) through (3) of this in their volunteer assignments. VISTA section. volunteers and other full time volun- (c) Transportation to the Polls. Volun- teers who are required to serve without teers shall not engage in any activity regard to regular working hours are to provide voters or prospective voters presumed to be actually engaged in with transportation to the polls, nor their volunteer assignments at all shall they collect, raise, or solicit times, except during periods of author- funds to support such activity, includ- ized leave; or ing securing vehicles for such activity. (b) Whenever they represent them- (d) Efforts to Influence Legislation. Ex- selves, or may reasonably be perceived cept as provided in §1226.9, volunteers by others, to be performing as a volun- shall not engage in any activity for the teer. purpose of influencing the passage or defeat of legislation or any measures § 1226.8 Prohibited activities. on the ballot at a general or special (a) Electoral Activity. Volunteers shall election. For example, volunteers shall not engage in any activity which may, not: directly or indirectly, affect or influ- (1) Testify or appear before legisla- ence the outcome of any election to tive bodies in regard to proposed or public office. Volunteers are prohibited pending legislation; from engaging in activities such as: (2) Make telephone calls, write let- (1) Any activity in support of, or in ters, or otherwise contact legislators opposition to a candidate for election or legislative staff, concerning pro- to public office in a partisan or non- posed or pending legislation for the partisan election; purpose of influencing the passage or (2) Participating in the circulation of defeat of such legislation; petitions, or the gathering of signa- (3) Draft legislation;
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(4) Prepare legislative testimony; (1) The sponsor organization provides (5) Prepare letters to be mailed by notification to the State Director on a third parties to members of legislative quarterly basis of all activity occur- bodies concerning proposed or pending ring pursuant to this exception. legislation; (2) The legislative measure relates to (6) Prepare or distribute any form of the funding of the project or program material, including pamphlets, news- or affects the existence or basic struc- paper columns, and material designed ture of the project or program. for either the print or electronic (c) Notwithstanding the foregoing ex- media, which urges recipients to con- ceptions, any activity by a volunteer tact their legislator or otherwise seek pursuant to paragraph (b) (1) or (2) of passage or defeat of legislation; this section shall be incidental to his (7) Raise, collect or solicit funds to or her regular work assignment. support efforts to affect the passage or defeat of legislation; § 1226.10 Hatch Act restrictions. (8) Engage in any of the activities set (a) In addition to the prohibitions de- forth in paragraphs (d) (1) through (7) scribed above, full time volunteers are of this section for the purpose of influ- subject to the Hatch Act, subchapter encing executive action in approving or III, of chapter 73, title 5, United States vetoing legislation. Code. Full time volunteers shall not, (9) Circulate petitions, gather signa- directly or indirectly, actively partici- tures on petitions, or urge or organize pate in political management or in po- others to do so, which seek to have litical campaigns. All volunteers retain measures placed on the ballot at a gen- the right to vote as they choose and to eral or special election. express their personal opinions on po- (10) Engage in any of the activities litical issues or candidates. Examples enumerated in paragraphs (d) (1) of prohibited activities, include, but through (9) of this section in regard to are not limited to, the passage or defeat of any measure (1) Candidacy for or service as a dele- on the ballot in a general or special gate or alternate to any political con- election. vention or service as an officer or em- ployee thereof. § 1226.9 Exceptions. (2) Acting as an officer of a primary (a) A volunteer may draft, review, meeting or caucus, addressing, making testify or make representations to a motions, preparing or presenting reso- legislative body regarding a legislative lutions, representing others, or other- measure upon request of the legislative wise taking part in such meetings or body, a committee, or a member there- caucuses. of, provided that: (3) Organizing or conducting a polit- (1) The request to draft, review, tes- ical meeting or rally on any political tify or make representations is in writ- matter. ing, addressed to the volunteer or the (4) Holding office as a precinct or organization to which the volunteer is ward leader or representative, or serv- assigned or placed, and signed by a ice on any committee of a political member or members of the legislative party. It is not necessary that the serv- body. ice of the volunteer itself be political (2) The request states the type of rep- in nature to fall within the prohibition. resentation or assistance requested and (5) Organizing a political club, being the issue to be addressed. an officer of such a club, being a mem- (3) The volunteer or the program ber of any of its committees, or rep- sponsor provides a copy of such request resenting the members of a political to the State Director. club in meetings or conventions. (b) The volunteer may draft, review, (6) Soliciting, collecting, receiving, testify, or make a written representa- disbursing or otherwise handling con- tion to a legislative body regarding an tributions made for political purposes. authorization or appropriation meas- (7) Selling or soliciting pledges for ure directly affecting the operation of dinner tickets or other activities of po- the project or program to which he or litical organizations or candidates, or she is assigned: Provided: for their benefit.
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(8) Distributing campaign literature, are applicable to volunteers enrolled badges, buttons, bumperstickers or for periods of service of at least 20 posters. hours per week for not less than 26 con- (9) Publishing or being editorially secutive weeks, as authorized under connected with a newspaper or other title I, part C of the Act: publication generally known as par- (1) At all times in any day on which tisan from a political standpoint. they serve as volunteers, or when en- (10) Writing for publication or pub- gaged in activities related to their vol- lishing any letter or article, signed or unteer assignments, such as training; unsigned, soliciting votes in favor of or or in opposition to any political party, (2) Whenever they represent them- candidate or faction. selves as volunteers or may reasonably (11) Soliciting votes, helping get out be perceived by others to be performing the vote, acting as a checker, watcher as volunteers. or challenger for any party or faction, transporting voters to or from the Subpart D—Sponsor Employee polls, or transporting candidates on Activities canvassing or speaking tours. (12) Participation in or organizing a § 1226.12 Sponsor employees. political parade. Sponsor employees whose salaries or (13) Initiating nominating petitions other compensation are paid, in whole or acting as a canvasser or witness on or in part, with agency funds are sub- such petitions. ject to the restrictions described in (14) Being a candidate for nomination § 1226.8 (a), (b), (c) and (d) and the ex- or election to a National, State, or ceptions in § 1226.9: local office. (a) Whenever they are engaged in an (b) Hatch Act restrictions apply to activity which is supported by ACTION full time volunteers at all times during funds; or their service, including off-duty hours, (b) Whenever they identify them- leave, holidays and vacations. selves as acting in their capacity as an official of a project which receives AC- § 1226.11 Part time volunteers. TION funds, or could reasonably be per- (a) The provisions in this section are ceived by others as acting in such ca- applicable to part time volunteers, as pacity. defined in § 1226.3(d). There are two cat- egories of part time volunteers: § 1226.13 Obligations of sponsors. (1) Those enrolled for periods of serv- (a) It shall be the obligation of pro- ice of at least twenty (20) hours per gram sponsors to ensure that they: week for not less than twenty-six (26) (1) Fully understand the restrictions consecutive weeks, as authorized under on volunteer activity set forth herein; title I, part C of the Act, and (2) Provide training to volunteers on (2) All other part time volunteers, in- the restrictions and ensure that all cluding Senior Companions, Foster other training materials used in train- Grandparents and Retired Senior Vol- ing volunteers are fully consistent with unteers. these restrictions; (b) All part time volunteers are sub- (3) Monitor on a continuing basis the ject to the restrictions described in activity of volunteers for compliance § 1226.8 (a), (b), (c) and (d) and the ex- with this provision; ceptions in § 1226.9: (4) Report all violations, or question- (1) When they are engaged in their able situations, immediately to the volunteer assignments, in training ac- State Director. tivities, or other related activities sup- (b) Failure of a sponsor to meet the ported by ACTION funds, or requirements set forth in paragraph (a) (2) Whenever they represent them- of this section, or a violation of the selves as ACTION volunteers, or may rules contained herein by either the reasonably be perceived by others to be sponsor, the sponsor’s employees sub- performing as volunteers. ject to § 1226.12 or the volunteers as- (c) The restrictions described in signed to the sponsor, at any time dur- § 1226.10, pertaining to the Hatch Act, ing the course of the grant may be
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deemed to be a material failure to com- 1229.420 Scope of suspension. ply with the terms and conditions of the grant as that term is used in 45 Subpart E—Responsibilities of GSA, Agency CFR 1206.1 regarding suspension and and Participants termination of assistance or a viola- 1229.500 GSA responsibilities. tion of the Project Memorandum of 1229.505 ACTION responsibilities. Agreement, as applicable. The sponsor 1229.510 Participants’ responsibilities. shall be subject to the procedures and penalties contained in 45 CFR 1206.1. Subpart F—Drug-Free Workplace (c) Violation by a volunteer of any of Requirements (Grants) the rules and regulations set forth 1229.600 Purpose. herein may be cause for suspension or 1229.605 Definitions. termination as set forth in 45 CFR 1229.610 Coverage. 1213.5–5(2) or other disciplinary action. 1229.615 Grounds for suspension of pay- ments, suspension or termination of grants, or suspension or debarment. PART 1229—GOVERNMENTWIDE 1229.620 Effect of violation. DEBARMENT AND SUSPENSION 1229.625 Exception provision. (NONPROCUREMENT) AND GOV- 1229.630 Certification requirements and pro- cedures. ERNMENTWIDE REQUIREMENTS 1229.635 Reporting of and employee sanc- FOR DRUG–FREE WORKPLACE tions for convictions of criminal drug of- (GRANTS) fenses. APPENDIX A TO PART 1229—CERTIFICATION RE- Subpart A—General GARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS—PRI- Sec. MARY COVERED TRANSACTIONS 1229.100 Purpose. APPENDIX B TO PART 1229—CERTIFICATION RE- 1229.105 Definitions. GARDING DEBARMENT, SUSPENSION, INELI- 1229.110 Coverage. GIBILITY AND VOLUNTARY EXCLUSION— 1229.115 Policy. LOWER TIER COVERED TRANSACTIONS APPENDIX C TO PART 1229—CERTIFICATION RE- Subpart B—Effect of Action GARDING DRUG-FREE WORKPLACE RE- QUIREMENTS 1229.200 Debarment or suspension. 1229.205 Ineligible persons. AUTHORITY: E.O. 12549: Sec. 5151–5160 of the 1229.210 Voluntary exclusion. Drug-Free Workplace Act of 1988 (Pub. L. 1229.215 Exception provision. 100–690, Title V, Subtitle D; 41 U.S.C. 701 et 1229.220 Continuation of covered trans- seq); Pub. L. 93–113; 42 U.S.C. 4951, et seq; 42 actions. U.S.C. 5060. 1229.225 Failure to adhere to restrictions. SOURCE: 53 FR 19202 and 19204, May 26, 1988, unless otherwise noted. Subpart C—Debarment CROSS REFERENCE: See also Office of Man- 1229.300 General. agement and Budget notice published at 55 1229.305 Causes for debarment. FR 21679, May 25, 1990. 1229.310 Procedures. 1229.311 Investigation and referral. 1229.312 Notice of proposed debarment. Subpart A—General 1229.313 Opportunity to contest proposed de- barment. § 1229.100 Purpose. 1229.314 Debarring official’s decision. (a) Executive Order 12549 provides 1229.315 Settlement and voluntary exclu- that, to the extent permitted by law, sion. Executive departments and agencies 1229.320 Period of debarment. 1229.325 Scope of debarment. shall participate in a governmentwide system for nonprocurement debarment Subpart D—Suspension and suspension. A person who is debarred or suspended shall be excluded 1229.400 General. from Federal financial and non- 1229.405 Causes for suspension. financial assistance and benefits under 1229.410 Procedures. 1229.411 Notice of suspension. Federal programs and activities. De- 1229.412 Opportunity to contest suspension. barment or suspension of a participant 1229.413 Suspending official’s decision. in a program by one agency shall have 1229.415 Period of suspension. governmentwide effect.
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(b) These regulations implement sec- tive branch, excluding the independent tion 3 of Executive Order 12549 and the regulatory agencies. guidelines promulgated by the Office of (d) Civil judgment. The disposition of Management and Budget under section a civil action by any court of com- 6 of the Executive Order by: petent jurisdiction, whether entered by (1) Prescribing the programs and ac- verdict, decision, settlement, stipula- tivities that are covered by the govern- tion, or otherwise creating a civil li- mentwide system; ability for the wrongful acts com- (2) Prescribing the governmentwide plained of; or a final determination of criteria and governmentwide minimum liability under the Program Fraud due process procedures that each agen- Civil Remedies Act of 1988 (31 U.S.C. cy shall use; 3801–12). (3) Providing for the listing of (e) Conviction. A judgment of convic- debarred and suspended participants, tion of a criminal offense by any court participants declared ineligible (see of competent jurisdiction, whether en- definition of ‘‘ineligible’’ in tered upon a verdict or a plea, includ- § 1229.105(i)), and participants who have ing a plea of nolo contendere. voluntarily excluded themselves from (f) Debarment. An action taken by a participation in covered transactions debarring official in accordance with (4) Setting forth the consequences of these regulations to exclude a person a debarment, suspension, determina- from participating in covered trans- tion of ineligibility, or voluntary ex- actions. A person so excluded is clusion; and ‘‘debarred.’’ (5) Offering such other guidance as (g) Debarring official. An official au- necessary for the effective implementa- thorized to impose debarment. The de- tion and administration of the govern- barring official is either: mentwide system. (1) The agency head, or (c) Although these regulations cover (2) An official designated by the the listing of ineligible participants agency head. and the effect of such listing, they do (h) Indictment. Indictment for a not prescribe policies and procedures criminal offense. An information or governing declarations of ineligibility. other filing by competent authority charging a criminal offense shall be § 1229.105 Definitions. given the same effect as an indictment. (a) Adequate evidence. Information (i) Ineligible. Excluded from participa- sufficient to support the reasonable be- tion in Federal nonprocurement pro- lief that a particular act or omission grams pursuant to a determination of has occurred. ineligibility under statutory, executive (b) Affiliate. Persons are affiliates of order, or regulatory authority, other each another if, directly or indirectly, than Executive Order 12549 and its either one controls or has the power to agency implementing regulations; for control the other, or, a third person exemple, excluded pursuant to the controls or has the power to control Davis-Bacon Act and its implementing both. Indicia of control include, but are regulations, the equal employment op- not limited to: Interlocking manage- portunity acts and executive orders, or ment or ownership, identity of inter- the environmental protection acts and ests among family members, shared fa- executive orders. A person is ineligible cilities and equipment, common use of where the determination of ineligi- employees, or a business entity orga- bility affects such person’s eligibility nized following the suspension or de- to participate in more than one cov- barment of a person which has the ered transaction. same or similar management, owner- (j) Legal proceedings. Any criminal ship, or principal employees as the sus- proceeding or any civil judicial pro- pended, debarred, ineligible, or volun- ceeding to which the Federal Govern- tarily excluded person. ment or a State of local government or (c) Agency. Any executive depart- quasi-governmental authority is a ment, military department or defense party. The term includes appeals from agency or other agency of the execu- such proceedings.
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(k) Nonprocurement list. The portion substantive control over a covered of the List of Parties Excluded from Fed- transaction are: eral Procurement or Nonprocurement Pro- (1) Principal investigators. grams complied, maintained and dis- (q) Proposal. A solicited or unsolic- tributed by the General Services Ad- ited bid, application, request, invita- ministration (GSA) containing the tion to consider or similar communica- names and other information about tion by or on behalf of a person seeking persons who have been debarred, sus- to participate or to receive a benefit, pended, or voluntarily excluded under directly or indirectly, in or under a Executive Order 12549 and these regula- covered transaction. tions, and those who have been deter- (r) Respondent. A person against mined to be ineligible. whom a debarment or suspension ac- (l) Notice. A written communication tion has been initiated. served in person or sent by certified (s) State. Any of the States of the mail, return receipt requested, or its United States, the District of Colum- equivalent, to the last known address bia, the Commonwealth of Puerto Rico, of a party, its identified counsel, its any territory or possession of the agent for service of process, or any United States, or any agency of a partner, officer, director, owner, or State, exclusive of institutions of high- joint venturer of the party. Notice, if er education, hospitals, and units of undeliverable, shall be considered to local government. A State instrumen- have been received by the addressee tality will be considered part of the five days after being properly sent to State government if it has a written the last address known by the agency. determination from a State govern- (m) Participant. Any person who sub- ment that such State considers that in- mits a proposal for, enters into, or rea- strumentality to be an agency of the sonably may be expected to enter into State government. a covered transaction. This term also (t) Suspending official. An official au- includes any person who acts on behalf thorized to impose suspension. The sus- of or is authorized to commit a partici- pending official is either: pant in a covered transaction as an (1) The agency head, or agent or representative of another par- (2) An official designated by the ticipant. agency head. (n) Person. Any individual, corpora- (u) Suspension. An action taken by a tion, partnership, association, unit of suspending official in accordance with government or legal entity, however these regulations that immediately ex- organized, except: Foreign govern- cludes a person from participating in ments or foreign governmental enti- covered transactions for a temporary ties, public international organiza- period, pending completion of an inves- tions, foreign government owned (in tigation and such legal, debarment, or whole or in part) or controlled entities, Program Fraud Civil Remedies Act and entities consisting wholly or par- proceedings as may ensue. A person so tially of foreign governments or for- excluded is ‘‘suspended.’’ eign governmental entities. (v) Voluntary exclusion or voluntarily (o) Preponderance of the evidence. excluded. A status of nonparticipation Proof by information that, compared or limited participation in covered with that opposing it, leads to the con- transactions assumed by a person pur- clusion that the fact at issue is more suant to the terms of a settlement. probably true than not. (p) Principal. Officer, director, owner, § 1229.110 Coverage. partner, key employee, or other person (a) These regulations apply to all per- within a participant with primary sons who have participated, are cur- management or supervisory respon- rently participating or may reasonably sibilities; or a person who has a critical be expected to participate in trans- influence on or substantive control actions under Federal nonprocurement over a covered transaction, whether or programs. For purposes of these regula- not employed by the participant. Per- tions such transactions will be referred sons who have a critical influence on or to as ‘‘covered transactions.’’
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(1) Covered transaction. For purposes (ii) Direct awards to foreign govern- of these regulations, a covered trans- ments or public international organiza- action is a primary covered transaction tions, or transactions with foreign gov- or a lower tier covered transaction. ernments or foreign governmental en- Covered transactions at any tier need tities, public international organiza- not involve the transfer of Federal tions, foreign government owned (in funds. whole or in part) or controlled entities, (i) Primary covered transaction. Except entities consisting wholly or partially as noted in paragraph (a)(2) of this sec- of foreign governments or foreign gov- tion, a primary covered transaction is ernmental entities; any nonprocurement transaction be- (iii) Benefits to an individual as a tween an agency and a person, regard- personal entitlement without regard to less of type, including: Grants, cooper- the individual’s present responsibility ative agreements, scholarships, fellow- (but benefits received in an individual’s ships, contracts of assistance, loans, business capacity are not excepted); loan guarantees, subsidies, insurance, (iv) Federal employment; payments for specified use, donation (v) Transactions pursuant to national agreements and any other nonprocure- or agency-recognized emergencies or ment transactions between a Federal disasters; agency and a person. Primary covered (vi) Incidental benefits derived from transactions also include those trans- ordinary governmental operations; and actions specially designated by the (vii) Other transactions where the ap- U.S. Department of Housing and Urban plication of these regulations would be Development in such agency’s regula- prohibited by law. tions governing debarment and suspen- (b) Relationship to other sections. This sion. section describes the types of trans- (ii) Lower tier covered transaction. A actions to which a debarment or sus- lower tier covered transaction is: pension under the regulations will (A) Any transaction between a par- apply. Subpart B, ‘‘Effect of Action,’’ ticipant and a person other than a pro- § 1229.200, ‘‘Debarment or suspension,’’ curement contract for goods or serv- sets forth the consequences of a debar- ices, regardless of type, under a pri- ment or suspension. Those con- mary covered transaction. sequences would obtain only with re- (B) Any procurement contract for spect to participants and principals in goods or services between a participant the covered transactions and activities and a person, regardless of type, ex- described in § 1229.110(a). Sections pected to equal or exceed the Federal 1229.325, ‘‘Scope of debarment,’’ and procurement small purchase threshold 1229.420, ‘‘Scope of suspension,’’ govern fixed at 10 U.S.C. 2304(g) and 41 U.S.C. the extent to which a specific partici- 253(g) (currently $25,000) under a pri- pant or organizational elements of a mary covered transaction. participant would be automatically in- (C) Any procurement contract for cluded within a debarment or suspen- goods or services between a participant sion action, and the conditions under and a person under a covered trans- which affiliates or persons associated action, regardless of amount, under with a participant may also be brought which that person will have a critical within the scope of the action. influence on or substantive control (c) Relationship to Federal procurement over that covered transaction. Such activities. Debarment and suspension of persons are: Federal procurement contractors and (1) Principal investigators. subcontractors under Federal procure- (2) Providers of federally-required ment contracts are covered by the Fed- audit services. eral Acquisition Regulation (FAR), 48 (2) Exceptions. The following trans- CFR subpart 9.4. actions are not covered: (i) Statutory entitlements or manda- § 1229.115 Policy. tory awards (but not subtier awards (a) In order to protect the public in- thereunder which are not themselves terest, it is the policy of the Federal mandatory), including deposited funds Government to conduct business only insured by the Federal Government; with responsible persons. Debarment
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and suspension are discretionary ac- (2) Direct awards to foreign govern- tions that, taken in accordance with ments or public international organiza- Executive Order 12549 and these regula- tions, or transactions with foreign gov- tions, are appropriate means to imple- ernments or foreign governmental en- ment this policy. tities, public international organiza- (b) Debarment and suspension are se- tions, foreign government owned (in rious actions which shall be used only whole or in part) or controlled entities, in the public interest and for the Fed- and entities consisting wholly or par- eral Government’s protection and not tially of foreign governments or for- for purposes of punishment. Agencies eign governmental entities; may impose debarment or suspension (3) Benefits to an individual as a per- for the causes and in accordance with sonal entitlement without regard to the procedures set forth in these regu- the individual’s present responsibility lations. (but benefits received in an individual’s (c) When more than one agency has business capacity are not excepted); an interest in the proposed debarment (4) Federal employment; or suspension of a person, consider- (5) Transactions pursuant to national ation shall be given to designating one or agency-recognized emergencies or agency as the lead agency for making disasters; the decision. Agencies are encouraged (6) Incidental benefits derived from to establish methods and procedures ordinary governmental operations; and for coordinating their debarment or suspension actions. (7) Other transactions where the ap- plication of these regulations would be prohibited by law. Subpart B—Effect of Action § 1229.205 Ineligible persons. § 1229.200 Debarment or suspension. Persons who are ineligible, as defined (a) Primary covered transactions. Ex- in § 1229.105(i), are excluded in accord- cept to the extent prohibited by law, ance with the applicable statutory, ex- persons who are debarred or suspended ecutive order, or regulatory authority. shall be excluded from primary covered transactions as either participants or § 1229.210 Voluntary exclusion. principals throughout the executive branch of the Federal Government for Persons who accept voluntary exclu- the period of their debarment or sus- sions under § 1229.315 are excluded in pension. Accordingly, no agency shall accordance with the terms of their set- enter into primary covered trans- tlements. ACTION shall, and partici- actions with such debarred or sus- pants may, contact the original action pended persons during such period, ex- agency to ascertain the extent of the cept as permitted pursuant to § 1229.215. exclusion. (b) Loser tier covered transactions. Ex- cept to the extent prohibited by law, § 1229.215 Exception provision. persons who have been debarred or sus- ACTION may grant an exception per- pended shall be excluded from partici- mitting a debarred, suspended, or vol- pating as either participants or prin- untarily excluded person to participate cipals in all lower tier covered trans- in a particular covered transaction actions (see § 1229.110(a)(1)(ii)) for the upon a written determination by the period of their debarment or suspen- agency head or an authorized designee sion. stating the reason(s) for deviating from (c) Exceptions. Debarment or suspen- the Presidential policy established by sion does not affect a person’s eligi- Executive Order 12549 and § 1229.200 of bility for: this rule. However, in accordance with (1) Statutory entitlements or manda- the President’s stated intention in the tory awards (but not subtier awards Executive Order, exceptions shall be thereunder which are not themselves granted only infrequently. Exceptions mandatory), including deposited funds shall be reported in accordance with insured by the Federal Government; § 1229.505(a).
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§ 1229.220 Continuation of covered the person be debarred; the seriousness transactions. of the person’s acts or omissions and (a) Notwithstanding the debarment, any mitigating factors shall be consid- suspension, determination of ineligi- ered in making any debarment deci- bility, or voluntary exclusion of any sion. person by an agency, agencies and par- ticipants may continue covered trans- § 1229.305 Causes for debarment. actions in existence at the time the Debarment may be imposed in ac- person was debarred, suspended, de- cordance with the provisions of clared ineligible, or voluntarily ex- §§ 1229.300 through 1229.314 for: cluded. A decision as to the type of ter- (a) Conviction of or civil judgment mination action, if any, to be taken for: should be made only after thorough re- (1) Commission of fraud or a criminal view to ensure the propriety of the pro- offense in connection with obtaining, posed action. attempting to obtain, or performing a (b) Agencies and participants shall public or private agreement or trans- not renew or extend covered trans- action; actions (other than no-cost time exten- (2) Violation of Federal or State anti- sions) with any person who is debarred, trust statutes, including those pro- suspended, ineligible, or voluntarily scribing price fixing between competi- excluded, except as provided in tors, allocation of customers between § 1229.215. competitors, and bid rigging; § 1229.225 Failure to adhere to restric- (3) Commission of embezzlement, tions. theft, forgery, bribery, falsification or destruction of records, making false Except as permitted under § 1229.215 statements, receiving stolen property, or § 1229.220 of these regulations, a par- making false claims, or obstruction of ticipant shall not knowingly do busi- justice; or ness under a covered transaction with a person who is debarred or suspended, (4) Commission of any other offense or with a person who is ineligible for or indicating a lack of business integrity voluntarily excluded from that covered or business honesty that seriously and transaction. Violation of this restric- directly affects the present responsi- tion may result in disallowance of bility of a person. costs, annulment or termination of (b) Violation of the terms of a public award, issuance of a stop work order, agreement or transaction so serious as debarment or suspension, or other rem- to affect the integrity of an agency edies, as appropriate. A participant program, such as: may rely upon the certification of a (1) A willful failure to perform in ac- prospective participant in a lower tier cordance with the terms of one or more covered transaction that it and its public agreements or transactions; principals are not debarred, suspended, (2) A history of failure to perform or ineligible, or voluntarily excluded from of unsatisfactory performance of one or the covered transaction (see Appendix more public agreements or trans- B), unless it knows that the certifi- actions; or cation is erroneous. An agency has the (3) A willful violation of a statutory burden of proof that such participant or regulatory provision or requirement did knowingly do business with such a applicable to a public agreement or person. transaction. (c) Any of the following causes: Subpart C—Debarment (1) A nonprocurement debarment by any Federal agency taken before Octo- § 1229.300 General. ber 1, 1988, the effective date of these The debarring official may debar a regulations, or a procurement debar- person for any of the causes in ment by any Federal agency taken pur- § 1229.305, using procedures established suant to 48 CFR subpart 9.4; in §§ 1229.310 through 1229.314. The exist- (2) Knowingly doing business with a ence of a cause for debarment, how- debarred, suspended, ineligible, or vol- ever, does not necessarily require that untarily excluded person, in connection
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with a covered transaction, except as (c) Of the cause(s) relied upon under permitted in § 1229.215 or § 1229.220; § 1229.305 for proposing debarment; (3) Failure to pay a single substantial (d) Of the provisions of § 1229.311 debt, or a number of outstanding debts through § 1229.314, and any other AC- (including disallowed costs and over- TION procedures, if applicable, gov- payments, but not including sums owed erning debarment decisionmaking; and the Federal Government under the In- (e) Of the potential effect of a debar- ternal Revenue Code) owed to any Fed- ment. eral agency or instrumentality, pro- vided the debt is uncontested by the § 1229.313 Opportunity to contest pro- debtor or, if contested, provided that posed debarment. the debtor’s legal and administrative (a) Submission in opposition. Within 30 remedies have been exhausted; days after receipt of the notice of pro- (4) Violation of a material provision posed debarment, the respondent may of a voluntary exclusion agreement en- submit, in person, in writing, or tered into under § 1229.315 or of any set- through a representative, information tlement of a debarment or suspension and argument in opposition to the pro- action; or posed debarment. (5) Violation of any requirement of (b) Additional proceedings as to dis- subpart F of this part, relating to pro- puted material facts. (1) In actions not viding a drug–free workplace, as set based upon a conviction or civil judg- forth in § 1229.615 of this part. ment, if the debarring official finds (d) Any other cause of so serious or that the respondent’s submission in op- compelling a nature that it affects the position raises a genuine dispute over present responsibility of a person. facts material to the proposed debar- ment, respondent(s) shall be afforded [53 FR 19202 and 19204, May 26, 1988, as an opportunity to appear with a rep- amended at 54 FR 4950 and 4965, Jan. 31, 1989; resentative, submit documentary evi- 55 FR 21704, May 25, 1990] dence, present witnesses, and confront § 1229.310 Procedures. any witness the agency presents. (2) A transcribed record of any addi- ACTION shall process debarment ac- tional proceedings shall be made avail- tions as informally as practicable, con- able at cost to the respondent, upon re- sistent with the principles of funda- quest, unless the respondent and the mental fairness, using the procedures agency, by mutual agreement, waive in §§ 1229.311 through 1229.314. the requirement for a transcript.
§ 1229.311 Investigation and referral. § 1229.314 Debarring official’s decision. Information concerning the existence (a) No additional proceedings necessary. of a cause for debarment from any In actions based upon a conviction or source shall be promptly reported, in- civil judgment, or in which there is no vestigated, and referred, when appro- genuine dispute over material facts, priate, to the debarring official for con- the debarring official shall make a de- sideration. After consideration, the de- cision on the basis of all the informa- barring official may issue a notice of tion in the administrative record, in- proposed debarment. cluding any submission made by the re- spondent. The decision shall be made § 1229.312 Notice of proposed debar- within 45 days after receipt of any in- ment. formation and argument submitted by A debarment proceeding shall be ini- the respondent, unless the debarring tiated by notice to the respondent ad- official extends this period for good vising: cause. (a) That debarment is being consid- (b) Additional proceedings necessary. ered; (1) In actions in which additional pro- (b) Of the reasons for the proposed ceedings are necessary to determine debarment in terms sufficient to put disputed material facts, written find- the respondent on notice of the con- ings of fact shall be prepared. The de- duct or transaction(s) upon which it is barring official shall base the decision based; on the facts as found, together with
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any information and argument sub- shall be entered on the Nonprocure- mitted by the respondent and any ment List (see subpart E). other information in the administra- tive record. § 1229.320 Period of debarment. (2) The debarring official may refer (a) Debarment shall be for a period disputed material facts to another offi- commensurate with the seriousness of cial for findings of fact. The debarring the cause(s). If a suspension precedes a official may reject any such findings, debarment, the suspension period shall in whole or in part, only after specifi- be considered in determining the de- cally determining them to be arbitrary barment period. and capricious or clearly erroneous. (1) Debarment for causes other than (3) The debarring official’s decision those related to a violation of the re- shall be made after the conclusion of quirements of subpart F of this part the proceedings with respect to dis- puted facts. generally should not exceed three (c) (1) Standard of proof. In any debar- years. Where circumstances warrant, a ment action, the cause for debarment longer period of debarment may be im- must be established by a preponderance posed. of the evidence. Where the proposed de- (2) In the case of a debarment for a barment is based upon a conviction or violation of the requirements of sub- civil judgment, the standard shall be part F of this part (see 1229.305(c)(5)), deemed to have been met. the period of debarment shall not ex- (2) Burden of proof. The burden of ceed five years. proof is on the agency proposing debar- (b) The debarring official may extend ment. an existing debarment for an addi- (d) Notice of debarring official’s deci- tional period, if that official deter- sion. (1) If the debarring official decides mines that an extension is necessary to to impose debarment, the respondent protect the public interest. However, a shall be given prompt notice: debarment may not be extended solely (i) Referring to the notice of proposed on the basis of the facts and cir- debarment; cumstances upon which the initial de- (ii) Specifying the reasons for debar- barment action was based. If debar- ment; ment for an additional period is deter- (iii) Stating the period of debarment, mined to be necessary, the procedures including effective dates; and of §§ 1229.311 through 1229.314 shall be (iv) Advising that the debarment is followed to extend the debarment. effective for covered transactions (c) The respondent may request the throughout the executive branch of the debarring official to reverse the debar- Federal Government unless an agency ment decision or to reduce the period head or an authorized designee makes or scope of debarment. Such a request the determination referred to in shall be in writing and supported by § 1229.215. documentation. The debarring official (2) If the debarring official decides may grant such a request for reasons not to impose debarment, the respond- including, but not limited to: ent shall be given prompt notice of (1) Newly discovered material evi- that decision. A decision not to impose dence; debarment shall be without prejudice (2) Reversal of the conviction or civil to a subsequent imposition of debar- judgment upon which the debarment ment by any other agency. was based; § 1229.315 Settlement and voluntary (3) Bona fide change in ownership or exclusion. management; (a) When in the best interest of the (4) Elimination of other causes for Government, ACTION may, at any which the debarment was imposed; or time, settle a debarment or suspension (5) Other reasons the debarring offi- action. cial deems appropriate. (b) If a participant and the agency [53 FR 19202 and 19204, May 26, 1988, as agree to a voluntary exclusion of the amended at 54 FR 4950 and 4965, Jan. 31, 1989; participant, such voluntary exclusion 55 FR 21704, May 25, 1990]
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§ 1229.325 Scope of debarment. tion, or similar arrangement or with (a) Scope in general. (1) Debarment of the knowledge, approval, or acquies- a person under these regulations con- cence of these participants. Acceptance stitutes debarment of all its divisions of the benefits derived from the con- and other organizational elements duct shall be evidence of such knowl- from all covered transactions, unless edge, approval, or acquiescence. the debarment decision is limited by its terms to one or more specifically Subpart D—Suspension identified individuals, divisions or other organizational elements or to § 1229.400 General. specific types of transactions. (a) The suspending official may sus- (2) The debarment action may in- pend a person for any of the causes in clude any affiliate of the participant § 1229.405 using procedures established that is specifically named and given in §§ 1229.410 through 1229.413. notice of the proposed debarment and (b) Suspension is a serious action to an opportunity to respond (see be imposed only when: §§ 1229.311 through 1229.314). (b) Imputing conduct. For purposes of (1) There exists adequate evidence of determining the scope of debarment, one or more of the causes set out in conduct may be imputed as follows: § 1229.405, and (1) Conduct imputed to participant. The (2) Immediate action is necessary to fraudulent, criminal or other seriously protect the public interest. improper conduct of any officer, direc- (c) In assessing the adequacy of the tor, shareholder, partner, employee, or evidence, the agency should consider other individual associated with a par- how much information is available, ticipant may be imputed to the partici- how credible it is given the cir- pant when the conduct occurred in con- cumstances, whether or not important nection with the individual’s perform- allegations are corroborated, and what ance of duties for or on behalf of the inferences can reasonably be drawn as participant, or with the participant’s a result. This assessment should in- knowledge, approval, or acquiescence. clude an examination of basic docu- The participant’s acceptance of the ments such as grants, cooperative benefits derived from the conduct shall agreements, loan authorizations, and be evidence of such knowledge, ap- contracts. proval, or acquiescence. (2) Conduct imputed to individuals asso- § 1229.405 Causes for suspension. ciated with participant. The fraudulent, (a) Suspension may be imposed in ac- criminal, or other seriously improper cordance with the provisions of conduct of a participant may be im- §§ 1229.400 through 1229.413 upon ade- puted to any officer, director, share- quate evidence: holder, partner, employee, or other in- (1) To suspect the commission of an dividual associated with the partici- offense listed in § 1229.305(a); or pant who participated in, knew of, or had reason to know of the participant’s (2) That a cause for debarment under conduct. § 1229.305 may exist. (3) Conduct of one participant imputed (b) Indictment shall constitute ade- to other participants in a joint venture. quate evidence for purposes of suspen- The fraudulent, criminal, or other seri- sion actions. ously improper conduct of one partici- pant in a joint venture, grant pursuant § 1229.410 Procedures. to a joint application, or similar ar- (a) Investigation and referral. Informa- rangement may be imputed to other tion concerning the existence of a participants if the conduct occurred for cause for suspension from any source or on behalf of the joint venture, grant shall be promptly reported, inves- pursuant to a joint application, or tigated, and referred, when appro- similar arrangement may be imputed priate, to the suspending official for to other participants if the conduct oc- consideration. After consideration, the curred for or on behalf of the joint ven- suspending official may issue a notice ture, grant pursuant to a joint applica- of suspension.
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(b) Decisionmaking process. ACTION that the substantial interests of the shall process suspension actions as in- Federal Government in pending or con- formally as practicable, consistent templated legal proceedings based on with principles of fundamental fair- the same facts as the suspension would ness, using the procedures in § 1229.411 be prejudiced. through § 1229.413. (2) A transcribed record of any addi- tional proceedings shall be prepared § 1229.411 Notice of suspension. and made available at cost to the re- When a respondent is suspended, no- spondent, upon request, unless the re- tice shall immediately be given: spondent and the agency, by mutual (a) That suspension has been im- agreement, waive the requirement for a posed; transcript. (b) That the suspension is based on an indictment, conviction, or other § 1229.413 Suspending official’s deci- adequate evidence that the respondent sion. has committed irregularities seriously The suspending official may modify reflecting on the propriety of further or terminate the suspension (for exam- Federal Government dealings with the ple, see § 1229.320(c) for reasons for re- respondent; ducing the period or scope of debar- (c) Describing any such irregularities ment) or may leave it in force. How- in terms sufficient to put the respond- ever, a decision to modify or terminate ent on notice without disclosing the the suspension shall be without preju- Federal Government’s evidence; dice to the subsequent imposition of (d) Of the cause(s) relied upon under suspension by any other agency or de- § 1229.405 for imposing suspension; barment by any agency. The decision (e) That the suspension is for a tem- shall be rendered in accordance with porary period pending the completion the following provisions: of an investigation or ensuing legal, de- barment, or Program Fraud Civil Rem- (a) No additional proceedings necessary. edies Act proceedings; In actions: Based on an indictment, (f) Of the provisions of § 1229.411 conviction, or civil judgment; in which through § 1229.413 and any other AC- there is no genuine dispute over mate- TION procedures, if applicable, gov- rial facts; or in which additional pro- erning suspension decisionmaking; and ceedings to determine disputed mate- (g) Of the effect of the suspension. rial facts have been denied on the basis of Department of Justice advice, the § 1229.412 Opportunity to contest sus- suspending official shall make a deci- pension. sion on the basis of all the information (a) Submission in opposition. Within 30 in the administrative record, including days after receipt of the notice of sus- any submission made by the respond- pension, the respondent may submit, in ent. The decision shall be made within person, in writing, or through a rep- 45 days after receipt of any information resentative, information and argument and argument submitted by the re- in opposition to the suspension. spondent, unless the suspending official (b) Additional proceedings as to dis- extends this period for good cause. puted material facts. (1) If the sus- (b) Additional proceedings necessary. pending official finds that the respond- (1) In actions in which additional pro- ent’s submission in opposition raises a ceedings are necessary to determine genuine dispute over facts material to disputed material facts, written find- the suspension, respondent(s) shall be ings of fact shall be prepared. The sus- afforded an opportunity to appear with pending official shall base the decision a representative, submit documentary on the facts as found, together with evidence, present witnesses, and con- any information and argument sub- front any witness the agency presents, mitted by the respondent and any unless: other information in the administra- (i) The action is based on an indict- tive record. ment, conviction or civil judgment, or (2) The suspending official may refer (ii) A determination is made, on the matters involving disputed material basis of Department of Justice advice, facts to another official for findings of
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fact. The suspending official may re- (b) At a minimum, this list shall in- ject any such findings, in whole or in dicate: part, only after specifically deter- (1) The names and addresses of all mining them to be arbitrary or capri- debarred, suspended, ineligible, and cious or clearly erroneous. voluntarily excluded persons, in alpha- (c) Notice of suspending official’s deci- betical order, with cross-references sion. Prompt written notice of the sus- when more than one name is involved pending official’s decision shall be sent in a single action; to the respondent. (2) The type of action; § 1229.415 Period of suspension. (3) The cause for the action; (4) The scope of the action; (a) Suspension shall be for a tem- (5) Any termination date for each porary period pending the completion listing; and of an investigation or ensuing legal, de- barment, or Program Fraud Civil Rem- (6) The agency and name and tele- edies Act proceedings, unless termi- phone number of the agency point of nated sooner by the suspending official contact for the action. or as provided in paragraph (b) of this section. § 1229.505 ACTION responsibilities. (b) If legal or administrative pro- (a) The agency shall provide GSA ceedings are not initiated within 12 with current information concerning months after the date of the suspension debarments, suspension, determina- notice, the suspension shall be termi- tions of ineligibility, and voluntary ex- nated unless an Assistant Attorney clusions it has taken. Until February General or United States Attorney re- 18, 1989, the agency shall also provide quests its extension in writing, in GSA and OMB with information con- which case it may be extended for an cerning all transactions in which AC- additional six months. In no event may TION has granted exceptions under a suspension extend beyond 18 months, § 1229.215 permitting participation by unless such proceedings have been ini- debarred, suspended, or voluntarily ex- tiated within that period. cluded persons. (c) The suspending official shall no- (b) Unless an alternative schedule is tify the Department of Justice of an impending termination of a suspension, agreed to by GSA, the agency shall ad- at least 30 days before the 12-month pe- vise GSA of the information set forth riod expires, to give that Department in § 1229.500(b) and of the exceptions an opportunity to request an exten- granted under § 1229.215 within five sion. working days after taking such ac- tions. § 1229.420 Scope of suspension. (c) The agency shall direct inquiries The scope of a suspension is the same concerning listed persons to the agency as the scope of a debarment (see that took the action. § 1229.325), except that the procedures of (d) Agency officials shall check the §§ 1229.410 through 1229.413 shall be used Nonprocurement List before entering in imposing a suspension. covered transactions to determine whether a participant in a primary Subpart E—Responsibilities of GSA, transaction is debarred, suspended, in- Agency and Participants eligible, or voluntarily excluded (Tel. #). § 1229.500 GSA responsibilities. (e) Agency officials shall check the (a) In accordance with the OMB Nonprocurement List before approving guidelines, GSA shall compile, main- principals or lower tier participants tain, and distribute a list of all persons where agency approval of the principal who have been debarred, suspended, or or lower tier participant is required voluntarily excluded by agencies under under the terms of the transaction, to Executive Order 12549 and these regula- determine whether such principals or tions, and those who have been deter- participants are debarred, suspended, mined to be ineligible. ineligible, or voluntarily excluded.
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§ 1229.510 Participants’ responsibil- notice to the participant to which it ities. submitted its proposals. (a) Certification by participants in pri- mary covered transactions. Each partici- Subpart F—Drug-Free Workplace pant shall submit the certification in Requirements (Grants) Appendix A to this part for it and its
principals at the time the participant SOURCE: 55 FR 21688, 21704, May 25, 1990, un- submits its proposal in connection with less otherwise noted. a primary covered transaction, except that States need only complete such § 1229.600 Purpose. certification as to their principals. (a) The purpose of this subpart is to Participants may decide the method carry out the Drug-Free Workplace Act and frequency by which they determine of 1988 by requiring that— the eligibility of their principals. In addition, each participant may, but is (1) A grantee, other than an indi- not required to, check the Nonprocure- vidual, shall certify to the agency that ment List for its principals (Tel. #). it will provide a drug-free workplace; Adverse information on the certifi- (2) A grantee who is an individual cation will not necessarily result in de- shall certify to the agency that, as a nial of participation. However, the cer- condition of the grant, he or she will tification, and any additional informa- not engage in the unlawful manufac- tion pertaining to the certification ture, distribution, dispensing, posses- submitted by the participant, shall be sion or use of a controlled substance in considered in the administration of conducting any activity with the covered transactions. grant. (b) Certification by participants in (b) Requirements implementing the lower tier covered transactions. (1) Each Drug-Free Workplace Act of 1988 for participant shall require participants contractors with the agency are found in lower tier covered transactions to at 48 CFR subparts 9.4, 23.5, and 52.2. include the certification in Appendix B to this part for it and its principals in § 1229.605 Definitions. any proposal submitted in connection (a) Except as amended in this sec- with such lower tier covered trans- tion, the definitions of § 1229.105 apply actions. to this subpart. (2) A participant may rely upon the (b) For purposes of this subpart— certification of a prospective partici- (1) Controlled substance means a con- pant in a lower tier covered trans- trolled substance in schedules I action that it and its principals are not through V of the Controlled Substances debarred, suspended, ineligible, or vol- Act (21 U.S.C. 812), and as further de- untarily excluded from the covered fined by regulation at 21 CFR 1308.11 transaction by any Federal agency, un- through 1308.15; less it knows that the certification is erroneous. Participants may decide the (2) Conviction means a finding of guilt method and frequency by which they (including a plea of nolo contendere) or determine the eligiblity of their prin- imposition of sentence, or both, by any cipals. In addition, a participant may, judicial body charged with the respon- but is not required to, check the Non- sibility to determine violations of the procurement List for its principals and Federal or State criminal drug stat- for participants (Tel. #). utes; (c) Changed circumstances regarding (3) Criminal drug statute means a Fed- certification. A participant shall provide eral or non-Federal criminal statute immediate written notice to ACTION if involving the manufacture, distribu- at any time the participant learns that tion, dispensing, use, or possession of its certification was erroneous when any controlled substance; submitted or has become erroneous by (4) Drug-free workplace means a site reason of changed circumstances. Par- for the performance of work done in ticipants in lower tier covered trans- connection with a specific grant at actions shall provide the same updated which employees of the grantee are
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prohibited from engaging in the unlaw- from a Federal agency (except another ful manufacture, distribution, dis- Federal agency); pensing, possession, or use of a con- (9) Individual means a natural person; trolled substance; (10) State means any of the States of (5) Employee means the employee of a the United States, the District of Co- grantee directly engaged in the per- lumbia, the Commonwealth of Puerto formance of work under the grant, in- Rico, any territory or possession of the cluding: United States, or any agency of a (i) All direct charge employees; State, exclusive of institutions of high- (ii) All indirect charge employees, un- er education, hospitals, and units of less their impact or involvement is in- local government. A State instrumen- significant to the performance of the tality will be considered part of the grant; and, State government if it has a written (iii) Temporary personnel and con- determination from a State govern- sultants who are directly engaged in ment that such State considers the in- the performance of work under the strumentality to be an agency of the grant and who are on the grantee’s State government. payroll. This definition does not include work- § 1229.610 Coverage. ers not on the payroll of the grantee (a) This subpart applies to any grant- (e.g., volunteers, even if used to meet a ee of the agency. matching requirement; consultants or independent contractors not on the (b) This subpart applies to any grant, payroll; or employees of subrecipients except where application of this sub- or subcontractors in covered work- part would be inconsistent with the places); international obligations of the United (6) Federal agency or agency means States or the laws or regulations of a any United States executive depart- foreign government. A determination ment, military department, govern- of such inconsistency may be made ment corporation, government con- only by the agency head or his/her des- trolled corporation, any other estab- ignee. lishment in the executive branch (in- (c) The provisions of subparts A, B, C, cluding the Executive Office of the D and E of this part apply to matters President), or any independent regu- covered by this subpart, except where latory agency; specifically modified by this subpart. (7) Grant means an award of financial In the event of any conflict between assistance, including a cooperative provisions of this subpart and other agreement, in the form of money, or provisions of this part, the provisions property in lieu of money, by a Federal of this subpart are deemed to control agency directly to a grantee. The term with respect to the implementation of grant includes block grant and entitle- drug-free workplace requirements con- ment grant programs, whether or not cerning grants. exempted from coverage under the grants management government-wide § 1229.615 Grounds for suspension of common rule on uniform administra- payments, suspension or termi- nation of grants, or suspension or tive requirements for grants and coop- debarment. erative agreements. The term does not include technical assistance that pro- A grantee shall be deemed in viola- vides services instead of money, or tion of the requirements of this sub- other assistance in the form of loans, part if the agency head or his or her of- loan guarantees, interest subsidies, in- ficial designee determines, in writing, surance, or direct appropriations; or that— any veterans’ benefits to individuals, (a) The grantee has made a false cer- i.e., any benefit to veterans, their fami- tification under § 1229.630; lies, or survivors by virtue of the serv- (b) With respect to a grantee other ice of a veteran in the Armed Forces of than an individual— the United States; (1) The grantee has violated the cer- (8) Grantee means a person who ap- tification by failing to carry out the plies for or receives a grant directly requirements of paragraphs (A)(a)–(g)
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and/or (B) of the certification (Alter- the Federal agency providing the nate I to Appendix C) or grant, as provided in Appendix C to (2) Such a number of employees of this part. the grantee have been convicted of vio- (2) Grantees are not required to make lations of criminal drug statutes for a certification in order to continue re- violations occurring in the workplace ceiving funds under a grant awarded as to indicate that the grantee has before March 18, 1989, or under a no- failed to make a good faith effort to cost time extension of such a grant. provide a drug-free workplace. However, the grantee shall make a one- (c) With respect to a grantee who is time drug-free workplace certification an individual— for a non-automatic continuation of (1) The grantee has violated the cer- such a grant made on or after March tification by failing to carry out its re- 18, 1989. quirements (Alternate II to Appendix (b) Except as provided in this section, C); or all grantees shall make the required (2) The grantee is convicted of a certification for each grant. For man- criminal drug offense resulting from a datory formula grants and entitle- violation occurring during the conduct ments that have no application proc- of any grant activity. ess, grantees shall submit a one-time certification in order to continue re- § 1229.620 Effect of violation. ceiving awards. (a) In the event of a violation of this (c) A grantee that is a State may subpart as provided in § 1229.615, and in elect to make one certification in each accordance with applicable law, the Federal fiscal year. States that pre- grantee shall be subject to one or more viously submitted an annual certifi- of the following actions: cation are not required to make a cer- (1) Suspension of payments under the tification for Fiscal Year 1990 until grant; June 30, 1990. Except as provided in (2) Suspension or termination of the paragraph (d) of this section, this cer- grant; and tification shall cover all grants to all (3) Suspension or debarment of the State agencies from any Federal agen- grantee under the provisions of this cy. The State shall retain the original part. of this statewide certification in its (b) Upon issuance of any final deci- Governor’s office and, prior to grant sion under this part requiring debar- award, shall ensure that a copy is sub- ment of a grantee, the debarred grant- mitted individually with respect to ee shall be ineligible for award of any each grant, unless the Federal agency grant from any Federal agency for a has designated a central location for period specified in the decision, not to submission. exceed five years (see § 1229.320(a)(2) of (d)(1) The Governor of a State may this part). exclude certain State agencies from the statewide certification and author- § 1229.625 Exception provision. ize these agencies to submit their own The agency head may waive with re- certifications to Federal agencies. The spect to a particular grant, in writing, statewide certification shall name any a suspension of payments under a State agencies so excluded. grant, suspension or termination of a (2) A State agency to which the grant, or suspension or debarment of a statewide certification does not apply, grantee if the agency head determines or a State agency in a State that does that such a waiver would be in the pub- not have a statewide certification, may lic interest. This exception authority elect to make one certification in each cannot be delegated to any other offi- Federal fiscal year. State agencies that cial. previously submitted a State agency certification are not required to make § 1229.630 Certification requirements a certification for Fiscal Year 1990 and procedures. until June 30, 1990. The State agency (a)(1) As a prior condition of being shall retain the original of this State awarded a grant, each grantee shall agency-wide certification in its central make the appropriate certification to office and, prior to grant award, shall
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ensure that a copy is submitted indi- (ii) Require the employee to partici- vidually with respect to each grant, pate satisfactorily in a drug abuse as- unless the Federal agency designates a sistance or rehabilitation program ap- central location for submission. proved for such purposes by a Federal, (3) When the work of a grant is done State, or local health, law enforce- by more than one State agency, the ment, or other appropriate agency. certification of the State agency di- (b) A grantee who is an individual rectly receiving the grant shall be who is convicted for a violation of a deemed to certify compliance for all criminal drug statute occurring during workplaces, including those located in the conduct of any grant activity shall other State agencies. report the conviction, in writing, with- (e)(1) For a grant of less than 30 days in 10 calendar days, to his or her Fed- performance duration, grantees shall eral agency grant officer, or other des- have this policy statement and pro- ignee, unless the Federal agency has gram in place as soon as possible, but designated a central point for the re- in any case by a date prior to the date ceipt of such notices. Notification shall on which performance is expected to be include the identification number(s) completed. for each of the Federal agency’s af- (2) For a grant of 30 days or more per- fected grants. formance duration, grantees shall have (Approved by the Office of Management and this policy statement and program in Budget under control number 0991–0002) place within 30 days after award. (3) Where extraordinary cir- APPENDIX A TO PART 1229—CERTIFI- cumstances warrant for a specific CATION REGARDING DEBARMENT, grant, the grant officer may determine SUSPENSION, AND OTHER RESPONSI- a different date on which the policy BILITY MATTERS—PRIMARY COVERED statement and program shall be in TRANSACTIONS place. Instructions for Certification § 1229.635 Reporting of and employee 1. By signing and submitting this proposal, sanctions for convictions of crimi- the prospective primary participant is pro- nal drug offenses. viding the certification set out below. 2. The inability of a person to provide the (a) When a grantee other than an in- certification required below will not nec- dividual is notified that an employee essarily result in denial of participation in has been convicted for a violation of a this covered transaction. The prospective criminal drug statute occurring in the participant shall submit an explanation of workplace, it shall take the following why it cannot provide the certification set actions: out below. The certification or explanation (1) Within 10 calendar days of receiv- will be considered in connection with the de- partment or agency’s determination whether ing notice of the conviction, the grant- to enter into this transaction. However, fail- ee shall provide written notice, includ- ure of the prospective primary participant to ing the convicted employee’s position furnish a certification or an explanation title, to every grant officer, or other shall disqualify such person from participa- designee on whose grant activity the tion in this transaction. convicted employee was working, un- 3. The certification in this clause is a ma- less a Federal agency has designated a terial representation of fact upon which reli- central point for the receipt of such no- ance was placed when the department or agency determined to enter into this trans- tifications. Notification shall include action. If it is later determined that the pro- the identification number(s) for each of spective primary participant knowingly ren- the Federal agency’s affected grants. dered an erroneous certification, in addition (2) Within 30 calendar days of receiv- to other remedies available to the Federal ing notice of the conviction, the grant- Government, the department or agency may ee shall do the following with respect terminate this transaction for cause or de- to the employee who was convicted. fault. (i) Take appropriate personnel action 4. The prospective primary participant shall provide immediate written notice to against the employee, up to and includ- the department or agency to whom this pro- ing termination, consistent with re- posal is submitted if at any time the pro- quirements of the Rehabilitation Act spective primary participant learns that its of 1973, as amended; or certification was erroneous when submitted
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or has become erroneous by reason of agency may terminate this transaction for changed circumstances. cause or default. 5. The terms ‘‘covered transaction,’’ ‘‘debarred,’’ ‘‘suspended,’’ ‘‘ineligible,’’ Certification Regarding Debarment, Suspension, ‘‘lower tier covered transaction,’’ ‘‘partici- and Other Responsibility Matters—Primary pant,’’ ‘‘person,’’ ‘‘primary covered trans- Covered Transactions action,’’ ‘‘principal,’’ ‘‘proposal,’’ and ‘‘vol- (1) The prospective primary participant untarily excluded,’’ as used in this clause, certifies to the best of its knowledge and be- have the meanings set out in the Definitions lief, that it and its principals: and Coverage sections of the rules (a) Are not presently debarred, suspended, implemeting Executive Order 12549. You may proposed for debarment, declared ineligible, contact the department or agency to which or voluntarily excluded from covered trans- this proposal is being submitted for assist- actions by any Federal department or agen- ance in obtaining a copy of those regula- cy; tions. (b) Have not within a three-year period 6. The prospective primary participant preceding this proposal been convicted of or agrees by submitting this proposal that, had a civil judgment rendered against them should the proposed covered transaction be for commission of fraud or a criminal offense entered into, it shall not knowingly enter in connection with obtaining, attempting to into any lower tier covered transaction with obtain, or performing a public (Federal, a person who is debarred, suspended, de- State or local) transaction or contract under clared ineligible, or voluntarily excluded a public transaction; violation of Federal or from participation in this covered trans- State antitrust statutes or commission of action, unless authorized by the department embezzlement, theft, forgery, bribery, fal- or agency entering into this transaction. sification or destruction of records, making 7. The prospective primary participant fur- false statements, or receiving stolen prop- ther agrees by submitting this proposal that erty; it will include the clause titled ‘‘Certifi- (c) Are not presently indicted for or other- cation Regarding Debarment, Suspension, wise criminally or civilly charged by a gov- Ineligibility and Voluntary Exclusion— ernmental entity (Federal, State or local) Lower Tier Covered Transaction,’’ provided with commission of any of the offenses enu- by the department or agency entering into merated in paragraph (1)(b) of this certifi- this covered transaction, without modifica- cation; and tion, in all lower tier covered transactions (d) Have not within a three-year period and in all solicitations for lower tier covered preceding this application/ proposal has one transactions. or more public transactions (Federal, State or local) terminated for cause or default. 8. A participant in a covered transaction (2) Where the prospective primary partici- may rely upon a certification of a prospec- pant is unable to certify to any of the state- tive participant in a lower tier covered ments in this certification, such prospective transaction that it is not debarred, sus- participant shall attach an explanation to pended, ineligible, or voluntarily excluded this proposal. from the covered transaction, unless it knows that the certification is erroneous. A APPENDIX B TO PART 1229—CERTIFI- participant may decide the method and fre- quency by which it determines the eligibility CATION REGARDING DEBARMENT, of its principals. Each participant may, but SUSPENSION, INELIGIBILITY AND VOL- is not required to, check the Nonprocure- UNTARY EXCLUSION—LOWER TIER ment List (Tel. #). COVERED TRANSACTIONS 9. Nothing contained in the foregoing shall be construed to require establishment of a Instructions for Certification system of records in order to render in good 1. By signing and submitting this proposal, faith the certification required by this the prospective lower tier participant is pro- clause. The knowledge and information of a viding the certification set out below. participant is not required to exceed that 2. The certification in this clause is a ma- which is normally possessed by a prudent terial representation of fact upon which reli- person in the ordinary course of business ance was placed when this transaction was dealings. entered into. If it is later determined that 10. Except for transactions authorized the prospective lower tier participant know- under paragraph 6 of these instructions, if a ingly rendered an erroneous certification, in participant in a covered transaction know- addition to other remedies available to the ingly enters into a lower tier covered trans- Federal Government, the department or action with a person who is suspended, agency with which this transaction origi- debarred, ineligible, or voluntarily excluded nated may pursue available remedies, includ- from participation in this transaction, in ad- ing suspension and/or debarment. dition to other remedies available to the 3. The prospective lower tier participant Federal Government, the department or shall provide immediate written notice to
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the person to which this proposal is sub- ernment, the department of agency with mitted if at any time the prospective lower which this transaction originated may pur- tier participant learns that its certification sue available remedies, including suspension was erroneous when submitted or has be- and/or debarment. come erroneous by reason of changed cir- cumstances. Certification Regarding Debarment, Suspension, 4. The terms ‘‘covered transaction,’’ Ineligibility and Voluntary Exclusion—Lower ‘‘debarred,’’ ‘‘suspended,’’ ‘‘ineligible,’’ Tier Covered Transactions ‘‘lower tier covered transaction,’’ ‘‘partici- (1) The prospective lower tier participant pant,’’ ‘‘person,’’ ‘‘primary covered trans- certifies, by submission of this proposal, that action,’’ ‘‘principal,’’ ‘‘proposal,’’ and ‘‘vol- neither it nor its principals is presently untarily excluded,’’ as used in this clause, debarred, suspended, proposed for debarment, have the meanings set out in the Definitions declared ineligible, or voluntarily excluded and Coverage sections of rules implementing from participation in this transaction by any Executive Order 12549. You may contact the Federal department of agency. person to which this proposal is submitted (2) Where the prospective lower tier partic- for assistance in obtaining a copy of those ipant is unable to certify to any of the state- regulations. ments in this certification, such prospective 5. The prospective lower tier participant participant shall attach an explanation to agrees by submitting this proposal that, this proposal. should the proposed covered transaction be entered into, it shall not knowingly enter APPENDIX C TO PART 1229— into any lower tier covered transaction with CERTIFICATION REGARDING DRUG- a person who is debarred, suspended, de- clared ineligible, or voluntarily excluded FREE WORKPLACE REQUIREMENTS from participation in this covered trans- Instructions for Certification action, unless authorized by the department or agency with which this transaction origi- 1. By signing and/or submitting this appli- nated. cation or grant agreement, the grantee is 6. The prospective lower tier participant providing the certification set out below. further agrees by submitting this proposal 2. The certification set out below is a ma- that it will include this clause titled ‘‘Cer- terial representation of fact upon which reli- tification Regarding Debarment, Suspension, ance is placed when the agency awards the Ineligibility and Voluntary Exclusion— grant. If it is later determined that the Lower Tier Covered Transaction,’’ without grantee knowingly rendered a false certifi- modification, in all lower tier covered trans- cation, or otherwise violates the require- actions and in all solicitations for lower tier ments of the Drug-Free Workplace Act, the covered transactions. agency, in addition to any other remedies 7. A participant in a covered transaction available to the Federal Government, may may rely upon a certification of a prospec- take action authorized under the Drug-Free tive participant in a lower tier covered Workplace Act. transaction that it is not debarred, sus- 3. For grantees other than individuals, Al- pended, ineligible, or voluntarily excluded ternate I applies. from the covered transaction, unless it 4. For grantees who are individuals, Alter- knows that the certification is erroneous. A nate II applies. participant may decide the method and fre- 5. Workplaces under grants, for grantees quency by which it determines the eligibility other than individuals, need not be identified of its principals. Each participant may, but on the certification. If known, they may be is not required to, check the Nonprocure- identified in the grant application. If the ment List (Tel. #). grantee does not identify the workplaces at 8. Nothing contained in the foregoing shall the time of application, or upon award, if be construed to require establishment of a there is no application, the grantee must system of records in order to render in good keep the identity of the workplace(s) on file faith the certification required by this in its office and make the information avail- clause. The knowledge and information of a able for Federal inspection. Failure to iden- participant is not required to exceed that tify all known workplaces constitutes a vio- which is normally possessed by a prudent lation of the grantee’s drug-free workplace person in the ordinary course of business requirements. dealings. 6. Workplace identifications must include 9. Except for transactions authorized under the actual address of buildings (or parts of paragraph 5 of these instructions, if a partic- buildings) or other sites where work under ipant in a covered transaction knowingly en- the grant takes place. Categorical descrip- ters into a lower tier covered transaction tions may be used (e.g., all vehicles of a mass with a person who is suspended, debarred, in- transit authority or State highway depart- eligible, or voluntarily excluded from par- ment while in operation, State employees in ticipation in this transaction, in addition to each local unemployment office, performers other remedies available to the Federal Gov- in concert halls or radio studios).
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7. If the workplace identified to the agency (3) Any available drug counseling, rehabili- changes during the performance of the grant, tation, and employee assistance programs; the grantee shall inform the agency of the and change(s), if it previously identified the (4) The penalties that may be imposed workplaces in question (see paragraph five). upon employees for drug abuse violations oc- 8. Definitions of terms in the Nonprocure- curring in the workplace; ment Suspension and Debarment common (c) Making it a requirement that each em- rule and Drug-Free Workplace common rule ployee to be engaged in the performance of apply to this certification. Grantees’ atten- the grant be given a copy of the statement tion is called, in particular, to the following required by paragraph (a); definitions from these rules: (d) Notifying the employee in the state- Controlled substance means a controlled ment required by paragraph (a) that, as a substance in Schedules I through V of the condition of employment under the grant, Controlled Substances Act (21 U.S.C. 812) and the employee will— as further defined by regulation (21 CFR (1) Abide by the terms of the statement; 1308.11 through 1308.15); and Conviction means a finding of guilt (includ- (2) Notify the employer in writing of his or ing a plea of nolo contendere) or imposition her conviction for a violation of a criminal of sentence, or both, by any judicial body drug statute occurring in the workplace no charged with the responsibility to determine later than five calendar days after such con- violations of the Federal or State criminal viction; drug statutes; (e) Notifying the agency in writing, within Criminal drug statute means a Federal or ten calendar days after receiving notice non-Federal criminal statute involving the under paragraph (d)(2) from an employee or manufacture, distribution, dispensing, use, otherwise receiving actual notice of such or possession of any controlled substance; conviction. Employers of convicted employ- Employee means the employee of a grantee ees must provide notice, including position directly engaged in the performance of work title, to every grant officer or other designee under a grant, including: (i) All direct charge on whose grant activity the convicted em- employees; (ii) All indirect charge employees ployee was working, unless the Federal agen- unless their impact or involvement is insig- cy has designated a central point for the re- nificant to the performance of the grant; ceipt of such notices. Notice shall include and, (iii) Temporary personnel and consult- the identification number(s) of each affected ants who are directly engaged in the per- grant; formance of work under the grant and who (f) Taking one of the following actions, are on the grantee’s payroll. This definition within 30 calendar days of receiving notice does not include workers not on the payroll under paragraph (d)(2), with respect to any of the grantee (e.g., volunteers, even if used employee who is so convicted— to meet a matching requirement; consult- (1) Taking appropriate personnel action ants or independent contractors not on the against such an employee, up to and includ- grantee’s payroll; or employees of subrecipi- ing termination, consistent with the require- ents or subcontractors in covered work- ments of the Rehabilitation Act of 1973, as places). amended; or (2) Requiring such employee to participate Certification Regarding Drug-Free Workplace satisfactorily in a drug abuse assistance or Requirements rehabilitation program approved for such Alternate I. (GRANTEES OTHER THAN purposes by a Federal, State, or local health, INDIVIDUALS) law enforcement, or other appropriate agen- cy; A. The grantee certifies that it will or will (g) Making a good faith effort to continue continue to provide a drug-free workplace to maintain a drug-free workplace through by: implementation of paragraphs (a), (b), (c), (a) Publishing a statement notifying em- (d), (e) and (f). ployees that the unlawful manufacture, dis- B. The grantee may insert in the space pro- tribution, dispensing, possession, or use of a vided below the site(s) for the performance of controlled substance is prohibited in the work done in connection with the specific grantee’s workplace and specifying the ac- grant: tions that will be taken against employees for violation of such prohibition; Place of Performance (Street address, city, (b) Establishing an ongoing drug-free county, state, zip code) awareness program to inform employees llllllllllllllllllllllll about— llllllllllllllllllllllll (1) The dangers of drug abuse in the work- llllllllllllllllllllllll place; (2) The grantee’s policy of maintaining a Check b if there are workplaces on file that drug-free workplace; are not identified here.
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Alternate II. (GRANTEES WHO ARE CROSS REFERENCE: See also Office of Man- INDIVIDUALS) agement and Budget notice published at 54 FR 52306, December 20, 1989. (a) The grantee certifies that, as a condi- tion of the grant, he or she will not engage in the unlawful manufacture, distribution, Subpart A—General dispensing, possession, or use of a controlled substance in conducting any activity with § 1230.100 Conditions on use of funds. the grant; (b) If convicted of a criminal drug offense (a) No appropriated funds may be ex- resulting from a violation occurring during pended by the recipient of a Federal the conduct of any grant activity, he or she contract, grant, loan, or cooperative will report the conviction, in writing, within ageement to pay any person for influ- 10 calendar days of the conviction, to every encing or attempting to influence an grant officer or other designee, unless the officer or employee of any agency, a Federal agency designates a central point for Member of Congress, an officer or em- the receipt of such notices. When notice is ployee of Congress, or an employee of a made to such a central point, it shall include the identification number(s) of each affected Member of Congress in connection with grant. any of the following covered Federal actions: the awarding of any Federal [55 FR 21690, 21704, May 25, 1990] contract, the making of any Federal grant, the making of any Federal loan, PART 1230—NEW RESTRICTIONS ON the entering into of any cooperative LOBBYING agreement, and the extension, continu- ation, renewal, amendment, or modi- Subpart A—General fication of any Federal contract, grant, loan, or cooperative agreement. Sec. 1230.100 Conditions on use of funds. (b) Each person who requests or re- 1230.105 Definitions. ceives from an agency a Federal con- 1230.110 Certification and disclosure. tract, grant, loan, or cooperative agreement shall file with that agency a Subpart B—Activities by Own Employees certification, set forth in Appendix A, 1230.200 Agency and legislative liaison. that the person has not made, and will 1230.205 Professional and technical services. not make, any payment prohibited by 1230.210 Reporting. paragraph (a) of this section. (c) Each person who requests or re- Subpart C—Activities by Other Than Own ceives from an agency a Federal con- Employees tract, grant, loan, or a cooperative 1230.300 Professional and technical services. agreement shall file with that agency a disclosure form, set forth in Appendix Subpart D—Penalties and Enforcement B, if such person has made or has agreed to make any payment using 1230.400 Penalties. nonappropriated funds (to include prof- 1230.405 Penalty procedures. its from any covered Federal action), 1230.410 Enforcement. which would be prohibited under para- Subpart E—Exemptions graph (a) of this section if paid for with appropriated funds. 1230.500 Secretary of Defense. (d) Each person who requests or re- ceives from an agency a commitment Subpart F—Agency Reports providing for the United States to in- 1230.600 Semi-annual compilation. sure or guarantee a loan shall file with 1230.605 Inspector General report. that agency a statement, set forth in APPENDIX A TO PART 1230—CERTIFICATION RE- Appendix A, whether that person has GARDING LOBBYING made or has agreed to make any pay- APPENDIX B TO PART 1230—DISCLOSURE FORM ment to influence or attempt to influ- TO REPORT LOBBYING ence an officer or employee of any AUTHORITY: Section 319, Pub. L. 101–121 (31 agency, a Member of Congress, an offi- U.S.C. 1352); Pub. L. 93–113; 42 U.S.C. 4951, et cer or employee of Congress, or an em- seq; 42 U.S.C. 5060. ployee of a Member of Congress in con- SOURCE: 55 FR 6737, 6755, Feb. 26, 1990, un- nection with that loan insurance or less otherwise noted. guarantee.
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(e) Each person who requests or re- ance in the form of revenue sharing, ceives from an agency a commitment loans, loan guarantees, loan insurance, providing for the United States to in- interest subsidies, insurance, or direct sure or guarantee a loan shall file with United States cash assistance to an in- that agency a disclosure form, set forth dividual. in Appendix B, if that person has made (f) Federal loan means a loan made by or has agreed to make any payment to an agency. The term does not include influence or attempt to influence an of- loan guarantee or loan insurance. ficer or employee of any agency, a (g) Indian tribe and tribal organization Member of Congress, an officer or em- have the meaning provided in section 4 ployee of Congress, or an employee of a of the Indian Self-Determination and Member of Congress in connection with Education Assistance Act (25 U.S.C. that loan insurance or guarantee. 450B). Alaskan Natives are included under the definitions of Indian tribes in § 1230.105 Definitions. that Act. For purposes of this part: (h) Influencing or attempting to influ- (a) Agency, as defined in 5 U.S.C. ence means making, with the intent to 552(f), includes Federal executive de- influence, any communication to or ap- partments and agencies as well as inde- pearance before an officer or employee pendent regulatory commissions and or any agency, a Member of Congress, Government corporations, as defined in an officer or employee of Congress, or 31 U.S.C. 9101(1). an employee of a Member of Congress (b) Covered Federal action means any in connection with any covered Federal of the following Federal actions: action. (1) The awarding of any Federal con- (i) Loan guarantee and loan insurance tract; means an agency’s guarantee or insur- (2) The making of any Federal grant; ance of a loan made by a person. (3) The making of any Federal loan; (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 intrastate district, a council of govern- Covered Federal action does not in- ments, a sponsor group representative clude receiving from an agency a com- organization, and any other instrumen- mitment providing for the United tality of a local government. States to insure or guarantee a loan. (k) Officer or employee of an agency in- Loan guarantees and loan insurance cludes the following individuals who are addressed independently within are employed by an agency: this part. (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,
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State, and local government, regard- Commonwealth of Puerto Rico, a terri- less of whether such entity is operated tory or possession of the United States, for profit or not for profit. This term an agency or instrumentality of a excludes an Indian tribe, tribal organi- State, and a multi-State, regional, or zation, or any other Indian organiza- interstate entity having governmental tion with respect to expenditures spe- duties and powers. cifically permitted by other Federal law. § 1230.110 Certification and disclosure. (m) Reasonable compensation means, (a) Each person shall file a certifi- with respect to a regularly employed cation, and a disclosure form, if re- officer or employee of any person, com- quired, with each submission that ini- pensation that is consistent with the tiates agency consideration of such normal compensation for such officer person for: or employee for work that is not fur- 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 or guarantee a loan, an officer or em- that requires disclosure or that materi- ployee who is employed by such person ally affects the accuracy of the infor- for at least 130 working days within mation contained in any disclosure one year immediately preceding the form previously filed by such person date of the submission that initiates under paragraphs (a) or (b) of this sec- agency consideration of such person for tion. An event that materially affects receipt of such contract, grant, loan, the accuracy of the information re- cooperative agreement, loan insurance ported includes: commitment, or loan guarantee com- (1) A cumulative increase of $25,000 or mitment. An officer or employee who is more in the amount paid or expected to employed by such person for less than be paid for influencing or attempting 130 working days within one year im- to influence a covered Federal action; mediately preceding the date of the or submission that initiates agency con- (2) A change in the person(s) or indi- sideration of such person shall be con- vidual(s) influencing or attempting to sidered to be regularly employed as influence a covered Federal action; or, soon as he or she is employed by such (3) A change in the officer(s), em- person for 130 working days. ployee(s), or Member(s) contacted to (q) State means a State of the United influence or attempt to influence a States, the District of Columbia, the covered Federal action.
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(d) Any person who requests or re- if that activity is allowable under ei- ceives from a person referred to in ther subpart B or C. paragraph (a) or (b) of this section: (1) A subcontract exceeding $100,000 Subpart B—Activities by Own at any tier under a Federal contract; Employees (2) A subgrant, contract, or sub- contract exceeding $100,000 at any tier § 1230.200 Agency and legislative liai- under a Federal grant; son. (3) A contract or subcontract exceed- (a) The prohibition on the use of ap- ing $100,000 at any tier under a Federal propriated funds, in § 1230.100 (a), does loan exceeding $150,000; or, not apply in the case of a payment of (4) A contract or subcontract exceed- reasonable compensation made to an ing $100,000 at any tier under a Federal officer or employee of a person request- cooperative agreement, ing or receiving a Federal contract, grant, loan, or cooperative agreement shall file a certification, and a disclo- if the payment is for agency and legis- sure form, if required, to the next tier lative liaison activities not directly re- above. lated to a covered Federal action. (e) All disclosure forms, but not cer- (b) For purposes of paragraph (a) of tifications, shall be forwarded from this section, providing any information tier to tier until received by the person specifically requested by an agency or referred to in paragraph (a) or (b) of Congress is allowable at any time. this section. That person shall forward (c) For purposes of paragraph (a) of all disclosure forms to the agency. this section, the following agency and (f) Any certification or disclosure legislative liaison activities are allow- form filed under paragraph (e) of this able at any time only where they are section shall be treated as a material not related to a specific solicitation for representation of fact upon which all any covered Federal action: receiving tiers shall rely. All liability (1) Discussing with an agency (in- arising from an erroneous representa- cluding individual demonstrations) the tion shall be borne solely by the tier qualities and characteristics of the per- filing that representation and shall not son’s products or services, conditions be shared by any tier to which the er- or terms of sale, and service capabili- roneous representation is forwarded. ties; and, Submitting an erroneous certification (2) Technical discussions and other or disclosure constitutes a failure to activities regarding the application or file the required certification or disclo- adaptation of the person’s products or sure, respectively. If a person fails to services for an agency’s use. file a required certification or disclo- (d) For purposes of paragraph (a) of sure, the United States may pursue all this section, the following agencies and available remedies, including those au- legislative liaison activities are allow- thorized by section 1352, title 31, U.S. able only where they are prior to for- Code. mal solicitation of any covered Federal (g) For awards and commitments in action: process prior to December 23, 1989, but (1) Providing any information not not made before that date, certifi- specifically requested but necessary for cations shall be required at award or an agency to make an informed deci- commitment, covering activities oc- sion about initiation of a covered Fed- curring between December 23, 1989, and eral action; the date of award or commitment. (2) Technical discussions regarding However, for awards and commitments the preparation of an unsolicited pro- in process prior to the December 23, posal prior to its official submission; 1989 effective date of these provisions, and, but not made before December 23, 1989, (3) Capability presentations by per- disclosure forms shall not be required sons seeking awards from an agency at time of award or commitment but pursuant to the provisions of the Small shall be filed within 30 days. Business Act, as amended by Pub. L. (h) No reporting is required for an ac- 95–507 and other subsequent amend- tivity paid for with appropriated funds ments.
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(e) Only those activities expressly au- tion because the lawyer is not pro- thorized by this section are allowable viding professional legal services. under this section. Similarly, communications with the intent to influence made by an engi- § 1230.205 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 § 1230.100 (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 or an extension, continuation, renewal, (c) Requirements imposed by or pur- amendment, or modification of a Fed- suant to law as a condition for receiv- eral contract, grant, loan, or coopera- ing a covered Federal award include tive agreement if payment is for pro- those required by law or regulation, or fessional or technical services rendered reasonably expected to be required by directly in the preparation, submis- law or regulation, and any other re- sion, or negotiation of any bid, pro- quirements in the actual award docu- posal, 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 § 1230.210 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- § 1230.300 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 § 1230.100 (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 technical expertise and unless the ad- gotiation of any bid, proposal, or appli- vice or analysis is rendered directly cation for that Federal contract, grant, and solely in the preparation, submis- loan, or cooperative agreement or for sion or negotiation of a covered Fed- meeting requirements imposed by or 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 § 1230.110 (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-
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professional or technical services ren- ceiving a covered Federal action in- dered directly in the preparation, sub- clude consultants and trade associa- mission, or negotiation of any commit- tions. ment providing for the United States (f) Only those services expressly au- to insure or guarantee a loan. thorized by this section are allowable (c) For purposes of paragraph (a) of under this section. this section, ‘‘professional and tech- nical services’’ shall be limited to ad- Subpart D—Penalties and vice and analysis directly applying any Enforcement professional or technical discipline. For example, drafting or a legal docu- § 1230.400 Penalties. ment accompanying a bid or proposal (a) Any person who makes an expend- by a lawyer is allowable. Similarly, iture prohibited herein shall be subject technical advice provided by an engi- to a civil penalty of not less than neer on the performance or operational $10,000 and not more than $100,000 for capability of a piece of equipment ren- each such expenditure. dered directly in the negotiation of a (b) Any person who fails to file or contract is allowable. However, com- amend the disclosure form (see Appen- munications with the intent to influ- dix B) to be filed or amended if re- ence made by a professional (such as a quired herein, shall be subject to a civil licensed lawyer) or a technical person penalty of not less than $10,000 and not (such as a licensed accountant) are not more than $100,000 for each such fail- allowable under this section unless ure. they provide advice and analysis di- (c) A filing or amended filing on or rectly applying their professional or after the date on which an administra- technical expertise and unless the ad- tive action for the imposition of a civil vice or analysis is rendered directly penalty is commenced does not prevent and solely in the preparation, submis- the imposition of such civil penalty for sion or negotiation of a covered Fed- a failure occurring before that date. An eral action. Thus, for example, commu- administrative action is commenced nications with the intent to influence with respect to a failure when an inves- made by a lawyer that do not provide tigating official determines in writing legal advice or analysis directly and to commence an investigation of an al- solely related to the legal aspects of legation of such failure. his or her client’s proposal, but gen- (d) In determining whether to impose erally advocate one proposal over an- a civil penalty, and the amount of any other are not allowable under this sec- such penalty, by reason of a violation tion because the lawyer is not pro- by any person, the agency shall con- viding professional legal services. sider the nature, circumstances, ex- Similarly, communications with the tent, and gravity of the violation, the intent to influence made by an engi- effect on the ability of such person to neer providing an engineering analysis continue in business, any prior viola- prior to the preparation or submission tions by such person, the degree of cul- of a bid or proposal are not allowable pability of such person, the ability of under this section since the engineer is the person to pay the penalty, and such providing technical services but not di- other matters as may be appropriate. rectly in the preparation, submission (e) First offenders under paragraph or negotiation of a covered Federal ac- (a) or (b) of this section shall be subject tion. to a civil penalty of $10,000, absent ag- (d) Requirements imposed by or pur- gravating circumstances. Second and suant to law as a condition for receiv- subsequent offenses by persons shall be ing a covered Federal award include subject to an appropriate civil penalty those required by law or regulation, or between $10,000 and $100,000, as deter- reasonably expected to be required by mined by the agency head or his or her law or regulation, and any other re- designee. quirements in the actual award docu- (f) An imposition of a civil penalty ments. under this section does not prevent the (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
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conduct that is the basis for the impo- to the Select Committee on Intel- sition of such civil penalty. ligence of the Senate, the Permanent Select Committee on Intelligence of § 1230.405 Penalty procedures. the House of Representatives, and the Agencies shall impose and collect Committees on Appropriations of the civil penalties pursuant to the provi- Senate and the House of Representa- sions of the Program Fraud and Civil tives in accordance with procedures Remedies Act, 31 U.S.C. sections 3803 agreed to by such committees. Such in- (except subsection (c)), 3804, 3805, 3806, formation shall not be available for 3807, 3808, and 3812, insofar as these pro- public inspection. visions are not inconsistent with the (d) Information that is classified requirements herein. under Executive Order 12356 or any suc- cessor order shall be reported only to § 1230.410 Enforcement. the Committee on Foreign Relations of The head of each agency shall take the Senate and the Committee on For- such actions as are necessary to ensure eign Affairs of the House of Represent- that the provisions herein are vigor- atives or the Committees on Armed ously implemented and enforced in Services of the Senate and the House of that agency. Representatives (whichever such com- mittees have jurisdiction of matters involving such information) and to the Subpart E—Exemptions Committees on Appropriations of the § 1230.500 Secretary of Defense. Senate and the House of Representa- tives in accordance with procedures (a) The Secretary of Defense may ex- agreed to by such committees. Such in- empt, on a case-by-case basis, a cov- formation shall not be available for ered Federal action from the prohibi- public inspection. tion whenever the Secretary deter- (e) The first semi-annual compilation mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and tion is in the national interest. The shall contain a compilation of the dis- Secretary shall transmit a copy of each closure reports received from Decem- such written exemption to Congress ber 23, 1989 to March 31, 1990. immediately after making such a de- (f) Major agencies, designated by the termination. Office of Management and Budget (b) The Department of Defense may (OMB), are required to provide ma- issue supplemental regulations to im- chine-readable compilations to the plement paragraph (a) of this section. Secretary of the Senate and the Clerk of the House of Representatives no Subpart F—Agency Reports later than with the compilations due on May 31, 1991. OMB shall provide de- § 1230.600 Semi-annual compilation. tailed specifications in a memorandum (a) The head of each agency shall col- to these agencies. lect and compile the disclosure reports (g) Non-major agencies are requested (see Appendix B) and, on May 31 and to provide machine-readable compila- November 30 of each year, submit to tions to the Secretary of the Senate the Secretary of the Senate and the and the Clerk of the House of Rep- Clerk of the House of Representatives a resentatives. report containing a compilation of the (h) Agencies shall keep the originals information contained in the disclo- of all disclosure reports in the official sure reports received during the six- files of the agency. month period ending on March 31 or September 30, respectively, of that § 1230.605 Inspector General report. year. (a) The Inspector General, or other (b) The report, including the com- official as specified in paragraph (b) of pilation, shall be available for public this section, of each agency shall pre- inspection 30 days after receipt of the pare and submit to Congress each year, report by the Secretary and the Clerk. commencing with submission of the (c) Information that involves intel- President’s Budget in 1991, an evalua- ligence matters shall be reported only tion of the compliance of that agency
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with, and the effectiveness of, the re- (2) If any funds other than Federal appro- quirements herein. The evaluation may priated funds have been paid or will be paid include any recommended changes that to any person for influencing or attempting may be necessary to strengthen or im- to influence an officer or employee of any prove the requirements. agency, a Member of Congress, an officer or employee of Congress, or an employee of a (b) In the case of an agency that does Member of Congress in connection with this not have an Inspector General, the Federal contract, grant, loan, or cooperative agency official comparable to an In- agreement, the undersigned shall complete spector General shall prepare and sub- and submit Standard Form–LLL, ‘‘Disclo- mit the annual report, or, if there is no sure Form to Report Lobbying,’’ in accord- such comparable official, the head of ance with its instructions. the agency shall prepare and submit (3) The undersigned shall require that the the annual report. language of this certification be included in (c) The annual report shall be sub- the award documents for all subawards at all mitted at the same time the agency tiers (including subcontracts, subgrants, and submits its annual budget justifica- contracts under grants, loans, and coopera- tive agreements) and that all subrecipients tions to Congress. shall certify and disclose accordingly. (d) The annual report shall include the following: All alleged violations re- This certification is a material representa- tion of fact upon which reliance was placed lating to the agency’s covered Federal when this transaction was made or entered actions during the year covered by the into. Submission of this certification is a report, the actions taken by the head prerequisite for making or entering into this of the agency in the year covered by transaction imposed by section 1352, title 31, the report with respect to those alleged U.S. Code. Any person who fails to file the violations and alleged violations in required certification shall be subject to a previous years, and the amounts of civil penalty of not less than $10,000 and not civil penalties imposed by the agency more than $100,000 for each such failure. in the year covered by the report. Statement for Loan Guarantees and Loan Insurance APPENDIX A TO PART 1230— CERTIFICATION REGARDING LOBBYING The undersigned states, to the best of his or her knowledge and belief, that: Certification for Contracts, Grants, Loans, and If any funds have been paid or will be paid Cooperative Agreements to any person for influencing or attempting The undersigned certifies, to the best of his to influence an officer or employee of any or her knowledge and belief, that: agency, a Member of Congress, an officer or (1) No Federal appropriated funds have employee of Congress, or an employee of a been paid or will be paid, by or on behalf of Member of Congress in connection with this the undersigned, to any person for influ- commitment providing for the United States encing or attempting to influence an officer to insure or guarantee a loan, the under- or employee of an agency, a Member of Con- signed shall complete and submit Standard gress, an officer or employee of Congress, or Form–LLL, ‘‘Disclosure Form to Report Lob- an employee of a Member of Congress in con- bying,’’ in accordance with its instructions. nection with the awarding of any Federal Submission of this statement is a pre- contract, the making of any Federal grant, requisite for making or entering into this the making of any Federal loan, the entering transaction imposed by section 1352, title 31, into of any cooperative agreement, and the U.S. Code. Any person who fails to file the extension, continuation, renewal, amend- required statement shall be subject to a civil ment, or modification of any Federal con- penalty of not less than $10,000 and not more tract, grant, loan, or cooperative agreement. than $100,000 for each such failure.
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APPENDIX B TO PART 1230—DISCLOSURE FORM TO REPORT LOBBYING
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PART 1232—NON-DISCRIMINATION such as VISTA, University Year for ON BASIS OF HANDICAP IN ACTION (UYA), Senior Companion PROGRAMS RECEIVING FEDERAL Program (SCP), Foster Grandparent Program (FGP) and Retired Senior FINANCIAL ASSISTANCE FROM Volunteer Program (RSVP). This part ACTION does not apply to recipients outside the United States which receive financial Subpart A—General Provisions assistance under the Peace Corps Act, Sec. 22 U.S.C. 2501, Pub. L. 87–293, as amend- 1232.1 Purpose. ed. 1232.2 Application. 1232.3 Definitions. § 1232.3 Definitions. 1232.4 General prohibitions against dis- As used in this part the term: crimination. (a) The Act means the Rehabilitation 1232.5 Assurances required. 1232.6 Notice. Act of 1973. Pub. L. 93–112, as amended 1232.7 Remedial action, voluntary action by the Rehabilitation Act Amendments and self-evaluation. of 1974, Pub. L. 93–516, and the Rehabili- 1232.8 Effect of state or local law. tation Act Amendments of 1978, Pub. L. 95–602. Subpart B—Employment and Volunteer (b) Section 504 means section 504 of Service Practices the Act. 1232.9 General prohibitions against employ- (c) Director means the Director of AC- ment and volunteer service discrimina- TION. tion. (d) Recipient means any state or its 1232.10 Reasonable accommodation. political subdivision, any instrumen- 1232.11 Employment and volunteer selection tality of a state or its political subdivi- criteria. sion, any public or private agency, in- 1232.12 Preemployment or pre-selection in- stitution, organization, or other enti- quiries. ty, or any person to which Federal fi- Subpart C—Program Accessibility nancial assistance is extended directly or through another recipient, including 1232.13 General requirement concerning pro- any successor, assignee, or transferee gram accessibility. of a recipient, but excluding the ulti- 1232.14 Existing facilities. mate beneficiary of the assistance. 1232.15 New construction. (e) Applicant for assistance means one Subpart D—Procedures who submits an application, request, or plan required to be approved by an AC- 1232.16 Procedures. TION official or by a recipient as a con- AUTHORITY: 29 U.S.C. 794. dition to becoming a recipient. (f) Federal financial assistance means SOURCE: 44 FR 31018, May 30, 1979, unless any grant, loan, contract (other than a otherwise noted. procurement contract or a contract of insurance or guaranty), or any other Subpart A—General Provisions arrangement which provides or other- wise makes available assistance in the § 1232.1 Purpose. form of: The purpose of this part is to effec- (1) Funds; tuate section 504 of the Rehabilitation (2) Services of Federal personnel; Act of 1973, which is designed to elimi- (3) Real and personal property or any nate discrimination on the basis of interest in or use of such property, in- handicap in any program or activity cluding: receiving Federal financial assistance. (i) Transfers or leases of such prop- erty for less than fair market value or § 1232.2 Application. for reduced consideration; and This part applies to each recipient of (ii) Proceeds from a subsequent Federal financial assistance from AC- transfer or lease of such property if the TION and to each program or activity Federal share of its fair market value that receives or benefits from such as- is not returned to the Federal Govern- sistance, including volunteer programs ment.
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(4) A Federal agreement, arrange- forming manual tasks, walking, seeing, ment or other contract which has as hearing, speaking, breathing, learning, one of its purposes the provision of as- and working. sistance, including the provision of vol- (iii) Has a record of such an impairment unteers under the Domestic Volunteer means has a history of, or has been Service Act of 1973, 42 U.S.C. 4951, Pub. misclassified as having, a mental or L. 93–113, as amended. physical impairment that substantially (g) Facility means all or any portion limits one or more major life activi- of buildings, structures, equipment, ties. roads, walks, parking lots, or other (iv) Is regarded as having an impair- real or personal property or interest in ment means (A) has a physical or men- such property. tal impairment that does not substan- (h) Handicapped person. (1) Handicapped person means any tially limit major life activities but is person who has a physical or mental treated by a recipient as constituting impairment that substantially limits such a limitation; (B) has a physical or one or more major life activities, has a mental impairment that substantially record of such an impairment, or is re- limits major life activities only as a re- garded as having such an impairment, sult of the attitudes of others toward except that as it relates to employ- such impairment; or (C) has none of the ment or volunteer service the term impairments defined in paragraph ‘‘handicapped person’’ does not include (h)(2)(i) of this section but is treated by any individual who is an alcoholic or a recipient as having such an impair- drug abuser whose current use of alco- ment. hol or drugs prevents such individual (i) Qualified handicapped person from performing the duties of the job means (1) with respect to employment in question or whose employment or or volunteer service, a handicapped volunteer service, by reason of such person who, with reasonable accommo- current alcohol or drug abuse, would dation, can perform the essential func- constitute a direct threat to property tions of the job or assignment in ques- or the safety of others. tion; and (2) with respect to services, a (2) As used in paragraph (h)(1) of this handicapped person who meets the es- section, the phrase: sential eligibility requirements for the (i) Physical or mental impairment receipt of such services. means (A) any physiological disorder (j) Handicap means any condition or or condition, cosmetic disfigurement, characteristic that renders a person a or anatomical loss affecting one or handicapped person as defined in para- more of the following body systems: graph (h) of this section. Neurological; musculoskeletal; special sense organs; respiratory, including (k) Volunteer and ‘‘Volunteer service’’ speech organs; cardiovascular; repro- refers to any person serving as a full ductive; digestive; genitourinary; time or part-time volunteer under any hemic and lymphatic; skin; and endo- programs authorized under the Domes- crine; or (B) any mental or psycho- tic Volunteer Service Act of 1973, Pub. logical disorder, such as mental retar- L. 93–113, as amended. dation, organic brain syndrome, emo- (l) Work station means any public or tional or mental illness, and specific private agency, institution, organiza- learning disabilities. The term ‘‘phys- tion or other entity to which volun- ical or mental impairment’’ includes, teers are assigned by a recipient. but is not limited to, such diseases and conditions as orthopedic, visual, (Sec. 504, Rehabilitation Act of 1973, Pub. L. speech, and hearing impairments, cere- 93–112, 87 Stat. 394 (29 U.S.C. 794), sec. 111(a), bral palsy, epilepsy, muscular dys- Rehabilitation Act Amendments of 1974, Pub. trophy, multiple sclerosis, cancer, L. 93–516, 88 Stat. 1619 (29 U.S.C. 706); Reha- heart disease, diabetes, mental retar- bilitation Act Amendments of 1978, Pub. L. dation, emotional illness, drug addic- 95–602, 92 Stat. 2955; Sec. 402(14), Pub. L. 93– tion and alcoholism. 113, 87 Stat. 398) (ii) Major life activities means func- [44 FR 31018, May 30, 1979; 46 FR 6951, Jan. 22, tions such as caring for one’s self, per- 1981]
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§ 1232.4 General prohibitions against ferent, despite the existence of permis- discrimination. sibly separate or different programs or (a) No qualified handicapped person, activities. shall, on the basis of handicap, be ex- (3) A recipient may not, directly or cluded from participation in, be denied through contractual or other arrange- the benefits of, or otherwise be sub- ments, utilize criteria or methods of jected to discrimination under any pro- administration: gram or activity to which this part ap- (i) That have the effect of subjecting plies. qualified handicapped persons to dis- (b)(1) A recipient, in providing any crimination on the basis of handicap, aid, benefit, or service, may not, di- (ii) That have the purpose or effect of rectly or through contractual, licens- defeating or substantially impairing ing, or other arrangements, on the accomplishment of the objectives of basis of handicap: the recipient’s program with respect to (i) Deny a qualified handicapped per- handicapped persons, or son the opportunity to participate in (iii) 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- (ii) 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 (4) 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: (iii) Provide a qualified handicapped (i) 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 or benefits from federal financial as- that provided to others; sistance or (iv) Provide different or separate aid, (ii) 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 than is provided to others un- of the program or activity with respect less such action is necessary to provide to handicapped persons. qualified handicapped persons with aid, (c) The exclusion of nonhandicapped benefits, or services that are as effec- persons from the benefits of a program tive as those provided to others; limited by federal statute or executive (v) Aid or perpetuate discrimination order to handicapped persons or the ex- against a qualified handicapped person clusion of a specific class of handi- by providing significant assistance to capped persons from a program limited an agency, organization, or person that by federal statute or executive order to discriminates on the basis of handicap a different class of handicapped persons in providing any aid, benefit, or service is not prohibited by this part. to beneficiaries of the recipient’s pro- (d) Recipients shall administer pro- gram; grams and activities in the most inte- (vi) Deny a qualified handicapped grated setting appropriate to the needs person the opportunity to participate of qualified handicapped persons. as a member of planning or advisory (e) Recipients shall take appropriate boards; or steps to ensure that communications (vii) Otherwise limit a qualified with their applicants, employees, vol- handicapped person in the enjoyment unteers and beneficiaries are available of any right, privilege, advantage, or to persons with impaired vision and opportunity enjoyed by others receiv- hearing. ing the aid, benefit, or service. (f) Recipients shall take appropriate (2) A recipient may not deny a quali- steps to insure that no handicapped in- fied handicapped person the oppor- dividual is denied the benefits of, ex- tunity to participate in programs or cluded from participation in, or other- activities that are not separate or dif- wise subjected to discrimination in any
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program receiving or benefiting from cipient that has discriminated, the Di- Federal financial assistance from AC- rector, where appropriate, may require TION because of the absence of auxil- either or both recipients to take reme- iary aids for individuals with impaired dial action. sensory, manual, or speaking skills. (3) The Director may, where nec- essary to overcome the effects of dis- § 1232.5 Assurances required. crimination in violation of section 504 (a) An applicant for Federal financial or this part, require a recipient to take assistance for a program or activity to remedial action: which this part applies shall submit an (i) With respect to handicapped per- assurance, on a form specified by the sons who are no longer participants in Director, that the program will be op- the recipient’s program but who were erated in compliance with this part. An participants in the program when such applicant may incorporate these assur- discrimination occurred or ances by reference in subsequent appli- (ii) With respect to handicapped per- cations to ACTION. The assurance will sons who would have been participants obligate the recipient for the period in the program had the discrimination during which Federal financial assist- not occurred, or ance is extended. (iii) With respect to handicapped per- (b) In the case of Federal financial sons presently in the program, but not assistance extended to provide personal receiving full benefits or equal and in- property, the assurance will obligate tegrated treatment within the pro- the recipient for the period during gram. which it retains ownership or posses- (b) Voluntary action. Recipient may sion of the property. take steps, in addition to any action (c) A recipient operating a volunteer that is required by this part, to over- program under which volunteers are come the effects of conditions that re- assigned to a number of work stations sulted in limited participation in the shall obtain an assurance from each recipient’s program or activity by work station that neither volunteers qualified handicapped persons. nor the beneficiaries they serve will be (c) Self-evaluation. (1) Each recipient discriminated against on the basis of shall, within one year of the effective handicap. date of this part, conduct a self-evalua- tion of its compliance with Section 504, § 1232.6 Notice. with the assistance of interested per- Recipients shall take appropriate ini- sons, including handicapped persons or tial and continuing steps to notify par- organizations representing handi- ticipants, beneficiaries, applicants, vol- capped persons. Each recipient shall unteers and employees, including those with the assistance of and consultation with impaired vision or hearing, that it with interested persons, including does not discriminate on the basis of handicapped persons, evaluate its cur- handicap in violation of section 504 and rent policies, practices and effects this part. thereof; modify any that do not meet the requirements of this part; and take § 1232.7 Remedial action, voluntary ac- appropriate remedial steps to elimi- tion and self-evaluation. nate the effects of any discrimination (a) Remedial action. (1) If the Director that resulted from adherence to these finds that a recipient has discriminated policies and practices. against persons on the basis of handi- (2) A recipient that employs fifteen cap in violation of section 504 or this or more persons shall, for at least three part, the recipient shall take such re- years following completion of the eval- medial action as the Director deems uation required under paragraph (c)(1) necessary to overcome the effects of of this section, maintain on file, make the discrimination. available for public inspection, and (2) Where a recipient is found to have provide to the Director upon request: discriminated against persons on the (i) A list of the interested persons con- basis of handicap in violation of sec- sulted, tion 504 or this part and where another (ii) A description of areas examined recipient exercises control over the re- and any problems identified, and
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(iii) A description of any modifica- (6) Fringe benefits available by vir- tions made and of any remedial steps tue of employment or volunteer serv- taken. ice, whether or not administered by the recipient; § 1232.8 Effect of state or local law. (7) Selection and financial support The obligation to comply with this for training, including apprenticeship, part is not obviated or alleviated by professional meetings, conferences, and the existence of any state or local law other related activities, and selection or other requirement that, on the basis for leaves of absence to pursue train- of handicap, imposes prohibitions or ing; limits upon the eligibility of qualified (8) Employer sponsored activities, in- handicapped persons to receive services cluding social or recreational pro- or to practice any occupation or profes- grams; and sion. (9) Any other term, condition, or privilege of employment or volunteer Subpart B—Employment and service. Volunteer Service Practices (d) A recipient may not participate in a contractural or other relationship § 1232.9 General prohibitions against that has the effect of subjecting quali- employment and volunteer service fied handicapped applicants, volunteers discrimination. or employees, to discrimination pro- (a) No qualified handicapped person hibited by this subpart. The relation- shall, on the basis of handicap, be sub- ships referred to in this paragraph in- jected to discrimination in employ- clude relationships with employment ment or volunteer service under any and referral agencies, with labor program or activity that receives or unions, with organizations providing or benefits from federal financial assist- administering fringe benefits to em- ance. ployees of the recipient, and with orga- (b) A recipient shall make all deci- nizations providing training and ap- sions concerning employment or volun- prenticeship programs. teer service under any program or ac- (e) A recipient’s obligation to comply tivity to which this part applies in a with this subpart is not affected by any manner which ensures that discrimina- inconsistent term of any collective tion on the basis of handicap does not bargaining agreement to which it is a occur and may not limit, segregate, or party. classify applicants or employees or vol- (f) Recipients operating a volunteer unteers in any way that adversely af- program under which volunteers are fects their opportunities or status be- assigned to work in a number of work cause of handicap. stations will assure that a representa- (c) The prohibition against discrimi- tive sample of work stations are acces- nation in employment and volunteer sible to handicapped persons. service applies to the following activi- ties: § 1232.10 Reasonable accommodation. (1) Recruitment, advertising, and the processing of applications for employ- (a) A recipient shall make reasonable ment or volunteer service; accommodation to the known physical (2) Hiring, upgrading, promotion, or mental limitations of an otherwise award of tenure, demotion, transfer, qualified handicapped applicant, em- layoff, termination, right of return ployee or volunteer unless the recipi- from layoff, and rehiring; ent can demonstrate that the accom- (3) Rates of pay or any other form of modation would impose an undue hard- compensation and changes in com- ship on the operation of its program. pensation; (b) Reasonable accommodation may (4) Job assignments, job classifica- include: (1) Making facilities used by tions, organizational structures, posi- employees or volunteers readily acces- tion descriptions, lines of progression, sible to and usable by handicapped per- and seniority lists; sons, and (5) Leaves of absence, sick leave, or (2) Job restructuring, part-time or any other leave; modified work schedules, acquisition
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or modification of equipment or de- applicants for employment or volun- vices, the provision of readers or inter- teer service to indicate whether and to preters, and other similar actions. what extent they are handicapped: Pro- (c) In determining pursuant to para- vided, That: graph (a) of this section whether an ac- (1) The recipient states clearly on commodation would impose an undue any written questionnaire used for this hardship on the operation of a recipi- purpose or makes clear orally if no ent’s program, factors to be considered written questionnaire is used that the include: information requested is intended for (1) The overall size of the recipient’s program with respect to number of em- use solely in connection with its reme- ployees or volunteers, number and type dial action obligations or its voluntary of facilities, and size of budget; or affirmative action efforts; and (2) The type of the recipient’s oper- (2) The recipient states clearly that ation, including the composition and the information is being requested on a structure of the recipient’s workforce voluntary basis, that it will be kept or volunteer force, and confidential as provided in paragraph (3) The nature and cost of the accom- (d) of this section, that refusal to pro- modation needed. vide it will not subject the applicant or employee to any adverse treatment, § 1232.11 Employment and volunteer and that it will be used only in accord- selection criteria. ance with this part. A recipient may not use employment (c) Nothing in this section shall pro- tests or criteria that discriminate hibit a recipient from conditioning an against handicapped persons and shall offer of employment or volunteer serv- ensure that employment tests are ice on the results of a medical exam- adapted for use by persons who have handicaps that impair sensory, man- ination conducted prior to the volun- ual, or speaking skills. teer or employee’s entrance on duty. Provided, That: § 1232.12 Preemployment or pre-selec- (1) All entering volunteers or employ- tion inquiries. ees are subjected to such an examina- (a) Except as provided in paragraphs tion regardless of handicap, and (b) and (c) of this section, a recipient (2) The results of such an examina- may not conduct a preemployment tion are used only in accordance with medical examination or not make pre- the requirements of this part. employment inquiry of an applicant as (d) Information obtained in accord- to whether the applicant is a handi- ance with this section as to the med- capped person or as to the nature of se- ical condition or history of the appli- verity of a handicap. A recipient may, cant shall be collected and maintained however, make preemployment inquiry on separate forms that shall be ac- into an applicant’s ability to perform corded confidentiality as medical rec- job-related functions. For the purpose of this paragraph, ‘‘pre-employment’’ ords, except that: as applied to applicants for volunteer (1) Supervisors and managers may be positions means prior to selection as a informed regarding restrictions on the volunteer. work or duties of handicapped persons (b) When a recipient is taking reme- and regarding necessary accommoda- dial action to correct the effects of tions; past discrimination pursuant to (2) First aid and safety personnel § 1232.8(a), when a recipient is taking may be informed, where appropriate, if voluntary action to overcome the ef- the condition might require emergency fects of conditions that resulted in lim- treatment; and ited participation in its federally as- (3) Government officers investigating sisted program or activity pursuant to compliance with the Act shall be pro- § 1232.8(b) or when a recipient is taking vided relevant information upon re- affirmative action pursuant to section quest. 503 of the Act, the recipient may invite
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Subpart C—Program Accessibility effective date of the regulation. Alter- ations to existing facilities shall, to § 1232.13 General requirement con- the maximum extent feasible, be de- cerning program accessibility. signed and constructed to be readily No qualified handicapped person accessible to and usable by handi- shall, because a recipient’s facilities capped persons. are inaccessible to or unusable by (b) Conformance with Uniform Federal handicapped persons, be denied the Accessibility Standards. (1) Effective as benefits of, be excluded from participa- of January 18, 1991, design, construc- tion in, or otherwise be subjected to tion, or alteration of buildings in con- discrimination under any program or formance with sections 3-8 of the Uni- activity that receives or benefits from form Federal Accessibility Standards federal financial assistance. (USAF) (appendix A to 41 CFR subpart 101–19.6) shall be deemed to comply § 1232.14 Existing facilities. with the requirements of this section (a) A recipient shall operate each with respect to those buildings. Depar- program or activity to which this part tures from particular technical and applies so that the program or activity, scoping requirements of UFAS by the when viewed in its entirety, is readily use of other methods are permitted accessible and usable by handicapped where substantially equivalent or persons. This paragraph does not re- greater access to and usability of the quire a recipient to make each of its building is provided. existing facilities or every part of a fa- (2) For purposes of this section, sec- cility accessible to and usable by tion 4.1.6(1)(g) of UFAS shall be inter- handicapped persons. preted to exempt from the require- (b) A recipient is not required to ments of UFAS only mechanical rooms make structural changes in existing fa- and other spaces that, because of their cilities where other methods are effec- intended use, will not require accessi- tive in achieving compliance with this bility to the public or beneficiaries or section. Where structural changes are result in the employment or residence necessary to make programs or activi- therein of persons with physical handi- ties in existing facilities accessible, caps. such changes shall be made as soon as (3) This section does not require re- practicable, but in no event later than cipients to make building alterations three years after the effective date of that have little likelihood of being ac- the regulation. complished without removing or alter- (c) In the event that structural ing a load-bearing structural member. changes to facilities are necessary to [44 FR 31018, May 30, 1979, as amended at 55 meet the requirement of paragraph (a) FR 52138, 52142, Dec. 19, 1990] of this section, a recipient shall de- velop, within six months of the effec- Subpart D—Procedures tive date of this part, a transition plan which sets forth in detail the steps nec- § 1232.16 Procedures. essary to complete the changes, and a The procedural provisions applicable schedule for taking those steps. The to title VI of the Civil Rights Act of plan shall be developed with the assist- 1964 apply to this part. These proce- ance of interested persons, including dures are found in §§ 1203.6 through handicapped persons or organizations 1203.11 of this title. representing handicapped persons. A copy of the plan shall be made avail- able for public inspection. PART 1233—INTERGOVERNMENTAL REVIEW OF ACTION PROGRAMS § 1232.15 New construction. (a) Design, construction, and alteration. Sec. New facilities shall be designed and 1233.1 What is the purpose of these regula- tions? constructed to be readily accessible to 1233.2 What definitions apply to these regu- and usable by handicapped persons. lations? construction shall be considered new if 1233.3 What programs of the Agency are ground breaking takes place after the subject to these regulations?
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1233.4 [Reserved] Order means Executive Order 12372, 1233.5 What is the Director’s obligation issued July 14, 1982, and amended April with respect to federal interagency co- 8, 1983 and titled ‘‘Intergovernmental ordination? Review of Federal Programs.’’ 1233.6 What procedures apply to the selec- Director means the Director of AC- tion of programs under these regula- tions? TION, or an official or employee of the 1233.7 How does the Director communicate Agency acting for the Director under a with state and local officials concerning delegation of authority. the Agency’s programs? State means any of the 50 states, the 1233.8 How does the Director provide states District of Columbia, the Common- an opportunity to comment on proposed wealth of Puerto Rico, the Common- federal financial assistance? wealth of the Northern Mariana Is- 1233.9 How does the Director receive and re- lands, Guam, American Samoa, the spond to comments? U.S. Virgin Islands, or the Trust Terri- 1233.10 How does the Director make efforts tory of the Pacific Islands. to accommodate intergovernmental con- cerns? 1233.11—1233.12 [Reserved] § 1233.3 What programs of the Agency are subject to these regulations? 1233.13 May the Director waive any provi- sion of these regulations? The Director publishes in the FED- ERAL REGISTER a list of the Agency’s AUTHORITY: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 8, 1983 (48 FR 15887); programs that are subject to these reg- sec. 401 of the Intergovernmental Coopera- ulations. tion Act of 1968, as amended (31 U.S.C. 6505). § 1233.4 [Reserved] SOURCE: 48 FR 29284, June 24, 1983, unless otherwise noted. § 1233.5 What is the Director’s obliga- EDITORIAL NOTE: For additional informa- tion with respect to federal inter- tion, see related documents published at 47 agency coordination? FR 57369, December 23, 1982, 48 FR 17101, The Director, to the extent prac- April 21, 1983, and 48 FR 29096, June 24, 1983. ticable, consults with and seeks advice from all other substantially affected § 1233.1 What is the purpose of these regulations? federal departments and agencies in an effort to assure full coordination be- (a) The regulations in this part im- tween such agencies and ACTION re- plement Executive Order 12372, ‘‘Inter- garding programs covered under these governmental Review of Federal Pro- regulations. grams,’’ issued July 14, 1982, and amended on April 8, 1983. These regula- § 1233.6 What procedures apply to the tions also implement applicable provi- selection of programs under these sions of section 401 of the Intergovern- regulations? mental Cooperation Act of 1968. (a) A state may select any ACTION (b) These regulations are intended to program published in the FEDERAL foster an intergovernmental partner- REGISTER in accordance with § 1233.3 of ship and a strengthened Federalism by this part for intergovernmental review relying on state processes and on state, under these regulations. Each state, areawide, regional and local coordina- before selecting programs and activi- tion for review of proposed federal fi- ties, shall consult with local elected of- nancial assistance. ficials. (c) These regulations are intended to (b) Each state that adopts a process aid the internal management of the shall notify the Director of the Agen- Agency, and are not intended to create cy’s programs selected for that process. any right or benefit enforceable at law (c) A state may notify the Director of by a party against the Agency or its of- changes in its selections at any time. ficers. For each change, the state shall submit to the Director an assurance that the § 1233.2 What definitions apply to state has consulted with local elected these regulations? officials regarding the change. The Agency means ACTION, the National Agency may establish deadlines by Volunteer Agency. which states are required to inform the
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Director of changes in their program ance other than noncompeting continu- selections. ation awards. (d) The Director uses a state’s proc- (b) This section also applies to com- ess as soon as feasible, depending on in- ments in cases in which the review, co- dividual programs, after the Director is ordination, and communication with notified of its selections. the Agency have been delegated.
§ 1233.7 How does the Director com- § 1233.9 How does the Director receive municate with state and local offi- and respond to comments? cials concerning the Agency’s pro- grams? (a) The Director follows the proce- (a) The Director provides opportuni- dures in § 1233.10 if: ties for consultation by elected offi- (1) A state office or official is des- cials of those state and local govern- ignated to act as a single point of con- ments that would provide the non- tact between a state process and all federal funds for, or that would be di- federal agencies, and rectly affected by, proposed federal fi- (2) That office or official transmits a nancial assistance from the Agency. state process recommendation for a For those programs covered by a state program selected under § 1233.6. process under § 1233.6, the Director, to (b)(1) The single point of contact is the extent permitted by law: not obligated to transmit comments (1) Uses the official state process to from state, areawide, regional or local determine views of state and local officials and entities where there is no elected officials; and, state process recommendation. (2) Communicates with state and (2) If a state process recommendation local elected officials, through the offi- is transmitted by a single point of con- cial state process, as early in a pro- tact, all comments from state, gram planning cycle as is reasonably areawide, regional, and local officials feasible to explain specific plans and actions. and entities that differ from it must (b) The Director provides notice to also be transmitted. directly affected state, areawide, re- (c) If a state has not established a gional, and local entities in a state of process, or is unable to submit a state proposed federal financial assistance if: process recommendation, state, (1) The state has not adopted a proc- areawide, regional and local officials ess under the Order; or and entities may submit comments ei- (2) The assistance involves a program ther to the applicant or to the Agency, not selected for the state process. or both. This notice may be made by publica- (d) If a program is not selected for a tion in the FEDERAL REGISTER, or other state process, state, areawide, regional appropriate means, which the Agency and local officials and entities may in its discretion deems appropriate. submit comments either to the appli- cant or to the Agency, or both. In addi- § 1233.8 How does the Director provide tion, if a state process recommendation states an opportunity to comment for a nonselected program is trans- on proposed federal financial assist- ance? mitted to the Agency by the single point of contact, the Director follows (a) Except in unusual circumstances, the prodecures of § 1233.10 of this part. the Director gives state processes or di- (e) The Director considers comments rectly affected state, areawide, re- which do not constitute a state process gional and local officials and entities: recommendation submitted under (1) At least 30 days from the date es- tablished by the Director to comment these regulations and for which the Di- on proposed federal financial assist- rector is not required to apply the pro- ance in the form of noncompeting con- cedures of § 1233.10 of this part, when tinuation awards; and such comments are provided by a sin- (2) At least 60 days from the date es- gle point of contact, by the applicant, tablished by the Director to comment or directly to the Agency by a com- on proposed federal financial assist- menting party.
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§ 1233.10 How does the Director make 1234.5 Effect on other issuances. efforts to accommodate intergov- 1234.6 Additions and exceptions. ernmental concerns? (a) If a state process provides a state Subpart B—Pre-Award Requirements process recommendation to the Agency 1234.10 Forms for applying for grants. through its single point of contact, the 1234.11 State plans. Director either: 1234.12 Special grant or subgrant conditions (1) Accepts the recommendation; for ‘‘high-risk’’ grantees. (2) Reaches a mutually agreeable so- lution with the state process; or Subpart C—Post-Award Requirements (3) Provides the single point of con- tact with a written explanation of the FINANCIAL ADMINISTRATION Agency’s decision, in such form as the 1234.20 Standards for financial management Director in his or her discretion deems systems. appropriate. The Director may also 1234.21 Payment. supplement the written explanation by 1234.22 Allowable costs. providing the explanation to the single 1234.23 Period of availability of funds. point of contact by telephone, other 1234.24 Matching or cost sharing. telecommunication, or other means. 1234.25 Program income. (b) In any explanation under para- 1234.26 Non-Federal audit. graph (a)(3) of this section, the Direc- tor informs the single point of contact CHANGES, PROPERTY, AND SUBAWARDS that: 1234.30 Changes. (1) The Agency will not implement 1234.31 Real property. its decision for at least ten days after 1234.32 Equipment. the single point of contact receives the 1234.33 Supplies. explanation; or 1234.34 Copyrights. (2) The Director has reviewed the de- 1234.35 Subawards to debarred and sus- cision and determined that, because of pended parties. unusual circumstances, the waiting pe- 1234.36 Procurement. riod of at least ten days is not feasible. 1234.37 Subgrants. (c) For purpose of computing the waiting period under paragraph (b)(1) REPORTS, RECORDS, RETENTION, AND ENFORCEMENT of this section, a single point of con- tact is presumed to have received writ- 1234.40 Monitoring and reporting program ten notification 5 days after the date of performance. mailing of such notification. 1234.41 Financial reporting. 1234.42 Retention and access requirements §§ 1233.11—1233.12 [Reserved] for records. 1234.43 Enforcement. § 1233.13 May the Director waive any 1234.44 Termination for convenience. provision of these regulations? In an emergency, the Director may Subpart D—After-the-Grant Requirements waive any provision of these regula- 1234.50 Closeout. tions. 1234.51 Later disallowances and adjust- ments. PART 1234—UNIFORM ADMINIS- 1234.52 Collection of amounts due. TRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE Subpart E—Entitlements [Reserved] AGREEMENTS TO STATE AND LOCAL GOVERNMENTS AUTHORITY: Pub. L. 93–113; 42 U.S.C. 4951, et seq; 42 U.S.C. 5060. Subpart A—General SOURCE: 53 FR 8084 and 8087, Mar. 11, 1988, unless otherwise noted. Sec. 1234.1 Purpose and scope of this part. EDITORIAL NOTE: For additional informa- 1234.2 Scope of subpart. tion, see related documents published at 49 1234.3 Definitions. FR 24958, June 18, 1984, 52 FR 20178, May 29, 1234.4 Applicability. 1987, and 53 FR 8028, March 11, 1988.
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Subpart A—General be treated only on a program-by-pro- gram or grant-by-grant basis, such as § 1234.1 Purpose and scope of this kinds of activities that can be sup- part. ported by grants under a particular This part establishes uniform admin- program. istrative rules for Federal grants and Awarding agency means (1) with re- cooperative agreements and subawards spect to a grant, the Federal agency, to State, local and Indian tribal gov- and (2) with respect to a subgrant, the ernments. party that awarded the subgrant. Cash contributions means the grant- § 1234.2 Scope of subpart. ee’s cash outlay, including the outlay This subpart contains general rules of money contributed to the grantee or pertaining to this part and procedures subgrantee by other public agencies for control of exceptions from this and institutions, and private organiza- part. tions and individuals. When authorized by Federal legislation, Federal funds § 1234.3 Definitions. received from other assistance agree- As used in this part: ments may be considered as grantee or Accrued expenditures mean the subgrantee cash contributions. charges incurred by the grantee during Contract means (except as used in the a given period requiring the provision definitions for ‘‘grant’’ and ‘‘subgrant’’ of funds for: (1) Goods and other tan- in this section and except where quali- gible property received; (2) services fied by ‘‘Federal’’) a procurement con- performed by employees, contractors, tract under a grant or subgrant, and subgrantees, subcontractors, and other means a procurement subcontract payees; and (3) other amounts becom- under a contract. ing owed under programs for which no Cost sharing or matching means the current services or performance is re- value of the third party in-kind con- quired, such as annuities, insurance tributions and the portion of the costs claims, and other benefit payments. of a federally assisted project or pro- Accrued income means the sum of: (1) gram not borne by the Federal Govern- Earnings during a given period from ment. services performed by the grantee and Cost-type contract means a contract or goods and other tangible property de- subcontract under a grant in which the livered to purchasers, and (2) amounts contractor or subcontractor is paid on becoming owed to the grantee for the basis of the costs it incurs, with or which no current services or perform- without a fee. ance is required by the grantee. Equipment means tangible, non- Acquisition cost of an item of pur- expendable, personal property having a chased equipment means the net in- useful life of more than one year and voice unit price of the property includ- an acquisition cost of $5,000 or more ing the cost of modifications, attach- per unit. A grantee may use its own ments, accessories, or auxiliary appa- definition of equipment provided that ratus necessary to make the property such definition would at least include usable for the purpose for which it was all equipment defined above. acquired. Other charges such as the Expenditure report means: (1) For non- cost of installation, transportation, construction grants, the SF–269 ‘‘Fi- taxes, duty or protective in-transit in- nancial Status Report’’ (or other equiv- surance, shall be included or excluded alent report); (2) for construction from the unit acquisition cost in ac- grants, the SF–271 ‘‘Outlay Report and cordance with the grantee’s regular ac- Request for Reimbursement’’ (or other counting practices. equivalent report). Administrative requirements mean Federally recognized Indian tribal gov- those matters common to grants in ernment means the governing body or a general, such as financial management, governmental agency of any Indian kinds and frequency of reports, and re- tribe, band, nation, or other organized tention of records. These are distin- group or community (including any guished from ‘‘programmatic’’ require- Native village as defined in section 3 of ments, which concern matters that can the Alaska Native Claims Settlement
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Act, 85 Stat 688) certified by the Sec- in-kind contributions applied, and the retary of the Interior as eligible for the amount of cash advances and payments special programs and services provided made to contractors and subgrantees. by him through the Bureau of Indian For reports prepared on an accrued ex- Affairs. penditure basis, outlays are the sum of Government means a State or local actual cash disbursements, the amount government or a federally recognized of indirect expense incurred, the value Indian tribal government. of inkind contributions applied, and Grant means an award of financial as- the new increase (or decrease) in the sistance, including cooperative agree- amounts owed by the grantee for goods ments, in the form of money, or prop- and other property received, for serv- erty in lieu of money, by the Federal ices performed by employees, contrac- Government to an eligible grantee. The tors, subgrantees, subcontractors, and term does not include technical assist- other payees, and other amounts be- ance which provides services instead of coming owed under programs for which money, or other assistance in the form no current services or performance are of revenue sharing, loans, loan guaran- required, such as annuities, insurance tees, interest subsidies, insurance, or direct appropriations. Also, the term claims, and other benefit payments. does not include assistance, such as a Percentage of completion method refers fellowship or other lump sum award, to a system under which payments are which the grantee is not required to ac- made for construction work according count for. to the percentage of completion of the Grantee means the government to work, rather than to the grantee’s cost which a grant is awarded and which is incurred. accountable for the use of the funds Prior approval means documentation provided. The grantee is the entire evidencing consent prior to incurring legal entity even if only a particular specific cost. component of the entity is designated Real property means land, including in the grant award document. land improvements, structures and ap- Local government means a county, purtenances thereto, excluding mov- municipality, city, town, township, able machinery and equipment. local public authority (including any Share, when referring to the awarding public and Indian housing agency agency’s portion of real property, under the United States Housing Act of equipment or supplies, means the same 1937) school district, special district, percentage as the awarding agency’s intrastate district, council of govern- portion of the acquiring party’s total ments (whether or not incorporated as costs under the grant to which the ac- a nonprofit corporation under state quisition costs under the grant to law), any other regional or interstate which the acquisition cost of the prop- government entity, or any agency or erty was charged. Only costs are to be instrumentality of a local government. counted—not the value of third-party Obligations means the amounts of or- in-kind contributions. ders placed, contracts and subgrants awarded, goods and services received, State means any of the several States and similar transactions during a given of the United States, the District of period that will require payment by Columbia, the Commonwealth of Puer- the grantee during the same or a future to Rico, any territory or possession of period. the United States, or any agency or in- OMB means the United States Office strumentality of a State exclusive of of Management and Budget. local governments. The term does not Outlays (expenditures) mean charges include any public and Indian housing made to the project or program. They agency under United States Housing may be reported on a cash or accrual Act of 1937. basis. For reports prepared on a cash Subgrant means an award of financial basis, outlays are the sum of actual assistance in the form of money, or cash disbursement for direct charges property in lieu of money, made under for goods and services, the amount of a grant by a grantee to an eligible sub- indirect expense incurred, the value of grantee. The term includes financial
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assistance when provided by contrac- grantee, or a cost-type contractor tual legal agreement, but does not in- under the grant agreement. clude procurement purchases, nor does Unliquidated obligations for reports it include any form of assistance which prepared on a cash basis mean the is excluded from the definition of amount of obligations incurred by the ‘‘grant’’ in this part. grantee that has not been paid. For re- Subgrantee means the government or ports prepared on an accrued expendi- other legal entity to which a subgrant ture basis, they represent the amount is awarded and which is accountable to of obligations incurred by the grantee the grantee for the use of the funds for which an outlay has not been re- provided. corded. Supplies means all tangible personal Unobligated balance means the por- property other than ‘‘equipment’’ as de- tion of the funds authorized by the fined in this part. Federal agency that has not been obli- Suspension means depending on the gated by the grantee and is determined context, either (1) temporary with- by deducting the cumulative obliga- tions from the cumulative funds au- drawal of the authority to obligate thorized. grant funds pending corrective action by the grantee or subgrantee or a deci- § 1234.4 Applicability. sion to terminate the grant, or (2) an action taken by a suspending official in (a) General. Subparts A through D of accordance with agency regulations this part apply to all grants and sub- implementing E.O. 12549 to imme- grants to governments, except where diately exclude a person from partici- inconsistent with Federal statutes or with regulations authorized in accord- pating in grant transactions for a pe- ance with the exception provision of riod, pending completion of an inves- § 1234.6, or: tigation and such legal or debarment (1) Grants and subgrants to State and proceedings as may ensue. local institutions of higher education Termination means permanent with- or State and local hospitals. drawal of the authority to obligate pre- (2) The block grants authorized by viously-awarded grant funds before the Omnibus Budget Reconciliation that authority would otherwise expire. Act of 1981 (Community Services; Pre- It also means the voluntary relinquish- ventive Health and Health Services; Al- ment of that authority by the grantee cohol, Drug Abuse, and Mental Health or subgrantee. ‘‘Termination’’ does not Services; Maternal and Child Health include: (1) Withdrawal of funds award- Services; Social Services; Low-Income ed on the basis of the grantee’s under- Home Energy Assistance; States’ Pro- estimate of the unobligated balance in gram of Community Development a prior period; (2) Withdrawal of the Block Grants for Small Cities; and Ele- unobligated balance as of the expira- mentary and Secondary Education tion of a grant; (3) Refusal to extend a other than programs administered by grant or award additional funds, to the Secretary of Education under title make a competing or noncompeting V, subtitle D, chapter 2, section 583— continuation, renewal, extension, or the Secretary’s discretionary grant supplemental award; or (4) voiding of a program) and titles I–III of the Job grant upon determination that the Training Partnership Act of 1982 and award was obtained fraudulently, or under the Public Health Services Act was otherwise illegal or invalid from (section 1921), Alcohol and Drug Abuse inception. Treatment and Rehabilitation Block Terms of a grant or subgrant mean all Grant and part C of title V, Mental requirements of the grant or subgrant, Health Service for the Homeless Block whether in statute, regulations, or the Grant). award document. (3) Entitlement grants to carry out Third party in-kind contributions mean the following programs of the Social property or services which benefit a Security Act: federally assisted project or program (i) Aid to Needy Families with De- and which are contributed by non-Fed- pendent Children (title IV–A of the eral third parties without charge to the Act, not including the Work Incentive
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Program (WIN) authorized by section 238(d)(2)(c) and 240(f) (Entitlement In- 402(a)19(G); HHS grants for WIN are crease for Handicapped Children); and subject to this part); (10) Payments under the Veterans (ii) Child Support Enforcement and Administration’s State Home Per Diem Establishment of Paternity (title IV–D Program (38 U.S.C. 641(a)). of the Act); (b) Entitlement programs. Entitlement (iii) Foster Care and Adoption Assist- programs enumerated above in ance (title IV–E of the Act); § 1234.4(a) (3) through (8) are subject to (iv) Aid to the Aged, Blind, and Dis- Subpart E. abled (titles I, X, XIV, and XVI–AABD of the Act); and § 1234.5 Effect on other issuances. (v) Medical Assistance (Medicaid) All other grants administration pro- (title XIX of the Act) not including the visions of codified program regula- State Medicaid Fraud Control program tions, program manuals, handbooks authorized by section 1903(a)(6)(B). and other nonregulatory materials (4) Entitlement grants under the fol- which are inconsistent with this part lowing programs of The National are superseded, except to the extent School Lunch Act: they are required by statute, or au- (i) School Lunch (section 4 of the thorized in accordance with the excep- Act), tion provision in § 1234.6. (ii) Commodity Assistance (section 6 of the Act), § 1234.6 Additions and exceptions. (iii) Special Meal Assistance (section (a) For classes of grants and grantees 11 of the Act), subject to this part, Federal agencies (iv) Summer Food Service for Chil- may not impose additional administra- dren (section 13 of the Act), and tive requirements except in codified (v) Child Care Food Program (section regulations published in the FEDERAL 17 of the Act). REGISTER. (5) Entitlement grants under the fol- (b) Exceptions for classes of grants or lowing programs of The Child Nutri- grantees may be authorized only by tion Act of 1966: OMB. (i) Special Milk (section 3 of the Act), (c) Exceptions on a case-by-case basis and and for subgrantees may be authorized (ii) School Breakfast (section 4 of the by the affected Federal agencies. Act). (6) Entitlement grants for State Ad- Subpart B—Pre-Award ministrative expenses under The Food Requirements Stamp Act of 1977 (section 16 of the Act). § 1234.10 Forms for applying for (7) A grant for an experimental, pilot, grants. or demonstration project that is also (a) Scope. (1) This section prescribes supported by a grant listed in para- forms and instructions to be used by graph (a)(3) of this section; governmental organizations (except (8) Grant funds awarded under sub- hospitals and institutions of higher section 412(e) of the Immigration and education operated by a government) Nationality Act (8 U.S.C. 1522(e)) and in applying for grants. This section is subsection 501(a) of the Refugee Edu- not applicable, however, to formula cation Assistance Act of 1980 (Pub. L. grant programs which do not require 96–422, 94 Stat. 1809), for cash assist- applicants to apply for funds on a ance, medical assistance, and supple- project basis. mental security income benefits to ref- (2) This section applies only to appli- ugees and entrants and the administra- cations to Federal agencies for grants, tive costs of providing the assistance and is not required to be applied by and benefits; grantees in dealing with applicants for (9) Grants to local education agencies subgrants. However, grantees are en- under 20 U.S.C. 236 through 241–1(a), couraged to avoid more detailed or bur- and 242 through 244 (portions of the Im- densome application requirements for pact Aid program), except for 20 U.S.C. subgrants.
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(b) Authorized forms and instructions this assurance and other assurances re- for governmental organizations. (1) In ap- quired in the plan, the State may: plying for grants, applicants shall only (1) Cite by number the statutory or use standard application forms or those regulatory provisions requiring the as- prescribed by the granting agency with surances and affirm that it gives the the approval of OMB under the Paper- assurances required by those provi- work Reduction Act of 1980. sions, (2) Applicants are not required to (2) Repeat the assurance language in submit more than the original and two the statutes or regulations, or copies of preapplications or applica- (3) Develop its own language to the tions. extent permitted by law. (3) Applicants must follow all appli- (d) Amendments. A State will amend a cable instructions that bear OMB plan whenever necessary to reflect: (1) clearance numbers. Federal agencies New or revised Federal statutes or reg- may specify and describe the programs, ulations or (2) a material change in any functions, or activities that will be State law, organization, policy, or used to plan, budget, and evaluate the State agency operation. The State will work under a grant. Other supple- obtain approval for the amendment and mentary instructions may be issued its effective date but need submit for only with the approval of OMB to the approval only the amended portions of extent required under the Paperwork the plan. Reduction Act of 1980. For any stand- ard form, except the SF–424 facesheet, § 1234.12 Special grant or subgrant Federal agencies may shade out or in- conditions for ‘‘high-risk’’ grantees. struct the applicant to disregard any (a) A grantee or subgrantee may be line item that is not needed. considered ‘‘high risk’’ if an awarding (4) When a grantee applies for addi- agency determines that a grantee or tional funding (such as a continuation subgrantee: or supplemental award) or amends a (1) Has a history of unsatisfactory previously submitted application, only performance, or the affected pages need be submitted. (2) Is not financially stable, or Previously submitted pages with infor- (3) Has a management system which mation that is still current need not be does not meet the management stand- resubmitted. ards set forth in this part, or (4) Has not conformed to terms and § 1234.11 State plans. conditions of previous awards, or (a) Scope. The statutes for some pro- (5) Is otherwise not responsible; and grams require States to submit plans if the awarding agency determines that before receiving grants. Under regula- an award will be made, special condi- tions implementing Executive Order tions and/or restrictions shall cor- 12372, ‘‘Intergovernmental Review of respond to the high risk condition and Federal Programs,’’ States are allowed shall be included in the award. to simplify, consolidate and substitute (b) Special conditions or restrictions plans. This section contains additional may include: provisions for plans that are subject to (1) Payment on a reimbursement regulations implementing the Execu- basis; tive order. (2) Withholding authority to proceed (b) Requirements. A State need meet to the next phase until receipt of evi- only Federal administrative or pro- dence of acceptable performance within grammatic requirements for a plan a given funding period; that are in statutes or codified regula- (3) Requiring additional, more de- tions. tailed financial reports; (c) Assurances. In each plan the State (4) Additional project monitoring; will include an assurance that the (5) Requiring the grante or sub- State shall comply with all applicable grantee to obtain technical or manage- Federal statutes and regulations in ef- ment assistance; or fect with respect to the periods for (6) Establishing additional prior ap- which it receives grant funding. For provals.
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(c) If an awarding agency decides to (3) Internal control. Effective control impose such conditions, the awarding and accountability must be maintained official will notify the grantee or sub- for all grant and subgrant cash, real grantee as early as possible, in writing, and personal property, and other as- of: sets. Grantees and subgrantees must (1) The nature of the special condi- adequately safeguard all such property tions/restrictions; and must assure that it is used solely (2) The reason(s) for imposing them; for authorized purposes. (3) The corrective actions which must (4) Budget control. Actual expendi- be taken before they will be removed tures or outlays must be compared and the time allowed for completing with budgeted amounts for each grant the corrective actions and or subgrant. Financial information (4) The method of requesting recon- must be related to performance or pro- sideration of the conditions/restric- ductivity data, including the develop- tions imposed. ment of unit cost information when- ever appropriate or specifically re- Subpart C—Post-Award quired in the grant or subgrant agree- Requirements ment. If unit cost data are required, es- timates based on available documenta- FINANCIAL ADMINISTRATION tion will be accepted whenever pos- sible. § 1234.20 Standards for financial man- agement systems. (5) Allowable cost. Applicable OMB cost principles, agency program regula- (a) A State must expand and account tions, and the terms of grant and for grant funds in accordance with subgrant agreements will be followed State laws and procedures for expend- in determining the reasonableness, al- ing and accounting for its own funds. Fiscal control and accounting proce- lowability, and allocability of costs. dures of the State, as well as its sub- (6) Source documentation. Accounting grantees and cost-type contractors, records must be supported by such must be sufficient to— source documentation as cancelled (1) Permit preparation of reports re- checks, paid bills, payrolls, time and quired by this part and the statutes au- attendance records, contract and thorizing the grant, and subgrant award documents, etc. (2) Permit the tracing of funds to a (7) Cash management. Procedures for level of expenditures adequate to es- minimizing the time elapsing between tablish that such funds have not been the transfer of funds from the U.S. used in violation of the restrictions Treasury and disbursement by grantees and prohibitions of applicable statutes. and subgrantees must be followed (b) The financial management sys- whenever advance payment procedures tems of other grantees and subgrantees are used. Grantees must establish rea- must meet the following standards: sonable procedures to ensure the re- (1) Financial reporting. Accurate, cur- ceipt of reports on subgrantees’ cash rent, and complete disclosure of the fi- balances and cash disbursements in nancial results of financially assisted sufficient time to enable them to pre- activities must be made in accordance pare complete and accurate cash trans- with the financial reporting require- actions reports to the awarding agen- ments of the grant or subgrant. cy. When advances are made by letter- (2) Accounting records. Grantees and of-credit or electronic transfer of funds subgrantees must maintain records methods, the grantee must make which adequately identify the source drawdowns as close as possible to the and application of funds provided for fi- time of making disbursements. Grant- nancially-assisted activities. These ees must monitor cash drawdowns by records must contain information per- their subgrantees to assure that they taining to grant or subgrant awards conform substantially to the same and authorizations, obligations, unobli- gated balances, assets, liabilities, out- standards of timing and amount as lays or expenditures, and income. apply to advances to the grantees.
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(c) An awarding agency may review bursing cycle. Thereafter, the awarding the adequacy of the financial manage- agency shall reimburse the grantee for ment system of any applicant for fi- its actual cash disbursements. The nancial assistance as part of a working capital advance method of preaward review or at any time subse- payment shall not be used by grantees quent to award. or subgrantees if the reason for using such method is the unwillingness or in- § 1234.21 Payment. ability of the grantee to provide timely (a) Scope. This section prescribes the advances to the subgrantee to meet the basic standard and the methods under subgrantee’s actual cash disburse- which a Federal agency will make pay- ments. ments to grantees, and grantees will (f) Effect of program income, refunds, make payments to subgrantees and and audit recoveries on payment. (1) contractors. Grantees and subgrantees shall dis- (b) Basic standard. Methods and pro- burse repayments to and interest cedures for payment shall minimize earned on a revolving fund before re- the time elapsing between the transfer questing additional cash payments for of funds and disbursement by the the same activity. grantee or subgrantee, in accordance (2) Except as provided in paragraph with Treasury regulations at 31 CFR (f)(1) of this section, grantees and sub- Part 205. grantees shall disburse program in- (c) Advances. Grantees and sub- come, rebates, refunds, contract settle- grantees shall be paid in advance, pro- ments, audit recoveries and interest vided they maintain or demonstrate earned on such funds before requesting the willingness and ability to maintain additional cash payments. procedures to minimize the time elaps- (g) Withholding payments. (1) Unless ing between the transfer of the funds otherwise required by Federal statute, and their disbursement by the grantee awarding agencies shall not withhold or subgrantee. payments for proper charges incurred (d) Reimbursement. Reimbursement by grantees or subgrantees unless— shall be the preferred method when the (i) The grantee or subgrantee has requirements in paragraph (c) of this failed to comply with grant award con- section are not met. Grantees and sub- ditions or grantees may also be paid by reim- (ii) The grantee or subgrantee is in- bursement for any construction grant. debted to the United States. Except as otherwise specified in regula- (2) Cash withheld for failure to com- tion, Federal agencies shall not use the ply with grant award condition, but percentage of completion method to without suspension of the grant, shall pay construction grants. The grantee be released to the grantee upon subse- or subgrantee may use that method to quent compliance. When a grant is sus- pay its construction contractor, and if pended, payment adjustments will be it does, the awarding agency’s pay- made in accordance with § 1234.43(c). ments to the grantee or subgrantee (3) A Federal agency shall not make will be based on the grantee’s or sub- payment to grantees for amounts that grantee’s actual rate of disbursement. are withheld by grantees or sub- (e) Working capital advances. If a grantees from payment to contractors grantee cannot meet the criteria for to assure satisfactory completion of advance payments described in para- work. Payments shall be made by the graph (c) of this section, and the Fed- Federal agency when the grantees or eral agency has determined that reim- subgrantees actually disburse the with- bursement is not feasible because the held funds to the contractors or to es- grantee lacks sufficient working cap- crow accounts established to assure ital, the awarding agency may provide satisfactory completion of work. cash or a working capital advance (h) Cash depositories. (1) Consistent basis. Under this procedure the award- with the national goal of expanding the ing agency shall advance cash to the opportunities for minority business en- grantee to cover its estimated dis- terprises, grantees and subgrantees are bursement needs for an initial period encouraged to use minority banks (a generally geared to the grantee’s dis- bank which is owned at least 50 percent
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by minority group members). A list of For the costs of aÐ Use the principles inÐ minority owned banks can be obtained For-profit organization other 48 CFR Part 31. Contract from the Minority Business Develop- than a hospital and an or- Cost Principles and Proce- ment Agency, Department of Com- ganization named in OBM dures, or uniform cost ac- merce, Washington, DC 20230. Circular A±122 as not sub- counting standards that ject to that circular. comply with cost principles (2) A grantee or subgrantee shall acceptable to the Federal maintain a separate bank account only agency. when required by Federal-State agree- ment. § 1234.23 Period of availability of (i) Interest earned on advances. Except funds. for interest earned on advances of (a) General. Where a funding period is funds exempt under the Intergovern- specified, a grantee may charge to the mental Cooperation Act (31 U.S.C. 6501 award only costs resulting from obliga- et seq.) and the Indian Self-Determina- tions of the funding period unless car- tion Act (23 U.S.C. 450), grantees and ryover of unobligated balances is per- subgrantees shall promptly, but at mitted, in which case the carryover least quarterly, remit interest earned balances may be charged for costs re- on advances to the Federal agency. The sulting from obligations of the subse- grantee or subgrantee may keep inter- quent funding period. est amounts up to $100 per year for ad- (b) Liquidation of obligations. A grant- ministrative expenses. ee must liquidate all obligations in- curred under the award not later than § 1234.22 Allowable costs. 90 days after the end of the funding pe- riod (or as specified in a program regu- (a) Limitation on use of funds. Grant lation) to coincide with the submission funds may be used only for: of the annual Financial Status Report (1) The allowable costs of the grant- (SF–269). The Federal agency may ex- ees, subgrantees and cost-type contrac- tend this deadline at the request of the tors, including allowable costs in the grantee. form of payments to fixed-price con- tractors; and § 1234.24 Matching or cost sharing. (2) Reasonable fees or profit to cost- (a) Basic rule: Costs and contributions type contractors but not any fee or acceptable. With the qualifications and profit (or other increment above allow- exceptions listed in paragraph (b) of able costs) to the grantee or sub- this section, a matching or cost shar- grantee. ing requirement may be satisfied by ei- (b) Applicable cost principles. For each ther or both of the following: kind of organization, there is a set of (1) Allowable costs incurred by the Federal principles for determining al- grantee, subgrantee or a cost-type con- lowable costs. Allowable costs will be tractor under the assistance agree- determined in accordance with the cost ment. This includes allowable costs principles applicable to the organiza- borne by non-Federal grants or by oth- tion incurring the costs. The following ers cash donations from non-Federal chart lists the kinds of organizations third parties. and the applicable cost principles. (2) The value of third party in-kind contributions applicable to the period For the costs of aÐ Use the principles inÐ to which the cost sharing or matching requirements applies. State, local or Indian tribal OMB Circular A±87. government. (b) Qualifications and exceptions—(1) Private nonprofit organization OMB Circular A±122. Costs borne by other Federal grant agree- other than an (1) institution ments. Except as provided by Federal of higher education, (2) statute, a cost sharing or matching re- hospital, or (3) organization named in OMB Circular A± quirement may not be met by costs 122 as not subject to that borne by another Federal grant. This circular. prohibition does not apply to income Educational institutions...... OMB Circular A±21. earned by a grantee or subgrantee from a contract awarded under another Fed- eral grant.
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(2) General revenue sharing. For the for them, the payments would be allow- purpose of this section, general revenue able costs. sharing funds distributed under 31 (ii) Some third party in-kind con- U.S.C. 6702 are not considered Federal tributions are goods and services that, grant funds. if the grantee, subgrantee, or con- (3) Cost or contributions counted to- tractor receiving the contribution had wards other Federal costs-sharing require- to pay for them, the payments would ments. Neither costs nor the values of have been an indirect costs. Costs shar- third party in-kind contributions may ing or matching credit for such con- count towards satisfying a cost sharing tributions shall be given only if the or matching requirement of a grant grantee, subgrantee, or contractor has agreement if they have been or will be established, along with its regular indi- counted towards satisfying a cost shar- rect cost rate, a special rate for allo- ing or matching requirement of an- cating to individual projects or pro- other Federal grant agreement, a Fed- grams the value of the contributions. eral procurement contract, or any (iii) A third party in-kind contribu- other award of Federal funds. tion to a fixed-price contract may (4) Costs financed by program income. count towards satisfying a cost sharing Costs financed by program income, as or matching requirement only if it re- defined in § 1234.25, shall not count to- sults in: wards satisfying a cost sharing or (A) An increase in the services or matching requirement unless they are property provided under the contract expressly permitted in the terms of the (without additional cost to the grantee assistance agreement. (This use of gen- or subgrantee) or eral program income is described in (B) A cost savings to the grantee or § 1234.25(g).) subgrantee. (5) Services or property financed by in- (iv) The values placed on third party come earned by contractors. Contractors in-kind contributions for cost sharing under a grant may earn income from or matching purposes will conform to the activities carried out under the the rules in the succeeding sections of contract in addition to the amounts this part. If a third party in-kind con- earned from the party awarding the tribution is a type not treated in those contract. No costs of services or prop- sections, the value placed upon it shall erty supported by this income may be fair and reasonable. count toward satisfying a cost sharing (c) Valuation of donated services—(1) or matching requirement unless other Volunteer services. Unpaid services pro- provisions of the grant agreement ex- vided to a grantee or subgrantee by in- pressly permit this kind of income to dividuals will be valued at rates con- be used to meet the requirement. sistent with those ordinarily paid for (6) Records. Costs and third party in- similar work in the grantee’s or sub- kind contributions counting towards grantee’s organization. If the grantee satisfying a cost sharing or matching or subgrantee does not have employees requirement must be verifiable from performing similar work, the rates will the records of grantees and subgrantee be consistent with those ordinarily or cost-type contractors. These records paid by other employers for similar must show how the value placed on work in the same labor market. In ei- third party in-kind contributions was ther case, a reasonable amount for derived. To the extent feasible, volun- fringe benefits may be included in the teer services will be supported by the valuation. same methods that the organization (2) Employees of other organizations. uses to support the allocability of reg- When an employer other than a grant- ular personnel costs. ee, subgrantee, or cost-type contractor (7) Special standards for third party in- furnishes free of charge the services of kind contributions. (i) Third party in- an employee in the employee’s normal kind contributions count towards sat- line of work, the services will be valued isfying a cost sharing or matching re- at the employee’s regular rate of pay quirement only where, if the party re- exclusive of the employee’s fringe ben- ceiving the contributions were to pay efits and overhead costs. If the services
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are in a different line of work, para- contributions. Instead, they are treat- graph (c)(1) of this section applies. ed as costs incurred by the grantee or (d) Valuation of third party donated subgrantee. They are computed and al- supplies and loaned equipment or space. located (usually as indirect costs) in (1) If a third party donates supplies, accordance with the cost principles the contribution will be valued at the specified in § 1234.22, in the same way as market value of the supplies at the depreciation or use allowances for pur- time of donation. chased equipment and buildings. The (2) If a third party donates the use of amount of depreciation or use allow- equipment or space in a building but ances for donated equipment and build- retains title, the contribution will be ings is based on the property’s market valued at the fair rental rate of the value at the time it was donated. equipment or space. (f) Valuation of grantee or subgrantee (e) Valuation of third party donated donated real property for construction/ac- equipment, buildings, and land. If a third quisition. If a grantee or subgrantee do- party donates equipment, buildings, or nates real property for a construction land, and title passes to a grantee or or facilities acquisition project, the subgrantee, the treatment of the do- current market value of that property nated property will depend upon the may be counted as cost sharing or purpose of the grant or subgrant, as matching. If any part of the donated follows: property was acquired with Federal (1) Awards for capital expenditures. If funds, only the non-federal share of the the purpose of the grant or subgrant is property may be counted as cost shar- to assist the grantee or subgrantee in ing or matching. the acquisition of property, the market (g) Appraisal of real property. In some value of that property at the time of cases under paragraphs (d), (e) and (f) donation may be counted as cost shar- of this section, it will be necessary to ing or matching, establish the market value of land or a (2) Other awards. If assisting in the building or the fair rental rate of land acquisition of property is not the pur- or of space in a building. In these cases, pose of the grant or subgrant, para- the Federal agency may require the graphs (e)(2) (i) and (ii) of this section market value or fair rental value be set apply: by an independent appraiser, and that (i) If approval is obtained from the the value or rate be certified by the awarding agency, the market value at grantee. This requirement will also be the time of donation of the donated imposed by the grantee on subgrantees. equipment or buildings and the fair rental rate of the donated land may be § 1234.25 Program income. counted as cost sharing or matching. (a) General. Grantees are encouraged In the case of a subgrant, the terms of to earn income to defray program the grant agreement may require that costs. Program income includes income the approval be obtained from the Fed- from fees for services performed, from eral agency as well as the grantee. In the use or rental of real or personal all cases, the approval may be given property acquired with grant funds, only if a purchase of the equipment or from the sale of commodities or items rental of the land would be approved as fabricated under a grant agreement, an allowable direct cost. If any part of and from payments of principal and in- the donated property was acquired terest on loans made with grant funds. with Federal funds, only the non-fed- Except as otherwise provided in regula- eral share of the property may be tions of the Federal agency, program counted as cost-sharing or matching. income does not include interest on (ii) If approval is not obtained under grant funds, rebates, credits, discounts, paragraph (e)(2)(i) of this section, no refunds, etc. and interest earned on amount may be counted for donated any of them. land, and only depreciation or use al- (b) Definition of program income. Pro- lowances may be counted for donated gram income means gross income re- equipment and buildings. The deprecia- ceived by the grantee or subgrantee di- tion or use allowances for this property rectly generated by a grant supported are not treated as third party in-kind activity, or earned only as a result of
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the grant agreement during the grant agency and grantee contributions rath- period. ‘‘During the grant period’’ is er than to increase the funds com- the time between the effective date of mitted to the project. the award and the ending date of the (2) Addition. When authorized, pro- award reflected in the final financial gram income may be added to the report. funds committed to the grant agree- (c) Cost of generating program income. ment by the Federal agency and the If authorized by Federal regulations or grantee. The program income shall be the grant agreement, costs incident to used for the purposes and under the the generation of program income may conditions of the grant agreement. be deducted from gross income to de- (3) Cost sharing or matching. When au- termine program income. thorized, program income may be used (d) Governmental revenues. Taxes, spe- to meet the cost sharing or matching cial assessments, levies, fines, and requirement of the grant agreement. other such revenues raised by a grantee The amount of the Federal grant award or subgrantee are not program income remains the same. unless the revenues are specifically (h) Income after the award period. identified in the grant agreement or There are no Federal requirements gov- Federal agency regulations as program erning the disposition of program in- income. come earned after the end of the award (e) Royalties. Income from royalties period (i.e., until the ending date of the and license fees for copyrighted mate- final financial report, see paragraph (a) rial, patents, and inventions developed of this section), unless the terms of the by a grantee or subgrantee is program agreement or the Federal agency regu- income only if the revenues are specifi- lations provide otherwise. cally identified in the grant agreement or Federal agency regulations as pro- § 1234.26 Non-Federal audit. gram income. (See § 1234.34.) (f) Property. Proceeds from the sale of (a) Basic rule. Grantees and sub- real property or equipment will be han- grantees are responsible for obtaining dled in accordance with the require- audits in accordance with the Single ments of §§ 1234.31 and 1234.32. Audit Act of 1984 (31 U.S.C. 7501–7) and (g) Use of program income. Program Federal agency implementing regula- income shall be deducted from outlays tions. The audits shall be made by an which may be both Federal and non- independent auditor in accordance with Federal as described below, unless the generally accepted government audit- Federal agency regulations or the ing standards covering financial and grant agreement specify another alter- compliance audits. native (or a combination of the alter- (b) Subgrantees. State or local govern- natives). In specifying alternatives, the ments, as those terms are defined for Federal agency may distinguish be- purposes of the Single Audit Act, that tween income earned by the grantee receive Federal financial assistance and income earned by subgrantees and and provide $25,000 or more of it in a between the sources, kinds, or amounts fiscal year to a subgrantee shall: of income. When Federal agencies au- (1) Determine whether State or local thorize the alternatives in paragraphs subgrantees have met the audit re- (g) (2) and (3) of this section, program quirements of the Act and whether sub- income in excess of any limits stipu- grantees covered by OMB Circular A– lated shall also be deducted from out- 110, ‘‘Uniform Requirements for Grants lays. and Other Agreements with Institu- (1) Deduction. Ordinarily program in- tions of Higher Education, Hospitals come shall be deducted from total al- and Other Nonprofit Organizations’’ lowable costs to determine the net al- have met the audit requirement. Com- lowable costs. Program income shall be mercial contractors (private forprofit used for current costs unless the Fed- and private and governmental organi- eral agency authorizes otherwise. Pro- zations) providing goods and services gram income which the grantee did not to State and local governments are not anticipate at the time of the award required to have a single audit per- shall be used to reduce the Federal formed. State and local govenments
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should use their own procedures to en- (i) Any revision which would result sure that the contractor has complied in the need for additional funding. with laws and regulations affecting the (ii) Unless waived by the awarding expenditure of Federal funds; agency, cumulative transfers among di- (2) Determine whether the sub- rect cost categories, or, if applicable, grantee spent Federal assistance funds among separately budgeted programs, provided in accordance with applicable projects, functions, or activities which laws and regulations. This may be ac- exceed or are expected to exceed ten complished by reviewing an audit of percent of the current total approved the subgrantee made in accordance budget, whenever the awarding agen- with the Act, Circular A–110, or cy’s share exceeds $100,000. through other means (e.g., program re- (iii) Transfer of funds allotted for views) if the subgrantee has not had training allowances (i.e., from direct such an audit; payments to trainees to other expense (3) Ensure that appropriate correc- categories). tive action is taken within six months (2) Construction projects. Grantees and after receipt of the audit report in in- subgrantees shall obtain prior written stance of noncompliance with Federal approval for any budget revision which laws and regulations; would result in the need for additional (4) Consider whether subgrantee au- funds. dits necessitate adjustment of the (3) Combined construction and non- grantee’s own records; and construction projects. When a grant or (5) Require each subgrantee to permit subgrant provides funding for both con- independent auditors to have access to struction and nonconstruction activi- the records and financial statements. ties, the grantee or subgrantee must (c) Auditor selection. In arranging for obtain prior written approval from the audit services, § 1234.36 shall be fol- awarding agency before making any lowed. fund or budget transfer from non- construction to construction or vice CHANGES, PROPERTY, AND SUBAWARDS versa. (d) Programmatic changes. Grantees or § 1234.30 Changes. subgrantees must obtain the prior ap- (a) General. Grantees and subgrantees proval of the awarding agency when- are permitted to rebudget within the ever any of the following actions is an- approved direct cost budget to meet ticipated: unanticipated requirements and may (1) Any revision of the scope or objec- make limited program changes to the tives of the project (regardless of approved project. However, unless whether there is an associated budget waived by the awarding agency, certain revision requiring prior approval). types of post-award changes in budgets (2) Need to extend the period of avail- and projects shall require the prior ability of funds. written approval of the awarding agen- (3) Changes in key persons in cases cy. where specified in an application or a (b) Relation to cost principles. The ap- grant award. In research projects, a plicable cost principles (see § 1234.22) change in the project director or prin- contain requirements for prior ap- cipal investigator shall always require proval of certain types of costs. Except approval unless waived by the award- where waived, those requirements ing agency. apply to all grants and subgrants even (4) Under nonconstruction projects, if paragraphs (c) through (f) of this sec- contracting out, subgranting (if au- tion do not. thorized by law) or otherwise obtaining (c) Budget changes—(1) Nonconstruc- the services of a third party to perform tion projects. Except as stated in other activities which are central to the pur- regulations or an award document, poses of the award. This approval re- grantees or subgrantees shall obtain quirement is in addition to the ap- the prior approval of the awarding proval requirements of § 1234.36 but agency whenever any of the following does not apply to the procurement of changes is anticipated under a non- equipment, supplies, and general sup- construction award: port services.
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(e) Additional prior approval require- ticipation in the cost of the original ments. The awarding agency may not purchase to the fair market value of require prior approval for any budget the property. However, in those situa- revision which is not described in para- tions where a grantee or subgrantee is graph (c) of this section. disposing of real property acquired (f) Requesting prior approval. (1) A re- with grant funds and acquiring replace- quest for prior approval of any budget ment real property under the same pro- revision will be in the same budget for- gram, the net proceeds from the dis- mal the grantee used in its application position may be used as an offset to the and shall be accompanied by a nar- cost of the replacement property. rative justification for the proposed re- (2) Sale of property. Sell the property vision. and compensate the awarding agency. (2) A request for a prior approval The amount due to the awarding agen- under the applicable Federal cost prin- cy will be calculated by applying the ciples (see § 1234.22) may be made by awarding agency’s percentage of par- letter. ticipation in the cost of the original (3) A request by a subgrantee for purchase to the proceeds of the sale prior approval will be addressed in after deduction of any actual and rea- writing to the grantee. The grantee sonable selling and fixing-up expenses. will promptly review such request and If the grant is still active, the net pro- shall approve or disapprove the request ceeds from sale may be offset against in writing. A grantee will not approve the original cost of the property. When any budget or project revision which is a grantee or subgrantee is directed to inconsistent with the purpose or terms sell property, sales procedures shall be and conditions of the Federal grant to followed that provide for competition the grantee. If the revision, requested to the extent practicable and result in by the subgrantee would result in a the highest possible return. change to the grantee’s approved (3) Transfer of title. Transfer title to project which requires Federal prior the awarding agency or to a third- approval, the grantee will obtain the party designated/approved by the Federal agency’s approval before ap- awarding agency. The grantee or sub- proving the subgrantee’s request. grantee shall be paid an amount cal- § 1234.31 Real property. culated by applying the grantee or sub- grantee’s percentage of participation (a) Title. Subject to the obligations in the purchase of the real property to and conditions set forth in this section, the current fair market value of the title to real property acquired under a property. grant or subgrant will vest upon acqui- sition in the grantee or subgrantee re- § 1234.32 Equipment. spectively. (b) Use. Except as otherwise provided (a) Title. Subject to the obligations by Federal statutes, real property will and conditions set forth in this section, be used for the originally authorized title to equipment acquired under a purposes as long as needed for that pur- grant or subgrant will vest upon acqui- poses, and the grantee or subgrantee sition in the grantee or subgrantee re- shall not dispose of or encumber its spectively. title or other interests. (b) States. A State will use, manage, (c) Disposition. When real property is and dispose of equipment acquired no longer needed for the originally au- under a grant by the State in accord- thorized purpose, the grantee or sub- ance with State laws and procedures. grantee will request disposition in- Other grantees and subgrantees will structions from the awarding agency. follow paragraphs (c) through (e) of The instructions will provide for one of this section. the following alternatives: (c) Use. (1) Equipment shall be used (1) Retention of title. Retain title after by the grantee or subgrantee in the compensating the awarding agency. program or project for which it was ac- The amount paid to the awarding agen- quired as long as needed, whether or cy will be computed by applying the not the project or program continues awarding agency’s percentage of par- to be supported by Federal funds. When
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no longer needed for the original pro- property. Any loss, damage, or theft gram or project, the equipment may be shall be investigated. used in other activities currently or (4) Adequate maintenance procedures previously supported by a Federal must be developed to keep the property agency. in good condition. (2) The grantee or subgrantee shall (5) If the grantee or subgrantee is au- also make equipment available for use thorized or required to sell the prop- on other projects or programs cur- erty, proper sales procedures must be rently or previously supported by the established to ensure the highest pos- Federal Government, providing such sible return. use will not interfere with the work on (e) Disposition. When original or re- the projects or program for which it placement equipment acquired under a was originally acquired. First pref- grant or subgrant is no longer needed erence for other use shall be given to for the original project or program or other programs or projects supported for other activities currently or pre- by the awarding agency. User fees viously supported by a Federal agency, should be considered if appropriate. disposition of the equipment will be (3) Notwithstanding the encourage- made as follows: ment in § 1234.25(a) to earn program in- (1) Items of equipment with a current come, the grantee or subgrantee must per-unit fair market value of less than not use equipment acquired with grant $5,000 may be retained, sold or other- funds to provide services for a fee to wise disposed of with no further obliga- compete unfairly with private compa- tion to the awarding agency. nies that provide equivalent services, (2) Items of equipment with a current unless specifically permitted or con- per unit fair market value in excess of templated by Federal statute. $5,000 may be retained or sold and the (4) When acquiring replacement awarding agency shall have a right to equipment, the grantee or subgrantee an amount calculated by multiplying may use the equipment to be replaced the current market value or proceeds as a trade-in or sell the property and from sale by the awarding agency’s use the proceeds to offset the cost of share of the equipment. the replacement property, subject to the approval of the awarding agency. (3) In cases where a grantee or sub- grantee fails to take appropriate dis- (d) Management requirements. Proce- dures for managing equipment (includ- position actions, the awarding agency ing replacement equipment), whether may direct the grantee or subgrantee acquired in whole or in part with grant to take excess and disposition actions. funds, until disposition takes place (f) Federal equipment. In the event a will, as a minimum, meet the following grantee or subgrantee is provided fed- requirements: erally-owned equipment: (1) Property records must be main- (1) Title will remain vested in the tained that include a description of the Federal Government. property, a serial number or other (2) Grantees or subgrantees will man- identification number, the source of age the equipment in accordance with property, who holds title, the acquisi- Federal agency rules and procedures, tion date, and cost of the property, per- and submit an annual inventory list- centage of Federal participation in the ing. cost of the property, the location, use (3) When the equipment is no longer and condition of the property, and any needed, the grantee or subgrantee will ultimate disposition data including the request disposition instructions from date of disposal and sale price of the the Federal agency. property. (g) Right to transfer title. The Federal (2) A physical inventory of the prop- awarding agency may reserve the right erty must be taken and the results rec- to transfer title to the Federal Govern- onciled with the property records at ment or a third part named by the least once every two years. awarding agency when such a third (3) A control system must be devel- party is otherwise eligible under exist- oped to ensure adequate safeguards to ing statutes. Such transfers shall be prevent loss, damage, or theft of the subject to the following standards:
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(1) The property shall be identified in Order 12549, ‘‘Debarment and Suspen- the grant or otherwise made known to sion.’’ the grantee in writing. (2) The Federal awarding agency § 1234.36 Procurement. shall issue disposition instruction (a) States. When procuring property within 120 calendar days after the end and services under a grant, a State will of the Federal support of the project follow the same policies and procedures for which it was acquired. If the Fed- it uses for procurements from its non- eral awarding agency fails to issue dis- Federal funds. The State will ensure position instructions within the 120 that every purchase order or other con- calendar-day period the grantee shall tract includes any clauses required by follow § 1234.32(e). Federal statutes and executive orders (3) When title to equipment is trans- and their implementing regulations. ferred, the grantee shall be paid an Other grantees and subgrantees will amount calculated by applying the per- follow paragraphs (b) through (i) in centage of participation in the pur- this section. chase to the current fair market value (b) Procurement standards. (1) Grant- of the property. ees and subgrantees will use their own procurement procedures which reflect § 1234.33 Supplies. applicable State and local laws and (a) Title. Title to supplies acquired regulations, provided that the procure- under a grant or subgrant will vest, ments conform to applicable Federal upon acquisition, in the grantee or sub- law and the standards identified in this grantee respectively. section. (b) Disposition. If there is a residual (2) Grantees and subgrantees will inventory of unused supplies exceeding maintain a contract administration $5,000 in total aggregate fair market system which ensures that contractors value upon termination or completion perform in accordance with the terms, of the award, and if the supplies are conditions, and specifications of their not needed for any other federally contracts or purchase orders. sponsored programs or projects, the (3) Grantees and subgrantees will grantee or subgrantee shall com- maintain a written code of standards of pensate the awarding agency for its conduct governing the performance of share. their employees engaged in the award and administration of contracts. No § 1234.34 Copyrights. employee, officer or agent of the grant- The Federal awarding agency re- ee or subgrantee shall participate in se- serves a royalty-free, nonexclusive, and lection, or in the award or administra- irrevocable license to reproduce, pub- tion of a contract supported by Federal lish or otherwise use, and to authorize funds if a conflict of interest, real or others to use, for Federal Government apparent, would be involved. Such a purposes: conflict would arise when: (a) The copyright in any work devel- (i) The employee, officer or agent, oped under a grant, subgrant, or con- (ii) Any member of his immediate tract under a grant or subgrant; and family, (b) Any rights of copyright to which (iii) His or her partner, or a grantee, subgrantee or a contractor (iv) An organization which employs, purchases ownership with grant sup- or is about to employ, any of the port. above, has a financial or other interest in the firm selected for award. The § 1234.35 Subawards to debarred and grantee’s or subgrantee’s officers, em- suspended parties. ployees or agents will neither solicit Grantees and subgrantees must not nor accept gratuities, favors or any- make any award or permit any award thing of monetary value from contrac- (subgrant or contract) at any tier to tors, potential contractors, or parties any party which is debarred or sus- to subagreements. Grantee and sub- pended or is otherwise excluded from or grantees may set minimum rules where ineligible for participation in Federal the financial interest is not substantial assistance programs under Executive or the gift is an unsolicited item of
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nominal intrinsic value. To the extent ment. These records will include, but permitted by State or local law or reg- are not necessarily limited to the fol- ulations, such standards or conduct lowing: Rationale for the method of will provide for penalties, sanctions, or procurement, selection of contract other disciplinary actions for viola- type, contractor selection or rejection, tions of such standards by the grant- and the basis for the contract price. ee’s and subgrantee’s officers, employ- (10) Grantees and subgrantees will ees, or agents, or by contractors or use time and material type contracts their agents. The awarding agency may only— in regulation provide additional prohi- (i) After a determination that no bitions relative to real, apparent, or other contract is suitable, and potential conflicts of interest. (ii) If the contract includes a ceiling (4) Grantee and subgrantee proce- price that the contractor exceeds at its dures will provide for a review of pro- own risk. posed procurements to avoid purchase (11) Grantees and subgrantees alone of unnecessary or duplicative items. will be responsible, in accordance with Consideration should be given to con- good administrative practice and sound solidating or breaking out procure- business judgment, for the settlement ments to obtain a more economical of all contractual and administrative purchase. Where appropriate, an anal- issues arising out of procurements. ysis will be made of lease versus pur- These issues include, but are not lim- chase alternatives, and any other ap- ited to source evaluation, protests, dis- propriate analysis to determine the putes, and claims. These standards do most economical approach. not relieve the grantee or subgrantee (5) To foster greater economy and ef- of any contractual responsibilities ficiency, grantees and subgrantees are under its contracts. Federal agencies encouraged to enter into State and will not substitute their judgment for local intergovernmental agreements that of the grantee or subgrantee un- for procurement or use of common less the matter is primarily a Federal goods and services. concern. Violations of law will be re- (6) Grantees and subgrantees are en- ferred to the local, State, or Federal couraged to use Federal excess and sur- authority having proper jurisdiction. plus property in lieu of purchasing new (12) Grantees and subgrantees will equipment and property whenever such have protest procedures to handle and use is feasible and reduces project resolve disputes relating to their pro- costs. curements and shall in all instances (7) Grantees and subgrantees are en- disclose information regarding the pro- couraged to use value engineering test to the awarding agency. A clauses in contracts for construction protestor must exhaust all administra- projects of sufficient size to offer rea- tive remedies with the grantee and sub- sonable opportunities for cost reduc- grantee before pursuing a protest with tions. Value engineering is a system- the Federal agency. Reviews of pro- atic and creative anaylsis of each con- tests by the Federal agency will be lim- tract item or task to ensure that its es- ited to: sential function is provided at the (i) Violations of Federal law or regu- overall lower cost. lations and the standards of this sec- (8) Grantees and subgrantees will tion (violations of State or local law make awards only to responsible con- will be under the jurisdiction of State tractors possessing the ability to per- or local authorities) and form successfully under the terms and (ii) Violations of the grantee’s or sub- conditions of a proposed procurement. grantee’s protest procedures for failure Consideration will be given to such to review a complaint or protest. Pro- matters as contractor integrity, com- tests received by the Federal agency pliance with public policy, record of other than those specified above will be past performance, and financial and referred to the grantee or subgrantee. technical resources. (c) Competition. (1) All procurement (9) Grantees and subgrantees will transactions will be conducted in a maintain records sufficient to detail manner providing full and open com- the significant history of a procure- petition consistent with the standards
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of § 1234.36. Some of the situations con- impractical or uneconomical to make a sidered to be restrictive of competition clear and accurate description of the include but are not limited to: technical requirements, a ‘‘brand name (i) Placing unreasonable require- or equal’’ description may be used as a ments on firms in order for them to means to define the performance or qualify to do business, other salient requirements of a pro- (ii) Requiring unnecessary experience curement. The specific features of the and excessive bonding, named brand which must be met by (iii) Noncompetitive pricing practices offerors shall be clearly stated; and between firms or between affiliated (ii) Identify all requirements which companies, the offerors must fulfill and all other (iv) Noncompetitive awards to con- factors to be used in evaluating bids or sultants that are on retainer contracts, proposals. (v) Organizational conflicts of inter- (4) Grantees and subgrantees will en- est, sure that all prequalified lists of per- (vi) Specifying only a ‘‘brand name’’ sons, firms, or products which are used product instead of allowing ‘‘an equal’’ in acquiring goods and services are cur- product to be offered and describing rent and include enough qualified the performance of other relevant re- sources to ensure maximum open and quirements of the procurement, and free competition. Also, grantees and (vii) Any arbitrary action in the pro- subgrantees will not preclude potential curement process. bidders from qualifying during the so- (2) Grantees and subgrantees will licitation period. conduct procurements in a manner (d) Methods of procurement to be fol- that prohibits the use of statutorily or lowed—(1) Procurement by small pur- administratively imposed in-State or chase procedures. Small purchase proce- local geographical preferences in the dures are those relatively simple and evaluation of bids or proposals, except informal procurement methods for se- in those cases where applicable Federal curing services, supplies, or other prop- statutes expressly mandate or encour- age geographic preference. Nothing in erty that do not cost more than $25,000 this section preempts State licensing in the aggregate. If small purchase pro- laws. When contracting for architec- curements are used, price or rate tural and engineering (A/E) services, quotations will be obtained from an geographic location may be a selection adequate number of qualified sources. criteria provided its application leaves (2) Procurement by sealed bids (for- an appropriate number of qualified mal advertising). Bids are publicly so- firms, given the nature and size of the licited and a firm-fixed-price contract project, to compete for the contract. (lump sum or unit price) is awarded to (3) Grantees will have written selec- the responsible bidder whose bid, con- tion procedures for procurement trans- forming with all the material terms actions. These procedures will ensure and conditions of the invitation for that all solicitations: bids, is the lowest in price. The sealed (i) Incorporate a clear and accurate bid method is the preferred method for description of the technical require- procuring construction, if the condi- ments for the material, product, or tions in § 1234.36(d)(2)(i) apply. service to be procured. Such descrip- (i) In order for sealed bidding to be tion shall not, in competitive procure- feasible, the following conditions ments, contain features which unduly should be present: restrict competition. The description (A) A complete, adequate, and real- may include a statement of the quali- istic specification or purchase descrip- tative nature of the material, product tion is available; or service to be procured, and when (B) Two or more responsible bidders necessary, shall set forth those min- are willing and able to compete effec- imum essential characteristics and tively for the business; and standards to which it must conform if (C) The procurement lends itself to a it is to satisfy its intended use. De- firm fixed price contract and the selec- tailed product specifications should be tion of the successful bidder can be avoided if at all possible. When it is made principally on the basis of price.
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(ii) If sealed bids are used, the fol- for qualifications-based procurement of lowing requirements apply: architectural/engineering (A/E) profes- (A) The invitation for bids will be sional services whereby competitors’ publicly advertised and bids shall be qualifications are evaluated and the solicited from an adequate number of most qualified competitor is selected, known suppliers, providing them suffi- subject to negotiation of fair and rea- cient time prior to the date set for sonable compensation. The method, opening the bids; where price is not used as a selection (B) The invitation for bids, which factor, can only be used in procure- will include any specifications and per- ment of A/E professional services. It tinent attachments, shall define the cannot be used to purchase other types items or services in order for the bidder of services though A/E firms are a po- to properly respond; tential source to perform the proposed (C) All bids will be publicly opened at effort. the time and place prescribed in the in- (4) Procurement by noncompetitive vitation for bids; proposals is procurement through solic- (D) A firm fixed-price contract award itation of a proposal from only one will be made in writing to the lowest source, or after solicitation of a num- responsive and responsible bidder. ber of sources, competition is deter- Where specified in bidding documents, mined inadequate. factors such as discounts, transpor- (i) Procurement by noncompetitive tation cost, and life cycle costs shall be proposals may be used only when the considered in determining which bid is award of a contract is infeasible under lowest. Payment discounts will only be small purchase procedures, sealed bids used to determine the low bid when or competitive proposals and one of the prior experience indicates that such following circumstances applies: discounts are usually taken advantage (A) The item is available only from a of; and single source; (E) Any or all bids may be rejected if (B) The public exigency or emergency there is a sound documented reason. for the requirement will not permit a (3) Procurement by competitive pro- delay resulting from competitive solic- posals. The technique of competitive itation. proposals is normally conducted with (C) The awarding agency authorizes more than one source submitting an noncompetitive proposals; or offer, and either a fixed-price or cost- (D) After solicitation of a number of reimbursement type contract is award- sources, competition is determined in- ed. It is generally used when conditions adequate. are not appropriate for the use of (ii) Cost analysis, i.e., verifying the sealed bids. If this method is used, the proposed cost data, the projections of following requirements apply: the data, and the evaluation of the spe- (i) Requests for proposals will be pub- cific elements of costs and profit, is re- licized and identify all evaluation fac- quired. tors and their relative importance. Any (iii) Grantees and subgrantees may response to publicized requests for pro- be required to submit the proposed pro- posals shall be honored to the max- curement to the awarding agency for imum extent practical; pre-award review in accordance with (ii) Proposals will be solicited from paragraph (g) of this section. an adequate number of qualified (e) Contracting with small and minority sources; firms, women’s business enterprise and (iii) Grantees and subgrantees will labor surplus area firms. (1) The grantee have a method for conducting tech- and subgrantee will take all necessary nical evaluations of the proposals re- affirmative steps to assure that minor- ceived and for selecting awardees; ity firms, women’s business enter- (iv) Awards will be made to the re- prises, and labor surplus area firms are sponsible firm whose proposal is most used when possible. advantageous to the program, with (2) Affirmative steps shall include: price and other factors considered; and (i) Placing qualified small and minor- (v) Grantees and subgrantees may ity businesses and women’s business use competitive proposal procedures enterprises on solicitation lists;
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(ii) Assuring that small and minority To establish a fair and reasonable prof- businesses, and women’s business en- it, consideration will be given to the terprises are solicited whenever they complexity of the work to be per- are potential sources; formed, the risk borne by the con- (iii) Dividing total requirements, tractor, the contractor’s investment, when economically feasible, into small- the amount of subcontracting, the er tasks or quantities to permit max- quality of its record of past perform- imum participation by small and mi- ance, and industry profit rates in the nority business, and women’s business surrounding geographical area for enterprises; similar work. (iv) Establishing delivery schedules, (3) Costs or prices based on estimated where the requirement permits, which costs for contracts under grants will be encourage participation by small and allowable only to the extent that costs minority business, and women’s busi- incurred or cost estimates included in ness enterprises; negotiated prices are consistent with (v) Using the services and assistance of the Small Business Administration, Federal cost principles (see § 1234.22). and the Minority Business Develop- Grantees may reference their own cost ment Agency of the Department of principles that comply with the appli- Commerce; and cable Federal cost principles. (vi) Requiring the prime contractor, (4) The cost plus a percentage of cost if subcontracts are to be let, to take and percentage of construction cost the affirmative steps listed in para- methods of contracting shall not be graphs (e)(2) (i) through (v) of this sec- used. tion. (g) Awarding agency review. (1) Grant- (f) Contract cost and price. (1) Grant- ees and subgrantees must make avail- ees and subgrantees must perform a able, upon request of the awarding cost or price analysis in connection agency, technical specifications on pro- with every procurement action includ- posed procurements where the award- ing contract modifications. The meth- ing agency believes such review is od and degree of analysis is dependent needed to ensure that the item and/or on the facts surrounding the particular service specified is the one being pro- procurement situation, but as a start- posed for purchase. This review gen- ing point, grantees must make inde- erally will take place prior to the time pendent estimates before receiving bids the specification is incorporated into a or proposals. A cost analysis must be solicitation document. However, if the performed when the offeror is required grantee or subgrantee desires to have to submit the elements of his esti- the review accomplished after a mated cost, e.g., under professional, solication has been developed, the consulting, and architectural engineer- awarding agency may still review the ing services contracts. A cost analysis specifications, with such review usu- will be necessary when adequate price ally limited to the technical aspects of competition is lacking, and for sole the proposed purchase. source procurements, including con- tract modifications or change orders, (2) Grantees and subgrantees must on unless price resonableness can be es- request make available for awarding tablished on the basis of a catalog or agency pre-award review procurement market price of a commercial product documents, such as requests for pro- sold in substantial quantities to the posals or invitations for bids, inde- general public or based on prices set by pendent cost estimates, etc., when: law or regulation. A price analysis will (i) A grantee’s or subgrantee’s pro- be used in all other instances to deter- curement procedures or operation fails mine the reasonableness of the pro- to comply with the procurement stand- posed contract price. ards in this seciton; or (2) Grantees and subgrantees will ne- (ii) The procurement is expected to gotiate profit as a separate element of exceed $25,000 and is to be awarded the price for each contract in which without competition or only one bid or there is no price competition and in all offer is received in response to a solici- cases where cost analysis is performed. tation; or
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(iii) The procurement, which is ex- ance that the bidder will, upon accept- pected to exceed $25,000, specifies a ance of his bid, execute such contrac- ‘‘brand name’’ product; or tual documents as may be required (iv) The proposed award over $25,000 within the time specified. is to be awarded to other than the ap- (2) A performance bond on the part of parent low bidder under a sealed bid the contractor for 100 percent of the con- procurement; or tract price. A ‘‘performance bond’’ is (v) A proposed contract modification one executed in connection with a con- changes the scope of a contract or in- tract to secure fulfillment of all the creases the contract amount by more contractor’s obligations under such than $25,000. contract. (3) A grantee or subgrantee will be (3) A payment bond on the part of the exempt from the pre-award review in contractor for 100 percent of the contract paragraph (g)(2) of this section if the price. A ‘‘payment bond’’ is one exe- awarding agency determines that its procurement systems comply with the cuted in connection with a contract to standards of this section. assure payment as required by law of (i) A grantee or subgrantee may re- all persons supplying labor and mate- quest that its procurement system be rial in the execution of the work pro- reviewed by the awarding agency to de- vided for in the contract. termine whether its system meets (i) Contract provisions. A grantee’s these standards in order for its system and subgrantee’s contracts must con- to be certified. Generally, these re- tain provisions in paragraph (i) of this views shall occur where there is a con- section. Federal agencies are permitted tinuous high-dollar funding, and third- to require changes, remedies, changed party contracts are awarded on a reg- conditions, access and records reten- ular basis; tion, suspension of work, and other (ii) A grantee or subgrantee may self- clauses approved by the Office of Pro- certify its procurement system. Such curement Policy. self-certification shall not limit the (1) Administrative, contractual, or awarding agency’s right to survey the legal remedies in instances where con- system. Under a self-certification pro- tractors violate or breach contract cedure, awarding agencies may wish to terms, and provide for such sanctions rely on written assurances from the and penalties as may be appropriate grantee or subgrantee that it is com- (Contracts other than small pur- plying with these standards. A grantee chases). or subgrantee will cite specific proce- (2) Termination for cause and for dures, regulations, standards, etc., as convenience by the grantee or sub- being in compliance with these require- grantee including the manner by which ments and have its system available it will be effected and the basis for set- for review. tlement (All contracts in excess of (h) Bonding requirements. For con- $10,000). struction or facility improvement con- tracts or subconstracts exceeding (3) Compliance with Executive Order $100,000, the awarding agency may ac- 11246 of September 24, 1965 entitled cept the bonding policy and require- ‘‘Equal Employment Opportunity,’’ as ments of the grantee or subgrantee amended by Executive Order 11375 of provided the awarding agency has October 13, 1967 and as supplemented in made a determination that the award- Department of Labor regulations (41 ing agency’s interest is adequately pro- CFR chapter 60) (All construction con- tected. If such a determination has not tracts awarded in excess of $10,000 by been made, the minimum requirements grantees and their contractors or sub- shall be as follows: grantees). (1) A bid guarantee from each bidder (4) Compliance with the Copeland equivalent to five percent of the bid price. ‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as The ‘‘bid guarantee’’ shall consist of a supplemented in Department of Labor firm commitment such as a bid bond, regulations (29 CFR part 3) (All con- certified check, or other negotiable in- tracts and subgrants for construction strument accompanying a bid as assur- or repair).
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(5) Compliance with the Davis-Bacon Energy Policy and Conservation Act Act (40 U.S.C. 276a to a–7) as supple- (Pub. L. 94–163). mented by Department of Labor regu- lations (29 CFR part 5) (Construction § 1234.37 Subgrants. contracts in excess of $2,000 awarded by (a) States. States shall follow state grantees and subgrantees when re- law and procedures when awarding and quired by Federal grant program legis- administering subgrants (whether on a lation). cost reimbursement or fixed amount (6) Compliance with sections 103 and basis) of financial assistance to local 107 of the Contract Work Hours and and Indian tribal governments. States Safety Standards Act (40 U.S.C. 327–330) shall: as supplemented by Department of (1) Ensure that every subgrant in- Labor regulations (29 CFR part 5). cludes any clauses required by Federal (Construction contracts awarded by statute and executive orders and their grantees and subgrantees in excess of implementing regulations; $2,000, and in excess of $2,500 for other (2) Ensure that subgrantees are contracts which involve the employ- aware of requirements imposed upon ment of mechanics or laborers) them by Federal statute and regula- (7) Notice of awarding agency re- tion; quirements and regulations pertaining (3) Ensure that a provision for com- to reporting. pliance with § 1234.42 is placed in every (8) Notice of awarding agency re- cost reimbursement subgrant; and quirements and regulations pertaining (4) Conform any advances of grant to patent rights with respect to any funds to subgrantees substantially to discovery or invention which arises or the same standards of timing and is developed in the course of or under amount that apply to cash advances by such contract. Federal agencies. (9) Awarding agency requirements (b) All other grantees. All other grant- and regulations pertaining to copy- ees shall follow the provisions of this rights and rights in data. part which are applicable to awarding (10) Access by the grantee, the sub- agencies when awarding and admin- grantee, the Federal grantor agency, istering subgrants (whether on a cost the Comptroller General of the United reimbursement or fixed amount basis) States, or any of their duly authorized of financial assistance to local and In- representatives to any books, docu- dian tribal governments. Grantees ments, papers, and records of the con- shall: tractor which are directly pertinent to (1) Ensure that every subgrant in- that specific contract for the purpose cludes a provision for compliance with of making audit, examination, ex- this part; cerpts, and transcriptions. (2) Ensure that every subgrant in- (11) Retention of all required records cludes any clauses required by Federal for three years after grantees or sub- statute and executive orders and their grantees make final payments and all other pending matters are closed. implementing regulations; and (12) Compliance with all applicable (3) Ensure that subgrantees are standards, orders, or requirements aware of requirements imposed upon issued under section 306 of the Clear them by Federal statutes and regula- Air Act (42 U.S.C. 1857(h)), section 508 tions. of the Clean Water Act (33 U.S.C. 1368), (c) Exceptions. By their own terms, Executive Order 11738, and Environ- certain provisions of this part do not mental Protection Agency regulations apply to the award and administration (40 CFR part 15) (Contracts, sub- of subgrants: contracts, and subgrants of amounts in (1) Section 1234.10; excess of $100,000). (2) Section 1234.11; (13) Mandatory standards and policies (3) The letter-of-credit procedures relating to energy efficiency which are specified in Treasury Regulations at 31 contained in the state energy conserva- CFR part 205, cited in § 1234.21; and tion plan issued in compliance with the (4) Section 1234.50.
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REPORTS, RECORDS, RETENTION, AND (iii) Additional pertinent information ENFORCEMENT including, when appropriate, analysis and explanation of cost overruns or § 1234.40 Monitoring and reporting high unit costs. program performance. (3) Grantees will not be required to (a) Monitoring by grantees. Grantees submit more than the original and two are responsible for managing the day- copies of performance reports. to-day operations of grant and (4) Grantees will adhere to the stand- subgrant supported activities. Grantees ards in this section in prescribing per- must monitor grant and subgrant sup- formance reporting requirements for ported activities to assure compliance subgrantees. with applicable Federal requirements (c) Construction performance reports. and that performance goals are being For the most part, on-site technical in- achieved. Grantee monitoring must spections and certified percentage-of- cover each program, function or activ- completion data are relied on heavily ity. by Federal agencies to monitor (b) Nonconstruction performance re- progress under construction grants and ports. The Federal agency may, if it de- subgrants. The Federal agency will re- cides that performance information quire additional formal performance available from subsequent applications reports only when considered nec- contains sufficient information to meet its programmatic needs, require essary, and never more frequently than the grantee to submit a performance quarterly. report only upon expiration or termi- (d) Significant developments. Events nation of grant support. Unless waived may occur between the scheduled per- by the Federal agency this report will formance reporting dates which have be due on the same date as the final Fi- significant impact upon the grant or nancial Status Report. subgrant supported activity. In such (1) Grantees shall submit annual per- cases, the grantee must inform the formance reports unless the awarding Federal agency as soon as the following agency requires quarterly or semi-an- types of conditions become known: nual reports. However, performance re- (1) Problems, delays, or adverse con- ports will not be required more fre- ditions which will materially impair quently than quarterly. Annual reports the ability to meet the objective of the shall be due 90 days after the grant award. This disclosure must include a year, quarterly or semi-annual reports statement of the action taken, or con- shall be due 30 days after the reporting templated, and any assistance needed period. The final performance report to resolve the situation. will be due 90 days after the expiration (2) Favorable developments which en- or termination of grant support. If a able meeting time schedules and objec- justified request is submitted by a tives sooner or at less cost than antici- grantee, the Federal agency may ex- pated or producing more beneficial re- tend the due date for any performance sults than originally planned. report. Additionally, requirements for (e) Federal agencies may make site unnecessary performance reports may visits as warranted by program needs. be waived by the Federal agency. (f) Waivers, extensions. (1) Federal (2) Performance reports will contain, agencies may waive any performance for each grant, brief information on the following: report required by this part if not need- ed. (i) A comparison of actual accom- plishments to the objectives estab- (2) The grantee may waive any per- lished for the period. Where the output formance report from a subgrantee of the project can be quantified, a com- when not needed. The grantee may ex- putation of the cost per unit of output tend the due date for any performance may be required if that information report from a subgrantee if the grantee will be useful. will still be able to meet its perform- (ii) The reasons for slippage if estab- ance reporting obligations to the Fed- lished objectives were not met. eral agency.
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§ 1234.41 Financial reporting. (2) Accounting basis. Each grantee will report program outlays and program (a) General. (1) Except as provided in income on a cash or accrual basis as paragraphs (a) (2) and (5) of this sec- prescribed by the awarding agency. If tion, grantees will use only the forms the Federal agency requires accrual in- specified in paragraphs (a) through (e) formation and the grantee’s accounting of this section, and such supple- records are not normally kept on the mentary or other forms as may from accural basis, the grantee shall not be time to time be authorized by OMB, required to convert its accounting sys- for: tem but shall develop such accrual in- (i) Submitting financial reports to formation through and analysis of the Federal agencies, or documentation on hand. (ii) Requesting advances or reim- (3) Frequency. The Federal agency bursements when letters of credit are may prescribe the frequency of the re- not used. port for each project or program. How- (2) Grantees need not apply the forms ever, the report will not be required prescribed in this section in dealing more frequently than quarterly. If the with their subgrantees. However, Federal agency does not specify the grantees shall not impose more burden- frequency of the report, it will be sub- some requirements on subgrantees. mitted annually. A final report will be (3) Grantees shall follow all applica- required upon expiration or termi- ble standard and supplemental Federal nation of grant support. agency instructions approved by OMB (4) Due date. When reports are re- to the extend required under the Paper- quired on a quarterly or semiannual work Reduction Act of 1980 for use in basis, they will be due 30 days after the connection with forms specified in reporting period. When required on an paragraphs (b) through (e) of this sec- annual basis, they will be due 90 days tion. Federal agencies may issue sub- after the grant year. Final reports will stantive supplementary instructions be due 90 days after the expiration or only with the approval of OMB. Federal termination of grant support. agencies may shade out or instruct the (c) Federal Cash Transactions Report— grantee to disregard any line item that (1) Form. (i) For grants paid by letter or the Federal agency finds unnecessary credit, Treasury check advances or for its decisionmaking purposes. electronic transfer of funds, the grant- (4) Grantees will not be required to ee will submit the Standard Form 272, submit more than the original and two Federal Cash Transactions Report, and copies of forms required under this when necessary, its continuation sheet, part. Standard Form 272a, unless the terms (5) Federal agencies may provide of the award exempt the grantee from computer outputs to grantees to expe- this requirement. dite or contribute to the accuracy of (ii) These reports will be used by the reporting. Federal agencies may accept Federal agency to monitor cash ad- the required information from grantees vanced to grantees and to obtain dis- in machine usable format or computer bursement or outlay information for printouts instead of prescribed forms. each grant from grantees. The format (6) Federal agencies may waive any of the report may be adapted as appro- report required by this section if not priate when reporting is to be accom- needed. plished with the assistance of auto- (7) Federal agencies may extend the matic data processing equipment pro- due date of any financial report upon vided that the information to be sub- receiving a justified request from a mitted is not changed in substance. grantee. (2) Forecasts of Federal cash require- (b) Financial Status Report—(1) Form. ments. Forecasts of Federal cash re- Grantees will use Standard Form 269 or quirements may be required in the 269A, Financial Status Report, to re- ‘‘Remarks’’ section of the report. port the status of funds for all non- (3) Cash in hands of subgrantees. When construction grants and for construc- considered necessary and feasible by tion grants when required in accord- the Federal agency, grantees may be ance with § 1234.41(e)(2)(iii). required to report the amount of cash
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advances in excess of three days’ needs vances, the grantee will report its out- in the hands of their subgrantees or lays to the Federal agency using contractors and to provide short nar- Standard Form 271, Outlay Report and rative explanations of actions taken by Request for Reimbursement for Con- the grantee to reduce the excess bal- struction Programs. The Federal agen- ances. cy will provide any necessary special (4) Frequency and due date. Grantees instruction. However, frequency and must submit the report no later than 15 due date shall be governed by working days following the end of each § 1234.41(b) (3) and (4). quarter. However, where an advance ei- (ii) When a construction grant is paid ther by letter of credit or electronic by Treasury check advances based on transfer of funds is authorized at an periodic requests from the grantee, the annualized rate of one million dollars advances will be requested on the form or more, the Federal agency may re- specified in § 1234.41(d). quire the report to be submitted within (iii) The Federal agency may sub- 15 working days following the end of stitute the Financial Status Report each month. specified in § 1234.41(b) for the Outlay (d) Request for advance or reimburse- Report and Request for Reimbursement ment—(1) Advance payments. Requests for Construction Programs. for Treasury check advance payments (3) Accounting basis. The accounting will be submitted on Standard Form basis for the Outlay Report and Re- 270, Request for Advance or Reimburse- quest for Reimbursement for Construc- ment. (This form will not be used for tion Programs shall be governed by drawdowns under a letter of credit, § 1234.41(b)(2). electronic funds transfer or when Treasury check advance payments are § 1234.42 Retention and access re- made to the grantee automatically on quirements for records. a predetermined basis.) (a) (1) This section ap- (2) Reimbursements. Requests for reim- Applicability. bursement under nonconstruction plies to all financial and programmatic grants will also be submitted on Stand- records, supporting documents, statis- ard Form 270. (For reimbursement re- tical records, and other records of quests under construction grants, see grantees or subgrantees which are: paragraph (e)(1) of this section.) (i) Required to be maintained by the (3) The frequency for submitting pay- terms of this part, program regulations ment requests is treated in or the grant agreement, or § 1234.41(b)(3). (ii) Otherwise reasonably considered (e) Outlay report and request for reim- as pertinent to program regulations or bursement for construction programs. (1) the grant agreement. Grants that support construction activi- (2) This section does not apply to ties paid by reimbursement method. (i) records maintained by contractors or Requests for reimbursement under con- subcontractors. For a requirement to struction grants will be submitted on place a provision concerning records in Standard Form 271, Outlay Report and certain kinds of contracts, see Request for Reimbursement for Con- § 1234.36(i)(10). struction Programs. Federal agencies (b) Length of retention period. (1) Ex- may, however, prescribe the Request cept as otherwise provided, records for Advance or Reimbursement form, must be retained for three years from specified in § 1234.41(d), instead of this the starting date specified in paragraph form. (c) of this section. (ii) The frequency for submitting re- (2) If any litigation, claim, negotia- imbursement requests is treated in tion, audit or other action involving § 1234.41(b)(3). the records has been started before the (2) Grants that support construction ac- expiration of the 3-year period, the tivities paid by letter of credit, electronic records must be retained until comple- funds transfer or Treasury check ad- tion of the action and resolution of all vance. (i) When a construction grant is issues which arise from it, or until the paid by letter of credit, electronic end of the regular 3-year period, which- funds transfer or Treasury check ad- ever is later.
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(3) To avoid duplicate recordkeeping, (i) If submitted for negotiation. If the awarding agencies may make special proposal, plan, or other computation is arrangements with grantees and sub- required to be submitted to the Federal grantees to retain any records which Government (or to the grantee) to form are continuously needed for joint use. the basis for negotiation of the rate, The awarding agency will request then the 3-year retention period for its transfer of records to its custody when supporting records starts from the date it determines that the records possess of such submission. long-term retention value. When the (ii) If not submitted for negotiation. If records are transferred to or main- the proposal, plan, or other computa- tained by the Federal agency, the 3- tion is not required to be submitted to year retention requirement is not ap- the Federal Government (or to the plicable to the grantee or subgrantee. grantee) for negotiation purposes, then (c) Starting date of retention period—(1) the 3-year retention period for the pro- General. When grant support is contin- posal plan, or computation and its sup- ued or renewed at annual or other in- porting records starts from end of the tervals, the retention period for the fiscal year (or other accounting period) records of each funding period starts on covered by the proposal, plan, or other the day the grantee or subgrantee sub- computation. mits to the awarding agency its single (d) Substitution of microfilm. Copies or last expenditure report for that pe- made by microfilming, photocopying, riod. However, if grant support is con- or similar methods may be substituted tinued or renewed quarterly, the reten- for the original records. tion period for each year’s records (e) Access to records—(1) Records of starts on the day the grantee submits grantees and subgrantees. The awarding its expenditure report for the last quar- agency and the Comptroller General of ter of the Federal fiscal year. In all the United States, or any of their au- other cases, the retention period starts thorized representatives, shall have the on the day the grantee submits its right of access to any pertinent books, final expenditure report. If an expendi- documents, papers, or other records of ture report has been waived, the reten- grantees and subgrantees which are tion period starts on the day the report pertinent to the grant, in order to would have been due. make audits, examinations, excerpts, (2) Real property and equipment and transcripts. records. The retention period for real property and equipment records starts (2) Expiration of right of access. The from the date of the disposition or re- rights of access in this section must placement or transfer at the direction not be limited to the required reten- of the awarding agency. tion period but shall last as long as the (3) Records for income transactions records are retained. after grant or subgrant support. In some (f) Restrictions on public access. The cases grantees must report income Federal Freedom of Information Act (5 after the period of grant support. U.S.C. 552) does not apply to records Where there is such a requirement, the Unless required by Federal, State, or retention period for the records per- local law, grantees and subgrantees are taining to the earning of the income not required to permit public access to starts from the end of the grantee’s fis- their records. cal year in which the income is earned. (4) Indirect cost rate proposals, cost al- § 1234.43 Enforcement. locations plans, etc. This paragraph ap- (a) Remedies for noncompliance. If a plies to the following types of docu- grantee or subgrantee materially fails ments, and their supporting records: to comply with any term of an award, indirect cost rate computations or pro- whether stated in a Federal statute or posals, cost allocation plans, and any regulation, an assurance, in a State similar accounting computations of plan or application, a notice of award, the rate at which a particular group of or elsewhere, the awarding agency may costs is chargeable (such as computer take one or more of the following ac- usage chargeback rates or composite tions, as appropriate in the cir- fringe benefit rates). cumstances:
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(1) Temporarily withhold cash pay- § 1234.44 Termination for convenience. ments pending correction of the defi- Except as provided in § 1234.43 awards ciency by the grantee or subgrantee or may be terminated in whole or in part more severe enforcement action by the only as follows: awarding agency, (a) By the awarding agency with the (2) Disallow (that is, deny both use of consent of the grantee or subgrantee in funds and matching credit for) all or which case the two parties shall agree part of the cost of the activity or ac- upon the termination conditions, in- tion not in compliance, cluding the effective date and in the (3) Wholly or partly suspend or ter- case of partial termination, the portion minate the current award for the to be terminated, or grantee’s or subgrantee’s program, (b) By the grantee or subgrantee (4) Withhold further awards for the upon written notification to the award- program, or ing agency, setting forth the reasons (5) Take other remedies that may be for such termination, the effective legally available. date, and in the case of partial termi- (b) Hearings, appeals. In taking an en- nation, the portion to be terminated. forcement action, the awarding agency However, if, in the case of a partial ter- mination, the awarding agency deter- will provide the grantee or subgrantee mines that the remaining portion of an opportunity for such hearing, ap- the award will not accomplish the pur- peal, or other administrative pro- poses for which the award was made, ceeding to which the grantee or sub- the awarding agency may terminate grantee is entitled under any statute the award in its entirety under either or regulation applicable to the action § 1234.43 or paragraph (a) of this sec- involved. tion. (c) Effects of suspension and termi- nation. Costs of grantee or subgrantee Subpart D—After-The-Grant resulting from obligations incurred by the grantee or subgrantee during a sus- Requirements pension or after termination of an § 1234.50 Closeout. award are not allowable unless the awarding agency expressly authorizes (a) General. The Federal agency will close out the award when it determines them in the notice of suspension or ter- that all applicable administrative ac- mination or subsequently. Other grant- tions and all required work of the ee or subgrantee costs during suspen- grant has been completed. sion or after termination which are (b) Reports. Within 90 days after the necessary and not reasonably avoidable expiration or termination of the grant, are allowable if: the grantee must submit all financial, (1) The costs result from obligations performance, and other reports re- which were properly incurred by the quired as a condition of the grant. grantee or subgrantee before the effec- Upon request by the grantee, Federal tive date of suspension or termination, agencies may extend this timeframe. are not in anticipation of it, and, in the These may include but are not limited case of a termination, are to: noncancellable, and, (1) Final performance or progress re- (2) The costs would be allowable if port. the award were not suspended or ex- (2) Financial Status Report (SF 269) or pired normally at the end of the fund- Outlay Report and Request for Reim- ing period in which the termination bursement for Construction Programs takes effect. (SF–271) (as applicable). (d) Relationship to debarment and sus- (3) Final request for payment (SF–270) pension. The enforcement remedies (if applicable). identified in this section, including (4) Invention disclosure (if applicable). suspension and termination, do not (5) Federally-owned property report: preclude grantee or subgrantee from In accordance with § 1234.32(f), a grant- being subject to ‘‘Debarment and Sus- ee must submit an inventory of all fed- pension’’ under E.O. 12549 (see § 1234.35). erally owned property (as distinct from
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property acquired with grant funds) for gation or the filing of any form of ap- which it is accountable and request dis- peal. position instructions from the Federal agency of property no longer needed. Subpart E—Entitlement [Reserved] (c) Cost adjustment. The Federal agen- cy will, within 90 days after receipt of reports in paragraph (b) of this section, PART 1235—LOCALLY GENERATED make upward or downward adjust- CONTRIBUTIONS IN OLDER ments to the allowable costs. AMERICAN VOLUNTEER PRO- (d) Cash adjustments. (1) The Federal GRAMS agency will make prompt payment to the grantee for allowable reimbursable Sec. costs. 1235.1 Definitions. (2) The grantee must immediately re- 1235.2 Implementation guidance. fund to the Federal agency any balance 1235.3 Statement of policy. of unobligated (unencumbered) cash APPENDIX TO PART 1235—PROCEDURES TO RE- advanced that is not authorized to be SOLVE QUESTIONED COSTS retained for use on other grants. AUTHORITY: 42 U.S.C. 5024; 42 U.S.C. 5060.
§ 1234.51 Later disallowances and ad- SOURCE: 56 FR 4732, Feb. 6, 1991, unless oth- justments. erwise noted. The closeout of a grant does not af- fect: § 1235.1 Definitions. (a) The Federal agency’s right to dis- As used in this part and in section 224 allow costs and recover funds on the of the Domestic Volunteer Service Act basis of a later audit or other review; of 1973, as amended, the following defi- (b) The grantee’s obligation to return nitions shall apply: any funds due as a result of later re- (a) Director means the Director of AC- funds, corrections, or other trans- TION. actions; (b) Locally Generated Contributions (c) Records retention as required in means all contributions generated by § 1234.42; the grantee in support of the grant, in- (d) Property management require- cluding non-ACTION Federal, State, ments in §§ 1234.31 and 1234.32; and local government and privately raised (e) Audit requirements in § 1234.26. contributions. (c) Amount Required by the Director § 1234.52 Collection of amounts due. means the proportion of the non-Fed- (a) Any funds paid to a grantee in ex- eral contribution (including in-kind cess of the amount to which the grant- contributions) for a grant or contract ee is finally determined to be entitled made under the Domestic Volunteer under the terms of the award con- Service Act of 1973, as amended, re- stitute a debt to the Federal Govern- quired by the Director in order to re- ment. If not paid within a reasonable ceive ACTION funds. This proportion is period after demand, the Federal agen- generally 10% for the Foster Grand- cy may reduce the debt by: parent Program/Senior Companion (1) Making an adminstrative offset Program (FGP/SCP) and generally 10%, against other requests for reimburse- 20% and 30% for the Retired Senior ments, Volunteer Program (RSVP) in the first, (2) Withholding advance payments second, and subsequent years respec- otherwise due to the grantee, or tively. The ‘‘amount required by the (3) Other action permitted by law. Director’’ is also called the ‘‘local (b) Except where otherwise provided match.’’ by statutes or regulations, the Federal (d) In Excess of the Amount Required agency will charge interest on an over- by the Director means of the total lo- due debt in accordance with the Fed- cally generated contributions, the eral Claims Collection Standards (4 amount over and above the percentage CFR Ch. II). The date from which inter- match (generally 10% for FGP/SCP and est is computed is not extended by liti- 10%, 20% and 30% for RSVP in the first,
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second, and subsequent years respec- gram Operations Handbook, ACTION tively) required by the Director of AC- Order 2650.2, as amended, and the Do- TION to be raised from non-ACTION mestic Volunteer Service Act of 1973, sources to support the grant. as amended. Copies of ACTION’s (e) Inconsistent with the Provisions of Grants Management and Program Op- This Act means expenditures not in sup- erations Handbook, ACTION Order port of ACTION programs, as defined 2650.2, as amended, are available at AC- by the Domestic Volunteer Service Act TION, 1100 Vermont Avenue, NW., of 1973, as amended. For example: Room 9200, Washington, DC 20525. (1) Inconsistency with the age thresh- (b) All expenditures by the grantee of old for volunteers for all Older Amer- Federal and non-Federal funds (includ- ican Volunteer Programs (OAVP); ing expenditures from excess locally (2) Inconsistency with the low in- generated contributions) in support of come test for the FGP and SCP pro- the grant are subject to ACTION au- grams; thorized audits. (3) Variations from the approved sti- (c) ACTION will not restrict the man- pend levels for the FGP and SCP pro- ner in which locally generated con- grams; tributions in excess of the required (4) Inconsistency with the prohibi- match are expended if these expendi- tion against political activity under all tures are not inconsistent with the Do- the OAVP programs; and/or (5) Unreasonable cost for a low-cost mestic Volunteer Service Act of 1973, volunteer program. as amended.
§ 1235.2 Implementation guidance. APPENDIX TO PART 1235—PROCEDURES TO RESOLVE QUESTIONED COSTS ACTION’s implementation of section 224 of the DVSA is based on funda- I. Because implementation of section 224 mental principles regarding the Con- may impact on how questioned costs are gressional intent of the Section as well treated when raised in the context of an as the Executive Branch’s policy on audit or program monitoring exercise, this Federal financial assistance to grant- appendix explains how questioned costs will be resolved. This part does not create any ees. These principles include: new auditing requirements. (a) That ACTION may not restrict II. All expenditures in support of a federal grantees’ use of excess contributions as grant may be reviewed by an authorized long as those expenditures are ‘‘not in- audit or program monitoring review. Ade- consistent’’ with the Domestic Volun- quate financial records and supporting docu- teer Service Act of 1973, as amended; mentation must be maintained for both cash (b) That grantees are to fully account and in-kind contributions. (See ACTION’s for and document expenditures of non- Grants Management Handbook for Grantees, Federal contributions, regardless of ACTION Order 2650.2) whether they are used to meet AC- III. Three definitions are important to un- TION’s local match requirement or are derstand in relation to resolution of ques- tioned costs: in excess of the requirement; and (a) The term ‘‘questioned cost’’, pursuant (c) That all expenditures in support to the Inspector General Act of 1978, as of a Federal grant can be audited by amended, 5 U.S.C. Appendix 3, means an ex- the responsible Federal Agency or by penditure of grant funds that is questioned independent auditors performing audits because of: pursuant to OMB Circulars A–128 and (1) An alleged violation of a provision of A–133. Copies of OMB Circulars A–128 the Domestic Volunteer Service Act of 1973, and A–133 are available at ACTION, as amended, or other law, regulation, or 1100 Vermont Avenue, NW., Room 9200, grant governing the expenditure of funds by Washington, DC 20525. the grantee; (2) A finding that at the time of an audit or § 1235.3 Statement of policy. program review the cost is not supported by adequate documentation; or (a) Expenditures of locally generated (3) A finding that the expenditure of funds non-Federal contributions required by for the intended purpose is unnecessary or the Director as matching funds must unreasonable. meet the requirements specified in AC- (b) The term ‘‘disallowed cost’’ means a TION’s Grant Management and Pro- questioned cost related to federal or local
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match expenditures that ACTION manage- grantee’s internal controls over the use of its ment, in a management decision, has sus- cash and in-kind contributions; and tained or agreed should not be charged to the (b) Evidence that expenditures were made Government. that are inconsistent with the Domestic Vol- (c) The term ‘‘program finding’’ means a unteer Service Act of 1973, as amended. questioned cost identified as from the grant- VII. Once program findings are determined ee’s excess locally generated contributions by ACTION program management, decisions which is referred to ACTION program man- may be made to take corrective steps, in- agement for consideration. cluding but not limited to: (a) Requiring the grantee to adhere to stat- IV. When costs are questioned from locally ed program goals and objectives as a condi- generated contributions, a distinction will be tion for future funding; made between costs as part of the local match (b) Requiring the grantee to adopt a and costs as part of the excess contribution. stronger financial management and control V. Normally, when expenditures of Federal system. or non-Federal local match funds are ques- Based on past experience, it is expected that tioned, a management decision is made to ei- corrective steps will be needed only in rare ther allow or disallow the costs. When an ex- instances. penditure of excess locally generated funds is VIII. If the grantee has raised locally gen- questioned, however, it will not be treated as erated contributions in excess of the match- a potential disallowed cost but identified as ing requirement and those expenditures are a program finding and referred to ACTION not questioned, and are consistent with the program management for resolution. DVSA of 1973, as amended, for local match VI. Program findings may include, but are expenditures, they may be substituted for not limited to: any disallowed portion of local match costs (a) Inadequate records to document the ex- in order for the grantee to meet its matching penditures and provide assurance of the requirement.
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SUBCHAPTER A—OFFICE OF HUMAN DEVELOPMENT SERVICES, GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B—THE ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES, HEAD START PROGRAM
Part Page 1301 Head Start grants administration ...... 147 1302 Policies and procedures for selection, initial fund- ing, and refunding of Head Start grantees, and for selection of replacement grantees ...... 152 1303 Appeal procedures for Head Start grantees and cur- rent or prospective delegate agencies ...... 158 1304 Program performance standards for the operation of Head Start programs by grantee and delegate agencies ...... 173 1305 Eligibility, recruitment, selection, enrollment and attendance in Head Start ...... 199 1306 Head Start staffing requirements and program op- tions ...... 205 1308 Head Start program performance standards on services for children with disabilities ...... 211 1309 Head Start facilities purchase ...... 240 1311 Head Start Fellows Program ...... 247
SUBCHAPTER C—THE ADMINISTRATION ON AGING, OLDER AMERICANS PROGRAMS 1321 Grants to State and community programs on aging 249 1326 Grants to Indian tribes for support and nutrition services ...... 264
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1328 Grants for supportive and nutritional services to older Hawaiian natives ...... 268
SUBCHAPTER D—THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN PROGRAMS 1336 Native American Programs ...... 273
SUBCHAPTER E—THE ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES, CHILD ABUSE AND NEGLECT PREVENTION AND TREATMENT PROGRAM 1340 Child abuse and neglect prevention and treatment 287
SUBCHAPTER F—THE ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES, FAMILY AND YOUTH SERVICES BUREAU 1351 Runaway and Homeless Youth Program ...... 301
SUBCHAPTER G—THE ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES, FOSTER CARE MAINTENANCE PAYMENTS, ADOPTION ASSISTANCE, AND CHILD AND FAMILY SERVICES 1355 General ...... 306 1356 Requirements applicable to Title IV–E ...... 349 1357 Requirements applicable to Title IV–B ...... 363
SUBCHAPTER H—FAMILY VIOLENCE PREVENTION AND SERVICES PROGRAMS 1370 Family violence prevention and services programs 378
SUBCHAPTER I—THE ADMINISTRATION ON DEVELOPMENTAL DISABILITIES, DEVELOPMENTAL DISABILITIES PROGRAM 1385 Requirements applicable to the developmental dis- abilities program ...... 379 1386 Formula Grant Programs ...... 382 1387 Projects of national significance ...... 400 1388 The University affiliated programs ...... 401
SUBCHAPTERS J–K [RESERVED]
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PART 1301—HEAD START GRANTS assistance (project period) is divided ADMINISTRATION for budgetary and funding purposes. Community means a city, county, a Subpart A—General multi-city or multi-county unit within a state, an Indian reservation, or any Sec. neighborhood or other geographic area 1301.1 Purpose and scope. (irrespective of boundaries or political 1301.2 Definitions. subdivisions) which provides a suitable organizational base and possesses the Subpart B—General Requirements commonality of interest needed to op- 1301.10 General. erate a Head Start program. 1301.11 Insurance and bonding. Delegate agency means a public or pri- 1301.12 Annual audit of Head Start pro- vate non-profit organization or agency grams. to which a grantee has delegated all or 1301.13 Accounting system certification. part of its responsibility for operating Subpart C—Federal Financial Assistance a Head Start program. Development and administrative costs 1301.20 Matching requirements. mean costs incurred in accordance with 1301.21 Criteria for increase in Federal fi- an approved Head Start budget which nancial assistance. do not directly relate to the provision Subpart D—Personnel and General of program component services, includ- Administration ing services to children with disabil- ities, as set forth and described in the 1301.30 General requirements. Head Start program performance 1301.31 Personnel policies. standards (45 CFR part 1304). 1301.32 Limitations on costs of development Dual benefit costs mean costs incurred and administration of a Head Start pro- in accordance with an approved Head gram. 1301.33 Delegation of program operations. Start budget which directly relate to 1301.34 Grantee appeals. both development and administrative functions and to the program compo- AUTHORITY: 42 U.S.C. 9801 et seq. nent services, including services to SOURCE: 44 FR 24061, Apr. 24, 1979, unless children with disabilities, as set forth otherwise noted. and described in the Head Start pro- gram performance standards (45 CFR Subpart A—General part 1304). Head Start Agency or ‘‘grantee’’ § 1301.1 Purpose and scope. means a local public or private non- This part establishes regulations ap- profit agency designated to operate a plicable to program administration and Head Start program by the responsible grants management for all grants HHS official, in accordance with part under the Act, including grants for 1302 of this chapter. technical assistance and training and Head Start program means a program, grants for research, demonstration, funded under the Act and carried out and pilot projects. by a Head Start agency or a delegate agency, that provides ongoing com- § 1301.2 Definitions. prehensive child development services. For the purposes of this part, unless Independent auditor means an indi- the context requires otherwise: vidual accountant or an accounting Act means title V of the Economic firm, public or private agency, associa- Opportunity Act of 1964, as amended. tion, corporation, or partnership, that Budget period means the interval of is sufficiently independent of the agen- time, into which a multi-year period of cy being audited to render objective
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and unbiased opinions, conclusions, 45 CFR part 75 Informal grant appeals pro- and judgments. cedures (Indirect cost rates and other cost Indirect costs mean those costs of a allocations) 45 CFR part 80 Nondiscrimination under Head Start agency, as approved by the programs receiving Federal assistance cognizant agency, the agency which through the Department of Health and has authority to set the grantee’s indi- Human Services—Effectuation of title VI of rect cost rate, which are not readily the Civil Rights Act of 1964 identifiable with a particular project 45 CFR part 81 Practice and procedure for or program but nevertheless are nec- hearings under part 80 essary to the general operation of the 45 CFR part 84 Nondiscrimination on the agency and the conduct of its activi- basis of handicap in Federally assisted pro- grams. ties. Major disaster means any natural dis- (b) 45 CFR part 74 is superseded as aster or catastrophe which is of such follows: severity and magnitude as to directly (1) Section 1301.11 of this subpart su- affect the capability of the Head Start persedes § 74.15 of part 74 with respect agency of agencies providing Head to insurance and bonding of private, Start programs to the damaged com- non-profit Head Start agencies; and munity to continue the programs with- (2) Section 1301.12 of this subpart su- out an increase in the Federal share persedes § 74.61 of part 74 with respect above 80 percent. to audit requirements for all Head Program costs mean costs incurred in Start agencies. accordance with an approved Head Start budget which directly relate to § 1301.11 Insurance and bonding. the provision of program component (a) Private nonprofit Head Start services, including services to children agencies and their delegate agencies with disabilities, as set forth and de- shall carry reasonable amounts of stu- scribed in the Head Start Program Per- dent accident insurance, liability in- formance Standards (45 CFR part 1304). surance for accidents of their premises, Responsible HHS official means the of- and transportation liability insurance. ficial of the Department of Health and (b) Private nonprofit Head Start and Human Services who has authority to delegate agencies shall make arrange- make grants under the Act. ments for bonding officials and em- Total approved costs mean the sum of ployees authorized to disburse program all costs of the Head Start program ap- funds. proved for a given budget period by the Administration on Children, Youth and § 1301.12 Annual audit of Head Start programs. Families, as indicated on the Financial Assistance Award. Total approved (a) An audit of the Head Start pro- costs consist of the Federal share plus gram covering the prior budget period any approved non-Federal share, in- of each Head Start agency and its dele- cluding non-Federal share above the gate agencies, if any, shall be made by statutory minimum. an independent auditor to determine: (1) Whether the agency’s financial [44 FR 24061, Apr. 24, 1979, as amended at 57 statements are accurate; FR 41884, Sept. 14, 1992] (2) Whether the agency is complying with the terms and conditions of the Subpart B—General Requirements grant; and (3) Whether appropriate financial and § 1301.10 General. administrative procedures and controls (a) Except as specified in paragraph have been installed and are operating (b) of this section, the following HHS effectively. Head Start agencies shall regulations shall apply to all grants either include delegate agency audits made under the Act: as a part of their own audits or provide 45 CFR part 16 Department grant appeals for separate independent audits of their process (except as provided in § 1301.34) delegate agencies. 45 CFR part 46 Protection of Human Sub- (b) Upon a written request showing jects necessity, the responsible HHS official 45 CFR part 74 Administration of grants may approve a period other than the
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prior budget period to be covered by training and technical assistance ac- the annual audit. tivities shall be included in the Federal (c) Unless otherwise approved by the share in determining the total ap- responsible HHS official, the report of proved costs of the program. Such fi- the audit shall be submitted to the re- nancial assistance is, therefore, subject sponsible HHS official, in the manner to the 20 percent non-Federal matching and form prescribed by him or her, requirement of this subpart. within 4 months after the prior budget period. [44 FR 24061, Apr. 24, 1979, as amended at 57 FR 41884, Sept. 14, 1992] § 1301.13 Accounting system certifi- cation. § 1301.21 Criteria for increase in Fed- eral financial assistance. (a) Upon request by the responsible The responsible HHS official, on the HHS official, each Head Start agency basis of a written application and any or its delegate agency shall submit an accounting system certification, pre- supporting evidence he or she may re- pared by an independent auditor, stat- quire, will approve financial assistance ing that the accounting system or sys- in excess of 80 percent if he or she con- tems established by the Head Start cludes that the Head Start agency has agency, or its delegate, has appropriate made a reasonable effort to meet its re- internal controls for safeguarding as- quired non-Federal share but is unable sets, checking the accuracy and reli- to do so; and the Head Start agency is ability of accounting data, and pro- located in a county: moting operating efficiency. (a) That has a personal per capita in- (b) A Head Start agency shall not come of less that $3,000 per year; or delegate any of its Head Start program (b) That has been involved in a major responsibilities to a delegate agency disaster. prior to receiving a certification that the delegate agency’s accounting sys- Subpart D—Personnel and tem meets the requirements specified General Administration in paragraph (a) of this section. § 1301.30 General requirements. Subpart C—Federal Financial Head Start agencies and delegate Assistance agencies shall conduct the Head Start program in an effective and efficient § 1301.20 Matching requirements. manner, free of political bias or family (a) Federal financial assistance favoritism. Each agency shall also pro- granted under the act for a Head Start vide reasonable public access to infor- program shall not exceed 80 percent of mation and to the agency’s records per- the total costs of the program, unless: taining to the Head Start program. (1) An amount in excess of that per- centage is approved under section § 1301.31 Personnel policies. 1301.21; or (a) Written policies. Grantee and dele- (2) The Head Start agency received gate agencies must establish and im- Federal financial assistance in excess plement written personnel policies for of 80 percent for any budget period fall- staff, that are approved by the Policy ing within fiscal year 1973 or fiscal year Council or Policy Committee and that 1974. Under the circumstances de- are made available to all grantee and scribed in clause delegate agency staff. At a minimum, (3) Of the preceding sentence, the such policies must include: agency is entitled to receive the same (1) Descriptions of each staff posi- percentage of Federal financial assist- tion, addressing, as appropriate, roles ance that it received during such budg- and responsibilities, relevant qualifica- et periods. tions, salary range, and employee bene- (b) The non-Federal share will not be fits (see 45 CFR 1304.52(c) and (d)); required to exceed 20 percent of the (2) A description of the procedures for total costs of the program. recruitment, selection and termination (c) Federal financial assistance (see paragraph (b) of this Section, Staff awarded to Head Start grantees for recruitment and selection procedures);
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(3) Standards of conduct (see 45 CFR nally adjudicated in a juvenile court or 1304.52(h)); under a youth offender law; (4) Descriptions of methods for pro- (3) Any conviction the record of viding staff and volunteers with oppor- which has been expunged under Federal tunities for training, development, and or State law; and advancement (see 45 CFR 1304.52(k), (4) Any conviction set aside under Training and development); the Federal Youth Corrections Act or (5) A description of the procedures for similar State authority. conducting staff performance apprais- (d) Probationary period. The policies als (see 45 CFR 1304.52(i), Staff perform- governing the recruitment and selec- ance appraisals); tion of staff must provide for a proba- (6) Assurances that the program is an tionary period for all new employees equal opportunity employer and does that allows time to monitor employee not discriminate on the basis of gender, performance and to examine and act on race, ethnicity, religion or disability; the results of the criminal record and checks discussed in paragraph (b) (1) of (7) A description of employee-man- this Section. agement relation procedures, including (e) Reporting child abuse or sexual those for managing employee griev- abuse. Grantee and delegate agencies ances and adverse actions. must develop a plan for responding to (b) Staff recruitment and selection pro- suspected or known child abuse or sex- cedures. (1) Before an employee is hired, ual abuse as defined in 45 CFR 1340.2(d) grantee or delegate agencies must con- whether it occurs inside or outside of duct: the program. (i) An interview with the applicant; (ii) A verification of personal and em- (The information collection requirements ployment references; and are approved by the Office of Management (iii) A State or national criminal and Budget (OMB) under OMB Control Num- record check, as required by State law ber 0970–0148 for paragraph (b).) or administrative requirement. If it is not feasible to obtain a criminal record [61 FR 57225, Nov. 5, 1996, as amended at 63 check prior to hiring, an employee FR 2313, Jan. 15, 1998] must not be considered permanent until such a check has been completed. § 1301.32 Limitations on costs of devel- (2) Grantee and delegate agencies opment and administration of a Head Start program. must require that all current and pro- spective employees sign a declaration (a) General provisions. (1) Allowable prior to employment that lists: costs for developing and administering (i) All pending and prior criminal ar- a Head Start program may not exceed rests and charges related to child sex- 15 percent of the total approved costs ual abuse and their disposition; of the program, unless the responsible (ii) Convictions related to other HHS official grants a waiver approving forms of child abuse and neglect; and a higher percentage for a specific pe- (iii) All convictions of violent felo- riod of time not to exceed twelve nies. months. (3) Grantee and delegate agencies (2) The limit of 15 percent for devel- must review each application for em- opment and administrative costs is a ployment individually in order to as- maximum. In cases where the costs for sess the relevancy of an arrest, a pend- development and administration are at ing criminal charge, or a conviction. or below 15 percent, but are judged by (c) Declaration exclusions. The dec- the responsible HHS official to be ex- laration required by paragraph (b)(2) of cessive, the grantee must eliminate ex- this section may exclude: cessive development and administra- (1) Traffic fines of $200.00 or less; tive costs. (2) Any offense, other than any of- (b) Development and administrative fense related to child abuse and/or costs. (1) Costs classified as develop- child sexual abuse or violent felonies, ment and administrative costs are committed before the prospective em- those costs related to the overall man- ployee’s 18th birthday which was fi- agement of the program. These costs
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can be in both the personnel and non- occupation, operation and maintenance personnel categories. of program component space, including (2) Grantees must charge the costs of utilities. organization-wide management func- (d) Dual benefit costs. (1) Some costs tions as development and administra- benefit both the program components tive costs. These functions include as well as development and administra- planning, coordination and direction; tive functions within the Head Start budgeting, accounting, and auditing; program. In such cases, grantees must and management of purchasing, prop- identify and allocate appropriately the erty, payroll and personnel. portion of the costs that are for devel- (3) Development and administrative opment and administration. costs include, but are not limited to, (2) Dual benefit costs include, but are the salaries of the executive director, not limited to, salaries, benefits and personnel officer, fiscal officer/book- other costs (such as travel, per diem, keeper, purchasing officer, payroll/in- and training costs) of staff who per- surance/property clerk, janitor for ad- form both program and development ministrative office space, and costs as- and administrative functions. Grantees sociated with volunteers carrying out must determine and allocate appro- administrative functions. priately the part of these costs dedi- (4) Other development and adminis- cated to development and administra- trative costs include expenses related tion. to administrative staff functions such (3) Space costs, and costs related to as the costs allocated to fringe bene- space, such as utilities, are frequently fits, travel, per diem, transportation dual benefit costs. The grantee must and training. determine and allocate appropriately (5) Development and administrative the amount or percentage of space costs include expenses related to book- dedicated to development and adminis- keeping and payroll services, audits, tration. and bonding; and, to the extent they support development and administra- (e) Relationship between development tive functions and activities, the costs and administrative costs and indirect of insurance, supplies, copy machines, costs. (1) Grantees must categorize postage, and utilities, and occupying, costs in a Head Start program as devel- operating and maintaining space. opment and administrative or program (c) Program costs. Program costs in- costs. These categorizations are sepa- clude, but are not limited to: rate from the decision to charge such (1) Personnel and non-personnel costs costs directly or indirectly. directly related to the provision of pro- (2) Grantees must charge all costs, gram component services and compo- whether program or development and nent training and transportation for administrative, either directly to the staff, parents and volunteers; project or as part of an indirect cost (2) Costs of functions directly associ- pool. ated with the delivery of program com- (f) Requirements for compliance. (1) ponent services through the direction, Head Start grantees must calculate the coordination or implementation of a percentage of their total approved specific component; costs allocated to development and ad- (3) Costs of the salaries of program ministration as a part of their budget component coordinators and compo- submission for initial funding, refund- nent staff, janitorial and transpor- ing or for a request for supplemental tation staff involved in program com- assistance in connection with a Head ponent efforts, and the costs associated Start program. These costs may be a with parent involvement and compo- part of the direct or the indirect cost nent volunteer services; and pool. (4) Expenses related to program staff (2) The Head Start grant applicant functions, such as the allocable costs of shall delineate all development and ad- fringe benefits, travel, per diem and ministrative costs in its application. transportation, training, food, center/ (3) Indirect costs which are cat- classroom supplies and equipment, par- egorized as program costs must be fully ent activities funds, insurance, and the explained in the application.
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(g) Waiver. (1) The responsible HHS that complies with the 15 percent limi- official may grant a waiver of the 15 tation. percent limitation on development and administrative costs and approve a (Information collection requirements con- higher percentage for a specific period tained in paragraphs (f) (2) and (3) of this sec- of time not to exceed twelve months. tion were approved on January 26, 1993, by The conditions under which a waiver the Office of Management and Budget under will be considered are listed below and Control Number 0980–1043). encompass those situations under [57 FR 41885, Sept. 14, 1992, as amended at 58 which development and administrative FR 26918, May 6, 1993] costs are being incurred, but the provi- sion of actual services has not begun or § 1301.33 Delegation of program oper- has been suspended. A waiver may be ations. granted when: Federal financial assistance is not (i) A new Head Start grantee or dele- available for program operations where gate agency is being established or such operations have been delegated to services are being expanded by an ex- a delegate agency by a Head Start isting Head Start grantee or delegate agency unless the delegation of pro- agency, and the delivery of component gram operations is made by a written services to children and families is de- agreement and has been approved by layed until all program development the responsible HHS official before the and planning is well underway or com- delegation is made. pleted; or (ii) Component services are disrupted § 1301.34 Grantee appeals. in an existing Head Start program due An agency receiving a grant under to circumstances not under the control the Act for technical assistance and of the grantee. training, or for a research, demonstra- (2) A Head Start grantee that esti- tion, or pilot project may appeal ad- mates that the cost of development and verse decisions in accordance with part administration will exceed 15 percent 16 of this title. Head Start agencies are of total approved costs must submit a also subject to the appeal procedures in request for a waiver that explains the part 16 except appeals by those agen- reasons for exceeding the limitation. cies for suspension, termination and This must be done as soon as the grant- denial of refunding are subject to part ee determines that it cannot comply 1303 of this title. with the 15 percent limit, regardless of where the grantee is within the grant funding cycle. PART 1302—POLICIES AND PROCE- (3) The request for the waiver must DURES FOR SELECTION, INITIAL include the period of time for which FUNDING, AND REFUNDING OF the waiver is requested. It must also HEAD START GRANTEES, AND describe the action the grantee will FOR SELECTION OF REPLACE- take to reduce its development and ad- MENT GRANTEES ministrative costs so that the grantee will be able to assure that these costs Subpart A—General will not exceed 15 percent of the total approved costs of the program after the Sec. completion of the waiver period. 1302.1 Purpose and scope. (4) If granted, the waiver and the pe- 1302.2 Definitions. riod of time for which it will be grant- 1302.3 Consultation with public officials and ed will be indicated on the Financial consumers. Assistance Award. 1302.4 Transfer of unexpended balances. (5) If a waiver requested as a part of 1302.5 Notice for show cause and hearing. a grant application for funding or re- Subpart B—Basis for Selection of Grantees funding is not approved, no Financial Assistance Award will be awarded to 1302.10 Selection among applicants. the Head Start program until the 1302.11 Selection among applicants to re- grantee resubmits a revised budget place grantee.
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Subpart C—Change in Grantee Requiring Approvable application means an ap- Amendment of Approved Application plication for a Head Start program, ei- or Replacement of Head Start Program ther as an initial application or as an application to amend an approved ap- 1302.20 Grantee to show both legal status plication governing an on-going Head and financial viability. 1302.21 Grantee shows legal status but not Start program, which, in addition to financial viability. showing that the applicant has legal 1302.22 Suspension or termination of grant- status and financial viability, provides ee which shows financial viability but for comprehensive services for children not legal status. and families and for effective and re- 1302.23 Suspension or termination of grant- sponsible administration which are in ee which shows legal status but not fi- conformity with the Act and applicable nancial viability. 1302.24 Denial of refunding of grantee. regulations, the Head Start Manual 1302.25 Control of funds of grantee sched- and Head Start policies. uled for change. Community action agency means a public or private nonprofit agency or Subpart D—Replacement of Indian Tribal organization designated as a commu- Grantees nity action agency by the Director of the Community Services Administra- 1302.30 Procedure for identification of alter- native agency. tion pursuant to section 210(a) or sec- 1302.31 Requirements of alternative agency. tion 210(d) of the Act. 1302.32 Alternative agency—prohibition. Community action program means a program operated by a community ac- AUTHORITY: 42 U.S.C. 9801 et seq. tion agency. SOURCE: 44 FR 24062, Apr. 24, 1979, unless Financial viability means the capa- otherwise noted. bility of an applicant or the continuing capability of a grantee to furnish the Subpart A—General non-Federal share of the cost of oper- ating an approvable or approved Head § 1302.1 Purpose and scope. Start program. The purpose of this part is to set Head Start grantee or grantee means a forth policies and procedures for the se- public or private nonprofit agency or lection, initial funding and refunding organization whose application to oper- of Head Start grantees and for the se- ate a Head Start program pursuant to lection of replacement grantees in the section 514 of the Act has been ap- event of the voluntary or involuntary proved by the responsible HHS official. termination, or denial of refunding, of Indian tribe means any tribe, band, Head Start programs. It particularly nation, pueblo, or other organized provides for consideration of the need group or community of Indians, includ- for selection of a replacement grantee ing any Native village described in sec- where the continuing eligibility (legal tion 3(c) of the Alaska Native Claims status) and fiscal capability (financial Settlement Act (43 U.S.C. 1602 (c)) or viability) of a grantee to operate a established pursuant to such Act (43 Head Start program is cast in doubt by U.S.C. 1601 et seq.) that is recognized as the cessation of funding under section eligible for special programs and serv- 519 of the Act or by the occurrence of ices provided by the United States to some other major change. It is in- Indians because of their status as Indi- tended that Head Start programs be ans. administered effectively and respon- Legal status means the existence of an sibly; that applicants to administer applicant or grantee as a public agency programs receive fair and equitable or organization under the law of the consideration; and that the legal rights State in which it is located, or exist- of current Head Start grantees be fully ence as a private nonprofit agency or protected. organization as a legal entity recog- nized under the law of the State in § 1302.2 Definitions. which it is located. Existence as a pri- As used in this part— vate non-profit agency or organization Act means Title V of The Economic may be established under applicable Opportunity Act of 1964, as amended. State or Federal law.
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Responsible HHS official means the of- Subpart B—Bases for Selection of ficial of the Department of Health and Grantees Human Services who has authority to make grants under the Act. § 1302.10 Selection among applicants. [44 FR 24062, Apr. 24, 1979, as amended at 63 (a) The basis for selection of appli- FR 34329, June 24, 1998] cants proposing to operate a Head Start program will be the extent to § 1302.3 Consultation with public offi- which the applicants demonstrate in cials and consumers. their application the most effective Responsible HHS officials will con- Head Start program. sult with Governors, or their represent- (b) In addition to the applicable cri- atives, appropriate local general pur- teria at section 641(d) of the Head Start Act, the criteria for selection will in- pose government officials, and Head clude: Start Policy Council and other appro- (1) The cost effectiveness of the pro- priate representatives of communities posed program; to be served on the proposed replace- (2) The qualifications and experience ment of Head Start grantees. of the applicant and the applicant’s staff in planning, organizing and pro- § 1302.4 Transfer of unexpended bal- viding comprehensive child develop- ances. ment services at the community level, When replacing a grantee, unex- including the administrative and fiscal pended balances of funds in the posses- capability of the applicant to admin- sion of such grantee in the fiscal year ister all Head Start programs carried following the fiscal year for which the out in the designated service area; funds were appropriated may be trans- (3) The quality of the proposed pro- ferred to the replacement grantee if gram as indicated by adherence to or the approved application of the re- evidence of the intent and capability to placement grantee provides for the adhere to Head Start Performance continuation of the Head Start services Standards (in 45 CFR part 1304) and without significant change to the same program policies, including the oppor- enrollees and their parents and under- tunities provided for employment of takes to offer employment to the staff target area residents and career devel- of the terminating grantee. A letter of opment for paraprofessional and other staff and provisions made for the direct concurrence in the change should be participation of parents in the plan- obtained from the terminating grantee ning, conduct and administration of whenever possible. the program; (4) The proposed program design and § 1302.5 Notice for show cause and hearing. option including the suitability of fa- cilities and equipment proposed to be (a) Except in emergency situations, used in carrying out the program, as it the responsible HHS official will not relates to community needs and as the suspend financial assistance under the applicant proposes to implement the Act unless the grantee has been given program in accordance with program an opportunity, in accordance with policies and regulations; and part 1303, subpart D, of this chapter, to (5) The need for Head Start services show cause why such action should not in the community served by the appli- be taken. cant. (b) The responsible HHS official will [57 FR 41887, Sept. 14, 1992] not terminate a grant, suspend a grant for longer than 30 days, or deny refund- § 1302.11 Selection among applicants ing to a grantee, unless the grantee has to replace grantee. been given an opportunity for a hear- The bases for making a selection ing in accordance with part 1303 of this among applicants which submit ap- chapter. provable applications to replace a
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grantee, in addition to the basis in § 1302.21 Grantee shows legal status § 1302.10 of this part, shall be: but not financial viability. (a) The extent to which provision is (a) If a grantee shows legal status but made for a continuation of services to impaired financial viability the respon- the eligible children who have been sible HHS official will entertain a participating as enrollees in the pro- timely request for amendment of the gram; grantee’s approved application which (b) The extent to which provision is restores the grantee’s financial viabil- made for continuation of services to ity either by a reduction in the pro- the target area or areas served by the gram which produces minimum disrup- program; and tion to services and functions, or by an (c) The extent to which provision is amendment which incorporates essen- made for continued employment by the tial functions and services not pre- applicant of the qualified personnel of viously funded as part of the total cost the existing program. of the Head Start program, and, there- fore, requires an increase in the Subpart C—Change in Grantee amount of the Head Start grant but Requiring Amendment of Ap- which will not result in a Federal share proved Application or Re- of the total cost of the Head Start pro- gram in excess of the percentage au- placement of Head Start Pro- thorized by the Act or applicable regu- gram lations. In considering such a request which includes an increase in the Head § 1302.20 Grantee to show both legal Start grant the responsible HHS offi- status and financial viability. cial will take into account the funds (a) Upon the occurrence of a change available to him for obligation and in the legal condition of a grantee or of whether the proposed increase is con- a substantial diminution of the finan- sistent with that distribution of Head cial resources of a grantee, or both, for Start funds which: example, such as might result from (1) Maximizes the number of childen cessation of grants to the grantee served within his area of responsibility, under section 514 of the Act, the grant- or in the case of experimental or dem- ee is required within 30 days after the onstration programs, the experimental effective date of the regulations in this or demonstration benefits to be Part or the date the grantee has notice achieved, and or knowledge of the change, whichever (2) Maintains approximately the is later, to show in writing to the satis- same distribution of Head Start pro- faction of the responsible HHS official gram funds to States as exist during that it has and will continue to have the fiscal year in which his decision is legal status and financial viability. made. Failure to make this showing may re- (b) A request for amendment will be sult in suspension, termination or de- considered to be timely if it is included nial of refunding. with the written submittal required by (b) The responsible HHS official will § 1302.20(a) of this part, submitted with- notify the grantee in writing of the de- in 30 days after receiving the notice re- cision as to the grantee’s legal status quired by § 1302.20(b) of this part, or and financial viability within 30 days submitted as a part of a timely applica- after receiving the grantee’s written tion for refunding. submittal. (c) The grantee will be notified in (c) When it is consistent with proper writing by the responsible HHS official and efficient administration, the re- within 30 days after submission of the sponsible HHS official may extend a requested amendment of the decision grantee’s program year to end on the to approve or disapprove the requested date when a change in its legal condi- amendment. If the requested amend- tion or a substantial diminution of fi- ment is disapproved the notice will nancial resources, or both, is scheduled contain a statement of the reasons for to take place. disapproval.
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§ 1302.22 Suspension or termination of cial may extend the program year in grantee which shows financial via- accordance with § 1302.20(c) of this part. bility but not legal status. (b) If the date of change coincides If a grantee fails to show that it will with the end of the program year and continue to have legal status after the the grantee does not have notice or date of change even though it may knowledge of the change prior thereto show financial viability, the grant and the grantee’s application for re- shall be suspended or terminated or re- funding for the following program year funding shall be denied as of the date of has been approved, such approval shall change. If it appears reasonable to the be subject to rescission or ratification responsible HHS official that the defi- depending upon the decision of the re- ciency in legal status will be corrected sponsible HHS official on the grantee’s within 30 days he may suspend the legal status and viability and on any grant for not to exceed 30 days after requested financial amendment sub- the date of change or the date of sub- mitted by the grantee. mission of a timely request for amend- (c) If the date of change will coincide ment. If such correction has not been made within the 30 day period the with or will come after the end of the grant shall be terminated. program year and if the responsible HHS official has prior notice thereof § 1302.23 Suspension or termination of from the grantee or other official grantee which shows legal status source such as the Community Services but not financial viability. Administration action to approve any (a) If the date of change of financial application for refunding submitted by viability precedes or will precede the the grantee shall be deferred pending end of the grantee’s program year the decision by the responsible HHS offi- grant will be suspended or terminated cial on the grantee’s legal status and on that date, or, if a request for amend- financial viability and any requested ment has been submitted under § 1302.21 amendment submitted by the grantee. of this part, upon written notice of dis- (d) When the responsible HHS official approval of the requested amendment, determines to approve a requested whichever is later. If it appears reason- amendment for refunding he will ap- able to the responsible HHS official prove it for the full term of the pro- that the deficiency in financial viabil- posed program period, if that period as ity will be corrected within 30 days he approved is no longer than a program may suspend the grant for not to ex- ceed 30 days after the date of change or year. notice of disapproval. If such correc- § 1302.25 Control of funds of grantee tion has not been made within the 30 scheduled for change. day period the grant will be termi- nated. Responsible HHS officials will place strict controls on the release of grant § 1302.24 Denial of refunding of grant- funds to grantees which are scheduled ee. for change by cessation of their grants (a) If the date of change will coincide under section 519 of the Act. Specifi- with or will come after the end of the cally, the following controls will be es- program year and the grantee has no- tablished: tice or knowledge of such change prior (a) Funds will be released on a to the end of the program year any ac- monthly basis regardless of the form of tion taken to approve the grantee’s ap- grant payment. plication for refunding for the fol- (b) Funds released each month will be lowing program year shall be subject to limited to the amount required to rescission or ratification depending cover actual disbursements during that upon the decision of the responsible period for activities authorized under HHS official on the grantee’s legal sta- tus and financial viability and on any the approved Head Start program. requested amendment submitted by the (c) The amount of funds released grantee. If the requested amendment is must be approved each month by the disapproved the responsible HHS offi- responsible HHS official.
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Subpart D—Replacement of ment grantee will be designated under Indian Tribal Grantees these regulations. (c) If the tribe appeals a termination of financial assistance or a denial of re- SOURCE: 63 FR 34329, June 24, 1998, unless otherwise noted. funding, it will, consistent with the terms of 45 CFR Part 1303, continue to § 1302.30 Procedure for identification be funded pending resolution of the ap- of alternative agency. peal. However, the responsible HHS of- (a) An Indian tribe whose Head Start ficial and the grantee will proceed with grant has been terminated, or which the steps outlined in this regulation has been denied refunding as a Head during the appeal process. Start grantee, may identify an agency (d) If the tribe does not identify an and request the responsible HHS offi- agency and request that the agency be cial to designate such agency as an al- appointed as the alternative agency, ternative agency to provide Head Start the responsible HHS official will seek a services to the tribe if: permanent replacement grantee under (1) The tribe was the only agency these regulations. that was receiving federal financial as- sistance to provide Head Start services § 1302.31 Requirements of alternative to members of the tribe; and agency. (2) The tribe would be otherwise pre- cluded from providing such services to The agency identified by the Indian its members because of the termi- tribe must establish that it meets all nation or denial of refunding. requirements established by the Head (b)(1) The responsible HHS official, Start Act and these requirements for when notifying a tribal grantee of the designation as a Head Start grantee intent to terminate financial assist- and that it is capable of conducting a ance or deny its application for refund- Head Start program. The responsible ing, must notify the grantee that it HHS official, in deciding whether to may identify an agency and request designate the proposed agency, will that the agency serve as the alter- analyze the capacity and experience of native agency in the event that the the agency according to the criteria grant is terminated or refunding de- found in section 641(d) of the Head nied. Start Act and §§ 1302.10 (b)(1) through (2) The tribe must identify the alter- (5) and 1302.11 of this part. nate agency to the responsible HHS of- ficial, in writing, within the time for § 1302.32 Alternative agency—prohibi- filing an appeal under 45 CFR Part 1303. tion. (3) The responsible HHS official will (a) No agency will be designated as notify the tribe, in writing, whether the alternative agency pursuant to this the alternative agency proposed by the subpart if the agency includes an em- tribe is found to be eligible for Head ployee who: Start funding and capable of operating (1) Served on the administrative or a Head Start program. If the alter- program staff of the Indian tribal native agency identified by the tribe is grantee, and not an eligible agency capable of oper- (2) Was responsible for a deficiency ating a Head Start program, the tribe that: will have 15 days from the date of the sending of the notification to that ef- (i) Relates to the performance stand- fect from the responsible HHS official ards or financial management stand- to identify another agency and request ards described in the Head Start Act; that the agency be designated. The re- and sponsible HHS official will notify the (ii) Was the basis for the termination tribe in writing whether the second or denial of refunding described in proposed alternate agency is found to § 1302.30 of this part. be an eligible agency capable of oper- (b) The responsible HHS official shall ating the Head Start program. determine whether an employee was re- (4) If the tribe does not identify a sponsible for a deficiency within the suitable alternative agency, a replace- meaning and context of this section.
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PART 1303—APPEAL PROCEDURES delegate agencies engaged in or want- FOR HEAD START GRANTEES AND ing to engage in the operation of Head CURRENT OR PROSPECTIVE DELE- Start programs under the Act. It pre- scribes the procedures for appeals by GATE AGENCIES current and prospective delegate agen- cies from specified actions or inaction Subpart A—General by grantees. It also provides procedures Sec. for reasonable notice and opportunity 1303.1 Purpose and application. to show cause in cases of suspension of 1303.2 Definitions. financial assistance by the responsible 1303.3 Right to attorney, attorney fees, and HHS official and for an appeal to the travel costs. Departmental Appeals Board by grant- 1303.4 Remedies. 1303.5 Service of process. ees in cases of denial of refunding, ter- 1303.6 Successor agencies and officials. mination of financial assistance, and 1303.7 Effect of failure to file or serve docu- suspension of financial assistance. ments in a timely manner. 1303.8 Waiver of requirements. § 1303.2 Definitions. As used in this part: Subpart B—Appeals by Grantees Act means the Head Start Act, 42 1303.10 Purpose. U.S.C. section 9831, et seq. 1303.11 Suspension on notice and oppor- ACYF means the Administration on tunity to show cause. Children, Youth and Families in the 1303.12 Summary suspension and oppor- Department of Health and Human tunity to show cause. 1303.13 Appeal by a grantee of a suspension Services, and includes Regional staff. continuing for more than 30 days. Agreement means either a grant or a 1303.14 Appeal by a grantee from a termi- contract between a grantee and a dele- nation of financial assistance. gate agency for the conduct of all or 1303.15 Appeal by a grantee from a denial of part of the grantee’s Head Start pro- refunding. gram. 1303.16 Conduct of hearing. Day means the 24 hour period begin- 1303.17 Time for hearing and decision. ning at 12 a.m. local time and con- Subpart C—Appeals by Current or tinuing for the next 24 hour period. It Prospective Delegate Agencies includes all calendar days unless other- wise expressly noted. 1303.20 Appeals to grantees by current or Delegate Agency means a public or prospective delegate agencies of rejec- private non-profit organization or tion of an application, failure to act on agency to which a grantee has dele- an application, or termination of a grant or contract. gated by written agreement the car- 1303.21 Procedures for appeal by current or rying out of all or part of its Head prospective delegate agencies to the re- Start program. sponsible HHS official from denials by Denial of Refunding means the refusal grantees of an application or failure to of a funding agency to fund an applica- act on an application. tion for a continuation of a Head Start 1303.22 Decision on appeal in favor of grant- program for a subsequent program year ee. when the decision is based on a deter- 1303.23 Decision on appeal in favor of the current or prospective delegate agency. mination that the grantee has improp- 1303.24 OMB control number. erly conducted its program, or is in- capable of doing so properly in the fu- AUTHORITY: 42 U.S.C. 9801 et seq. ture, or otherwise is in violation of ap- SOURCE: 57 FR 59264, Dec. 14, 1992, unless plicable law, regulations, or other poli- otherwise noted. cies. Funding Agency means the agency Subpart A—General that provides funds directly to either a grantee or a delegate agency. ACYF is § 1303.1 Purpose and application. the funding agency for a grantee, and a This part prescribes regulations grantee is the funding agency for a del- based on section 646 of the Head Start egate agency. Act, 42 U.S.C. 9841, as it applies to Grantee means the local public or pri- grantees and current or prospective vate non-profit agency which has been
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designated as a Head Start agency renewal, extension or supplemental under 42 U.S.C. 9836 and which has been award); granted financial assistance by the re- (3) Withdrawal of the unobligated sponsible HHS official to operate a balance as of the expiration of a grant; Head Start program. (4) Annulment, i.e., voiding of a grant Interim Grantee means an agency upon determination that the award was which has been appointed to operate a obtained fraudulently or was otherwise Head Start program for a period of illegal or invalid from its inception. time not to exceed one year while an Work day means any 24 hour period appeal of a denial of refunding, termi- beginning at 12 a.m. local time and nation or suspension action is pending. continuing for 24 hours. It excludes Prospective Delegate Agency means a Saturdays, Sundays, and legal holi- public or private non-profit agency or days. Any time ending on one of the ex- organization which has applied to a cluded days shall extend to 5 p.m. of grantee to serve as a delegate agency. the next full work day. Responsible HHS Official means the of- ficial who is authorized to make the § 1303.3 Right to attorney, attorney grant of financial assistance to operate fees, and travel costs. a Head Start program or his or her des- (a) All parties to proceedings under ignee. this part, including informal pro- Submittal means the date of actual re- ceedings, have the right to be rep- ceipt or the date the material was resented by an attorney. served in accordance with § 1303.5 of (1) Attorney fees may be charged to this part for providing documents or the program grant in an amount equal notices of appeals, and similar matters, to the usual and customary fees to either grantees, delegate agencies, charged in the locality. However, such prospective delegate agencies, or fees may not exceed $250.00 per day, ad- ACYF. justed annually to reflect the percent- Substantial Rejection means that a age change in the Consumer Price funding agency requires that the fund- Index for All Urban Consumers (issued ing of a current delegate agency be re- by the Bureau of Labor Statistics) be- duced to 80 percent or less of the cur- ginning one year after the effective rent level of operations for any reason date of these regulations. The grantee other than a determination that the or delegate agency may use current op- delegate agency does not need the erating funds to pay these costs. The funds to serve all the eligible persons it fees of only one attorney may be proposes to serve. charged to the program grant with re- Suspension of a grant means tem- spect to a particular dispute. Such fees porary withdrawal of the grantee’s au- may not be charged if the grantee or thority to obligate grant funds pending delegate agency has an attorney on its corrective action by the grantee. staff, or if it has a retainer agreement Termination of a grant or delegate with an attorney which fully covers agency agreement means permanent fees connected with litigation. The withdrawal of the grantee’s or delegate grantee or delegate agency shall have agency’s authority to obligate pre- the burden of establishing the usual viously awarded grant funds before and customary fees and shall furnish that authority would otherwise expire. documentation to support that deter- It also means the voluntary relinquish- mination that is satisfactory to the re- ment of that authority by the grantee sponsible HHS official. or delegate agency. Termination does (2) A grantee or delegate agency may not include: designate up to two persons to attend (1) Withdrawal of funds awarded on and participate in proceedings held the basis of the grantee’s or delegate under this Part. Travel and per diem agency’s underestimate of the unobli- costs of such persons, and of an attor- gated balance in a prior period; ney representing the grantee or dele- (2) Refusal by the funding agency to gate agency, shall not exceed those al- extend a grant or award additional lowable under Standard Governmental funds (such as refusal to make a com- Travel Regulations in effect at the peting or noncompeting continuation time of the travel.
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(b) In the event that use of program § 1303.7 Effect of failure to file or funds under this section would result serve documents in a timely man- in curtailment of program operations ner. or inability to liquidate prior obliga- (a) Whenever an appeal is not filed tions, the party so affected may apply within the time specified in these or re- to the responsible HHS official for pay- lated regulations, the potential appel- ment of these expenses. lant shall be deemed to have consented (c) The responsible HHS official, to the proposed action and to have upon being satisfied that these expend- waived all rights of appeal. itures would result in curtailment of (b) Whenever a party has failed to file program operations or inability to liq- a response or other submission within uidate prior obligations, must make the time required in these regulations, payment therefor to the affected party or by order of an appropriate HHS re- by way of reimbursement from cur- sponsible official, the party shall be rently available funds. deemed to have waived the right to file such response or submission. § 1303.4 Remedies. (c) A party fails to comply with the requisite deadlines or time frames if it The procedures established by sub- exceeds them by any amount. parts B and C of this Part shall not be (d) The time to file an appeal, re- construed as precluding ACYF from sponse, or other submission may be pursuing any other remedies author- waived in accordance with § 1303.8 of ized by law. this part.
§ 1303.5 Service of process. § 1303.8 Waiver of requirements. Whenever documents are required to (a) Any procedural requirements re- be filed or served under this part, or quired by these regulations may be notice provided under this part, cer- waived by the responsible HHS official tified mail shall be used with a return or such waiver requests may be granted receipt requested. Alternatively, any by the Departmental Appeals Board in other system may be used that pro- those cases where the Board has juris- vides proof of the date of receipt of the diction. Requests for waivers must be documents by the addressee. If this in writing and based on good cause. regulation is not complied with, and if (b) Approvals of waivers must be in a party alleges that it failed to receive writing and signed by the responsible documents allegedly sent to it, there HHS official or by the Departmental will be a rebuttable presumption that Appeals Board when it has jurisdiction. the documents or notices were not sent (c) ‘‘Good cause’’ consists of the fol- as required by this part, or as alleged lowing: by the party that failed to use the re- (1) Litigation dates cannot be changed; quired mode of service. The presump- (2) Personal emergencies pertaining tion may be rebutted only by a show- to the health of a person involved in ing supported by a preponderance of and essential to the proceeding or to a evidence that the material was in fact member of that person’s immediate submitted in a timely manner. family, spouse, parents, or siblings; (3) The complexity of the case is such § 1303.6 Successor agencies and offi- cials. that preparation of the necessary docu- ments cannot reasonably be expected Wherever reference is made to a par- to be completed within the standard ticular Federal agency, office, or offi- time frames; cial it shall be deemed to apply to any (4) Other matters beyond the control other agency, office, or official which of the party requesting the waiver, subsequently becomes responsible for such as strikes and natural disasters. administration of the program or any (d) Under no circumstances may portion of it. ‘‘good cause’’ consist of a failure to
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meet a deadline due to the oversight of show cause why assistance should not either a party or its representative. be suspended. (e) Waivers of timely filing or service (b) The responsible HHS official will shall be granted only when necessary notify the grantee as required by in the interest of fairness to all parties, § 1303.5 or by telegram that ACYF in- including the Federal agency. They tends to suspend financial assistance, will be granted sparingly as prompt in whole or in part, unless good cause resolution of disputes is a major goal of is shown why such action should not be these regulations. The responsible HHS taken. The notice will include: official or the Departmental Appeals (1) The grounds for the proposed sus- Board shall have the right, on own mo- pension; tion or on motion of a party, to require (2) The effective date of the proposed such documentation as deemed nec- suspension; essary in support of a request for a (3) Information that the grantee has waiver. the opportunity to submit written ma- (f) A request for an informal meeting terial in opposition to the intended by a delegate agency, including a pro- suspension and to meet informally spective delegate agency, may be de- with the responsible HHS official re- nied by the responsible HHS official, on garding the intended suspension; motion of the grantee or on his or her (4) Information that the written ma- own motion, if the official concludes terial must be submitted to the respon- that the written appeal fails to state sible HHS official at least seven days plausible grounds for reversing the prior to the effective date of the pro- grantee’s decision or the grantee’s fail- posed suspension and that a request for ure to act on an application. an informal meeting must be made in (g) The requirements of this section writing to the responsible HHS official may not be waived. no later than seven days after the day the notice of intention to suspend was Subpart B—Appeals by Grantees mailed to the grantee; (5) Invitation to correct the defi- § 1303.10 Purpose. ciency by voluntary action; and (a) This subpart establishes rules and (6) A copy of this subpart. procedures for the suspension of a (c) If the grantee requests an infor- grantee, denial of a grantee’s applica- mal meeting, the responsible HHS offi- tion for refunding, or termination of cial will fix a time and place for the assistance under the Act for cir- meeting. In no event will such meeting cumstances related to the particular be scheduled less than seven days after grant, such as ineffective or improper the notice of intention to suspend was use of Federal funds or for failure to sent to the grantee. comply with applicable laws, regula- (d) The responsible HHS official may tions, policies, instructions, assur- at his or her discretion extend the pe- ances, terms and conditions or, in ac- riod of time or date for making re- cordance with part 1302 of this chapter, quests or submitting material by the upon loss by the grantee of legal status grantee and will notify the grantee of or financial viability. any such extension. (b) This subpart does not apply to (e) At the time the responsible HHS any administrative action based upon official sends the notice of intention to any violation, or alleged violation, of suspend financial assistance to the title VI of the Civil Rights Act of 1964. grantee, the official will send a copy of it to any delegate agency whose activi- § 1303.11 Suspension on notice and op- ties or failures to act are a substantial portunity to show cause. cause of the proposed suspension, and (a) After receiving concurrence from will inform such delegate agency that the Commissioner, ACYF, the respon- it is entitled to submit written mate- sible HHS official may suspend finan- rial in opposition and to participate in cial assistance to a grantee in whole or the informal meeting with the respon- in part for breach or threatened breach sible HHS official if one is held. In ad- of any requirement stated in § 1303.10 dition, the responsible HHS official pursuant to notice and opportunity to may give such notice to any other
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Head Start delegate agency of the refused or the material is returned. grantee. Suspension shall not exceed 30 days un- (f) Within three days of receipt of the less the responsible HHS official and notice of intention to suspend financial the grantee agree to a continuation of assistance, the grantee shall send a the suspension for an additional period copy of such notice and a copy of this of time. If termination proceedings are subpart to all delegate agencies which initiated in accordance with § 1303.14, would be financially affected by the the suspension of financial assistance proposed suspension action. Any dele- will be rescinded. gate agency that wishes to submit written material may do so within the (i) New obligations incurred by the time stated in the notice. Any delegate grantee during the suspension period agency that wishes to participate in will be not be allowed unless the grant- the informal meeting regarding the in- ing agency expressly authorizes them tended suspension, if not otherwise af- in the notice of suspension or an forded a right to participate, may re- amendment to it. Necessary and other- quest permission to do so from the re- wise allowable costs which the grantee sponsible HHS official, who may grant could not reasonably avoid during the or deny such permission. In acting suspension period will be allowed if upon any such request from a delegate they result from obligations properly agency, the responsible HHS official incurred by the grantee before the ef- will take into account the effect of the fective date of the suspension and not proposed suspension on the particular in anticipation of suspension or termi- delegate agency, the extent to which nation. At the discretion of the grant- the meeting would become unduly ing agency, third-party in-kind con- complicated as a result of granting tributions applicable to the suspension such permission, and the extent to period may be allowed in satisfaction which the interests of the delegate of cost sharing or matching require- agency requesting such permission ap- ments. pear to be adequately represented by (j) The responsible HHS official may other participants. (g) The responsible HHS official will appoint an agency to serve as an in- consider any timely material presented terim grantee to operate the program in writing, any material presented dur- until the grantee’s suspension is lifted. ing the course of the informal meeting (k) The responsible HHS official may as well as any showing that the grantee modify the terms, conditions and na- has adequately corrected the defi- ture of the suspension or rescind the ciency which led to the suspension pro- suspension action at any time on his or ceedings. The decision of the respon- her own initiative or upon a satisfac- sible HHS official will be made within tory showing that the grantee has ade- five days after the conclusion of the in- quately corrected the deficiency which formal meeting, or, if no informal led to the suspension and that repeti- meeting is held, within five days of re- tion is not threatened. Suspension ceipt by the responsible HHS official of partly or fully rescinded may, at the written material from all concerned discretion of the responsible HHS offi- parties. If the responsible HHS official cial, be reimposed with or without fur- concludes that the grantee has failed ther proceedings, except that the total to show cause why financial assistance time of suspension may not exceed 30 should not be suspended, the official days unless termination proceedings may suspend financial assistance in are initiated in accordance with whole or in part and under such terms § 1303.14 or unless the responsible HHS and conditions as he or she specifies. (h) Notice of such suspension will be official and the grantee agree to con- promptly transmitted to the grantee as tinuation of the suspension for an addi- required in § 1303.5 of this part or by tional period of time. If termination some other means showing the date of proceedings are initiated, the suspen- receipt, and shall become effective sion of financial assistance will be re- upon delivery or on the date delivery is scinded.
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§ 1303.12 Summary suspension and op- proceedings at any time even though portunity to show cause. financial assistance of the grantee has (a) After receiving concurrence from been suspended in whole or in part. the Commissioner, ACYF, the respon- (e) Notice of summary suspension sible HHS official may suspend finan- must also be furnished by the grantee cial assistance in whole or in part to its delegate agencies within two without prior notice and an oppor- workdays of its receipt of the notice tunity to show cause if it is determined from ACYF by certified mail, return that immediate suspension is necessary receipt requested, or by any other because of a serious risk of: means showing dates of transmittal (1) Substantial injury to property or and receipt or return as undeliverable loss of project funds; or or unclaimed. Delegate agencies af- (2) Violation of a Federal, State, or fected by the summary suspension have local criminal statute; or the right to participate in the informal (3) If staff or participants’ health and meeting as set forth in paragraph (d) of safety are at risk. this section. (b) The notice of summary suspen- (f) The effective period of a summary sion will be given to the grantee as re- suspension of financial assistance may quired by § 1303.5 of this part, or by not exceed 30 days unless: some other means showing the date of (1) The conditions creating the sum- receipt, and shall become effective on mary suspension have not been cor- delivery or on the date delivery is re- rected; or fused or the material is returned un- (2) The parties agree to a continu- claimed. ation of the summary suspension for an (c) The notice must include the fol- additional period of time; or lowing items: (3) The grantee, in accordance with (1) The effective date of the suspen- paragraph (d) of this section, requests sion; an opportunity to show cause why the (2) The grounds for the suspension; summary suspension should be re- (3) The extent of the terms and condi- scinded, in which case it may remain in tions of any full or partial suspension; effect in accordance with paragraph (h) (4) A statement prohibiting the of this section; or grantee from making any new expendi- (4) Termination or denial of refund- tures or incurring any new obligations ing proceedings are initiated in accord- in connection with the suspended por- ance with § 1303.14 or § 1303.15. tion of the program; and (g) Any summary suspension that re- (5) A statement advising the grantee mains in effect for more than 30 days is that it has an opportunity to show subject to the requirements of § 1303.13 cause at an informal meeting why the of this part. The only exceptions are suspension should be rescinded. The re- where there is an agreement under quest for an informal meeting must be paragraph (f)(2) of this section, or the made by the grantee in writing to the circumstances described in paragraph responsible HHS official no later than (f)(4) or (h)(1) of this section exist. five workdays after the effective date (h)(1) If the grantee requests an op- of the notice of summary suspension as portunity to show cause why a sum- described in paragraph (b) of this sec- mary suspension should be rescinded, tion. the suspension of financial assistance (d) If the grantee requests in writing will continue in effect until the grant- the opportunity to show cause why the ee has been afforded such opportunity suspension should be rescinded, the re- and a decision has been made by the re- sponsible HHS official will fix a time sponsible HHS official. and place for an informal meeting for (2) If the suspension continues for this purpose. This meeting will be held more than 30 days, the suspension re- within five workdays after the grant- mains in effect even if it is appealed to ee’s request is received by the respon- the Departmental Appeals Board. sible HHS official. Notwithstanding the (3) Notwithstanding any other provi- provisions of this paragraph, the re- sions of these or other regulations, if a sponsible HHS official may proceed to denial of refunding occurs or a termi- deny refunding or initiate termination nation action is instituted while the
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summary suspension is in effect, the corrected the deficiency which led to suspension shall merge into the later the suspension and that the deficiency action and funding shall not be avail- will not occur again. Suspension partly able until the action is rescinded or a or fully rescinded may, at the discre- decision favorable to the grantee is tion of the responsible HHS official, be rendered. reimposed with or without further pro- (i) The responsible HHS official must ceedings. consider any timely material presented in writing, any material presented dur- § 1303.13 Appeal by a grantee of a sus- ing the course of the informal meeting, pension continuing for more than as well as any other evidence that the 30 days. grantee has adequately corrected the (a) This section applies to summary deficiency which led to the summary suspensions that are initially issued for suspension. more than 30 days and summary sus- (j) A decision must be made within pensions continued for more than 30 five work days after the conclusion of days except those identified in para- the informal meeting with the respon- graph § 1303.12(g) of this part. sible HHS official. If the responsible (b) After receiving concurrence from HHS official concludes, after consid- the Commissioner, ACYF, the respon- ering the information provided at the sible HHS official may suspend a grant informal meeting, that the grantee has for more than 30 days. A suspension failed to show cause why the suspen- may, among other bases, be imposed sion should be rescinded, the respon- for the same reasons that justify ter- sible HHS official may continue the mination of financial assistance or suspension, in whole or in part and which justify a denial of refunding of a under the terms and conditions speci- grant. fied in the notice of suspension. (c) A notice of a suspension under (k) New obligations incurred by the this section shall set forth: grantee during the suspension period (1) The reasons for the action; will not be allowed unless the granting (2) The duration of the suspension, agency expressly authorizes them in which may be indefinite; the notice of suspension or by an (3) The fact that the action may be amendment to the notice. Necessary appealed to the Departmental Appeals and otherwise allowable costs which Board and the time within which it the grantee could not reasonably avoid must be appealed. during the suspension period will be al- (d) During the period of suspension a lowed if they result from obligations grantee may not incur any valid obli- properly incurred by the grantee before gations against Federal Head Start the effective date of the suspension and grant funds, nor may any grantee ex- not in anticipation of suspension, de- penditure or provision of in-kind serv- nial of refunding or termination. ices or items of value made during the (l) The responsible HHS official may period be counted as applying toward appoint an agency to serve as an in- any required matching contribution re- terim grantee to operate the program quired of a grantee, except as otherwise until either the grantee’s summary provided in this part. suspension is lifted or a new grantee is (e) The responsible HHS official may selected in accordance with subpart B appoint an agency to serve as an in- of this part. terim grantee to operate the program (m) At the discretion of the funding until either the grantee’s suspension is agency, third-party in-kind contribu- lifted or a new grantee is selected in tions applicable to the suspension pe- accordance with subparts B and C of 45 riod may be allowed in satisfaction of CFR part 1302. cost sharing or matching requirements. (f) Any appeal to the Departmental (n) The responsible HHS official may Appeals Board must be made within modify the terms, conditions and na- five days of the grantee’s receipt of no- ture of the summary suspension or re- tice of suspension or return of the no- scind the suspension action at any tice as undeliverable, refused, or un- time upon receiving satisfactory evi- claimed. Such an appeal must be in dence that the grantee has adequately writing and it must fully set forth the
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grounds for the appeal and be accom- § 1303.14 Appeal by a grantee from a panied by all documentation that the termination of financial assistance. grantee believes is relevant and sup- (a) After receiving concurrence from portive of its position. the Commissioner, ACYF, the respon- All such appeals shall be addressed to sible HHS official may terminate fi- the Departmental Appeals Board, and nancial assistance to a grantee. Finan- the appellant will send a copy of the cial assistance may be terminated in appeal to the Commissioner, ACYF, whole or in part. and the responsible HHS official. Ap- (b) Financial assistance may be ter- peals will be governed by the Depart- minated for any or all of the following mental Appeals Board’s regulations at reasons: 45 CFR part 16, except as otherwise (1) The grantee is no longer finan- provided in the Head Start appeals reg- cially viable; ulations. Any grantee requesting a hearing as part of its appeal shall be af- (2) The grantee has lost the requisite forded one by the Departmental Ap- legal status or permits; peals Board. (3) The grantee has failed to comply (g) If a grantee is successful on its with the required fiscal or program re- appeal any costs incurred during the porting requirements applicable to period of suspension that are otherwise grantees in the Head Start program; allowable may be paid with Federal (4) The grantee has failed to timely grant funds. Moreover, any cash or in- correct one or more deficiencies as de- kind contributions of the grantee dur- fined in 45 CFR Part 1304; ing the suspension period that are oth- (5) The grantee has failed to comply erwise allowable may be counted to- with the eligibility requirements and ward meeting the grantee’s non-Fed- limitations on enrollment in the Head eral share requirement. Start program, or both; (h) If a grantee’s appeal is denied by (6) The grantee has failed to comply the Departmental Appeals Board, but with the Head Start grants administra- the grantee is subsequently restored to tion requirements set forth in 45 CFR the program because it has corrected part 1301; those conditions which warranted the (7) The grantee has failed to comply suspension, its activities during the pe- with the requirements of the Head riod of the suspension remain outside Start Act; the scope of the program. (8) The grantee is debarred from re- Federal funds may not be used to off- ceiving Federal grants or contracts; set any costs during the period, nor (9) The grantee fails to abide by any may any cash or in-kind contributions other terms and conditions of its award received during the period be used to of financial assistance, or any other ap- meet non-Federal share requirements. plicable laws, regulations, or other ap- (i) If the Federal agency institutes plicable Federal or State requirements termination proceedings during a sus- or policies. pension, or denies refunding, the two (c) A notice of termination shall set actions shall merge and the grantee forth: need not file a new appeal. Rather, the (1) The legal basis for the termi- Departmental Appeals Board will be nation under paragraph (b) of this sec- notified by the Federal agency and will tion, the factual findings on which the automatically be vested with jurisdic- termination is based or reference to tion over the termination action or the specific findings in another document denial of refunding and will, pursuant that form the basis for the termination to its rules and procedures, permit the (such as reference to item numbers in grantee to respond to the notice of ter- an on-site review report or instru- mination. In a situation where a sus- ment), and citation to any statutory pension action is merged into a termi- provisions, regulations, or policy nation action in accordance with this issuances on which ACF is relying for section, the suspension continues until its determination. there is an administrative decision by (2) The fact that the termination the Departmental Appeals Board on may be appealed within 30 days to the the grantee’s appeal. Departmental Appeals Board (with a
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copy of the appeal sent to the respon- uments, or both, but must do so within sible HHS official and the Commis- 10 days of receipt of the additional fil- sioner, ACYF) and that such appeal ings; shall be governed by 45 CFR part 16, ex- (7) Include a statement on whether cept as otherwise provided in the Head the grantee is requesting a hearing; Start appeals regulations, and that any and grantee that requests a hearing shall (8) Be filed with the Departmental be afforded one, as mandated by 42. Appeals Board and be served on the re- U.S.C. 9841. sponsible HHS official who issued the (3) That the appeal may be made only termination notice and on the Commis- by the Board of Directors of the grant- sioner of ACYF. The grantee must also ee or an official acting on behalf of serve a copy of the appeal on any dele- such Board. gate agency that would be financially (4) That, if the activities of a dele- affected at the time the grantee files gate agency are the basis, in whole or in part, for the proposed termination, its appeal. the identity of the delegate agency. (e) The Departmental Appeals Board (5) That the grantee’s appeal must sanctions with respect to a grantee’s meet the requirements set forth in failure to comply with the provisions paragraph (d) of this section. of paragraph (d) of this section are as (6) That a failure by the responsible follows: HHS official to meet the requirements (1) If in the judgment of the Depart- of this paragraph may result in the dis- mental Appeals Board a grantee has missal of the termination action with- failed to substantially comply with the out prejudice, or the remand of that ac- provisions of the preceding paragraphs tion for the purpose of reissuing it with of this section, its appeal must be dis- the necessary corrections. missed with prejudice. (d) A grantee’s appeal must: (2) If the Departmental Appeals (1) Be in writing; Board concludes that the grantee’s fail- (2) Specifically identify what factual ures are not substantial, but are con- findings are disputed; fined to one or a few specific instances, (3) Identify any legal issues raised, it shall bar the submittal of an omitted including relevant citations; document, or preclude the raising of an (4) Include an original and two copies argument or objection not timely of each document the grantee believes raised in the appeal, or deny a request is relevant and supportive of its posi- for a document or other ‘‘discovery’’ tion (unless the grantee has obtained request not timely made. permission from the Departmental Ap- (3) The sanctions set forth in para- peals Board to submit fewer copies); graphs (e)(1) and (2) of this section (5) Include any request for specifi- shall not apply if the Departmental Ap- cally identified documents the grantee wishes to obtain from ACF and a state- peals Board determines that the grant- ment of the relevance of the requested ee has shown good cause for its failure documents, and a statement that the to comply with the relevant require- grantee has attempted informally to ments. Delays in obtaining representa- obtain the documents from ACF and tion shall not constitute good cause. was unable to do so; Matters within the control of its (6) Grantees may submit additional agents and attorneys shall be deemed documents within 14 days of receipt of to be within the control of the grantee. the documentation submitted by ACF (f) (1) During a grantee’s appeal of a in response to the grantee’s appeal and termination decision, funding will con- initial submittals. The ACF response tinue until an adverse decision is ren- to the appeal and initial submittals of dered or until expiration of the then the grantee shall be filed no later than current budget period. At the end of 30 days after ACF’s receipt of the mate- the current budget period, if a decision rial. In response to such a submittal, has not been rendered, the responsible ACF may submit additional documents HHS official shall award an interim should it have any, or request dis- grant to the grantee until a decision is covery in connection with the new doc- made.
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(2) If a grantee’s funding has been (j) A grantee may waive a hearing suspended, no funding shall be avail- and submit written information and ar- able during the termination pro- gument for the record. Such material ceedings, or at any other time, unless shall be submitted within a reasonable the action is rescinded or the grantee’s period of time to be fixed by the De- appeal is successful. An interim grant- partmental Appeals Board upon the re- ee will be appointed during the appeal quest of the grantee. The failure of a period. grantee to request a hearing, or to ap- (3) If a grantee does not appeal an ad- pear at a hearing for which a date had ministrative decision to court within been set, unless excused for good cause, 30 days of its receipt of the decision, a shall be deemed a waiver of the right to replacement grantee will be imme- a hearing and consent to the making of diately sought. An interim grantee a decision on the basis of written infor- may be named, if needed, pending the mation and argument submitted by the selection of a replacement grantee. parties to the Departmental Appeals (4) An interim grantee may be sought Board. even though the grantee has appealed (k) The responsible HHS official may an administrative decision to court attempt, either personally or through a within 30 days, if the responsible HHS representative, to resolve the issues in official determines it necessary to do dispute by informal means prior to the so. Examples of circumstances that hearing. warrant an interim grantee are to pro- [57 FR 59264, Dec. 14, 1992, as amended at 61 tect children and families from harm FR 57226, Nov. 5, 1996; 65 FR 4768, Feb. 1, 2000] and Federal funds from misuse or dis- sipation or both. § 1303.15 Appeal by a grantee from a (g) If the Departmental Appeals denial of refunding. Board informs a grantee that a pro- (a) After receiving concurrence from posed termination action has been set the Commissioner, ACYF, a grantee’s down for hearing, the grantee shall, application for refunding may be de- within five days of its receipt of this nied by the responsible HHS official for notice, send a copy of it to all delegate circumstances described in paragraph agencies which would be financially af- (c) of this section. fected by the termination and to each (b) When an intention to deny a delegate agency identified in the no- grantee’s application for refunding is tice. The grantee shall send the De- arrived at on a basis to which this sub- partmental Appeals Board and the re- part applies, the responsible HHS offi- sponsible HHS official a list of all dele- cial will provide the grantee as much gate agencies notified and the dates of advance notice thereof as is reasonably notification. possible, in no event later than 30 days (h) If the responsible HHS official ini- after the receipt by ACYF of the appli- tiated termination proceedings because cation. The notice will inform the of the activities of a delegate agency, grantee that it has the opportunity for that delegate agency may participate a full and fair hearing on whether re- in the hearing as a matter of right. funding should be denied. Any other delegate agency, person, (1) Such appeals shall be governed by agency or organization that wishes to 45 CFR part 16, except as otherwise participate in the hearing may request provided in the Head Start appeals reg- permission to do so from the Depart- ulations. Any grantee which requests a mental Appeals Board. Any request for hearing shall be afforded one, as man- participation, including a request by a dated by 42 U.S.C. 9841. delegate agency, must be filed within (2) Any such appeals must be filed 30 days of the grantee’s appeal. within 30 days after the grantee re- (i) The results of the proceeding and ceives notice of the decision to deny re- any measure taken thereafter by ACYF funding. pursuant to this part shall be fully (c) Refunding of a grant may be de- binding upon the grantee and all its nied for any or all of the reasons for delegate agencies, whether or not they which a grant may be terminated, as actually participated in the hearing. set forth in § 1303.14(b) of this part.
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(d) Decisions to deny refunding shall agency, person, agency or organization be in writing, signed by the responsible that wishes to participate in the hear- HHS official, dated, and sent in compli- ing may request permission to do so ance with § 1303.5 of this part or by from the Departmental Appeals Board. telegram, or by any other mode estab- Any request for participation, includ- lishing the date sent and received by ing a request by a delegate agency, the addressee, or the date it was deter- must be filed within 30 days of the mined delivery could not be made, or grantee’s appeal. the date delivery was refused. A Notice (g) Paragraphs (i), (j), and (k) of 45 of Decision shall contain: CFR 1303.14 shall apply to appeals of (1) The legal basis for the denial of denials of refunding. refunding under paragraph (c) of this (h) The Departmental Appeals Board section, the factual findings on which sanctions with respect to a grantee’s the denial of refunding is based or ref- appeal of denial of refunding are as fol- erences to specific findings in another lows: document that form the basis for the (1) If in the judgment of the Depart- denial of refunding (such as reference mental Appeals Board a grantee has to item numbers in an on-site review failed to substantially comply with the report or instrument), and citation to provisions of the preceding paragraphs any statutory provisions, regulations of this section, its appeal must be dis- or policy issuances on which ACF is re- missed with prejudice. lying for its determination. (2) If the Departmental Appeals (2) The identity of the delegate agen- Board concludes that the grantee’s fail- cy, if the activities of that delegate ure to comply is not substantial, but is agency are the basis, in whole or in confined to one or a few specific in- part, for the proposed denial of refund- stances, it shall bar the submittal of an ing; and omitted document, or preclude the (3) If the responsible HHS official has raising of an argument or objection not initiated denial of refunding pro- timely raised in the appeal, or deny a ceedings because of the activities of a request for a document or other ‘‘dis- delegate agency, the delegate agency covery’’ request not timely made. may participate in the hearing as a (3) The sanctions set forth in para- matter of right. Any other delegate graphs (h)(1) and (2) of this section agency, person, agency or organization shall not apply if the Departmental Ap- that wishes to participate in the hear- peals Board determines that a grantee ing may request permission to do so has shown good cause for its failure to from the Departmental Appeals Board. comply with the relevant require- Any request for participation, includ- ments. Delays in obtaining representa- ing a request by a delegate agency, tion shall not constitute good cause. must be filed within 30 days of the Matters within the control of its grantee’s appeal. agents and attorneys shall be deemed (4) A statement that failure of the to be within the control of the grantee. notice of denial of refunding to meet the requirements of this paragraph [57 FR 59264, Dec. 14, 1992, as amended at 65 may result in the dismissal of the de- FR 4769, Feb. 1, 2000] nial of refunding action without preju- dice, or the remand of that action for § 1303.16 Conduct of hearing. the purpose of reissuing it with the (a) The presiding officer shall con- necessary corrections. duct a full and fair hearing, avoid (e) The appeal may be made only by delay, maintain order, and make a suf- the Board of Directors of the grantee ficient record of the facts and issues. or by an official acting on behalf of To accomplish these ends, the pre- such Board. siding officer shall have all powers au- (f) If the responsible HHS official has thorized by law, and may make all pro- initiated denial of refunding pro- cedural and evidentiary rulings nec- ceedings because of the activities of a essary for the conduct of the hearing. delegate agency, that delegate agency The hearing shall be open to the public may participate in the hearing as a unless the presiding officer for good matter of right. Any other delegate cause shown otherwise determines.
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(b) Communications outside the give notice of his or her decision to the record are prohibited as provided by 45 applicant, the grantee, and ACYF, and, CFR 16.17. in the case of denial, a brief statement (c) Both ACYF and the grantee are of the reasons therefor. Even if pre- entitled to present their case by oral or viously denied, the presiding officer documentary evidence, to submit re- may subsequently permit such partici- buttal evidence and to conduct such ex- pation if, in his or her opinion, it is amination and cross-examination as warranted by subsequent cir- may be required for a full and true dis- cumstances. If participation is granted, closure of all facts bearing on the the presiding officer shall notify all issues. The issues shall be those stated parties of that fact and may, in appro- in the notice required to be filed by priate cases, include in the notification paragraph (g) of this section, those a brief statement of the issues as to stipulated in a prehearing conference which participation is permitted. or those agreed to by the parties. (h) The Departmental Appeals Board (d) Prepared written direct testimony will send the responsible HHS official, will be used in appeals under this part the grantee and any other party a no- in lieu of oral direct testimony. When tice which states the time, place, na- the parties submit prepared written di- ture of the hearing, and the legal au- rect testimony, witnesses must be thority and jurisdiction under which available at the hearing for cross-ex- the hearing is to be held. The notice amination and redirect examination. If will also identify with reasonable spec- a party can show substantial hardship ificity and ACYF requirements which in using prepared written direct testi- the grantee is alleged to have violated. mony, the Departmental Appeals Board The notice will be served and filed not may exempt it from the requirement. later than ten work days prior to the However, such hardship must be more hearing. than difficulty in doing so, and it must [57 FR 59264, Dec. 14, 1992, as amended at 65 be shown with respect to each witness. FR 4769, Feb. 1, 2000] (e) In addition to ACYF, the grantee, and any delegate agencies which have a § 1303.17 Time for hearing and deci- right to appear, the presiding officer sion. may permit the participation in the (a) Any hearing on an appeal by a proceedings of such persons or organi- grantee from a notice of suspension, zations as deemed necessary for a prop- termination, or denial of refunding er determination of the issues involved. must be commenced no later than 120 Such participation may be limited to days from the date the grantee’s appeal those issues or activities which the is received by the Departmental Ap- presiding officer believes will meet the peals Board. The final decision in an needs of the proceeding, and may be appeal whether or not there is a hear- limited to the filing of written mate- ing must be rendered not later than 60 rial. days after the closing of the record, (f) Any person or organization that i.e., 60 days after the Board receives wishes to participate in a proceeding the final authorized submission in the may apply for permission to do so from case. the Departmental Appeals Board. This (b) All hearings will be conducted ex- application must be made within 30 peditiously and without undue delay or days of the grantee’s appeal in the case postponement. of the appeal of termination or denial (c) The time periods established in of refunding, and as soon as possible paragraph(a) of this section may be ex- after the notice of suspension has been tended if: received by the grantee. It must state (1) The parties jointly request a stay the applicant’s interest in the pro- to engage in settlement negotiations, ceeding, the evidence or arguments the (2) Either party requests summary applicant intends to contribute, and disposition; or the necessity for the introduction of (3) The Departmental Appeals Board such evidence or arguments. determines that the Board is unable to (g) The presiding officer shall permit hold a hearing or render its decision or deny such participation and shall within the specified time period for
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reasons beyond the control of either peal must fully set forth the grounds party or the Board. for the appeal. (e) A grantee may not reject the ap- [65 FR 4770, Feb. 1, 2000] plication or terminate the operations of a delegate agency on the basis of de- Subpart C—Appeals by Current or fects or deficiencies in the application Prospective Delegate Agencies or in the operation of the program without first: § 1303.20 Appeals to grantees by cur- (1) Notifying the delegate agency of rent or prospective delegate agen- the defects and deficiencies; cies of rejection of an application, (2) Providing, or providing for, tech- failure to act on an application or nical assistance so that defects and de- termination of a grant or contract. ficiencies can be corrected by the dele- (a) A grantee must give prompt, fair gate agency; and and adequate consideration to applica- (3) Giving the delegate agency the op- tions submitted by current or prospec- portunity to make appropriate correc- tive delegate agencies to operate Head tions. Start programs. The failure of the (f) An appeal filed pursuant to a grantee to act within 30 days after re- grantee failing to act on a current or ceiving the application is deemed to be prospective delegate agency’s applica- a rejection of the application. tion within a 30 day period need only (b) A grantee must notify an appli- contain a copy of the application, the cant in writing within 30 days after re- date filed, and any proof of the date the ceiving the application of its decision grantee received the application. The to either accept or to wholly or sub- grantee shall have five days in which stantially reject it. If the decision is to to respond to the appeal. wholly or substantially reject the ap- (g) Failure to appeal to the grantee plication, the notice shall contain a regarding its decision to reject an ap- statement of the reasons for the deci- plication, terminate an agreement, or sion and a statement that the appli- failure to act on an application shall cant has a right to appeal the decision bar any appeal to the responsible HHS within ten work days after receipt of official. the notice. If a grantee fails to act on § 1303.21 Procedures for appeal by the application by the end of the 30 day current or prospective delegate period which grantees have to review agencies to the responsible HHS of- applications, the current or prospective ficial from denials by grantees of an delegate agency may appeal to the application or failure to act on an grantee, in writing, within 15 work application. days of the end of the 30 day grantee (a) Any current or prospective dele- review period. gate agency that is dissatisfied with (c) A grantee must notify a delegate the decision of a grantee rendered agency in writing of its decision to ter- under § 1303.20 may appeal to the re- minate its agreement with the delegate sponsible HHS official whose decision agency, explaining the reasons for its is final and not appealable to the Com- decision and that the delegate agency missioner, ACYF. Such an appeal must has the right to appeal the decision to be in writing and it must fully set the grantee within ten work days after forth the grounds for the appeal and be receipt of the notice. accompanied by all documentation (d) The grantee has 20 days to review that the current or prospective dele- the written appeal and issue its deci- gate agency believes is relevant and sion. If the grantee sustains its earlier supportive of this position, including termination of an award or its rejec- all written material or documentation tion of an application, the current or submitted to the grantee under the prospective delegate agency then may procedures set forth in § 1303.20, as well appeal, in writing, to the responsible as a copy of any decision rendered by HHS official. The appeal must be sub- the grantee. A copy of the appeal and mitted to the responsible HHS official all material filed with the responsible within ten work days after the receipt HHS official must be simultaneously of the grantee’s final decision. The ap- served on the grantee.
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(b) In providing the information re- official determines that such a meeting quired by paragraph (a) of this section, would be beneficial to the proper reso- delegate agencies must set forth: lution of the appeal. Such meetings (1) Whether, when and how the grant- may be conducted by conference call. ee advised the delegate agency of al- (2) An informal meeting must be re- leged defects and deficiencies in the quested by the current or prospective delegate agency’s application or in the delegate agency at the time of the ap- operation of its program prior to the peal. In addition, the grantee may re- grantee’s rejection or termination no- quest an informal meeting with the re- tice; sponsible HHS official. If none of the (2) Whether the grantee provided the parties requests an informal meeting, delegate agency reasonable oppor- the responsible HHS official may hold tunity to correct the defects and defi- such a meeting if he or she believes it ciencies, the details of the opportunity would be beneficial for a proper resolu- that was given and whether or not the tion of the dispute. Both the grantee grantee provided or provided for tech- and the current or prospective delegate nical advice, consultation, or assist- agency may attend any informal meet- ance to the current delegate agency ing concerning the appeal. If a party concerning the correction of the de- wishes to oppose a request for a meet- fects and deficiencies; ing it must serve its opposition on the (3) What steps or measures, if any, responsible HHS official and any other were undertaken by the delegate agen- party within five work days of its re- cy to correct any defects or defi- ceipt of the request. ciencies; (f) A grantee’s response to appeals by (4) When and how the grantee noti- current or prospective delegate agen- fied the delegate agency of its decision; cies must be submitted to the respon- (5) Whether the grantee told the dele- sible HHS official within ten work days gate agency the reasons for its decision of receipt of the materials served on it and, if so, how such reasons were com- by the current or prospective delegate municated to the delegate agency and agency in accordance with paragraph what they were; (a) of this section. The grantee must (6) If it is the delegate agency’s posi- serve a copy of its response on the cur- tion that the grantee acted arbitrarily rent or prospective delegate agency. or capriciously, the reasons why the (g) The responsible HHS official shall delegate agency takes this position; notify the current or prospective dele- and gate agency and the grantee whether (7) Any other facts and cir- or not an informal meeting will be cumstances which the delegate agency held. If an informal meeting is held, it believes supports its appeal. must be held within ten work days (c) The grantee may submit a written after the notice by the responsible HHS response to the appeal of a prospective official is mailed. The responsible HHS delegate agency. It may also submit official must designate either the Re- additional information which it be- gional Office or the place where the lieves is relevant and supportive of its current or prospective delegate agency position. or grantee is located for holding the in- (d) In the case of an appeal by a dele- formal meeting. gate agency, the grantee must submit (h) If an informal meeting is not a written statement to the responsible held, each party shall have an oppor- HHS official responding to the items tunity to reply in writing to the writ- specified in paragraph (b) of this sec- ten statement submitted by the other tion. The grantee must include infor- party. The written reply must be sub- mation that explains why it acted mitted to the responsible HHS official properly in arriving at its decision or within five work days after the notifi- in failing to act, and any other facts cation required by paragraph (g) of this and circumstances which the grantee section. If a meeting is not to be held, believes supports its position. notice of that fact shall be served on (e)(1) The responsible HHS official the parties within five work days of the may meet informally with the current receipt of a timely response to such a or prospective delegate agency if such request or the expiration of the time
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for submitting a response to such a re- issues which require further develop- quest. ment before a final decision can be (i) In deciding an appeal under this made. The grantee’s reconsideration section, the responsible HHS official and decision must be made in accord- will arrive at his or her decision by ance with all applicable requirements considering: of this part as well as other relevant (1) The material submitted in writing regulations, statutory provisions, and and the information presented at any program issuances. The grantee must informal meeting; issue its decision on remand in writing (2) The application of the current or to both the current or prospective dele- prospective delegate agency; gate agency and the responsible HHS (3) His or her knowledge of the grant- official within 15 workdays after the ee’s program as well as any evaluations date of receipt of the remand. of his or her staff about the grantee’s (b) If the current or prospective dele- program and current or prospective gate agency is dissatisfied with the delegate agency’s application and prior grantee’s decision on remand, it may performance; and appeal to the responsible HHS official (4) Any other evidence deemed rel- within five workdays of its receipt of evant by the responsible HHS official. that decision. Any such appeal must comply with the requirements of § 1303.22 Decision on appeal in favor § 1303.21 of this part. of grantee. (c) If the responsible HHS official (a) If the responsible HHS official finds that the grantee’s decision on re- finds in favor of the grantee, the appeal mand is incorrect or if the grantee fails will be dismissed unless there is cause to issue its decision within 15 work to remand the matter back to the days, the responsible HHS official will grantee. entertain an application by the current (b) The grantee’s decision will be sus- or prospective delegate agency for a di- tained unless it is determined by the rect grant. responsible HHS official that the (1) If such an application is approved, grantee acted arbitrarily, capriciously, there will be a commensurate reduc- or otherwise contrary to law, regula- tion in the level of funding of the tion, or other applicable requirements. grantee and whatever other action is (c) The decision will be made within deemed appropriate in the cir- ten workdays after the informal meet- cumstances. Such reduction in funding ing. The decision, including a state- shall not be considered a termination ment of the reasons therefor, will be in or denial of refunding and may not be writing, and will be served on the par- appealed under this part. ties within five workdays from the date (2) If such an application is not ap- of the decision by the responsible HHS proved, the responsible HHS official official. will take whatever action he or she (d) If the decision is made on the deems appropriate under the cir- basis of written materials only, the de- cumstances. cision will be made within five work- (d) If, without fault on the part of a days of the receipt of the materials. delegate agency, its operating funds The decision will be served on the par- are exhausted before its appeal has ties no more than five days after it is been decided, the grantee will furnish made. sufficient funds for the maintenance of the delegate agency’s current level of § 1303.23 Decision on appeal in favor operations until a final administrative of the current or prospective dele- decision has been reached. gate agency. (e) If the responsible HHS official (a) The responsible HHS official will sustains the decision of the grantee fol- remand the rejection of an application lowing remand, he or she shall notify or termination of an agreement to the the parties of the fact within 15 work grantee for prompt reconsideration and days of the receipt of final submittal of decision if the responsible HHS offi- documents, or of the conclusion of any cial’s decision does not sustain the meeting between the official and the grantee’s decision, and if there are parties, whichever is later.
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§ 1303.24 OMB control number. Subpart A—General The collection of information re- § 1304.1 Purpose and scope. quirements in sections 1303.10 through 1303.23 of this part were approved on This part describes regulations im- January 22, 1993, by the Office of Man- plementing sections 641A, 644(a) and agement and Budget and assigned OMB (c), and 645A(h) of the Head Start Act, as amended (42 U.S.C. 9801 et seq.). Sec- control number 0980–0242. tion 641A, paragraph (a)(3)(C) directs [58 FR 13019, Mar. 9, 1993] the Secretary of Health and Human Services to review and revise, as nec- PART 1304—PROGRAM PERFORM- essary, the Head Start Program Per- formance Standards in effect under ANCE STANDARDS FOR THE OP- prior law. This paragraph further pro- ERATION OF HEAD START PRO- vides that any revisions should not re- GRAMS BY GRANTEE AND DELE- sult in an elimination or reduction of GATE AGENCIES requirements regarding the scope or types of Head Start services to a level Subpart A—General below that of the requirements in ef- fect on November 2, 1978. Section Sec. 641A(a) directs the Secretary to issue 1304.1 Purpose and scope. regulations establishing performance 1304.2 Effective date. standards and minimum requirements 1304.3 Definitions. with respect to health, education, par- ent involvement, nutrition, social, Subpart B—Early Childhood Development transition, and other Head Start serv- and Health Services ices as well as administrative and fi- 1304.20 Child health and developmental nancial management, facilities, and services. other appropriate program areas. Sec- 1304.21 Education and early childhood devel- tions 644(a) and (c) require the issuance opment. of regulations setting standards for the 1304.22 Child health and safety. organization, management, and admin- 1304.23 Child nutrition. istration of Head Start programs. Sec- 1304.24 Child mental health. tion 645A(h) requires that the Sec- retary develop and publish performance Subpart C—Family and Community standards for the newly authorized pro- Partnerships gram for low-income pregnant women and families with infants and toddlers, 1304.40 Family partnerships. entitled ‘‘Early Head Start.’’ The fol- 1304.41 Community partnerships. lowing regulations respond to these provisions in the Head Start Act, as Subpart D—Program Design and amended, for new or revised Head Start Management Program Performance Standards. 1304.50 Program governance. These new regulations define standards 1304.51 Management systems and proce- and minimum requirements for the en- dures. tire range of Early Head Start and 1304.52 Human resources management. Head Start services, including those 1304.53 Facilities, materials, and equip- specified in the authorizing legislation. ment. They are applicable to both Head Start and Early Head Start programs, with Subpart E—Implementation and the exceptions noted, and are to be Enforcement used in conjunction with the regula- tions at 45 CFR parts 1301, 1302, 1303, 1304.60 Deficiencies and quality improve- 1305, 1306, and 1308. ment plans. 1304.61 Noncompliance. § 1304.2 Effective date. AUTHORITY: 42 U.S.C. 9801 et seq. Early Head Start and Head Start SOURCE: 61 FR 57210, Nov. 5, 1996, unless grantee and delegate agencies must otherwise noted. comply with these requirements on January 1, 1998. Nothing in this part
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prohibits grantee or delegate agencies (5) Curriculum means a written plan from voluntarily complying with these that includes: regulations prior to the effective date. (i) The goals for children’s develop- ment and learning; § 1304.3 Definitions. (ii) The experiences through which (a) As used in this part: they will achieve these goals; (1) Assessment means the ongoing pro- (iii) What staff and parents do to help cedures used by appropriate qualified children achieve these goals; and personnel throughout the period of a (iv) The materials needed to support child’s eligibility to identify: the implementation of the curriculum. (i) The child’s unique strengths and The curriculum is consistent with the needs and the services appropriate to meet those needs; and Head Start Program Performance (ii) The resources, priorities, and con- Standards and is based on sound child cerns of the family and the supports development principles about how chil- and services necessary to enhance the dren grow and learn. family’s capacity to meet the develop- (6) Deficiency means: mental needs of their child. (i) An area or areas of performance in (2) Children with disabilities means, for which an Early Head Start or Head children ages 3 to 5, those with mental Start grantee agency is not in compli- retardation, hearing impairments in- ance with State or Federal require- cluding deafness, speech or language ments, including but not limited to, impairments, visual impairments in- the Head Start Act or one or more of cluding blindness, serious emotional the regulations under parts 1301, 1304, disturbance, orthopedic impairments, 1305, 1306 or 1308 of this title and which autism, traumatic brain injury, other involves: health impairments, specific learning (A) A threat to the health, safety, or disabilities, deaf-blindness, or multiple civil rights of children or staff; disabilities, and who, by reason there- (B) A denial to parents of the exer- of, need special education and related cise of their full roles and responsibil- services. The term ‘‘children with dis- abilities’’ for children aged 3 to 5, in- ities related to program governance; clusive, may, at a State’s discretion, (C) A failure to perform substantially include children experiencing develop- the requirements related to Early mental delays, as defined by the State Childhood Development and Health and as measured by appropriate diag- Services, Family and Community Part- nostic instruments and procedures, in nerships, or Program Design and Man- one or more of the following areas: agement; or Physical development, cognitive devel- (D) The misuse of Head Start grant opment, communication development, funds. social or emotional development, or (ii) The loss of legal status or finan- adaptive development; and who, by rea- cial viability, as defined in part 1302 of son thereof, need special education and this title, loss of permits, debarment related services. Infants and toddlers from receiving Federal grants or con- with disabilities are those from birth tracts or the improper use of Federal to three years, as identified under the funds; or Part H Program (Individuals with Dis- (iii) Any other violation of Federal or abilities Education Act) in their State. State requirements including, but not (3) Collaboration and collaborative rela- limited to, the Head Start Act or one tionships: (i) With other agencies, means plan- or more of the regulations under parts ning and working with them in order 1301, 1304, 1305, 1306 or 1308 of this title, to improve, share and augment serv- and which the grantee has shown an ices, staff, information and funds; and unwillingness or inability to correct (ii) With parents, means working in within the period specified by the re- partnership with them. sponsible HHS official, of which the re- (4) Contagious means capable of being sponsible HHS official has given the transmitted from one person to an- grantee written notice of pursuant to other. section 1304.61.
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(7) Developmentally appropriate means (16) Program attendance means the ac- any behavior or experience that is ap- tual presence and participation in the propriate for the age span of the chil- program of a child enrolled in an Early dren and is implemented with atten- Head Start or Head Start program. tion to the different needs, interests, (17) Referral means directing an Early and developmental levels and cultural Head Start or Head Start child or fam- backgrounds of individual children. ily member(s) to an appropriate source (8) Early Head Start program means a or resource for help, treatment or in- program that provides low-income formation. pregnant women and families with (18) Staff means paid adults who have children from birth to age 3 with fam- responsibilities related to children and ily-centered services that facilitate their families who are enrolled in child development, support parental Early Head Start or Head Start pro- roles, and promote self-sufficiency. grams. (9) Family means for the purposes of (19) Teacher means an adult who has the regulations in this part all persons: direct responsibility for the care and (i) Living in the same household who development of children from birth to 5 are: years of age in a center-based setting. (A) Supported by the income of the (20) Volunteer means an unpaid person parent(s) or guardian(s) of the child en- who is trained to assist in imple- rolling or participating in the program; menting ongoing program activities on or a regular basis under the supervision of (B) Related to the child by blood, a staff person in areas such as health, marriage, or adoption; or education, transportation, nutrition, (ii) Related to the child enrolling or and management. participating in the program as parents (b) In addition to the definitions in or siblings, by blood, marriage, or this section, the definitions as set forth adoption. in 45 CFR 1301.2, 1302.2, 1303.2, 1305.2, (10) Guardian means a person legally 1306.3, and 1308.3 also apply, as used in responsible for a child. this part. (11) Health means medical, dental, and mental well-being. Subpart B—Early Childhood (12) Home visitor means the staff Development and Health Services member in the home-based program op- tion assigned to work with parents to § 1304.20 Child health and develop- provide comprehensive services to chil- mental services. dren and their families through home (a) Determining child health status. (1) visits and group socialization activi- In collaboration with the parents and ties. as quickly as possible, but no later (13) Individualized Family Service Plan than 90 calendar days (with the excep- (IFSP) means a written plan for pro- tion noted in paragraph (a)(2) of this viding early intervention services to a section) from the child’s entry into the child eligible under Part H of the Indi- program (for the purposes of 45 CFR viduals with Disabilities Education Act 1304.20(a)(1), 45 CFR 1304.20(a)(2), and 45 (IDEA). (See 34 CFR 303.340–303.346 for CFR 1304.20(b)(1), ‘‘entry’’ means the regulations concerning IFSPs.) first day that Early Head Start or Head (14) Minimum requirements means that Start services are provided to the each Early Head Start and Head Start child), grantee and delegate agencies grantee must demonstrate a level of must: compliance with Federal and State re- (i) Make a determination as to quirements such that no deficiency, as whether or not each child has an ongo- defined in this part, exists in its pro- ing source of continuous, accessible gram. health care. If a child does not have a (15) Policy group means the formal source of ongoing health care, grantee group of parents and community rep- and delegate agencies must assist the resentatives required to be established parents in accessing a source of care; by the agency to assist in decisions (ii) Obtain from a health care profes- about the planning and operation of sional a determination as to whether the program. the child is up-to-date on a schedule of
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age appropriate preventive and pri- cognitive, perceptual, and emotional mary health care which includes med- skills (see 45 CFR 1308.6(b)(3) for addi- ical, dental and mental health. Such a tional information). To the greatest ex- schedule must incorporate the require- tent possible, these screening proce- ments for a schedule of well child care dures must be sensitive to the child’s utilized by the Early and Periodic cultural background. Screening, Diagnosis, and Treatment (2) Grantee and delegate agencies (EPSDT) program of the Medicaid must obtain direct guidance from a agency of the State in which they oper- mental health or child development ate, and the latest immunization rec- professional on how to use the findings ommendations issued by the Centers to address identified needs. for Disease Control and Prevention, as (3) Grantee and delegate agencies well as any additional recommenda- must utilize multiple sources of infor- tions from the local Health Services mation on all aspects of each child’s Advisory Committee that are based on development and behavior, including prevalent community health problems: input from family members, teachers, (A) For children who are not up-to- and other relevant staff who are famil- date on an age-appropriate schedule of iar with the child’s typical behavior. well child care, grantee and delegate (c) Extended follow-up and treatment. agencies must assist parents in making (1) Grantee and delegate agencies must the necessary arrangements to bring establish a system of ongoing commu- the child up-to-date; nication with the parents of children (B) For children who are up-to-date with identified health needs to facili- on an age-appropriate schedule of well tate the implementation of the follow- child care, grantee and delegate agen- up plan. cies must ensure that they continue to (2) Grantee and delegate agencies follow the recommended schedule of must provide assistance to the parents, well child care; and as needed, to enable them to learn how (C) Grantee and delegate agencies to obtain any prescribed medications, must establish procedures to track the aids or equipment for medical and den- provision of health care services. tal conditions. (iii) Obtain or arrange further diag- (3) Dental follow-up and treatment nostic testing, examination, and treat- must include: ment by an appropriate licensed or cer- (i) Fluoride supplements and topical tified professional for each child with fluoride treatments as recommended an observable, known or suspected by dental professionals in communities health or developmental problem; and where a lack of adequate fluoride levels (iv) Develop and implement a follow- has been determined or for every child up plan for any condition identified in with moderate to severe tooth decay; 45 CFR 1304.20(a)(1)(ii) and (iii) so that and any needed treatment has begun. (ii) Other necessary preventive meas- (2) Grantee and delegate agencies op- ures and further dental treatment as erating programs of shorter durations recommended by the dental profes- (90 days or less) must complete the sional. above processes and those in 45 CFR (4) Grantee and delegate agencies 1304.20(b)(1) within 30 calendar days must assist with the provision of re- from the child’s entry into the pro- lated services addressing health con- gram. cerns in accordance with the Individ- (b) Screening for developmental, sen- ualized Education Program (IEP) and sory, and behavioral concerns. (1) In col- the Individualized Family Service Plan laboration with each child’s parent, (IFSP). and within 45 calendar days of the (5) Early Head Start and Head Start child’s entry into the program, grantee funds may be used for professional and delegate agencies must perform or medical and dental services when no obtain linguistically and age appro- other source of funding is available. priate screening procedures to identify When Early Head Start or Head Start concerns regarding a child’s develop- funds are used for such services, grant- mental, sensory (visual and auditory), ee and delegate agencies must have behavioral, motor, language, social, written documentation of their efforts
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to access other available sources of tion for health services, grantee and funding. delegate agencies must maintain writ- (d) Ongoing care. In addition to assur- ten documentation of the refusal. ing children’s participation in a sched- (f) Individualization of the program. (1) ule of well child care, as described in Grantee and delegate agencies must § 1304.20(a) of this part, grantee and del- use the information from the screening egate agencies must implement ongo- for developmental, sensory, and behav- ing procedures by which Early Head ioral concerns, the ongoing observa- Start and Head Start staff can identify tions, medical and dental evaluations any new or recurring medical, dental, and treatments, and insights from the or developmental concerns so that they child’s parents to help staff and par- may quickly make appropriate refer- ents determine how the program can rals. These procedures must include: best respond to each child’s individual periodic observations and recordings, as appropriate, of individual children’s characteristics, strengths and needs. developmental progress, changes in (2) To support individualization for physical appearance (e.g., signs of in- children with disabilities in their pro- jury or illness) and emotional and be- grams, grantee and delegate agencies havioral patterns. In addition, these must assure that: procedures must include observations (i) Services for infants and toddlers from parents and staff. with disabilities and their families sup- (e) Involving parents. In conducting port the attainment of the expected the process, as described in §§ 1304.20 outcomes contained in the Individual- (a), (b), and (c), and in making all pos- ized Family Service Plan (IFSP) for sible efforts to ensure that each child children identified under the infants is enrolled in and receiving appropriate and toddlers with disabilities program health care services, grantee and dele- (Part H) of the Individuals with Dis- gate agencies must: abilities Education Act, as imple- (1) Consult with parents immediately mented by their State or Tribal gov- when child health or developmental ernment; problems are suspected or identified; (ii) Enrolled families with infants (2) Familiarize parents with the use and toddlers suspected of having a dis- of and rationale for all health and de- ability are promptly referred to the velopmental procedures administered local early intervention agency des- through the program or by contract or ignated by the State Part H plan to co- agreement, and obtain advance parent ordinate any needed evaluations, deter- or guardian authorization for such pro- cedures. Grantee and delegate agencies mine eligibility for Part H services, also must ensure that the results of di- and coordinate the development of an agnostic and treatment procedures and IFSP for children determined to be eli- ongoing care are shared with and un- gible under the guidelines of that derstood by the parents; State’s program. Grantee and delegate (3) Talk with parents about how to agencies must support parent partici- familiarize their children in a develop- pation in the evaluation and IFSP de- mentally appropriate way and in ad- velopment process for infants and tod- vance about all of the procedures they dlers enrolled in their program; will receive while enrolled in the pro- (iii) They participate in and support gram; efforts for a smooth and effective tran- (4) Assist parents in accordance with sition for children who, at age three, 45 CFR 1304.40(f)(2) (i) and (ii) to enroll will need to be considered for services and participate in a system of ongoing for preschool age children with disabil- family health care and encourage par- ities; and ents to be active partners in their chil- (iv) They participate in the develop- dren’s health care process; and ment and implementation of the Indi- (5) If a parent or other legally respon- vidualized Education Program (IEP) sible adult refuses to give authoriza-
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for preschool age children with disabil- and education (see 45 CFR 1304.40(e)(4) ities, consistent with the requirements and 45 CFR 1304.40(i)(2)). of 45 CFR 1308.19. (3) Grantee and delegate agencies must support social and emotional de- (The information and collection require- ments are approved by the Office of Manage- velopment by: ment and Budget (OMB) under OMB Control (i) Encouraging development which Number 0970–0148 for paragraphs (a), (c) and enhances each child’s strengths by: (d).) (A) Building trust; [61 FR 57210, Nov. 5, 1996, as amended at 63 (B) Fostering independence; FR 2313, Jan. 15, 1998] (C) Encouraging self-control by set- ting clear, consistent limits, and hav- § 1304.21 Education and early child- ing realistic expectations; hood development. (D) Encouraging respect for the feel- (a) Child development and education ings and rights of others; and approach for all children. (1) In order to (E) Supporting and respecting the help children gain the skills and con- home language, culture, and family fidence necessary to be prepared to suc- composition of each child in ways that ceed in their present environment and support the child’s health and well- with later responsibilities in school being; and and life, grantee and delegate agencies’ (ii) Planning for routines and transi- approach to child development and tions so that they occur in a timely, education must: predictable and unrushed manner ac- (i) Be developmentally and linguis- cording to each child’s needs. tically appropriate, recognizing that (4) Grantee and delegate agencies children have individual rates of devel- must provide for the development of opment as well as individual interests, each child’s cognitive and language temperaments, languages, cultural skills by: backgrounds, and learning styles; (i) Supporting each child’s learning, (ii) Be inclusive of children with dis- using various strategies including ex- abilities, consistent with their Individ- perimentation, inquiry, observation, ualized Family Service Plan (IFSP) or play and exploration; Individualized Education Program (ii) Ensuring opportunities for cre- (IEP) (see 45 CFR 1308.19); ative self-expression through activities (iii) Provide an environment of ac- such as art, music, movement, and dia- ceptance that supports and respects logue; gender, culture, language, ethnicity (iii) Promoting interaction and lan- and family composition; guage use among children and between (iv) Provide a balanced daily program children and adults; and of child-initiated and adult-directed ac- (iv) Supporting emerging literacy tivities, including individual and small and numeracy development through group activities; and materials and activities according to (v) Allow and enable children to inde- the developmental level of each child. pendently use toilet facilities when it (5) In center-based settings, grantee is developmentally appropriate and and delegate agencies must promote when efforts to encourage toilet train- each child’s physical development by: ing are supported by the parents. (i) Providing sufficient time, indoor (2) Parents must be: and outdoor space, equipment, mate- (i) Invited to become integrally in- rials and adult guidance for active play volved in the development of the pro- and movement that support the devel- gram’s curriculum and approach to opment of gross motor skills; child development and education; (ii) Providing appropriate time, (ii) Provided opportunities to in- space, equipment, materials and adult crease their child observation skills guidance for the development of fine and to share assessments with staff motor skills according to each child’s that will help plan the learning experi- developmental level; and ences; and (iii) Providing an appropriate envi- (iii) Encouraged to participate in ronment and adult guidance for the staff-parent conferences and home vis- participation of children with special its to discuss their child’s development needs.
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(6) In home-based settings, grantee (c) Child development and education and delegate agencies must encourage approach for preschoolers. (1) Grantee parents to appreciate the importance and delegate agencies, in collaboration of physical development, provide op- with the parents, must implement a portunities for children’s outdoor and curriculum (see 45 CFR 1304.3(a)(5)) indoor active play, and guide children that: in the safe use of equipment and mate- (i) Supports each child’s individual rials. pattern of development and learning; (b) Child development and education (ii) Provides for the development of approach for infants and toddlers. (1) cognitive skills by encouraging each Grantee and delegate agencies’ pro- child to organize his or her experi- gram of services for infants and tod- ences, to understand concepts, and to dlers must encourage (see 45 CFR develop age appropriate literacy, 1304.3(a)(5) for a definition of cur- numeracy, reasoning, problem solving riculum): and decision-making skills which form (i) The development of secure rela- a foundation for school readiness and tionships in out-of-home care settings later school success; for infants and toddlers by having a (iii) Integrates all educational as- limited number of consistent teachers pects of the health, nutrition, and men- over an extended period of time. Teach- tal health services into program activi- ers must demonstrate an under- ties; standing of the child’s family culture (iv) Ensures that the program envi- and, whenever possible, speak the ronment helps children develop emo- child’s language (see 45 CFR tional security and facility in social re- 1304.52(g)(2)); lationships; (ii) Trust and emotional security so (v) Enhances each child’s under- that each child can explore the envi- standing of self as an individual and as ronment according to his or her devel- a member of a group; opmental level; and (vi) Provides each child with opportu- (iii) Opportunities for each child to nities for success to help develop feel- explore a variety of sensory and motor ings of competence, self-esteem, and experiences with support and stimula- positive attitudes toward learning; and tion from teachers and family mem- (vii) Provides individual and small bers. group experiences both indoors and (2) Grantee and delegate agencies outdoors. must support the social and emotional (2) Staff must use a variety of strate- development of infants and toddlers by gies to promote and support children’s promoting an environment that: learning and developmental progress (i) Encourages the development of based on the observations and ongoing self-awareness, autonomy, and self-ex- assessment of each child (see 45 CFR pression; and 1304.20(b), 1304.20(d), and 1304.20(e)). (ii) Supports the emerging commu- [61 FR 57210, Nov. 5, 1996, as amended at 63 nication skills of infants and toddlers FR 2313, Jan. 15, 1998] by providing daily opportunities for each child to interact with others and § 1304.22 Child health and safety. to express himself or herself freely. (a) Health emergency procedures. (3) Grantee and delegate agencies Grantee and delegate agencies oper- must promote the physical develop- ating center-based programs must es- ment of infants and toddlers by: tablish and implement policies and (i) Supporting the development of the procedures to respond to medical and physical skills of infants and toddlers dental health emergencies with which including gross motor skills, such as all staff are familiar and trained. At a grasping, pulling, pushing, crawling, minimum, these policies and proce- walking, and climbing; and dures must include: (ii) Creating opportunities for fine (1) Posted policies and plans of action motor development that encourage the for emergencies that require rapid re- control and coordination of small, spe- sponse on the part of staff (e.g., a child cialized motions, using the eyes, choking) or immediate medical or den- mouth, hands, and feet. tal attention;
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(2) Posted locations and telephone in accordance with the program’s con- numbers of emergency response sys- fidentiality policy. tems. Up-to-date family contact infor- (c) Medication administration. Grantee mation and authorization for emer- and delegate agencies must establish gency care for each child must be read- and maintain written procedures re- ily available; garding the administration, handling, (3) Posted emergency evacuation and storage of medication for every routes and other safety procedures for child. Grantee and delegate agencies emergencies (e.g., fire or weather-re- may modify these procedures as nec- lated) which are practiced regularly essary to satisfy State or Tribal laws, (see 45 CFR 1304.53 for additional infor- but only where such laws are con- mation); sistent with Federal laws. The proce- (4) Methods of notifying parents in dures must include: the event of an emergency involving (1) Labeling and storing, under lock their child; and and key, and refrigerating, if nec- (5) Established methods for handling essary, all medications, including those cases of suspected or known child required for staff and volunteers; abuse and neglect that are in compli- (2) Designating a trained staff mem- ance with applicable Federal, State, or ber(s) or school nurse to administer, Tribal laws. handle and store child medications; (b) Conditions of short-term exclusion (3) Obtaining physicians’ instructions and admittance. (1) Grantee and dele- and written parent or guardian author- gate agencies must temporarily ex- izations for all medications adminis- clude a child with a short-term injury tered by staff; or an acute or short-term contagious (4) Maintaining an individual record illness, that cannot be readily accom- of all medications dispensed, and re- modated, from program participation viewing the record regularly with the in center-based activities or group ex- child’s parents; periences, but only for that generally (5) Recording changes in a child’s be- short-term period when keeping the havior that have implications for drug child in care poses a significant risk to dosage or type, and assisting parents in the health or safety of the child or any- communicating with their physician one in contact with the child. regarding the effect of the medication (2) Grantee and delegate agencies on the child; and must not deny program admission to (6) Ensuring that appropriate staff any child, nor exclude any enrolled members can demonstrate proper tech- child from program participation for a niques for administering, handling, and long-term period, solely on the basis of storing medication, including the use his or her health care needs or medica- of any necessary equipment to admin- tion requirements unless keeping the ister medication. child in care poses a significant risk to (d) Injury prevention. Grantee and del- the health or safety of the child or any- egate agencies must: one in contact with the child and the (1) Ensure that staff and volunteers risk cannot be eliminated or reduced to can demonstrate safety practices; and an acceptable level through reasonable (2) Foster safety awareness among modifications in the grantee or dele- children and parents by incorporating gate agency’s policies, practices or pro- it into child and parent activities. cedures or by providing appropriate (e) Hygiene. (1) Staff, volunteers, and auxiliary aids which would enable the children must wash their hands with child to participate without fundamen- soap and running water at least at the tally altering the nature of the pro- following times: gram. (i) After diapering or toilet use; (3) Grantee and delegate agencies (ii) Before food preparation, han- must request that parents inform them dling, consumption, or any other food- of any health or safety needs of the related activity (e.g., setting the child that the program may be required table); to address. Programs must share infor- (iii) Whenever hands are contami- mation, as necessary, with appropriate nated with blood or other bodily fluids; staff regarding accommodations needed and
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(iv) After handling pets or other ani- (2) First aid kits must be restocked mals. after use, and an inventory must be (2) Staff and volunteers must also conducted at regular intervals. wash their hands with soap and run- (The information collection requirements ning water: are approved by the Office of Management (i) Before and after giving medica- and Budget (OMB) under OMB Control Num- tions; ber 0970–0148 for paragraph (c).) (ii) Before and after treating or ban- [61 FR 57210, Nov. 5, 1996, as amended at 63 daging a wound (nonporous gloves FR 2313, Jan. 15, 1998] should be worn if there is contact with blood or blood-containing body fluids); § 1304.23 Child nutrition. and (a) Identification of nutritional needs. (iii) After assisting a child with toi- Staff and families must work together let use. to identify each child’s nutritional (3) Nonporous (e.g., latex) gloves needs, taking into account staff and must be worn by staff when they are in family discussions concerning: contact with spills of blood or other (1) Any relevant nutrition-related as- visibly bloody bodily fluids. sessment data (height, weight, hemo- (4) Spills of bodily fluids (e.g., urine, globin/hematocrit) obtained under 45 feces, blood, saliva, nasal discharge, CFR 1304.20(a); eye discharge or any fluid discharge) (2) Information about family eating must be cleaned and disinfected imme- patterns, including cultural pref- diately in keeping with professionally erences, special dietary requirements established guidelines (e.g., standards for each child with nutrition-related of the Occupational Safety Health Ad- health problems, and the feeding re- ministration, U.S. Department of quirements of infants and toddlers and Labor). Any tools and equipment used each child with disabilities (see 45 CFR to clean spills of bodily fluids must be 1308.20); cleaned and disinfected immediately. (3) For infants and toddlers, current Other blood-contaminated materials feeding schedules and amounts and must be disposed of in a plastic bag types of food provided, including with a secure tie. whether breast milk or formula and (5) Grantee and delegate agencies baby food is used; meal patterns; new must adopt sanitation and hygiene pro- foods introduced; food intolerances and cedures for diapering that adequately preferences; voiding patterns; and ob- protect the health and safety of chil- servations related to developmental dren served by the program and staff. changes in feeding and nutrition. This Grantee and delegate agencies must en- information must be shared with par- sure that staff properly conduct these ents and updated regularly; and procedures. (4) Information about major commu- (6) Potties that are utilized in a cen- nity nutritional issues, as identified ter-based program must be emptied through the Community Assessment or into the toilet and cleaned and dis- by the Health Services Advisory Com- infected after each use in a utility sink mittee or the local health department. used for this purpose. (b) Nutritional services. (1) Grantee (7) Grantee and delegate agencies op- and delegate agencies must design and erating programs for infants and tod- implement a nutrition program that dlers must space cribs and cots at least meets the nutritional needs and feed- three feet apart to avoid spreading con- ing requirements of each child, includ- tagious illness and to allow for easy ac- ing those with special dietary needs cess to each child. and children with disabilities. Also, the (f) First aid kits. (1) Readily available, nutrition program must serve a variety well-supplied first aid kits appropriate of foods which consider cultural and for the ages served and the program ethnic preferences and which broaden size must be maintained at each facil- the child’s food experience. ity and available on outings away from (i) All Early Head Start and Head the site. Each kit must be accessible to Start grantee and delegate agencies staff members at all times, but must be must use funds from USDA Food and kept out of the reach of children. Consumer Services Child Nutrition
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Programs as the primary source of pay- (3) Staff must promote effective den- ment for meal services. Early Head tal hygiene among children in conjunc- Start and Head Start funds may be tion with meals. used to cover those allowable costs not (4) Parents and appropriate commu- covered by the USDA. nity agencies must be involved in plan- (ii) Each child in a part-day center- ning, implementing, and evaluating the based setting must receive meals and agencies’ nutritional services. snacks that provide at least 1⁄3 of the (c) Meal service. Grantee and delegate child’s daily nutritional needs. Each agencies must ensure that nutritional child in a center-based full-day pro- services in center-based settings con- gram must receive meals and snacks tribute to the development and social- that provide 1⁄2 to 2⁄3 of the child’s daily ization of enrolled children by pro- nutritional needs, depending upon the viding that: length of the program day. (1) A variety of food is served which (iii) All children in morning center- broadens each child’s food experiences; based settings who have not received (2) Food is not used as punishment or breakfast at the time they arrive at reward, and that each child is encour- the Early Head Start or Head Start aged, but not forced, to eat or taste his program must be served a nourishing or her food; breakfast. (3) Sufficient time is allowed for each (iv) Each infant and toddler in cen- child to eat; ter-based settings must receive food (4) All toddlers and preschool chil- appropriate to his or her nutritional dren and assigned classroom staff, in- needs, developmental readiness, and cluding volunteers, eat together family feeding skills, as recommended in the style and share the same menu to the USDA meal pattern or nutrient stand- extent possible; ard menu planning requirements out- (5) Infants are held while being fed lined in 7 CFR parts 210, 220, and 226. and are not laid down to sleep with a (v) For 3- to 5-year-olds in center- bottle; based settings, the quantities and (6) Medically-based diets or other die- kinds of food served must conform to tary requirements are accommodated; recommended serving sizes and min- and imum standards for meal patterns rec- (7) As developmentally appropriate, ommended in the USDA meal pattern opportunity is provided for the involve- or nutrient standard menu planning re- quirements outlined in 7 CFR parts 210, ment of children in food-related activi- 220, and 226. ties. (vi) For 3- to 5-year-olds in center- (d) Family assistance with nutrition. based settings or other Head Start Parent education activities must in- group experiences, foods served must clude opportunities to assist individual be high in nutrients and low in fat, families with food preparation and nu- sugar, and salt. tritional skills. (vii) Meal and snack periods in cen- (e) Food safety and sanitation. (1) ter-based settings must be appro- Grantee and delegate agencies must priately scheduled and adjusted, where post evidence of compliance with all necessary, to ensure that individual applicable Federal, State, Tribal, and needs are met. Infants and young tod- local food safety and sanitation laws, dlers who need it must be fed ‘‘on de- including those related to the storage, mand’’ to the extent possible or at ap- preparation and service of food and the propriate intervals. health of food handlers. In addition, (2) Grantee and delegate agencies op- agencies must contract only with food erating home-based program options service vendors that are licensed in ac- must provide appropriate snacks and cordance with State, Tribal or local meals to each child during group so- laws. cialization activities (see 45 CFR (2) For programs serving infants and 1306.33 for information regarding home- toddlers, facilities must be available based group socialization).
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for the proper storage and handling of (iii) Assist in providing special help breast milk and formula. for children with atypical behavior or development; and (The information collection requirements (iv) Utilize other community mental are approved by the Office of Management and Budget (OMB) under OMB Control Num- health resources, as needed. ber 0970–0148 for paragraph (a).) Subpart C—Family and [61 FR 57210, Nov. 5, 1996, as amended at 63 FR 2313, Jan. 15, 1998] Community Partnerships
§ 1304.24 Child mental health. § 1304.40 Family partnerships. (a) Family goal setting. (1) Grantee and (a) Mental health services. (1) Grantee delegate agencies must engage in a and delegate agencies must work col- process of collaborative partnership- laboratively with parents (see 45 CFR building with parents to establish mu- 1304.40(f) for issues related to parent tual trust and to identify family goals, education) by: strengths, and necessary services and (i) Soliciting parental information, other supports. This process must be observations, and concerns about their initiated as early after enrollment as child’s mental health; possible and it must take into consid- (ii) Sharing staff observations of eration each family’s readiness and their child and discussing and antici- willingness to participate in the proc- pating with parents their child’s behav- ess. ior and development, including separa- (2) As part of this ongoing partner- tion and attachment issues; ship, grantee and delegate agencies (iii) Discussing and identifying with must offer parents opportunities to de- parents appropriate responses to their velop and implement individualized child’s behaviors; family partnership agreements that de- (iv) Discussing how to strengthen scribe family goals, responsibilities, nurturing, supportive environments timetables and strategies for achieving and relationships in the home and at these goals as well as progress in the program; achieving them. In home-based pro- (v) Helping parents to better under- gram options, this agreement must in- stand mental health issues; and clude the above information as well as the specific roles of parents in home (vi) Supporting parents’ participation visits and group socialization activities in any needed mental health interven- (see 45 CFR 1306.33(b)). tions. (3) To avoid duplication of effort, or (2) Grantee and delegate agencies conflict with, any preexisting family must secure the services of mental plans developed between other pro- health professionals on a schedule of grams and the Early Head Start or sufficient frequency to enable the Head Start family, the family partner- timely and effective identification of ship agreement must take into ac- and intervention in family and staff count, and build upon as appropriate, concerns about a child’s mental health; information obtained from the family and and other community agencies con- (3) Mental health program services cerning preexisting family plans. must include a regular schedule of on- Grantee and delegate agencies must co- site mental health consultation involv- ordinate, to the extent possible, with ing the mental health professional, families and other agencies to support program staff, and parents on how to: the accomplishment of goals in the (i) Design and implement program preexisting plans. practices responsive to the identified (4) A variety of opportunities must be behavioral and mental health concerns created by grantee and delegate agen- of an individual child or group of chil- cies for interaction with parents dren; throughout the year. (ii) Promote children’s mental (5) Meetings and interactions with wellness by providing group and indi- families must be respectful of each vidual staff and parent education on family’s diversity and cultural and eth- mental health issues; nic background.
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(b) Accessing community services and opment (including risks from smoking resources. (1) Grantee and delegate and alcohol), labor and delivery, and agencies must work collaboratively postpartum recovery (including mater- with all participating parents to iden- nal depression). tify and continually access, either di- (3) Grantee and delegate agencies rectly or through referrals, services must provide information on the bene- and resources that are responsive to fits of breast feeding to all pregnant each family’s interests and goals, in- and nursing mothers. For those who cluding: choose to breast feed in center-based (i) Emergency or crisis assistance in programs, arrangements must be pro- areas such as food, housing, clothing, vided as necessary. and transportation; (d) Parent involvement—general. (1) In (ii) Education and other appropriate addition to involving parents in pro- interventions, including opportunities gram policy-making and operations for parents to participate in counseling (see 45 CFR 1304.50), grantee and dele- programs or to receive information on gate agencies must provide parent in- mental health issues that place fami- volvement and education activities lies at risk, such as substance abuse, that are responsive to the ongoing and child abuse and neglect, and domestic expressed needs of the parents, both as violence; and individuals and as members of a group. (iii) Opportunities for continuing Other community agencies should be education and employment training encouraged to assist in the planning and other employment services and implementation of such programs. through formal and informal networks (2) Early Head Start and Head Start in the community. settings must be open to parents dur- (2) Grantee and delegate agencies ing all program hours. Parents must be must follow-up with each family to de- welcomed as visitors and encouraged to termine whether the kind, quality, and observe children as often as possible timeliness of the services received and to participate with children in through referrals met the families’ ex- group activities. The participation of pectations and circumstances. parents in any program activity must (c) Services to pregnant women who are be voluntary, and must not be required enrolled in programs serving pregnant as a condition of the child’s enroll- women, infants, and toddlers. (1) Early ment. Head Start grantee and delegate agen- (3) Grantee and delegate agencies cies must assist pregnant women to ac- must provide parents with opportuni- cess comprehensive prenatal and ties to participate in the program as postpartum care, through referrals, im- employees or volunteers (see 45 CFR mediately after enrollment in the pro- 1304.52(b)(3) for additional require- gram. This care must include: ments about hiring parents). (i) Early and continuing risk assess- (e) Parent involvement in child develop- ments, which include an assessment of ment and education. (1) Grantee and del- nutritional status as well as nutrition egate agencies must provide opportuni- counseling and food assistance, if nec- ties to include parents in the develop- essary; ment of the program’s curriculum and (ii) Health promotion and treatment, approach to child development and including medical and dental examina- education (see 45 CFR 1304.3(a)(5) for a tions on a schedule deemed appropriate definition of curriculum). by the attending health care providers (2) Grantees and delegate agencies as early in the pregnancy as possible; operating home-based program options and must build upon the principles of adult (iii) Mental health interventions and learning to assist, encourage, and sup- follow-up, including substance abuse port parents as they foster the growth prevention and treatment services, as and development of their children. needed. (3) Grantee and delegate agencies (2) Grantee and delegate agencies must provide opportunities for parents must provide pregnant women and to enhance their parenting skills, other family members, as appropriate, knowledge, and understanding of the with prenatal education on fetal devel- educational and developmental needs
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and activities of their children and to dividual children must also be made share concerns about their children available to the extent possible. with program staff (see 45 CFR 1304.21 (3) Grantee and delegate agencies for additional requirements related to must ensure that the nutrition edu- parent involvement). cation program includes, at a min- (4) Grantee and delegate agencies imum: must provide, either directly or (i) Nutrition education in the selec- through referrals to other local agen- tion and preparation of foods to meet cies, opportunities for children and family needs and in the management of families to participate in family lit- food budgets; and eracy services by: (ii) Parent discussions with program (i) Increasing family access to mate- staff about the nutritional status of rials, services, and activities essential their child. to family literacy development; and (4) Grantee and delegate agencies (ii) Assisting parents as adult learn- must ensure that the mental health ers to recognize and address their own education program provides, at a min- literacy goals. imum (see 45 CFR 1304.24 for issues re- (5) In addition to the two home vis- lated to mental health education): its, teachers in center-based programs (i) A variety of group opportunities must conduct staff-parent conferences, for parents and program staff to iden- as needed, but no less than two per pro- tify and discuss issues related to child gram year, to enhance the knowledge mental health; and understanding of both staff and (ii) Individual opportunities for par- parents of the educational and develop- ents to discuss mental health issues re- mental progress and activities of chil- lated to their child and family with dren in the program (see 45 CFR program staff; and 1304.21(a)(2)(iii) and 45 CFR 1304.40(i) for additional requirements about staff- (iii) The active involvement of par- parent conferences and home visits). ents in planning and implementing any (f) Parent involvement in health, nutri- mental health interventions for their tion, and mental health education. (1) children. Grantee and delegate agencies must (g) Parent involvement in community provide medical, dental, nutrition, and advocacy. (1) Grantee and delegate mental health education programs for agencies must: program staff, parents, and families. (i) Support and encourage parents to (2) Grantee and delegate agencies influence the character and goals of must ensure that, at a minimum, the community services in order to make medical and dental health education them more responsive to their inter- program: ests and needs; and (i) Assists parents in understanding (ii) Establish procedures to provide how to enroll and participate in a sys- families with comprehensive informa- tem of ongoing family health care. tion about community resources (see 45 (ii) Encourages parents to become ac- CFR 1304.41(a)(2) for additional require- tive partners in their children’s med- ments). ical and dental health care process and (2) Parents must be provided regular to accompany their child to medical opportunities to work together, and and dental examinations and appoint- with other community members, on ac- ments; and tivities that they have helped develop (iii) Provides parents with the oppor- and in which they have expressed an tunity to learn the principles of pre- interest. ventive medical and dental health, (h) Parent involvement in transition ac- emergency first-aid, occupational and tivities. (1) Grantee and delegate agen- environmental hazards, and safety cies must assist parents in becoming practices for use in the classroom and their children’s advocate as they tran- in the home. In addition to information sition both into Early Head Start or on general topics (e.g., maternal and Head Start from the home or other child health and the prevention of Sud- child care setting, and from Head Start den Infant Death Syndrome), informa- to elementary school, a Title I of the tion specific to the health needs of in- Elementary and Secondary Education
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Act preschool program, or a child care sents significant safety hazards for setting. staff, the home visit may take place at (2) Staff must work to prepare par- an Early Head Start or Head Start site ents to become their children’s advo- or at another safe location that affords cate through transition periods by pro- privacy. Home visits in home-based viding that, at a minimum, a staff-par- program options must be conducted in ent meeting is held toward the end of the family’s home. (See 45 CFR 1306.33 the child’s participation in the pro- regarding the home-based program op- gram to enable parents to understand tion.) the child’s progress while enrolled in (5) In addition, grantee and delegate Early Head Start or Head Start. agencies operating home-based pro- (3) To promote the continued involve- gram options must meet the require- ment of Head Start parents in the edu- ments of 45 CFR 1306.33(a)(1) regarding cation and development of their chil- home visits. dren upon transition to school, grantee (6) Grantee and delegate agencies and delegate agencies must: serving infants and toddlers must ar- (i) Provide education and training to range for health staff to visit each new- parents to prepare them to exercise born within two weeks after the in- their rights and responsibilities con- fant’s birth to ensure the well-being of cerning the education of their children both the mother and the child. in the school setting; and (ii) Assist parents to communicate (The information and collection require- with teachers and other school per- ments are approved by the Office of Manage- sonnel so that parents can participate ment and Budget (OMB) under OMB Control in decisions related to their children’s Number 0970–0148 for paragraph (a). education. [61 FR 57210, Nov. 5, 1996, as amended at 63 (4) See 45 CFR 1304.41(c) for addi- FR 2313, 2314, Jan. 15, 1998] tional standards related to children’s transition to and from Early Head § 1304.41 Community partnerships. Start or Head Start. (a) Partnerships. (1) Grantee and dele- (i) Parent involvement in home visits. gate agencies must take an active role (1) Grantee and delegate agencies must in community planning to encourage not require that parents permit home strong communication, cooperation, visits as a condition of the child’s par- and the sharing of information among ticipation in Early Head Start or Head agencies and their community partners Start center-based program options. and to improve the delivery of commu- Every effort must be made to explain nity services to children and families the advantages of home visits to the in accordance with the agency’s con- parents. fidentiality policies. Documentation (2) The child’s teacher in center- must be maintained to reflect the level based programs must make no less of effort undertaken to establish com- than two home visits per program year munity partnerships (see 45 CFR 1304.51 to the home of each enrolled child, un- for additional planning requirements). less the parents expressly forbid such visits, in accordance with the require- (2) Grantee and delegate agencies ments of 45 CFR 1306.32(b)(8). Other must take affirmative steps to estab- staff working with the family must lish ongoing collaborative relation- make or join home visits, as appro- ships with community organizations to priate. promote the access of children and (3) Grantee and delegate agencies families to community services that must schedule home visits at times are responsive to their needs, and to that are mutually convenient for the ensure that Early Head Start and Head parents or primary caregivers and Start programs respond to community staff. needs, including: (4) In cases where parents whose chil- (i) Health care providers, such as dren are enrolled in the center-based clinics, physicians, dentists, and other program option ask that the home vis- health professionals; its be conducted outside the home, or (ii) Mental health providers; in cases where a visit to the home pre- (iii) Nutritional service providers;
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(iv) Individuals and agencies that preschool program, or other child care provide services to children with dis- settings. These procedures must in- abilities and their families (see 45 CFR clude: 1308.4 for specific service require- (i) Coordinating with the schools or ments); other agencies to ensure that indi- (v) Family preservation and support vidual Early Head Start or Head Start services; children’s relevant records are trans- (vi) Child protective services and any ferred to the school or next placement other agency to which child abuse in which a child ill enroll or from ear- must be reported under State or Tribal lier placements to Early Head Start or law; Head Start; (vii) Local elementary schools and (ii) Outreach to encourage commu- other educational and cultural institu- nication between Early Head Start or tions, such as libraries and museums, Head Start staff and their counterparts for both children and families; in the schools and other child care set- (viii) Providers of child care services; tings including principals, teachers, so- and cial workers and health staff to facili- (ix) Any other organizations or busi- tate continuity of programming; nesses that may provide support and (iii) Initiating meetings involving resources to families. Head Start teachers and parents and (3) Grantee and delegate agencies kindergarten or elementary school must perform outreach to encourage teachers to discuss the developmental volunteers from the community to par- progress and abilities of individual ticipate in Early Head Start and Head children; and Start programs. (iv) Initiating joint transition-re- (4) To enable the effective participa- lated training for Early Head Start or tion of children with disabilities and Head Start staff and school or other their families, grantee and delegate child development staff. agencies must make specific efforts to (2) To ensure the most appropriate develop interagency agreements with placement and services following par- local education agencies (LEAs) and ticipation in Early Head Start, transi- other agencies within the grantee and tion planning must be undertaken for delegate agency’s service area (see 45 each child and family at least six CFR 1308.4(h) for specific requirements months prior to the child’s third birth- concerning interagency agreements). day. The process must take into ac- (b) Advisory committees. Each grantee count: The child’s health status and de- directly operating an Early Head Start velopmental level, progress made by or Head Start program, and each dele- the child and family while in Early gate agency, must establish and main- Head Start, current and changing fam- tain a Health Services Advisory Com- ily circumstances, and the availability mittee which includes Head Start par- of Head Start and other child develop- ents, professionals, and other volun- ment or child care services in the com- teers from the community. Grantee munity. As appropriate, a child may and delegate agencies also must estab- remain in Early Head Start, following lish and maintain such other service his or her third birthday, for additional advisory committees as they deem ap- months until he or she can transition propriate to address program service into Head Start or another program. issues such as community partnerships (3) See 45 CFR 1304.40(h) for addi- and to help agencies respond to com- tional requirements related to parental munity needs. participation in their child’s transition (c) Transition services. (1) Grantee and to and from Early Head Start or Head delegate agencies must establish and Start. maintain procedures to support suc- cessful transitions for enrolled children (The information collection requirements and families from previous child care are approved by the Office of Management programs into Early Head Start or and Budget (OMB) under OMB Control Num- Head Start and from Head Start into ber 0970–0148 for paragraph (a).) elementary school, a Title I of the Ele- [61 FR 57210, Nov. 5, 1996, as amended at 63 mentary and Secondary Education Act FR 2314, Jan. 15, 1998]
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Subpart D—Program Design and (b) Policy group composition and forma- Management tion. (1) Each grantee and delegate agency governing body operating an § 1304.50 Program governance. Early Head Start or Head Start pro- (a) Policy Council, Policy Committee, gram must (except where such author- and Parent Committee structure. (1) ity is ceded to the Policy Council or Grantee and delegate agencies must es- Policy Committee) propose, within the tablish and maintain a formal struc- framework of these regulations, the ture of shared governance through total size of their respective policy which parents can participate in policy groups (based on the number of cen- making or in other decisions about the ters, classrooms or other program op- program. This structure must consist tion units, and the number of children of the following groups, as required: served by their Early Head Start or (i) Policy Council. This Council must Head Start program), the procedures be established at the grantee level. for the election of parent members, and (ii) Policy Committee. This Com- the procedure for the selection of com- mittee must be established at the dele- munity representatives. These pro- gate agency level when the program is posals must be approved by the Policy administered in whole or in part by Council or Policy Committee. such agencies (see 45 CFR 1301.2 for a (2) Policy Councils and Policy Com- definition of a delegate agency). mittees must be comprised of two (iii) Parent Committee. For center- types of representatives: parents of based programs, this Committee must currently enrolled children and com- be established at the center level. For munity representatives. At least 51 other program options, an equivalent percent of the members of these policy Committee must be established at the groups must be the parents of cur- local program level. When programs rently enrolled children (see 45 CFR operate more than one option from the 1306.3(h) for a definition of a Head same site, the Parent Committee mem- Start parent). bership is combined unless parents (3) Community representatives must choose to have a separate Committee be drawn from the local community: for each option. businesses; public or private commu- (2) Parent Committees must be com- nity, civic, and professional organiza- prised exclusively of the parents of tions; and others who are familiar with children currently enrolled at the cen- resources and services for low-income ter level for center-based programs or children and families, including for ex- at the equivalent level for other pro- ample the parents of formerly enrolled gram options (see 45 CFR 1306.3(h) for a children. definition of a Head Start parent). (3) All Policy Councils, Policy Com- (4) All parent members of Policy mittees, and Parent Committees must Councils or Policy Committees must be established as early in the program stand for election or re-election annu- year as possible. Grantee Policy Coun- ally. All community representatives cils and delegate Policy Committees also must be selected annually. may not be dissolved until successor (5) Policy Councils and Policy Com- Councils or Committees are elected mittees must limit the number of one- and seated. year terms any individual may serve (4) When a grantee has delegated the on either body to a combined total of entire Head Start program to one dele- three terms. gate agency, it is not necessary to have (6) No grantee or delegate agency a Policy Committee in addition to a staff (or members of their immediate grantee agency Policy Council. families) may serve on Policy Councils (5) The governing body (the group or Policy Committees except parents with legal and fiscal responsibility for who occasionally substitute for regular administering the Early Head Start or Early Head Start or Head Start staff. Head Start program) and the Policy In the case of Tribal grantees, this ex- Council or Policy Committee must not clusion applies only to Tribal staff who have identical memberships and func- work in areas directly related to or tions. which directly impact upon any Early
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Head Start or Head Start administra- grant application, including planning tive, fiscal or programmatic issues. or other actions that may result from (7) Parents of children currently en- the review of the annual audit and rolled in all program options must be findings from the Federal monitoring proportionately represented on estab- review (see 45 CFR 1304.51(i)(1) for addi- lished policy groups. tional requirements about the annual (c) Policy group responsibilities—gen- self-assessment); eral. At a minimum policy groups must (ix) Program personnel policies and be charged with the responsibilities de- subsequent changes to those policies, scribed in paragraphs (d), (f), (g), and in accordance with 45 CFR 1301.31, in- (h) of this section and repeated in ap- cluding standards of conduct for pro- pendix A of this section. gram staff, consultants, and volun- (d) The Policy Council or Policy Com- teers; mittee. (1) Policy Councils and Policy (x) Decisions to hire or terminate the Committees must work in partnership Early Head Start or Head Start direc- with key management staff and the governing body to develop, review, and tor of the grantee or delegate agency; approve or disapprove the following and policies and procedures: (xi) Decisions to hire or terminate (i) All funding applications and any person who works primarily for amendments to funding applications the Early Head Start or Head Start for Early Head Start and Head Start, program of the grantee or delegate including administrative services, agency. prior to the submission of such applica- (2) In addition, Policy Councils and tions to the grantee (in the case of Pol- Policy Committees must perform the icy Committees) or to HHS (in the case following functions directly: of Policy Councils); (i) Serve as a link to the Parent Com- (ii) Procedures describing how the mittees, grantee and delegate agency governing body and the appropriate governing bodies, public and private or- policy group will implement shared de- ganizations, and the communities they cision-making; serve; (iii) Procedures for program planning (ii) Assist Parent Committees in in accordance with this part and the communicating with parents enrolled requirements of 45 CFR 1305.3; in all program options to ensure that (iv) The program’s philosophy and they understand their rights, respon- long- and short-range program goals sibilities, and opportunities in Early and objectives (see 45 CFR 1304.51(a) Head Start and Head Start and to en- and 45 CFR 1305.3 for additional re- courage their participation in the pro- quirements regarding program plan- gram; ning); (iii) Assist Parent Committees in (v) The selection of delegate agencies planning, coordinating, and organizing and their service areas (this regulation program activities for parents with the is binding on Policy Councils exclu- assistance of staff, and ensuring that sively) (see 45 CFR 1301.33 and 45 CFR funds set aside from program budgets 1305.3(a) for additional requirements are used to support parent activities; about delegate agency and service area selection, respectively); (iv) Assist in recruiting volunteer (vi) The composition of the Policy services from parents, community resi- Council or the Policy Committee and dents, and community organizations, the procedures by which policy group and assist in the mobilization of com- members are chosen; munity resources to meet identified (vii) Criteria for defining recruit- needs; and ment, selection, and enrollment prior- (v) Establish and maintain proce- ities, in accordance with the require- dures for working with the grantee or ments of 45 CFR part 1305; delegate agency to resolve community (viii) The annual self-assessment of complaints about the program. the grantee or delegate agency’s (e) Parent Committee. The Parent progress in carrying out the pro- Committee must carry out at least the grammatic and fiscal intent of its following minimum responsibilities:
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(1) Advise staff in developing and im- (g) Governing body responsibilities. (1) plementing local program policies, ac- Grantee and delegate agencies must tivities, and services; have written policies that define the (2) Plan, conduct, and participate in roles and responsibilities of the gov- informal as well as formal programs erning body members and that inform and activities for parents and staff; and them of the management procedures (3) Within the guidelines established and functions necessary to implement by the governing body, Policy Council, a high quality program. or Policy Committee, participate in (2) Grantee and delegate agencies must ensure that appropriate internal the recruitment and screening of Early controls are established and imple- Head Start and Head Start employees. mented to safeguard Federal funds in (f) Policy Council, Policy Committee, accordance with 45 CFR 1301.13. and Parent Committee reimbursement. (h) Internal dispute resolution. Each Grantee and delegate agencies must en- grantee and delegate agency and Policy able low-income members to partici- Council or Policy Committee jointly pate fully in their group responsibil- must establish written procedures for ities by providing, if necessary, reim- resolving internal disputes, including bursements for reasonable expenses in- impasse procedures, between the gov- curred by the members. erning body and policy group.
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(The information and collection require- sure that effective two-way comprehen- ments are approved by the Office of Manage- sive communications between staff and ment and Budget (OMB) under OMB Control parents are carried out on a regular Number 0970–0148 for paragraphs (f), (g), and (h).) basis throughout the program year. (2) Communication with parents [61 FR 57210, Nov. 5, 1996, as amended at 63 must be carried out in the parents’ pri- FR 2314, Jan. 15, 1998] mary or preferred language or through § 1304.51 Management systems and an interpreter, to the extent feasible. procedures. (d) Communication with governing bod- (a) Program planning. (1) Grantee and ies and policy groups. Grantee and dele- delegate agencies must develop and im- gate agencies must ensure that the fol- plement a systematic, ongoing process lowing information is provided regu- of program planning that includes con- larly to their grantee and delegate gov- sultation with the program’s governing erning bodies and to members of their body, policy groups, and program staff, policy groups: and with other community organiza- (1) Procedures and timetables for pro- tions that serve Early Head Start and gram planning; Head Start or other low-income fami- (2) Policies, guidelines, and other lies with young children. Program communications from HHS; planning must include: (3) Program and financial reports; (i) An assessment of community and strengths, needs and resources through (4) Program plans, policies, proce- completion of the Community Assess- dures, and Early Head Start and Head ment, in accordance with the require- Start grant applications. ments of 45 CFR 1305.3; (e) Communication among staff. Grant- (ii) The formulation of both multi- ee and delegate agencies must have year (long-range) program goals and mechanisms for regular communica- short-term program and financial ob- tion among all program staff to facili- jectives that address the findings of the tate quality outcomes for children and Community Assessment, are consistent families. with the philosophy of Early Head (f) Communication with delegate agen- Start and Head Start, and reflect the cies. Grantees must have a procedure findings of the program’s annual self- for ensuring that delegate agency gov- assessment; and erning bodies, Policy Committees, and (iii) The development of written all staff receive all regulations, poli- plan(s) for implementing services in cies, and other pertinent communica- each of the program areas covered by tions in a timely manner. this part (e.g., Early Childhood Devel- opment and Health Services, Family (g) Record-keeping systems. Grantee and Community Partnerships, and Pro- and delegate agencies must establish gram Design and Management). See the and maintain efficient and effective requirements of 45 CFR parts 1305, 1306, record-keeping systems to provide ac- and 1308. curate and timely information regard- (2) All written plans for imple- ing children, families, and staff and menting services, and the progress in must ensure appropriate confiden- meeting them, must be reviewed by the tiality of this information. grantee or delegate agency staff and re- (h) Reporting systems. Grantee and viewed and approved by the Policy delegate agencies must establish and Council or Policy Committee at least maintain efficient and effective report- annually, and must be revised and up- ing systems that: dated as needed. (1) Generate periodic reports of finan- (b) Communications—general. Grantee cial status and program operations in and delegate agencies must establish order to control program quality, and implement systems to ensure that maintain program accountability, and timely and accurate information is advise governing bodies, policy groups, provided to parents, policy groups, and staff of program progress; and staff, and the general community. (2) Generate official reports for Fed- (c) Communication with families. (1) eral, State, and local authorities, as re- Grantee and delegate agencies must en- quired by applicable law.
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(i) Program self-assessment and moni- (iii) Management of family and com- toring. (1) At least once each program munity partnerships, including parent year, with the consultation and par- activities. ticipation of the policy groups and, as (b) Staff qualifications—general. (1) appropriate, other community mem- Grantee and delegate agencies must en- bers, grantee and delegate agencies sure that staff and consultants have must conduct a self-assessment of their the knowledge, skills, and experience effectiveness and progress in meeting they need to perform their assigned program goals and objectives and in functions responsibly. implementing Federal regulations. (2) In addition, grantee and delegate (2) Grantees must establish and im- agencies must ensure that only can- plement procedures for the ongoing didates with the qualifications speci- monitoring of their own Early Head fied in this part and in 45 CFR 1306.21 Start and Head Start operations, as are hired. well as those of each of their delegate (3) Current and former Early Head agencies, to ensure that these oper- Start and Head Start parents must re- ations effectively implement Federal ceive preference for employment va- regulations. cancies for which they are qualified. (4) Staff and program consultants (3) Grantees must inform delegate must be familiar with the ethnic back- agency governing bodies of any defi- ground and heritage of families in the ciencies in delegate agency operations program and must be able to serve and identified in the monitoring review and effectively communicate, to the extent must help them develop plans, includ- feasible, with children and families ing timetables, for addressing identi- with no or limited English proficiency. fied problems. (c) Early Head Start or Head Start di- (The information and collection require- rector qualifications. The Early Head ments are approved by the Office of Manage- Start or Head Start director must have ment and Budget (OMB) under OMB Control demonstrated skills and abilities in a Number 0970–0148 for paragraphs (a) and (i).) management capacity relevant to [61 FR 57210, Nov. 5, 1996, as amended at 63 human services program management. FR 2314, Jan. 15, 1998] (d) Qualifications of content area ex- perts. Grantee and delegate agencies § 1304.52 Human resources manage- must hire staff or consultants who ment. meet the qualifications listed below to provide content area expertise and (a) Organizational structure. (1) Grant- oversight on an ongoing or regularly ee and delegate agencies must estab- scheduled basis. Agencies must deter- lish and maintain an organizational mine the appropriate staffing pattern structure that supports the accom- necessary to provide these functions. plishment of program objectives. This (1) Education and child development structure must address the major func- services must be supported by staff or tions and responsibilities assigned to consultants with training and experi- each staff position and must provide ence in areas that include: The theories evidence of adequate mechanisms for and principles of child growth and de- staff supervision and support. velopment, early childhood education, (2) At a minimum, grantee and dele- and family support. In addition, staff gate agencies must ensure that the fol- or consultants must meet the quali- lowing program management functions fications for classroom teachers, as are formally assigned to and adopted specified in section 648A of the Head by staff within the program: Start Act and any subsequent amend- (i) Program management (the Early ments regarding the qualifications of Head Start or Head Start director); teachers. (ii) Management of early childhood (2) Health services must be supported development and health services, in- by staff or consultants with training cluding child development and edu- and experience in public health, nurs- cation; child medical, dental, and men- ing, health education, maternal and tal health; child nutrition; and, serv- child health, or health administration. ices for children with disabilities; and In addition, when a health procedure
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must be performed only by a licensed/ sistent, stable, and supportive relation- certified health professional, the agen- ships with very young children. The cy must assure that the requirement is training must develop knowledge of in- followed. fant and toddler development, safety (3) Nutrition services must be sup- issues in infant and toddler care (e.g., ported by staff or consultants who are reducing the risk of Sudden Infant registered dietitians or nutritionists. Death Syndrome), and methods for (4) Mental health services must be communicating effectively with in- supported by staff or consultants who fants and toddlers, their parents, and are licensed or certified mental health other staff members. professionals with experience and ex- (g) Classroom staffing and home visi- pertise in serving young children and tors. (1) Grantee and delegate agencies their families. must meet the requirements of 45 CFR (5) Family and community partner- 1306.20 regarding classroom staffing. ship services must be supported by (2) When a majority of children speak staff or consultants with training and the same language, at least one class- experience in field(s) related to social, room staff member or home visitor human, or family services. interacting regularly with the children (6) Parent involvement services must must speak their language. be supported by staff or consultants (3) For center-based programs, the with training, experience, and skills in class size requirements specified in 45 assisting the parents of young children CFR 1306.32 must be maintained in advocating and decision-making for through the provision of substitutes their families. when regular classroom staff are ab- (7) Disabilities services must be sup- sent. ported by staff or consultants with training and experience in securing and (4) Grantee and delegate agencies individualizing needed services for chil- must ensure that each teacher working dren with disabilities. exclusively with infants and toddlers (8) Grantee and delegate agencies has responsibility for no more than must secure the regularly scheduled or four infants and toddlers and that no ongoing services of a qualified fiscal of- more than eight infants and toddlers ficer. are placed in any one group. However, if State, Tribal or local regulations (e) Home visitor qualifications. Home visitors must have knowledge and ex- specify staff:child ratios and group perience in child development and sizes more stringent than this require- early childhood education; the prin- ment, the State, Tribal or local regula- ciples of child health, safety, and nutri- tions must apply. tion; adult learning principles; and (5) Staff must supervise the outdoor family dynamics. They must be skilled and indoor play areas in such a way in communicating with and motivating that children’s safety can be easily people. In addition, they must have monitored and ensured. knowledge of community resources and (h) Standards of conduct. (1) Grantee the skills to link families with appro- and delegate agencies must ensure that priate agencies and services. all staff, consultants, and volunteers (f) Infant and toddler staff qualifica- abide by the program’s standards of tions. Early Head Start and Head Start conduct. These standards must specify staff working as teachers with infants that: and toddlers must obtain a Child De- (i) They will respect and promote the velopment Associate (CDA) credential unique identity of each child and fam- for Infant and Toddler Caregivers or an ily and refrain from stereotyping on equivalent credential that addresses the basis of gender, race, ethnicity, comparable competencies within one culture, religion, or disability; year of the effective date of the final (ii) They will follow program con- rule or, thereafter, within one year of fidentiality policies concerning infor- hire as a teacher of infants and tod- mation about children, families, and dlers. In addition, infants and toddler other staff members; teachers must have the training and (iii) No child will be left alone or un- experience necessary to develop con- supervised while under their care; and
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(iv) They will use positive methods of mittee must be consulted regarding the child guidance and will not engage in need for such screenings (see 45 CFR corporal punishment, emotional or 1304.3(20) for a definition of volunteer). physical abuse, or humiliation. In addi- (3) Grantee and delegate agencies tion, they will not employ methods of must make mental health and wellness discipline that involve isolation, the information available to staff with use of food as punishment or reward, or concerns that may affect their job per- the denial of basic needs. formance. (2) Grantee and delegate agencies (k) Training and development. (1) must ensure that all employees en- Grantee and delegate agencies must gaged in the award and administration provide an orientation to all new staff, of contracts or other financial awards consultants, and volunteers that in- sign statements that they will not so- cludes, at a minimum, the goals and licit or accept personal gratuities, fa- vors, or anything of significant mone- underlying philosophy of Early Head tary value from contractors or poten- Start and/or Head Start and the ways tial contractors. in which they are implemented by the (3) Personnel policies and procedures program. must include provision for appropriate (2) Grantee and delegate agencies penalties for violating the standards of must establish and implement a struc- conduct. tured approach to staff training and de- (i) Staff performance appraisals. Grant- velopment, attaching academic credit ee and delegate agencies must, at a whenever possible. This system should minimum, perform annual performance be designed to help build relationships reviews of each Early Head Start and among staff and to assist staff in ac- Head Start staff member and use the quiring or increasing the knowledge results of these reviews to identify and skills needed to fulfill their job re- staff training and professional develop- sponsibilities, in accordance with the ment needs, modify staff performance requirements of 45 CFR 1306.23. agreements, as necessary, and assist (3) At a minimum, this system must each staff member in improving his or include ongoing opportunities for staff her skills and professional com- to acquire the knowledge and skills petencies. necessary to implement the content of (j) Staff and volunteer health. (1) the Head Start Program Performance Grantee and delegate agencies must as- Standards. This program must also in- sure that each staff member has an ini- clude: tial health examination (that includes (i) Methods for identifying and re- screening for tuberculosis) and a peri- odic re-examination (as recommended porting child abuse and neglect that by their health care provider or as comply with applicable State and local mandated by State, Tribal, or local laws using, so far as possible, a helpful laws) so as to assure that they do not, rather than a punitive attitude toward because of communicable diseases, pose abusing or neglecting parents and a significant risk to the health or safe- other caretakers; and ty of others in the Early Head Start or (ii) Methods for planning for success- Head Start program that cannot be ful child and family transitions to and eliminated or reduced by reasonable from the Early Head Start or Head accommodation. This requirement Start program. must be implemented consistent with (4) Grantee and delegate agencies the requirements of the Americans must provide training or orientation to with Disabilities Act and section 504 of Early Head Start and Head Start gov- the Rehabilitation Act. erning body members. Agencies must (2) Regular volunteers must be also provide orientation and ongoing screened for tuberculosis in accordance training to Early Head Start and Head with State, Tribal or local laws. In the Start Policy Council and Policy Com- absence of State, Tribal or local law, mittee members to enable them to the Health Services Advisory Com-
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carry out their program governance re- Children must not return to the af- sponsibilities effectively. fected area until it is safe to do so. (Approved by the Office of Management and (9) Outdoor play areas at center- Budget under control number 0970–0148 for based programs must be arranged so as paragraph (j).) to prevent any child from leaving the [61 FR 57210, Nov. 5, 1996, as amended at 63 premises and getting into unsafe and FR 2314, Jan. 15, 1998] unsupervised areas. Enroute to play areas, children must not be exposed to § 1304.53 Facilities, materials, and vehicular traffic without supervision. equipment. (10) Grantee and delegate agencies (a) Head Start physical environment must conduct a safety inspection, at and facilities. (1) Grantee and delegate least annually, to ensure that each fa- agencies must provide a physical envi- cility’s space, light, ventilation, heat, ronment and facilities conducive to and other physical arrangements are learning and reflective of the different consistent with the health, safety and stages of development of each child. developmental needs of children. At a (2) Grantee and delegate agencies minimum, agencies must ensure that: must provide appropriate space for the (i) In climates where such systems conduct of all program activities (see are necessary, there is a safe and effec- 45 CFR 1308.4 for specific access re- tive heating and cooling system that is quirements for children with disabil- insulated to protect children and staff ities). from potential burns; (3) The center space provided by (ii) No highly flammable furnishings, grantee and delegate agencies must be decorations, or materials that emit organized into functional areas that highly toxic fumes when burned are can be recognized by the children and used; that allow for individual activities and (iii) Flammable and other dangerous social interactions. materials and potential poisons are (4) The indoor and outdoor space in stored in locked cabinets or storage fa- Early Head Start or Head Start centers cilities separate from stored medica- in use by mobile infants and toddlers tions and food and are accessible only must be separated from general walk- to authorized persons. All medications, ways and from areas in use by pre- including those required for staff and schoolers. volunteers, are labeled, stored under (5) Centers must have at least 35 lock and key, refrigerated if necessary, square feet of usable indoor space per and kept out of the reach of children; child available for the care and use of (iv) Rooms are well lit and provide children (i.e., exclusive of bathrooms, emergency lighting in the case of halls, kitchen, staff rooms, and storage power failure; places) and at least 75 square feet of us- able outdoor play space per child. (v) Approved, working fire extin- (6) Facilities owned or operated by guishers are readily available; Early Head Start and Head Start (vi) An appropriate number of smoke grantee or delegate agencies must detectors are installed and tested regu- meet the licensing requirements of 45 larly; CFR 1306.30. (vii) Exits are clearly visible and (7) Grantee and delegate agencies evacuation routes are clearly marked must provide for the maintenance, re- and posted so that the path to safety pair, safety, and security of all Early outside is unmistakable (see 45 CFR Head Start and Head Start facilities, 1304.22 for additional emergency proce- materials and equipment. dures); (8) Grantee and delegate agencies (viii) Indoor and outdoor premises must provide a center-based environ- are cleaned daily and kept free of unde- ment free of toxins, such as cigarette sirable and hazardous materials and smoke, lead, pesticides, herbicides, and conditions; other air pollutants as well as soil and (ix) Paint coatings on both interior water contaminants. Agencies must en- and exterior premises used for the care sure that no child is present during the of children do not contain hazardous spraying of pesticides or herbicides. quantities of lead;
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(x) The selection, layout, and mainte- (vii) Stored in a safe and orderly nance of playground equipment and fashion when not in use. surfaces minimize the possibility of in- (2) Infant and toddler toys must be jury to children; made of non-toxic materials and must (xi) Electrical outlets accessible to be sanitized regularly. children prevent shock through the use (3) To reduce the risk of Sudden In- of child-resistant covers, the installa- fant Death Syndrome (SIDS), all sleep- tion of child-protection outlets, or the ing arrangements for infants must use use of safety plugs; firm mattresses and avoid soft bedding (xii) Windows and glass doors are materials such as comforters, pillows, constructed, adapted, or adjusted to fluffy blankets or stuffed toys. prevent injury to children; (xiii) Only sources of water approved Subpart E—Implementation and by the local or State health authority Enforcement are used; (xiv) Toilets and handwashing facili- § 1304.60 Deficiencies and quality im- ties are adequate, clean, in good repair, provement plans. and easily reached by children. (a) Early Head Start and Head Start Toileting and diapering areas must be grantee and delegate agencies must separated from areas used for cooking, comply with the requirements of this eating, or children’s activities; part in accordance with the effective (xv) Toilet training equipment is pro- date set forth in 45 CFR 1304.2. vided for children being toilet trained; (b) If the responsible HHS official, as (xvi) All sewage and liquid waste is a result of information obtained from a disposed of through a locally approved review of an Early Head Start or a sewer system, and garbage and trash Head Start grantee, determines that are stored in a safe and sanitary man- the grantee has one or more defi- ner; and ciencies, as defined in § 1304.3(a)(6) of (xvii) Adequate provisions are made this part, and therefore also is in viola- for children with disabilities to ensure tion of the minimum requirements as their safety, comfort, and participa- defined in § 1304.3(a)(14) of this part, he tion. or she will notify the grantee prompt- (b) Head Start equipment, toys, mate- ly, in writing, of the finding, identi- rials, and furniture. fying the deficiencies to be corrected (1) Grantee and delegate agencies and, with respect to each identified de- must provide and arrange sufficient ficiency, will inform the grantee that equipment, toys, materials, and fur- it must correct the deficiency either niture to meet the needs and facilitate immediately or pursuant to a Quality the participation of children and Improvement Plan. adults. Equipment, toys, materials, (c) An Early Head Start or Head and furniture owned or operated by the Start grantee with one or more defi- grantee or delegate agency must be: ciencies to be corrected under a Qual- (i) Supportive of the specific edu- ity Improvement Plan must submit to cational objectives of the local pro- the responsible HHS official a Quality gram; Improvement Plan specifying, for each (ii) Supportive of the cultural and identified deficiency, the actions that ethnic backgrounds of the children; the grantee will take to correct the de- (iii) Age-appropriate, safe, and sup- ficiency and the timeframe within portive of the abilities and develop- which it will be corrected. In no case mental level of each child served, with can the timeframes proposed in the adaptations, if necessary, for children Quality Improvement Plan exceed one with disabilities; year from the date that the grantee re- (iv) Accessible, attractive, and invit- ceived official notification of the defi- ing to children; ciencies to be corrected. (v) Designed to provide a variety of (d) Within 30 days of the receipt of learning experiences and to encourage the Quality Improvement Plan, the re- each child to experiment and explore; sponsible HHS official will notify the (vi) Safe, durable, and kept in good Early Head Start or Head Start grant- condition; and ee, in writing, of the Plan’s approval or
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specify the reasons why the Plan is dis- unwilling to correct the specified areas approved. of noncompliance within the prescribed (e) If the Quality Improvement Plan time period will be judged to have a de- is disapproved, the Early Head Start or ficiency which must be corrected, ei- Head Start grantee must submit a re- ther immediately or pursuant to a vised Quality Improvement Plan, mak- Quality Improvement Plan (see 45 CFR ing the changes necessary to address 1304.3(a)(6)(iii) and 45 CFR 1304.60). the reasons that the initial Plan was disapproved. PART 1305—ELIGIBILITY, RECRUIT- (f) If an Early Head Start or Head Start grantee fails to correct a defi- MENT, SELECTION, ENROLLMENT ciency, either immediately, or within AND ATTENDANCE IN HEAD the timeframe specified in the ap- START proved Quality Improvement Plan, the responsible HHS official will issue a Sec. letter of termination or denial of re- 1305.1 Purpose and scope. funding. Head Start grantees may ap- 1305.2 Definitions. peal terminations and denials of re- 1305.3 Determining community strengths funding under 45 CFR part 1303, while and needs. 1305.4 Age of children and family income Early Head Start grantees may appeal eligibility. terminations and denials of refunding 1305.5 Recruitment of children. only under 45 CFR part 74 or part 92. A 1305.6 Selection process. deficiency that is not timely corrected 1305.7 Enrollment and re-enrollment. shall be a material failure of a grantee 1305.8 Attendance. to comply with the terms and condi- 1305.9 Policy on fees. tions of an award within the meaning 1305.10 Compliance. of 45 CFR 74.61(a)(1), 45 CFR 74.62 and 45 AUTHORITY: 42 U.S.C. 9801 et seq. CFR 92.43(a). SOURCE: 57 FR 46725, Oct. 9, 1992, unless (The information and collection require- otherwise noted. ments are approved by the Office of Manage- ment and Budget (OMB) under OMB Control § 1305.1 Purpose and scope. Number 0970–0148 for paragraphs (b) and (c).) This part prescribes requirements for [61 FR 57210, Nov. 5, 1996, as amended at 63 determining community needs and re- FR 2314, Jan. 15, 1998] cruitment areas. It contains require- § 1304.61 Noncompliance. ments and procedures for the eligi- bility determination, recruitment, se- (a) If the responsible HHS official, as lection, enrollment and attendance of a result of information obtained from a children in Head Start programs and review of an Early Head Start or Head explains the policy concerning the Start grantee, determines that the charging of fees by Head Start pro- grantee is not in compliance with Fed- grams. These requirements are to be eral or State requirements (including, used in conjunction with the Head but not limited to, the Head Start Act Start Program Performance Standards or one or more of the regulations under at 45 CFR part 1304, as applicable. parts 1301, 1304, 1305, 1306 or 1308 of this title) in ways that do not constitute a [57 FR 46725, Oct. 9, 1992, as amended at 61 FR deficiency, he or she will notify the 57226, Nov. 5, 1996] grantee promptly, in writing, of the finding, identifying the area or areas of § 1305.2 Definitions. noncompliance to be corrected and (a) Children with disabilities means specifying the period in which they children with mental retardation, hear- must corrected. ing impairments including deafness, (b) Early Head Start or Head Start speech or language impairments, visual grantees which have received written impairments including blindness, seri- notification of an area of noncompli- ous emotional disturbance, orthopedic ance to be corrected must correct the impairments, autism, traumatic brain area of noncompliance within the time injury, other health impairments or period specified by the responsible HHS specific learning disabilities who, by official. A grantee which is unable or reason thereof need special education
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and related services. The term ‘‘chil- (i) Income means gross cash income dren with disabilities’’ for children and includes earned income, military aged 3 to 5, inclusive, may, at a State’s income (including pay and allowances), discretion, include children experi- veterans benefits, Social Security ben- encing developmental delays, as de- efits, unemployment compensation, fined by the State and as measured by and public assistance benefits. Addi- appropriate diagnostic instruments and tional examples of gross cash income procedures, in one or more of the fol- are listed in the definition of ‘‘income’’ lowing areas: physical development, which appears in U.S. Bureau of the cognitive development, communication Census, Current Population Reports, development, social or emotional de- Series P–60–185. velopment, or adaptive development; (j) Income guidelines means the offi- and who, by reason thereof, need spe- cial poverty line specified in section cial education and related services. 652 of the Head Start Act. (b) Enrollment means the official ac- (k) Indian Tribe means any Tribe, ceptance of a family by a Head Start band, nation, pueblo, or other orga- program and the completion of all pro- nized group or community of Indians, cedures necessary for a child and fam- including any Native village described ily to begin receiving services. in section 3(c) of the Alaska Native (c) Enrollment opportunities mean va- Claims Settlement Act (43 U.S.C. cancies that exist at the beginning of 1602(c)) or established pursuant to such the enrollment year, or during the year Act (43 U.S.C. 1601 et seq.), that is rec- because of children who leave the pro- ognized as eligible for special programs gram, that must be filled for a program and services provided by the United to achieve and maintain its funded en- States to Indians because of their sta- rollment. tus as Indians. (d) Enrollment year means the period (l) Low-income family means a family of time, not to exceed twelve months, whose total annual income before taxes during which a Head Start program is equal to, or less than, the income provides center or home-based services guidelines. For the purpose of eligi- to a group of children and their fami- bility, a child from a family that is re- lies. ceiving public assistance or a child in (e) Family means all persons living in foster care is eligible even if the family the same household who are: income exceeds the income guidelines. (1) Supported by the income of the (m) Migrant family means, for pur- parent(s) or guardian(s) of the child en- poses of Head Start eligibility, a fam- rolling or participating in the program, ily with children under the age of com- and (2) related to the parent(s) or pulsory school attendance who changed guardian(s) by blood, marriage, or their residence by moving from one ge- adoption. ographic location to another, either (f) Funded enrollment means the num- intrastate or interstate, within the ber of children which the Head Start preceding two years for the purpose of grantee is to serve, as indicated on the engaging in agricultural work that in- grant award. volves the production and harvesting of (g) Head Start eligible means a child tree and field crops and whose family that meets the requirements for age income comes primarily from this ac- and family income as established in tivity. this regulation or, if applicable, as es- (n) Recruitment means the systematic tablished by grantees that meet the re- ways in which a Head Start program quirements of section 645(a)(2) of the identifies families whose children are Head Start Act. Up to ten percent of eligible for Head Start services, in- the children enrolled may be from fam- forms them of the services available, ilies that exceed the low-income guide- and encourages them to apply for en- lines. Indian Tribes meeting the condi- rollment in the program. tions specified in 45 CFR 1305.4(b)(3) are (o) Recruitment area means that geo- excepted from this limitation. graphic locality within which a Head (h) Head Start program means a Head Start program seeks to enroll Head Start grantee or its delegate agen- Start children and families. The re- cy(ies). cruitment area can be the same as the
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service area or it can be a smaller area (c) Each Early Head Start and Head or areas within the service area. Start grantee must conduct a Commu- (p) Responsible HHS official means the nity Assessment within its service area official of the U.S. Department of once every three years. The Commu- Health and Human Services having au- nity Assessment must include the col- thority to make Head Start grant lection and analysis of the following awards, or his or her designee. information about the grantee’s Early (q) Selection means the systematic Head Start or Head Start area: process used to review all applications (1) The demographic make-up of Head for Head Start services and to identify Start eligible children and families, in- those children and families that are to cluding their estimated number, geo- be enrolled in the program. graphic location, and racial and ethnic (r) Service area means the geographic composition; area identified in an approved grant ap- (2) Other child development and child plication within which a grantee may care programs that are serving Head provide Head Start services. Start eligible children, including pub- (s) Vacancy means an unfilled enroll- licly funded State and local preschool ment opportunity for a child and fam- programs, and the approximate number ily in the Head Start program. of Head Start eligible children served [57 FR 46725, Oct. 9, 1992, as amended at 58 FR by each; 5518, Jan. 21, 1993; 63 FR 12657, Mar. 16, 1998] (3) The estimated number of children with disabilities four years old or § 1305.3 Determining community younger, including types of disabilities strengths and needs. and relevant services and resources (a) Each Early Head Start grantee provided to these children by commu- and Head Start grantee must identify nity agencies; its proposed service area in its Head (4) Data regarding the education, Start grant application and define it by health, nutrition and social service county or sub-county area, such as a needs of Head Start eligible children municipality, town or census tract or a and their families; federally-recognized Indian reserva- (5) The education, health, nutrition tion. With regard to Indian Tribes, the and social service needs of Head Start service area may include areas des- eligible children and their families as ignated as near-reservation by the Bu- defined by families of Head Start eligi- reau of Indian Affairs (BIA) or, in the ble children and by institutions in the absence of such a designation, a Tribe community that serve young children; may propose to define its service area (6) Resources in the community that to include nearby areas where Indian could be used to address the needs of children and families native to the res- Head Start eligible children and their ervation reside, provided that the serv- families, including assessments of their ice area is approved by the Tribe’s gov- availability and accessibility. erning council. Where the service area (d) The Early Head Start and Head of a Tribe includes a non-reservation Start grantee and delegate agency area, and that area is also served by must use information from the Com- another Head Start grantee, the Tribe munity Assessment to: will be authorized to serve children (1) Help determine the grantee’s phi- from families native to the reservation losophy, and its long-range and short- residing in the non-reservation area as range program objectives; well as children from families residing (2) Determine the type of component on the reservation. services that are most needed and the (b) The grantee’s service area must program option or options that will be be approved, in writing, by the respon- implemented; sible HHS official in order to assure (3) Determine the recruitment area that the service area is of reasonable that will be served by the grantee, if size and, except in situations where a limitations in the amount of resources near-reservation designation or other make it impossible to serve the entire expanded service area has been ap- service area. proved for a Tribe, does not overlap (4) If there are delegate agencies, de- with that of other Head Start grantees. termine the recruitment area that will
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be served by the grantee and the re- gram is located, except in cases where cruitment area that will be served by the Head Start program’s approved each delegate agency. grant provides specific authority to (5) Determine appropriate locations serve younger children. Examples of for centers and the areas to be served such exceptions are programs serving by home-based programs; and children of migrant families and Early (6) Set criteria that define the types Head Start programs. of children and families who will be (b)(1) At least 90 percent of the chil- given priority for recruitment and se- dren who are enrolled in each Head lection. Start program must be from low-in- (e) In each of the two years following come families. completion of the Community Assess- (2) Except as provided in paragraph ment the grantee must conduct a re- (b)(3) of this section, up to ten percent view to determine whether there have of the children who are enrolled may be been significant changes in the infor- children from families that exceed the mation described in paragraph (b) of low-income guidelines but who meet this section. If so, the Community As- the criteria that the program has es- sessment must be updated and the deci- tablished for selecting such children sions described in paragraph (c) of this and who would benefit from Head Start section must be reconsidered. services. (f) The recruitment area must in- (3) A Head Start program operated by clude the entire service area, unless the resources available to the Head an Indian Tribe may enroll more than Start grantee are inadequate to serve ten percent of its children from fami- the entire service area. lies whose incomes exceed the low-in- (g) In determining the recruitment come guidelines when the following area when it does not include the en- conditions are met: tire service area, the grantee must: (i) All children from Indian and non- (1) Select an area or areas that are Indian families living on the reserva- among those having the greatest need tion that meet the low-income guide- for Early Head Start or Head Start lines who wish to be enrolled in Head services as determined by the Commu- Start are served by the program; nity Assessment; and (ii) All children from income-eligible (2) Include as many Head Start eligi- Indian families native to the reserva- ble children as possible within the re- tion living in non-reservation areas, cruitment area, so that: approved as part of the Tribe’s service (i) The greatest number of Head area, who wish to be enrolled in Head Start eligible children can be recruited Start are served by the program. In and have an opportunity to be consid- those instances in which the non-res- ered for selection and enrollment in ervation area is not served by another the Head Start program, and Head Start program, the Tribe must (ii), the Head Start program can en- serve all of the income-eligible Indian roll the children and families with the and non-Indian children whose families greatest need for its services. wish to enroll them in Head Start prior to serving over-income children. (The information collection requirements are approved by the Office of Management (iii) The Tribe has the resources and Budget (OMB) under OMB Control Num- within its Head Start grant or from ber 0970–0124 for paragraphs (b) and (d).) other non-Federal sources to enroll children from families whose incomes [57 FR 46725, Oct. 9, 1992, as amended at 61 FR 57226, Nov. 5, 1996; 63 FR 2314, Jan. 15, 1998; 63 exceed the low-income guidelines with- FR 12657, Mar. 16, 1998] out using additional funds from HHS intended to expand Head Start serv- § 1305.4 Age of children and family in- ices; and come eligibility. (iv) At least 51 percent of the chil- (a) To be eligible for Head Start serv- dren to be served by the program are ices, a child must be at least three from families that meet the income- years old by the date used to determine eligibility guidelines. eligibility for public school in the com- (4) Programs which meet the condi- munity in which the Head Start pro- tions of paragraph (b)(3) of this section
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must annually set criteria that are ap- than the enrollment opportunities that proved by the Policy Council and the are anticipated to be available over the Tribal Council for selecting over-in- course of the next enrollment year in come children who would benefit from order to select those with the greatest such a program. need for Head Start services. (c) The family income must be verified by the Head Start program be- § 1305.6 Selection process. fore determining that a child is eligible (a) Each Head Start program must to participate in the program. have a formal process for establishing (d) Verification must include exam- selection criteria and for selecting ination of any of the following: Indi- children and families that considers all vidual Income Tax Form 1040, W–2 eligible applicants for Head Start serv- forms, pay stubs, pay envelopes, writ- ten statements from employers, or doc- ices. The selection criteria must be umentation showing current status as based on those contained in paragraphs recipients of public assistance. (b) and (c) of this section. (e) A signed statement by an em- (b) In selecting the children and fam- ployee of the Head Start program, ilies to be served, the Head Start pro- identifying which of these documents gram must consider the income of eli- was examined and stating that the gible families, the age of the child, the child is eligible to participate in the availability of kindergarten or first program, must be maintained to indi- grade to the child, and the extent to cate that income verification has been which a child or family meets the cri- made. teria that each program is required to establish in § 1305.3(c)(6). Migrant pro- [57 FR 46725, Oct. 9, 1992, as amended at 63 FR grams must also give priority to chil- 12658, Mar. 16, 1998] dren from families whose pursuit of ag- § 1305.5 Recruitment of children. ricultural work required them to relo- (a) In order to reach those most in cate most frequently within the pre- need of Head Start services, each Head vious two-year period. Start grantee and delegate agency (c) At least 10 percent of the total must develop and implement a recruit- number of enrollment opportunities in ment process that is designed to ac- each grantee and each delegate agency tively inform all families with Head during an enrollment year must be Start eligible children within the re- made available to children with dis- cruitment area of the availability of abilities who meet the definition for services and encourage them to apply children with disabilities in § 1305.2(a). for admission to the program. This An exception to this requirement will process may include canvassing the be granted only if the responsible HHS local community, use of news releases official determines, based on such sup- and advertising, and use of family re- porting evidence he or she may require, ferrals and referrals from other public that the grantee made a reasonable ef- and private agencies. fort to comply with this requirement (b) During the recruitment process but was unable to do so because there that occurs prior to the beginning of was an insufficient number of children the enrollment year, a Head Start pro- with disabilities in the recruitment gram must solicit applications from as area who wished to attend the program many Head Start eligible families and for whom the program was an ap- within the recruitment area as pos- propriate placement based on their In- sible. If necessary, the program must dividual Education Plans (IEP) or Indi- assist families in filling out the appli- vidualized Family Service Plans cation form in order to assure that all (IFSP), with services provided directly information needed for selection is by Head Start or Early Head Start in completed. conjunction with other providers. (c) Each program, except migrant (d) Each Head Start program must programs, must obtain a number of ap- develop at the beginning of each enroll- plications during the recruitment proc- ment year and maintain during the ess that occurs prior to the beginning year a waiting list that ranks children of the enrollment year that is greater according to the program’s selection
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criteria to assure that eligible children § 1305.8 Attendance. enter the program as vacancies occur. (a) When the monthly average daily [57 FR 46725, Oct. 9, 1992, as amended at 63 FR attendance rate in a center-based pro- 12658, Mar. 16, 1998] gram falls below 85 percent, a Head Start program must analyze the causes § 1305.7 Enrollment and re-enrollment. of absenteeism. The analysis must in- (a) Each child enrolled in a Head clude a study of the pattern of absences Start program, except those enrolled in for each child, including the reasons a migrant program, must be allowed to for absences as well as the number of remain in Head Start until kinder- absences that occur on consecutive days. garten or first grade is available for (b) If the absences are a result of ill- the child in the child’s community, ex- ness or if they are well documented ab- cept that the Head Start program may sences for other reasons, no special ac- choose not to enroll a child when there tion is required. If, however, the ab- are compelling reasons for the child sences result from other factors, in- not to remain in Head Start, such as cluding temporary family problems when there is a change in the child’s that affect a child’s regular attend- family income and there is a child with ance, the program must initiate appro- a greater need for Head Start services. priate family support procedures for all (b) A Head Start grantee must main- children with four or more consecutive tain its funded enrollment level. When unexcused absences. These procedures a program determines that a vacancy must include home visits or other di- exists, no more than 30 calendar days rect contact with the child’s parents. may elapse before the vacancy is filled. Contacts with the family must empha- A program may elect not to fill a va- size the benefits of regular attendance, cancy when 60 calendar days or less re- while at the same time remaining sen- main in the program’s enrollment year. sitive to any special family cir- (c) If a child has been found income cumstances influencing attendance eligible and is participating in a Head patterns. All contacts with the child’s Start program, he or she remains in- family as well as special family sup- come eligible through that enrollment port service activities provided by pro- gram staff must be documented. year and the immediately succeeding (c) In circumstances where chronic enrollment year. Children who are en- absenteeism persists and it does not rolled in a program receiving funds seem feasible to include the child in ei- under the authority of section 645A of ther the same or a different program the Head Start Act (programs for fami- option, the child’s slot must be consid- lies with infants and toddlers, or Early ered an enrollment vacancy. Head Start) remain income eligible while they are participating in the pro- § 1305.9 Policy on fees. gram. When a child moves from a pro- A Head Start program must not pre- gram serving infants and toddlers to a scribe any fee schedule or otherwise Head Start program serving children provide for the charging of any fees for age three and older, the family income participation in the program. If the must be reverified. If one agency oper- family of a child determined to be eli- ates both an Early Head Start and a gible for participation by a Head Start Head Start program, and the parents program volunteers to pay part or all wish to enroll their child who has been of the costs of the child’s participation, enrolled in the agency’s Early Head the Head Start program may accept Start program, the agency must en- the voluntary payments and record the sure, whenever possible, that the child payments as program income. receives Head Start services until en- Under no circumstances shall a Head rolled in school. Start program solicit, encourage, or in any other way condition a child’s en- [57 FR 46725, Oct. 9, 1992, as amended at 63 FR rollment or participation in the pro- 12658, Mar. 16, 1998] gram upon the payment of a fee.
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§ 1305.10 Compliance. developed to help maintain and im- A grantee’s failure to comply with prove the quality of Early Head Start the requirements of this Part may re- and Head Start and to help promote sult in a denial of refunding or termi- lasting benefits to the children and nation in accordance with 45 CFR part families being served. These require- 1303. ments are to be used in conjunction with the Head Start Program Perform- ance Standards at 45 CFR Part 1304, as PART 1306—HEAD START STAFFING applicable. REQUIREMENTS AND PROGRAM OPTIONS [61 FR 57226, Nov. 5, 1996]
Subpart A—General § 1306.2 Effective dates. (a) Except as provided in paragraph Sec. 1306.1 Purpose and scope. (b) of this section, Head Start grantees 1306.2 Effective dates. funded or refunded after June 7, 1993, 1306.3 Definitions. must comply with these requirements by such times in their grant cycles as Subpart B—Head Start Program Staffing new groups of children begin receiving Requirements services. This does not preclude grant- 1306.20 Program staffing patterns. ees from voluntarily coming into com- 1306.21 Staff qualification requirements. pliance with these regulations prior to 1306.22 Volunteers. the effective date. 1306.23 Training. (b) With respect to the requirements of § 1306.32(b)(2), grantees that are cur- Subpart C—Head Start Program Options rently operating classes in double ses- 1306.30 Provision of comprehensive child de- sion center-based options for less than velopment services. three and a half hours per day, but for 1306.31 Choosing a Head Start program op- at least three hours per day, may con- tion. tinue to do so until September 1, 1995, 1306.32 Center-based program option. at which time they must comply with 1306.33 Home-based program option. 1306.34 Combination program option. the three and one-half hour minimum 1306.35 Additional Head Start program op- class time requirement. tion variations. 1306.36 Compliance waiver. § 1306.3 Definitions. AUTHORITY: 42 U.S.C. 9801 et seq. (a) Center-based program option means SOURCE: 57 FR 58092, Dec. 8, 1992, unless Head Start services provided to chil- otherwise noted. dren primarily in classroom settings. (b) Combination program option means Subpart A—General Head Start services provided to chil- dren in both a center setting and § 1306.1 Purpose and scope. through intensive work with the This Part sets forth requirements for child’s parents and family at home. Early Head Start and Head Start pro- (c) Days of operation means the gram staffing and program options planned days during which children that all Early Head Start and Head will be receiving direct Head Start Start grantee and delegate agencies, component services in a classroom, on with the exception of Parent Child Cen- a field trip or on trips for health-re- ter programs, must meet. The excep- lated activities, in group socialization tion for Parent Child Centers is for fis- or when parents are receiving a home cal years 1995, 1996, and 1997 as con- visit. sistent with section 645A(e)(2) of the (d) Double session variation means a Head Start Act, as amended. These re- variation of the center-based program quirements, including those pertaining option that operates with one teacher to staffing patterns, the choice of the who works with one group of children program options to be implemented in a morning session and a different and the acceptable ranges in the imple- group of children in an afternoon ses- mentation of those options, have been sion.
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(e) Full-day variation means a vari- Subpart B—Head Start Program ation of the center-based program op- Staffing Requirements tion in which program operations con- tinue for longer than six hours per day. § 1306.20 Program staffing patterns. (f) Group socialization activities means (a) Grantees must meet the require- the sessions in which children and par- ments of 45 CFR 1304.52(g), Classroom ents enrolled in the home-based or staffing and home visitors, in addition combination program option interact to the requirements of this Section. with other home-based or combination children and parents in a Head Start (b) Grantees must provide adequate classroom, community facility, home, supervision of their staff. or on a field trip. (c) Grantees operating center-based (g) Head Start class means a group of program options must employ two paid children supervised and taught by two staff persons (a teacher and a teacher paid staff members (a teacher and a aide or two teachers) for each class. teacher aide or two teachers) and, Whenever possible, there should be a where possible, a volunteer. third person in the classroom who is a (h) Head Start parent means a Head volunteer. Start child’s mother or father, other (d) Grantees operating home-based family member who is a primary care- program options must employ home giver, foster parent, guardian or the visitors responsible for home visits and person with whom the child has been group socialization activities. placed for purposes of adoption pending (e) Grantees operating a combination a final adoption decree. program option must employ, for their (i) Head Start program is one operated classroom operations, two paid staff by a Head Start grantee or delegate persons, a teacher and a teacher aide or agency. two teachers, for each class. Whenever (j) Home-based program option means possible, there should be a third person Head Start services provided to chil- in the classroom who is a volunteer. dren, primarily in the child’s home, They must employ staff for home visits through intensive work with the who meet the qualifications the grant- child’s parents and family as the pri- ee requires for home visitors. mary factor in the growth and develop- (f) Classroom staff and home visitors ment of the child. must be able to communicate with the (k) Home visits means the visits made families they serve either directly or to a child’s home by the class teacher through a translator. They should also in a center-based program option, or be familiar with the ethnic background home visitors in a home-based program of these families. option, for the purpose of assisting par- [57 FR 58092, Dec. 8, 1992, as amended at 61 ents in fostering the growth and devel- FR 57226, Nov. 5, 1996] opment of their child. (l) Hours of operation means the § 1306.21 Staff qualification require- planned hours per day during which ments. children and families will be receiving Head Start programs must comply direct Head Start component services with section 648A of the Head Start Act in a classroom, on a field trip, while re- and any subsequent amendments re- ceiving medical or dental services, or garding the qualifications of classroom during a home visit or group socializa- teachers. tion activity. Hours of operation do not include travel time to and from the [61 FR 57226, Nov. 5, 1996] center at the beginning and end of a session. § 1306.22 Volunteers. (m) Parent-teacher conference means (a) Head Start programs must use the meeting held at the Head Start volunteers to the fullest extent pos- center between the child’s teacher and sible. Head Start grantees must de- the child’s parents during which the velop and implement a system to ac- child’s progress and accomplishments tively recruit, train and utilize volun- are discussed. teers in the program.
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(b) Special efforts must be made to formance Standards related to health have volunteer participation, espe- and safety as found in 45 CFR 1304.53(a), cially parents, in the classroom and Physical environment and facilities. during group socialization activities. (d) All grantees must identify, secure and use community resources in the § 1306.23 Training. provision of services to Head Start (a) Head Start grantees must provide children and their families prior to pre-service training and in-service using Head Start funds for these serv- training opportunities to program staff ices. and volunteers to assist them in ac- [57 FR 58092, Dec. 8, 1992, as amended at 61 quiring or increasing the knowledge FR 57226, Nov. 5, 1996; 63 FR 2314, Jan. 15, and skills they need to fulfill their job 1998] responsibilities. This training must be directed toward improving the ability § 1306.31 Choosing a Head Start pro- of staff and volunteers to deliver serv- gram option. ices required by Head Start regulations (a) Grantees may choose to imple- and policies. ment one or more than one of three (b) Head Start grantees must provide program options: a center-based op- staff with information and training tion, a home-based program option or a about the underlying philosophy and combination program option. goals of Head Start and the program (b) The program option chosen must options being implemented. meet the needs of the children and fam- ilies as indicated by the community Subpart C—Head Start Program needs assessment conducted by the Options grantee. (c) When assigning children to a par- § 1306.30 Provisions of comprehensive ticular program option, Head Start child development services. grantees that operate more than one (a) All Head Start grantees must pro- program option must consider such fac- vide comprehensive child development tors as the child’s age, developmental services, as defined in the Head Start level, disabilities, health or learning Performance Standards. problems, previous preschool experi- (b) All Head Start grantees must pro- ences and family situation. Grantees vide classroom or group socialization must also consider parents’ concerns activities for the child as well as home and wishes prior to making final as- visits to the parents. The major pur- signments. pose of the classroom or socialization activities is to help meet the child’s § 1306.32 Center-based program op- development needs and to foster the tion. child’s social competence. The major (a) Class size. (1) Head Start classes purpose of the home visits is to en- must be staffed by a teacher and an hance the parental role in the growth aide or two teachers and, whenever and development of the child. possible, a volunteer. (c) The facilities used by Early Head (2) Grantees must determine their Start and Head Start grantee and dele- class size based on the predominant age gate agencies for regularly scheduled of the children who will participate in center-based and combination program the class and whether or not a center- option classroom activities or home- based double session variation is being based group socialization activities implemented. must comply with State and local re- (3) For classes serving predominantly quirements concerning licensing. In four or five-year-old children, the aver- cases where these licensing standards age class size of that group of classes are less comprehensive or less strin- must be between 17 and 20 children, gent than the Head Start regulations, with no more than 20 children enrolled or where no State or local licensing in any one class. standards are applicable, grantee and (4) When double session classes serve delegate agencies are required to as- predominantly four or five-year-old- sure that their facilities are in compli- children, the average class size of that ance with the Head Start Program Per- group of classes must be between 15
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and 17 children. A double session class prove enrollment of fewer children for four or five-year old children may than required above. have no more than 17 children enrolled. (12) The chart below may be used for (See paragraph (c) of this section for easy reference: other requirements regarding the dou- Predominant age of children Funded class size [Funded ble session variation.) in the class enrollment] (5) For classes serving predominantly three-year-old children, the average 4 and 5 year olds ...... Program average of 17±20 children enrolled per class class size of that group of classes must in these classes. No more be between 15 and 17 children, with no than 20 children enrolled in more than 17 children enrolled in any any class. 4 and 5 year olds in double Program average of 15±17 one class. session classes. children enrolled per class (6) When double session classes serve in these classes. No more predominantly three-year-old children, than 17 children enrolled in the average class size of that group of any class. 3 year olds ...... Program average of 15±17 classes must be between 13 and 15 chil- children enrolled per class dren. A double session class for three- in these classes. No more year-old children may have no more than 17 children enrolled in any class. than 15 children enrolled. (See para- 3 year olds in double session Program average of 13±15 graph (c) of this section for other re- classes. children enrolled per class quirements regarding the double ses- in these classes. No more sion variation.) than 15 children enrolled in any class. (7) It is recommended that at least 13 children be enrolled in each center- (b) Center-based program option re- based option class where feasible. quirements. (1) Classes must operate for (8) A class is considered to serve pre- four or five days per week or some dominantly four- or five-year-old chil- combination of four and five days per dren if more than half of the children week. in the class will be four or five years (2) Classes must operate for a min- old by whatever date is used by the imum of three and one-half to a max- State or local jurisdiction in which the imum of six hours per day with four Head Start program is located to deter- hours being optimal. mine eligibility for public school. (3) The annual number of required (9) A class is considered to serve pre- days of planned class operations (days dominantly three-year-old children if when children are scheduled to attend) more than half of the children in the is determined by the number of days class will be three years old by what- per week each program operates. Pro- ever date is used by the State or local grams that operate for four days per jurisdiction in which Head Start is lo- week must provide at least 128 days per cated to determine eligibility for pub- year of planned class operations. Pro- lic school. grams that operate for five days per (10) Head Start grantees must deter- week must provide at least 160 days per mine the predominant age of children year of planned class operations. in the class at the start of the year. Grantees implementing a combination There is no need to change that deter- of four and five days per week must mination during the year. plan to operate between 128 and 160 (11) In some cases, State or local li- days per year. The minimum number of censing requirements may be more planned days of service per year can be stringent than these class require- determined by computing the relative ments, preventing the required min- number of four and five day weeks that imum numbers of children from being the program is in operation. All center- enrolled in the facility used by Head based program options must provide a Start. Where this is the case, Head minimum of 32 weeks of scheduled days Start grantees must try to find alter- of class operations over an eight or native facilities that satisfy licensing nine month period. Every effort should requirements for the numbers of chil- be made to schedule makeup classes dren cited above. If no alternative fa- using existing resources if planned cilities are available, the responsible class days fall below the number re- HHS official has the discretion to ap- quired per year.
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(4) Programs must make a reasonable must make every effort to conduct estimate of the number of days during home visits. a year that classes may be closed due (c) Double session variation. (1) A cen- to problems such as inclement weather ter-based option with a double session or illness, based on their experience in variation employs a single teacher to previous years. Grantees must make work with one group of children in the provisions in their budgets and pro- morning and a different group of chil- gram plans to operate makeup classes dren in the afternoon. Because of the and provide these classes, when needed, larger number of children and families to prevent the number of days of serv- to whom the teacher must provide ice available to the children from fall- services, double session program op- ing below 128 days per year. tions must comply with the require- (5) Each individual child is not re- ments regarding class size explained in quired to receive the minimum days of paragraph (a) of this section and with service, although this is to be encour- all other center-based requirements in aged in accordance with Head Start paragraph (b) of this section with the policies regarding attendance. The exceptions and additions noted in para- minimum number of days also does not graphs (c) (2) and (3) of this section. apply to children with disabilities (2) Each program must operate class- whose individualized education plan es for four days per week. may require fewer planned days of (3) Each double session classroom service in the Head Start program. staff member must be provided ade- (6) Head Start grantees operating mi- quate break time during the course of grant programs are not subject to the the day. In addition, teachers, aides requirement for a minimum number of and volunteers must have appropriate planned days, but must make every ef- time to prepare for each session to- fort to provide as many days of service gether, to set up the classroom envi- as possible to each migrant child and ronment and to give individual atten- family. tion to children entering and leaving (7) Staff must be employed for suffi- the center. cient time to allow them to participate (d) Full day variation. (1) A Head in pre-service training, to plan and set Start grantee implementing a center- up the program at the start of the year, based program option may operate a to close the program at the end of the full day variation and provide more year, to conduct home visits, to con- than six hours of class operations per duct health examinations, screening day using Head Start funds. These pro- and immunization activities, to main- grams must comply with all the re- tain records, and to keep service com- quirements regarding the center-based ponent plans and activities current and program option found in paragraphs (a) relevant. These activities should take and (b) of this section with the excep- place outside of the time scheduled for tion of paragraph (b)(2) regarding the classes in center-based programs or hours of service per day. home visits in home-based programs. (2) Programs are encouraged to meet (8) Head Start grantees must develop the needs of Head Start families for and implement a system that actively full day services by securing funds encourages parents to participate in from other agencies. Before imple- two home visits annually for each child menting a full day variation of a cen- enrolled in a center-based program op- ter-based option, a Head Start grantee tion. These visits must be initiated and should demonstrate that alternative carried out by the child’s teacher. The enrollment opportunities or funding child may not be dropped from the pro- from non-Head Start sources are not gram if the parents will not participate available for Head Start families need- in the visits. ing full-day child care services. (9) Head Start grantees operating mi- (3) Head Start grantees may provide grant programs are required to plan for full day services only to those children a minimum of two parent-teacher con- and families with special needs that ferences for each child during the time justify full day services or to those they serve that child. Should time and children whose parents are employed or circumstance allow, migrant programs in job training with no caregiver
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present in the home. The records of them provide learning opportunities each child receiving services for more that enhance their child’s growth and than six hours per day must show how development. each child meets the criteria stated (2) Home visits must, over the course above. of a month, contain elements of all (e) Non-Head Start services. Grantees Head Start program components. The may charge for services which are pro- home visitor is the person responsible vided outside the hours of the Head for introducing, arranging and/or pro- Start program. viding Head Start services. (c) Group socialization activities § 1306.33 Home-based program option. must be focused on both the children (a) Grantees implementing a home- and parents. They may not be con- based program option must: ducted by the home visitor with baby- (1) Provide one home visit per week sitters or other temporary caregivers. per family (a minimum of 32 home vis- (1) The purpose of these socialization its per year) lasting for a minimum of activities for the children is to empha- 1 and 1⁄2 hours each. size peer group interaction through age (2) Provide, at a minimum, two group appropriate activities in a Head Start socialization activities per month for classroom, community facility, home, each child (a minimum of 16 group so- or on a field trip. The children are to cialization activities each year). be supervised by the home visitor with (3) Make up planned home visits or parents observing at times and actively scheduled group socialization activities participating at other times. that were canceled by the grantee or (2) These activities must be designed by program staff when this is necessary so that parents are expected to accom- to meet the minimums stated above. pany their children to the group social- Medical or social service appointments ization activities at least twice each may not replace home visits or sched- month to observe, to participate as vol- uled group socialization activities. unteers or to engage in activities de- (4) Allow staff sufficient employed signed specifically for the parents. time to participate in pre-service (3) Grantees must follow the nutri- training, to plan and set up the pro- tion requirements specified in 45 CFR gram at the start of the year, to close 1304.23(b)(2) and provide appropriate the program at the end of the year, to snacks and meals to the children dur- maintain records, and to keep compo- ing group socialization activities. nent and activities plans current and [57 FR 58092, Dec. 8, 1992, as amended at 61 relevant. These activities should take FR 57227, Nov. 5, 1996] place when no home visits or group so- cialization activities are planned. § 1306.34 Combination program option. (5) Maintain an average caseload of 10 (a) Combination program option re- to 12 families per home visitor with a quirements: (1) Grantees implementing maximum of 12 families for any indi- a combination program option must vidual home visitor. provide class sessions and home visits (b) Home visits must be conducted by that result in an amount of contact trained home visitors with the content with children and families that is, at a of the visit jointly planned by the minimum, equivalent to the services home visitor and the parents. Home provided through the center-based pro- visitors must conduct the home visit gram option or the home-based pro- with the participation of parents. gram option. Home visits may not be conducted by (2) Acceptable combinations of min- the home visitor with only babysitters imum number of class sessions and cor- or other temporary caregivers in at- responding number of home visits are tendance. shown below. Combination programs (1) The purpose of the home visit is must provide these services over a pe- to help parents improve their par- riod of 8 to 12 months. enting skills and to assist them in the use of the home as the child’s primary Number of class sessions Number of learning environment. The home vis- home visits itor must work with parents to help 96 ...... 8
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(3) If a grantee operates a double ses- Number of class sessions Number of home visits sion or a full day variation, it must 92±95 ...... 9 meet the provisions concerning double- 88±91 ...... 10 sessions contained in § 1306.32(c)(1) and 84±87 ...... 11 (3) and the provisions for the center- 80±83 ...... 12 76±79 ...... 13 based program option’s full day vari- 72±75 ...... 14 ation found in § 1306.32(d). 68±71 ...... 15 (c) Requirements for home visits: (1) 64±67 ...... 16 60±63 ...... 17 Home visits must last for a minimum 56±59 ...... 18 of 1 and 1⁄2 hours each. 52±55 ...... 19 (2) The provisions of the following 48±51 ...... 20 44±47 ...... 21 section, concerning the home-based 40±43 ...... 22 program option, must be adhered to by 36±39 ...... 23 grantees implementing the combina- 32±35 ...... 24 tion program option: § 1306.33(a) (4) and (3) The following are examples of var- (5); and § 1306.33(b). ious configurations that are possible § 1306.35 Additional Head Start pro- for a program that operates for 32 gram option variations. weeks: In addition to the center-based, • A program operating classes three days a home-based and combination program week and providing one home visit a month options defined above, the Commis- (96 classes and 8 home visits a year); sioner of the Administration on Chil- • A program operating classes two days a week and providing two home visits a month dren, Youth and Families retains the (64 classes and 16 home visits a year); right to fund alternative program vari- • A program operating classes one day a ations to meet the unique needs of week and providing three home visits a communities or to demonstrate or test month (32 classes and 24 home visits a year). alternative approaches for providing (4) Grantees operating the combina- Head Start services. tion program option must make a rea- sonable estimate of the number of days § 1306.36 Compliance waiver. during a year that centers may be An exception to one or more of the closed due to problems such as inclem- requirements contained in §§ 1306.32 ent weather or illness, based on their through 1306.34 of subpart C will be experience in previous years. Grantees granted only if the Commissioner of must make provisions in their budgets the Administration on Children, Youth and program plans to operate make-up and Families determines, on the basis classes up to the estimated number, of supporting evidence, that the grant- and provide these classes, when nec- ee made a reasonable effort to comply essary, to prevent the number of days with the requirement but was unable of classes from falling below the num- to do so because of limitations or cir- ber required by paragraph (a)(2) of this cumstances with a specific community section. Grantees must make up or communities served by the grantee. planned home visits that were canceled by the program or by the program staff PART 1308—HEAD START PRO- if this is necessary to meet the mini- GRAM PERFORMANCE STAND- mums required by paragraph (a)(2) of ARDS ON SERVICES FOR CHIL- this section. Medical or social service appointments may not replace home DREN WITH DISABILITIES visits. (b) Requirements for class sessions: (1) Subpart A—General Grantees implementing the combina- Sec. tion program option must comply with 1308.1 Purpose. the class size requirements contained 1308.2 Scope. in § 1306.32(a). 1308.3 Definitions. (2) The provisions of the following sections apply to grantees operating Subpart B—Disabilities Service Plan the combination program option: 1308.4 Purpose and scope of disabilities serv- § 1306.32(b) (2), (5), (6), (7) and (9). ice plan.
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Subpart C—Social Services Performance grams. These requirements are to be Standards used in conjunction with the Head Start Program Performance Standards 1308.5 Recruitment and enrollment of chil- at 45 CFR part 1304. The purpose of this dren with disabilities. part is to ensure that children with dis- Subpart D—Health Services Performance abilities enrolled in Head Start pro- Standards grams receive all the services to which they are entitled under the Head Start 1308.6 Assessment of children. Program Performance Standards at 45 1308.7 Eligibility criteria: Health impair- CFR part 1304, as amended. ment. 1308.8 Eligibility criteria: Emotional/behav- ioral disorders. § 1308.2 Scope. 1308.9 Eligibility criteria: Speech or lan- This rule applies to all Head Start guage impairments. grantees and delegate agencies. 1308.10 Eligibility criteria: Mental retarda- tion. 1308.11 Eligibility criteria: Hearing impair- § 1308.3 Definitions. ment including deafness. As used in this part: 1308.12 Eligibility criteria: Orthopedic im- (a) The term ACYF means the Admin- pairment. 1308.13 Eligibility criteria: Visual impair- istration on Children, Youth and Fami- ment including blindness. lies, Administration for Children and 1308.14 Eligibility criteria: Learning disabil- Families, U.S. Department of Health ities. and Human Services, and includes ap- 1308.15 Eligibility criteria: Autism. propriate Regional Office staff. 1308.16 Eligibility criteria: Traumatic brain (b) The term children with disabilities injury. means children with mental retarda- 1308.17 Eligibility criteria: Other impair- ments. tion, hearing impairments including 1308.18 Disabilities/health services coordina- deafness, speech or language impair- tion. ments, visual impairments including blindness, serious emotional disturb- Subpart E—Education Services ance, orthopedic impairments, autism, Performance Standards traumatic brain injury, other health 1308.19 Developing individualized education impairments or specific learning dis- programs (IEPs). abilities; and who, by reason thereof, need special education and related Subpart F—Nutrition Performance services. The term children with disabil- Standards ities for children aged 3 to 5, inclusive, may, at a State’s discretion, include 1308.20 Nutrition services. children experiencing developmental Subpart G—Parent Involvement delays, as defined by the State and as Performance Standards measured by appropriate diagnostic in- struments and procedures, in one or 1308.21 Parent participation and transition more of the following areas: physical of children into Head Start and from development, cognitive development, Head Start to public school. communication development, social or APPENDIX TO PART 1308—HEAD START PRO- emotional development, or adaptive de- GRAM PERFORMANCE STANDARDS ON SERV- velopment; and who, by reason thereof, ICES TO CHILDREN WITH DISABILITIES need special education and related AUTHORITY: 42 U.S.C. 9801 et seq. services. SOURCE: 58 FR 5501, Jan. 21, 1993, unless (c) The term Commissioner means the otherwise noted. Commissioner of the Administration on Children, Youth and Families. Subpart A—General (d) The term day means a calendar day. § 1308.1 Purpose. (e) The term delegate agency means a This rule sets forth the requirements public or private non-profit agency to for providing special services for 3- which a grantee has delegated the re- through 5-year-old children with dis- sponsibility for operating all or part of abilities enrolled in Head Start pro- its Head Start program.
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(f) The term disabilities coordinator ing rehabilitation counseling, and med- means the person on the Head Start ical services for diagnostic or evalua- staff designated to manage on a full or tion purposes. The term also includes part-time basis the services for chil- school health services, social work dren with disabilities described in part services, and parent counseling and 1308. training. It includes other develop- (g) The term eligibility criteria means mental, corrective or supportive serv- the criteria for determining that a ices if they are required to assist a child enrolled in Head Start requires child with a disability to benefit from special education and related services special education, including assistive because of a disability. technology services and devices. (h) The term grantee means the pub- (1) The term assistive technology device lic or private non-profit agency which means any item, piece of equipment, or has been granted financial assistance product system, whether acquired com- by ACYF to administer a Head Start mercially off the shelf, modified, or program. customized, that is used to increase, (i) The term individualized education maintain, or improve functional capa- program (IEP) means a written state- bilities of individuals with disabilities. ment for a child with disabilities, de- (2) The term assistive technology serv- veloped by the public agency respon- ice means any service that directly as- sible for providing free appropriate sists an individual with a disability in public education to a child, and con- the selection, acquisition, or use of an tains the special education and related assistive technology device. The term services to be provided to an individual includes: The evaluation of the needs of child. an individual with a disability; pur- (j) The term least restrictive environ- chasing, leasing, or otherwise pro- ment means an environment in which viding for the acquisition of assistive services to children with disabilities technology devices by individuals with are provided: disabilities; selecting, designing, fit- (1) to the maximum extent appro- ting, customizing, adapting, applying, priate, with children who are not dis- maintaining, repairing, or replacing of abled and in which; (2) special classes or other removal of assistive technology devices; coordi- children with disabilities from the reg- nating and using other therapies, inter- ular educational environment occurs ventions, or services with assistive only when the nature or severity of the technology devices, such as those asso- disability is such that education in reg- ciated with existing education and re- ular classes with the use of supple- habilitation plans and programs; train- mentary aids and services cannot be ing or technical assistance for an indi- achieved satisfactorily. vidual with disabilities, or, where ap- (k) The term Performance Standards propriate, the family of an individual means the Head Start program func- with disabilities; and training or tech- tions, activities and facilities required nical assistance to professionals who and necessary to meet the objectives employ or provide services involved in and goals of the Head Start program as the major life functions of individuals they relate directly to children and with disabilities. their families. (m) The term responsible HHS official (l) The term related services means means the official who is authorized to transportation and such develop- make the grant of assistance in ques- mental, corrective, and other sup- tion or his or her designee. portive services as are required to as- (n) The term special education means sist a child with a disability to benefit specially designed instruction, at no from special education, and includes cost to parents or guardians, to meet speech pathology and audiology, psy- the unique needs of a child with a dis- chological services, physical and occu- ability. These services include class- pational therapy, recreation, including room or home-based instruction, in- therapeutic recreation, early identi- struction in hospitals and institutions, fication and assessment of disabilities and specially designed physical edu- in children, counseling services, includ- cation if necessary.
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Subpart B—Disabilities Service (4) Plans to provide appropriate spe- Plan cial furniture, equipment and mate- rials if needed. § 1308.4 Purpose and scope of disabil- (g) The plan, when appropriate, must ities service plan. address strategies for the transition of (a) A Head Start grantee, or delegate children into Head Start from infant/ agency, if appropriate, must develop a toddler programs (0–3 years), as well as disabilities service plan providing the transition from Head Start into the strategies for meeting the special next placement. The plan must include needs of children with disabilities and preparation of staff and parents for the their parents. The purposes of this plan entry of children with severe disabil- are to assure: ities into the Head Start program. (1) That all components of Head (h) The grantee or delegate agency Start are appropriately involved in the must arrange or provide special edu- integration of children with disabil- cation and related services necessary ities and their parents; and to foster the maximum development of (2) That resources are used effi- each child’s potential and to facilitate ciently. participation in the regular Head Start (b) The plan must be updated annu- ally. program unless the services are being (c) The plan must include provisions provided by the LEA or other agency. for children with disabilities to be in- The plan must specify the services to cluded in the full range of activities be provided directly by Head Start and and services normally provided to all those provided by other agencies. The Head Start children and provisions for grantee or delegate agency must ar- any modifications necessary to meet range for, provide, or procure services the special needs of the children with which may include, but are not limited disabilities. to special education and these related (d) The Head Start grantee and dele- services: gate agency must use the disabilities (1) Audiology services, including service plan as a working document identification of children with hearing which guides all aspects of the agency’s loss and referral for medical or other effort to serve children with disabil- professional attention; provision of ities. This plan must take into account needed rehabilitative services such as the needs of the children for small speech and language therapy and audi- group activities, for modifications of tory training to make best use of re- large group activities and for any indi- maining hearing; speech conservation; vidual special help. lip reading; determination of need for (e) The grantee or delegate agency hearing aids and fitting of appropriate must designate a coordinator of serv- aids; and programs for prevention of ices for children with disabilities (dis- hearing loss; abilities coordinator) and arrange for (2) Physical therapy to facilitate preparation of the disabilities service gross motor development in activities plan and of the grantee application such as walking prevent or slow ortho- budget line items for services for chil- pedic problems and improve posture dren with disabilities. The grantee or and conditioning; delegate must ensure that all relevant (3) Occupational therapy to improve, coordinators, other staff and parents are consulted. develop or restore fine motor functions (f) The disability service plan must in activities such as using a fork or contain: knife; (1) Procedures for timely screening; (4) Speech or language services in- (2) Procedures for making referrals to cluding therapy and use of assistive de- the LEA for evaluation to determine vices necessary for a child to develop whether there is a need for special edu- or improve receptive or expressive cation and related services for a child, means of communication; as early as the child’s third birthday; (5) Psychological services such as (3) Assurances of accessibility of fa- evaluation of each child’s functioning cilities; and and interpreting the results to staff
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and parents; and counseling and guid- with the LEAs and other agencies ance services for staff and parents re- within the grantee’s service area. If no garding disabilities; agreement can be reached, the grantee (6) Transportation for children with must document its efforts and inform disabilities to and from the program the Regional Office. The agreements and to special clinics or other service must address: providers when the services cannot be (1) Head Start participation in the provided on-site. Transportation in- public agency’s Child Find plan under cludes adapted buses equipped to ac- Part B of IDEA; commodate wheelchairs or other such (2) Joint training of staff and par- devices if required; and ents; (7) Assistive technology services or (3) Procedures for referral for evalua- devices necessary to enable a child to tions, IEP meetings and placement de- improve functions such as vision, mo- cisions; bility or communication to meet the (4) Transition; objectives in the IEP. (5) Resource sharing; (i) The disabilities service plan must (6) Head Start commitment to pro- include options to meet the needs and vide the number of children receiving take into consideration the strengths services under IEPs to the LEA for the of each child based upon the IEP so LEA Child Count report by December 1 that a continuum of services available annually; and from various agencies is considered. (7) Any other items agreed to by both (j) The options may include: parties. Grantees must make efforts to (1) Joint placement of children with update the agreements annually. other agencies; (m) The disabilities coordinator must (2) Shared provision of services with work with the director in planning and other agencies; budgeting of grantee funds to assure (3) Shared personnel to supervise spe- that the special needs identified in the cial education services, when necessary IEP are fully met; that children most to meet State requirements on quali- in need of an integrated placement and fications; of special assistance are served; and (4) Administrative accommodations that the grantee maintains the level of such as having two children share one fiscal support to children with disabil- enrollment slot when each child’s IEP ities consistent with the Congressional calls for part-time service because of mandate to meet their special needs. their individual needs; and (n) The grant application budget (5) Any other strategies to be used to form and supplement submitted with insure that special needs are met. applications for funding must reflect These may include: requests for adequate resources to im- (i) Increased staff; plement the objectives and activities (ii) Use of volunteers; and in the disability services plan and ful- (iii) Use of supervised students in fill the requirements of these Perform- such fields as child development, spe- ance Standards. cial education, child psychology, var- (o) The budget request included with ious therapies and family services to the application for funding must ad- assist the staff. dress the implementation of the dis- (k) The grantee must ensure that the abilities service plan. Allowable ex- disabilities service plan addresses penditures include: grantee efforts to meet State standards (1) Salaries. Allowable expenditures for personnel serving children with dis- include salaries of a full or part-time abilities by the 1994–95 program year. coordinator of services for children Special education and related services with disabilities (disabilities coordi- must be provided by or under the su- nator), who is essential to assure that pervision of personnel meeting State programs have the core capability to qualifications by the 1994–95 program recruit, enroll, arrange for the evalua- year. tion of children, provide or arrange for (l) The disabilities service plan must services to children with disabilities include commitment to specific efforts and work with Head Start coordinators to develop interagency agreements and staff of other agencies which are
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working cooperatively with the grant- (5) Transportation. Transportation is ee. Salaries of special education re- a related service to be provided to chil- source teachers who can augment the dren with disabilities. When transpor- work of the regular teacher are an al- tation to the program site and to spe- lowable expenditure. cial services can be accessed from (2) Evaluation of children. When war- other agencies, it should be used. When ranted by screening or rescreening re- it is not available, program funds are sults, teacher observation or parent re- to be used to provide it. Special buses quest, arrangements must be made for or use of taxis are allowable expenses if evaluation of the child’s development there are no alternatives available and and functioning. If, after referral for they are necessary to enable a child to evaluation to the LEA, evaluations are be served. (6) Special Equipment and Materials. not provided by the LEA, they are an Purchase or lease of special equipment allowable expenditure. and materials for use in the program (3) Services. Program funds may be and home is an allowable program ex- used to pay for services which include pense. Grantees must make available special education, related services, and assistive devices necessary to make it summer services deemed necessary on possible for a child to move, commu- an individual basis and to prepare for nicate, improve functioning or address serving children with disabilities in ad- objectives which are listed in the vance of the program year. child’s IEP. (4) Making services accessible. Allow- (7) Training and Technical Assistance. able costs include elimination of archi- Increasing the abilities of staff to meet tectural barriers which affect the par- the special needs of children with dis- ticipation of children with disabilities, abilities is an allowable expense. Ap- in conformance with 45 CFR part 84, propriate expenditures may include but Nondiscrimination on the Basis of are not limited to: Handicap in Program and Activities (i) Travel and per diem expenses for Receiving or Benefiting from Federal disabilities coordinators, teachers and Financial Assistance and with the parents to attend training and tech- Americans with Disabilities Act of 1990 nical assistance events related to spe- (42 U.S.C. 12101). The Americans with cial services for children with disabil- Disabilities Act requires that public ities; accommodations including private (ii) The provision of substitute teach- schools and day care centers may not ing staff to enable staff to attend train- discriminate on the basis of disability. ing and technical assistance events; Physical barriers in existing facilities (iii) Fees for courses specifically re- must be removed if removal is readily lated to the requirements of the dis- achievable (i.e., easily accomplishable abilities service plan, a child’s IEP or and able to be carried out without State certification to serve children much difficulty or expense). If not, al- with disabilities; and ternative methods of providing the (iv) Fees and expenses for training/ services must be offered, if those meth- technical assistance consultants if ods are readily achievable. Alterations such help is not available from another must be accessible. When alterations to provider at no cost. primary function areas are made, an accessible path of travel to the altered Subpart C—Social Services areas (and the bathrooms, telephones Performance Standards and drinking fountains serving that area) must be provided to the extent § 1308.5 Recruitment and enrollment that the added accessibility costs are of children with disabilities. not disproportionate to the overall cost (a) The grantee or delegate agency of the alterations. Program funds may outreach and recruitment activities be used for ramps, remodeling or modi- must incorporate specific actions to fications such as grab bars or railings. actively locate and recruit children Grantees must meet new statutory and with disabilities. regulatory requirements that are en- (b) A grantee must insure that staff acted. engaged in recruitment and enrollment
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of children are knowledgable about the (2) The services and resources pro- provisions of 45 CFR part 84, Non- vided by other agencies; and discrimination on the Basis of Handi- (3) State laws regarding immuniza- cap in Programs and Activities Receiv- tion of preschool children. Grantees ing or Benefiting from Federal Finan- must observe applicable State laws cial Assistance, and of the Americans which usually require that children en- with Disabilities Act of 1990, (42 U.S.C. tering State preschool programs com- 12101). plete immunizations prior to or within (c) A grantee must not deny place- thirty days after entering to reduce the ment on the basis of a disability or its spread of communicable diseases. severity to any child when: (f) The recruitment effort of a Head (1) The parents wish to enroll the Start grantee must include recruiting child, children who have severe disabilities, (2) The child meets the Head Start including children who have been pre- age and income eligibility criteria, viously identified as having disabil- (3) Head Start is an appropriate ities. placement according to the child’s IEP, and Subpart D—Health Services (4) The program has space to enroll Performance Standards more children, even though the pro- gram has made ten percent of its en- § 1308.6 Assessment of children. rollment opportunities available to (a) The disabilities coordinator must children with disabilities. In that case be involved with other program staff children who have a disability and non- throughout the full process of assess- disabled children would compete for ment of children, which has three the available enrollment opportunities. steps: (d) The grantee must access re- (1) All children enrolled in Head sources and plan for placement options, Start are screened as the first step in such as dual placement, use of resource the assessment process; staff and training so that a child with (2) Staff also carry out on-going de- a disability for whom Head Start is an velopmental assessment for all en- appropriate placement according to the rolled children throughout the year to IEP is not denied enrollment because determine progress and to plan pro- of: gram activities; (1) Staff attitudes and/or apprehen- (3) Only those children who need fur- sions; ther specialized assessment to deter- (2) Inaccessibility of facilities; mine whether they have a disability (3) Need to access additional re- and may require special education and sources to serve a specific child; related services proceed to the next (4) Unfamiliarity with a disabling step, evaluation. The disabilities coor- condition or special equipment, such as dinator has primary responsibility for a prosthesis; and this third step, evaluation, only. (5) Need for personalized special serv- (b) Screening, the first step in the as- ices such as feeding, suctioning, and as- sessment process, consists of standard- sistance with toileting, including cath- ized health screening and develop- eterization, diapering, and toilet train- mental screening which includes ing. speech, hearing and vision. It is a brief (e) The same policies governing Head process, which can be repeated, and is Start program eligibility for other never used to determine that a child children, such as priority for those has a disability. It only indicates that most in need of the services, apply to a child may need further evaluation to children with disabilities. Grantees determine whether the child has a dis- also must take the following factors ability. Rescreening must be provided into account when planning enrollment as needed. procedures: (1) Grantees must provide for devel- (1) The number of children with dis- opmental, hearing and vision abilities in the Head Start service area screenings of all Early Head Start and including types of disabilities and their Head Start children within 45 days of severity; the child’s entry into the program.
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This does not preclude starting screen- (2) If the LEA does not evaluate the ing in the spring, before program serv- child, Head Start is responsible for ar- ices begin in the fall. ranging or providing for an evaluation, (2) Grantees must make concerted ef- using its own resources and accessing forts to reach and include the most in others. In this case, the evaluation need and hardest to reach in the must meet the following requirements: screening effort, providing assistance (i) Testing and evaluation procedures but urging parents to complete screen- must be selected and administered so ing before the start of the program as not to be racially or culturally dis- year. criminatory, administered in the (3) Developmental screening is a brief child’s native language or mode of check to identify children who need communication, unless it clearly is not further evaluation to determine wheth- feasible to do so. er they may have disabilities. It pro- (ii) Testing and evaluation proce- vides information in three major devel- dures must be administered by trained opmental areas: visual/motor, language (State certified or licensed) personnel. and cognition, and gross motor/body (iii) No single procedure may be the awareness for use along with observa- sole criterion for determining an ap- tion data, parent reports and home propriate educational program for a visit information. When appropriate child. standardized developmental screening (iv) The evaluation must be made by instruments exist, they must be used. a multidisciplinary team or group of The disabilities coordinator must co- persons including at least one teacher ordinate with the health coordinator or specialist with knowledge in the and staff who have the responsibility area of suspected disability. for implementing health screening and (v) Evaluators must use only assess- with the education staff who have the ment materials which have been vali- dated for the specific purpose for which responsibility for implementing devel- they are used. opmental screening. (vi) Tests used with children with im- (c) Staff must inform parents of the paired sensory, manual or communica- types and purposes of the screening tion skills must be administered so well in advance of the screening, the that they reflect the children’s apti- results of these screenings and the pur- tudes and achievement levels and not poses and results of any subsequent just the disabilities. evaluations. (vii) Tests and materials must assess (d) Developmental assessment, the sec- all areas related to the suspected dis- ond step, is the collection of informa- ability. tion on each child’s functioning in (viii) In the case of a child whose pri- these areas: gross and fine motor mary disability appears to be a speech skills, perceptual discrimination, cog- or language impairment, the team nition, attention skills, self-help, so- must assure that enough tests are used cial and receptive skills and expressive to determine that the impairment is language. The disabilities coordinator not a symptom of another disability must coordinate with the education co- and a speech or language pathologist ordinator in the on-going assessment of should be involved in the evaluation. each Head Start child’s functioning in (3) Parental consent in writing must all developmental areas by including be obtained before a child can have an this developmental information in initial evaluation to determine wheth- later diagnostic and program planning er the child has a disability. activities for children with disabilities. (4) Confidentiality must be main- (e) The disabilities coordinator must ar- tained in accordance with grantee and range for further, formal, evaluation of a State requirements. Parents must be child who has been identified as possibly given the opportunity to review their having a disability, the third step. (1) The child’s records in a timely manner and disabilities coordinator must refer a they must be notified and give permis- child to the LEA for evaluation as soon sion if additional evaluations are pro- as the need is evident, starting as early posed. Grantees must explain the pur- as the child’s third birthday. pose and results of the evaluation and
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make concerted efforts to help the par- tion during classroom instructions and ents understand them. activities, planning and completing ac- (5) The multidisciplinary team pro- tivities, following simple directions, vides the results of the evaluation, and organizing materials for play or other its professional opinion that the child activities, or participating in group ac- does or does not need special education tivities. It also may be manifested in and related services, to the disabilities overactivity or impulsive acts which coordinator. If it is their professional appear to be or are interpreted as phys- opinion that a child has a disability, ical aggression. The disorder must the team is to state which of the eligi- manifest itself in at least two different bility criteria applies and provide rec- settings, one of which must be the ommendations for programming, along Head Start program site. with their findings. Only children (2) Children must not be classified as whom the evaluation team determines having attention deficit disorders need special education and related based on: services may be counted as children (i) Temporary problems in attention with disabilities. due to events such as a divorce, death [58 FR 5501, Jan. 21, 1993, as amended at 61 of a family member or post-traumatic FR 57227, Nov. 5, 1996] stress reactions to events such as sex- ual abuse or violence in the neighbor- § 1308.7 Eligibility criteria: Health im- hood; pairment. (ii) Problems in attention which (a) A child is classified as health im- occur suddenly and acutely with psy- paired who has limited strength, vital- chiatric disorders such as depression, ity or alertness due to a chronic or anxiety and schizophrenia; acute health problem which adversely (iii) Behaviors which may be caused affects learning. by frustration stemming from inappro- (b) The health impairment classifica- priate programming beyond the child’s tion may include, but is not limited to, ability level or by developmentally in- cancer, some neurological disorders, appropriate demands for long periods of rheumatic fever, severe asthma, uncon- inactive, passive activity; trolled seizure disorders, heart condi- (iv) Intentional noncompliance or op- tions, lead poisoning, diabetes, AIDS, position to reasonable requests that blood disorders, including hemophilia, are typical of good preschool programs; sickle cell anemia, cystic fibrosis, or heart disease and attention deficit dis- (v) Inattention due to cultural or lan- order. guage differences. (c) This category includes medically (3) An attention deficit disorder must fragile children such as ventilator de- have had its onset in early childhood pendent children who are in need of and have persisted through the course special education and related services. of child development when children (d) A child may be classified as hav- normally mature and become able to ing an attention deficit disorder under operate in a socialized preschool envi- this category who has chronic and per- ronment. Because many children vasive developmentally inappropriate younger than four have difficulty ori- inattention, hyperactivity, or enting, maintaining and focussing at- impulsivity. To be considered a dis- tention and are highly active, when order, this behavior must affect the Head Start is responsible for the eval- child’s functioning severely. To avoid uation, attention deficit disorder ap- overuse of this category, grantees are plies to four and five year old children cautioned to assure that only the en- in Head Start but not to three year rolled children who most severely olds. manifest this behavior must be classi- (4) Assessment procedures must in- fied in this category. clude teacher reports which document (1) The condition must severely af- the frequency and nature of indications fect the performance of a child who is of possible attention deficit disorders trying to carry out a developmentally and describe the specific situations and appropriate activity that requires ori- events occurring just before the prob- enting, focusing, or maintaining atten- lems manifested themselves. Reports
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must indicate how the child’s func- (b) A child is classified as having a tioning was impaired and must be con- speech or language impairment whose firmed by independent information speech is unintelligible much of the from a second observer. time, or who has been professionally diagnosed as having speech impair- § 1308.8 Eligibility criteria: Emotional/ ments which require intervention or behavioral disorders. who is professionally diagnosed as hav- (a) An emotional/behavioral disorder ing a delay in development in his or is a condition in which a child’s behav- her primary language which requires ioral or emotional responses are so dif- intervention. ferent from those of the generally ac- (c) A language disorder may be recep- cepted, age-appropriate norms of chil- tive or expressive. A language disorder dren with the same ethnic or cultural may be characterized by difficulty in background as to result in significant understanding and producing language, impairment in social relationships, including word meanings (semantics), self-care, educational progress or class- the components of words (morphology), room behavior. A child is classified as the components of sentences (syntax), having an emotional/behavioral dis- or the conventions of conversation order who exhibits one or more of the (pragmatics). following characteristics with such fre- (d) A speech disorder occurs in the quency, intensity, or duration as to re- production of speech sounds (articula- quire intervention: tion), the loudness, pitch or quality of (1) Seriously delayed social develop- voice (voicing), or the rhythm of ment including an inability to build or speech (fluency). maintain satisfactory (age appropriate) (e) A child should not be classified as interpersonal relationships with peers having a speech or language impair- or adults (e.g., avoids playing with ment whose speech or language dif- peers); ferences may be attributed to: (2) Inappropriate behavior (e.g., dan- gerously aggressive towards others, (1) Cultural, ethnic, bilingual, or dia- self-destructive, severely withdrawn, lectical differences or being non- non-communicative); English speaking; or (3) A general pervasive mood of un- (2) Disorders of a temporary nature happiness or depression, or evidence of due to conditions such as a dental excessive anxiety or fears (e.g., fre- problem; or quent crying episodes, constant need (3) Delays in developing the ability to for reassurance); or articulate only the most difficult con- (4) Has a professional diagnosis of se- sonants or blends of sounds within the rious emotional disturbance. broad general range for the child’s age. (b) The eligibility decision must be based on multiple sources of data, in- § 1308.10 Eligibility criteria: Mental re- tardation. cluding assessment of the child’s be- havior or emotional functioning in (a) A child is classified as mentally multiple settings. retarded who exhibits significantly (c) The evaluation process must in- sub-average intellectual functioning clude a review of the child’s regular and exhibits deficits in adaptive behav- Head Start physical examination to ior which adversely affect learning. eliminate the possibility of misdiag- Adaptive behavior refers to age-appro- nosis due to an underlying physical priate coping with the demands of the condition. environment through independent skills in self-care, communication and § 1308.9 Eligibility criteria: Speech or play. language impairments. (b) Measurement of adaptive behav- (a) A speech or language impairment ior must reflect objective documenta- means a communication disorder such tion through the use of an established as stuttering, impaired articulation, a scale and appropriate behavioral/anec- language impairment, or a voice im- dotal records. An assessment of the pairment, which adversely affects a child’s functioning must also be made child’s learning. in settings outside the classroom.
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(c) Valid and reliable instruments ap- (b) An orthopedic impairment in- propriate to the age range must be cludes, but is not limited to, spina used. If they do not exist for the lan- bifida, cerebral palsy, loss of or de- guage and cultural group to which the formed limbs, contractures caused by child belongs, observation and profes- burns, arthritis, or muscular dys- sional judgement are to be used in- trophy. stead. (d) Determination that a child is § 1308.13 Eligibility criteria: Visual im- pairment including blindness. mentally retarded is never to be made on the basis of any one test alone. (a) A child is classified as visually impaired when visual impairment, with § 1308.11 Eligibility criteria: Hearing correction, adversely affects a child’s impairment including deafness. learning. The term includes both blind (a) A child is classified as deaf if a and partially seeing children. A child is hearing impairment exists which is so visually impaired if: severe that the child is impaired in (1) The vision loss meets the defini- processing linguistic information tion of legal blindness in the State of through hearing, with or without am- residence; or plification, and learning is affected. A (2) Central acuity does not exceed 20/ child is classified as hard of hearing 200 in the better eye with corrective who has a permanent or fluctuating lenses, or visual acuity is greater than 20/200, but is accompanied by a limita- hearing impairment which adversely tion in the field of vision such that the affects learning; or widest diameter of the visual field (b) Meets the legal criteria for being subtends an angle no greater than 20 hard of hearing established by the degrees. State of residence; or (b) A child is classified as having a (c) Experiences recurrent temporary visual impairment if central acuity or fluctuating hearing loss caused by with corrective lenses is between 20/70 otitis media, allergies, or eardrum per- and 20/200 in either eye, or if visual forations and other outer or middle ear acuity is undetermined, but there is anomalies over a period of three demonstrated loss of visual function months or more. Problems associated that adversely affects the learning with temporary or fluctuating hearing process, including faulty muscular ac- loss can include impaired listening tion, limited field of vision, cataracts, skills, delayed language development, etc. and articulation problems. Children meeting these criteria must be referred § 1308.14 Eligibility criteria: Learning for medical care, have their hearing disabilities. checked frequently, and receive speech, (a) A child is classified as having a language or hearing services as indi- learning disability who has a disorder cated by the IEPs. As soon as special in one or more of the basic psycho- services are no longer needed, these logical processes involved in under- children must no longer be classified as standing or in using language, spoken having a disability. or written, which may manifest itself in imperfect ability to listen, think, § 1308.12 Eligibility criteria: Ortho- speak or, for preschool age children, pedic impairment. acquire the precursor skills for read- (a) A child is classified as having an ing, writing, spelling or doing mathe- orthopedic impairment if the condition matical calculations. The term in- is severe enough to adversely affect a cludes such conditions as perceptual child’s learning. An orthopedic impair- disabilities, brain injury, and aphasia. ment involves muscles, bones, or joints (b) An evaluation team may rec- and is characterized by impaired abil- ommend that a child be classified as ity to maneuver in educational or non- having a learning disability if: educational settings, to perform fine or (1) The child does not achieve com- gross motor activities, or to perform mensurate with his or her age and abil- self-help skills and by adversely af- ity levels in one or more of the areas fected educational performance. listed in (a) above when provided with
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appropriate learning experiences for § 1308.17 Eligibility criteria: Other im- the age and ability; or pairments. (2) The child has a severe discrepancy (a) The purposes of this classifica- between achievement of developmental tion, ‘‘Other impairments,’’ are: milestones and intellectual ability in (1) To further coordination with one or more of these areas: oral expres- LEAs and reduce problems of record- sion, listening comprehension, pre- keeping; reading, pre-writing and pre-mathe- (2) To assist parents in making the matics; or transition from Head Start to other (3) The child shows deficits in such placements; and abilities as memory, perceptual and (3) To assure that no child enrolled in perceptual-motor skills, thinking, lan- Head Start is denied services which guage and non-verbal activities which would be available to other preschool are not due to visual, motor, hearing or children who are considered to have emotional disabilities, mental retarda- disabilities in their State. tion, cultural or language factors, or (b) If the State Education Agency eli- lack of experiences which would help gibility criteria for preschool children develop these skills. include an additional category which is (c) This definition for learning dis- appropriate for a Head Start child, abilities applies to four and five year children meeting the criteria for that old children in Head Start. It may be category must receive services as chil- used at a program’s discretion for chil- dren with disabilities in Head Start dren younger than four or when a three programs. Examples are ‘‘preschool year old child is referred with a profes- disabled,’’ ‘‘in need of special edu- sional diagnosis of learning disability. cation,’’ ‘‘educationally handicapped,’’ and ‘‘non-categorically handicapped.’’ But because of the difficulty of diag- (c) Children ages three to five, inclu- nosing learning disabilities for three sive, who are experiencing develop- year olds, when Head Start is respon- mental delays, as defined by their sible for the evaluation it is not a re- State and as measured by appropriate quirement to use this category for diagnostic instruments and procedures, three year olds. in one or more of the following areas: physical development, cognitive devel- § 1308.15 Eligibility criteria: Autism. opment, communication development, A child is classified as having autism social or emotional development, or when the child has a developmental adaptive development, and who by rea- disability that significantly affects son thereof need special education and verbal and non-verbal communication related services may receive services as and social interaction, that is gen- children with disabilities in Head Start erally evident before age three and programs. that adversely affects educational per- (d) Children who are classified as formance. deaf-blind, whose concomitant hearing and visual impairments cause such se- § 1308.16 Eligibility criteria: Traumatic vere communication and other develop- brain injury. mental problems that they cannot be A child is classified as having trau- accommodated in special education matic brain injury whose brain injuries programs solely for deaf or blind chil- dren are eligible for services under this are caused by an external physical category. force, or by an internal occurrence (e) Children classified as having mul- such as stroke or aneurysm, with re- tiple disabilities whose concomitant sulting impairments that adversely af- impairments (such as mental retarda- fect educational performance. The tion and blindness), in combination, term includes children with open or cause such severe educational problems closed head injuries, but does not in- that they cannot be accommodated in clude children with brain injuries that special education programs solely for are congenital or degenerative or one of the impairments are eligible for caused by birth trauma. services under this category. The term
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does not include deaf-blind children, from developmental assessment, obser- for recordkeeping purposes. vations and parent reports, are consid- ered in making the determination § 1308.18 Disabilities/health services whether the child meets Head Start eli- coordination. gibility criteria. (a) The grantee must ensure that the (b) Every child receiving services in disabilities coordinator and the health Head Start who has been evaluated and coordinator work closely together in found to have a disability and in need the assessment process and follow up of special education must have an IEP to assure that the special needs of each before special education and related child with disabilities are met. services are provided to ensure that (b) The grantee must ensure coordi- comprehensive information is used to nation between the disabilities coordi- develop the child’s program. nator and the staff person responsible (c) When the LEA develops the IEP, a for the mental health component to representative from Head Start must help teachers identify children who attempt to participate in the IEP show signs of problems such as possible meeting and placement decision for serious depression, withdrawal, anxiety any child meeting Head Start eligi- or abuse. bility requirements. (c) Each Head Start director or des- (d) If Head Start develops the IEP, ignee must supervise the administra- the IEP must take into account the tion of all medications, including pre- child’s unique needs, strengths, devel- scription and over-the-counter drugs, opmental potential and the family to children with disabilities in accord- strengths and circumstances as well as ance with State requirements. the child’s disabilities. (d) The health coordinator under the (e) The IEP must include: supervision of the Head Start director (1) A statement of the child’s present or designee must: level of functioning in the social-emo- (1) Obtain the doctor’s instructions tional, motor, communication, self- and parental consent before any medi- help, and cognitive areas of develop- cation is administered. ment, and the identification of needs in (2) Maintain an individual record of those areas requiring specific program- all medications dispensed and review ming. the record regularly with the child’s (2) A statement of annual goals, in- parents. cluding short term objectives for meet- (3) Record changes in a child’s behav- ing these goals. ior which have implications for drug (3) A statement of services to be pro- dosage or type and share this informa- vided by each Head Start component tion with the staff, parents and the that are in addition to those services physician. provided for all Head Start children, (4) Assure that all medications, in- including transition services. cluding those required by staff and vol- (4) A statement of the specific special unteers, are adequately labeled, stored education services to be provided to under lock and key and out of reach of the child and those related services children, and refrigerated, if necessary. necessary for the child to participate in a Head Start program. This includes Subpart E—Education Services services provided by Head Start and Performance Standards services provided by other agencies and non-Head Start professionals. § 1308.19 Developing individualized (5) The identification of the per- education programs (IEPs) sonnel responsible for the planning and (a) When Head Start provides for the supervision of services and for the de- evaluation, the multidisciplinary eval- livery of services. uation team makes the determination (6) The projected dates for initiation whether the child meets the Head Start of services and the anticipated dura- eligibility criteria. The multidisci- tion of services. plinary evaluation team must assure (7) A statement of objective criteria that the evaluation findings and rec- and evaluation procedures for deter- ommendations, as well as information mining at least annually whether the
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short-term objectives are being in the parents’ language of under- achieved or need to be revised. standing after it has been signed; (8) Family goals and objectives re- (4) Hold the meeting without the par- lated to the child’s disabilities when ents only if neither parent can attend, they are essential to the child’s after repeated attempts to establish a progress. date or facilitate their participation. (f) When Head Start develops the In that case, document its efforts to se- IEP, the team must include: cure the parents’ participation, (1) The Head Start disabilities coor- through records of phone calls, letters dinator or a representative who is qualified to provide or supervise the in the parents’ native language or vis- provision of special education services; its to parents’ homes or places of work, (2) The child’s teacher or home vis- along with any responses or results; itor; and arrange an opportunity to meet (3) One or both of the child’s parents with the parents to review the results or guardians; and of the meeting and secure their input (4) At least one of the professional and signature. members of the multidisciplinary team (k) Grantees must initiate the imple- which evaluated the child. mentation of the IEP as soon as pos- (g) An LEA representative must be sible after the IEP meeting by modi- invited in writing if Head Start is initi- fying the child’s program in accordance ating the request for a meeting. with the IEP and arranging for the pro- (h) The grantee may also invite other vision of related services. If a child en- individuals at the request of the par- ters Head Start with an IEP completed ents and other individuals at the dis- within two months prior to entry, serv- cretion of the Head Start program, in- ices must begin within the first two cluding those component staff particu- weeks of program attendance. larly involved due to the nature of the child’s disability. (i) A meeting must be held at a time Subpart F—Nutrition Performance convenient for the parents and staff to Standards develop the IEP within 30 calendar days of a determination that the child § 1308.20 Nutrition services. needs special education and related (a) The disabilities coordinator must services. Services must begin as soon work with staff to ensure that provi- as possible after the development of sions to meet special needs are incor- the IEP. porated into the nutrition program. (j) Grantees and their delegates must (b) Appropriate professionals, such as make vigorous efforts to involve par- ents in the IEP process. The grantee physical therapists, speech therapists, must: occupational therapists, nutritionists (1) Notify parents in writing and, if or dietitians must be consulted on necessary, also verbally or by other ap- ways to assist Head Start staff and par- propriate means of the purpose, ents of children with severe disabilities attendees, time and location of the IEP with problems of chewing, swallowing meeting far enough in advance so that and feeding themselves. there is opportunity for them to par- (c) The plan for services for children ticipate; with disabilities must include activi- (2) Make every effort to assure that ties to help children with disabilities the parents understand the purpose and participate in meal and snack times proceedings and that they are encour- with classmates. aged to provide information about (d) The plan for services for children their child and their desires for the with disabilities must address preven- child’s program; tion of disabilities with a nutrition (3) Provide interpreters, if needed, basis. and offer the parents a copy of the IEP
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Subpart G—Parent Involvement APPENDIX TO PART 1308—HEAD START Performance Standards PROGRAM PERFORMANCE STANDARDS ON SERVICES TO CHILDREN WITH DIS- § 1308.21 Parent participation and ABILITIES transition of children into Head This appendix sets forth guidance for the Start and from Head Start to public implementation of the requirements in part school. 1308. This guidance provides explanatory ma- (a) In addition to the many ref- terial and includes recommendations and erences to working with parents suggestions for meeting the requirements. throughout these standards, the staff This guidance is not binding on Head Start must carry out the following tasks: grantees or delegate agencies. It provides as- (1) Support parents of children with sistance and possible strategies which a grantee may wish to consider. In instances disabilities entering from infant/tod- where a permissible course of action is pro- dler programs. vided, the grantee or delegate agency may (2) Provide information to parents on rely upon this guidance or may take another how to foster the development of their course of action that meets the applicable child with disabilities. requirement. This programmatic guidance is included as an aid to grantees because of the (3) Provide opportunities for parents complexity of providing special services to to observe large group, small group and meet the needs of children with various dis- individual activities describe in their abilities. child’s IEP. (4) Provide follow-up assistance and Section 1308.4 Purpose and scope of disabilities service plan activities to reinforce program activi- ties at home. Guidance for Paragraph (a) (5) Refer parents to groups of parents In order to develop an effective disabilities of children with similar disabilities service plan the responsible staff members who can provide helpful peer support. need to understand the context in which a (6) Inform parents of their rights grantee operates. The Head Start program under IDEA. has operated under a Congressional mandate, since 1972, to make available, at a minimum, (7) Inform parents of resources which ten percent of its enrollment opportunities may be available to them from the to children with disabilities. Head Start has Supplemental Security Income (SSI) exceeded this mandate and serves children in Program, the Early and Periodic integrated, developmentally appropriate pro- Screening, Diagnosis and Treatment grams. The passage of the Individuals With (EPSDT) Program and other sources Disabilities Education Act, formerly the and assist them with initial efforts to Education of the Handicapped Act, and its amendments, affects Head Start, causing a access such resources. shift in the nature of Head Start’s respon- (8) Identify needs (caused by the dis- sibilities for providing services for children ability) of siblings and other family with disabilities relative to the responsibil- members. ities of State Education Agencies (SEA) and (9) Provide information in order to Local Education Agencies (LEA). prevent disabilities among younger sib- Grantees need to be aware that under the IDEA the State Education Agency has the lings. responsibility for assuring the availability of (10) build parent confidence, skill and a free appropriate public education for all knowledge in accessing resources and children with disabilities within the legally advocating to meet the special needs of required age range in the State. This respon- their children. sibility includes general supervision of edu- cational programs in all agencies, including (b) Grantees must plan to assist par- monitoring and evaluating the special edu- ents in the transition of children from cation and related services to insure that Head Start to public school or other they meet State standards, developing a placement, beginning early in the pro- comprehensive State plan for services for gram year. children with disabilities (including a de- (c) Head Start grantees, in coopera- scription of interagency coordination among these agencies), and providing a Comprehen- tion with the child’s parents, must no- sive System for Personnel Development re- tify the school of the child’s planned lated to training needs of all special edu- enrollment prior to the date of enroll- cation and related service personnel involved ment. in the education of children with disabilities
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served by these agencies, including Head veloped criteria under IDEA will be eligible Start programs. for services from Head Start in that State. Each State has in effect under IDEA a pol- In order to organize activities and re- icy assuring all children with disabilities be- sources to help children with disabilities ginning at least at age three, including those overcome or lessen their disabilities and de- in public or private institutions or other velop their potential, it is essential to in- care facilities, the right to a free appropriate volve the education, health, social services, education and to an evaluation meeting es- parent involvement, mental health and nu- tablished procedures. Head Start is either: trition components of Head Start. Parents, • The agency through which the Local staff and policy group members should dis- Education Agency can meet its obligation to cuss the various strategies for ensuring that make a free appropriate public education the disabilities service plan integrates needs available through a contract, State or local and activities which cut across the Head collaborative agreement, or other arrange- Start component areas before the plan is ment; or completed. • The agency in which the family chooses Advance planning and scheduling of ar- to have the child served rather than using rangements with other agencies is a key fac- LEA services. tor in assuring timely, efficient services. Regardless of how a child is placed in Head Local level interagency agreements can Start, the LEA is responsible for the identi- greatly facilitate the difficult tasks of locat- fication, evaluation and provision of a free ing related service providers, for example, appropriate public education for a child and joint community screening programs found to be in need of special education and can reduce delays and costs to each of the related services which are mandated in the participating agencies. State. The LEA is responsible for ensuring Guidance for Paragraph (b) that these services are provided, but not for providing them all. IDEA stresses the role of The plan and the annual updates need to be multiple agencies and requires their mainte- specific, but not lengthy. As changes occur nance of effort. in the community, the plan needs to reflect The Head Start responsibility is to make the changes which affect services. available directly or in cooperation with Guidance for Paragraph (c) other agencies services in the least restric- tive environment in accordance with an indi- Grantees should ensure that the practices vidualized education program (IEP) for at they use to provide special services do not least ten percent of enrolled children who result in undue attention to a child with a meet the disabilities eligibility criteria. In disability. For example, providing names and addition, Head Start continues to provide or schedules of special services for children arrange for the full range of health, dental, with disabilities in the classroom is useful nutritional, developmental, parent involve- for staff or volunteers coming into that ment and social services provided to all en- classroom but posting them would publicize rolled children. Head Start has a mandate to the disability of the individual children. recruit and enroll income-eligible children and children with disabilities who are most Guidance for Paragraph (d) in need of services and to coordinate with Staff should work for the children’s great- the LEA and other groups to benefit children er independence by encouraging them to try with disabilities and their families. Serving new things and to meet appropriate goals by children with disabilities has strengthened small steps. Grantees should help children Head Start’s ability to individualize for all with disabilities develop initiative by includ- children. Head Start is fully committed to ing them in opportunities to explore, to cre- the maintenance of effort as required for all ate, and to ask rather than to answer ques- agencies by the IDEA and by the Head Start tions. The children need opportunities to use Act (Section 640(a)(2)(A)). Head Start is com- a wide variety of materials including science mitted to fiscal support to assure that the tools, art media and costumes in order to de- services which children with disabilities velop skills, imagination and originality. need to meet their special needs will be pro- They should be included on field trips, as vided in full, either directly or by a combina- their experience may have been limited, for tion of Head Start funds and other resources. example, by an orthopedic impairment. These Head Start regulations facilitate co- Just as a program makes available pic- ordination with the IDEA by utilizing iden- tures and books showing children and adults tical terms for eligibility criteria for the from representative cultural, ethnic and oc- most part. However, Head Start has elected cupational groups, it should provide pictures to use the term ‘‘emotional/behavioral dis- and books which show children and adults order’’ in lieu of ‘‘serious emotional disturb- with disabilities, including those in active ance,’’ which is used in the IDEA, in response roles. to comments and concerns of parents and Staff should plan to answer questions chil- professionals. Children who meet State-de- dren and adults may have about disabilities.
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This promotes acceptance of a child with dis- Guidance for Paragraph (f) abilities for him or herself and leads to For non-verbal children, communication treating the child more normally. Effective boards, computers and other assistive tech- curricula are available at low cost for help- nology devices may be helpful. Technical as- ing children and adults understand disabil- sistance providers have information on the ities and for improving attitudes and in- Technology Related Assistance for Individ- creasing knowledge about disabilities. Infor- uals with Disabilities Act of 1988, 29 U.S.C. mation on these and other materials can be 2201 et seq. States are funded through this obtained from resource access projects con- legislation to plan Statewide assistive tech- tractors, which offer training and technical nology services, which should include serv- assistance to Head Start programs. ices for young children. Parents should be There are a number of useful guides for in- helped to understand the necessity of includ- cluding children with disabilities in regular ing assistive technology services and devices group activities while providing successful in their child’s IEP in order to obtain them. The plan should include any renovation of experiences for children who differ widely in space and facilities which may be necessary developmental levels and skills. Some of to ensure the safety of the children or pro- these describe activities around a unit theme mote learning. For example, rugs or other with suggestions for activities suitable for sound-absorbing surfaces make it easier for children with different skill levels. Staff some children to hear stories or conversa- need to help some children with disabilities tion. Different surfaces on floors and play move into developmentally appropriate play areas affect some children’s mobility. with other children. 45 CFR Part 84, Nondiscrimination on the Research has shown the effectiveness of Basis of Handicap in Programs and Activi- work in small groups for appropriately se- ties Receiving or Benefiting from Federal Fi- lected children with disabilities. This plan nancial Assistance which implements the allows for coordinating efforts to meet the Rehabilitation Act of 1973 and the Americans needs of individual children as listed in their with Disabilities Act require that all Feder- IEPs and can help focus resources efficiently. ally assisted programs, including Head Start, If a deaf child who uses or needs sign lan- be accessible to persons with disabilities in- guage or another communication mode is en- cluding staff, parents and children. This does rolled, a parent, volunteer or aide who can not mean that every building or part of a building must be physically accessible, but use that mode of communication should be the program services as a whole must be ac- provided to help the child benefit from the cessible. Structural changes to make the program. program services available are required if al- In order to build the language and speech ternatives such as reassignment of classes or capabilities of many children with disabil- moving to different rooms are not possible. ities who have communication problems, it Information on the accessibility standards is has been found helpful to enlist aides, volun- available from RAPs or the U.S. Department teers, cooks, bus drivers and parents, show- of Justice, Civil Rights Division, Coordina- ing them how to provide extra repetition and tion and Review Section, P.O. Box 66118, model gradually more advanced language as Washington, DC 20035–6115. children improve in their ability to under- Staff should ensure that children with stand and use language. Small group activi- physical disabilities have chairs and other ties for children with similar language devel- pieces of furniture of the correct size and opment needs should be provided regularly type for their individual needs as they grow. as well as large group language and listening Agencies such as United Cerebral Palsy, games and individual help. Helping children Easter Seal Societies or SEAs can provide with intellectual delays or emotional prob- consultation on adapting or purchasing the lems or those whose experiences have been appropriate furniture. The correct posi- limited by other disabilities to express their tioning of certain children is essential and own ideas and to communicate during play requires expert advice. As the children grow, and throughout the daily activities is moti- the furniture and equipment should be vating and can contribute greatly to their checked by an expert, such as a physical therapist, because the wrong fit can be progress. harmful. Efforts should be made to use fur- Guidance for Paragraph (e) niture sized and shaped to place children at the same level as their classmates whenever The Disabilities Service Coordinator possible. should possess a basic understanding of the scope of the Head Start effort and skills ade- Guidance for Paragraph (h) quate to manage the agency to serve chil- The plan should specify: dren with disabilities including coordination • Overall goals of the disability effort. with other program components and commu- • Specific objectives and activities of the nity agencies and work with parents. disability effort.
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• How and when specific activities will be seling may be shared by Head Start and carried out and goals attained. other agencies. For example, Head Start • Who will be responsible for the conduct might provide equipment and transportation of each element of the plan. while a development center might provide a • How individual activities will be evalu- facility and physical therapy for a Head ated. Start child. Some LEAs provide resource The plan should address: teachers while Head Start provides a devel- • Enrollment information, including num- opmentally appropriate program in an inte- bers of children and types of disabilities, grated setting. known and estimated. Hiring additional staff may be necessary to • Identification and recruitment of chil- meet the needs of children with severe dis- dren with disabilities. Participation in Child abilities. Hiring an aide may be necessary on Find and list of major specialized agencies a full-time, part-time, temporary or as need- approached. ed basis to assist with the increased demands • Screening. of a child with a severe disability. However, • Developmental Assessment. aides should not be assigned the major re- • Evaluation. sponsibility for providing direct services. • The multidisciplinary team and its work. Aides and volunteers should be guided and • The process for developing IEPs. supervised by the disabilities service coordi- • The provision of program services and re- nator or someone with special training. It is lated services. desirable to have the services of a nurse, • Program accessibility. physical therapist or licensed practical nurse • Recordkeeping and reporting. available for children with severe health or • Confidentiality of information. physical disabilities. • Any special safety needs. Volunteers trained by professionals to • Medications. work specifically with children with disabil- • Transportation. ities can provide valuable individualized sup- • The process for identifying and meeting port. For example, a volunteer might be training and technical assistance needs. trained by a physical therapist to carry out • Special parent involvement needs. specific follow-up activities with individual • Planned actions to increase the ability of children. staff to serve children with more severe dis- abilities and the number of children with Guidance for Paragraph (k) more severe disabilities served. State standards for qualifications of staff • Transitioning of children in and out to to provide special education and related the next program. services affect Head Start’s acceptance as a Particular attention should be given to ad- placement site for children who have been dressing ways to: evaluated by an LEA. Head Start grantees, • Involve parents throughout the disability like LEAs, are affected by shortages of staff effort, and meeting State qualifications and are to work • Work with other agencies in serving chil- toward the goal of meeting the highest State dren with disabilities. It should be possible standards for personnel by developing plans for a reader to visualize how and by whom to train current staff and to hire new staff so services will be delivered. Coordination with that eventually the staff will meet the quali- other agencies should be described, as well as fications. Grantees should discuss their the process for developing local agreements needs for pre-service and in-service training with other agencies. The RAPs can provide with SEAs during annual updates of inter- samples and models for the process of devel- agency agreements for use in the planning of oping agreements with LEAs. joint State level conferences and for use in Guidance for Paragraph (j) preparation of Comprehensive State Per- sonnel Development plans. They should also Children may spend part of the program discuss these needs with LEAs which provide hours in Head Start for a mainstreaming ex- in-service training. perience and part in a specialized program The program should provide training for such as an Easter Seal Society or a local the regular teachers on how to modify large mental health center. The amount of time group, small group or individual activities to spent in either program should be flexible, meet the needs of children with disabilities. according to the needs of the individual Specific training for staff should be provided child. All services to be provided, including when Head Start enrolls a child whose dis- those provided by collaborating agencies, ability or condition requires a special skill should be described in the IEP. Staff of both or knowledge of special techniques or equip- programs should observe each other’s work ment. Examples are structuring a language with the child who is enrolled and maintain activity, performing intermittent nonsterile good communication. catheterization, changing collection bags, Individual services such as occupational, suctioning, or operating leg braces. Joint physical or speech therapy, staff training, training with other agencies is recommended transportation, services to families or coun- to stretch resources and exchange expertise.
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Staff should have access to regular ongoing Foundation of America with trained volun- training events which keep them abreast of teers throughout the country. The Light- new materials, equipment and practices re- house of New York City has developed a lated to serving children with disabilities training program on early childhood and vi- and to preventing disabilities. Ongoing train- sion which was field-tested in Head Start and ing and technical assistance in support of is suitable for community agencies. Head the disabilities effort should be planned to Start and the American Optometric Associa- complement other training available to meet tion have signed a memorandum of under- staff needs. Each grantee has the responsi- standing under which member optometrists bility to identify or arrange the necessary offer eye health education and screening. support to carry out training for parents and State-funded adult education and training staff. The best use of training funds has resulted programs or community colleges make avail- when programs carry out a staff training able parenting, child development and other needs assessment and relate current year courses at low or no cost. Grantees should training plans to previous staff training with consider the need for training in working the goal of building core capability. Staff with parents, in developing working collabo- who receive special training should share rative relationships and in networking when new knowledge with the rest of the staff. planning training. The core capability of the program is en- The disabilities coordinator needs to work hanced when speech, language and other closely with the education and health coordi- therapy is provided in the regular site when- nators to provide or arrange training for ever possible. This allows for the specialist staff and parents early in each program year to demonstrate to regular staff and plan for on the prevention of disabilities. This should their follow through. It also reduces costs include the importance of observing signs and time spent transporting children to clin- that some children may have mild or fluc- ics and other settings. When university grad- tuating hearing losses due to middle ear in- uate students are utilized to provide special fections. Such losses are often undetected services as part of their training, it is helpful and can cause problems in learning speech to arrange for their supervisors to monitor and language. Many children with hearing their work. Grantees arranging for such as- losses benefit from amplification and audi- sistance are providing a valuable internship tory training in how to use their remaining site and it is to the university’s advantage to have their students become familiar with hearing most efficiently. programs on-site. Grantees should negotiate The disabilities coordinator should also when developing interagency agreements to work with the education coordinator to pro- have services provided on-site to the greatest vide timely staff training on recognizing extent possible. signs that some children may be at high risk The Head Start Act, Section 648 (42 U.S.C. for later learning problems as well as emo- 9843) (a)(2), calls for training and technical tional problems resulting from failure and assistance to be offered to all Head Start frustration. This training should address programs with respect to services for chil- ways to help children develop the skills nec- dren with disabilities without cost through essary for later academic learning, such as resource access projects which serve each re- following directions calling for more than gion of the country. The technical assistance one action, sequencing, sustaining attention, contractors contact each grantee for a needs and making auditory and visual discrimina- assessment and offer training. While their tions. staffs are small and their budgets limited, they are experienced and committed to Guidance for Paragraph (l) meeting as many needs as they can and wel- The RAPS can provide information on come inquiries. A brochure with names and addresses of the technical assistance pro- agreements which have been developed be- viders is available from ACYF/HS, P.O. Box tween Head Start and SEAs and between 1182, Washington, DC 20013. Head Start and LEAs and other agencies. The SEA is responsible for developing a Such agreements offer possibilities to share Comprehensive System of Personnel Devel- training, equipment and other resources, opment. It is important that Head Start smoothing the transition from Head Start to training needs be conveyed to this group for public or private school for children and planning purposes so that all available re- their parents. Some of these agreements sources can be brought to bear for staff specify cost- and resource-sharing practices. training in Head Start. Grantees should take Tribal Government Head Start programs advantage of free or low-cost training pro- should maximize use of Bureau of Indian Af- vided by SEAs, LEAs, community colleges fairs, LEA and Head Start funds through co- and other agencies to augment staff train- operative agreements. Indian grantees ing. should contact ACYF for referral to tech- Many agencies offer free training for staff nical assistance in this regard. Grantees and parents. An example is the Epilepsy should bear in mind that migrant children
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are served in the majority of States and in- and to the public schools is affected by the clude consideration of their special needs, in- number of three through five year old chil- cluding the necessity for rapid provision of dren with IEPs in place by December 1 of special education and related services, in each year. By establishing good working re- agreements with LEAs and other agencies. lationships with State Public Health per- sonnel and including them on advisory com- Guidance for Paragraph (m) mittees, health resources can be more easily In developing the plan and the budget utilized. which is a part of the grant application proc- It may be helpful to explore the possibility ess, it is important to budget adequately for of a cooperative agreement with the public the number of children with disabilities to be school system to provide transportation. If served and the types and severity of their the lack of transportation would prevent a disabilities. The budget should reflect re- child with disabilities from participating in sources available from other agencies as well Head Start, program funds are to be used to as the special costs to be paid for from Head provide this related service before a delay Start funds. The Head Start legislation re- occurs which would have a negative effect on quires Head Start to access resources to the child’s progress. The major emphasis is meet the needs of all the children enrolled, on providing the needed special help so that including those with disabilities. the child can develop to the maximum dur- An effective plan calls for the careful use ing the brief time in Head Start. The Americans with Disabilities Act of of funds. The Disabilities Services Coordi- 1990 (42 U.S.C. 12101) requires that new buses nator needs to keep current with the provi- (ordered after August 26, 1990) by public bus sions of Part B of the IDEA and the services systems must be accessible to individuals which may be available for three through with disabilities. New over-the-road buses or- five year-old children under this Act. Coordi- dered by privately operated bus and van nators also need to utilize the expanded serv- companies (on or after July 26, 1996 or July ices under the Early and Periodic Screening, 26, 1997 for small companies) must be acces- Diagnosis and Treatment (EPSDT) program sible. Other new vehicles, such as vans, must and Supplemental Security Income program. be accessible, unless the transportation com- To assist in the development of the plan, it pany provides service to individuals with dis- may be helpful to establish an advisory com- abilities that is equivalent to that operated mittee for the disability effort or to expand for the general public. The Justice Depart- the scope of the health advisory committee. ment enforces these requirements. Guidance for Paragraph (o) Efforts should be made to obtain expensive items such as wheelchairs or audiometers Examples of evaluation costs which can be through resources such as Title V (formerly covered include professional assessment by Crippled Children’s Services). Cooperative the multidisciplinary evaluation team, in- arrangements can be made with LEAs and struments, professional observation and pro- other agencies to share equipment such as fessional consultation. If consultation fees tympanometers. Special equipment such as for multidisciplinary evaluation team mem- hearing aids may be obtained through bers to participate in IEP meetings are not EPSDT or from SSI funds for those children available from another source, they are al- who have been found eligible. Some States lowable expenditures and need to be provided have established libraries of assistive tech- to meet the performance standards. nology devices and rosters of expert consult- Many children with disabilities enrolled in ants. Head Start already receive services from other agencies, and grantees should encour- Section 1308.5 Recruitment and Enrollment of age these agencies to continue to provide Children With Disabilities services. Grantees should use other commu- Guidance for Paragraph (a) nity agencies and resources to supplement services for children with disabilities and Head Start can play an important role in their families. Child Find by helping to locate children in By planning ahead, grantees can pool re- need and hardest to reach, such as immi- sources to schedule the periodic use of ex- grants and non-English speakers. In coopera- perts and consultants. Grantees can time- tion with other community groups and agen- share, reducing travel charges and assuring cies serving children with disabilities, Head the availability of scarce expertise. Some Start programs should incorporate in their LEAs and other agencies have enabling legis- outreach and recruitment procedures efforts lation and funds to contract for education, to identify and enroll children with disabil- health, and developmental services of the ities who meet eligibility requirements and type Head Start can provide. Grantees can whose parents desire the child’s participa- also help increase the amount of preschool tion. funding available to their State under the Integrating children with severe disabil- Individuals With Disabilities Education Act. ities for whom Head Start is an appropriate The amount of the allocation to each SEA placement is a goal of ACYF. Grantees
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should bear in mind that 45 CFR part 84, mainstreaming effort within the community Nondiscrimination on the Basis of Handicap by: in Programs and Activities Receiving or • Including community child service pro- Benefiting from Federal Financial Assist- viders on policy council health and disability ance or the Rehabilitation Act of 1973 (20 advisory boards and in other relevant Head U.S.C. 794) states that any program receiving Start activities. Federal funds may not deny admission to a • Making presentations on Head Start child solely on the basis of the nature or ex- mainstreaming experiences at local, State tent of a disabling condition and shall take and Regional meetings and conferences, such into account the needs of the child in deter- as the National Association for the Edu- mining the aid, benefits, or services to be provided. Many children who appear to have cation of Young Children, Council for Excep- serious impairments are nevertheless able to tional Children, and the Association for the make greater gains in an integrated setting Care of Children’s Health. than in a segregated classroom for children • Participating in interagency planning with disabilities. activities for preschool infant and toddler The key factor in selecting an appropriate programs such as the State Interagency Co- placement is the IEP. The need of the indi- ordinating Councils supported under the vidual child and the ability of the child to IDEA. benefit are determining factors. Likewise, the amount of time per day or week to be Guidance for Paragraph (b) spent in the regular setting and/or in other Grantees should maintain records of out- settings is determined by the IEP. The IEP reach, recruitment, and service activities for of a child with a severe emotional/behavioral children with disabilities and their families. disorder, for example, might realistically Each grantee should develop a policy on call for less than full day attendance or for what types of information are to be included dual placement. Another factor to consider in a comprehensive file for each disabled is that according to the PIR, the majority of children with severe impairments are pro- child. The policy should outline the loca- vided special services by both Head State tions where a copy of each record will be staff and staff of other agencies, sharing the sent. For example, while a comprehensive responsibility. Many grantees have success- file will be maintained at the Head Start fully served children with moderate and se- program central office (where the disability vere disabilities. services coordinator and component coordi- The disabilities coordinator’s responsi- nators may be based), a teacher must have bility includes providing current names of access to a child’s IEP and progress notes in appropriate specialized agencies serving order to plan effectively. Confidentiality young children with disabilities and the needs to be maintained in a manner which names of LEA Child Find contact persons to allows for access to information by appro- the director to facilitate joint identification priate staff while meeting applicable Head of children with disabilities. It also includes Start and State requirements. learning what resources other agencies have available and the eligibility criteria for sup- Guidance for Paragraph (d) port from State agencies, Supplemental Se- Staff should assist families who need help curity Income (SSI), Title V, Maternal and in obtaining immunizations before the pro- Child Health Block Grants, Title XIX gram year begins, bearing in mind that a (EPSDT/Medicaid), Migrant Health Centers, goal of parent involvement and social service Developmental Disabilities programs, Bu- activities is to encourage independence and reau of Indian Affairs, third party payers such as insurance companies and other develop skills in meeting timelines when sources. seeking services for children. Care should be Grantees need to develop lists of appro- taken that children are not denied enroll- priate referral sources. These include hos- ment, but that their families receive the pital child life programs, SSI, early inter- necessary assistance to meet entrance re- vention programs funded by Part H of the quirements. ‘‘Healthy Young Children: A IDEA or other sources, EPSDT providers, in- Manual for Programs,’’ (a cooperative effort fant stimulation programs, Easter Seal and of the Administration for Children, Youth United Cerebral Palsy agencies, mental and Families, the American Academy of Pe- health agencies, Association for Retarded diatrics; the Division of Maternal and Child Citizens chapters, Developmental Disabil- Health, U.S. Department of Health and ities Planning Councils, Protection and Ad- Human Services; Georgetown University vocacy Systems, University Affiliated Pro- Child Development Center; Massachusetts grams, the LEA Child Find, and the medical Department of Public Health, and the Na- community. tional Association for the Education of Head Start programs are encouraged to in- Young Children, 1988, copyright, NAEYC) crease the visibility of the Head Start contains best practice guidance.
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Section 1308.6 Assessment of Children ordinated screening programs make immuni- zations available. Guidance for Paragraph (b) This coordination can focus staff energy on Early screening is essential because of the assisting families to have their children im- time required for the steps necessary before munized during the screening phase rather special services can begin. It has been very than making repeated follow-up efforts after difficult for some grantees to complete the program for children has begun. Coordi- health screenings in a timely manner for nated screening also provides an excellent several reasons including the lack of re- parent education opportunity. Information sources, especially in rural areas; the need to on child development, realistic expectations rely on donated services from agencies whose for preschoolers and such services as WIC schedules have been especially overloaded can be provided during the screening. Some during September and October after the communities have combined screening with start of the Head Start program year; lack of well-received health fairs. summer staff in most programs; and the dif- The staff should be involved in the plan- ficulty in reaching some families. Lack of ning of screening to assure that screening re- coordination among agencies with legisla- quirements are selected or adapted with the tive responsibility for identifying children specific Head Start population and goals of with disabilities has resulted in duplication the screening process in mind. Instruments and unacceptable delays in providing re- with age-appropriate norms should be used. quired services for many grantees. Other Children should be screened in their native grantees, however, have demonstrated the language. Universities, civic organizations ability to complete screenings early in the or organizations to aid recent immigrants program year without difficulty. Many pro- may be able to locate native speakers to as- grams already complete screening by 45 days sist. The RAPs can provide information on after the first day of program operation. the characteristics of screening instruments. Some participate in spring or summer Current best practice indicates that indi- screening programs in their areas before the vidual pure tone audiometry be used as the fall opening. Grantees are encouraged to first part of a screening program with chil- schedule well in advance with clinics and dren as young as three. The purpose is to with such providers as EPSDT and the In- identify children with hearing impairments dian Health Service for timely screening and that interfere with, or have the potential to any subsequent evaluations that may be interfere with communication. The rec- needed. ommended procedure is audiometric screen- Recently, a number of legislative and legal ing at 20 dB HL (re ANSI–1969) at the fre- requirements have increased the resources quencies of 1000, 2000, and 4000 Hz, (and at 500 available for the screening and evaluation of Hz unless acoustic immittance audiometry is children. Title XIX, EPDST/Medicaid, has included as the second part of the screening new requirements for screening and evalua- program and if the noise level in the room tion, as well as treatment; the Social Secu- permits testing at that frequency.) Acoustic rity Administration has modified eligibility immittance audiometry (or impedance audi- requirements for children with disabilities so ometry) is recommended as the second part that more services will be available; and all of the program to identify children who have States have assured that services will be pro- middle-ear disorders. vided from at least age three under IDEA so The audiometric screening program should that LEAs in more States will be engaged in be conducted or supervised by an audiologist. identifying and evaluating children from Nonprofessional support staff have success- birth to age six. fully carried out audiometric screening with In response to these changes, the Depart- appropriate training and supervision. ment of Health and Human Services and the When a child fails the initial screening, an Department of Education, through the Fed- audiometric rescreening should be adminis- eral Interagency Coordinating Council, have tered the same day or no later than within 2 developed a cooperative agreement for co- weeks. A child who fails the rescreening ordinated screening. Head Start is one of the should be referred for an evaluation by an participating agencies which will work to- audiologist. gether to plan and implement community Current best practice calls for annual hear- screenings, assisting the LEAs which have ing tests. Frequent rescreening is needed for the major responsibility for identifying children with recurrent ear infections. every child with a disability under the IDEA. Grantees who contract or arrange for hear- In addition, programs may elect to make ing testing should check to assure that the some summer staff available for activities to testing covers the three specified frequencies close out program work in the spring and and that other quality features are present. prepare for the fall. Speech, hearing and language problems are These developments make timely screen- the most widespread disabilities in preschool ing feasible. They also make it possible to programs and quality testing is vital for expedite immunizations. State-of-the-art co- early detection and remediation.
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Playing listening games prior to testing grams are funded to provide preschool devel- and getting use to earphones can help chil- opmental experiences for all eligible chil- dren learn to respond to a tone and improve dren, some of whom also need special edu- the quality of the testing. cation and related services. The intent of the Some grantees have found it strengthens evaluation procedures is to provide informa- the skills of their staff to have all members tion to identify children who have disabling learn to do developmental screening. This conditions so they can receive appropriate can be a valuable in-service activity espe- assistance. It is also the intent to avoid cially for teachers. State requirements for mislabeling children for whom basic Head qualifications should be checked and non- Start programming is designed and who may professional screeners should be trained. show developmental delays which can be Some programs have involved trained stu- overcome by a regular comprehensive pro- dents from schools of nursing, child develop- gram meeting the Head Start Performance ment or special education graduate students, Standards. or medical students who must carry out When a grantee provides for the evaluation screening work as part of their required ex- of a child, it is important that the Head perience. Start eligibility criteria be explained to the evaluation team members and that they be Guidance for Paragraph (d) informed as to how the results will be used. Grantees should require specific findings in Parents should be provided assistance if writing from the evaluation team, and rec- necessary, so that they can participate in ommendations for intervention when the the developmental assessment. team believes the child has a disability. The Grantees should offer parents assistance in findings will be used in developing the understanding the implications of develop- child’s IEP to ensure that parents, teachers mental assessments as well as medical, den- and others can best work with the child. tal or other conditions which can affect their Some grantees have obtained useful func- child’s development and learning. tional information by asking team members Development assessment is an ongoing to complete a brief form describing the process and information from observations child’s strengths and weaknesses and the ef- in the Head Start center and at home should fects of the disability along with suggestions be recorded periodically and updated in each for special equipment, treatment or services. developmental area in order to document The evaluators should be asked in advance to progress and plan activities. provide their findings promptly in easily un- Disabilities coordinators, as well as edu- derstood terms. They should provide sepa- cation staff, need to be thoroughly familiar rate findings and, when they agree, con- with developmental assessment activities sensus professional opinions. When planning such as objective observation, time sampling in advance for evaluation services from and obtaining parent information and the other agencies, grantees should try to obtain use of formal assessment instruments. agreements on prompt timing for delivery of Knowledge of normal child development and reports which are necessary to plan services. understanding of the culture of the child are To assist the evaluation team, Head Start also important. should provide the child’s screening results, pertinent observations, and the results of Guidance for Paragraph (e) any developmental assessment information While the LEA is responsible for assuring which may be available. that each child who is referred is evaluated It is important that programs ensure that in accordance with the provisions of IDEA no individual child or family is labeled, mis- and usually provides the evaluation, grant- labeled, or stigmatized with reference to a ees may sometimes provide for the evalua- disabling condition. Head Start must exer- tion. In that event, grantees need to assure cise care to ensure that no child is that evaluation specialists in appropriate misidentified because of economic cir- areas such as psychology, special education, cumstances, ethnic or cultural factors or de- speech pathology and physical therapy co- velopmental lags not caused by a disability, ordinate their activities so that the child’s bilingual or dialectical differences, or be- total functioning is considered and the cause of being non-English speaking. team’s findings and recommendations are in- If Head Start is arranging for the evalua- tegrated. tion, it is important to understand that a Grantees should select members of the child whose problem has been corrected (e.g., multidisciplinary evaluation team who are a child wearing glasses whose vision is cor- familiar with the specific Head Start popu- rected and who does not need special edu- lation, taking into account the age of the cation and related services) does not qualify children and their cultural and ethnic back- as a child with a disability. A short-term ground as they relate to the overall diag- medical problem such as post-operative re- nostic process and the use of specific tests. covery or a problem requiring only medical Grantees should be certain that team care and health monitoring when the evalua- members understand that Head Start pro- tion specialists have not stated that special
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education and related services are needed and national agencies and organizations that does not qualify as a disability. can provide additional information as more The evaluation team should include con- is learned. Staff should be aware that there sideration of the way the disability affects is a high incidence of visual impairment the child’s ability to function as well as the among children with HIV and AIDS. cause of the condition. Some children may have a recent evalua- Guidance for Paragraph (c) tion from a clinic, hospital or other agency Teachers or others in the program setting (other than the LEAs) prior to enrolling in are in the best position to note the following Head Start. If that evaluation did not in- kinds of indications that a child may need to clude needed functional information or a be evaluated to determine whether an atten- professional opinion as to whether the child tion deficit disorder exists: meets one of the Head Start eligibility cri- (1) Inability of a child who is trying to par- teria, the grantee should contact the agency ticipate in classroom activities to be able to to try to obtain that information. orient attention, for example to choose an Some children, prior to enrolling in Head activity for free time or to attend to simple Start, already have been diagnosed as having instructions; severe disabilities and a serious need for (2) Inability to maintain attention, as in services. Some of these children already may trying to complete a selected activity, to be receiving some special assistance from carry out simple requests or attend to tell- other agencies for their disabilities but lack ing of an interesting story; or developmental services in a setting with (3) Inability to focus attention on recent other children. Head Start programs may activities, for example on telling the teacher best meet their needs by serving them joint- about a selected activity, inability to tell ly, i.e., providing developmental services about simple requests after carrying them while disability services are provided from out, or inability to tell about a story after another source. It is important in such situa- hearing it. tions that regular communication take place These indicators should only be used after between the two sites. the children have had sufficient time to be- Beginning in 1990, State EPSDT/Medicaid come familiar with preschool procedures and programs must, by law, evaluate and provide after most of the children are able easily to services for young children whose families carry out typical preschool activities. meet eligibility criteria at 133 percent of the Culturally competent staff recognize and poverty levels. This is a resource for Head appreciate cultural differences, and this Start and it is important to become aware of awareness needs to include understanding EPSDT provisions. that some cultural groups may promote be- havior that may be misinterpreted as inat- Section 1308.7 Eligibility Criteria: Health tention. Care must be taken that any devi- Impairment Guidance ations in attention behavior which are with- Guidance for Paragraph (c) in the cultural norms of the child’s group are not used as indicators of possible attention Many health impairments manifest them- deficit disorder. selves in other disabling conditions. Because A period of careful observation over three of this, particular care should be taken when months can assure that adequate docu- classifying a health impaired child. mentation is available for the difficult task of evaluation. It also provides opportunity to Guidance for Paragraph (b) provide extra assistance to the child, perhaps Because AIDS is a health impairment, through an aide or special education student grantees will continue to enroll children under the teacher’s direction, which might with AIDS on an individual basis. Staff need improve the child’s functioning and elimi- to be familiar with the Head Start Informa- nate the behavior taken as evidence of pos- tion Memorandum on Enrollment in Head sible attention deficit disorder. Start Programs of Infants and Young Chil- Attention deficit disorders are not the re- dren with Human Immunodeficiency Virus sult of learning disabilities, emotional/be- (HIV), AIDS Related Complex (ARC), or Ac- havioral disabilities, autism or mental retar- quired Immunodeficiency Syndrome (AIDS) dation. A comprehensive psychological eval- dated June 22, 1988. This guidance includes uation may be carried out in some cases to material from the Centers for Disease Con- rule out learning disability or mental retar- trol which stresses the need for a team, in- dation. It is possible, however, in some in- cluding a physician, to make informed deci- stances for this disability to coexist with an- sions on enrollment on an individual basis. It other disability. Children who meet the cri- provides guidance in the event that a child teria for multiple disabilities (e.g., attention with disabilities presents a problem involv- deficient disorder and learning disability, or ing biting or bodily fluids. The guidance also emotional/behavioral disorder, or mental re- discusses methods for control of all infec- tardation) would be eligible for services as tious diseases through stringent cleanliness children with multiple disabilities or under standards and includes lists of Federal, State their primary disability.
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Teacher and parent reports have been Urban League, Jaycees, Rotary, Foster found to provide the most useful information Grandparents, etc. may be able to provide for assessment of children suspected of hav- mentoring and individual attention. ing attention deficit disorder. They are also Suggested Primary Members of a Head useful in planning and providing special edu- Start Evaluation Team for Emotional/behav- cation intervention. The most successful ap- ioral Disorders: proach may be a positive behavior modifica- Psychologist, psychiatrist or other clini- tion program in the classroom, combined cally trained and State qualified mental with a carryover program in the home. Prompt and clear response should be pro- health professionals. vided consistently. Positive reinforcement Pediatrician. for appropriate behavior, based on rewards Possible Related Services: such as stickers or small items desired by (Related services are determined by indi- the child has been found effective for chil- vidual need. These ‘‘possible related serv- dren with this disorder, along with occa- ices’’ are merely examples and are not in- sional withholding of rewards or postponing tended to be limiting.) of desired activities in the face of inappro- Behavior management. priate behavior. Effective programs suggest Environmental adjustments. that positive interactions with the child Family counseling. after appropriate behavior are needed at Psychotherapy. least three times as often as any negative re- sponse interactions after inappropriate be- Transportation. havior. Consultants familiar with behavior Assistive technology. modification should be used to assist teach- ers in planning and carrying out interven- Section 1308.9 Eligibility Criteria: Speech or tion which can maintain this positive to neg- Language Impairment ative ratio while shaping behaviors. These Guidance for Paragraph (a) behavior interventions can be provided in mainstream placements with sufficient per- Staff familiar with the child should con- sonnel. sider whether shyness, lack of familiarity Suggested Primary Members of A Head with vocabulary which might be used by Start Evaluation Team for Health Impaired testers, unfamiliar settings, or linguistic or Children: cultural factors are negatively influencing Physician. screening and assessment results. Whenever Pediatrician. possible, consultants trained in assessing the Psychologist. speech and language skills of young children Other specialists related to specific disabil- ities. should be selected. The child’s ability to Possible Related Services: communicate at home, on the playground (Related services are determined by indi- and in the neighborhood should be deter- vidual need. These ‘‘possible related serv- mined for an accurate assessment. Review of ices’’ are merely examples and are not in- the developmentally appropriate age ranges tended to be limiting.) for the production of difficult speech sounds Family counseling. can also help reduce over-referral for evalua- Genetic counseling. tion. Nutrition counseling. Suggested Primary Members of a Head Recreational therapy. Start Evaluation Team for Speech or Lan- Supervision of physical activities. guage Impairment: Transportation. Speech Pathologist. Assistive technology devices or services Language Pathologist. Section 1308.8 Eligibility Criteria: Emotional/ Audiologist. Behavioral Disorders Otolaryngologist. Psychologist. Guidance for Paragraph (a) Possible Related Services: Staff should insure that behavior which (Related services are determined by indi- may be typical of some cultures or ethnic vidual need. These ‘‘possible related serv- groups, such as not making eye contact with ices’’ are merely examples and are not in- teachers or other adults or not volunteering tended to be limiting.) comments or initiating conversations are Environmental adjustments. not misinterpreted. Family counseling. The disability, social service and parent involvement coordinators should consider Language therapy. providing extra attention to children at-risk Speech therapy. for emotional/behavioral disorders and their Transportation. parents to help prevent a disability. Mem- Assistive technology devices or services. bers of the Council of One Hundred, Kiwanis,
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Section 1308.10 Eligibility Criteria: Mental Total communication, speechreading or Retardation manual communication. Transportation. Guidance for Paragraph (a) Use of amplification. Evaluation instruments with age-appro- Assistive technology devices or services. priate norms should be used. These should be administered and interpreted by profes- Section 1308.12 Eligibility Criteria: Orthopedic sionals sensitive to racial, ethnic and lin- Impairment guistic differences. The diagnosticians must Guidance for Paragraph (a) be aware of sensory or perceptual impair- ments that the child may have (e.g., a child Suggested Primary Members of a Head who is visually impaired should not be tested Start Evaluation Team for Orthopedic Im- with instruments that rely heavily on visual pairment: information as this could produce a de- Pediatrician. pressed score from which erroneous diag- Orthopedist. nostic conclusions might be drawn). Neurologist. Suggested primary members of a Head Occupational Therapist. Start evaluation team for mental retarda- Physical Therapist. tion: Rehabilitation professional. Psychologist. Possible Related Services: Pediatrician. (Related services are determined by indi- Possible related services: vidual need. These ‘‘possible related serv- (Related services are determined by indi- ices’’ are merely examples and are not in- vidual need. These ‘‘possible related serv- tended to be limiting.) ices’’ are merely examples and are not in- Environmental adjustments. tended to be limiting.) Family counseling. Environmental adjustments. Language therapy. Family counseling. Medical treatment. Genetic counseling. Occupational therapy. Language therapy. Physical therapy. Recreational therapy. Assistive technology. Speech therapy. Recreational therapy. Transportation. Speech therapy. Nutrition counseling. Transportation. Section 1308.11 Eligibility Criteria: Hearing Nutrition counseling. Impairment Including Deafness Section 1308.13 Eligibility Criteria: Visual Guidance for Paragraph (a) Impairment Including Blindness An audiologist should evaluate a child who Guidance for Paragraph (a) has failed rescreening or who does not re- spond to more than one effort to test the Primary Members of an Evaluation Team child’s hearing. If the evaluation team deter- for Visual Impairment including Blindness: mines that the child has a disability, the Ophthalmologist. team should make recommendations to meet Optometrist. the child’s needs for education and medical Possible Related Services: care or habilitation, including auditory (Related services are determined by indi- training to learn to use hearing more effec- vidual need. These ‘‘possible related serv- tively. ices’’ are merely examples and are not in- Suggested Primary Members of a Head tended to be limiting.) Start Evaluation Team for Hearing Impair- Environmental adjustments. ment: Family counseling. Audiologist. Occupational therapy. Otolaryngologist. Orientation and mobility training. Possible Related Services: Pre-Braille training. (Related services are determined by indi- Recreational therapy. vidual need. These ‘‘possible related serv- Sensory training. ices’’ are merely examples and are not in- Transportation. tended to be limiting.) Functional vision assessment and therapy. Auditory training. Aural habilitation. Section 1308.14 Learning Disabilities Environmental adjustments. Guidance for Paragraph (a) Family counseling. Genetic counseling. When a four or five-year-old child shows Language therapy. signs of possible learning disabilities, thor- Medical treatment. ough documentation should be gathered. For Speech therapy. example, specific anecdotal information and
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samples of the child’s drawings, if appro- gible for needed special services either with- priate, should be included in the material in Head Start or the State program. given to the evaluation team. Suggested primary members of an evalua- A Master’s degree level professional with a tion team for other impairments meeting background in learning disabilities should be State eligibility criteria for services to pre- a member of the evaluation team. school children with disabilities. Possible Related Services: Pediatrician. (Related services are determined by indi- Psychologist. vidual need. These ‘‘possible related serv- Other specialists with expertise in the ap- ices’’ are merely examples and are not in- propriate area(s). tended to be limiting.) Possible Related Services: Vision evaluation. (Related services are determined by indi- Neurology. vidual need. These ‘‘possible related serv- Psychology. ices’’ are merely examples and are not in- Motor development. tended to be limiting.) Occupational therapy. Hearing evaluation. Speech or language therapy. Child psychiatry. Family Counseling. Pediatric evaluation. Transportation. Section 1308.15 Autism Deaf-blindness A child who manifests characteristics of Information on assistance or joint services the condition after age three can still be di- for deaf-blind children can be obtained agnosed as having autism. Autism does not through SEAs. include children with characteristics of seri- ous emotional disturbance. Multiple Disabilities Suggested possible members of a Head A child who is deaf and has speech and lan- Start evaluation team: guage impairments would not be considered Psychologist. to have multiple disabilities, as it could be Pediatrician. expected that these impairments were Audiologist. caused by the hearing loss. Psychiatrist. Suggested primary members of a Head Language pathologist. Start evaluation team: Possible related services: Audiologists. (Related services are determined by indi- Special educators. vidual need. These ‘‘possible related serv- Speech, language or physical therapists. ices’’ are merely examples and are not in- Psychologists or psychiatrists. tended to be limiting.) Rehabilitation professional. Family support services. Possible related services: Language therapy. (Related services are determined by indi- Transportation. vidual need. These ‘‘possible related serv- ices’’ are merely examples and are not in- Section 1308.16 Traumatic Brain Injury tended to be limiting.) Traumatic brain injury does not include Speech, language, occupational or physical congenital brain injury. therapists as needed. Suggested possible members of an evalua- Assistive technology devices or services. tion team included: Mental health services. Psychologist. Transportation. Physical therapist. Section 1308.18 Disabilities/Health Services Speech or language pathologist. Coordination Possible related services: (Related services are determined by indi- Guidance for Paragraph (a) vidual need. These ‘‘possible related serv- It is important for staff to maintain close ices’’ are merely examples and are not in- communication concerning children with tended to be limiting.) health impairments. Health and disability Rehabilitation professional. services coordinators need to schedule fre- Occupational therapy. quent re-tests of children with recurrent Speech or language therapy. middle ear infections and to ensure that they Assistive technology. receive ongoing medical treatment to pre- Section 1308.17 Other Impairments vent speech and language delay. They should ensure that audiometers are calibrated annu- This category was included to ensure that ally for accurate testing of hearing. Speech any Head Start child who meets the State and hearing centers, the manufacturer, or eligibility criteria as developmentally de- public school education services districts layed or State-specific criteria for services should be able to perform this service. In ad- to preschool children with disabilities is eli- dition, a daily check when an audiometer is
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in use and a check of the acoustics in the the least restrictive environment varies for testing site are needed for accurate testing. different children. Likewise, the least re- Approximately 17 percent of Down Syn- strictive environment for a given child can drome children have a condition of the spine vary over time as the disability is remedi- (atlanto-axial instability) and should not en- ated or worsens. A mainstreamed placement, gage in somersaults, trampoline exercises, or in a regular program with services delivered other activities which could lead to spinal by regular or special staff, is one type of in- injury without first having a cervical spine tegrated placement on the continuum of pos- x-ray. sible options. It represents the least restric- tive environment for many children. Guidance for Paragraph (b) Following screening, evaluation and the The disabilities services coordinator needs determination that a child meets the eligi- to assure that best use is made of mental bility criteria and has a disability, a plan to health consultants when a child appears to meet the child’s individual needs for special have a problem which may be symptomatic education and related services is developed. of a disability in the social/emotional area. In order to facilitate communication with Teachers, aides and volunteers should keep other agencies which may cooperate in pro- anecdotal records of the child’s activities, viding services and especially with LEAs or tantrums, the events which appear to pre- private schools which the children will even- cipitate the tantrums, language use, etc. tually enter, it is recommended that pro- These can provide valuable information to a grams become familiar with the format of mental health consultant, who should be the IEP used by the LEAs and use that for- used primarily to make specific rec- mat to foster coordination. However, the for- ommendations and assist the staff rather mat of the IEP to be developed for children than to document the problem. in Head Start can vary according to local op- The mental health coordinator can cooper- tion. It should be developed to serve as a ate in setting up group meetings for parents working document for teachers and others of children with disabilities which provide providing services for a child. needed support and a forum for talking over It is recommended that the staff review mutual concerns. Parents needing commu- the IEP of each child with a disability more nity mental health services may need direct frequently than the minimum once a year to assistance in accessing services, especially keep the objectives and activities current. at first. It is ideal if a child can be mainstreamed The disability services coordinator needs in the full program with modifications of to work closely with staff across components some of the small group, large group or indi- to help parents of children who do not have vidual program activities to meet his or her disabilities become more understanding and special needs and this should be the first op- knowledgeable about disabilities and ways to tion considered. However, this is not possible lessen their effects. This can help reduce the or realistic in some cases on a full-time isolation which some families with children basis. The IEP team needs to consider the with disabilities experience. findings and recommendations of the multi- disciplinary evaluation team, observation Guidance for Paragraphs (c) and (d) and developmental assessment information Arrangements should be made with the from the Head Start staff and parents, paren- family and the physician to schedule the ad- tal information and desires, and the IEP to ministration of medication during times plan for the best situation for each child. when the child is most likely to be under pa- Periodic reviews can change the degree to rental supervision. which a child can be mainstreamed during Awareness of possible side effects is of par- the program year. For example, a child with ticular importance when treatment for a dis- autism whose IEP called for part-time serv- ability requires administration of poten- ices in Head Start in the fall might improve tially harmful drugs (e.g., anti-convulsants, so that by spring the hours could be ex- amphetamines). tended. If Head Start is not an appropriate place- Section 1308.19 Developing Individual Education ment to meet the child’s needs according to Programs (IEPs) the IEP, referral should be made to another agency. Guidance for Paragraph (a) Helpful specific information based on expe- The IEP determines the type of placement rience in Head Start is provided in manuals and the specific programming which are ap- and resource materials on serving children propriate for a child. The least restrictive with disabilities developed by ACYF and by environment must be provided and staff need technical assistance providers. They cover to understand that this means the most ap- such aspects of developing and implementing propriate placement in a regular program to the IEP as: the maximum extent possible based on the • Gathering data needed to develop the IEP. Because it is individually determined, IEP;
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• Preparing parents for the IEP con- not able to learn or develop normally be- ference; cause of malnutrition. • Writing IEPs useful to teachers; and The staff person who is responsible for nu- • Developing appropriate curriculum ac- trition and the disabilities services coordi- tivities and home follow-up activities. nator should alert staff to watch for prac- tices leading to baby bottle caries. This is se- Guidance for Paragraph (j) vere tooth decay caused by putting a baby or Programs are encouraged to offer parents toddler to bed with a nursing bottle con- assistance in noting how their child func- taining milk, juice or sugar water or letting tions at home and in the neighborhood. Par- the child carry around a bottle for long peri- ents should be encouraged to contribute this ods of time. The serious dental and speech valuable information to the staff for use in problems this can cause are completely pre- ongoing planning. Care should be taken to ventable. put parents at ease and to eliminate or ex- In cases of severe allergies, staff should plain specialized terminology. Comfortable work closely with the child’s physician or a settings, familiar meeting rooms and ample medical consultant. preparation can help lessen anxiety. The Section 1308.21 Parent Participation and Tran- main purpose is to involve parents actively, sition of Children From Head Start to Public not just to obtain their signature on the IEP. School It is important to involve the parents of children with disabilities in activities re- Guidance for Paragraph (a) lated to their child’s unique needs, including the procurement and coordination of special- Grantees should help parents understand ized services and follow-through on the the value of special early assistance for a child’s treatment plan, to the extent pos- child with a disability and reassure those sible. It is especially helpful for Head Start parents who may fear that if their child re- to assist parents in developing confidence, ceives special education services the child strategies and techniques to become effec- may always need them. This is not the expe- tive advocates for their children and to nego- rience in Head Start and most other pre- tiate complicated systems. Under IDEA, a school programs where the majority of chil- federally-funded Parent Training and Infor- dren no longer receive special education mation Program exists whereby parent after the preschool years. The disabilities co- training centers in each State provide infor- ordinator needs to help parents understand mation, support and assistance to parents that their active participation is of great im- enabling them to advocate for their child. In- portance in helping their children overcome formation regarding these centers should be or lessen the effects of disabilities and de- given to parents of a child determined to velop to their full potential. have a disability. Because some parents will The disabilities coordinator should help need to advocate for their children over a program staff deal realistically with parents number of years, they need to gain the con- of children who have unfamiliar disabilities fidence and skills to access resources and ne- by providing the needed information, train- gotiate systems with increasing independ- ing and contact with consultants or special- ence. ized agencies. The coordinator should ensure Some parents of children with disabilities that staff carrying out family needs assess- are also disabled. Staff may need to adjust ment or home visits do not overlook possible procedures for assisting parents who have disabilities among younger siblings who disabilities to participate in their children’s should be referred for early evaluation and programs. Materials to assist in this effort preventive actions. are available from technical assistance pro- Guidance for Paragraphs (b) and (c) viders. As most Head Start children will move Section 1308.20 Nutrition Services into the public school system, disabilities coordinators need to work with the Head Guidance for Paragraph (a) Start staff for early and ongoing activities Vocabulary and concept building, count- designed to minimize discontinuity and ing, learning place settings, social skills stress for children and families as they move such as conversation and acceptable manners into a different system. As the ongoing advo- can be naturally developed at meal or snack cates, parents will need to be informed and time, thus enhancing children’s skills. Chil- confident in communicating with school per- dren with disabilities often need planned at- sonnel and staff of social service and medical tention to these areas. agencies. Disabilities coordinators need to The staff person who is responsible for nu- ensure that the Head Start program: trition and the disabilities services coordi- • Provides information on services avail- nator should work with the social services able for LEAs and other sources of services coordinator to help families access nutrition parents will have to access on their own, resources and services for children who are such as dental treatment;
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• Informs parents of the differences be- 1309.23 Insurance, bonding, and mainte- tween the two systems in role, staffing pat- nance. terns, schedules, and focus; • Provides opportunities for mutual visits Subpart D—Modular Units by staff to one another’s facilities to help plan appropriate placement; 1309.30 General. • Familiarizes parents and staff of the re- 1309.31 Site description. ceiving program’s characteristics and 1309.32 Statement of procurement procedure expections; for modular units. • Provides early and mutually planned 1309.33 Inspection. transfer of records with parent consent at 1309.34 Costs of installation of modular times convenient for both systems; unit. • Provides information on services avail- able under the Individuals With Disabilities Education Act, the federally-funded parent Subpart E—Other Administrative Provisions training centers and provisions for parent in- 1309.40 Copies of documents. volvement and due process; and • Provides opportunities for parents to 1309.41 Record retention. confer with staff to express their ideas and 1309.42 Audit of mortgage. needs so they have experience in partici- 1309.43 Use of grant funds to pay fees. pating in IEP and other conferences in an ac- 1309.44 Independent analysis. tive, confident manner. Role playing has AUTHORITY: 42 U.S.C. 9801 et seq. been found helpful. It is strongly recommended that programs SOURCE: 64 FR 5945, Feb. 8, 1999, unless oth- develop activities for smooth transition into erwise noted. Head Start from Part H infant/toddler pro- grams funded under IDEA and from Head Start to kindergarten or other placement. In Subpart A—General order to be effective, such plans must be de- veloped jointly. They are advantageous for § 1309.1 Purpose and application. the children, parents, Part H programs, Head This part prescribes regulations im- Start and LEAs. ACYF has developed mate- rials useful for transition. American Indian plementing sections 644(c) and 644(f) of programs whose children move into several the Head Start Act, 42 U.S.C. 9801 et systems, such as Bureau of Indian Affairs seq., as it applies to grantees operating schools and public schools, need to prepare Head Start programs under the Act. It children and families in advance for the new describes the procedures for applying situation. Plans should be used as working for Head Start grant funds to purchase documents and reviewed for annual update, facilities in which to operate Head so that the foundation laid in Head Start is maintained and strengthened. Start programs, and the conditions under which grant funds may be award- ed to purchase facilities. It also speci- PART 1309—HEAD START FACILITIES fies the measures which must be taken PURCHASE to protect the Federal interest in fa- cilities purchased with Head Start Subpart A—General grant funds. Sec. 1309.1 Purpose and application. § 1309.2 Approval of previously pur- 1309.2 Approval of previously purchased fa- chased facilities. cilities. Head Start grantees which purchased 1309.3 Definitions. facilities after December 31, 1986, and Subpart B—Application Procedures before October 7, 1992, may request ret- roactive approval of the purchase by 1309.10 Application. submitting an application which con- 1309.11 Cost comparison. forms to the requirements of this Part 1309.12 Timely decisions. and the Act. Grant funds may be used Subpart C—Protection of Federal Interest to pay facility purchase costs incurred only after the responsible HHS official 1309.20 Title. approves an application for a pre- 1309.21 Recording of Federal interest and viously purchased facility. other protection of Federal interest. 1309.22 Rights and responsibilities in the § 1309.3 Definitions. event of grantee’s default on mortgage, or withdrawal or termination. As used in this part,
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ACF means the Administration for a Head Start program, or such official’s Children and Families in the Depart- designee. ment of Health and Human Services, and includes the Regional Offices. Subpart B—Application Acquire means to purchase in whole Procedures or in part with Head Start grant funds through payments made in satisfaction § 1309.10 Application. of a mortgage agreement (both prin- cipal and interest), as a down payment, A grantee which proposes to use for professional fees, for closing costs, grant funds to purchase a facility must and for any other costs associated with submit a written application to the re- the purchase of the property that are sponsible HHS official. The application usual and customary for the locality. must include the following informa- Act means the Head Start Act, 42 tion: U.S.C. section 9801, et seq. (a) A legal description of the site of ACYF means the Administration on the facility, and an explanation of the Children, Youth and Families, a com- appropriateness of the location to the ponent of the Administration for Chil- grantee’s service area, including a dren and Families in the Department statement of the effect that purchase of Health and Human Services. of the facility has had or will have on Facility means a structure such as a the transportation of children to the building or modular unit appropriate program, on the grantee’s ability to for use by a Head Start grantee to collaborate with other child care, so- carry out a Head Start program. cial services and health providers, and Grant funds means Federal financial on all other program activities and assistance received by a grantee from services. ACF to administer a Head Start pro- (b) Plans and specifications of the fa- gram pursuant to the Head Start Act. cility, including information on the Grantee means the local public, pri- size and type of structure, the number vate non-profit or for-profit agency and a description of the rooms and the designated to operate a program pursu- lot on which the building is located (in- ant to 42 U.S.C. 9836 or 42 U.S.C. 9840a. cluding the space available for a play- Head Start center or a direct support fa- ground and for parking). cility for a Head Start program means a (c) The cost comparison described in facility used primarily to provide Head § 1309.11 of this part. Start services to children and their (d) If minor renovations are nec- families, or for administrative or other essary to make the facility suitable to activities necessary to the conduct of carry out the Head Start program, a the Head Start program. description of the renovations, and the Modular unit means a portable pre- plans and specifications required by fabricated structure made at another paragraph (b) of this section for the fa- location and moved to a site for use by cility as it will be after renovations are a Head Start grantee to carry out a complete. Head Start program. (e) The intended uses of the facility, Purchase means to buy an existing fa- including information demonstrating cility, either outright or through a that the facility will be used prin- mortgage. Purchase also refers to an cipally as a Head Start center or a di- approved purchase of a facility, com- rect support facility for a Head Start menced between December 31, 1986 and program. If the facility is to be used for October 7, 1992, as permitted by the purposes in addition to the operation of Head Start Act, and by § 1309.2 of this the Head Start program, the grantee part. must state what portion of the facility Real property means land, including is to be used for such other purposes. land improvements, structures and ap- (f) Assurance that the facility com- purtenances thereto, excluding mov- plies (or will comply after completion able machinery and equipment. of the renovations described in para- Responsible HHS official means the of- graph (d) of this section) with local li- ficial who is authorized to make the censing and code requirements, the ac- grant of financial assistance to operate cess requirements of the Americans
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with Disabilities Act (ADA), if applica- down payment, the cost of necessary ble, and section 504 of the Rehabilita- minor renovations, loan fees and re- tion Act of 1973. The grantee also will lated expenses, and fees paid to attor- assure that it has met the require- neys, engineers, and appraisers, are not ments of the Flood Disaster Protection considered to be administrative costs. Act of 1973, if applicable. (l) A proposed schedule for acquisi- (g) If the grantee is claiming that the tion, renovation and occupancy of the lack of alternative facilities will pre- facility. vent or would have prevented operation (m) Reasonable assurances that the of the program, a statement of how it applicant will obtain, or in the case of was determined that there is or was a a previously purchased facility, has ob- lack of alternative facilities. This tained a fee simple or such other estate statement must be supported, when- or interest in the site sufficient to as- ever possible, by a written statement sure undisturbed use and possession for from a licensed real estate professional the purpose of operating the Head in the grantee’s service area. If a Start program. If the grantee proposes grantee requesting approval of the pre- to purchase a facility without also pur- vious purchase of a facility is unable to chasing the land on which the facility provide such statements based on cir- is situated, the application must de- cumstances which existed at the time scribe the easement, right of way or of the purchase, the grantee and the li- land rental it will obtain or has ob- censed real estate professional may use tained to allow it sufficient access to present conditions as a basis for mak- the facility. ing the determination. (n) An assessment of the impact of (h) The terms of any proposed or ex- the proposed acquisition on the human isting loan(s) related to the purchase of environment if it involves significant the facility and the repayment plans renovation or a significant change in (detailing balloon payments or other land use, including substantial in- unconventional terms, if any) and in- creases in traffic in the surrounding formation on all other sources of fund- area due to the provision of Head Start ing of the purchase, including any re- transportation services, pursuant to strictions or conditions imposed by section 102(2)(C) of the National Envi- other funding sources. ronmental Policy Act of 1969 (42 U.S.C. (i) A statement of the effect that the 4332(2)(C)) and its implementing regula- purchase of the facility would have on tions (40 CFR parts 1500–1508), and a re- the grantee’s meeting of the non-Fed- port showing the results of tests for en- eral share requirement of section 640(b) vironmental hazards present in the fa- of the Head Start Act, including cility, ground water, and soil (or jus- whether the grantee is seeking a waiv- tification why such testing is not nec- er of its non-Federal share obligation essary). In addition, such information under that section of the Act. as may be necessary to comply with (j) Certification by a licensed engi- the National Historic Preservation Act neer or architect that the building is of 1966 (16 U.S.C. 470f) must be included. structurally sound and safe for use as a (o) Assurance that the grantee will Head Start facility. If minor renova- comply with the requirements of the tions are necessary to make the facil- Uniform Relocation Assistance and ity suitable for use to carry out a Head Real Property Acquisition Policies Act Start program, the application must of 1970, as amended (42 U.S.C. 4601 et include a certification by a licensed en- seq. and 49 CFR part 24), and informa- gineer or architect as to the cost and tion about the costs that may be in- technical appropriateness of the pro- curred due to compliance with this posed renovations. Act. (k) A statement of the effect that the (p) A statement of the share of the purchase of a facility would have on cost of purchase that will be paid with the grantee’s ability to meet the limi- grant funds. tation on development and administra- (q) For a grantee seeking approval of tive costs in section 644(b) of the Head a previous purchase, a statement of the Start Act. One-time fees and expenses extent to which it has attempted to necessary to the purchase, such as the comply and will be able to comply with
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the provisions of § 1309.22(a) of this 1973) or which can be made useable part. through minor renovation, the cost of (r) Such additional information as which shall be included in the cost the responsible HHS official may re- comparison. In the case of an applica- quire. tion for approval of the previous pur- EFFECTIVE DATE NOTE: At 64 FR 5946, Feb 8, chase of a facility, the cost of the 1999, § 1309.10 was added. This section con- present facility must be compared to tains information collection requirements the cost of the facility used by the and will not become effective until approval grantee before purchase of its current has been given by the Office of Management and Budget. facility. If the facility used by the grantee before the purchase of its § 1309.11 Cost comparison. present facility was deemed inadequate (a) A grantee proposing to purchase a by the responsible HHS official, the facility with grant funds must submit grantee had no previous facility, or if a detailed estimate of the cost of the the grantee continued to use its pre- proposed purchase, including the cost vious facility after the current facility of any necessary minor renovations, was purchased the alternative facility and must compare the cost of pur- shall be an available, appropriate facil- chasing the proposed facility to the ity (or facilities) of comparable size cost of renting an alternative facility. that was available for rent in the (b) All costs of purchase and owner- grantee’s service area at the time of its ship must be identified, including, but purchase of the current facility. not limited to, professional fees, minor (d) The grantee must separately de- renovation costs, moving expenses, ad- lineate the following expenses in the ditional transportation costs, mainte- application: nance, taxes, insurance, and ease- (1) One-time costs, including, but not ments, rights of way or land rentals. limited to, the down payment, profes- An independent appraisal of the cur- sional fees, moving expenses, the cost rent value of the facility proposed to be of site preparation and installation of a purchased or previously purchased, made by a professional appraiser, must modular unit, and the costs of nec- be included. essary minor renovations; and (c) The comparison described in para- (2) Ongoing costs, including, but not graph (a) of this section must compare limited to, mortgage payments, insur- the cost of the proposed facility to the ance premiums, maintenance costs, cost of the facility currently used by and property taxes. If the grantee is ex- the grantee, unless the grantee has no empt from the payment of property current facility, will lose the use of its taxes, this fact must be stated. current facility, intends to continue to (e) The period of comparison is twen- use its current facility after it pur- ty years, except that for the purchase chases the new facility, or has shown of a modular unit the period of com- to the satisfaction of the responsible parison is ten years. For a proposed HHS official that its existing facility is purchase the period of comparison be- inadequate. Where the grantee’s cur- gins on the date on which the proposal rent facility is not used as the alter- is made. For approvals of previous pur- nate facility, the grantee must use for chases, the period of comparison begins comparison a facility (or facilities) on the date the purchase of the facility available for lease in the grantee’s took place. service area and which are usable as a (f) If the facility is to be used for pur- Head Start facility (meaning a facility large enough to meet the foreseeable poses in addition to the operation of needs of the Head Start grantee, and the Head Start program, the cost of use which complies with local licensing of that part of the facility used for and code requirements and the access such other purposes must be allocated requirements of the Americans With in accordance with applicable Office of Disabilities Act, if applicable, and sec- Management and Budget cost prin- tion 504 of the Rehabilitation Act of ciples.
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§ 1309.12 Timely decisions. (3) That the property may not be used for any purpose inconsistent with The responsible HHS official shall that authorized by the Head Start Act promptly review and make final deci- and applicable regulations; sions regarding completed applications (4) That the property may not be under this part. mortgaged or used as collateral, sold or otherwise transferred to another party, Subpart C—Protection of Federal without the written permission of the Interest responsible HHS official; (5) That these grant conditions and § 1309.20 Title. requirements cannot be altered or nul- Title to facilities acquired with grant lified through a transfer of ownership; funds vests with the grantee upon ac- and quisition, subject to the provisions of (6) The name (including signature) this part. and title of the person who completed the Notice for the grantee agency, and § 1309.21 Recording of Federal interest the date of the Notice. and other protection of Federal in- (e) Grantees must meet all of the re- terest. quirements in 45 CFR parts 74 or 92 per- (a) The Federal Government has an taining to the purchase and disposition interest in all real property and equip- of real property, or the use and dis- ment purchased with grant funds for posal of equipment, as appropriate. use as a Head Start facility. The re- (f) In subordinating its interest in a facility purchased with grant funds, sponsible HHS official may agree to the responsible HHS official does not subordinate the Federal interest in waive application of paragraph (d) of such property to that of a lender which this section and § 1309.22. A written finances the purchase of the property agreement by the responsible HHS offi- subject to the conditions set forth in cial to subordinate the Federal interest paragraph (f) of this section. must provide: (b) Facilities acquired with grant (1)(i) The lender shall notify the Of- funds may not be mortgaged or used as fice of the Regional Administrator, Ad- collateral, or sold or otherwise trans- ministration for Children and Fami- ferred to another party, without the lies, the Office of the Commissioner, written permission of the responsible Administration on Children, Youth and HHS official. Families, Washington, D.C., and the Of- (c) Use of the facility for other than fice of the General Counsel, Depart- the purpose for which the facility was ment of Health and Human Services, funded, without the express written ap- Washington, DC, or their successor proval of the responsible HHS official, agencies, immediately, both tele- is prohibited. phonically and in writing of any de- (d) Immediately upon purchasing a fault by the Head Start grantee; facility with grant funds, or receiving (ii) Written notice of default must be permission to use funds for a pre- sent by registered mail return receipt viously purchased facility, the grantee requested; and, shall record a Notice of Federal Inter- (iii) The lender will not foreclose on est in the appropriate official records the property until at least 60 days after for the jurisdiction in which the facil- the required notice by the lender has ity is located. The Notice shall include been sent. the following information: (2) Such notice will include: (1) The date of the award of grant (i) The full names, addresses, and funds for the purchase of the property telephone numbers of the lender and to be used as a Head Start facility, and the Head Start grantee; the address and legal description of the (ii) The following statement promi- property to be purchased; nently displayed at the top of the first (2) That the grant incorporated con- page of the notice: ‘‘The Federal Inter- ditions which include restriction on est in certain real property or equip- the use of the property and provide for ment used for the Head Start Program a Federal interest in the property; may be at risk. Immediately give this
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notice to the appropriate government mortgages must be included in the official’’; mortgages of previously purchased fa- (iii) The date and nature of the de- cilities unless a convincing justifica- fault and the manner in which the de- tion for not doing so is shown by the fault may be cured; and Head Start grantee. (iv) In the event that the lender will (b) The grantee must immediately be exercising its remedy of foreclosure provide the responsible HHS official or other remedies, the date or expected with both telephonic and written noti- date of the foreclosure or other rem- fication of a default of any description edies. on the part of the grantee under a real (3) Head Start grantees which pur- property or chattel mortgage. chase facilities with respect to which (c) In the event that a default is not the responsible HHS official has subor- cured and foreclosure takes place, the dinated the Federal Interest to that of mortgagee or creditor shall pay ACF the lender must keep the lender in- that percentage of the proceeds from formed of the current addresses and the foreclosure sale of the property at- telephone numbers of the agencies to tributable to the Federal share as de- which the lender is obligated under fined in 45 CFR 74.2, or, if part 92 is ap- paragraph (b) of this section to give no- plicable, to ACF’s share as defined in 45 tice in the event of a default. CFR 92.3. If ACF and the mortgagee or creditor have agreed that ACF’s Fed- § 1309.22 Rights and responsibilities in eral interest will be subordinated to the event of grantee’s default on mortgage, or withdrawal or termi- the mortgagee’s or creditor’s interest nation. in the property, that agreement must be set forth in a written subordination (a) The mortgage agreement, or secu- agreement that is signed by the respon- rity agreement in the case of a mod- sible HHS official and that complies ular unit which is proposed to be pur- with § 1309.21 and any other applicable chased under a chattel mortgage, shall Federal law. provide in the case of default by the grantee or the withdrawal or termi- § 1309.23 Insurance, bonding and nation of the grantee from the Head maintenance. Start program that ACF may inter- vene. In the case of a default, the mort- (a) At the time of acquiring a facility gage agreement or security agreement or receiving approval for the previous must provide that ACF may intervene purchase of a facility, the grantee shall to ensure that the default is cured by obtain insurance coverage for the facil- the grantee or another agency des- ity which is of the same type as the ignated by ACF and that the lender coverage it has obtained for other real shall accept the payment of money or property it owns, which includes stu- performance of any other obligation by dent liability insurance and which at ACF’s designee, for the grantee, as if least meets the requirements of the such payment of money or performance coverage specified in paragraphs (a)(1) had been made by the grantee. The and (2) of this section as follows: agreement shall also provide that ACF (1) A title insurance policy which in- will have a period of 60 days after noti- sures the fee interest in the facility for fication by the grantee of default in an amount not less than the full ap- which to intervene to attempt to cure praised value as approved by ACF, or the default. The agreement shall fur- the amount of the purchase price, ther provide that in the event of a de- whichever is greater, and which con- fault, or the withdrawal or termination tains an endorsement identifying ACF of the grantee the mortgage may be as- as a loss payee to be reimbursed if the sumed by an organization designated title fails. If no endorsement naming by ACF. The mortgagee or creditor will ACF as loss payee is made, the grantee have the right to approve the organiza- is required to pay ACF the title insur- tion designated to assume the mort- ance proceeds it receives in the event gage, but such approval will not be of title failure; and withheld except for good reason. The (2) A physical destruction insurance provisions required for inclusion in policy, including flood insurance where
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appropriate, which insures the full re- land on which to install the modular placement value of the facility from unit or if the previously purchased risk of partial and total physical de- modular unit is located on land not struction. The insurance policy is to be owned by the grantee, the application maintained for the period of time the must state who owns the land on which facility is owned by the grantee. the modular unit is or will be situated (b) The grantee shall submit copies of and describe the easement, right-of- such insurance policies to ACF within way or land rental it will obtain or has five days of acquiring the facility or re- obtained to allow it sufficient access to ceiving approval for the previous pur- the modular unit. chase of a facility. If the grantee has (b) Modular units which are pur- not received the policies in time to chased with grant funds and which are submit copies within this period, it not permanently affixed to land, or shall submit evidence that it has ob- which are affixed to land which is not tained the appropriate insurance poli- owned by the grantee, must have post- cies within five days of acquiring the ed in a conspicuous place the following facility or receiving approval for the notice: ‘‘On (date), the Department of previous purchase of a facility, and it Health and Human Services (DHHS) shall submit copies of the policies awarded (grant number) to (Name of within five days of its receipt of them. grantee). The grant provided Federal (c) The grantee must maintain facili- funds for conduct of a Head Start pro- ties acquired with grant funds in a gram, including purchase of this mod- manner consistent with the purposes ular unit. The grant incorporated con- for which the funds were provided and ditions which included restrictions on in compliance with State and local the use and disposition of this prop- government property standards and erty, and provided for a continuing building codes. Federal interest in the property. Spe- cifically, the property may not be used Subpart D—Modular Units for any purpose other than the purpose for which the facility was funded, with- § 1309.30 General. out the express written approval of the In addition to the special require- responsible DHHS official, or sold or ments of §§ 1309.31-1309.34 of this part, transferred to another party without the proposed purchase or request for the written permission of the respon- approval of a previous purchase of a sible DHHS official. These conditions modular unit is subject to all of the re- are in accordance with the statutory quirements of this part with the fol- provisions set forth in 42 U.S.C. 9839; lowing exceptions: the regulatory provisions set forth in (a) Section 1309.10(j) of this part, 45 CFR part 1309, 45 CFR part 74 and 45 which requires a certification by a li- CFR part 92; and Administration for censed engineer or architect of the Children and Families’ grants policy.’’ structural soundness of a facility prior (c) A modular unit which has been to approval of an application for grant approved for purchase and installation funds, is replaced by § 1309.33; and in one location may not be moved to (b) Section 1309.21(d) of this part does another location without the written not apply to the proposed purchase of permission of the responsible HHS offi- modular units if the land on which the cial. unit is installed is not owned by the grantee. § 1309.32 Statement of procurement procedure for modular units. § 1309.31 Site description. (a) An application for the purchase of (a) An application for the purchase or a modular unit must include a state- approval of a previous purchase of a ment describing the procedures which modular unit must state specifically will be used by the grantee to purchase where the modular unit will be in- the modular unit. stalled, and whether the land on which (b) This statement must include a the modular unit will be installed will copy of the specifications for the unit be purchased by the grantee. If the which is proposed to be purchased and grantee does not propose to purchase assurance that the grantee will comply
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with procurement procedures in 45 CFR of the grantee’s ownership of the facil- parts 74 and 92, including assurance ity plus three years. that all transactions will be conducted EFFECTIVE DATE NOTE: At 64 FR 5949, Feb. in a manner to provide, to the max- 8, 1999, § 1309.41 was added. This section con- imum extent practical, open and free tains information collection requirements competition. A grantee requesting ap- and will not be effective until approval has proval of a previous purchase of a mod- been given by the Office of Management and ular unit also must include a copy of Budget. the specifications for its unit. § 1309.42 Audit of mortgage. § 1309.33 Inspection. Any audit of a grantee which has pur- A grantee which purchases a modular chased a facility with grant funds shall unit with grant funds or receives ap- include an audit of any mortgage or en- proval of a previous purchase must cumbrance on the facility. Reasonable have the modular unit inspected by a and necessary fees for this audit are licensed engineer or architect within 15 payable with grant funds. calendar days of its installation or ap- proval of a previous purchase, and § 1309.43 Use of grant funds to pay must submit to the responsible HHS of- fees. ficial the engineer’s or architect’s in- Consistent with the cost principles spection report within 30 calendar days referred to in 45 CFR part 74 and 45 of the inspection. CFR part 92, reasonable fees and costs associated with and necessary to the § 1309.34 Costs of installation of mod- purchase of a facility (including rea- ular unit. sonable and necessary fees and costs Consistent with the cost principles incurred prior to the submission of an referred to in 45 CFR part 74 and 45 application under § 1309.10 of this part CFR part 92, all reasonable costs nec- or prior to the purchase of the facility) essary to the installation of a modular are payable with grant funds, but re- unit the purchase of which has been ap- quire prior, written approval of the re- proved by the responsible HHS official sponsible HHS official. are payable with grant funds. Such costs include, but are not limited to, § 1309.44 Independent analysis. payments for public utility hook-ups, (a) The responsible HHS official may site surveys and soil investigations. direct the grantee applying for funds to purchase a facility to obtain an inde- Subpart E—Other Administrative pendent analysis of the cost compari- Provisions son submitted by the grantee pursuant to § 1309.11 of this part, or the state- § 1309.40 Copies of documents. ment under § 1309.10(g) of this part, or Certified copies of the deed, loan in- both, if, in the judgment of the official, strument, mortgage, and any other such an analysis is necessary to ade- legal documents related to the pur- quately review a proposal submitted chase of the facility or to the discharge under this part. of any debt secured by the facility (b) The analysis shall be in writing must be submitted to the responsible and shall be made by a qualified, disin- HHS official within ten days of their terested real estate professional in the execution. community in which the property pro- posed to be purchased is situated. EFFECTIVE DATE NOTE: At 64 FR 5949, Feb. 8, 1999, § 1309.40 was added. This section con- (c) Section 1309.43 of this part applies tains information collection requirements to payment of the cost of the analysis. and will not become effective until approval has been given by the Office of Management PART 1311—HEAD START FELLOWS and Budget. PROGRAM § 1309.41 Record retention. Sec. All records pertinent to the purchase 1311.1 Head Start Fellows Program purpose. of a facility must be retained by the 1311.2 Definitions. grantee for a period equal to the period 1311.3 Application process.
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1311.4 Qualifications, selection, and place- application in a local Head Start pro- ment. gram or otherwise working in the field 1311.5 Duration of Fellowships and status of of child development and family serv- Head Start Fellows. ices. The qualifications of the appli- AUTHORITY: 42 U.S.C. 9801 et seq. cants for Head Start Fellowship posi- SOURCE: 62 FR 1400, Jan. 10, 1997, unless tions will be competitively reviewed. otherwise noted. The Associate Commissioner will make the final selection of the Head Start § 1311.1 Head Start Fellows Program Fellows. Purpose. (b) Head Start Fellows may be placed (a) This part establishes regulations in: implementing section 648A(d) of the (1) The Head Start national and re- Head Start Act, as amended, 42 U.S.C. gional offices; 9801 et seq., applicable to the adminis- tration of the Head Start Fellows Pro- (2) Local Head Start agencies and gram, including selection, placement, programs; duration and status of the Head Start (3) Institutions of higher education; Fellows. (4) Public or private entities and or- (b) As provided in section 648A(d) of ganizations concerned with services to the Act, the Head Start Fellows Pro- children and families; and gram is designed to enhance the ability (5) Other appropriate settings. of Head Start Fellows to make signifi- (c) A Head Start Fellow who is not an cant contributions to Head Start and employee of a local Head Start agency to other child development and family or program may only be placed in the services programs. national or regional offices within the § 1311.2 Definitions. Department of Health and Human Services that administer Head Start or As used in this part: local Head Start agencies. Act means the Head Start Act, as (d) Head Start Fellows shall not be amended, 42 U.S.C. 9801 et seq. Associate Commissioner means the As- placed in any agency whose primary sociate Commissioner of the Head purpose, or one of whose major pur- Start Bureau in the Administration on poses is to influence Federal, State or Children, Youth and Families. local legislation. Head Start Fellows means individuals who participate in the Head Start Fel- § 1311.5 Duration of Fellowships and lows Program, who may be staff in status of Head Start Fellows. local Head Start programs or other in- (a) Head Start Fellowships will be for dividuals working in the field of child terms of one year, and may be renewed development and family services. for a term of one additional year. (b) For the purposes of compensation § 1311.3 Application process. for injuries under chapter 81 of title 5, An individual who wishes to obtain a United States Code, Head Start Fel- Fellowship must submit an application lows shall be considered to be employ- to the Associate Commissioner. The ees, or otherwise in the service or em- Administration for Children and Fami- ployment, of the Federal Government. lies will publish an annual announce- (c) Head Start Fellows assigned to ment of the availability and number of the national or regional offices within Fellowships in the FEDERAL REGISTER. the Department of Health and Human Federal employees are not eligible to Services shall be considered employees apply. (The information collection re- quirement contained in this section is in the Executive Branch of the Federal approved under OMB Control Number Government for the purposes of chap- 0970–0140.) ter 11 of title 18, United States Code, and for the purposes of any administra- § 1311.4 Qualifications, selection, and tive standards of conduct applicable to placement. the employees of the agency to which (a) The Act specifies that an appli- they are assigned. cant must be working on the date of
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PART 1321—GRANTS TO STATE AND Subpart D—Service Requirements COMMUNITY PROGRAMS ON 1321.63 Purpose of services allotments under AGING Title III. 1321.65 Responsibilities of service providers Subpart A—Introduction under area plans. 1321.67 Service contributions. Sec. 1321.69 Service priority for frail, homebound 1321.1 Basis and purpose of this part. or isolated elderly. 1321.3 Definitions. 1321.71 Legal assistance. 1321.5 Applicability of other regulations. 1321.73 Grant related income under Title III-C. Subpart B—State Agency Responsibilities 1321.75 Licenses and safety. 1321.7 Mission of the State agency. Subpart E—Hearing Procedures for State 1321.9 Organization and staffing of the State Agencies agency. 1321.11 State agency policies. 1321.77 Scope. 1321.13 Advocacy responsibilities. 1321.79 When a decision is effective. 1321.15 Duration, format and effective date 1321.81 How the State may appeal. of the State plan. 1321.83 How the Commissioner may reallot 1321.17 Content of State plan. the State’s withheld payments. 1321.19 Amendments to the State plan. AUTHORITY: 42 U.S.C. 3001 et seq.; title III 1321.21 Submission of the State plan or plan of the Older Americans Act, as amended. amendment to the Commissioner for ap- proval. SOURCE: 53 FR 33766, Aug. 31, 1988, unless 1321.23 Notification of State plan or State otherwise noted. plan amendment approval. 1321.25 Restriction of delegation of author- Subpart A—Introduction ity to other agencies. 1321.27 Public participation. §1321.1 Basis and purpose of this part. 1321.29 Designation of planning and service areas. (a) This part prescribes requirements 1321.31 Appeal to Commissioner. State agencies shall meet to receive 1321.33 Designation of area agencies. grants to develop comprehensive and 1321.35 Withdrawal of area agency designa- coordinated systems for the delivery of tion. supportive and nutrition services under 1321.37 Intrastate funding formula. title III of the Older Americans Act, as 1321.41 Single State planning and service amended (Act). These requirements in- area. 1321.43 Interstate planning and service area. clude: 1321.45 Transfer between congregate and (1) Designation and responsibilities of home-delivered nutrition service allot- State agencies; ments. (2) State plans and amendments; 1321.47 Statewide non-Federal share re- (3) Services delivery; and quirements. (4) Hearing procedures for applicants 1321.49 State agency maintenance of effort. for planning and services area designa- 1321.51 Confidentiality and disclosure of in- tion. formation. 1321.52 Evaluation of unmet need. (b) The requirements of this part are based on title III of the Act. Title III Subpart C—Area Agency Responsibilities provides for formula grants to State agencies on aging, under approved 1321.53 Mission of the area agency. State plans, to stimulate the develop- 1321.55 Organization and staffing of the area ment or enhancement of comprehen- agency. sive and coordinated community-based 1321.57 Area agency advisory council. 1321.59 Submission of an area plan and plan systems resulting in a continuum of amendments to the State for approval. services to older persons with special 1321.61 Advocacy responsibilities of the area emphasis on older individuals with the agency. greatest economic or social need, with
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particular attention to low-income mi- agency in a single planning and service nority individuals. A responsive com- area State. munity-based system of services shall Fiscal year, as used in this part, include collaboration in planning, re- means the Federal Fiscal Year. source allocation and delivery of a Frail, as used in this part, means hav- comprehensive array of services and ing a physical or mental disability, in- opportunities for all older Americans cluding having Alzheimer’s disease or a in the community. The intent is to use related disorder with neurological or title III funds as a catalyst in bringing organic brain dysfunction, that re- together public and private resources stricts the ability of an individual to in the community to assure the provi- perform normal daily tasks or which sion of a full range of efficient, well co- threatens the capacity of an individual ordinated and accessible services for to live independently. older persons. Human services, as used in (c) Each State agency designates § 1321.41(a)(1) of this part, with respect planning and service areas in the to criteria for designation of a state- State, and makes a subgrant or con- wide planning and service area, means tract under an approved area plan to social, health, or welfare services. one area agency in each planning and In-home service, as used in this part, service area for the purpose of building includes: (a) Homemaker and home comprehensive systems for older people health aides; (b) visiting and telephone throughout the State. Area agencies in reassurance; (c) chore maintenance; (d) turn make subgrants or contracts to in-home respite care for families, in- service providers to perform certain cluding adult day care as a respite specified functions. service for families; and (e) minor modification of homes that is nec- § 1321.3 Definitions. essary to facilitate the ability of older individuals to remain at home, and Act means the Older Americans Act that is not available under other pro- of 1965 as amended. grams, except that not more than $150 Altering or renovating, as used in sec- per client may be expended under this tion 307(a)(14) of the Act with respect part for such modification. to multipurpose senior centers, means Means test, as used in the provison of making modifications to or in connec- services, means the use of an older per- tion with an existing facility which are son’s income or resource to deny or necessary for its effective use as a cen- limit that person’s receipt of services ter. These may include renovation, re- under this part. pair, or expansion which is not in ex- Official duties, as used in section cess of double the square footage of the 307(a)(12)(J) of the Act with respect to original facility and all physical im- representatives of the Long-Term Care provements. Ombudsman Program, means work pur- Constructing, as used in section suant to the Long-Term Care Ombuds- 307(a)(14) of the Act with respect to man Program authorized by the Act or multipurpose senior centers, means State law and carried out under the building a new facility, including the auspices and general direction of the costs of land acquisition and architec- State Long-Term Care Ombudsman. tural and engineering fees, or making Periodic, as used in sections 306(a)(6) modifications to or in connection with and 307(a)(8) of the Act with respect to an existing facility which are in excess evaluations of, and public hearings on, of double the square footage of the activities carried out under State and original facility and all physical im- area plans, means, at a minimum, once provements. each fiscal year. Department means the Department of Reservation, as used in section Health and Human Services. 305(b)(4) of the Act with respect to the Direct services, as used in this part, designation of planning and service means any activity performed to pro- areas, means any federally or State vide services directly to an individual recognized Indian tribe’s reservation, older person by the staff of a service pueblo, or colony, including former res- provider, an area agency, or a State ervations in Oklahoma, Alaskan Native
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regions established pursuant to the Cooperative Agreements to State and Alaska Native Claims Settlement Act Local Governments; (85 Stat. 688), and Indian allotments. (h) 45 CFR part 100—Intergovern- Service provider, as used in section mental Review of Department of 306(a)(1) of the Act with respect to the Health and Human Services Programs provison of supportive and nutrition and Activities; and services, means an entity that is (i) 5 CFR part 900, subpart F, Stand- awarded a subgrant or contract from ards for a Merit System of Personnel an area agency to provide services Administration. under the area plan. Severe disability, as used to carry out Subpart B—State Agency the provisions of the Act, means a se- vere chronic disability attributable to Responsibilities mental and/or physical impairment of § 1321.7 Mission of the State agency. an individual that: (a) Is likely to continue indefinitely; (a) The Older Americans Act intends and that the State agency on aging shall be (b) Results in substantial functional the leader relative to all aging issues limitation in 3 or more of the following on behalf of all older persons in the major life activities: State. This means that the State agen- (1) Self-care, cy shall proactively carry out a wide (2) Receptive and expressive lan- range of functions related to advocacy, guage, planning, coordination, interagency (3) Learning, linkages, information sharing, (4) Mobility, brokering, monitoring and evaluation, (5) Self-direction, designed to lead to the development or (6) Capacity for independent living, enhancement of comprehensive and co- and ordinated community based systems (7) Economic self-sufficiency. in, or serving, communities throughout the State. These systems shall be de- § 1321.5 Applicability of other regula- signed to assist older persons in lead- tions. ing independent, meaningful and dig- Several other regulations apply to all nified lives in their own homes and activities under this part. These in- communities as long as possible. clude but are not limited to: (b) The State agency shall designate (a) 45 CFR part 16—Procedures of the area agencies on aging for the purpose Departmental Grant Appeals Board; of carrying out the mission described (b) 45 CFR part 74—Administration of above for the State agency at the sub- Grants, except subpart N; State level. The State agency shall des- (c) 45 CFR part 80—Nondiscrimina- ignate as its area agencies on aging tion under Programs Receiving Federal only those sub-state agencies having Assistance through the Department of the capacity and making the commit- Health and Human Services: Effec- ment to fully carry out the mission de- tuation of title VI of the Civil Rights scribed for area agencies in § 1321.53 Act of 1964; below. (d) 45 CFR part 81—Practice and Pro- (c) The State agency shall assure cedures for Hearings Under Part 80 of that the resources made available to this title; area agencies on aging under the Older (e) 45 CFR part 84—Nondiscrimina- Americans Act are used to carry out tion on the Basis of Handicap in Pro- the mission described for area agencies grams and Activities Receiving or Ben- in § 1321.53 below. efiting from Federal Financial Partici- pation; § 1321.9 Organization and staffing of (f) 45 CFR part 91—Nondiscrimina- the State agency. tion on the Basis of Age in HHS Pro- (a) The State shall designate a sole grams or Activities Receiving Federal State agency to develop and administer Financial Assistance; the State plan required under this part (g) 45 CFR part 92—Uniform Adminis- and serve as the effective visible advo- trative Requirements for Grants and cate for the elderly within the State.
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(b) The State agency shall have an (1) Review, monitor, evaluate and adequate number of qualified staff to comment on Federal, State and local carry out the functions prescribed in plans, budgets, regulations, programs, this part. laws, levies, hearings, policies, and ac- (c) The State agency shall have with- tions which affect or may affect older in the State agency, or shall contract individuals and recommend any or otherwise arrange with another changes in these which the State agen- agency or organization, as permitted cy considers to be appropriate; by section 307(a)(12)(A), an Office of the (2) Provide technical assistance to State Long-Term Care Ombudsman, agencies, organizations, associations, with a full-time State ombudsman and or individuals representing older per- such other staff as are appropriate. sons; and (d) If a State statute establishes a (3) Review and comment, upon re- State ombudsman program which will quest, on applications to State and perform the functions of section Federal agencies for assistance relat- 307(a)(12) of the Act, the State agency ing to meeting the needs of older per- continues to be responsible to assure sons. that all of the requirements of the Act (b) No requirement in this section for this program are met regardless of shall be deemed to supersede a prohibi- the State legislation or source of funds. tion contained in a Federal appropria- In such cases, the Governor shall con- tion on the use of Federal funds to firm this through an assurance in the lobby the Congress. State plan. § 1321.15 Duration, format and effec- tive date of the State plan. 1321.11 State agency policies. (a) A State may use its own judg- (a) The State agency on aging shall ment as to the format to use for the develop policies governing all aspects plan, how to collect information for of programs operated under this part, the plan, and whether the plan will re- including the ombudsman program main in effect for two, three or four whether operated directly by the State years. agency or under contract. These poli- (b) An approved State plan or amend- cies shall be developed in consultation ment, as indentified in § 1321.17, be- with other appropriate parties in the comes effective on the date designated State. The State agency is responsible by the Commissioner. for enforcement of these policies. (c) A State agency may not make ex- (b) The policies developed by the penditures under a new plan or amend- State agency shall address the manner ment requiring approval, as identified in which the State agency will monitor in § 1321.17 and § 1321.19, until it is ap- the performance of all programs and proved. activities initiated under this part for quality and effectiveness. In moni- § 1321.17 Content of State plan. toring the ombudsman program, access To receive a grant under this part, a to files, minus the identity of any com- State shall have an approved State plainant or resident of a long-term care plan as prescribed in section 307 of the facility, shall be available only to the Act. In addition to meeting the re- director of the State agency on aging quirements of section 307, a State plan and one other senior manager of the shall include: State agency designated by the State (a) Identification by the State of the director for this purpose. In the con- sole State agency that has been des- duct of the monitoring of the ombuds- ignated to develop and administer the man program, the confidentiality pro- plan. tections concerning any complainant (b) Statewide program objectives to or resident of a long term care facility implement the requirements under as prescribed in section 307(a)(12) of the Title III of the Act and any objectives Act shall be strictly adhered to. established by the Commissioner through the rulemaking process. § 1321.13 Advocacy responsibilities. (c) A resource allocation plan indi- (a) The State agency shall: cating the proposed use of all title III
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funds administered by a State agency, grams, both public and private, and in- and the distribution of title III funds to forms them of the availability of as- each planning and service area. sistance. The outreach efforts shall (d) Identification of the geographic place special emphasis on reaching boundaries of each planning and serv- older individuals with the greatest eco- ice area and of area agencies on aging nomic or social needs with particular designated for each planning and serv- attention to low income minority indi- ice area, if appropriate. viduals, including outreach to identify (e) Provision of prior Federal fiscal older Indians in the planning and serv- year information related to low income ice area and inform such older Indians minority and rural older individuals as of the availability of assistance under required by sections 307(a) (23) and (29) the Act. of the Act. (9) The State agency shall have and (f) Each of the assurances and provi- employ appropriate procedures for data sions required in sections 305 and 307 of collection from area agencies on aging the Act, and provisions that the State to permit the State to compile and meets each of the requirements under transmit to the Commissioner accurate §§ 1321.5 through 1321.75 of this part, and and timely statewide data requested by the following assurances as prescribed the Commissioner in such form as the by the Commissioner: Commissioner directs; and (1) Each area agency engages only in (10) If the State agency proposes to activities which are consistent with its use funds received under section 303(f) statutory mission as prescribed in the of the Act for services other than those Act and as specified in State policies for preventive health specified in sec- under § 1321.11; tion 361, the State plan shall dem- (2) Preference is given to older per- onstrate the unmet need for the serv- sons in greatest social or economic ices and explain how the services are need in the provision of services under appropriate to improve the quality of the plan; life of older individuals, particularly (3) Procedures exist to ensure that all those with the greatest economic or so- services under this part are provided cial need, with special attention to without use of any means tests; low-income minorities. (4) All services provided under title (11) Area agencies shall compile III meet any existing State and local available information, with necessary licensing, health and safety require- supplementation, on courses of post- ments for the provision of those serv- secondary education offered to older ices; individuals with little or no tuition. (5) Older persons are provided oppor- The assurance shall include a commit- tunities to voluntarily contribute to ment by the area agencies to make a the cost of services; summary of the information available (6) Area plans shall specify as sub- to older individuals at multipurpose mitted, or be amended annually to in- senior centers, congregate nutrition clude, details of the amount of funds sites, and in other appropriate places. expended for each priority service dur- (12) Individuals with disabilities who ing the past fiscal year; reside in a non-institutional household (7) The State agency on aging shall with and accompany a person eligible develop policies governing all aspects for congregate meals under this part of programs operated under this part, shall be provided a meal on the same including the manner in which the om- basis that meals are provided to volun- budsman program operates at the teers pursuant to section 307(a)(13)(I) of State level and the relation of the om- the Act. budsman program to area agencies (13) The services provided under this where area agencies have been des- part will be coordinated, where appro- ignated; priate, with the services provided (8) The State agency will require area under title VI of the Act. agencies on aging to arrange for out- (14)(i) The State agency will not fund reach at the community level that program development and coordinated identifies individuals eligible for as- activities as a cost of supportive serv- sistance under this Act and other pro- ices for the administration of area
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plans until it has first spent 10 percent submitted to the Commissioner to be of the total of its combined allotments considered for approval at least 45 cal- under Title III on the administration of endar days before the proposed effec- area plans; tive date of the plan or plan amend- (ii) State and area agencies on aging ment. will, consistent with budgeting cycles (annually, biannually, or otherwise), § 1321.23 Notification of State plan or submit the details of proposals to pay State plan amendment approval. for program development and coordina- (a) The Commissioner approves a tion as a cost of supportive services, to State plan or State plan amendment by the general public for review and com- notifying the Governor or the Gov- ment; and ernor’s designee in writing. (iii) The State agency certifies that (b) When the Commissioner proposes any such expenditure by an area agen- to disapprove a State plan or amend- cy will have a direct and positive im- ment, the Commissioner notifies the pact on the enhancement of services Governor in writing, giving the reasons for older persons in the planning and for the proposed disapproval, and in- service area. forms the State agency that it has 60 (15) The State agency will assure days to request a hearing on the pro- that where there is a significant popu- lation of older Indians in any planning posed disapproval following the proce- and service area that the area agency dures specified in subpart E of this will provide for outreach as required by part. section 306(a)(6)(N) of the Act. § 1321.25 Restriction of delegation of § 1321.19 Amendments to the State authority to other agencies. plan. A State or area agency may not dele- (a) A State shall amend the State gate to another agency the authority plan whenever necessary to reflect: to award or administer funds under (1) New or revised Federal statutes or this part. regulations, (2) A material change in any law, or- § 1321.27 Public participation. ganization, policy or State agency op- The State agency shall have a mech- eration, or anism to obtain and shall consider the (3) Information required annually by views of older persons and the public in sections 307(a) (23) and (29) of the Act. developing and administering the State (b) Information required by para- plan. graph (a)(3) of this section shall be sub- mitted according to guidelines pre- § 1321.29 Designation of planning and scribed by the Commissioner. service areas. (c) If a State intends to amend provi- (a) Any unit of general purpose local sions of its plan required under government, region within a State rec- §§ 1321.17 (a) or (f), it shall submit its ognized for area wide planning, metro- proposed amendment to the Commis- politan area, or Indian reservation may sioner for approval. If the State make application to the State agency changes any of the provisions of its to be designated as a planning and plan required under § 1321.17 (b) through service area, in accordance with State (d), it shall amend the plan and notify agency procedures. the Commissioner. A State need only submit the amended portions of the (b) A State agency shall approve or plan. disapprove any application submitted under paragraph (a) of this section. § 1321.21 Submission of the State plan (c) Any applicant under paragraph (a) or plan amendment to the Commis- of this section whose application for sioner for approval. designation as a planning and service Each State plan, or plan amendment area is denied by a State agency may which requires approval of the Com- appeal the denial to the State agency, missioner, shall be signed by the Gov- under procedures specified by the State ernor or the Governor’s designee and agency.
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(d) If the State denies an applicant (2) Uphold the appeal and require a for designation as a planning and serv- State agency to designate the appli- ice area under paragraph (a) of this sec- cant as a planning and service area; or tion, the State shall provide a hearing (3) Take other appropriate action, in- on the denial of the application, if re- cluding negotiating between the par- quested by the applicant, as well as ties or remanding the appeal to the issue a written decision. State agency after initial findings. (f) The Commissioner will uphold the § 1321.31 Appeal to Commissioner. decision of the State agency if it fol- This section sets forth the procedures lowed the procedures specified in the Commissioner follows for providing § 1321.29, and the hearing decision is not hearings to applicants for designation manifestly inconsistent with the pur- as a planning and service area, under pose of this part. § 1321.29(a), whose application is denied (g) The Commissioner’s decision to by the State agency. uphold the decision of a State agency (a) Any applicant for designation as a does not extend beyond the period of planning and service area under the approved State plan. § 1321.29(a) whose application is denied, § 1321.33 Designation of area agencies. and who has been provided a hearing and a written decision by the State An area agency may be any of the agency, may appeal the denial to the types of agencies under section 305(c) of Commissioner in writing within 30 days the Act. A State may not designate following receipt of a State’s hearing any regional or local office of the State decision. as an area agency. However, when a (b) The Commissioner, or the Com- new area agency on aging is des- missioner’s designee, holds a hearing, ignated, the State shall give right of and issues a written decision, within 60 first refusal to a unit of general pur- days following receipt of an applicant’s pose local government as required in written request to appeal the State section 305(b)(5)(B) of the Act. If the agency hearing decision to deny the ap- unit of general purpose local govern- plicant’s request under § 1321.29(a). ment chooses not to exercise this right, (c) When the Commissioner receives the State shall then give preference to an appeal, the Commissioner requests an established office on aging as re- the State Agency to submit: quired in section 305(c)(5) of the Act. (1) A copy of the applicant’s applica- § 1321.35 Withdrawal of area agency tion for designation as a planning and designation. service area; (a) In carrying out section 305 of the (2) A copy of the written decision of Act, the State agency shall withdraw the State; and the area agency designation whenever (3) Any other relevant information it, after reasonable notice and oppor- the Commissioner may require. tunity for a hearing, finds that: (d) The procedures for the appeal con- (1) An area agency does not meet the sist of: requirements of this part; (1) Prior written notice to the appli- (2) An area plan or plan amendment cant and the State agency of the date, is not approved; time and location of the hearing; (3) There is substantial failure in the (2) The required attendance of the provisions or administration of an ap- head of the State agency or designated proved area plan to comply with any representatives; provision of the Act or of this part or (3) An opportunity for the applicant policies and procedures established and to be represented by counsel or other published by the State agency on representative; and aging; or (4) An opportunity for the applicant (4) Activities of the area agency are to be heard in person and to present inconsistent with the statutory mis- documentary evidence. sion prescribed in the Act or in conflict (e) The Commissioner may: with the requirement of the Act that it (1) Deny the appeal and uphold the function only as an area agency on decision of a State agency; aging.
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(b) If a State agency withdraws an (1) Which are medically underserved; area agency’s designation under para- and graph (a) of this section it shall: (2) In which there are large numbers (1) Provide a plan for the continuity of individuals who have the greatest of area agency functions and services economic and social need for such serv- in the affected planning and service ices. area; and (c) The State agency shall submit its (2) Designate a new area agency in intrastate formula to the Commis- the planning and service area in a sioner for review and comment. The timely manner. intrastate formula shall be submitted (c) If necessary to ensure continuity separately from the State plan. of services in a planning and service area, the State agency may, for a pe- § 1321.41 Single State planning and riod of up to 180 days after its final de- service area. cision to withdraw designation of an (a) The Commissioner will approve area agency: the application of a State which was, (1) Perform the responsibilities of the on or before October 1, 1980, a single area agency; or planning and service area, to continue (2) Assign the responsibilities of the as a single planning and service area if area agency to another agency in the planning and service area. the State agency demonstrates that: (d) The Commissioner may extend (1) The State is not already divided the 180-day period if a State agency: for purposes of planning and admin- (1) Notifies the Commissioner in istering human services; or writing of its action under paragraph (2) The State is so small or rural that (c) of this section; the purposes of this part would be im- (2) Requests an extension; and peded if the State were divided into (3) Demonstrates to the satisfaction planning and services areas; and of the Commissioner a need for the ex- (3) The State agency has the capacity tension. to carry out the responsibilities of an area agency, as specified in the Act. § 1321.37 Intrastate funding formula. (b) Prior to the Commissioner’s ap- (a) The State agency, after consulta- proval for a State to continue as a sin- tion with all area agencies in the gle planning and service area, all the State, shall develop and use an intra- requirements and procedures in § 1321.29 state funding formula for the alloca- shall be met. tion of funds to area agencies under (c) If the Commissioner approves a this part. The State agency shall pub- State’s application under paragraph (a) lish the formula for review and com- this section: ment by older persons, other appro- (1) The Commissioner notifies the priate agencies and organizations and State agency to develop a single State the general public. The formula shall planning and service area plan which reflect the proportion among the plan- meets the requirements of section 306 ning and service areas of persons age 60 and 307 of the Act. and over in greatest economic or social (2) A State agency shall meet all the need with particular attention to low- State and area agency function re- income minority individuals. The quirements specified in the Act. State agency shall review and update its formula as often as a new State (d) If the Commissioner denies the plan is submitted for approval. application because a State fails to (b) The intrastate funding formula meet the criteria or requirements set shall provide for a separate allocation forth in paragraphs (a) or (b) of this of funds received under section 303(f) section, the Commissioner notifies the for preventive health services. In the State that it shall follow procedures in award of such funds to selected plan- section 305(A)(1)(E) of the Act to divide ning and service areas, the State agen- the State into planning and service cy shall give priority to areas of the areas. State:
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§ 1321.43 Interstate planning and serv- lotment to the other a portion exceed- ice area. ing 30 percent of a State’s separate al- (a) Before requesting permission of lotments for congregate and home-de- the Commissioner to designate an livered nutrition services. A State interstate planning and service area, agency desiring such a transfer of al- the Governor of each State shall exe- lotment shall: cute a written agreement that specifies (1) Specify the percent which it pro- the State agency proposed to have lead poses to transfer from one allotment to responsibility for administering the the other; programs within the interstate plan- (2) Specify whether the proposed ning and service area and lists the con- transfer is for the entire period of a ditions, agreed upon by each State, State plan or a protion of a plan pe- governing the administration of the riod; and interstate planning and service area. (3) Specify the purpose of the pro- (b) The lead State shall request per- posed transfer. mission of the Commissioner to des- § 1321.47 Statewide non-Federal share ignate an interstate planning and serv- requirements. ice area. (c) The lead State shall submit the The statewide non-Federal share for request together with a copy of the State or area plan administration shall agreement as part of its State plan or not be less than 25 percent of the funds as an amendment to its State plan. usesd under this part. All services (d) Prior to the Commissioner’s ap- statewide, including ombudsman serv- proval for States to designate an inter- ices and services funded under Title state planning and service area, the III–B, C, D, E and F, shall be funded on Commissioner shall determine that all a statewide basis with a non-Federal applicable requirements and proce- share of not less than 15 percent. dures in § 1321.29 and § 1321.33 of this Matching requirements for individual part, shall be met. area agencies are determined by the (e) If the request is approved, the State agency. Commissioner, based on the agreement between the States, increases the allot- § 1321.49 State agency maintenance of effort. ment of the State with lead responsi- bility for administering the programs In order to avoid a penalty, each fis- within the interstate area and reduces cal year the State agency, to meet the the allotment(s) of the State(s) with- required non-federal share applicable out lead responsibility by one of these to its allotments under this part, shall methods: spend under the State plan for both (1) Reallotment of funds in propor- services and administration at least tion to the number of individuals age the average amount of State funds it 60 and over for that portion of the spent under the plan for the three pre- interstate planning and service area lo- vious fiscal years. If the State agency cated in the State without lead respon- spends less than this amount, the Com- sibility; or missioner reduces the State’s allot- (2) Reallotment of funds based on the ments for supportive and nutrition intrastate funding formula of the services under this part by a percent- State(s) without lead responsibility. age equal to the percentage by which the State reduced its expenditures. § 1321.45 Transfer between congregate and home-delivered nutrition serv- § 1321.51 Confidentiality and disclo- ice allotments. sure of information. (a) A State agency, without the ap- (a) A State agency shall have proce- proval of the Commissioner, may dures to protect the confidentiality of transfer between allotments up to 30 information about older persons col- percent of a State’s separate allot- lected in the conduct of its responsibil- ments for congregate and home-deliv- ities. The procedures shall ensure that ered nutrition services. no information about an order person, (b) A State agency may apply to the or obtained from an older person by a Commissioner to transfer from one al- service provider or the State or area
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agencies, is disclosed by the provider or persons in leading independent, mean- agency in a form that identifies the ingful and dignified lives in their own person without the informed consent of homes and communities as long as pos- the person or of his or her legal rep- sible. resentative, unless the disclosure is re- (b) A comprehensive and coordinated quired by court order, or for program community based system described in monitoring by authorized Federal, paragraph (a) of this section shall: State, or local monitoring agencies. (1) Have a visible focal point of con- (b) A State agency is not required to tact where anyone can go or call for disclose those types of information or help, information or referral on any documents that are exempt from dis- aging issue; closure by a Federal agency under the (2) Provide a range of options: Federal Freedom of Information Act, 5 (3) Assure that these options are U.S.C. 552. readily accessible to all older persons: (c) A State or area agency on aging The independent, semi-dependent and may not require a provider of legal as- totally dependent, no matter what sistance under this part to reveal any their income; information that is protected by attor- (4) Include a commitment of public, ney client privilege. private, voluntary and personal re- sources committed to supporting the § 1321.52 Evaluation of unmet need. system; Each State shall submit objectively (5) Involve collaborative decision- collected and statistically valid data making among public, private, vol- with evaluative conclusions concerning untary, religious and fraternal organi- the unmet need for supportive services, zations and older people in the commu- nutrition services, and multipurpose nity; senior centers gathered pursuant to (6) Offer special help or targetted re- section 307(a)(3)(A) of the Act to the sources for the most vulnerable older Commissioner. The evaluations for persons, those in danger of losing their each State shall consider all services in independence; these categories regardless of the (7) Provide effective referral from source of funding for the services. This agency to agency to assure that infor- information shall be submitted not mation or assistance is received, no later than June 30, 1989 and shall con- matter how or where contact is made form to guidance issued by the Com- in the community; missioner. (8) Evidence sufficient flexibility to respond with appropriate individual- Subpart C—Area Agency ized assistance, especially for the vul- Responsibilities nerable older person; (9) Have a unique character which is § 1321.53 Mission of the area agency. tailored to the specific nature of the (a) The Older Americans Act intends community; that the area agency on aging shall be (10) Be directed by leaders in the the leader relative to all aging issues community who have the respect, ca- on behalf of all older persons in the pacity and authority necessary to con- planning and service area. This means vene all interested persons, assess that the area agency shall proactively needs, design solutions, track overall carry out, under the leadership and di- success, stimulate change and plan rection of the State agency, a wide community responses for the present range of functions related to advocacy, and for the future. planning, coordination, inter-agency (c) The resources made available to linkages, information sharing, the area agency on aging under the brokering, monitoring and evaluation, Older Americans Act are to be used to designed to lead to the development or finance those activities necessary to enhancement of comprehensive and co- achieve elements of a community ordinated community based systems based system set forth in paragraph (b) in, or serving, each community in the of this section. For the purpose of as- planning and service area. These sys- suring access to information and serv- tems shall be designed to assist older ices for older persons, the area agency
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shall work with elected community of- (b) The area agency, once designated, ficials in the planning and service area is responsible for providing for ade- to designate one or more focal points quate and qualified staff to perform all on aging in each community, as appro- of the functions prescribed in this part. priate. The area agency shall list des- (c) The designated area agency con- ignated focal points in the area plan. It tinues to function in that capacity shall be the responsibility of the area until either: agency, with the approval of the State (1) The area agency informs the State agency, to define ‘‘community’’ for the agency that it no longer wishes to purposes of this section. Since the carry out the responsibilities of an Older Americans Act defines focal area agency; or point as a ‘‘facility’’ established to en- (2) The State agency withdraws the courage the maximum collocation and designation of the area agency as pro- coordination of services for older indi- vided in § 1321.35. viduals, special consideration shall be given to developing and/or designating § 1321.57 Area agency advisory coun- cil. multi-purpose senior centers as com- munity focal points on aging. The area (a) Functions of council. The area agency on aging shall assure that serv- agency shall establish an advisory ices financed under the Older Ameri- council. The council shall carry out ad- cans Act in, or on behalf of, the com- visory functions which further the area munity will be either based at, linked agency’s mission of developing and co- to or coordinated with the focal points ordinating community-based systems designated. The area agency on aging of services for all older persons in the shall assure access from the designated planning and service area. The council focal points to services financed under shall advise the agency relative to: the Older Americans Act. The area (1) Developing and administering the agency on aging shall work with, or area plan; work to assure that community leader- (2) Conducting public hearings; ship works with, other applicable agen- (3) Representing the interest of older cies and institutions in the community persons; and to achieve maximum collocation at, (4) Reviewing and commenting on all coordination with or access to other community policies, programs and ac- services and opportunities for the el- tions which affect older persons with derly from the designated community the intent of assuring maximum co- ordination and responsiveness to older focal points. The area agency may not persons. engage in any activity which is incon- (b) Composition of council. The council sistent with its statutory mission pre- shall include individuals and represent- scribed in the Act or policies pre- atives of community organizations who scribed by the State under § 1321.11. will help to enhance the leadership role § 1321.55 Organization and staffing of of the area agency in developing com- the area agency. munity-based systems of services. The advisory council shall be made up of: (a) An area agency may be either: (1) More than 50 percent older per- (1) An agency whose single purpose is sons, including minority individuals to administer programs for older per- who are participants or who are eligi- sons; or ble to participate in programs under (2) A separate organizational unit this part; within a multi-purpose agency which (2) Representatives of older persons; functions only for purposes of serving (3) Representatives of health care as the area agency on aging. Where the provider organizations, including pro- State agency on aging designates, as viders of veterans’ health care (if ap- an area agency on aging, a separate or- propriate); ganizational unit of a multipurpose (4) Representatives of supportive agency which has been serving as an services providers organizations; area agency, the State agency action (5) Persons with leadership experi- shall not be subject to section ence in the private and voluntary sec- 305(b)(5)(B) of the Act. tors;
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(6) Local elected officials; and ticular attention to low income minor- (7) The general public. ity individuals. Such activities may in- (c) Review by advisory council. The clude location of services and speciali- area agency shall submit the area plan zation in the types of services must and amendments for review and com- needed by these groups to meet this re- ment to the advisory council before it quirement. However, the area agency is transmitted to the State agency for may not permit a grantee or con- approval. tractor under this part to employ a means test for services funded under § 1321.59 Submission of an area plan this part. and plan amendments to the State (d) No requirement in this section for approval. shall be deemed to supersede a prohibi- The area agency shall submit the tion contained in the Federal appro- area plan and amendments to the State priation on the use of Federal funds to agency for approval following proce- lobby the Congress; or the lobbying dures specified by the State agency in provision applicable to private non- the State policies prescribed by profit agencies and organizations con- § 1321.11. tained in OMB Circular A–122. § 1321.61 Advocacy responsibilities of the area agency. Subpart D—Service Requirements (a) The area agency shall serve as the § 1321.63 Purpose of services allot- public advocate for the development or ments under Title III. enhancement of comprehensive and co- (a) Title III of the Older Americans ordinated community-based systems of Act authorizes the distribution of Fed- services in each community through- eral funds to the State agency on aging out the planning and service area. by formula for the following categories (b) In carrying out this responsi- of services: bility, the area agency shall: (1) Supportive services; (1) Monitor, evaluate, and, where ap- (2) Congregate meals services; propriate, comment on all policies, (3) Home delivered meals services; programs, hearings, levies, and commu- nity actions which affect older persons; (4) In-home services; (2) Solicit comments from the public (5) Ombudsman services; on the needs of older persons; (6) Special needs services; (3) Represent the interests of older (7) Elder abuse services; persons to local level and executive (8) Preventive health services; and branch officials, public and private (9) Outreach services. agencies or organizations; Funds authorized under these cat- (4) Consult with and support the egories are for the purpose of assisting State’s long-term care ombudsman pro- the State and its area agencies to de- gram; and velop or enhance for older persons com- (5) Undertake on a regular basis ac- prehensive and coordinated community tivities designed to facilitate the co- based systems as described in ordination of plans and activities with § 1321.53(b) throughout the State. all other public and private organiza- (b) Except for ombudsman services, tions, including units of general pur- State agencies on aging will award the pose local government, with respon- funds made available under paragraph sibilities affecting older persons in the (a) of this section to designated area planning and service area to promote agencies on aging according to the for- new or expanded benefits and opportu- mula determined by the State agency. nities for older persons; and Except where a waiver is granted by (c) Each area agency on aging shall the State agency, area agencies shall undertake a leadership role in assisting award these funds by grant or contract communities throughout the planning to community services provider agen- and service area to target resources cies and organizations. All funds from all appropriate sources to meet awarded to area agencies under this the needs of older persons with great- part are for the purpose of assisting est economic or social need, with par- area agencies to develop or enhance
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comprehensive and coordinated com- (1) Provide each older person with an munity based systems for older persons opportunity to voluntarily contribute in, or serving, communities throughout to the cost of the service; the planning and service area. (2) Protect the privacy of each older person with respect to his or her con- § 1321.65 Responsibilities of service tributions; and providers under area plans. (3) Establish appropriate procedures As a condition for receipt of funds to safeguard and account for all con- under this part, each area agency on tributions. aging shall assure that providers of (b) Each service provider shall use services shall: supportive services and nutrition serv- (a) Provide the area agency, in a ices contributions to expand supportive timely manner, with statistical and services and nutrition services respec- other information which the area agen- tively. To that end, the State agency cy requires in order to meet its plan- shall: ning, coordination, evaluation and re- (1) Permit service providers to follow porting requirements established by either the addition alternative or the the State under § 1321.13; cost sharing alternatives as stated in (b) Specify how the provider intends 45 CFR 92.25(g) (2) and (3); or to satisfy the service needs of low-in- (2) A combination of the two alter- come minority individuals in the area natives. served, including attempting to provide (c) Each service provider under the services to low-income minority indi- Older Americans Act may develop a viduals at least in proportion to the suggested contribution schedule for number of low-income minority older services provided under this part. In persons in the population serviced by developing a contribution schedule, the the provider; provider shall consider the income (c) Provide recipients with an oppor- ranges of older persons in the commu- tunity to contribute to the cost of the nity and the provider’s other sources of service as provided in § 1321.67; income. However, means tests may not (d) With the consent of the older per- be used for any service supported with son, or his or her representative, bring funds under this part. State agencies, to the attention of appropriate officials in developing State eligibility criteria for follow-up, conditions or cir- for in-home services under section 343 cumstances which place the older per- of the Act, may not include a means son, or the household of the older per- test as an eligibility criterion. son, in imminent danger; (d) A service provider that receives (e) Where feasible and appropriate, funds under this part may not deny any make arrangements for the avail- older person a service because the older ability of services to older persons in person will not or cannot contribute to weather related emergencies; the cost of the service. (f) Assist participants in taking ad- vantage of benefits under other pro- § 1321.69 Service priority for frail, grams; and homebound or isolated elderly. (g) Assure that all services funded (a) Persons age 60 or over who are under this part are coordinated with frail, homebound by reason of illness or other appropriate services in the com- incapacitating disability, or otherwise munity, and that these services do not isolated, shall be given priority in the constitute an unnecessary duplication delivery of services under this part. of services provided by other sources. (b) The spouse of the older person, re- gardless of age or condition, may re- § 1321.67 Service contributions. ceive a home-delivered meal if, accord- (a) For services rendered with fund- ing to criteria determined by the area ing under the Older Americans Act, the agency, receipt of the meal is in the area agency on aging shall assure that best interest of the homebound older each service provider shall: person.
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§ 1321.71 Legal assistance. ference with their professional respon- (a) The provisions and restrictions in sibilities under this Act. this section apply only to legal assist- (g) No provider shall use funds re- ance providers and only if they are pro- ceived under the Act to provide legal viding legal assistance under section assistance in a fee generating case un- 307(a)(15) of the Act. less other adequate representation is (b) Nothing in this section is in- unavailable or there is an emergency tended to prohibit any attorney from requiring immediate legal action. All providing any form of legal assistance providers shall establish procedures for to an eligible client, or to interfere the referral of fee generating cases. with the fulfillment of any attorney’s (1) ‘‘Fee generating case’’ means any professional responsibilities to a client. case or matter which, if undertaken on (c) The area agency shall award funds behalf of an eligible client by an attor- to the legal assistance provider(s) that ney in private practice, reasonably most fully meet the standards in this may be expected to result in a fee for subsection. The legal assistance pro- legal services from an award to a cli- vider(s) shall: ent, from public funds, or from the op- (1) Have staff with expertise in spe- posing party. cific areas of law affecting older per- (2) Other adequate representation is sons in economic or social need, for ex- deemed to be unavailable when: ample, public benefits, institutional- (i) Recovery of damages is not the ization and alternatives to institu- principal object of the client; or tionalization; (ii) A court appoints a provider or an (2) Demonstrate the capacity to pro- employee of a provider pursuant to a vide effective administrative and judi- statute or a court rule or practice of cial representation in the areas of law equal applicability to all attorneys in affecting older persons with economic the jurisdiction; or or social need; (iii) An eligible client is seeking ben- (3) Demonstrate the capacity to pro- efits under title II of the Social Secu- vide support to other advocacy efforts, rity Act, 42 U.S.C. 401, et seq., Federal for example, the long-term care om- Old Age, Survivors, and Disability In- budsman program; surance Benefits; or title XVI of the (4) Demonstrate the capacity to pro- Social Security Act, 42 U.S.C. 1381, et vide legal services to institutionalized, seq., Supplemental Security Income for isolated, and homebound older individ- Aged, Blind, and Disabled. uals effectively; and (3) A provider may seek and accept a (5) Demonstrate the capacity to pro- fee awarded or approved by a court or vide legal assistance in the principal administrative body, or included in a language spoken by clients in areas settlement. where a significant number of clients (4) When a case or matter accepted in do not speak English as their principal accordance with this section results in language. a recovery of damages, other than stat- (d) A legal assistance provider may utory benefits, a provider may accept not require an older person to disclose reimbursement for out-of-pocket costs information about income or resources and expenses incurred in connection as a condition for providing legal as- with the case or matter. sistance under this part. (h) A provider, employee of the pro- (e) A legal assistance provider may vider, or staff attorney shall not en- ask about the person’s financial cir- gage in the following prohibited polit- cumstances as a part of the process of ical activities: providing legal advice, counseling and (1) No provider or its employees shall representation, or for the purpose of contribute or make available Older identifying additional resources and Americans Act funds, personnel or benefits for which an older person may equipment to any political party or as- be eligible. sociation or to the campaign of any (f) A legal assistance provider and its candidate for public or party office; or attorneys may engage in other legal for use in advocating or opposing any activities to the extent that there is no ballot measure, initiative, or ref- conflict of interest nor other inter- erendum;
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(2) No provider or its employees shall sources provided under the Act, no pro- intentionally identify the title III pro- vider or its employees shall: gram or provider with any partisan or (1) Participate in any public dem- nonpartisan political activity, or with onstration, picketing, boycott, or the campaign of any candidate for pub- strike, except as permitted by law in lic or party office; connection with the employee’s own (3) While engaged in legal assistance employment situation; activities supported under the Act, no (2) Encourage, direct, or coerce oth- attorney shall engage in any political ers to engage in such activities; or activity; (3) At any time engage in or encour- (i) No funds made available under the Act shall be used for lobbying activi- age others to engage in: ties, including but not limited to any (i) Any illegal activity; or activities intended to influence any de- (ii) Any intentional identification of cision or activity by any nonjudicial programs funded under the Act or re- Federal, State or local individual or cipient with any political activity. body. Nothing in this section is in- (k) None of the funds made available tended to prohibit an employee from: under the Act may be used to pay dues (1) Communicating with a govern- exceeding $100 per recipient per annum mental agency for the purpose of ob- to any organization (other than a bar taining information, clarification, or association), a purpose or function of interpretation of the agency’s rules, which is to engage in activities prohib- regulations, practices, or policies; ited under these regulations unless (2) Informing a client about a new or such dues are not used to engage in ac- proposed statute, executive order, or tivities for which Older Americans Act administrative regulation; funds cannot be used directly. (3) Responding to an individual cli- ent’s request for advice only with re- § 1321.73 Grant related income under spect to the client’s own communica- Title III–C. tions to officials unless otherwise pro- States and sub-grantees must require hibited by the Older Americans Act, title III regulations or other applicable that their subgrantees’ grant related law. This provision does not authorize income be used in either the matching publication of lobbying materials or or cost sharing alternative in 45 CFR training of clients on lobbying tech- 92.25(g)(2) or the additive alternative in niques or the composition of a commu- § 92.25(g)(3) or a combination of the nication for the client’s use; or two. The deductive alternative de- (4) Making direct contact with the scribed in § 92.25(g)(1) is not permitted. area agency for any purpose; (5) Providing a client with adminis- § 1321.75 Licenses and safety. trative representation in adjudicatory The State shall ensure: or rulemaking proceedings or negotia- (a) That, in making awards for multi- tions, directly affecting that client’s purpose senior center activities, the legal rights in a particular case, claim area agency will ensure that the facil- or application; ity complies with all applicable State (6) Communicating with an elected and local health, fire, safety, building, official for the sole purpose of bringing zoning and sanitation laws, ordinances a client’s legal problem to the atten- or codes; and tion of that official; or (7) Responding to the request of a (b) The technical adequacy of any public official or body for testimony, proposed alteration or renovation of a legal advice or other statements on multipurpose senior center assisted legislation or other issues related to under this part, by requiring that any aging; provided that no such action alteration or renovation of a multipur- will be taken without first obtaining pose senior center that affects the load the written approval of the responsible bearing members of the facility is area agency. structurally sound and complies with (j) While carrying out legal assist- all applicable local or State ordi- ance activities and while using re- nances, laws, or building codes.
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Subpart E—Hearing Procedures for quirements of this part to the U.S. State Agencies Court of Appeals for the circuit in which the State is located. The State § 1321.77 Scope. shall file the appeal within 30 days of (a) Hearing procedures for State plan the Commissioner’s final decision. disapproval, as provided for in section § 1321.83 How the Commissioner may 307(c) and section 307(d) of the Act are reallot the State’s withheld pay- subject to the previsions of 45 CFR part ments. 213 with the following exceptions: The Commissioner disburses funds (1) Section 213.1(a); § 213.32(d); and withheld from the State directly to § 213.33 do not apply. any public or nonprofit private organi- (2) Reference to SRS Hearing Clerk shall be read to mean HHS Hearing zation or agency, or political subdivi- Clerk. sion of the State that has the author- (3) References to Administrator shall ity and capacity to carry out the func- be read to mean Commissioner on tions of the State agency and submits Aging. a State plan which meets the require- (b) Instead of the scope described in ments of this part and which contains § 213.1(a), this subpart governs the pro- an agreement to meet the non-federal cedures and opportunity for a hearing share requirements. on: (1) Disapproval of a State plan or PART 1326—GRANTS TO INDIAN amendment: TRIBES FOR SUPPORT AND NUTRI- (2) Determination that a State agen- TION SERVICES cy does not meet the requirements of this part: Sec. (3) Determination that there is a fail- 1326.1 Basis and purpose of this part. ure in the provisions or the administra- 1326.3 Definitions. tion of an approved plan to comply sub- 1326.5 Applicability of other regulations. stantially with Federal requirements, 1326.7 Confidentiality and disclosure of in- including failure to comply with any formation. 1326.9 Contributions. assurance required under the Act or 1326.11 Prohibition against supplantation. under this part. 1326.13 Supportive services. 1326.15 Nutrition services. § 1321.79 When a decision is effective. 1326.17 Access to information. (a) The Commissioner’s decision 1326.19 Application requirements. specifies the effective date for AoA’s 1326.21 Application approval. 1326.23 Hearing procedures. reduction and withholding of the State’s grant. This effective date may AUTHORITY: 42 U.S.C. 3001; Title VI, Part A not be earlier than the date of the of the Older Americans Act. Commissioner’s decision or later than SOURCE: 53 FR 33774, Aug. 31, 1988, unless the first day of the next calendar quar- otherwise noted. ter. (b) The decision remains in effect un- § 1326.1 Basis and purpose of this part. less reversed or stayed on judicial ap- This program was established to peal, or until the agency or the plan is meet the unique needs and cir- changed to meet all Federal require- cumstances of American Indian elders ments, except that the Commissioner on Indian reservations. This part im- may modify or set aside his or her deci- plements title VI (part A) of the Older sion before the record of the pro- Americans Act, as amended, by estab- ceedings under this subpart is filed in lishing the requirements that an In- court. dian tribal organization shall meet in order to receive a grant to promote the § 1321.81 How the State may appeal. delivery of services for older Indians A State may appeal the final decision that are comparable to services pro- of the Commissioner disapproving the vided under Title III. This part also State plan or plan amendment, finding prescribes application and hearing re- of noncompliance, or finding that a quirements and procedures for these State agency does not meet the re- grants.
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§ 1326.3 Definitions. programs and services provided by the Acquiring, as used in section 307(a)(14) United States to Indians because of of the Act, means obtaining ownership their status as Indians (25 U.S.C. 450b). of an existing facility in fee simple or Means test, as used in the provision of by lease for 10 years or more for use as services, means the use of an older In- a multipurpose senior center. dian’s income or resources to deny or Altering or renovating, as used in sec- limit that person’s receipt of services tion 307(a)(14) of the Act with respect under this part. to multipurpose senior centers, means Older Indians, means those individ- making modifications to or in connec- uals who have attained the minimum tion with an existing facility which are age determined by the tribe for serv- necessary for its effective use as a cen- ices. ter. These may include renovation, re- Project period, as used in § 1326.19 of pair, or expansion which is not in ex- this part, means the total time for cess of double the square footage of the which a project is approved for support, original facility and all physical im- including any extensions. provements. Service area, as used in § 1326.9(b) and Budgeting period, as used in § 1326.19 of this part, means the intervals of time elsewhere in this part, means that geo- into which a period of assistance graphic area approved by the Commis- (project period) is divided for budg- sioner in which the tribal organization etary and funding purposes. provides supportive and nutritional Constructing, as used in section services to older Indians residing there. 307(a)(14) of the Act with respect to A service area may include all or part multipurpose senior centers, means of the reservation or any portion of a building a new facility, including the county or counties which has a com- costs of land acquisition and architec- mon boundary with the reservation. A tural and engineering fees, or making service area may also include a non- modifications to or in connection with contiguous area if the designation of an existing facility which are in excess such an area will further the purpose of of double the square footage of the the Act and will provide for more effec- original facility and all physical im- tive administration of the program by provements. the tribal organization. Department, means the Department of Service provider, means any entity Health and Human Services. that is awarded a subgrant or contract Indian reservation, means the reserva- from a tribal organization to provide tion of any Federally recognized Indian services under this part. tribe, including any band, nation, pueb- Tribal organization, as used in § 1326.7 lo, or rancheria, any former reserva- and elsewhere in this part, means the tion in Oklahoma, any community on recognized governing body of any In- non-trust land under the jurisdiction of dian tribe, or any legally established an Indian tribe, including a band, na- organization of Indians which is con- tion, pueblo, or rancheria, with allot- trolled, sanctioned or chartered by ted lands, or lands subject to a restric- tion against alienation imposed by the such governing body or which is demo- United States, and Alaskan Native re- cratically elected by the adult mem- gions established, pursuant to the bers of the Indian community to be Alaska Native Claims Settlement Act served by such organization and which (84 Stat. 688). includes the maximum participation of Indian tribe, means any Indian tribe, Indians in all phases of its activities. band, nation, or organized group or Provided that in any case where a con- community, including any Alaska Na- tract is let or grant made to an organi- tive Village, regional or village cor- zation to perform services benefiting poration as defined in or established more than one Indian tribe, the ap- pursuant to the Alaska Native Claims proval of each Indian tribe shall be a Settlement Act (85 Stat. 688) which is prerequisite to the letting or making of recognized as eligible for the special the contract or grant (25 U.S.C. 450b).
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§ 1326.5 Applicability of other regula- (3) Establish appropriate procedures tions. to safeguard and account for all con- The following regulations in title 45 tributions; of the Code of Federal Regulations (4) Use all services contributions to apply to all activities under this part: expand comprehensive and coordinated (a) Part 16—Procedures of the De- services systems supported under this partmental Grant Appeals Board; part, while using nutrition services (b) Part 74—Administration of contributions only to expand services Grants; as provided under section (c) Part 75—Informal Grant Appeals 307(a)(13)(c)(ii) of the Act. Procedures; (b) Each tribal organization may de- (d) Part 80—Nondiscrimination Under velop a suggested contribution sched- Programs Receiving Federal Assist- ule for services provided under this ance through the Department of Health part. In developing a contribution and Human Services: Effectuation of title VI of the Civil Rights Act of 1964; schedule, the tribal organization shall (e) Part 81—Practice and Procedure consider the income ranges of older In- for Hearings under part 80 of this Title; dians in the service area and the tribal (f) Part 84—Nondiscrimination on the organization’s other sources of income. Basis of Handicap in Programs and Ac- However, means tests may not be used. tivities Receiving Benefits from Fed- (c) A tribal organization that re- eral Financial Participation; and ceives funds under this part may not (g) Part 91—Nondiscrimination on deny any older Indian a service because the Basis of Age in Programs or Activi- the older Indian will not or cannot con- ties Receiving Federal Financial As- tribute to the cost of the service. sistance from HHS. § 1326.11 Prohibition against supplan- § 1326.7 Confidentiality and disclosure tation. of information. A tribal organization shall ensure A tribal organization shall have con- that the activities provided under a fidentiality and disclosure procedures grant under this part will be in addi- as follows: tion to, and not in substitution for, (a) A tribal organization shall have comparable activities provided without procedures to ensure that no informa- tion about an older Indian or obtained Federal assistance. from an older Indian by any provider of § 1326.13 Supportive services. services is disclosed by the provider of such services in a form that identifies (a) A tribal organization may provide the person without the informed con- any of the supportive services men- sent of the person or of his or her legal tioned under title III of the Older representative, unless the disclosure is Americans Act, and any other sup- required by court order, or for program portive services that are necessary for monitoring by authorized Federal or the general welfare of older Indians. tribal monitoring agencies. (b) If an applicant elects to provide (b) A tribal organization is not re- multipurpose senior center activities quired to disclose those types of infor- or uses any of the funds under this part mation or documents that are exempt for acquiring, altering or renovating a from disclosure by a Federal agency multipurpose senior center facility, it under the Federal Freedom of Informa- shall comply with the following re- tion Act, 5 U.S.C. 552. quirements: § 1326.9 Contributions. (1) The tribal organization shall com- ply with all applicable local health, (a) Each tribal organization shall: (1) Provide each older Indian with a fire, safety, building, zoning and sani- free and voluntary opportunity to con- tation laws, ordinances or codes. tribute to the cost of the service; (2) The tribal organization shall as- (2) Protect the privacy of each older sure the technical adequacy of any pro- Indian with respect to his or her con- posed alteration or renovation of a tribution; multipurpose senior centers assisted
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under this part. The tribal organiza- (b) Maintain a list of services needed tion assures technical adequacy by re- or requested by the older Indians; and quiring that any alteration or renova- (c) Provide assistance to older Indi- tion of a multipurpose senior center ans to help them take advantage of that affects the load bearing members available services. of the facility is structurally sound and complies with all applicable local or § 1326.19 Application requirements. State ordinances, laws, or building A tribal organization shall have an codes. approved application. The application (c) If an applicant elects to provide shall be submitted as prescribed in sec- legal services, it shall substantially tion 604 of the Act and in accordance comply with the requirements in with the Commissioner’s instructions § 1321.71 and legal services providers for the specified project and budget pe- shall comply fully with the require- riods. The application shall provide for: ments in §§ 1321.71(c) through 1321.71(p). (a) Program objectives, as set forth in section 604(a)(5) of the Act, and any § 1326.15 Nutrition services. objectives established by the Commis- (a) In addition to providing nutrition sioner. services to older Indians, a tribal orga- (b) A description of the geographic nization may: boundaries of the service area proposed (1) Provide nutrition services to the by the tribal organization: spouses of older Indians; (c) Documentation of the ability of (2) Provide nutrition services to non- the tribal organization to deliver sup- elderly handicapped or disabled Indians portive and nutrition services to older who reside in housing facilities occu- Indians, or documentation that the pied primarily by the elderly, at which tribal organization has effectively ad- congregate nutrition services are pro- ministered supportive and nutrition vided; services within the last 3 years; (d) Assurances as prescribed by the (3) Offer a meal, on the same basis as Commissioner that: meals are provided to older Indians, to (1) A tribal organization represents individuals providing volunteer serv- at least 50 individuals who have at- ices during meal hours; and tained 60 years of age or older; (4) Provide a meal to individuals with (2) A tribal organization shall comply disabilities who reside in a non-institu- with all applicable State and local li- tional household with and accompany a cense and safety requirements for the person eligible for congregate meals provision of those services; under that part. (3) If a substantial number of the (b) Each tribal organization may re- older Indians residing in the service ceive cash payments in lieu of donated area are of limited English-speaking foods for all or any portion of its fund- ability, the tribal organization shall ing available under section 311(a)(4) of utilize the services of workers who are the Act. To receive cash or commod- fluent in the language spoken by a pre- ities, the tribal organization shall have dominant number of older Indians; an agreement with the U.S. Depart- (4) Procedures to ensure that all serv- ment of Agriculture’s Food and Nutri- ices under this part are provided with- tion Service (FNS) to be a distributing out use of any means tests; agency. (5) A tribal organization shall comply (c) Where applicable, the tribal orga- with all requirements set forth in nization shall work with agencies re- § 1326.7 through 1326.17; and sponsible for administering other pro- (6) The services provided under this grams to facilitate participation of part will be coordinated, where appli- older Indians. cable, with services provided under title III of the Act. § 1326.17 Access to information. (e) A tribal resolution(s) authorizing A tribal organization shall: the tribal organization to apply for a (a) Establish or have a list of all serv- grant under this part; and ices that are available to older Indians (f) Signature by the principal official in the service area, of the tribe.
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§ 1326.21 Application approval. (4) Have the staff directly responsible for reviewing the application either (a) Approval of any application under present at the hearing, or have a depo- section 604(e) of the Act, shall not com- sition from the staff, whichever the mit the Commissioner in any way to Commissioner or designated official de- make additional, supplemental, cides. continuaton, or other awards with re- spect to any approved application or (e) The Commissioner or designated portion thereof. official conducts a fair and impartial hearing, takes all necessary action to (b) The Commissioner may give first avoid delay and to maintain order and priority in awarding grants to grantees has all powers necessary to these ends. which have effectively administered such grants in the prior year. (f) Formal rules of evidence do not apply to the hearings. § 1326.23 Hearing procedures. (g) The official hearing transcript to- gether with all papers, documents, ex- In meeting the requirements of sec- hibits, and requests filed in the pro- tion 604(d)(3) of the Act, if the Commis- ceedings, including rulings, constitutes sioner disapproves an application from the record for decision. an eligible tribal organization, the tribal organization may file a written (h) After consideration of the record, request for a hearing with the Commis- the Commissoner or designated official sioner. issues a written decision, based on the record, which sets forth the reasons for (a) The request shall be postmarked the decision and the evidence on which or delivered in person within 30 days of it was based. The decision is issued the date of the disapproval notice. If it within 60 days of the date of the hear- requests a hearing, the tribal organiza- ing, constitutes the final administra- tion shall submit to the Commissioner, tive action on the matter and is as part of the request, a full written re- promptly mailed to the tribal organiza- sponse to each objection specified in tion. the notice of disapproval, including the pertinent facts and reasons in support (i) Either the tribal organization or of its response, and any and all docu- the staff of the Administration on mentation to support its position. Aging may request for good cause an Service of the request shall also be extension of any of the time limits made on the individual(s) designated specified in this section. by the Commissioner to represent him or her. PART 1328—GRANTS FOR SUP- (b) The Administration on Aging PORTIVE AND NUTRITIONAL shall have the opportunity to respond SERVICES TO OLDER HAWAIIAN with 30 days to the merits of the tribal NATIVES organization’s request. (c) The Commissioner notifies the Sec. tribal organization in writing of the 1328.1 Basis and purpose of this part. date, time and place for the hearing. 1328.3 Definitions. (d) The hearing procedures include 1328.5 Applicability of other regulations. the right of the tribal organization to: 1328.7 Confidentiality and disclosure of in- (1) A hearing before the Commis- formation. sioner or an official designated by the 1328.9 Contributions. Commissioner; 1328.11 Prohibition against supplantation. (2) Be heard in person or to be rep- 1328.13 Supportive services. resented by counsel, at no expense to 1328.15 Nutrition services. the Administration on Aging; 1328.17 Access to information. 1328.19 Application requirements. (3) Present written evidence prior to 1328.21 Application approval. and at the hearing, and present oral 1328.23 Hearing procedures. evidence at the hearing if the Commis- sioner or designated official decides AUTHORITY: 42 U.S.C. 3001; Title VI Part B that oral evidence is necessary for the of the Older Americans Act. proper resolution of the issues in- SOURCE: 53 FR 33777, Aug. 31, 1988, unless volved, and otherwise noted.
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§ 1328.1 Basis and purpose of this part. Grantee, as used in this part, means This program was established to an eligible organization that has re- meet the unique needs and cir- ceived funds to provide services to cumstances of Older Hawaiian Natives. older Hawaiians. This part implements title VI (part B) Hawaiian Native, as used in this part, of the Older Americans Act, as amend- means any individual any of whose an- ed, by establishing the requirements cestors were native of the area which that a public or nonprofit private orga- consists of the Hawaiian Islands prior nization shall meet in order to receive to 1778. a grant to promote the delivery of serv- Means test, as used in the provision of ices for older Hawaiian Natives that services, means the use of an older Ha- are comparable to services provided waiian Native’s income or resources to under title III. This part also pre- deny or limit that person receipt of scribes application and hearing re- services under this part. quirements and procedures for these Older Hawaiian, means any indi- agrants. vidual, age 60 or over, who is an Hawai- ian Native. § 1328.3 Definitions. Project period, as used in § 1328.19 of Acquiring, as used in section 307(a)(14) this part, means the total time for of the Act, means obtaining ownership which a project is approved for support, of an existing facility in fee simple or including any extensions. by lease of 10 years or more for use as Service area, as used in § 1328.9(b) and a multipurpose senior center. elsewhere in this part, means that geo- Act, means the Older Americans Act graphic area approved by the Commis- of 1965, as amended. sioner in which the grantee provides Altering or renovating, as used in sec- supportive and nutritional services to tion 307(a)(14) of the Act with respect older Hawaiian Natives residing there. to multipurpose senior centers, means making modifications to or in connec- § 1328.5 Applicability of other regula- tion with an existing facility which are tions. necessary for its effective use as a cen- The following regulations in title 45 ter. These may include renovation, re- of the Code of Federal Regulations pair, or expansion which is not in ex- apply to all activities under this part: cess of double the square footage of the (a) Part 16-Procedures of the Depart- original facility and all physical im- mental Grant Appeals Board; provements. (b) Part 74-Administration of Grants; Budgeting period, as used in § 1328.19 of this part, means the intervals of time (c) Part 75-Informal Grant Appeals into which a period of assistance Procedures; (project period) is divided for budg- (d) Part 80-Nondiscrimination Under etary and funding purposes. Programs Receiving Federal Assist- Constructing, as used in section ance through the Department of Health 307(a)(14) of the Act with respect to and Human Services: Effectuation of multipurpose senior centers, means title VI of the Civil Rights Act of 1964; building a new facility, including the (e) Part 81-Practice and procedures costs of land acquisition and architec- for hearings under part 80; tural and engineering fees, or making (f) Part 84-Nondiscrimination on the modificaitons to or in connection with Basis of Handicap in Programs and Ac- an existing facility which are in excess tivities Receiving Benefits from Fed- of double the square footage of the eral Financing Participation; and original facility and all physical im- (g) Part 91-Nondiscrimination on the provements. Basis of Age in Programs or Activities Department, means the Department of Receiving Federal Financial Assistance Health and Human Services. from HHS. Eligible organization, means a public or nonprofit private organization hav- § 1328.7 Confidentiality and disclosure ing the capacity to provide services of information. under this part for older Hawaiian Na- A grantee shall have confidentiality tives. and disclosure procedures as follows:
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(a) The grantee shall have procedures § 1328.13 Supportive services. to ensure that no information about an (a) A grantee may provide any of the older Hawaiian Native or obtained supportive services specified under from an older Hawaiian Native is dis- title III of the Older Americans Act closed in a form that identifies the per- and any other supportive services, ap- son without the informed consent of proved in the grantee’s application, the person or of his or her legal rep- that are necessary for the general wel- resentative, unless the disclosure is re- fare of older Hawaiian Natives. quired by court order, or for program (b) If a grantee elects to provide mul- monitoring by authorized Federal mon- tipurpose senior center activities or itoring agencies. uses any of the funds under this part (b) A grantee is not required to dis- for acquiring, altering or renovating a close those types of information or doc- multipurpose senior center facility, it uments that are exempt from disclo- shall comply with the following re- sure by a Federal agency under the quirements: Federal Freedom of Information Act, 5 (1) The grantee shall comply with all U.S.C. 552. applicable local health, fire, safety, building, zoning and sanitation laws, § 1328.9 Contributions. ordinances or codes. (a) Each grantee shall: (2) The grantee shall assure the tech- (1) Provide each older Hawaiian Na- nical adequacy of any proposed alter- tive with a free and voluntary oppor- ation or renovation of a multipurpose tunity to contribute to the cost of the senior center assisted under this part. service; The grantee shall assure technical ade- (2) Protect the privacy of each older quacy by requiring that any alteration Hawaiian Native with respect to his or or renovation of a multipurpose senior her contribution; center that affects the load bearing (3) Establish appropriate procedures members of the facility is structurally to safeguard and account for all con- sound and complies with all applicable tributions; local or State ordinances, laws, or (4) Use all supportive services con- building codes. tributions to expand the services pro- (c) If a grantee elects to provide legal vided under this part; and services, it shall substantially comply (5) Use all nutrition services con- with the requirements in § 1321.71 and tributions only to expand services as legal services providers shall comply provided under section 307(a)(13)(c)(ii) fully with the requirements in of the Act. §§ 1321.71(c) through 1321.71(p). (b) Each grantee may develop a sug- gested contribution schedule for serv- § 1328.15 Nutrition services. ices provided under this part. In devel- (a) In addition to providing nutrition oping a contribution schedule, the services to older Hawaiian Natives, a grantee shall consider the income grantee may: ranges of older Hawaiian Natives in the (1) Provide nutrition services to the service area and the grantee’s other spouses of older Hawaiian Natives; sources of income. However, means (2) Provide nutrition services to non- tests may not be used. elderly handicapped or disabled Hawai- (c) A grantee may not deny any older ian Natives who reside in housing fa- Hawaiian a service because the older cilities occupied primarily by the el- Hawaiian will not or cannot contribute derly, at which congregate nutrition to the cost of the service. services are provided; (3) Offer a meal, on the same basis as § 1328.11 Prohibition against supplan- meals are provided to older Hawaiian tation. Natives, to individuals providing vol- A grantee shall ensure that the ac- unteer services during meal hours; and tivities provided under a grant under (4) Provide a meal to individuals with this part will be in addition to, and not disabilities who reside in a non-institu- in substitution for, comparable activi- tional household with and accompany a ties provided without Federal assist- person eligible for congregate meals ance. under that part.
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(b) Each grantee may receive cash local license and safety requirements payments in lieu of donated foods for for the provision of those services; all or any portion of its funding avail- (4) The eligible organization shall en- able under section 311(a)(4) of the Act. sure that all services under this part To receive cash or commodities, the are provided without use of any means grantee shall have an agreement with tests; the U.S. Department of Agriculture’s (5) The eligible organization shall Food and Nutrition Service (FNS) to be comply with all requirements set forth a distributing agency. in §§ 1328.7 through 1328.17; and (c) Where applicable, the grantee (6) The services provided under this shall work with agencies responsible part will be coordinated, where appli- for administering other programs to fa- cable, with services provided under cilitate participation of older Hawaiian title III of the Act. Natives. (e) Signature by the principal official § 1328.17 Access to information. of the eligible organization. A grantee shall: § 1328.21 Application approval. (a) Establish or have a list of all serv- (a) Approval of any application under ices that are available to older Hawai- section 623(d) of the Act, shall not com- ian Natives in the service area; mit the Commissioner in any way to (b) Maintain a list of services needed make additional, supplemental, con- or requested by the older Hawaiians; and tinuation, or other awards with respect to any approved application or portion (c) Provide assistance to older Hawai- thereof. ian Natives to help them take advan- tage of available services. (b) The Commissioner may give first priority in awarding grants to eligible § 1328.19 Application requirements. applicant organizations that have prior experience in serving Hawaiian Na- To receive funds under this part, an tives, particularly older Hawaiian Na- eligible organization shall submit an tives. application as prescribed in section 623 of the Act and in accordance with the § 1328.23 Hearing procedures. Commissioner’s instructions for the specified project and budget periods. In accordance with section 623(c)(3) of The application shall provide for: the Act, if the Commissioner dis- (a) Program objectives, as set forth approves an application from an eligi- in section 623(a)(6) of the Act, and any ble organization, the organization may objectives established by the Commis- file a written request for a hearing sioner; with the Commissioner. (b) A description of the geographic (a) The request shall be postmarked boundaries of the service area proposed or delivered in person within 30 days of by the eligible organization; the date of the disapproval notice. If it (c) Documentation of the organiza- requests a hearing, the organization tion’s ability to serve older Hawaiian shall submit to the Commissioner, as Natives; part of the request, a full written re- (d) Assurances as prescribed by the sponse to each objection specified in Commissioner that: the notice of disapproval, including the (1) The eligible organization rep- pertinent facts and reasons in support resents at least 50 older Hawaiian Na- of its response, and any and all docu- tives who have attained 60 years of age mentation to support its position. or older; Service of the request shall also be (2) The eligible organization shall made on the individual(s) designated conduct all activities on behalf of older by the Commissioner to represent him Hawaiian natives in close coordination or her. with the State agency and Area Agen- (b) The Administration on Aging cy on Aging: shall have the opportunity to respond (3) The eligible organization shall within 30 days to the merits of the or- comply with all applicable State and ganization’s request.
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(c) The Commissioner notifies the or- essary action to avoid delay and to ganization in writing of the date, time maintain order and has all powers nec- and place for the hearing. essary to these ends. (d) The hearing procedures include (f) Formal rules of evidence do not the right of the organization to: apply to the hearings. (1) A hearing before the Commis- (g) The official hearing transcript to- sioner or an official designated by the gether with all papers documents, ex- Commissioner; hibits, and requests filed in the pro- (2) Be heard in person or to be rep- ceedings, including rulings, constitutes resented by counsel, at no expense to the record for decision. the Administration on Aging; (3) Present written evidence prior to (h) After consideration of the record, and at the hearing, and present oral the Commissioner or the Commis- evidence at the hearing if the Commis- sioner’s designee issues a written deci- sioner or the Commissioner’s designee sion, based on the record, which sets decides that oral evidence is necessary forth the reasons for the decision and for the proper resolution of the issues the evidence on which it was based. involved, and The decision is issued within 60 days of (4) Have the staff directly responsible the date of the hearing, constitutes the for reviewing the application either final administrative action on the mat- present at the hearing, or have a depo- ter and is promptly mailed to the orga- sition from the staff, whichever the nization. Commissioner or the Commissioner’s (i) Either the organization or the designee decides. staff of the Administration on Aging (e) The Commissioner or the Com- may request, for good cause, an exten- missioner’s designee conducts a fair sion of any of the time limits specified and impartial hearing, takes all nec- in this section.
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PART 1336—NATIVE AMERICAN 1336.71 Administrative costs. 1336.72 Fiscal requirements. PROGRAMS 1336.73 Eligible borrowers. 1336.74 Time limits and interest on loans. Subpart A—Definitions 1336.75 Allowable loan activities. 1336.76 Unallowable loan activities. Sec. 1336.10 Definitions. 1336.77 Recovery of funds. AUTHORITY: 42 U.S.C. 2991 et seq. Subpart B—Purpose of the Native American Programs SOURCE: 48 FR 55821, Dec. 15, 1983, unless otherwise noted. 1336.20 Program purpose. Subpart A—Definitions Subpart C—Native American Projects 1336.30 Eligibility under sections 804 and 805 § 1336.10 Definitions. of the Native American Programs Act of For the purposes of this part, unless 1974. the context otherwise requires: 1336.31 Project approval procedures. Act means the Native American Pro- 1336.32 Grants. 1336.33 Eligible applicants and proposed ac- grams Act of 1974, as amended (42 tivities which are ineligible. U.S.C. 2991 et seq.). 1336.34 Notice of ineligibility. Alaskan Native means a person who is 1336.35 Appeal of ineligibility. an Alaskan Indian, Eskimo, or Aleut, or any combination thereof. The term Subpart D—Evaluation also includes any person who is re- 1336.40 General. garded as an Alaskan Native by the Alaskan Native Village or group of Subpart E—Financial Assistance Provisions which he or she claims to be a member and whose father or mother is (or, if 1336.50 Financial and administrative re- deceased, was) regarded as an Alaskan quirements. 1336.51 Project period. Native by an Alaskan Native Village or 1336.52 Appeals. group. The term includes any Alaskan Native as so defined, either or both of Subpart F—Native Hawaiian Revolving whose adoptive parents are not Alas- Loan Fund Demonstration Project kan Natives. American Indian or Indian means any 1336.60 Purpose of this subpart. individual who is a member or a de- 1336.61 Purpose of the Revolving Loan Fund. 1336.62 Definitions. scendant of a member of a North Amer- 1336.63 General responsibilities of the Loan ican tribe, band, Pueblo or other orga- Administrator. nized group of native people who are 1336.64 Development of goals and strategies: indigenous to the Continental United Responsibilities of the Loan Adminis- States, or who otherwise have a special trator. relationship with the United States or 1336.65 Staffing and organization of the Re- a State through treaty, agreement, or volving Loan Fund: Responsibilities of some other form of recognition. This the Loan Administrator. 1336.66 Procedures and criteria for adminis- includes any individual who claims to tration of the Revolving Loan Fund: Re- be an Indian and who is regarded as sponsibilities of the Loan Administrator. such by the Indian tribe, group, band, 1336.67 Security and collateral: Responsibil- or community of which he or she ities of the Loan Administrator. claims to be a member. 1336.68 Defaults, uncollectible loans, liq- ANA means the Administration for uidations: Responsibilities of the Loan Native Americans within the Office of Administrator. 1336.69 Reporting requirements: Respon- Human Development Services. sibilities of the Loan Administrator. Applicant means an organization 1336.70 Technical assistance: Responsibil- which has applied for financial assist- ities of the Loan Administrator. ance from ANA.
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Budget period means the interval of private agencies including ‘‘for-profit’’ time into which a project period is di- organizations. vided for budgetary and funding pur- [48 FR 55821, Dec. 15, 1983, as amended at 53 poses, and for which a grant is made. A FR 23968, June 24, 1988; 53 FR 28223, July 27, budget period usually lasts one year in 1988; 54 FR 3452, Jan. 24, 1989; 61 FR 42820, a multi-year project period. Aug. 19, 1996] Economic and social self-sufficiency means the ability of Native Americans § 1336.31 Project approval procedures. to define and achieve their own eco- (a) Each applicant for financial as- nomic and social goals. sistance under section 803 of the Act Indian tribe means a distinct political must submit a work plan that falls community of Indians which exercises within the statutory requirements of powers of self-government. the Act and meets the criteria of pro- Native American means American In- gram announcements published by dian, Indian, Native Hawaiian, and ANA in the FEDERAL REGISTER. If the Alaskan Native, as defined in the Act, proposed project extends beyond one or in this section. year, a work plan must be submitted for the period of time specified by the Project period means, for discre- Commissioner in the Program An- tionary grants and cooperative agree- nouncement. ANA will determine ments, the total time for which the re- whether to approve all, part, or none of cipient’s project or program is ap- the requested work plan. Proposed proved for support, including any ex- changes to the approved work plan tension, subject to the availability of must receive the written approval of funds, satisfactory progress, and a de- ANA prior to implementation by the termination by HHS that continued recipient. funding is in the best interest of the (b) ANA will negotiate the approved Government. project goals, objectives, work plan, Recipient means an organization and the funding level for each budget which has applied for financial assist- period with each recipient. ance, and to which financial assistance (c) The evaluation for the purpose of is awarded under this Act. The term in- making an approval decision on each cludes grantees and recipients of coop- proposed work plan will take into ac- erative agreements. count the proposal’s conformance with ANA program purposes and the recipi- Subpart B—Purpose of the Native ent’s past performance and accomplish- American Programs ments. (d) Financial assistance awarded § 1336.20 Program purpose. under section 803 may be renewed by ANA to grantees based on acceptable The purpose of the Native American work plans and past performance. Programs authorized by the Native American Programs Act of 1974 is to (Approved by the Office of Management and Budget under control number 0980–0016) promote the goal of economic and so- cial self-sufficiency for Native Ameri- § 1336.32 Grants. cans. Generally, financial assistance will be made available for a one-year budg- Subpart C—Native American et period and subsequent non-com- Projects peting continuation awards with the same project period will also be for one § 1336.30 Eligibility under sections 804 year. A recipient must submit a sepa- and 805 of the Native American rate application to have financial as- Programs Act of 1974. sistance continued for each subsequent Financial assistance under sections year, with the same project period, but 804 and 805 may be made to public or the continuation application need only
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contain budget and a summary (xiii) Tribally Controlled Community progress report. Colleges Tribally Controlled Post-Sec- ondary Vocational Institutions, and § 1336.33 Eligible applicants and pro- colleges and universities located in Ha- posed activities which are ineli- waii, Guam, American Samoa, Palau, gible. or the Commonwealth of the Northern (a) Eligibility for the listed programs Mariana Islands which serve Native is restricted to the following specified American Pacific Islanders; and categories of organizations. In addi- (xiv) Nonprofit Alaska Native com- tion, applications from tribal compo- munity entities or tribal governing nents which are tribally-authorized di- bodies (Indian Reorganization Act or visions of a larger tribe must be ap- traditional councils) as recognized by proved by the governing body of the the Bureau of Indian Affairs. Tribe. If the applicant, other than a tribe or an Alaska Native Village gov- (Statutory authority: Sections 803(a) and ernment, is proposing a project bene- 803C of the Native American Programs Act of fiting Native Americans or Native 1974, as amended, 42 U.S.C. 2991 b(a) and 42 Alaskans, or both, it must provide as- U.S.C. 2991b–3) surance that its duly elected or ap- (2) Alaska-Specific Social and Eco- pointed board of directors is represent- nomic Development Strategies (SEDS) ative of the community to be served. Projects: (1) Social and Economic Development (i) Federally recognized Indian Tribes Strategies (SEDS) and Preservation in Alaska; and Enhancement of Native American (ii) Alaska Native villages as defined Languages: in the Alaska Native Claims Settle- (i) Federally recognized Indian ment Act (ANCSA) and/or nonprofit Tribes; village consortia; (ii) Consortia of Indian Tribes; (iii) Incorporated nonprofit Alaska (iii) Incorporated non-Federally rec- Native multi-purpose community- ognized Tribes; based organizations; (iv) Incorporated nonprofit multi- purpose community-based Indian orga- (iv) Nonprofit Alaska Native Re- nizations; gional Corporations/Associations in Alaska with village specific projects; (v) Urban Indian Centers; and (vi) National and regional incor- porated nonprofit Native American or- (v) Nonprofit Native organizations in ganizations with Native American Alaska with village specific projects. community-specific objectives; (3) Mitigation of Environmental Im- (vii) Alaska Native villages as de- pacts to Indian Lands Due to Depart- fined in the Alaska Native Claims Set- ment of Defense Activities: tlement Act (ANSCA) and/or nonprofit (i) Federally recognized Indian village consortia; Tribes; (viii) Incorporated nonprofit Alaska (ii) Incorporated non-Federally and Native multi-purpose community- State recognized Tribes; based organizations; (iii) Nonprofit Alaska Native commu- (ix) Nonprofit Alaska Native Re- nity entities or tribal governing bodies gional Corporations/Associations in (Indian Reorganization Act (IRA) or Alaska with village specific projects; traditional councils) as recognized by (x) Nonprofit Native organizations in the Bureau of Indian Affairs. Alaska with village specific projects; (iv) Nonprofit Alaska Native Re- (xi) Public and nonprofit private gional Associations and/or Corpora- agencies serving Native Hawaiians; tions with village specific projects; and (xii) Public and nonprofit private (v) Other tribal or village organiza- agencies serving native peoples from tions or consortia of Indian Tribes. Guam, American Samoa, Palau, or the (Statutory authority: § 8094A of the De- Commonwealth of the Northern Mar- partment of Defense Appropriations iana Islands. (The populations served Act, 1994 (Public Law 103–139), § 8094A of may be located on these islands or in the Native Americans Programs Act of the United States); 1974, as amended, 42 U.S.C. 2991h(b)).
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(4) Improvement of the capability of the three interrelated ANA goals (Gov- tribal governing bodies to regulate en- ernance Development, Economic Devel- vironmental quality: opment, and Social Development); (i) Federally recognized Indian (6) Proposals from consortia of tribes Tribes; that are not specific with regard to (ii) Incorporated non-Federally and support from, and roles of member State recognized Indian tribes; tribes. An application from a consor- (iii) Alaska Native villages as defined tium must have goals and objectives in the Alaska Native Claims Settle- that will create positive impacts and ment Act (ANSCA) and/or nonprofit outcomes in the communities of its village consortia; members. ANA will not fund activities (iv) Nonprofit Alaska Native Re- by a consortium of tribes which dupli- gional Corporations/Associations with cates activities for which member village-specific projects; tribes also receive funding from ANA; (v) Other tribal or village organiza- and tions or consortia of Indian tribes: and (7) The purchase of real estate. (Stat- (vi) Tribal governing bodies (IRA or utory authority: Sections 803B of the traditional councils) as recognized by Native American Programs Act of 1974, the Bureau of Indian Affairs. (Statu- as amended, 42 U.S.C. 2991b–2) tory authority: Sections 803(d) of the Native Americans Programs Act of [61 FR 42820, Aug. 19, 1996] 1974, as amended 42 U.S.C. 2991b(d).) § 1336.34 Notice of ineligibility. (b) The following is a nonexclusive list of activities that are ineligible for (a) Upon a finding by the Commis- funding under programs authorized by sioner that an organization which has the Native American Programs Act of applied for funding is ineligible or that 1974: the activities proposed by an organiza- (1) Projects in which a grantee would tion are ineligible, the Commissioner provide training and/or technical as- shall inform the applicant by certified sistance (T/TA) to other tribes or Na- letter of the decision. tive American organizations (‘‘third (b) The letter must include the fol- party T/TA’’). However, the purchase of lowing: T/TA by a grantee for its own use or for (1) The legal and factual grounds for its members’ use (as in the case of a the Commissioner’s finding concerning consortium), where T/TA is necessary eligibility; to carry out project objectives, is ac- (2) A copy of the regulations in this ceptable; part; and (2) Projects that request funds for (3) The following statement: This is feasibility studies, business plans, mar- the final decision of the Commissioner, keting plans or written materials, such Administration for Native Americans. as manuals, that are not an essential It shall be the final decision of the De- part of the applicant’s SEDS long- partment unless, within 30 days after range development plan; receiving this decision as provided in (3) The support of on-going social § 810(b) of the Native Americans Pro- service delivery programs or the expan- grams Act of 1974, as amended, and 45 sion, or continuation, of existing social CFR part 1336, you deliver or mail (you service delivery programs; should use registered or certified mail (4) Core administration functions, or to establish the date) a written notice other activities, that essentially sup- of appeal to the HHS Departmental Ap- port only the applicant’s on-going ad- peals Board, 200 Independence Avenue, ministrative functions; however, for S.W., Washington, D.C. 20201. You shall Competitive Area 2, Alaska-Specific attach to the notice a copy of this deci- SEDS Projects, ANA will consider sion and note that you intend an ap- funding core administrative capacity peal. The appeal must clearly identify building projects at the village govern- the issue(s) in dispute and contain a ment level if the village does not have statement of the applicant’s position governing systems in place; on such issue(s) along with pertinent (5) The conduct of activities which facts and reasons in support of the po- are not responsive to one or more of sition. We are enclosing a copy of 45
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CFR part 1336 which governs the con- (h) If the Departmental Appeals duct of appeals under § 810(b). For addi- Board determines that the applicant is tional information on the appeals proc- eligible or that the activities proposed ess see 45 CFR 1336.35. (Statutory au- by the applicant are eligible for fund- thority: Sections 810(b) of the Native ing, such eligibility shall not be effec- American Programs Act of 1974, as tive until the next cycle of grant pro- amended, 42 U.S.C. 2991h(b).) posals are considered by the Adminis- [61 FR 42821, Aug. 19, 1996] tration for Native Americans. (Statu- tory authority: Sections 810(b) of the § 1336.35 Appeal of ineligibility. Native American Programs Act of 1974, as amended, 42 U.S.C. 2991h(b).) The following steps apply when seek- ing an appeal on a finding of ineligi- [61 FR 42822, Aug. 19, 1996] bility for funding: (a) An applicant, which has had its Subpart D—Evaluation application rejected either because it has been found ineligible or because § 1336.40 General. the activities it proposes are ineligible Progress reports and continuation for funding by the Commissioner of applications must contain sufficient ANA, may appeal the Commissioner’s information for ANA to determine the ruling to the HHS Departmental Ap- peals Board, in writing, within 30 days extent to which the recipient meets following receipt of ineligibility notifi- ANA project evaluation standards. Suf- cation. ficient information means information adequate to enable ANA to compare (b) The appeal must clearly identify the issue(s) in dispute and contain a the recipient’s accomplishments with statement of the applicant’s position the goals and activities of the approved on such issue(s) along with pertinent work plan and with ANA project eval- facts and reasons in support of the po- uation criteria. sition. (Approved by the Office of Management and (c) Upon receipt of appeal for recon- Budget under control numbers 0980–0155 and sideration of a rejected application or 0980–0144) activities proposed by an applicant, the Departmental Appeals Board will no- Subpart E—Financial Assistance tify the applicant by certified mail Provisions that the appeal has been received. (d) The applicant’s request for recon- § 1336.50 Financial and administrative sideration will be reviewed by the De- requirements. partmental Appeals Board in accord- (a) General. The following HHS regu- ance with 45 CFR part 16, except as lations apply to all grants awarded otherwise provided in this part. under this part: (e) The Commissioner shall have 45 45 CFR Part 16 Department grant days to respond to the applicant’s sub- appeals process. mission under paragraph (a) of this sec- tion. 45 CFR Part 46 Protection of human (f) The applicant shall have 20 days subjects. to respond to the Commissioner’s sub- 45 CFR Part 74 Administration of mission and the parties may be re- grants. quested to submit additional informa- 45 CFR Part 75 Informal grant ap- tion within a specified time period be- peals procedures (indirect cost rates fore closing the record in the appeal. and other cost allocations). (g) The Departmental Appeals Board 45 CFR Part 80 Nondiscrimination will review the record in the appeal and under programs receiving Federal as- provide a final written decision within sistance through the Department of 30 days following the closing of the Health and Human Services—Effec- record, unless the Board determines for tuation of title VI of the Civil Rights good reason that a decision cannot be Act of 1964. issued within this time period and so 45 CFR Part 81 Practice and proce- notifies the parties. dure for hearing under part 80.
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45 CFR Part 84 Nondiscrimination Waiver of all or part of the non-Federal on the basis of handicap in federally as- share shall apply only to the budget pe- sisted programs. riod for which application was made. 45 CFR Part 86 Nondiscrimination (c) Maintenance of effort. (1) Applica- on the basis of sex in education pro- tions for financial assistance under grams and activities receiving or bene- this Part must include either a state- fiting from Federal financial assist- ment of compliance with the mainte- ance. nance of effort requirement contained 45 CFR Part 91 Nondiscrimination in section 803(c) of the Act, or a request on the basis of age in programs or ac- for a waiver, in accordance with cri- tivities receiving Federal financial as- teria established in this paragraph. sistance from HHS. (2) To be eligible for a waiver of the (b) Cost sharing or matching—(1) Pol- maintenance of effort requirement, the icy. Recipients of financial assistance applicant must demonstrate to ANA under sections 803, 804, and 805 of the that the organization whose funds pre- Act are required to provide a matching viously supported the project discon- share of 20 percent of the approved cost tinued its support: of the assisted project. (i) As a result of funding limitations; This requirement may be waived in ac- and cordance with the criteria in (ii) Not as a result of an adverse eval- § 1336.50(b)(3). The matching share re- uation of the project’s purpose or the quirement may be met using either manner in which it was conducted; and cash or in-kind contributions. (iii) Not because it was anticipated (2) Application. If an applicant wishes that Federal funds would replace the to request a waiver of the requirement original source of project funding. for a 20 percent non-Federal matching (3) In addition, the applicant must share, it must include with is applica- demonstrate in the request for a waiver tion for funding a written justification that the maintenance of effort require- that clearly explains why the applicant ment would result in insurmountable cannot provide the matching share and hardship for the recipient or would oth- how it meets the criteria. erwise be inconsistent with the pur- (3) Criteria. Both of the following poses of this part. criterial must be met for an applicant (d) Delegation of project operations. (1) to be eligible for a waiver of the non- Each subgrant awarded to a delegate Federal matching requirement: agency must have specific prior ap- (i) Applicant lacks the available re- proval by ANA. Such delegation must sources to meet part or all of the non- be formalized by written agreement. Federal matching requirement. This (2) The agreement must specify the must be documented by an institu- activities to be performed by the dele- tional audit if available, or a full dis- gate agency, the time schedule, the closure of applicant’s total assets and policies and procedures to be followed, liabilities. the dollar limitations, and the costs al- (ii) Applicant can document that rea- lowed. The applicant must submit a sonable efforts to obtain cash or inkind budget for each delegate agency as part contributions for the purposes of the of its application. project from third parties have been (e) Unallowable costs. ANA funds may unsuccessful. Evidence of such efforts not be used by recipients to purchase can include letters from possible real property. sources of funding indicating that the (f) Office of the Chief Executive. The requested resources are not available costs of salaries and expenses of the Of- for that project. The requests must be fice of Chief Executive of a federally appropriate to the source in terms of recognized Indian tribal government project purpose, applicant eligibility, (as defined in §74.3 of this title) are al- and reasonableness of the request. lowable, provided that such costs ex- (4) Approval. For a waiver to be ap- clude any portion of salaries and ex- proved, ANA must determine that it penses of the Office of Chief Executive will not prevent the award of other that are a cost of general government grants at levels it believes are desir- and provided they are related to a able for the purposes of the program. project assisted under this part.
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§1336.51 Project period. (3) If a recipient appeals a suspension The Notice of Financial Assistance of more than 30 days which subse- Awarded will specify the period for quently results in termination of finan- which support is intended, although cial assistance, both actions may be the Department makes funding com- considered simultaneously by the De- mitments only for one budget period at partmental Grant Appeals Board. a time. Financial assistance under sec- tion 803 of the Act may be ongoing, Subpart F—Native Hawaiian Re- subject to policy decisions and funding volving Loan Fund Dem- limitations. onstration Project § 1336.52 Appeals. AUTHORITY: 88 Stat. 2324, 101 Stat. 976 (42 (a) Right to appeal. Recipients whose U.S.C. 2991, et seq.). financial assistance has been suspended or terminated, or whose non-competing SOURCE: 53 FR 23969, June 24, 1988 (interim) and 53 FR 28223, July 27, 1988; 54 FR 3452, Jan. continuation applications for refunding 24, 1989 (final), unless otherwise noted. have been denied, may appeal such de- cisions using the procedures described § 1336.60 Purpose of this subpart. in this section. Denial of an application for refunding means the refusal to fund (a) The Administration for Native a non-competing continuation applica- Americans will award a five-year dem- tion for a budget period within a pre- onstration grant to one agency of the viously approved project period. State of Hawaii or to one community- (b) Suspension, termination, and denial based Native Hawaiian organization of funding. Procedures for and defini- whose purpose is the economic and so- tions of suspension and termination of cial self-sufficiency of Native Hawai- financial assistance are published in 45 ians to develop procedures for and to CFR 74.110–74.116. Appeals from a de- manage a revolving loan fund for Na- nial of refunding will be treated the tive Hawaiian individuals and organi- same procedurally as appeals to termi- zations in the State of Hawaii. (section nation of financial assistance. The 830A(a)(1)) term ‘‘denial of refunding’’ does not in- (b) This subpart sets forth the re- clude policy decisions to eliminate one quirements that the organization or or more activities of an approved agency selected to administer the re- project. A decision not to fund an ap- volving loan fund must meet and the plication at the end of the recipients’s terms and conditions applicable to project period is not a ‘‘denial of re- loans made to borrowers from the loan funding’’ and is not subject to appeal. fund. (c) Hearings. (1) A recipient shall be given an initial written notice at least § 1336.61 Purpose of the Revolving thirty (30) days prior to the suspension Loan Fund. or termination of financial assistance The purpose of the Native Hawaiian except in emergency situations, which Revolving Loan Fund is to provide occur when Federal property is in im- funding not available from other minent danger of dissipation, or when sources on reasonable terms and condi- life, health, or safety is endangered. tions to: During this period of time, the recipi- (a) Promote economic activities ent has the opportunity to show cause which result in expanded opportunities to ANA why such action should not be for Native Hawaiians to increase their taken. ownership of, employment in, or in- (2) A recipient who has received final come from local economic enterprise; written notice of termination or denial (b) Assist Native Hawaiians to over- of refunding, or whose financial assist- come specific gaps in local capital mar- ance will be suspended for more than 30 kets and to encourage greater private- days, or who has other appealable dis- sector participation in local economic putes with ANA as provided by 45 CFR development activities; and part 16 may request review by the De- (c) Increase capital formation and partmental Grant Appeals Board under private-sector jobs for Native Hawai- the provisions of 45 CFR part 16. ians. (section 803A(a)(1)(A))
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§ 1336.62 Definitions. evidencing a lien on leasehold inter- ests. Applicant means an applicant for a loan from the Native Hawaiian Revolv- Native Hawaiian means an individual ing Loan Fund. An applicant must be any of whose ancestors were natives of an individual Native Hawaiian or a Na- the area which consists of the Hawai- tive Hawaiian organization. If the ap- ian Islands prior to 1778. plicant is a group of people organized Partnership means two or more per- for economic development purposes, sons engaged in the same business, the applicant ownership must be 100% sharing its profits and risks, and orga- Native Hawaiian. nized pursuant to state or Federal law. Commissioner means the Commis- Profits mean the net income earned sioner of the Administration for Native after deducting operating expenses Americans. from operating revenues. Cooperative association means an asso- Revolving Loan Fund (RLF) means all ciation of individuals organized pursu- funds that are now or are hereafter a ant to State or Federal law, for the part of the Native Hawaiian Revolving purpose of owning and operating an Loan Fund authorized by the Native economic enterprise for profit, with American Programs Act of 1974, as profits distributed or allocated to pa- amended in 1987, and supplemented by trons who are members of the organiza- sums collected in repayment of loans tion. made, including interest or other charges on loans and any funds appro- Corporation means an entity orga- nized pursuant to State or Federal law, priated pursuant to section 803A of the as a corporation, with or without Native American Programs Act of 1974, stock, for the purpose of owning and as amended. operating an economic enterprise. § 1336.63 General responsibilities of Default means failure of a borrower the Loan Administrator. to make scheduled payments on a loan, failure to obtain the lender’s approval (a) The Loan Administrator will for disposal of assets mortgaged as se- make loans to Native Hawaiian organi- curity for a loan, or failure to comply zations and to individual Native Ha- with the convenants, obligations or waiians for the purpose or promoting other provisions of a loan agreement. economic development among Native Economic enterprise means any Native Hawaiians in the State of Hawaii. (Sec- Hawaiian-owned, commercial, indus- tion 803(a)(1)(A).) trial, agricultural or other business ac- (b) Prior to any loan being made tivity established or organized for the from the RLF, the Loan Administrator purpose of profit. will develop and obtain the Commis- Financing statement means the docu- sioner’s approval of the following orga- ment filed or recorded in country or nizational and administrative mate- State offices pursuant to the provisions rials necessary to implement the RLF: of the Uniform Commercial Code as en- (1) Goals and strategies; acted by Hawaii notifying third parties (2) Staffing and organizational re- that a lender has a lien on the chattel sponsibilities; and/or crops of a borrower. (3) Preapplication and loan screening Loan Administrator means either the processes; agency of the State of Hawaii or the (4) Loan procedures including appli- community-based Native Hawaiian or- cation forms; ganization whose purpose is the eco- (5) Criteria and procedures for loan nomic and social self-sufficiency of Na- review, evaluation and decision-mak- tive Hawaiians selected to administer ing; the revolving loan fund. (6) Loan closing procedures; and Mortgages mean mortgages and deeds (7) Procedures for loan servicing, of trust evidencing an encumbrance of monitoring and provision of technical trust or restricted land, mortgages and assistance. security agreements executed as evi- (c) The Loan Administrator will set dence of liens against crops and chat- up fiscal management procedures to tels, and mortgages and deeds of trust satisfy the requirements of section
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803A of the Native American Programs agement problems of a borrower and Act and this subpart. develop a workable plan for providing (d) The Loan Administrator must set borrowers with the needed manage- up a separate account for the RLF into ment assistance; which all payments, interest, charges, (4) Marketing Strategy: to generate ap- and other amounts collected from plications from potential borrowers loans made from the RLF will be de- and to generate the support and par- posited. ticipation of local financial institu- tions; § 1336.64 Development of goals and (5) Capital Base Management Strategy: strategies: Responsibilities of the to develop and allocate the financial Loan Administrator. resources of the fund in the most effec- (a) Prior to the approval of any di- tive possible way to meet the need or rect loan under the RLF, the Loan Ad- demand for financing; and ministrator will develop and obtain the (6) Accountability Strategy: to develop Commissioner’s approval for a clear policies and mechanisms to hold bor- and comprehensive set of goals and rowers accountable for providing the strategies for the RLF. The goals will public benefits promised (e.g. jobs) in specify the results the Loan Adminis- return for financing; to ensure that, trator expects to accomplish from the until expenditure, loan proceeds are Revolving Loan Fund, define the RLF’s held by the borrower in secured, liquid role and responsibilities for potential financial instruments; to hold bor- users, and serve as the basis for the de- rowers accountable for upholding the velopment of an organizational strat- commitments made prior to the loan; egy and operating plan. The RLF strat- and to develop the methods used by the egies will provide the Loan Adminis- RLF to enforce these commitments. trator with a sound understanding of the economic and market conditions § 1336.65 Staffing and organization of within the Native Hawaiian commu- the Revolving Loan Fund: Respon- nity. sibilities of the Loan Administrator. (b) The following factors shall be con- Prior to the approval of any direct sidered by the Loan Administrator in loan under the RLF, the Loan Adminis- developing the RLF’s goals: trator must develop and obtain the (1) Employment needs of the local Commissioner’s approval for the RLF’s population; organization table, including: (2) Characteristics of the local eco- (a) The structure and composition of nomic base; the Board of Directors of the RLF; (3) Characteristics of the local cap- (b) The staffing requirements for the ital base and the gaps in the local RLF, with position descriptions and availability of business capital; necessary personnel qualifications; (4) Local resources for economic de- (c) The appointments to the advisory velopment and their availability; and loan review committee; and (5) Goals and strategies of other local (d) The roles and responsibilities of organizations involved in economic de- the Board, staff and loan review com- velopment. mittee. (c) The loan fund strategies devel- oped by the Revolving Loan Fund must § 1336.66 Procedures and criteria for include the following: administration of the Revolving (1) Business Targeting Strategy: to de- Loan Fund: Responsibilities of the termine which types of businesses are Loan Administrator. to be targeted by the loan fund. The Prior to the approval of any direct Loan Administrator will develop proce- loan under the RLF, the Loan Adminis- dures to ensure that the loans made trator must develop and obtain the are directed to Native Hawaiians. Commissioner’s approval for the fol- (2) Financing Strategy: to determine lowing procedures: the types of financing the loan fund (a) Preapplication and loan screening will provide; procedures. Some factors to be consid- (3) Business Assistance Strategy: to ered in the loan screening process are: identify the possible or potential man- (1) General eligibility criteria;
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(2) Potential economic development (vi) Defaults and remedies; and criteria; (vii) Other provisions as necessary. (3) Indication of business viability; (2) Closing Agenda: an outline of the (4) The need for RLF financing; and loan documents, the background docu- (5) The ability to properly utilize fi- ments, and the legal and other sup- nancing. porting documents required in connec- (b) Application process. The applica- tion with the loan. tion package includes forms, instruc- (g) Loan servicing and monitoring. The tions, and policies and procedures for servicing of a loan will include collec- the loan application. The package must tions, monitoring, and maintenance of also include instructions for the devel- an up-to-date information system on opment of a business and marketing loan status. plan and a financing proposal from the (1) Collections: To include a repay- applicant. ment schedule, invoice for each loan (c) Loan evaluation criteria and proce- payment, late notices, provisions for dures. The loan evaluation must in- late charges. clude the following topics: (2) Loan Monitoring: To include reg- (1) General and specific business ular reporting requirements, periodic trends; analysis of corporate and industry in- (2) Potential market for the product formation, scheduled telephone contact or service; and site visits, regular loan review (3) Marketing strategy; committee oversight of loan status, (4) Management skills of the bor- and systematic internal reports and rower; files. (5) Operational plan of the borrower; (6) Financial controls and accounting § 1336.67 Security and collateral: Re- systems; sponsibilities of the Loan Adminis- (7) Financial projections; and trator. (8) Structure of investment and fi- The Loan Administrator may require nancing package. any applicant for a loan from the RLF (d) Loan decision-making process. Deci- to provide such collateral as the Loan sion-making on a loan application in- Administrator determines to be nec- cludes the recommendations of the essary to secure the loan. (Section staff, the review by the loan review 803A(b)(3)) committee and the decision by the (a) As a Credit Factor. The avail- Board. ability of collateral security normally (e) Loan closing process. The guide- is considered an important factor in lines for the loan closing process in- making loans. The types and amount of clude the finalization of loan terms; collateral security required should be conditions and covenants; the exercise governed by the relative strengths and of reasonable and proper care to ensure weaknesses of other credit factors. The adherence of the proposed loan and bor- taking of collateral as security should rower’s operations to legal require- be considered with respect to each ments; and the assurance that any re- loan. Collateral security should be suf- quirement for outside financing or ficient to provide the lender reasonable other actions on which disbursement is protection from loss in the case of ad- contingent are met by the borrower. versity, but such security or lack (f) Loan closing documents. Documents thereof should not be used as the pri- used in the loan closing process in- mary basis for deciding whether to ex- clude: tend credit. (1) Term Sheet: an outline of items to (b) Security Interests. Security inter- be included in the loan agreement. It ests which may be taken by the lender should cover the following elements: include, but are not limited to, liens on (i) Loan terms; real or personal property, including (ii) Security interest; leasehold interests; assignments of in- (iii) Conditions for closing the loan; come and accounts receivable; and (iv) Covenants, including reporting liens on inventory or proceeds of inven- requirements; tory sales as well as marketable securi- (v) Representations and warranties; ties and cash collateral accounts.
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(1) Motor vehicles. Liens ordinarily taken by the Loan Administrator. (sec- should be taken on licensed motor ve- tion 803A(c) (1) and (2)) hicles, boats or aircraft purchased (d) Upon receiving such notices, the hereunder in order to be able to trans- Commissioner will, as appropriate, in- fer title easily should the lender need struct the Loan Administrator: to declare a default or repossess the (1) To demand the immediate and full property. repayment of the loan; (2) Insurance on property secured. Haz- (2) To continue with its collection ac- ard insurance up to the amount of the tivities; loan or the replacement value of the (3) To cancel, adjust, compromise, or property secured (whichever is less) reduce the amount of such loan; must be taken naming the lender as beneficiary. Such insurance includes (4) To modify any term or condition fire and extended coverage, public li- of such loan, including any term or ability, property damage, and other ap- condition relating to the rate of inter- propriate types of hazard insurance. est or the time of payment of any in- (3) Appraisals. Real property serving stallment of principal or interest, or as collateral security must be ap- portion thereof, that is payable under praised by a qualified appraiser. For all such loan; other types of property, a valuation (5) To discontinue any further ad- shall be made using any recognized, vance of funds contemplated by the standard technique (including standard loan agreement; reference manuals), and this valuation (6) To take possession of any or all shall be described in the loan file. collateral given as security and in the (c) Additional security. The lender case of individuals, corporations, part- may require collateral security or ad- nerships or cooperative associations, ditional security at any time during the property purchased with the bor- the term of the loan if after review and rowed funds; monitoring an assessment indicates (7) To prosecute legal action against the need for such security. the borrower or against the officers of the borrowing organization; § 1336.68 Defaults, uncollectible loans, (8) To prevent further disbursement liquidations: Responsibilities of the Loan Administrator. of credit funds under the control of the borrower; (a) Prior to making loans from the (9) To assign or sell at a public or pri- RLF, the Loan Administrator will de- vate sale, or otherwise dispose of for velop and obtain the Commissioner’s cash or credit any evidence of debt, approval for written procedures and contract, claim, personal or real prop- definitions pertaining to defaults and erty or security assigned to or held by collections of payments. (section the Loan Administrator; or 803A(b)(4)) (b) The Loan Administrator will pro- (10) To liquidate or arrange for the vide a copy of such procedures and defi- operation of economic enterprises fi- nitions to each applicant for a loan at nanced with the revolving loan until the time the application is made. (sec- the indebtedness is paid or until the tion 803A(b)(4)) Loan Administrator has received ac- (c) The Loan Administrator will re- ceptable assurance of its repayment port to the Commissioner whenever a and compliance with the terms of the loan recipient is 90 days in arrears in loan agreement. (Section 803A(c)(2)(B)) the repayment of principal or interest or has failed to comply with the terms § 1336.69 Reporting requirements: Re- of the loan agreement. After making sponsibilities of the Loan Adminis- trator. reasonable efforts to collect amounts payable, as specified in the written pro- (a) The Loan Administrator will cedures, the Loan Administrator shall maintain the following internal infor- notify the Commissioner whenever a mation and records: loan is uncollectible at reasonable (1) For each borrower: The loan re- cost. The notice shall include rec- payment schedule, log of telephone ommendations for future action to be calls and site visits made with the date
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and the items discussed, correspond- any equivalent report required by the ence with the borrower, progress re- Department. ports and analyses. (2) Monthly status of all outstanding § 1336.70 Technical assistance: Respon- loans, noting all overdue payments. sibilities of the Loan Administrator. (3) Monthly status of the investments The Loan Administrator will assure of the revolving loan fund monies not that competent management and tech- currently used for loans. nical assistance is available to the bor- (4) Monthly records on the revenue rower consistent with the borrower’s generated by the loan fund from inter- knowledge and experience and the na- est charges and late charges. ture and complexity of the economic (5) Monthly administrative costs of enterprise being financed by the RLF. the management of the loan fund and Consultants, RLF staff, and members the sources of the monies to support of the loan review committee and the administrative costs. Board may be used to assist borrowers. (b) The Loan Administrator must (section 803A(d)(1)(B)) submit a quarterly report to the Com- missioner. The report may be in a for- § 1336.71 Administrative costs. mat of the choice of the Loan Adminis- Reasonable administrative costs of trator as long as it includes at a min- the RLF may be paid out of the loan imum the following topics: fund. The grant award agreement be- (1) For each borrower: tween the Loan Administrator and (i) Name of the borrower; ANA will set forth the allowable ad- (ii) Economic development purpose(s) ministrative costs of the loan fund dur- of the loan; ing the five-year demonstration period. (iii) Financing of the loan by source; (sections 803A(a)(2) and 803A(d)(1)(A)) (iv) Loan status (current/delinquent/ paid); § 1336.72 Fiscal requirements. (v) Principal and interest out- (a) Any portion of the revolving loan standing; and fund that is not required for expendi- (vi) Amount delinquent/defaulted, if ture must be invested in obligations of any. the United States or in obligations (2) Financial status of the RLF: guaranteed or insured by the United (i) Administrative cost expenditures; States. (ii) Level of base capital; (b) Loans made under the RLF will (iii) Level of current capital; be for a term that does not exceed five (iv) Amount of ANA funding; years. (v) Matching share; (c) No loan may be made by the RLF (vi) Other direct funding of the RLF; after November 29, 1992, the close of the (vii) Program income, including in- five-year period of the demonstration terest on loans, earnings from invest- project. (section 803A(b)(6)) ments, fee charges; (d) All monies that are in the revolv- (viii) Loans made; ing loan fund on November 29, 1992 and (ix) Losses on loans; that are not otherwise needed (as de- (x) Principal and interest out- termined by the Commissioner) to standing; carry out the provisions of this subpart (xi) Loans repaid; must be deposited in the Treasury of (xii) Delinquent loans; and the United States as miscellaneous re- (xiii) Collateral position of the RLF ceipts. The Commissioner will make (the value of collateral as a percent of this determination based on reports, the outstanding balance on direct audits and other appropriate docu- loans). ments as determined by the Commis- (c) The Loan Administrator must sioner. The Commissioner will take submit a semi-annual report to the into consideration the costs necessary Commissioner containing an analysis to collect loans outstanding beyond of the RLF progress to date. November 29, 1992, which costs may be (d) The Loan Administrator must paid from interest and loan charges submit to the Department a quarterly collected by the Fund and in the Fund SF–269, Financial Status Report, or as of November 29, 1992. To use monies
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in the Fund for the costs of collection § 1336.75 Allowable loan activities. after November 29, 1992, the Commis- The following are among those ac- sioner must give prior approval for tivities for which a loan may be made such use. from the RLF: (e) All monies deposited in the re- (a) The establishment or expansion of volving loan fund after November 29, businesses engaged in commercial, in- 1992 must be deposited in the Treasury dustrial or agricultural activities, such of the United States as miscellaneous as farming, manufacturing, construc- receipts. tion, sales, service; (f) After November 29, 1992, the Loan (b) The establishment or expansion of Administrator will assume responsi- cooperatives engaged in the production bility for the collection of all out- and marketing of farm products, equip- standing loans without additional fi- ment, or supplies; the manufacture and nancial assistance from ANA. sale of industrial, commercial or con- sumer products; or the provision of § 1336.73 Eligible borrowers. various commercial services; (a) Loans may be made to eligible ap- (c) Business or job retention; plicants only if the Loan Adminis- (d) Small business development; trator determines that the applicant is (e) Private sector job creation; and (f) Promotion of economic diver- unable to obtain financing on reason- sification, e.g. targeting firms in able terms and conditions from other growth industries that have not pre- sources such as banks, Small Business viously been part of a community’s Administration, Production Credit As- economic base. sociations, Federal Land Banks; and (b) Only if there is a reasonable pros- § 1336.76 Unallowable loan activities. pect that the borrower will repay the The following activities are among loan. (section 803A(b)(1) (A) and (B)) those activities not eligible for support (c) The Loan Administrator will de- under the revolving loan fund: termine an applicant’s inability to ob- (a) Loans to the Loan Administrator tain financing elsewhere on reasonable or any representative or delegate of the terms and conditions from documenta- Loan Administrator (section tion provided by the applicant. 803A(b)(5)); (d) Those eligible to receive loans (b) Loans which would create a po- from the revolving loan fund are: tential conflict-of-interest for any offi- (1) Native Hawaiian individuals. cer or employee of the Loan Adminis- (2) Native Hawaiian non-profit orga- trator; loan activities which directly nizations. benefit these individuals, or persons re- (3) Native Hawaiian businesses. lated to them by marriage, or law. (4) Native Hawaiian cooperative asso- (c) Eligible activities which are ciations. moved from the State of Hawaii; (d) Investing in high interest ac- (5) Native Hawaiian partnerships. count, certificates of deposit or other (6) Native Hawaiian associations. investments; (7) Native Hawaiian corporations. (e) Relending of the loan amount by the borrower; § 1336.74 Time limits and interest on (f) The purchase of land or buildings; loans. (g) The construction of buildings; and (a) Loans made under the RLF will (h) Purchasing or financing equity in be for a term that does not exceed 5 private businesses. years. (b) Loans will be made to approved § 1336.77 Recovery of funds. borrowers at a rate of interest that is 2 (a) Funds provided under this Sub- percentage points below the average part may be recovered by the Commis- market yield on the most recent public sioner for both costs of administration offering of United States Treasury bills of the Loan Fund and losses incurred occurring before the date on which the by the Fund (hereafter jointly referred loan is made. (section 803A(b)(2) (A) to as ‘‘costs’’) under the following cir- and (B)) cumstances:
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(1) Whenever claimed costs are unal- Commissioner pursuant to § 1336.68(d) lowable under the Native Americans of these regulations; Programs Act of 1974, as amended, or (7) For costs which are incurred due under 45 CFR part 74, or both; to faulty record keeping, reporting, or (2) For costs for loans made to ineli- both; or gible persons or entities as defined in (8) For costs which are in connection § 1336.73; with any activity or action which vio- (3) For costs connected with the de- lates any Federal or State law or regu- fault of a borrower when the Loan Ad- lation not specifically identified in ministrator has failed to perfect any these regulations. security interest or when the Loan Ad- ministrator has failed to obtain collat- (b) Whenever the Commissioner de- eral when provision of collateral is a termines that funds have been improp- condition of a loan. erly utilized or accounted for, he will (4) For costs connected with any de- issue a disallowance pursuant to the fault when the Loan Administrator has Act and to 45 CFR part 74 and will no- failed to perform a proper check of an tify the Loan Administrator of its ap- applicant’s credit; peal rights, which appeal must be (5) For costs whenever the Loan Ad- taken pursuant to 45 CFR part 16. ministrator has failed to notify the (c) If a disallowance is taken and not Commission of loans at risk as required appealed, or if it is appealed and the by § 1336.68 of these regulations, and as disallowance is upheld by the Depart- may be required by the procedures ap- mental Grant Appeals Board, the Loan proved pursuant to that regulation; Administrator must repay the dis- (6) For costs whenever the Loan Ad- allowed amount to the Loan Fund ministrator has failed to follow prop- within 30 days, such repayment to be erly instructions provided to it by the made with non-Federal funds.
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PART 1340—CHILD ABUSE AND NE- neglect prevention and treatment pro- GLECT PREVENTION AND TREAT- grams; MENT (3) Making grants to and entering into contracts for: Research, dem- Subpart A—General Provisions onstration and service improvement programs and projects, and training, Sec. technical assistance and informational 1340.1 Purpose and scope. activities; and 1340.2 Definitions. (4) Coordinating Federal activities 1340.3 Applicability of Department-wide regulations. related to child abuse and neglect. This 1340.4 Coordination requirements. part establishes the standards and pro- cedures for conducting the grant fund- Subpart B—Grants to States ed activities and contract and coordi- nation activities. 1340.10 Purpose of this subpart. 1340.11 Allocation of funds available. (c) Requirements related to child 1340.12 Application process. abuse and neglect applicable to pro- 1340.13 Approval of applications. grams assisted under title IV–B of the 1340.14 Eligibility requirements. Social Security Act are implemented 1340.15 Services and treatment for disabled by regulation at 45 CFR parts 1355 and infants. 1357. (d) Federal financial assistance is not Subpart C—Discretionary Grants and available under the Act for the con- Contracts struction of facilities. 1340.20 Confidentiality. [48 FR 3702, Jan. 26, 1983, as amended at 52 APPENDIX TO PART 1340—INTERPRETATIVE FR 3994, Feb. 6, 1987; 55 FR 27639, July 5, 1990] GUIDELINES REGARDING 45 CFR 1340.15— SERVICES AND TREATMENT FOR DISABLED § 1340.2 Definitions. INFANTS. For the purposes of this part: AUTHORITY: 42 U.S.C. 5101 et seq. (a) A properly constituted authority is SOURCE: 48 FR 3702, Jan. 26, 1983, unless an agency with the legal power and re- otherwise noted. sponsibility to perform an investiga- tion and take necessary steps to pre- Subpart A—General Provisions vent and treat child abuse and neglect. A properly constituted authority may § 1340.1 Purpose and scope. include a legally mandated, public or (a) This part implements the Child private child protective agency, or the Abuse Prevention and Treatment Act police, the juvenile court or any agen- (‘‘Act’’). As authorized by the Act, the cy thereof. National Center on Child Abuse and (b) Act means the Child Abuse Pre- Neglect seeks to assist agencies and or- vention and Treatment Act, 42 U.S.C. ganizations at the national, State and 5101, et seq. community levels in their efforts to (c) Center means the National Center improve and expand child abuse and ne- on Child Abuse and Neglect established glect prevention and treatment activi- by the Secretary under the Act to ad- ties. minister this program. (b) The National Center on Child (d) Child abuse and neglect means the Abuse and Neglect seeks to meet these physical or mental injury, sexual abuse goals through: or exploitation, negligent treatment, (1) Conducting activities directly (by or maltreatment of a child under the the Center); age of eighteen, or the age specified by (2) Making grants to States to im- the child protection law of the State, prove and expand their child abuse and by a person including any employee of
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a residential facility or any staff per- State option, any other settings in son providing out of home care who is which children are provided care. responsible for the child’s welfare (e) Commissioner means the Commis- under circumstances indicating harm sioner of the Administration for Chil- or threatened harm to the child’s dren, Youth and Families of the De- health or welfare. The term encom- partment of Health and Human Serv- passes both acts and omissions on the ices. part of a responsible person. (f) Grants includes grants and cooper- (1) The term sexual abuse includes the ative agreements. following activities under cir- (g) Secretary means the Secretary of cumstances which indicate that the Health and Human Services, or other child’s health or welfare is harmed or HHS official or employee to whom the threatened with harm: The employ- Secretary has delegated the authority ment, use, persuasion, inducement, en- specified in this part. ticement, or coercion of any child to (h) State means each of the several engage in, or having a child assist any States, the District of Columbia, the other person to engage in, any sexually Commonwealth of Puerto Rico, the explicit conduct (or any simulation of Virgin Islands, Guam, American such conduct) for the purpose of pro- Samoa, the Commonwealth of the ducing any visual depiction of such Northern Mariana Islands, and the conduct; or the rape, molestation, pros- Trust Territory of the Pacific Islands. titution, or other form of sexual exploi- tation of children, or incest with chil- [48 FR 3702, Jan. 26, 1983, as amended at 52 dren. With respect to the definition of FR 3994, Feb. 6, 1987; 55 FR 27639, July 5, 1990] sexual abuse, the term ‘‘child’’ or ‘‘children’’ means any individual who § 1340.3 Applicability of Department- has not attained the age of eighteen. wide regulations. (2)(i) ‘‘Negligent treatment or mal- (a) The following HHS regulations treatment’’ includes failure to provide are applicable to all grants made under adequate food, clothing, shelter, or this part: medical care. (ii) Nothing in this part should be 45 CFR Part 16—Procedures of the Depart- construed as requiring or prohibiting a mental Grant Appeals Board. finding of negligent treatment or mal- 45 CFR Part 46—Protection of human sub- jects treatment when a parent practicing his 45 CFR Part 74—Administration of grants or her religious beliefs does not, for 45 CFR Part 75—Informal grant appeals pro- that reason alone, provide medical cedures treatment for a child; provided, how- 45 CFR Part 80—Nondiscrimination under ever, that if such a finding is prohib- programs receiving Federal assistance ited, the prohibition shall not limit the through the Department of Health and administrative or judicial authority of Human Services—effectuation of title VI of the State to ensure that medical serv- the Civil Rights Act of 1964 ices are provided to the child when his 45 CFR Part 81—Practice and procedure for health requires it. hearings under part 80 (3) Threatened harm to a child’s health 45 CFR Part 84—Nondiscrimination on the or welfare means a substantial risk of basis of handicap in programs and activi- harm to the child’s health or welfare. ties receiving or benefiting from Federal financial assistance. (4) A person responsible for a child’s welfare includes the child’s parent, (b) The following regulations are ap- guardian, foster parent, an employee of plicable to all contracts awarded under a public or private residential home or this part: facility or other person legally respon- 48 CFR Chapter 1—Federal Acquisi- sible under State law for the child’s tion Regulations. welfare in a residential setting, or any staff person providing out of home 48 CFR Chapter 3—Federal Acquisi- care. For purposes of this definition, tion Regulations—Department of out-of-home care means child day care, Health and Human Services. i.e., family day care, group day care, [48 FR 3702, Jan. 26, 1983, as amended at 52 and center-based day care; and, at FR 3995, Feb. 6, 1987]
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§ 1340.4 Coordination requirements. (b) Grant applications must include a All Federal agencies responsible for description of the activities presently programs related to child abuse and ne- conducted by the State and its polit- glect shall provide information as re- ical subdivisions in preventing and quired by the Commissioner to insure treating child abuse and neglect, the effective coordination of efforts. activities to be assisted under the grant, a statement of how the proposed Subpart B—Grants to States activities are expected to improve or expand child abuse prevention and § 1340.10 Purpose of this subpart. treatment programs in the State, and This subpart sets forth the require- other information required by the ments and procedures States must Commissioner in compliance with the meet in order to receive grants to de- paperwork reduction requirements of velop, strengthen, and carry out State 44 U.S.C. chapter 35 and any applicable child abuse and neglect prevention and directives issued by the Office of Man- treatment programs under section 107 agement and Budget. of the Act. (c) States shall provide with the [55 FR 27639, July 5, 1990] grant application a statement signed by the Governor that the State meets § 1340.11 Allocation of funds available. the requirements of the Act and of this (a) The Commissioner shall allocate subpart. This statement shall be in the the funds available for grants to States form and include the documentation for each fiscal year among the States required by the Commissioner. on the basis of the following formula: (1) An amount of $25,000 or such other § 1340.13 Approval of applications. amount as the Commissioner may de- (a) The Commissioner shall approve termine; plus an application for an award for funds (2) An additional amount bearing the under this subpart if he or she finds same ratio to the total amount made that: available for this purpose (reduced by (1) The State is qualified and has met the minimum amounts allocated to the all requirements of the Act and § 1340.14 States under paragraph (a)(1) of this of this part, except for the definitional section) as the number of children requirement of § 1340.14(a) with regard under the age of eighteen in each State to the definition of ‘‘sexual abuse’’ (see bears to the total number of children § 1340.2(d)(1)) and the definitional re- under eighteen in all the States. An- quirement of negligent treatment as it nual estimates of the number of chil- relates to the failure to provide ade- dren under the age of eighteen, pro- vided by the Bureau of the Census of quate medical care (see § 1340.2(d)(2)). the Department of Commerce, are used The State must include these two defi- in making this determination. nitional requirements in its definition (b) If a State has not qualified for as- of child abuse and neglect either by sistance under the Act and this subpart statute or regulation having the force prior to a date designated by the Com- and effect of law no later than the missioner in each fiscal year, the close of the second general legislative amount previously allocated to the session of the State legislature fol- State shall be allocated among the eli- lowing February 25, 1983; gible States. (2) Either by statute or regulation having the force and effect of law, the § 1340.12 Application process. State modifies its definition of ‘‘child (a) The Governor of the State may abuse and neglect’’ to provide that the submit an application or designate the phrase ‘‘person responsible for a child’s State office, agency, or organization welfare’’ includes an employee of a res- which may apply for assistance under idential facility or a staff person pro- this subpart. The State office, agency, viding out-of-home care no later than or organization need not be limited in the close of the first general legislative its mandate or activities to child abuse session of the State legislature which and neglect. convenes following February 6, 1987;
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(3) The funds are to be used to im- administrative procedure requiring prove and expand child abuse or ne- that when a report of known or sus- glect prevention or treatment pro- pected child abuse or neglect involves grams; and the acts or omissions of the agency, in- (4) The State is otherwise in compli- stitution, or facility to which the re- ance with these regulations. port would ordinarily be made, a dif- (b) At the time of an award under ferent properly constituted authority this subpart, the amount of funds not must receive and investigate the report obligated from an award made eighteen and take appropriate protective and or more months previously shall be corrective action. subtracted from the amount of funds (f) Emergency services. If an investiga- under the award, unless the Secretary tion of a report reveals that the re- determines that extraordinary reasons ported child or any other child under justify the failure to so obligate. the same care is in need of immediate [48 FR 3702, Jan. 26, 1983, as amended at 52 protection, the State must provide FR 3995, Feb. 6, 1987; 55 FR 27639, July 5, 1990] emergency services to protect the child’s health and welfare. These serv- § 1340.14 Eligibility requirements. ices may include emergency caretaker In order for a State to qualify for an or homemaker services; emergency award under this subpart, the State shelter care or medical services; review must meet the requirements of § 1340.15 by a multidisciplinary team; and, if ap- and satisfy each of the following re- propriate, criminal or civil court ac- quirements: tion to protect the child, to help the (a) State must satisfy each of the re- parents or guardians in their respon- quirements in section 107(b) of the Act. sibilities and, if necessary, to remove (b) Definition of Child Abuse and Ne- the child from a dangerous situation. glect. Wherever the requirements below (g) Guardian ad litem. In every case use the term ‘‘Child Abuse and Ne- involving an abused or neglected child glect’’ the State must define that term which results in a judicial proceeding, in accordance with § 1340.2. However, it the State must insure the appointment is not necessary to adopt language of a guardian ad litem or other indi- identical to that used in § 1340.2, as vidual whom the State recognizes as long as the definition used in the State fulfilling the same functions as a is the same in substance. guardian ad litem, to represent and (c) Reporting. The State must provide protect the rights and best interests of by statute that specified persons must the child. This requirement may be report and by statute or administrative satisfied: (1) By a statute mandating procedure that all other persons are the appointments; (2) by a statute per- permitted to report known and sus- mitting the appointments, accom- pected instances of child abuse and ne- panied by a statement from the Gov- glect to a child protective agency or ernor that the appointments are made other properly constituted authority. in every case; (3) in the absence of a (d) Investigations. The State must specific statute, by a formal opinion of provide for the prompt initiation of an the Attorney General that the appoint- appropriate investigation by a child ments are permitted, accompanied by a protective agency or other properly Governor’s statement that the appoint- constituted authority to substantiate ments are made in every case; or (4) by the accuracy of all reports of known or the State’s Uniform Court Rule man- suspected child abuse or neglect. This dating appointments in every case. investigation may include the use of However, the guardian ad litem shall reporting hotlines, contact with cen- not be the attorney responsible for pre- tral registers, field investigations and senting the evidence alleging child interviews, home visits, consultation abuse or neglect. with other agencies, medical examina- (h) Prevention and treatment services. tions, psychological and social evalua- The State must demonstrate that it tions, and reviews by multidisciplinary has throughout the State procedures teams. and services deal with child abuse and (e) Institutional child abuse and ne- neglect cases. These procedures and glect. The State must have a statute or services include the determination of
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social service and medical needs and (ix) A child named in the report or the provision of needed social and med- record alleged to have been abused or ical services. neglected or (as his/her representative) (i) Confidentiality. (1) The State must his/her guardian or guardian ad litem; provide by statute that all records con- (x) An appropriate State or local offi- cerning reports and reports of child cial responsible for administration of abuse and neglect are confidential and the child protective service or for over- that their unauthorized disclosure is a sight of the enabling or appropriating criminal offense. legislation, carrying out his or her offi- (2) If a State chooses to, it may au- cial functions; and thorize by statute disclosure to any or (xi) A person, agency, or organization all of the following persons and agen- engaged in a bonafide research or eval- cies, under limitations and procedures uation project, but without informa- the State determines: tion identifying individuals named in a report or record, unless having that in- (i) The agency (agencies) or organiza- formation open for review is essential tions (including its designated multi- to the research or evaluation, the ap- disciplinary case consultation team) propriate State official gives prior legally mandated by any Federal or written approval, and the child, State law to receive and investigate re- through his/her representative as cited ports of known and suspected child in paragraph (i) of this section, gives abuse and neglect; permission to release the information. (ii) A court, under terms identified in (3) If a State chooses, it may author- State statute; ize by statute disclosure to additional (iii) A grand jury; persons and agencies, as determined by (iv) A properly constituted authority the State, for the purpose of carrying (including its designated multidisci- out background and/or employment-re- plinary case consultation team) inves- lated screening of individuals who are tigating a report of known or suspected or may be engaged in specified cat- child abuse or neglect or providing egories of child related activities or services to a child or family which is employment. Any information dis- the subject of a report; closed for this purpose is subject to the (v) A physician who has before him or confidentiality requirements in para- her a child whom the physician reason- graph (i)(1) and may be subject to addi- ably suspects may be abused or ne- tional safeguards as determined by the glected; State. (vi) A person legally authorized to (4) Nothing in this section shall be place a child in protective custody interpreted to prevent the properly when the person has before him or her constituted authority from summa- a child whom he or she reasonably sus- rizing the outcome of an investigation pects may be abused or neglected and to the person or official who reported the person requires the information in the known or suspected instances of the report or record in order to deter- child abuse or neglect or to affect a mine whether to place the child in pro- State’s laws or procedures concerning tective custody; the confidentiality of its criminal (vii) An agency authorized by a prop- court or its criminal justice system. erly constituted authority to diagnose, (5) HHS and the Comptroller General care for, treat, or supervise a child who of the United States or any of their is the subject of a report or record of representatives shall have access to child abuse or neglect; records, as required under 45 CFR 74.24. (viii) A person about whom a report [48 FR 3702, Jan. 26, 1983, as amended at 50 has been made, with protection for the FR 14887, April 15, 1985; 52 FR 3995, Feb. 6, identity of any person reporting known 1987; 55 FR 27639, July 5, 1990] or suspected child abuse or neglect and any other person where the person or § 1340.15 Services and treatment for agency making the information avail- disabled infants. able finds that disclosure of the infor- (a) Purpose. The regulations in this mation would be likely to endanger the section implement certain provisions life or safety of such person; of the Act, including section 107(b)(10)
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governing the protection and care of should be consulted thoroughly in the disabled infants with life-threatening evaluation of any issue of medical ne- conditions. glect involving an infant older than (b) Definitions. (1) The term ‘‘medical one year of age who has been continu- neglect’’ means the failure to provide ously hospitalized since birth, who was adequate medical care in the context of born extremely prematurely, or who the definitions of ‘‘child abuse and ne- has a long-term disability. glect’’ in section 113 of the Act and (ii) The term ‘‘reasonable medical § 1340.2(d) of this part. The term ‘‘med- judgment’’ means a medical judgment ical neglect’’ includes, but is not lim- that would be made by a reasonably ited to, the withholding of medically prudent physician, knowledgeable indicated treatment from a disabled in- about the case and the treatment pos- fant with a life-threatening condition. (2) The term ‘‘withholding of medi- sibilities with respect to the medical cally indicated treatment’’ means the conditions involved. failure to respond to the infant’s life- (c) Eligibility requirements. (1) In addi- threatening conditions by providing tion to the other eligibility require- treatment (including appropriate nu- ments set forth in this part, to qualify trition, hydration, and medication) for a basic State grant under section which, in the treating physician’s (or 107(b) of the Act, a State must have physicians’) reasonable medical judg- programs, procedures, or both, in place ment, will be most likely to be effec- within the State’s child protective tive in ameliorating or correcting all service system for the purpose of re- such conditions, except that the term sponding to the reporting of medical does not include the failure to provide neglect, including instances of with- treatment (other than appropriate nu- holding of medically indicated treat- trition, hydration, or medication) to an ment from disabled infants with life- infant when, in the treating physi- threatening conditions. cian’s (or physicians’) reasonable med- (2) These programs and/or procedures ical judgment any of the following cir- must provide for: cumstances apply: (i) Coordination and consultation (i) The infant is chronically and irre- with individuals designated by and versibly comatose: within appropriate health care facili- (ii) The provision of such treatment would merely prolong dying, not be ef- ties; fective in ameliorating or correcting (ii) Prompt notification by individ- all of the infant’s life-threatening con- uals designated by and within appro- ditions, or otherwise be futile in terms priate health care facilities of cases of of the survival of the infant; or suspected medical neglect (including (iii) The provision of such treatment instances of the withholding of medi- would be virtually futile in terms of cally indicated treatment from dis- the survival of the infant and the abled infants with life-threatening con- treatment itself under such cir- ditions); and cumstances would be inhumane. (iii) The authority, under State law, (3) Following are definitions of terms for the State child protective service used in paragraph (b)(2) of this section: system to pursue any legal remedies, (i) The term ‘‘infant’’ means an in- including the authority to initiate fant less than one year of age. The ref- legal proceedings in a court of com- erence to less than one year of age petent jurisdiction, as may be nec- shall not be construed to imply that essary to prevent the withholding of treatment should be changed or discon- medically indicated treatment from tinued when an infant reaches one year disabled infants with life-threatening of age, or to affect or limit any exist- conditions. ing protections available under State laws regarding medical neglect of chil- (3) The programs and/or procedures dren over one year of age. In addition must specify that the child protective to their applicability to infants less services system will prompty contact than one year of age, the standards set each health care facility to obtain the forth in paragraph (b)(2) of this section name, title, and telephone number of
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the individual(s) designated by such fa- withholding of medically indicated cility for the purpose of the coordina- treatment from disabled infants with tion, consultation, and notification ac- life-threatening conditions: tivities identified in paragraph (c)(2) of (ii) Documentation that the State this section, and will at least annually has authority, under State law, for the recontact each health care facility to State child protective service system obtain any changes in the designations. to pursue any legal remedies, including (4) These programs and/or procedures the authority to inititate legal pro- must be in writing and must conform ceedings in a court of competent juris- with the requirements of section 107(b) of the Act and § 1340.14 of this part. In diction, as may be necessary to prevent connection with the requirement of the withholding of medically indicated conformity with the requirements of treatment from disabled infants with section 107(b) of the Act and § 1340.14 of life-threatening conditions. This docu- this part, the programs and/or proce- mentation shall consist of: dures must specify the procedures the (A) A copy of the applicable provi- child protective services system will sions of State statute(s); or follow to obtain, in a manner con- (B) A copy of the applicable provi- sistent with State law: sions of State rules or regulations, (i) Access to medical records and/or along with a copy of the State statu- other pertinent information when such tory provisions that provide the au- access is necessary to assure an appro- thority for such rules or regulations; or priate investigation of a report of med- (C) A copy of an official, numbered ical neglect (including instances of opinion of the Attorney General of the withholding of medically indicated State that so provides, along with a treatment from disabled infants with copy of the applicable provisions of the life threatening conditions); and (ii) A court order for an independent State statute that provides a basis for medical examination of the infant, or the opinion, and a certification that otherwise effect such an examination the official opinion has been distrib- in accordance with processes estab- uted to interested parties within the lished under State law, when necessary State, at least including all hospitals; to assure an appropriate resolution of a and report of medical neglect (including in- (iii) Such other information and doc- stances of withholding of medically in- umentation as the Commissioner may dicated treatment from disabled in- require. fants with life threatening conditions). (e) Regulatory construction. (1) No pro- (5) The eligibility requirements con- vision of this section or part shall be tained in this section shall be effective construed to affect any right, protec- October 9, 1985. tion, procedures, or requirement under (d) Documenting eligibility. (1) In addi- 45 CFR Part 84, Nondiscrimination in tion to the information and docu- the Basis of Handicap in Programs and mentation required by and pursuant to Activities Receiving or Benefiting from § 1340.12 (b) and (c), each State must Federal Financial Assistance. submit with its application for a basic (2) No provision of this section or State grant sufficient information and part may be so construed as to author- documentation to permit the Commis- sioner to find that the State is in com- ize the Secretary or any other govern- pliance with the eligibility require- mental entity to establish standards ments set forth in paragraph (c) of this prescribing specific medical treatments section. for specific conditions, except to the (2) This information and documenta- extent that such standards are author- tion shall include: ized by other laws or regulations. (i) A copy of the written programs (Approved by the Office of Management and and/or procedures established by, and Budget under control number 0980–0165) followed within, the State for the pur- pose of responding to the reporting of [50 FR 14887, April 15, 1985, as amended at 52 medical neglect, including instances of FR 3995, Feb. 6, 1987; 55 FR 27639, July 5, 1990]
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Subpart C—Discretionary Grants proposed use of the word ‘‘imminent’’ to de- scribe the proximity in time at which death and Contracts is anticipated regardless of treatment in re- lation to circumstances under which treat- § 1340.20 Confidentiality. ment (other than appropriate nutrition, hy- All projects and programs supported dration and medication) need not be pro- under the Act must hold all informa- vided. A letter from the six principal spon- tion related to personal facts or cir- sors of the ‘‘compromise amendment’’ which became the pertinent provisions of the Child cumstances about individuals involved Abuse Amendments of 1984 urged deletion of in those projects or programs confiden- ‘‘imminent’’ and careful consideration of the tial and shall not disclose any of the other concerns expressed. information in other than summary, After consideration of these recommenda- statistical, or other form which does tions, the Department decided not to adopt not identify specific individuals, except these several proposed clarifying definitions in accordance with § 1340.14(i). as part of the final rule. It was also decided that effective implementation of the pro- gram established by the Child Abuse Amend- APPENDIX TO PART 1340—INTERPRETA- ments would be advanced by the Department TIVE GUIDELINES REGARDING 45 CFR stating its interpretations of several key 1340.15—SERVICES AND TREATMENT terms in the statutory definition. This is the FOR DISABLED INFANTS purpose of this appendix. The interpretative guidelines that follow EXPLANATORY NOTE: The interpretative have carefully considered comments sub- guidelines which follow were based on the mitted during the comment period on the proposed rule (49 FR 48160, December 10, 1984) proposed rule. These guidelines are set forth and were published with the final rule on and explained without the use of specific di- April 15, 1985 (50 FR 14878). References to the agnostic exmples to elaborate on meaning. ‘‘proposed rule’’ and ‘‘final rule’’ in these Finally, by way of introduction, the De- guidelines refer to these actions. partment does not seek to establish these in- Since that time, the Child Abuse Preven- terpretative guidelines as binding rules of tion and Treatment Act was revised, reorga- law, nor to prejudge the exercise of reason- nized, and reauthorized by Public Law 100– able medical judgment in responding to spe- 294 (April 25, 1988) and renumbered by Pub. L. cific circumstances. Rather, this guidance is 101–126 (October 25, 1989). Accordingly, the intended to assist in interpreting the statu- definitions formerly in section 3 of the Act tory definition so that it may be rationally are now found in section 113; the State eligi- and thoughtfully applied in specific contexts bility requirements formerly in section 4 of in a manner fully consistent with the legisla- the Act are now found in section 107; and ref- tive intent. erences to the ‘‘final rule’’ mean references 1. In general: The statutory definition of to § 1340.15 of this part. ‘‘withholding of medically indicated treatment.’’ This appendix sets forth the Department’s Section 1340.15(b)(2) of the final rule de- interpretative guidelines regarding several fines the term ‘‘withholding of medically in- terms that appear in the definition of the dicated treatment’’ with a definition iden- term ‘‘withholding of medically indicated tical to that which appears in section 3(3) of treatment’’ in section 3(3) of the Child Abuse the Act (as amended by section 121(3) of the Prevention and Treatment Act, as amended Child Abuse Amendments of 1984). by section 121(3) of the Child Abuse Amend- This definition has several main features. ments of 1984. This statutory definition is re- First, it establishes the basic principle that peated in § 1340.15(b)(2) of the final rule. all disabled infants with life-threatening The Department’s proposed rule to imple- conditions must be given medically indi- ment those provisions of the Child Abuse cated treatment, defined in terms of action Amendments of 1984 relating to services and to respond to the infant’s life-threatening treatment for disabled infants included a conditions by providing treatment (including number of proposed clarifying definitions of appropriate nutrition, hydration or medica- several terms used in the statutory defini- tion) which, in the treating physician’s (or tion. The preamble to the proposed rule ex- physicians’) reasonable medical judgment, plained these proposed clarifying definitions, will be most likely to be effective in amelio- and in some cases used examples of specific rating or correcting all such conditions. diagnoses to elaborate on meaning. Second, the statutory definition spells out During the comment period on the pro- three circumstances under which treatment posed rule, many commenters urged deletion is not considered ‘‘medically indicated.’’ of these clarifying definitions and avoidance These are when, in the treating physician’s of examples of specific diagnoses. Many com- (or physicians’) reasonable medical judg- menters also objected to the specific wording ment: of some of the proposed clarifying defini- —The infant is chronically and irreversibly tions, particularly in connection with the comatose:
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—The provision of such treatment would itself be life-threatening, but where the con- merely prolong dying, not be effective in dition significantly increases the risk of the ameliorating or correcting all of the in- onset of complications that may threaten fant’s life-threatening conditions, or other- the life of the infant. If medically indicated wise be futile in terms of survival of the in- treatment is available for such a condition, fant; or the failure to provide it may result in the —The provision of such treatment would be onset of complications that, by the time the virtually futile in terms of survival of the condition becomes life-threatening in the infant and the treatment itself under such strictest sense, will eliminate or reduce the circumstances would be inhumane. potential effectiveness of any treatment. The third key feature of the statutory defi- Such a result cannot, in the Department’s nition is that even when one of these three view, be squared with the Congressional in- circumstances is present, and thus the fail- tent. ure to provide treatment is not a ‘‘with- Thus, the Department interprets the term holding of medically indicated treatment,’’ ‘‘life-threatening condition’’ to include a the infant must nonetheless be provided with condition that, in the treating physician’s or appropriate nutrition, hydration, and medi- physicians’ reasonable medical judgment, cation. significantly increases the risk of the onset Fourth, the definition’s focus on the poten- of complications that may threaten the life tial effectiveness of treatment in amelio- of the infant. rating or correcting life-threatening condi- In response to comments that the proposed tions makes clear that it does not sanction rule’s definition was potentially overinclu- decisions based on subjective opinions about sive by covering any condition that one the future ‘‘quality of life’’ of a retarded or could argue ‘‘may’’ become life-threatening, disabled person. the Department notes that the statutory The fifth main feature of the statutory def- standard of ‘‘the treating physician’s or phy- inition is that its operation turns substan- sicians’ reasonable medical judgment’’ is in- tially on the ‘‘reasonable medical judgment’’ corporated in the Department’s interpreta- of the treating physician or physicians. The tion, and is fully applicable. term ‘‘reasonable medical judgment’’ is de- Other commenters suggested that this in- fined in § 1340.15(b)(3)(ii) of the final rule, as terpretation would bring under the scope of it was in the Conference Committee Report the definition many irreversible conditions on the Act, as a medical judgment that for which no corrective treatment is avail- would be made by a reasonably prudent phy- able. This is certainly not the intent. The sician, knowledgeable about the case and the Department’s interpretation implies nothing treatment possibilities with respect to the about whether, or what, treatment should be medical conditions involved. provided. It simply makes clear that the cri- The Department’s interpretations of key teria set forth in the statutory definition for terms in the statutory definition are fully evaluating whether, or what, treatment consistent with these basic principles re- should be provided are applicable. That is flected in the definition. The discussion that just the start, not the end, of the analysis. follows is organized under headings that gen- The analysis then takes fully into account erally correspond to the proposed clarifying the reasonable medical judgment regarding definitions that appeared in the proposed potential effectiveness of possible treat- rule but were not adopted in the final rule. ments, and the like. The discussion also attempts to analyze and Other comments were that it is unneces- respond to significant comments received by sary to state any interpretation because rea- the Department. sonable medical judgment commonly deems 2. The term ‘‘life-threatening condition’’. the conditions described as life-threatening Clause (b)(3)(ii) of the proposed rule pro- and responds accordingly. HHS agrees that posed a definition of the term ‘‘life-threat- this is common practice followed under rea- ening condition.’’ This term is used in the sonable medical judgment, just as all the statutory definition in the following context: standards incorporated in the statutory defi- [T]he term ‘‘withholding of medically indi- nition reflect common practice followed cated treatment’’ means the failure to re- under reasonable medical judgment. For the spond to the infant’s life-threatening condi- reasons stated above, however, the Depart- tions by providing treatment (including ap- ment believes it is useful to say so in these propriate nutrition, hydration, and medica- interpretative guidelines. tion) which, in the treating physician’s or 3. The term ‘‘treatment’’ in the context of ade- physicians’ reasonable medical judgment, quate evaluation. will be most likely to be effective in amelio- Clause (b)(3)(ii) of the proposed rule pro- rating or correcting all such conditions [, ex- posed a definition of the term ‘‘treatment.’’ cept that] * * *. [Emphasis supplied]. Two separate concepts were dealt with in It appears to the Department that the ap- clause (A) and (B), respectively, of the pro- plicability of the statutory definition might posed rule. Both of these clauses were de- be uncertain to some people in cases where a signed to ensure that the Congressional in- condition may not, strictly speaking, by tent regarding the issues to be considered
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under the analysis set forth in the statutory further evaluations or consultations that, in definition is fully effectuated. Like the guid- the treating physician’s reasonable medical ance regarding ‘‘life-threatening condition,’’ judgment, are necessary to assure that deci- discussed above, the Department’s interpre- sions regarding medical intervention are tations go to the applicability of the statu- based on adequate knowledge about the case tory analysis, not its result. and the treatment possibilities involved con- The Department believes that Congress in- stitutes a ‘‘withholding of medically indi- tended that the standard of following reason- cated treatment.’’ Thus, if parents refuse to able medical judgment regarding the poten- consent to such a recommendation that is tial effectiveness of possible courses of ac- based on the treating physician’s reasonable tion should apply to issues regarding ade- medical judgment that, for example, further quate medical evaluation, just as it does to evaluation by a specialist is necessary to issues regarding adequate medical interven- permit reasonable medical judgments to be tion. This is apparent Congressional intent made regarding medical intervention, this because Congress adopted, in the Conference would be a matter for appropriate action by Report’s definition of ‘‘reasonable medical the child protective services system. judgment,’’ the standard of adequate knowl- In response to comments regarding the re- edge about the case and the treatment possi- lated provision in the proposed rule, this in- bilities with respect to the medical condition terpretative guideline makes quite clear involved. that this interpretation does not deviate Having adequate knowledge about the case from the basic principle of reliance on rea- and the treatment possibilities involved is, sonable medical judgment to determine the in effect, step one of the process, because extent of the evaluations necessary in the that is the basis on which ‘‘reasonable med- particular case. Commenters expressed con- ical judgment’’ will operate to make rec- cerns that the provision in the proposed rule ommendations regarding medical interven- would intimidate physicians to seek transfer tion. Thus, part of the process to determine of seriously ill infants to tertiary level fa- what treatment, if any, ‘‘will be most likely cilities much more often than necessary, po- to be effective in ameliorating or cor- recting’’ all life-threatening conditions is for tentially resulting in diversion of the lim- the treating physician or physicians to make ited capacities of these facilities away from sure they have adequate information about those with real needs for the specialized the condition and adequate knowledge about care, unnecessary separation of infants from treatment possibilities with respect to the their parents when equally beneficial treat- condition involved. The standard for deter- ment could have been provided at the com- mining the adequacy of the information and munity or regional hospital, inappropriate knowledge is the same as the basic standard deferral of therapy while time-consuming ar- of the statutory definition: reasonable med- rangements can be affected, and other coun- ical judgment. A reasonably prudent physi- terproductive ramifications. The Depart- cian faced with a particular condition about ment intended no intimidation, prescription which he or she needs additional information or similar influence on reasonable medical and knowledge of treatment possibilities judgment, but rather, intended only to af- would take steps to gain more information firm that it is the Department’s interpreta- and knowledge by, quite simply, seeking fur- tion that the reasonable medical judgment ther evaluation by, or consultation with, a standard applies to issues of medical evalua- physician or physicians whose expertise is tion, as well as issues of medical interven- appropriate to the condition(s) involved or tion. further evaluation at a facility with special- 4. The term ‘‘treatment’’ in the context of mul- ized capabilities regarding the conditions(s) tiple treatments. involved. Clause (b)(3)(iii)(B) of the proposed rule Thus, the Department interprets the term was designed to clarify that, in evaluating ‘‘treatment’’ to include (but not be limited the potential effectiveness of a particular to) any further evaluation by, or consulta- medical treatment or surgical procedure tion with, a physician or physicians whose that can only be reasonably evaluated in the expertise is appropriate to the condition(s) context of a complete potential treatment involved or further evaluation at a facility plan, the ‘‘treatment’’ to be evaluated under with specialized capabilities regarding the the standards of the statutory definition in- condition(s) involved that, in the treating cludes the multiple medical treatments and/ physician’s or physicians’ reasonable med- or surgical procedures over a period of time ical judgment, is needed to assure that deci- that are designed to ameliorate or correct a sions regarding medical intervention are life-threatening condition or conditions. based on adequate knowledge about the case Some commenters stated that it could be and the treatment possibilities with respect construed to require the carrying out of a to the medical conditions involved. long process of medical treatments or sur- This reflects the Department’s interpreta- gical procedures regardless of the lack of tion that failure to respond to an infant’s success of those done first. No such meaning life-threatening conditions by obtaining any is intended.
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The intent is simply to characterize that six principal sponsors of the compromise which must be evaluated under the standards amendment also strongly urged deletion of of the statutory definition, not to imply any- the word ‘‘imminent.’’ thing about the results of the evaluation. If The Department’s use of the term ‘‘immi- parents refuse consent for a particular med- nent’’ in the proposed rule was not intended ical treatment or surgical procedure that by to convey a meaning not fully consonant itself may not correct or ameliorate all life- with the statute. Rather, the Department in- threatening conditions, but is recommended tended that the word ‘‘imminent’’ would be as part of a total plan that involves multiple applied in the context of the condition in- medical treatments and/or surgical proce- volved, and in such a context, it would not dures over a period of time that, in the treat- be understood to specify a particular number ing physician’s reasonable medical judg- of days. As noted in the preamble to the pro- ment, will be most likely to be effective in posed rule, this clarification was proposed to ameliorating or correcting all such condi- make clear that the ‘‘merely prolong dying’’ tions, that would be a matter for appropriate clause of the statutory definition would not action by the child protective services sys- be applicable to situations where treatment tem. On the other hand, if, in the treating phy- will not totally correct a medical condition sician’s reasonable medical judgment, the but will give a patient many years of life. total plan will, for example, be virtually fu- The Department continues to hold to this tile and inhumane, within the meaning of view. the statutory term, then there is no ‘‘with- To eliminate the type of misunderstanding holding of medically indicated treatment.’’ evidenced in the comments, and to assure Similarly, if a treatment plan is commenced consistency with the statutory definition, on the basis of a reasonable medical judg- the word ‘‘imminent’’ is not being adopted ment that there is a good chance that it will for purposes of these interpretative guide- be effective, but due to a lack of success, un- lines. favorable complications, or other factors, it The Department interprets the term becomes the treating physician’s reasonable ‘‘merely prolong dying’’ as referring to situa- medical judgment that further treatment in tions where the prognosis is for death and, in accord with the prospective treatment plan, the treating physician’s (or physicians’) rea- or alternative treatment, would be futile, sonable medical judgment, further or alter- then the failure to provide that treatment native treatment would not alter the prog- would not constitute a ‘‘withholding of medi- nosis in an extension of time that would not cally indicated treatment.’’ This analysis render the treatment futile. does not divert from the reasonable medical Thus, the Department continues to inter- judgment standard of the statutory defini- pret Congressional intent as not permitting tion; it simply makes clear the Department’s the ‘‘merely prolong dying’’ provision to interpretation that the failure to evaluate apply where many years of life will result the potential effectiveness of a treatment from the provision of treatment, or where plan as a whole would be inconsistent with the prognosis is not for death in the near fu- the legislative intent. ture, but rather the more distant future. The Thus, the Department interprets the term Department also wants to make clear it does ‘‘treatment’’ to include (but not be limited not intend the connotations many com- to) multiple medical treatments and/or sur- menters associated with the word ‘‘immi- gical procedures over a period of time that nent.’’ In addition, contrary to the impres- are designed to ameliorate or correct a life- sion some commenters appeared to have re- threatening condition or conditions. garding the proposed rule, the Department’s 5. The term ‘‘merely prolong dying.’’ Clause (b)(3)(v) of the proposed rule pro- interpretation is that reasonable medical posed a definition of the term ‘‘merely pro- judgments will be formed on the basis of long dying,’’ which appears in the statutory knowledge about the condition(s) involved, definition. The proposed rule’s provision the degree of inevitability of death, the prob- stated that this term ‘‘refers to situations able effect of any potential treatments, the where death is imminent and treatment will projected time period within which death do no more than postpone the act of dying.’’ will probably occur, and other pertinent fac- Many commenters argued that the incor- tors. poration of the word ‘‘imminent,’’ and its 6. The term ‘‘not be effective in ameliorating connotation of immediacy, appeared to devi- or correcting all of the infant’s life threatening ate from the Congressional intent, as devel- conditions’’ in the context of a future life- oped in the course of the lengthy legislative threatening condition. negotiations, that reasonable medical judg- Clause (b)(3)(vi) of the proposed rule pro- ments can and do result in nontreatment de- posed a definition of the term ‘‘not be effec- cisions regarding some conditions for which tive in ameliorating or correcting all the in- treatment will do no more than temporarily fant’s life-threatening conditions’’ used in postpone a death that will occur in the near the statutory definition of ‘‘withholding of future, but not necessarily within days. The medically indicated treatment.’’
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The basic point made by the use of this connection with the term ‘‘merely prolong term in the statutory definition was ex- dying,’’ the statutory definition provides plained in the Conference Committee Report: that it is for reasonable medical judgment, Under the definition, if a disabled infant applied to the specific condition and cir- suffers more than one life-threatening condi- cumstances involved, to determine whether tion and, in the treating physician’s or phy- the prognosis of death, because of its near- sicians’ reasonable medical judgment, there ness in time, is such that treatment would is no effective treatment for one of those not be medically indicated. conditions, then the infant is not covered by 7. The term ‘‘not be effective in ameliorating the terms of the amendment (except with re- or correcting all life-threatening conditions’’ in spect to appropriate nutrition, hydration, the context of palliative treatment. and medication) concerning the withholding of medically indicated treatment. Clause (b)(3)(iv)(B) of the proposed rule proposed to define the term ‘‘not be effective H. Conf. Rep. No. 1038, 98th Cong., 2d Sess. 41 in ameliorating or correcting all life-threat- (1984). ening conditions’’ in the context where the This clause of the proposed rule dealt with issue is not life-saving treatment, but rather the application of this concept in two con- palliative treatment to make a condition texts: First, when the nontreatable condition will not become life-threatening in the near more tolerable. An example of this situation future, and second, when humaneness makes is where an infant has more than one life- palliative treatment medically indicated. threatening condition, at least one of which With respect to the context of a future life- is not treatable and will cause death in the threatening condition, it is the Department’s near future. Palliative treatment is avail- interpretation that the term ‘‘not be effec- able, however, that will, in the treating phy- tive in ameliorating or correcting all of the sician’s reasonable medical judgment, re- infant’s life-threatening conditions’’ does lieve severe pain associated with one of the not permit the withholding of treatment on conditions. If it is the treating physician’s the grounds that one or more of the infant’s reasonable medical judgment that this pal- life-threatening conditions, although not liative treatment will ameliorate the in- life-threatening in the near future, will be- fant’s overall condition, taking all individual come life-threatening in the more distant fu- conditions into account, even though it ture. would not ameliorate or correct each condi- This clarification can be restated in the tion, then this palliative treatment is medi- terms of the Conference Committee Report cally indicated. Simply put, in the context of excerpt, quoted just above, with the ameliorative treatment that will make a italicized words indicating the clarification, condition more tolerable, the term ‘‘not be as follows: Under the definition, if a disabled effective in ameliorating or correcting all infant suffers from more than one life- life-threatening conditions’’ should not be threatening condition and, in the treating construed as meaning each and every condi- physician’s or physicians’ reasonable med- tion, but rather as referring to the infant’s ical judgment, there is no effective treat- overall condition. ment for one of these conditions that threat- HHS believes Congress did not intend to ens the life of the infant in the near future, exclude humane treatment of this kind from then the infant is not covered by the terms the scope of ‘‘medically indicated treat- of the amendment (except with respect to ap- ment.’’ The Conference Committee Report propriate nutrition, hyrdation, and medica- specifically recognized that ‘‘it is appro- tion) concerning the withholding of medi- priate for a physician, in the exercise of rea- cally indicated treatment; but if the nontreat- sonable medical judgment, to consider that able condition will not become life-threatening until the more distant future, the infant is cov- factor [humaneness] in selecting among ef- ered by the terms of the amendment. fective treatments.’’ H. Conf. Rep. No. 1038, Thus, this interpretative guideline is sim- 98th Cong., 2d Sess. 41 (1984). In addition, the ply a corollary to the Department’s interpre- articulation in the statutory definition of tation of ‘‘merely prolong dying,’’ stated circumstances in which treatment need not above, and is based on the same under- be provided specifically states that ‘‘appro- standing of Congressional intent, indicated priate nutrition, hydration, and medication’’ above, that if a condition will not become must nonetheless be provided. The inclusion life-threatening until the more distant fu- in this proviso of medication, one (but not ture, it should not be the basis for with- the only) potential palliative treatment to holding treatment. relieve severe pain, corroborates the Depart- Also for the same reasons explained above, ment’s interpretation that such palliative the word ‘‘imminent’’ that appeared in the treatment that will ameliorate the infant’s proposed definition is not adopted for pur- overall condition, and that in the exercise of poses of this interpretative guideline. The reasonable medical judgment is humane and Department makes no effort to draw an medically indicated, was not intended by exact line to separate ‘‘near future’’ from Congress to be outside the scope of the statu- ‘‘more distant future.’’ As noted above in tory definition.
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Thus, it is the Department’s interpretation ization of likelihood that corresponds to the that the term ‘‘not be effective in amelio- statutory word ‘‘virtually.’’ For the reasons rating or correcting all of the infant’s life- explained in the discussion of ‘‘merely pro- threatening conditions’’ does not permit the long dying,’’ the word ‘‘imminent’’ that was withholding of ameliorative treatment that, used in the proposed rule has not been adopt- in the treating physician’s or physicians’ ed for purposes of this interpretative guide- reasonable medical judgment, will make a line. condition more tolerable, such as providing Some commenters expressed concern re- palliative treatment to relieve severe pain, garding the words ‘‘highly unlikely,’’ on the even if the overall prognosis, taking all con- grounds that such certitude is often medi- ditions into account, is that the infant will cally impossible. Other commenters urged not survive. that a distinction should be made between A number of commenters expressed con- generally utilized treatments and experi- cerns about some of the examples contained mental treatments. The Department does in the preamble of the proposed rule that dis- not believe any special clarifications are cussed the proposed definition relating to needed to respond to these comments. The this point, and stated that, depending on basic standard of reasonable medical judg- medical complications, exact prognosis, rela- ment applies to the term ‘‘virtually futile.’’ tionships to other conditions, and other fac- The Department’s interpretation does not tors, the treatment suggested in the exam- suggest an impossible or unrealistic standard ples might not necessarily be the treatment of certitude for any medical judgment. Rath- that reasonable medical judgment would de- er, the standard adopted in the law is that cide would be most likely to be effective. In there be a ‘‘reasonable medical judgment.’’ response to these comments, specific diag- Similarly, reasonable medical judgment is nostic examples have not been included in the standard for evaluating potential treat- this discussion, and this interpretative ment possibilities on the basis of the actual guideline makes clear that the ‘‘reasonable circumstances of the case. HHS does not be- medical judgment’’ standard applies on this lieve it would be helpful to try to establish point as well. distinctions based on characterizations of Other commenters argued that an interpre- the degree of general usage, extent of vali- tative guideline on this point is unnecessary dated efficacy data, or other similar factors. because reasonable medical judgment would The factors considered in the exercise of rea- commonly provide ameliorative or palliative sonable medical judgment, including any treatment in the circumstances described. factors relating to human subjects experi- The Department agrees that such treatment mentation standards, are not disturbed. is common in the exercise of resaonable med- 9. The term ‘‘the treatment itself under such ical judgment, but believes it useful, for the circumstances would be inhumane.’’ reasons stated, to provide this interpretative Clause (b)(3)(viii) of the proposed rule pro- guidance. posed a definition of the term ‘‘the treat- 8. The term ‘‘virtually futile’’. ment itself under such circumstances would Clause (b)(3)(vii) of the proposed rule pro- be inhumane,’’ that appears in the statutory posed a definition of the term ‘‘virtually fu- definition. The context of this term in the tile’’ contained in the statutory definition. statutory definition is that it is not a ‘‘with- The context of this term in the statutory holding of medically indicated treatment’’ to definition is: withhold treatment (other than appropriate [T]he term ‘‘withholding of medically indi- nutrition, hydration, or medication) when, cated treatment’’ * * * does not include in the treating physician’s reasonable med- the failure to provide treatment (other than ical judgment, ‘‘the provision of such treat- appropriate nutrition, hydration, or medica- ment would be virtually futile in terms of tion) to an infant when, in the treating phy- the survival of the infant and the treatment sician’s or physicians’ reasonable medical itself under such circumstances would be in- judgment, * * * the provision of such treat- humane.’’ § 3(3)(C) of the Act. ment would be virtually futile in terms of the The Department interprets the term ‘‘the survival of the infant and the treatment treatment itself under such circumstances itself under such circumstances would be in- would be inhumane’’ to mean the treatment humane. Section 3(3)(C) of the Act [emphasis itself involves significant medical contra- supplied]. indications and/or significant pain and suf- The Department interprets the term ‘‘vir- fering for the infant that clearly outweigh tually futile’’ to mean that the treatment is the very slight potential benefit of the treat- highly unlikely to prevent death in the near ment for an infant highly unlikely to sur- future. vive. (The Department further notes that the This interpretation is similar to those of- use of the term ‘‘inhumane’’ in this context fered in connection with ‘‘merely prolong is not intended to suggest that consideration dying’’ and ‘‘not be effective in ameliorating of the humaneness of a particular treatment or correcting all life-threatening conditions’’ is not legitimate in any other context; rath- in the context of a future life-threatening er, it is recognized that it is appropriate for condition, with the addition of a character- a physician, in the exercise of reasonable
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medical judgment, to consider that factor in of the term ‘‘inhumane’’ in the statute was selecting among effective treatments.) not intended to suggest that consideration of Other clauses of the statutory definition the humaneness of a particular treatment is focus on the expected result of the possible not legitimate in any other context. The De- treatment. This provision of the statutory partment has adopted this statement as part definition adds a consideration relating to of its interpretative guideline. the process of possible treatment. It recog- 10. Other terms. nizes that in the exercise of reasonable med- Some comments suggested that the De- ical judgment, there are situations where, al- partment clarify other terms used in the though there is some slight chance that the statutory definition of ‘‘withholding of medi- treatment will be beneficial to the patient cally-‘indicated treatment,’’ such as the (the potential treatment is considered vir- term ‘‘appropriate nutrition, hydration or tually futile, rather than futile), the poten- medication’’ in the context of treatment tial benefit is so outweighed by negative fac- that may not be withheld, notwithstanding tors relating to the process of the treatment the existence of one of the circumstances itself that, under the circumstances, it would be inhumane to subject the patient to under which the failure to provide treatment the treatment. is not a ‘‘withholding of medically indicated The Department’s interpretation is de- treatment.’’ Some commenters stated, for signed to suggest the factors that should be example, that very potent pharmacologic taken into account in this difficult balance. agents, like other methods of medical inter- A number of commenters argued that the in- vention, can produce results accurately de- terpretation should permit, as part of the scribed as accomplishing no more than to evaluation of whether treatment would be merely prolong dying, or be futile in terms of inhumane, consideration of the infant’s fu- the survival of the infant, or the like, and ture ‘‘quality of life.’’ that, therefore, the Department should clar- The Department strongly believes such an in- ify that the proviso regarding ‘‘appropriate terpretation would be inconsistent with the stat- nutrition, hydration or medication’’ should ute. The statute specifies that the provision not be construed entirely independently of applies only where the treatment would be the circumstances under which other treat- ‘‘virtually futile in terms of the survival of ment need not be provided. the infant,’’ and the ‘‘treatment itself under The Department has not adopted an inter- such circumstances would be inhumane.’’ pretative guideline on this point because it (Emphasis supplied.) The balance is clearly appears none is necessary. As noted above in to be between the very slight chance that the discussion of palliative treatment, the treatment will allow the infant to survive Department recognizes that there is no abso- and the negative factors relating to the proc- lutely clear line between medication and ess of the treatment. These are the cir- treatment other than medication that would cumstances under which reasonable medical justify excluding the latter from the scope of judgment could decide that the treatment palliative treatment that reasonable medical itself would be inhumane. judgment would find medically indicated, Some commenters expressed concern about notwithstanding a very poor prognosis. the use of terms such as ‘‘clearly outweight’’ Similarly, the Department recognizes that in the description of this balance on the in some circumstances, certain pharmaco- grounds that such precision is impractical. logic agents, not medically indicated for pal- Other commenters argued that this interpre- liative purposes, might, in the exercise of tation could be construed to mandate useless reasonable medical judgment, also not be in- and painful treatment. The Department be- dicated for the purpose of correcting or ame- lieves there is no basis for these worries be- liorating any particular condition because cause ‘‘reasonable medical judgment’’ is the they will, for example, merely prolong dying. governing standard. The interpretative However, the Department believes the word guideline suggests nothing other than appli- ‘‘appropriate’’ in this proviso of the statu- cation of this standard. What the guideline tory definition is adequate to permit the ex- does is set forth the Department’s interpre- ercise of reasonable medical judgment in the tation that the statute directs the reason- scenario referred to by these commenters. able medical judgment to considerations re- At the same time, it should be clearly rec- lating to the slight chance of survival and ognized that the statute is completely un- the negative factors regarding the process of equivocal in requiring that all infants re- treatment and to the balance between them ceive ‘‘appropriate nutrition, hydration, and that would support a conclusion that the medication,’’ regardless of their condition or treatment itself would be inhumane. prognosis. Other commenters suggested adoption of a statement contained in the Conference Com- [50 FR 14889, Apr. 15, 1985, as amended at 55 mittee Report that makes clear that the use FR 27640, July 5, 1990]
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PART 1351—RUNAWAY AND Subpart A—Definition of Terms HOMELESS YOUTH PROGRAM § 1351.1 Significant terms. Subpart A—Definition of Terms For the purposes of this part: (a) Aftercare services means the provi- Sec. sion of services to runaway or other- 1351.1 Significant terms. wise homeless youth and their families, following the youth’s return home or Subpart B—Runaway and Homeless Youth placement in alternative living ar- Program Grant rangements which assist in alleviating 1351.10 What is the purpose of the Runaway the problems that contributed to his or and Homeless Youth Program grant? her running away or being homeless. 1351.11 Who is eligible to apply for a Run- (b) Area means a specific neighbor- away and Homeless Youth Program hood or section of the locality in which grant? the runaway and homeless youth 1351.12 Who gets priority for the award of a project is or will be located. Runaway and Homeless Youth Program (c) Coordinated networks of agencies grant? means an association of two or more 1351.13 What are the Federal and non-Fed- private agencies, whose purpose is to eral match requirements under a Run- develop or strengthen services to run- away and Homeless Youth Program away or otherwise homeless youth and grant? their families. 1351.14 What is the period for which a grant (d) Counseling services means the pro- will be awarded? vision of guidance, support and advice 1351.15 What costs are supportable under a to runaway or otherwise homeless Runaway and Homeless Youth Program youth and their families designed to al- grant? leviate the problems which contributed 1351.16 What costs are not allowable under a to the youth’s running away or being Runaway and Homeless Youth Program homeless, resolve intrafamily prob- grant? lems, to reunite such youth with their 1351.17 How is application made for a Run- families, whenever appropriate, and to away and Homeless Youth Program grant? help them decide upon a future course 1351.18 What criteria has HHS established of action. for deciding which Runaway and Home- (e) Demonstrably frequented by or less Youth Program grant applications reachable means located in an area in to fund? which runaway or otherwise homeless 1351.19 What additional information should youth congregate or an area accessible an applicant or grantee have about a to such youth by public transportation Runaway and Homeless Youth Program or by the provision of transportation grant? by the runaway and homeless youth project itself. Subpart C—Additional Requirements (f) Homeless youth means a person under 18 years of age who is in need of 1351.20 What are the additional require- ments under a Runaway and Homeless services and without a place of shelter Youth Program grant? where he or she receives supervision and care. AUTHORITY: 42 U.S.C. 5701. (g) Juvenile justice system means agen- SOURCE: 43 FR 55635, Nov. 28, 1978, unless cies such as, but not limited to juvenile otherwise noted. courts, law enforcement, probation, pa- role, correctional institutions, training EDITORIAL NOTE: For nomenclature schools, and detention facilities. changes to this part see 54 FR 20854, May 15, (h) Law enforcement structure means 1989, and 55 FR 5601, Feb. 16, 1990. any police activity or agency with
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legal responsibility for enforcing a establish or strengthen existing or pro- criminal code including, police depart- posed community-based runaway and ments and sheriffs offices. homeless youth projects to provide (i) A locality is a unit of general gov- temporary shelter and care to runaway ernment—for example, a city, county, or otherwise homeless youth who are township, town, parish, village, or a in need of temporary shelter, coun- combination of such units. Federally seling and aftercare services. The De- recognized Indian tribes are eligible to partment is concerned about the in- apply for grants as local units of gov- creasing numbers of youth who leave, ernment. and stay away from, their homes with- (j) Runaway and homeless youth out permission of their families. There project means a locally controlled is also national concern about runaway human service program facility outside and homeless youth who have no re- the law enforcement structure and the sources, who live on the street, and juvenile justice system providing tem- who represent law enforcement prob- porary shelter, either directly or lems in the communities to which they through other facilities, counseling and run. The problems of runaway or other- aftercare services to runaway or other- wise homeless youth should not be the wise homeless youth. responsibility of already overburdened (k) Runaway youth means a person police departments and juvenile justice under 18 years of age who absents him- authorities. Rather, Congress intends self or herself from home or place of that the responsibility for locating, as- legal residence without the permission sisting, and returning such youth of his or her family. should be placed with low-cost, com- (l) Short-term training means the pro- munity-based human service programs. vision of local, State, or regionally based instruction to runaway or other- § 1351.11 Who is eligible to apply for a wise homeless youth service providers Runaway and Homeless Youth Pro- in skill areas that will directly gram grant? strengthen service delivery. States localities, private entities, (m) A State includes any State of the and coordinated networks of such enti- United States, the District of Colum- ties are eligible to apply for a Runaway bia, the Commonwealth of Puerto Rico, and Homeless Youth Program grant the Trust Territory of the Pacific Is- unless they are part of the law enforce- lands, and any territory or possession ment structure or the juvenile justice of the United States. system. (n) Technical assistance means the provision of expertise or support for [54 FR 20855, May 15, 1989; 55 FR 5601, Feb. 16, 1990] the purpose of strengthening the capa- bilities of grantee organizations to de- § 1351.12 Who gets priority for the liver services. award of a Runaway and Homeless (o) Temporary shelter means the provi- Youth Program grant? sion of short-term (maximum of 15 In making Runaway and Homeless days) room and board and core crisis Youth Program grants, HHS gives pri- intervention services, on a 24-hour ority to those private agencies which basis, by a runaway and homeless have had past experience in dealing youth project. with runaway or otherwise homeless [43 FR 55635, Nov. 28, 1978, as amended at 54 youth. HHS also gives priority to appli- FR 20854, May 15, 1989; 55 FR 5601, Feb. 16, cants whose total grant requests for 1990] services to runaway or otherwise homeless youth are less than $100,000 Subpart B—Runaway and and whose project budgets, considering Homeless Youth Program Grant all funding sources, are smaller than $150,000. Past experience means that a § 1351.10 What is the purpose of the major activity of the agency has been Runaway and Homeless Youth Pro- the provision of temporary shelter, gram grant? counseling, and referral services to The purpose of the Runaway and runaway or otherwise homeless youth Homeless Youth Program grant is to and their families, either directly or
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through linkages established with not normally exceed 15 percent of the other community agencies. grant award. HHS may waive this limi- tation upon written request under spe- § 1351.13 What are the Federal and cial circumstances based on dem- non-Federal match requirements onstrated need. under a Runaway and Homeless Youth grant? § 1351.16 What costs are not allowable HHS requires a non-Federal share under a Runaway and Homeless which is equal to at least 10 percent of Youth Program grant? the Federal funds that will be received A Runaway and Homeless Youth under this grant program for any fiscal Progam grant does not cover the cost year. of constructing new facilities. [54 FR 20855, May 15, 1989; 55 FR 5601, Feb. 16, 1990] § 1351.17 How is application made for a Runaway and Homeless Youth § 1351.14 What is the period for which Program grant? a grant will be awarded? HHS publishes annually in the FED- (a) The initial notice of grant award ERAL REGISTER a program announce- specifies how long HHS intends to sup- ment of grant funds available under port the project without requiring the the Runaway and Homeless Youth Pro- project to recompete for funds. This pe- gram Act. The program announcement riod, called the project period, will not states the amount of funds available, exceed five years. program priorities for funding, and cri- (b) Generally the grant will initially teria for evaluating applications in be for one year. A grantee must submit awarding grants. The announcement a separate application to have the sup- also describes specific procedures for port continued for each subsequent receipt and review of applications. An year. Continuation awards within the applicant should: project period will be made provided (a) Obtain a program announcement the grantee has made satisfactory from the FEDERAL REGISTER or from progress, funds are available, and HHS one of HHS’s 10 Regional Offices in determines that continued funding is Boston, New York, Philadelphia, At- in the best interest of the Government. lanta, Chicago, Dallas, Kansas City, Denver, San Francisco, and Seattle; [43 FR 55635, Nov. 28, 1978, as amended at 65 FR 50141, Aug. 17, 2000] (b) Obtain an application package from one of HHS’s Regional Offices; EFFECTIVE DATE NOTE: At 65 FR 50141, Aug. and 17, 2000, § 1351.14 was amended by revising paragraph (a), effective October 16, 2000. For (c) Submit a completed application the convenience of the user, the superseded to the Grants Management Office at text follows. the appropriate Regional Office.
§ 1351.14 What is the period for which a [43 FR 55635, Nov. 28, 1978, as amended at 48 grant will be awarded? FR 29202, June 24, 1983] (a) The initial notice of grant award speci- fies how long HHS intends to support the § 1351.18 What criteria has HHS estab- project without requiring the project to re- lished for deciding which Runaway compete for funds. This period, called the and Homeless Youth Program grant project period, will not exceed three years. applications to fund? In reviewing applications for a Run- * * * * * away and Homeless Youth Program grant, HHS takes into consideration a § 1351.15 What costs are supportable number of factors, including: under a Runaway and Homeless (a) Whether the application meets Youth Program grant? one or more of the program’s funding Costs which can be supported in- priorities; (see § 1351.12) clude, but are not limited to, tem- (b) The need for Federal support porary shelter, referral services, coun- based on the number of runaway or seling services, aftercare services, and otherwise homeless youth in the area staff training. Costs for acquisition and in which the runaway and homeless renovation of existing structures may youth project is or will be located;
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(c) The availability of services to Appeal Procedures (Indirect Costs) in runaway or otherwise homeless youth volume 45 CFR part 75; in the area in which the runaway and (3) The provisions of 45 CFR part 80 homeless youth project is located; and 45 CFR part 81 pertaining to non- (d) Whether there is a minimum resi- discrimination under programs receiv- dential capacity of four and a max- ing Federal assistance, and hearing imum residential capacity not to ex- procedures; ceed 20 youth with a ratio of staff to (4) The provisions of 45 CFR part 84 youth sufficient to assure adequate su- pertaining to discrimination on the pervision and treatment; basis of handicap; (e) Plans for meeting the best inter- (5) The provisions of 45 CFR part 46 ests of the youth involving, when pos- pertaining to protection of human sub- sible, both the youth and the family. jects. These must include contacts with the (b) Several program policies regard- families. This contact should be made ing confidentiality of information, within 24 hours, but must be made no treatment, conflict of interest and more than 72 hours following the time State protection apply to recipients of of the youth’s admission into the run- Runaway and Homeless Youth Pro- away and homeless youth project. The gram grants. These include: plans must also include assuring the (1) Confidential information. All infor- youth’s safe return home or to local mation including lists of names, ad- government officials or law enforce- dresses, photographs, and records of ment officials and indicate efforts to evaluation of individuals served by a provide appropriate alternative living runaway and homeless youth project arrangements. shall be confidential and shall not be (f) Plans for the delivery of aftercare disclosed or transferred to any indi- or counseling services to runaway or vidual or to any public or private agen- otherwise homeless youth and their cy without written consent of the families; youth and family. Youth served by a (g) Whether the estimated cost to the runaway and homeless youth project Department for the runaway and home- shall have the right to review their less youth project is reasonable consid- records; to correct a record or file a ering the anticipated results; statement of disagreement; and to be (h) Whether the proposed personnel apprised of the individuals who have are well qualified and the applicant reviewed their records. Procedures agency has adequate facilities and re- shall be established for the training of sources; project staff in the protection of these (i) Whether the proposed project de- rights and for the secure storage of sign, if well executed, is capable of at- records. taining program objectives; (2) Medical, psychiatric or psychological (j) The consistency of the grant ap- treatment. No youth shall be subject to plication with the provisions of the Act medical, psychiatric or psychological and these regulations. treatment without the consent of the youth and family unless otherwise per- § 1351.19 What additional information mitted by State law. should an applicant or grantee have (3) Conflict of interest. Employees or about a Runaway and Homeless individuals participating in a program Youth Program grant? or project under the Act shall not use (a) Several other HHS rules and regu- their positions for a purpose that is, or lations apply to applicants for or re- gives the appearance of being, moti- cipients of Runaway and Homeless vated by a desire for private gain for Youth Program grants. These include: themselves or others, particularly (1) The provisions of 45 CFR part 74 those with whom they have family, pertaining to the Administration of business or other ties. Grants; (4) State law protection. HHS policies (2) The provisions of 45 CFR part 16, regarding confidential information and Departmental Grants Appeal Process, experimentation and treatment shall and the provisions of Informal Grant not apply if HHS finds that State law
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is more protective of the rights of run- • Development of coordinated net- away or otherwise homeless youth. works of private nonprofit agencies to (c) Nothing in the Runaway and provide services, and Homeless Youth Act or these regula- • Low cost community alternatives tions gives the Federal Government for runaway or otherwise homeless control over the staffing and personnel youth. decisions regarding individuals hired (2) Short-term training may be pro- by a runaway and homeless youth vided in, but not limited to, such areas project receiving Federal funds. as: • Shelter facility staff development, Subpart C—Additional • Aftercare services or counseling, Requirements • Fund raising techniques, • Youth and Family counseling, and § 1351.20 What are the additional re- • Crisis intervention techniques. quirements under a Runaway and (b) Grantees will be required to co- Homeless Youth Program grant? ordinate their activities with the 24- (a) To improve the administration of hour National toll-free communication the Runaway and Homeless Youth Pro- system which links runaway and home- gram by increasing the capability of less youth projects and other service the runaway and homeless youth serv- providers with runaway or otherwise ice providers to deliver services, HHS homeless youth. will require grantees to accept tech- (c) Grantees will also be required to nical assistance and short-term train- submit statistical reports profiling the ing as a condition of funding for each clients served. The statistical report- budget period. ing requirements are mandated by the (1) Technical assistance may be pro- Act which states that ‘‘runaway and vided in, but not limited to, such areas homeless youth projects shall keep as: adequate statistical records profiling • Program Management, the children and families which it • Fiscal Management, serves . . .’’
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PART 1355—GENERAL § 1355.10 Scope. Unless otherwise specified, part 1355 Sec. applies to States and Indian Tribes and 1355.10 Scope. contains general requirements for Fed- 1355.20 Definitions. eral financial participation under titles 1355.21 State plan requirements for titles IV–B and IV–E of the Social Security IV–E and IV–B. Act. 1355.25 Principles of child and family serv- ices. [61 FR 58653, Nov. 18, 1996] 1355.30 Other applicable regulations. 1355.31 Elements of the child and family § 1355.20 Definitions. services review system. (a) Unless otherwise specified, the 1355.32 Timetable for the reviews. 1355.33 Procedures for the review. following terms as they appear in 45 1355.34 Criteria for determining substantial CFR parts 1355, 1356 and 1357 of this conformity. title are defined as follows— 1355.35 Program improvement plans. Act means the Social Security Act, as 1355.36 Withholding Federal funds due to amended. failure to achieve substantial conformity ACYF means the Administration on or failure to successfully complete a pro- Children, Youth and Families, Admin- gram improvement plan. istration for Children and Families 1355.37 Opportunity for Public Inspection of (ACF), U. S. Department of Health and Review Reports and Materials. Human Services. 1355.38 Enforcement of section 471(a)(18) of the Act regarding the removal of barriers Adoption means the method provided to interethnic adoption. by State law which establishes the 1355.39 Administrative and judicial review. legal relationship of parent and child 1355.40 Foster care and adoption data col- between persons who are not so related lection. by birth, with the same mutual rights 1355.50 Purpose of this part. and obligations that exist between 1355.52 Funding authority for statewide children and their birth parents. This automated child welfare information sys- relationship can only be termed ‘‘adop- tems (SACWIS). tion’’ after the legal process is com- 1355.53 Conditions for approval of funding. 1355.54 Submittal of advance planning docu- plete. ments. Child abuse and neglect means the def- 1355.55 Review and assessment of the sys- inition contained in 45 CFR part 1340, tem developed with enhanced funds. Child Abuse and Neglect Prevention 1355.56 Failure to meet the conditions of the and Treatment Program. approved APD. Child care institution means a private 1355.57 Cost allocation. child care institution, or a public child APPENDIX A TO PART 1355—FOSTER CARE care institution which accommodates DATA ELEMENTS. no more than twenty-five children, and APPENDIX B TO PART 1355—ADOPTION DATA is licensed by the State in which it is ELEMENTS. situated or has been approved by the APPENDIX C TO PART 1355—ELECTRONIC DATA agency of such State or tribal licensing TRANSMISSION FORMAT. authority (with respect to child care APPENDIX D TO PART 1355—FOSTER CARE AND ADOPTION RECORD LAYOUTS. institutions on or near Indian Reserva- APPENDIX E TO PART 1355—DATA STANDARDS. tions) responsible for licensing or ap- APPENDIX F TO PART 1355—ALLOTMENT OF proval of institutions of this type as FUNDS WITH 427 INCENTIVE FUNDS TITLE meeting the standards established for IV-B CHILD WELFARE SERVICES FISCAL such licensing. This definition must YEAR 1993. not include detention facilities, for- AUTHORITY: 42 U.S.C. 620 et seq., 42 U.S.C. estry camps, training schools, or any 670 et seq.; 42 U.S.C. 1302. other facility operated primarily for
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the detention of children who are de- foster family homes, foster homes of termined to be delinquent. relatives, group homes, emergency Commissioner means the Commis- shelters, residential facilities, child sioner on Children, Youth and Fami- care institutions, and preadoptive lies, Administration for Children and homes. A child is in foster care in ac- Families, U.S. Department of Health cordance with this definition regard- and Human Services. less of whether the foster care facility Date a child is considered to have en- is licensed and payments are made by tered foster care means the earlier of: the State or local agency for the care The date of the first judicial finding of the child, whether adoption subsidy that the child has been subjected to payments are being made prior to the child abuse or neglect; or, the date that finalization of an adoption, or whether is 60 calendar days after the date on there is Federal matching of any pay- which the child is removed from the ments that are made. home pursuant to § 1356.21(k). A State Foster care maintenance payments are may use a date earlier than that re- payments made on behalf of a child eli- quired in this paragraph, such as the gible for title IV–E foster care to cover date the child is physically removed the cost of (and the cost of providing) from the home. This definition deter- food, clothing, shelter, daily super- mines the date used in calculating all vision, school supplies, a child’s per- time period requirements for the peri- sonal incidentals, liability insurance odic reviews, permanency hearings, and with respect to a child, and reasonable termination of parental rights provi- travel for a child’s visitation with fam- sion in section 475(5) of the Act and for ily, or other caretakers. Local travel providing time-limited reunification associated with providing the items services described at section 431(a)(7) of listed above is also an allowable ex- the Act. The definition has no relation- pense. In the case of child care institu- ship to establishing initial title IV–E tions, such term must include the rea- eligibility. sonable costs of administration and op- Department means the United States eration of such institutions as are nec- Department of Health and Human essarily required to provide the items Services. described in the preceding sentences. Detention facility in the context of the definition of child care institution in ‘‘Daily supervision’’ for which foster section 472(c)(2) of the Act means a care maintenance payments may be physically restricting facility for the made includes: care of children who require secure cus- (1) Foster family care—licensed child tody pending court adjudication, court care, when work responsibilities pre- disposition, execution of a court order clude foster parents from being at or after commitment. home when the child for whom they Entity, as used in § 1355.38, means any have care and responsibility in foster organization or agency (e.g., a private care is not in school, licensed child child placing agency) that is separate care when the foster parent is required and independent of the State agency; to participate, without the child, in ac- performs title IV–E functions pursuant tivities associated with parenting a to a contract or subcontract with the child in foster care that are beyond the State agency; and, receives title IV–E scope of ordinary parental duties, such funds. A State court is not an ‘‘entity’’ as attendance at administrative or ju- for the purposes of § 1355.38 except if an dicial reviews, case conferences, or fos- administrative arm of the State court ter parent training. Payments to cover carries out title IV–E administrative these costs may be: included in the functions pursuant to a contract with basic foster care maintenance pay- the State agency. ment; a separate payment to the foster Foster care means 24-hour substitute parent, or a separate payment to the care for children placed away from child care provider; and their parents or guardians and for (2) Child care institutions—routine whom the State agency has placement day-to-day direction and arrangements and care responsibility. This includes, to ensure the well-being and safety of but is not limited to, placements in the child.
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Foster family home means, for the pur- with respect to the child: protection, pose of title IV-E eligibility, the home education, care and control of the per- of an individual or family licensed or son, custody of the person, and deci- approved as meeting the standards es- sion-making. The term legal guardian tablished by the State licensing or ap- means the caretaker in such a relation- proval authority(ies) (or with respect ship. to foster family homes on or near In- National Child Abuse and Neglect Data dian reservations, by the tribal licens- System (NCANDS) means the voluntary ing or approval authority(ies)), that national data collection and analysis provides 24-hour out-of-home care for system established by the Administra- children. The term may include group tion for Children and Families in re- homes, agency-operated boarding sponse to a requirement in the Child homes or other facilities licensed or Abuse Prevention and Treatment Act approved for the purpose of providing (Pub. L. 93–247), as amended. foster care by the State agency respon- Partial review means: sible for approval or licensing of such (1) For the purpose of the child and facilities. Foster family homes that are family services review, the joint Fed- approved must be held to the same eral and State review of one or more standards as foster family homes that federally-assisted child and family are licensed. Anything less than full li- services program(s) in the States, in- censure or approval is insufficient for cluding family preservation and sup- meeting title IV-E eligibility require- port services, child protective services, ments. States may, however, claim foster care, adoption, and independent title IV-E reimbursement during the living services. A partial review may period of time between the date a pro- consist of any of the components of the spective foster family home satisfies full review, as mutually agreed upon by all requirements for licensure or ap- the State and the Administration for proval and the date the actual license Children and Families as being suffi- is issued, not to exceed 60 days. cient to determine substantial con- Full review means the joint Federal formity of the reviewed components and State review of all federally-as- with the State plan requirements of ti- sisted child and family services pro- tles IV-B and IV-E as listed in § 1355.34 grams in the States, including family of this part; and preservation and support services, (2) For the purpose of title IV-B and child protective services, foster care, title IV-E State plan compliance issues adoption, and independent living serv- that are outside the prescribed child ices, for the purpose of determining the and family services review format, e.g., State’s substantial conformity with compliance with AFCARS require- the State plan requirements of titles ments, a review of State laws, policies, IV-B and IV-E as listed in § 1355.34 of regulations, or other information ap- this part. A full review consists of two propriate to the nature of the concern, phases, the statewide assessment and a to determine State plan compliance. subsequent on-site review, as described Permanency hearing means: in § 1355.33 of this part. (1) The hearing required by section Independent Living Program (ILP) 475(5)(C) of the Act to determine the means the programs and activities es- permanency plan for a child in foster tablished and implemented by the care. Within this context, the court State to assist youth, as defined in sec- (including a Tribal court) or adminis- tion 477(a)(2) of the Act, to prepare to trative body determines whether and, live independently upon leaving foster if applicable, when the child will be: care. Programs and activities that may (i) Returned to the parent; be provided are found in section 477(d) (ii) Placed for adoption, with the of the Act. State filing a petition for termination Legal guardianship means a judi- of parental rights; cially-created relationship between (iii) Referred for legal guardianship; child and caretaker which is intended (iv) Placed permanently with a fit to be permanent and self-sustaining as and willing relative; or evidenced by the transfer to the care- (v) Placed in another planned perma- taker of the following parental rights nent living arrangement, but only in
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cases where the State agency has docu- (b) Unless otherwise specified, the mented to the State court a compelling definitions contained in section 475 of reason for determining that it would the Act apply to all programs under ti- not be in the best interests of the child tles IV–E and IV–B of the Act. to follow one of the four specified op- Statewide assessment means the initial tions above. phase of a full review of all federally- (2) The permanency hearing must be assisted child and family services pro- held no later than 12 months after the grams in the States, including family date the child is considered to have en- preservation and support services, tered foster care in accordance with child protective services, foster care, the definition at § 1355.20 of this part or adoption, and independent living serv- within 30 days of a judicial determina- ices, for the purpose of determining, in tion that reasonable efforts to reunify part, the State’s substantial con- the child and family are not required. formity with the State plan require- After the initial permanency hearing, ments of titles IV–B and IV–E as listed subsequent permanency hearings must in § 1355.34 of this part. The statewide be held not less frequently than every assessment refers to the completion of 12 months during the continuation of the federally-prescribed assessment in- foster care. The permanency hearing strument by members of a review team must be conducted by a family or juve- that meet the requirements of nile court or another court of com- § 1355.33(a)(2) of this part. petent jurisdiction or by an adminis- [48 FR 23114, May 23, 1983, as amended at 57 trative body appointed or approved by FR 30429, July 9, 1992; 58 FR 67924, Dec. 22, the court which is not a part of or 1993; 61 FR 58653, Nov. 18, 1996; 65 FR 4076, under the supervision or direction of Jan. 25, 2000] the State agency. Paper reviews, ex parte hearings, agreed orders, or other § 1355.21 State plan requirements for titles IV–E and IV–B. actions or hearings which are not open to the participation of the parents of (a) The State plans for titles IV–E the child, the child (if of appropriate and IV–B must provide for safeguards age), and foster parents or preadoptive on the use and disclosure of informa- parents (if any) are not permanency tion which meet the requirements con- hearings. tained in section 471(a)(8) of the Act. State means, for title IV–B, the 50 (b) The State plans for titles IV–E States, the District of Columbia, the and IV–B must provide for compliance Commonwealth of Puerto Rico, Guam, with the Department’s regulations list- the Virgin Islands, the Commonwealth ed in 45 CFR 1355.30. of the Northern Mariana Islands, and (c) The State agency and the Indian American Samoa. For title IV–E, the Tribe must make available for public term ‘‘State’’ means the 50 States and review and inspection the Child and the District of Columbia. Family Services Plan (CFSP) and the State agency means the State agency Annual Progress and Services Reports. administering or supervising the ad- (See 45 CFR 1357.15 and 1357.16.) The ministration of the title IV–B and title State agency also must make available IV–E State plans and the title XX so- for public review and inspection the cial services block grant program. An title IV–E State Plan. exception to this requirement is per- [48 FR 23114, May 23, 1983, as amended at 61 mitted by section 103(d) of the Adop- FR 58654, Nov. 18, 1996] tion Assistance and Child Welfare Act of 1980 (Pub. L. 96–272). Section 103(d) § 1355.25 Principles of child and family provides that, if on December 1, 1974, services. the title IV–B program (in a State or The following principles, most often local agency) and the social services identified by practitioners and others program under section 402(a)(3) of the as helping to assure effective services Act (the predecessor program to title for children, youth, and families, XX) were administered by separate should guide the States and Indian agencies, that separate administration Tribes in developing, operating, and of the programs could continue at improving the continuum of child and State option. family services.
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(a) The safety and well-being of chil- ventive (family support) and crisis dren and of all family members is para- intervention services (family preserva- mount. When safety can be assured, tion), based on the changing needs of strengthening and preserving families children and families at various times is seen as the best way to promote the in their lives. A family or an individual healthy development of children. One does not need to be in crisis in order to important way to keep children safe is receive services. to stop violence in the family including violence against their mothers. [61 FR 58654, Nov. 18, 1996] (b) Services are focused on the family as a whole; service providers work with § 1355.30 Other applicable regulations. families as partners in identifying and Except as specified, the following meeting individual and family needs; regulations are applicable to all pro- family strengths are identified, en- grams funded under titles IV–B and IV– hanced, respected, and mobilized to E of the Act. help families solve the problems which (a) 45 CFR Part 16—Procedures of the compromise their functioning and well- Departmental Grant Appeals Board. being. (b) 45 CFR Part 30—Claims Collec- (c) Services promote the healthy de- tion. velopment of children and youth, pro- (c) 45 CFR Part 74—Administration of mote permanency for all children and Grants (Applicable only to title IV–E help prepare youth emancipating from foster care and adoption assistance, ex- the foster care system for self-suffi- ciency and independent living. cept that: (1) Section 74.23 Cost Shar- (d) Services may focus on prevention, ing or Matching, and (2) section 74.52 protection, or other short or long-term Financial Reporting Requirements, interventions to meet the needs of the will not apply.) family and the best interests and need (d) 45 CFR Part 76—Governmentwide of the individual(s) who may be placed Debarment and Suspension (Non- in out-of-home care. procurement) and Governmentwide Re- (e) Services are timely, flexible, co- quirements for Drug-Free Workplace ordinated, and accessible to families (Grants). and individuals, principally delivered (e) 45 CFR Part 80—Nondiscrimina- in the home or the community, and are tion Under Programs Receiving Fed- delivered in a manner that is respectful eral Assistance Through the Depart- of and builds on the strengths of the ment of Health and Human Services Ef- community and cultural groups. fectuation of Title VI of the Civil (f) Services are organized as a con- Rights Act of 1964. tinuum, designed to achieve measur- (f) 45 CFR Part 81—Practice and Pro- able outcomes, and are linked to a wide cedure for Hearings Under Part 80 of variety of supports and services which This Title. can be crucial to meeting families’ and (g) 45 CFR Part 84—Nondiscrimina- children’s needs, for example, housing, tion on the Basis of Handicap in Pro- substance abuse treatment, mental grams and Activities Receiving Federal health, health, education, job training, Financial Assistance. child care, and informal support net- works. (h) 45 CFR Part 91—Nondiscrimina- (g) Most child and family services are tion on the Basis of Age in HHS Pro- community-based, involve community grams or Activities Receiving Federal organizations, parents and residents in Financial Assistance. their design and delivery, and are ac- (i) 45 CFR Part 92—Uniform Adminis- countable to the community and the trative Requirements for Grants and client’s needs. Cooperative Agreements to State and (h) Services are intensive enough and Local Governments (Applicable only to of sufficient duration to keep children the title IV–B programs and the Inde- safe and meet family needs. The actual pendent Living Program under Section level of intensity and length of time 477 of the Act). needed to ensure safety and assist the (j) 45 CFR Part 93—New Restrictions family may vary greatly between pre- on Lobbying.
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(k) 45 CFR Part 95—General Adminis- programs administered by States under tration—Grant Programs (Public As- title IV–E of the Act. sistance and Medical Assistance). (Ap- [65 FR 4076, Jan. 25, 2000] plicable to title IV–B and title IV–E ex- cept that, notwithstanding 45 CFR § 1355.32 Timetable for the reviews. 95.1(a), Subpart A, Time Limits for States to File Claims, does not apply (a) Initial reviews. Each State must to title IV–B (subparts 1 and 2) and the complete an initial full review as de- Independent Living Program.) scribed in § 1355.33 of this part during (l) 45 CFR Part 97—Consolidation of the four-year period after the final rule Grants to the Insular Areas. (Applica- becomes effective. ble only to the title IV–B programs). (b) Reviews following the initial review. (m) 45 CFR Part 100—Intergovern- (1) A State found to be operating in mental Review of Department of substantial conformity during an ini- Health and Human Services Programs tial or subsequent review, as defined in and Activities. (Only one section is ap- § 1355.34 of this part, must: plicable: 45 CFR 100.12, How may a (i) Complete a full review every five State simplify, consolidate, or sub- years; and stitute federally required State plans?). (ii) Submit a completed statewide as- (n) 45 CFR Part 201—Grants to States sessment to ACF three years after the for Public Assistance Programs. Only on-site review. The statewide assess- the following sections are applicable: ment will be reviewed jointly by the (1) § 201.5—Grants. (Applicable to title State and the Administration for Chil- IV–E foster care and adoption assist- dren and Families to determine the ance only.) State’s continuing substantial con- (2) § 201.6—Withholding of payment; formity with the State plan require- reduction of Federal financial partici- ments subject to review. No formal ap- pation in the costs of social services proval of this interim statewide assess- and training. ment by ACF is required. (3) § 201.7—Judicial review. (2) A State program found not to be (4) § 201.15—Deferral of claims for operating in substantial conformity Federal financial participation. (Appli- during an initial or subsequent review cable only to title IV–E foster care and will: adoption assistance.) (i) Be required to develop and imple- (5) § 201.66—Repayment of Federal ment a program improvement plan, as funds by installments. (Applicable only defined in § 1355.35 of this part; and to title IV–E foster care and adoption (ii) Begin a full review two years assistance.) after approval of the program improve- (o) 45 CFR Part 204.1—Submittal of ment plan. State Plans for Governor’s Review. (c) Reinstatement of reviews based on (p) 45 CFR Part 205—General Admin- information that a State is not in substan- istration—Public Assistance Programs. tial conformity. Only the following sections are appli- (1) ACF may require a full or a par- cable: tial review at any time, based on any (1) § 205.5—Plan amendments. information, regardless of the source, (2) § 205.10—Hearings. that indicates the State may no longer (3) § 205.50—Safeguarding information be operating in substantial conformity. for the financial assistance programs. (2) Prior to reinstating a full or par- (4) § 205.100—Single State agency. tial review, ACF will conduct an in- [61 FR 58654, Nov. 18, 1996] quiry and require the State to submit additional data whenever ACF receives § 1355.31 Elements of the child and information that the State may not be family services review system. in substantial conformity. Scope. Sections 1355.32 through 1355.37 (3) If the additional information and of this part apply to reviews of child inquiry indicates to ACF’s satisfaction and family services programs adminis- that the State is operating in substan- tered by States under subparts 1 and 2 tial conformity, ACF will not proceed of title IV–B of the Act, and reviews of with any further review of the issue ad- foster care and adoption assistance dressed by the inquiry. This inquiry
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will not substitute for the full reviews (1) Consist of a two-phase process conducted by ACF under § 1355.32(b). that includes a statewide assessment (4) ACF may proceed with a full or and an on-site review; and partial review if the State does not (2) Be conducted by a team of Federal provide the additional information as and State reviewers that includes: requested, or the additional informa- (i) Staff of the State child and family tion confirms that the State may not services agency, including the State be operating in substantial conformity. and local offices that represent the (d) Partial reviews based on noncompli- service areas that are the focus of any ance with State plan requirements that particular review; are outside the scope of a child and family (ii) Representatives selected by the services review. When ACF becomes State, in collaboration with the ACF aware of a title IV–B or title IV–E com- Regional Office, from those with whom pliance issue that is outside the scope the State was required to consult in de- of the child and family services review veloping its CFSP, as described and re- process, we will: quired in 45 CFR part 1357.15(l); (1) Conduct an inquiry and require (iii) Federal staff of HHS; and the State to submit additional data. (iv) Other individuals, as deemed ap- (2) If the additional information and propriate and agreed upon by the State inquiry indicates to ACF’s satisfaction and ACF. that the State is in compliance, we will (b) Statewide assessment. The first not proceed with any further review of phase of the full review will be a state- the issue addressed by the inquiry. wide assessment conducted by the in- (3) ACF will institute a partial re- ternal and external State members of view, appropriate to the nature of the the review team. The statewide assess- concern, if the State does not provide ment must: the additional information as re- (1) Address each systemic factor quested, or the additional information under review, including the statewide confirms that the State may not be in information system; case review sys- compliance. tem; quality assurance system; staff (4) If the partial review determines training; service array; agency respon- that the State is not in compliance siveness to the community; and foster with the applicable State plan require- and adoptive parent licensing, recruit- ment, the State must enter into a pro- ment and retention; gram improvement plan designed to (2) Assess the outcome areas of safe- bring the State into compliance. The ty, permanency, and well-being of chil- terms, action steps and time-frames of dren and families served by the State the program improvement plan will be agency using data from AFCARS, developed on a case-by-case basis by NCANDS, or, for the initial review, an- ACF and the State. The program im- other source approved by ACF. The provement plan must take into consid- State must also analyze and explain its eration the extent of noncompliance performance in meeting the national and the impact of the noncompliance standards for the statewide data indi- on the safety, permanency or well- cators; being of children and families served (3) Assess the characteristics of the through the State’s title IV–B or IV–E State agency that have the most sig- allocation. If the State remains out of nificant impact on the agency’s capac- compliance, the State will be subject ity to deliver services to children and to a penalty related to the extent of families that will lead to improved out- the noncompliance. comes; (5) Review of AFCARS compliance (4) Assess the strengths and areas of will take place in accordance with 45 the State’s child and family services CFR 1355.40. programs that require further exam- ination through an on-site review; [65 FR 4076, Jan. 25, 2000] (1) Include a listing of all the persons external to the State agency who par- § 1355.33 Procedures for the review. ticipated in the preparation of the (a) The full child and family services statewide assessment pursuant to reviews will: §§ 1355.33(a)(2)(ii) and (iv); and
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(2) Be completed and submitted to proved by ACF and include children ACF within 4 months of the date that who entered foster care during the year ACF transmits the information for the under review. In-home cases must be statewide assessment to the State. drawn randomly from NCANDS or from (c) On-site review. The second phase of another source approved by ACF. To the full review will be an on-site re- ensure that all program areas are ade- view. quately represented, the sample size (1) The on-site review will cover the may be increased. State’s programs under titles IV–B and (6) The sample of 30–50 cases reviewed IV–E of the Act, including in-home on-site will be selected from a ran- services and foster care. It will be domly drawn oversample of no more jointly planned by the State and ACF, than 150 cases. The oversample must be and guided by information in the com- statistically significant at a 90 percent pleted statewide assessment that iden- compliance rate (95 percent in subse- tifies areas in need of improvement or quent reviews), with a tolerable sam- further review. pling error of 5 percent and a con- (2) The on-site review may be con- fidence coefficient of 95 percent. The centrated in several specific political additional cases in the oversample not subdivisions of the State, as agreed selected for the on-site review will upon by the ACF and the State; how- form the sample of cases to be re- ever, the State’s largest metropolitan viewed, if needed, in order to resolve subdivision must be one of the loca- discrepancies between the data indica- tions selected. tors and the on-site reviews in accord- (3) ACF has final approval of the se- ance with paragraph (d)(2) of this sec- lection of specific areas of the State’s tion. child and family services continuum (d) Resolution of discrepancies between described in paragraph (c)(1) of this the statewide assessment and the findings section and selection of the political of the on-site portion of the review. Dis- subdivisions referenced in paragraph crepancies between the statewide as- (c)(2) of this section. sessment and the findings of the on- (4) Sources of information collected site portion of the review will be re- during the on-site review to determine solved by either of the following substantial conformity must include, means, at the State’s option: but are not limited to: (1) The submission of additional in- (i) Case records on children and fami- formation by the State; or lies served by the agency; (2) ACF and the State will review ad- (ii) Interviews with children and fam- ditional cases using only those indica- ilies whose case records have been re- tors in which the discrepancy occurred. viewed and who are, or have been, re- ACF and the State will determine cipients of services of the agency; jointly the number of additional cases (iii) Interviews with caseworkers, fos- to be reviewed, not to exceed a total of ter parents, and service providers for 150 cases to be selected as specified in the cases selected for the on-site re- paragraph (c)(6) of this section. view; and (e) Partial review. A partial child and (iv) Interviews with key stake- family services review, when required, holders, both internal and external to will be planned and conducted jointly the agency, which, at a minimum, by ACF and the State agency based on must include those individuals who the nature of the concern. A partial re- participated in the development of the view does not substitute for the full re- State’s CFSP required at 45 CFR views as required under § 1355.32(b). 1357.15(1), courts, administrative review (f) Notification. Within 30 calendar bodies, children’s guardians ad litem days following either a partial child and other individuals or bodies as- and family services review, full child signed responsibility for representing and family services review, or the reso- the best interests of the child. lution of a discrepancy between the (5) The sample will range from 30–50 statewide assessment and the findings cases. Foster care cases must be drawn of the on-site portion of the review, randomly from AFCARS, or, for the ACF will notify the State agency in initial review, from another source ap- writing of whether the State is, or is
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not, operating in substantial con- (ii) Implemented the following CFSP formity. requirements or assurances: [65 FR 4077, Jan. 25, 2000] (A) The requirements in 45 CFR 1357.15(p) regarding services designed to § 1355.34 Criteria for determining sub- assure the safety and protection of stantial conformity. children and the preservation and sup- (a) Criteria to be satisfied. ACF will de- port of families; termine a State’s substantial con- (B) The requirements in 45 CFR formity with title IV–B and title IV–E 1357.15(q) regarding the permanency State plan requirements based on the provisions for children and families in following: sections 422 and 471 of the Act; (1) Its ability to meet national stand- (C) The requirements in section ards, set by the Secretary, for state- 422(b)(9) of the Act regarding recruit- wide data indicators associated with ment of potential foster and adoptive specific outcomes for children and fam- families; ilies; (D) The assurances by the State as (2) Its ability to meet criteria related required by section 422(b)(10)(C)(i) and to outcomes for children and families; (ii) of the Act regarding policies and and procedures for abandoned children; (3) Its ability to meet criteria related (E) The requirements in section to the State agency’s capacity to de- 422(b)(11) of the Act regarding the liver services leading to improved out- State’s compliance with the Indian comes. Child Welfare Act; (b) Criteria related to outcomes. (F) The requirements in section (1) A State’s substantial conformity 422(b)(12) of the Act regarding a State’s will be determined by its ability to plan for effective use of cross-jurisdic- substantially achieve the following tional resources to facilitate timely child and family service outcomes: adoptive or permanent placements; (i) In the area of child safety: and, (A) Children are, first and foremost, (G) The requirements in section protected from abuse and neglect; and, 471(a)(15) of the Act regarding reason- (B) Children are safely maintained in able efforts to prevent removals of their own homes whenever possible and children from their homes, to make it appropriate; possible for children in foster care to (ii) In the area of permanency for chil- safely return to their homes, or, when dren: the child is not able to return home, to (A) Children have permanency and place the child in accordance with the stability in their living situations; and permanency plan and complete the (B) The continuity of family rela- steps necessary to finalize the perma- tionships and connections is preserved nent placement. for children; and (3) A State will be determined to be (iii) In the area of child and family in substantial conformity if its per- well-being: formance on: (A) Families have enhanced capacity (i) Each statewide data indicator de- to provide for their children’s needs; veloped pursuant to paragraph (b)(4) of (B) Children receive appropriate serv- this section meets the national stand- ices to meet their educational needs; ard described in paragraph (b)(5) of this and section; and, (C) Children receive adequate serv- (ii) Each outcome listed in paragraph ices to meet their physical and mental (b)(1) of this section is rated as ‘‘sub- health needs. stantially achieved’’ in 95 percent of (2) A State’s level of achievement the cases examined during the on-site with regard to each outcome reflects review (90 percent of the cases for a the extent to which a State has: State’s initial review). Information (i) Met the national standard(s) for from various sources (case records, the statewide data indicator(s) associ- interviews) will be examined for each ated with that outcome, if applicable; outcome and a determination made as and, to the degree to which each outcome
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has been achieved for each case re- section, is rated on the basis of only viewed. one State plan requirement. To be con- (4) The Secretary will, using sidered in substantial conformity, the AFCARS and NCANDS, develop state- State plan requirement associated with wide data indicators for each of the statewide information system capacity specific outcomes described in para- must be both in place and functioning graph (b)(1) of this section for use in as described in the requirement. ACF determining substantial conformity. will use a rating scale to make the de- The Secretary will add, amend, or sus- terminations of substantial con- pend any such statewide data indi- formity. The systemic factors under re- cator(s) when appropriate. To the ex- view are: tent practical and feasible, the state- (1) Statewide information system: The wide data indicators will be consistent State is operating a statewide informa- with those developed in accordance tion system that, at a minimum, can with section 203 of the Adoption and readily identify the status, demo- Safe Families Act of 1997 (Pub. L. 105– graphic characteristics, location, and 89). goals for the placement of every child (5) The initial national standards for who is (or within the immediately pre- the statewide data indicators described ceding 12 months, has been) in foster in paragraph (b)(4) of this section will care (section 422(b)(10)(B)(i) of the Act); be based on the 75th percentile of all (2) Case review system: The State has State performance for that indicator, procedures in place that: as reported in AFCARS or NCANDS. (i) Provide, for each child, a written The Secretary may adjust these na- case plan to be developed jointly with tional standards if appropriate. The the child’s parent(s) that includes pro- initial national standard will be set visions: for placing the child in the using the following data sources: least restrictive, most family-like (i) The 1997 and 1998 submissions to placement appropriate to his/her needs, NCANDS (or the most recent and com- and in close proximity to the parent’ plete 2 years available), for those state- home where such placement is in the wide data indicators associated with child’s best interests; for visits with a the safety outcomes; and, child placed out of State at least every (ii) The 1998b, 1999c, and 2000a sub- 12 months by a caseworker of the agen- missions to AFCARS (or the most re- cy or of the agency in the State where cent and complete report periods avail- the child is placed; and for documenta- able), for those statewide data indica- tion of the steps taken to make and fi- tors associated with the permanency nalize an adoptive or other permanent outcomes. placement when the child cannot re- (c) Criteria related to State agency ca- turn home (sections 422(b)(10)(B)(ii), pacity to deliver services leading to im- 471(a)(16) and 475(5)(A) of the Act); proved outcomes for children and families. (ii) Provide for periodic review of the In addition to the criteria related to status of each child no less frequently outcomes contained in paragraph (b) of than once every six months by either a this section, the State agency must court or by administrative review (sec- also satisfy criteria related to the de- tions 422(b)(10)(B)(ii), 471(a)(16) and livery of services. Based on informa- 475(5)(B) of the Act); tion from the statewide assessment and (iii) Assure that each child in foster onsite review, the State must meet the care under the supervision of the State following criteria for each systemic has a permanency hearing in a family factor in paragraphs (c)(2) through or juvenile court or another court of (c)(7) of this section to be considered in competent jurisdiction (including a substantial conformity: All of the Tribal court), or by an administrative State plan requirements associated body appointed or approved by the with the systemic factor must be in court, which is not a part of or under place, and no more than one of the the supervision or direction of the state plan requirements fails to func- State agency, no later than 12 months tion as described in paragraphs (c)(2) from the date the child entered foster through (c)(7) of this section. The sys- care (and not less frequently than temic factor in paragraph (c)(1) of this every 12 months thereafter during the
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continuation of foster care) (sections knowledge base needed to carry out 422(b)(10)(B)(ii), 471(a)(16) and 475(5)(C) their duties with regard to the services of the Act); included in the State’s CFSP; and, (iv) Provide a process for termination (v) Provides short-term training for of parental rights proceedings in ac- current or prospective foster parents, cordance with sections 422(b)(10(B)(ii), adoptive parents, and the staff of 475(5)(E) and (F) of the Act; and, State-licensed or State-approved child (v) Provide foster parents, care institutions providing care to fos- preadoptive parents, and relative care- ter and adopted children receiving as- givers of children in foster care with sistance under title IV–E that address- notice of and an opportunity to be es the skills and knowledge base need- heard in any review or hearing held ed to carry out their duties with regard with respect to the child (sections to caring for foster and adopted chil- 422(b)(10)(B)(ii) and 475(5)(G) of the dren. Act). (5) Service array: Information from (3) Quality assurance system: The the Statewide assessment and on-site State has developed and implemented review determines that the State has standards to ensure that children in in place an array of services (45 CFR foster care placements are provided 1357.15(n) and section 422(b)(10)(B)(iii) quality services that protect the safety and (iv) of the Act) that includes, at a and health of the children (section minimum: 471(a)(22)) and is operating an identifi- (i) Services that assess the strengths able quality assurance system (45 CFR and needs of children and families as- 1357.15(u)) as described in the CFSP sisted by the agency and are used to that: determine other service needs; (i) Is in place in the jurisdictions (ii) Services that address the needs of within the State where services in- the family, as well as the individual cluded in the CFSP are provided; child, in order to create a safe home (ii) Is able to evaluate the adequacy environment; and quality of services provided under (iii) Services designed to enable chil- the CFSP; dren at risk of foster care placement to (iii) Is able to identify the strengths remain with their families when their and needs of the service delivery sys- safety and well-being can be reasonably tem it evaluates; assured; (iv) Provides reports to agency ad- (iv) Services designed to help chil- ministrators on the quality of services dren achieve permanency by returning evaluated and needs for improvement; to families from which they have been and removed, where appropriate, be placed (v) Evaluates measures implemented for adoption or with a legal guardian or to address identified problems. in some other planned, permanent liv- (4) Staff training: The State is oper- ing arrangement, and through post- ating a staff development and training legal adoption services; program (45 CFR 1357.15(t)) that: (v) Services that are accessible to (i) Supports the goals and objectives families and children in all political in the State’s CFSP; subdivisions covered in the State’s (ii) Addresses services provided under CFSP; and, both subparts of title IV–B and the (vi) Services that can be individual- training plan under title IV–E of the ized to meet the unique needs of chil- Act; dren and families served by the agency. (iii) Provides training for all staff (6) Agency responsiveness to the com- who provide family preservation and munity: support services, child protective serv- (i) The State, in implementing the ices, foster care services, adoption provisions of the CFSP, engages in on- services and independent living serv- going consultation with a broad array ices soon after they are employed and of individuals and organizations rep- that includes the basic skills and resenting the State and county agen- knowledge required for their positions; cies responsible for implementing the (iv) Provides ongoing training for CFSP and other major stakeholders in staff that addresses the skills and the services delivery system including,
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at a minimum, tribal representatives, (d) Availability of review instruments. consumers, service providers, foster ACF will make available to the States care providers, the juvenile court, and copies of the review instruments, other public and private child and fam- which will contain the specific stand- ily serving agencies (45 CFR ards to be used to determine substan- 1357.15(l)(4)); tial conformity, on an ongoing basis, (ii) The agency develops, in consulta- whenever significant revisions to the tion with these or similar representa- instruments are made. tives, annual reports of progress and [65 FR 4078, Jan. 25, 2000] services delivered pursuant to the CFSP (45 CFR 1357.16(a)); § 1355.35 Program improvement plans. (iii) There is evidence that the agen- cy’s goals and objectives included in (a) Mandatory program improvement the CFSP reflect consideration of the plan. major concerns of stakeholders con- (1) States found not to be operating sulted in developing the plan and on an in substantial conformity shall develop ongoing basis (45 CFR 1357.15(m)); and a program improvement plan. The pro- (iv) There is evidence that the gram improvement plan must: State’s services under the plan are co- (i) Be developed jointly by State and ordinated with services or benefits Federal staff in consultation with the under other Federal or federally-as- review team; sisted programs serving the same popu- (ii) Identify the areas in which the lations to achieve the goals and objec- State’s program is not in substantial tives in the plan (45 CFR 1357.15(m)). conformity; (7) Foster and adoptive parent licens- (iii)Set forth the goals, the action ing, recruitment and retention: steps required to correct each identi- (i) The State has established and fied weakness or deficiency, and dates maintains standards for foster family by which each action step is to be com- homes and child care institutions pleted in order to improve the specific which are reasonably in accord with areas; recommended standards of national or- (iv) Set forth the amount of progress ganizations concerned with standards the statewide data will make toward for such institutions or homes (section meeting the national standards; 471(a)(10) of the Act); (v) Establish benchmarks that will be (ii) The standards so established are used to measure the State’s progress in applied by the State to every licensed implementing the program improve- or approved foster family home or ment plan and describe the methods child care institution receiving funds that will be used to evaluate progress; under title IV–E or IV–B of the Act (vi) Identify how the action steps in (section 471(a)(10) of the Act); the plan build on and make progress (iii) The State complies with the over prior program improvement plans; safety requirements for foster care and (vii) Identify the technical assistance adoptive placements in accordance needs and sources of technical assist- with sections 471(a)(16), 471(a)(20) and ance, both Federal and non-Federal, 475(1) of the Act and 45 CFR 1356.30; which will be used to make the nec- (iv) The State has in place an identi- essary improvements identified in the fiable process for assuring the diligent program improvement plan. recruitment of potential foster and (2) In the event that ACF and the adoptive families that reflect the eth- State cannot reach consensus regard- nic and racial diversity of children in ing the content of a program improve- the State for whom foster and adoptive ment plan or the degree of program or homes are needed (section 422(b)(9) of data improvement to be achieved, ACF the Act); and, retains the final authority to assign (v) The State has developed and im- the contents of the plan and/or the de- plemented plans for the effective use of gree of improvement required for suc- cross-jurisdictional resources to facili- cessful completion of the plan. Under tate timely adoptive or permanent such circumstances, ACF will render a placements for waiting children (sec- written rationale for assigning such tion 422(b)(12) of the Act). content or degree of improvement.
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(b) Voluntary program improvement (2) Particularly egregious areas of plan. States found to be operating in nonconformity impacting child safety substantial conformity may volun- must receive priority in both the con- tarily develop and implement a pro- tent and time frames of the program gram improvement plan in collabora- improvement plans and must be ad- tion with the ACF Regional Office, dressed in less than two years. under the following circumstances: (3) The Secretary may approve exten- (1) The State and Regional Office sions of deadlines in a program im- agree that there are areas of the provement plan not to exceed one year. State’s child and family services pro- The circumstances under which re- grams in need of improvement which quests for extensions will be approved can be addressed through the develop- are expected to be rare. The State must ment and implementation of a vol- provide compelling documentation of untary program improvement plan; the need for such an extension. Re- (2) ACF approval of the voluntary quests for extensions must be received program improvement plan will not be by ACF at least 60 days prior to the af- required; and fected completion date. (3) No penalty will be assessed for the (4) States must provide quarterly sta- State’s failure to achieve the goals de- tus reports (unless ACF and the State scribed in the voluntary program im- agree upon less frequent reports) to provement plan. ACF. Such reports must inform ACF of (c) Approval of program improvement progress in implementing the measures plans. of the plan. (1) A State determined not to be in (e) Evaluating program improvement substantial conformity must submit a plans. Program improvement plans will program improvement plan to ACF for be evaluated jointly by the State agen- approval within 90 calendar days from cy and ACF, in collaboration with the date the State receives the written other members of the review team, as notification from ACF that it is not op- described in the State’s program im- erating in substantial conformity. provement plan and in accordance with (2) Any program improvement plan the following criteria: will be approved by ACF if it meets the provisions of paragraph (a) of this sec- (1) The methods and information tion. used to measure progress must be suffi- (3) If the program improvement plan cient to determine when and whether does not meet the provisions of para- the State is operating in subsequent graph (a) of this section, the State will substantial conformity or has reached have 30 calendar days from the date it the negotiated standard with respect to receives notice from ACF that the plan statewide data indicators that fail to has not been approved to revise and re- meet the national standard for that in- submit the plan for approval. dicator; (4) If the State does not submit a re- (2) The frequency of evaluating vised program improvement plan ac- progress will be determined jointly by cording to the provisions of paragraph the State and Federal team members, (c)(3) of this section or if the plan does but no less than annually. Evaluation not meet the provisions of paragraph of progress will be performed in con- (a) of this section, withholding of funds junction with the annual updates of pursuant to the provisions of § 1355.36 of the State’s CFSP, as described in para- this part will begin. graph (f) of this section; (d) Duration of program improvement (3) Action steps may be jointly deter- plans. mined by the State and ACF to be (1) ACF retains the authority to es- achieved prior to projected completion tablish time frames for the program dates, and will not require any further improvement plan consistent with the evaluation at a later date; and seriousness and complexity of the rem- (4) The State and ACF may jointly edies required for any areas determined renegotiate the terms and conditions of not in substantial conformity, not to the program improvement plan as exceed two years. needed, provided that:
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(i) The renegotiated plan is designed (3) A portion of the State’s title IV– to correct the areas of the State’s pro- B and IV–E funds will be withheld by gram determined not to be in substan- ACF for the year under review and for tial conformity and/or achieve a stand- each succeeding year until the State ard for the statewide data indicators either successfully completes a pro- that is acceptable to ACF; gram improvement plan or is found to (ii) The amount of time needed to im- be operating in substantial conformity. plement the provisions of the plan does (4) The amount of title IV–B and title not extend beyond three years from the IV–E funds subject to withholding due date the original program improve- to a determination that a State is not ment plan was approved; operating in substantial conformity is (iii) The terms of the renegotiated based on a pool of funds defined as fol- plan are approved by ACF; and lows: (iv) The Secretary approves any ex- (i) The State’s allotment of title IV– tensions beyond the two-year limit. B funds for each of the years to which (f) Integration of program improvement the withholding applies; and plans with CFSP planning. The elements (ii) An amount equivalent to 10 per- of the program improvement plan must cent of the State’s Federal claims for be incorporated into the goals and ob- title IV–E foster care administrative jectives of the State’s CFSP. Progress costs for each of the years to which in implementing the program improve- withholding applies; ment plan must be included in the an- nual reviews and progress reports re- (5) The amount of funds to be with- lated to the CFSP required in 45 CFR held from the pool in paragraph (b)(4) 1357.16. of this section will be computed as fol- lows: [65 FR 4080, Jan. 25, 2000] (i) Except as provided for in para- graphs (b)(7) and (b)(8) of this section, § 1355.36 Withholding Federal funds an amount equivalent to one percent of due to failure to achieve substantial conformity or failure to successfully the funds described in paragraph (b)(4) complete a program improvement of this section for each of the years to plan. which withholding applies will be with- (a) For the purposes of this section: held for each of the seven outcomes (1) The term ‘‘title IV–B funds’’ refers listed in § 1355.34(b)(1) of this part that to the State’s combined allocation of is determined not to be substantially title IV–B subpart 1 and subpart 2 achieved; and funds; and (ii) Except as provided for in para- (2) The term ‘‘title IV–E funds’’ refers graphs (b)(7) and (b)(8) of this section, to the State’s reimbursement for ad- an amount equivalent to one percent of ministrative costs for the foster care the funds described in paragraph (b)(4) program under title IV–E. of this section for each of the years to (b) Determination of the amount of Fed- which withholding applies will be with- eral funds to be withheld. ACF will de- held for each of the seven systemic fac- termine the amount of the State title tors listed in § 1355.34(c) of this part IV–B and IV–E funds to be withheld due that is determined not to be in sub- to a finding that the State is not oper- stantial conformity. ating in substantial conformity, as fol- (6) Except as provided for in para- lows: graphs (b)(7), (b)(8), and (e)(4) of this (1) A State will have the opportunity section, in the event the State is deter- to develop and complete a program im- mined to be in nonconformity on each provement plan prior to any with- of the seven outcomes and each of the holding of funds. seven systemic factors subject to re- (2) Title IV–B and IV–E funds will not view, the maximum amount of title IV– be withheld from a State if the deter- B and title IV–E funds to be withheld mination of nonconformity was caused due to the State’s failure to comply is by the State’s correct use of formal 14 percent per year of the funds de- written statements of Federal law or scribed in paragraph (b)(4) of this sec- policy provided the State by DHHS. tion for each year.
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(7) States determined not to be in (iii) The maximum amount of title substantial conformity that fail to cor- IV–B and title IV–E funds to be with- rect the areas of nonconformity held due to the State’s failure to com- through the successful completion of a ply on the third and any subsequent program improvement plan, and are de- full reviews following the first full re- termined to be in nonconformity on view in which the determination of the second full review following the nonconformity was made is 42 percent first full review in which a determina- of the funds described in paragraph tion of nonconformity was made will be (b)(4) of this section for each year to subject to increased withholding as fol- which the withholding of funds applies. lows: (c) Suspension of withholding. (i) The amount of funds described in (1) For States determined not to be paragraph (b)(5) of this section will in- operating in substantial conformity, crease to two percent for each of the ACF will suspend the withholding of seven outcomes and each of the seven the State title IV–B and title IV–E systemic factors that continues in non- funds during the time that a program conformity since the immediately pre- improvement plan is in effect, provided ceding child and family services re- that: view; (i) The program improvement plan (ii) The increased withholding of conforms to the provisions of § 1355.35 funds for areas of continuous noncon- of this part; and formity is subject to the provisions of (ii) The State is actively imple- paragraphs (c), (d), and (e) of this sec- menting the provisions of the program tion; improvement plan. (2) Suspension of the withholding of (iii) The maximum amount of title funds is limited to three years fol- IV–B and title IV–E funds to be with- lowing each review, or the amount of held due to the State’s failure to com- time approved for implementation of ply on the second full review following the program improvement plan, which- the first full review in which the deter- ever is less. mination of nonconformity was made (d) Terminating the withholding of is 28 percent of the funds described in funds. For States determined not to be paragraph (b)(4) of this section for each in substantial conformity, ACF will year to which the withholding of funds terminate the withholding of the applies. State’s title IV–B and title IV–E funds (8) States determined not to be in related to the nonconformity upon de- substantial conformity that fail to cor- termination by the State and ACF that rect the areas of nonconformity the State has achieved substantial con- through the successful completion of a formity or has successfully completed program improvement plan, and are de- a program improvement plan. ACF will termined to be in nonconformity on rescind the withholding of the portion the third and any subsequent full re- of title IV–B and title IV–E funds re- views following the first full review in lated to specific goals or action steps which a determination of noncon- as of the date at the end of the quarter formity was made will be subject to in- in which they were determined to have creased withholding as follows: been achieved. (i) The amount of funds described in (e) Withholding of funds. paragraph (b)(5) of this section will in- (1) States determined not to be in crease to three percent for each of the substantial conformity that fail to suc- seven outcomes and each of the seven cessfully complete a program improve- systemic factors that continues in non- ment plan will be notified by ACF of conformity since the immediately pre- this final determination of noncon- ceding child and family services re- formity in writing within 10 business view; days after the relevant completion date (ii) The increased withholding of specified in the plan, and advised of the funds for areas of continuous noncon- amount of title IV–B and title IV–E formity is subject to the provisions of funds which are to be withheld. paragraphs (c), (d), and (e) of this sec- (2) Title IV–B and title IV–E funds tion; will be withheld based on the following:
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(i) If the State fails to submit status § 1355.37 Opportunity for Public In- reports in accordance with spection of Review Reports and Ma- § 1355.35(d)(4), or if such reports indi- terials. cate that the State is not making sat- The State agency must make avail- isfactory progress toward achieving able for public review and inspection goals or actions steps, funds will be all statewide assessments (§ 1355.33(b)), withheld at that time for a period be- report of findings (§ 1355.33(e)), and pro- ginning October 1 of the fiscal year for gram improvement plans (§ 1355.35(a)) which the determination of noncon- developed as a result of a full or partial formity was made and ending on the child and family services review. specified completion date for the af- [65 FR 4082, Jan. 25, 2000] fected goal or action step. (ii) Funds related to goals and action § 1355.38 Enforcement of section steps that have not been achieved by 471(a)(18) of the Act regarding the the specified completion date will be removal of barriers to interethnic withheld at that time for a period be- adoption. ginning October 1 of the fiscal year for (a) Determination that a violation has which the determination of noncon- occurred in the absence of a court finding. formity was made and ending on the (1) If ACF becomes aware of a pos- completion date of the affected goal or sible section 471(a)(18) violation, action step; and whether in the course of a child and (iii) The withholding of funds com- family services review, the filing of a mensurate with the level of noncon- complaint, or through some other formity at the end of the program im- mechanism, it will refer such a case to the Department’s Office for Civil provement plan will begin at the latest Rights (OCR) for investigation. completion date specified in the pro- (2) Based on the findings of the OCR gram improvement plan and will con- investigation, ACF will determine if a tinue until a subsequent full review de- violation of section 471(a)(18) has oc- termines the State to be in substantial curred. A section 471(a)(18) violation conformity or the State successfully occurs if a State or an entity in the completes a program improvement State: plan developed as a result of that sub- (i) Has denied to any person the op- sequent full review. portunity to become an adoptive or fos- (3) When the date the State is deter- ter parent on the basis of the race, mined to be in substantial conformity color, or national origin of the person, or to have successfully completed a or of the child, involved; program improvement plan falls within (ii) Has delayed or denied the place- a specific quarter, the amount of funds ment of a child for adoption or into fos- to be withheld will be computed to the ter care on the basis of the race, color, end of that quarter. or national origin of the adoptive or (4) A State agency that refuses to foster parent, or the child involved; or, participate in the development or im- (iii) With respect to a State, main- plementation of a program improve- tains any statute, regulation, policy, ment plan, as required by ACF, will be procedure, or practice that on its face, subject to the maximum increased is a violation as defined in paragraphs withholding of 42 percent of its title (a)(2)(i) and (2)(ii) of this section. IV–B and title IV–E funds, as described (3) ACF will provide the State or en- in paragraph (b)(8) of this section, for tity with written notification of its de- each year or portion thereof to which termination. the withholding of funds applies. (4) If there has been no violation, there will be no further action. If ACF (5) The State agency will be liable for determines that there has been a viola- interest on the amount of funds with- tion of section 471(a)(18), it will take held by the Department, in accordance enforcement action as described in this with the provisions of 45 CFR 30.13. section. [65 FR 4081, Jan. 25, 2000] (5) Compliance with the Indian Child Welfare Act of 1978 (Pub. L. 95–608) does
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not constitute a violation of section notice from ACF that the plan has not 471(a)(18). been approved. If the State does not (b) Corrective action and penalties for submit a revised corrective action plan violations with respect to a person or according to the provisions of para- based on a court finding. graph (d) of this section, withholding of (1) A State found to be in violation of funds pursuant to the provisions of section 471(a)(18) with respect to a per- paragraph (g) of this section will apply. son, as described in paragraphs (a)(2)(i) (d) Contents of a corrective action plan. and (a)(2)(ii) of this section, will be pe- A corrective action plan must: nalized in accordance with paragraph (1) Identify the issues to be ad- (g)(2) of this section. A State deter- dressed; mined to be in violation of section (2) Set forth the steps for taking cor- 471(a)(18) of the Act as a result of a rective action; court finding will be penalized in ac- (3) Identify any technical assistance cordance with paragraph (g)(4) of this needs and Federal and non-Federal section. The State may develop, obtain sources of technical assistance which approval of, and implement a plan of will be used to complete the action corrective action any time after it re- steps; and, ceives written notification from ACF (4) Specify the completion date. This that it is in violation of section date will be no later than 6 months 471(a)(18) of the Act. from the date ACF approves the correc- (2) Corrective action plans are sub- tive action plan. ject to ACF approval. (3) If the corrective action plan does (e) Evaluation of corrective action not meet the provisions of paragraph plans. ACF will evaluate corrective ac- (d) of this section, the State must re- tion plans and notify the State (in vise and resubmit the plan for approval writing) of its success or failure to until it has an approved plan. complete the plan within 30 calendar (4) A State found to be in violation of days. If the State has failed to com- section 471(a)(18) by a court must no- plete the corrective action plan, ACF tify ACF within 30 days from the date will calculate the amount of reduction of entry of the final judgement once all in the State’s title IV–E payment and appeals have been exhausted, declined, include this information in the written or the appeal period has expired. notification of failure to complete the plan. (c) Corrective action for violations re- sulting from a State’s statute, regulation, (f) Funds to be withheld. The term policy, procedure, or practice. ‘‘title IV–E funds’’ refers to the (1) A State found to have committed amount of Federal funds advanced or a violation of the type described in paid to the State for allowable costs in- paragraph (a)(2)(iii) of this section curred by a State for foster care main- must develop and submit a corrective tenance payments, adoption assistance action plan within 30 days of receiving payments, administrative, and training written notification from ACF that it costs under title IV–E and the State’s is in violation of section 471(a)(18). allotment for the Independent Living Once the plan is approved the State program. will have to complete the corrective (g) Reduction of title IV–E funds. action and come into compliance. If (1) Title IV–E funds shall be reduced the State fails to complete the correc- in specified amounts in accordance tive action plan within six months and with paragraph (h) of this section come into compliance, a penalty will under the following circumstances: be imposed in accordance with para- (i) A determination that a State is in graph (g)(3) of this section. violation of section 471(a)(18) of the Act (2) Corrective action plans are sub- with respect to a person as described in ject to ACF approval. paragraphs (a)(2)(i) and (a)(2)(ii) of this (3) If the corrective action plan does section, or; not meet the provisions of paragraph (ii) After a State’s failure to imple- (d) of this section, the State must re- ment and complete a corrective action vise and resubmit the plan within 30 plan and come into compliance as de- days from the date it receives a written scribed in paragraph (c) of this section.
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(2) Once ACF notifies a State, in or fail to implement or complete a cor- writing, that it has committed a sec- rective action plan as described in tion 471(a)(18) violation with respect to paragraph (c) of this section will be a person, the State’s title IV–E funds subject to a penalty. The penalty will be reduced for the fiscal quarter in structure will follow section 474(d)(1) of which the State received such written the Act. Penalties will be levied for the notification and for each succeeding quarter of the fiscal year in which the quarter within that fiscal year or until State is notified of its section 471(a)(18) the State completes a corrective action violation, and for each succeeding plan and comes into compliance, quarter within that fiscal year until whichever is earlier. the State comes into compliance with (3) For States that fail to complete a section 471(a)(18). The reduction in title corrective action plan within 6 months, IV–E funds will be computed as follows: title IV–E funds will be reduced by ACF (i) 2 percent of the State’s title IV–E for the fiscal quarter in which the funds for the fiscal year quarter, as de- State received notification of its viola- fined in paragraph (f) of this section, tion. The reduction will continue for for the first finding of noncompliance each succeeding quarter within that in that fiscal year; fiscal year or until the State completes (ii) 3 percent of the State’s title IV– the corrective action plan and comes E funds for the fiscal year quarter, as into compliance, whichever is earlier. defined in paragraph (f) of this section, (4) If, as a result of a court finding, a for the second finding of noncompli- State is determined to be in violation ance in that fiscal year; of section 471(a)(18) of the Act, ACF (iii) 5 percent of the State’s title IV– will assess a penalty without further E funds for the fiscal year quarter, as investigation. Once the State is noti- defined in paragraph (f) of this section, fied (in writing) of the violation, its for the third or subsequent finding of title IV–E funds will be reduced for the noncompliance in that fiscal year. fiscal quarter in which the court find- (2) Any entity (other than the State ing was made and for each succeeding agency) which violates section quarter within that fiscal year or until 471(a)(18) of the Act during a fiscal the State completes a corrective action quarter with respect to any person plan and comes into compliance, must remit to the Secretary all title whichever is sooner. IV–E funds paid to it by the State dur- (5) The maximum number of quarters ing the quarter in which the entity is that a State will have its title IV–E notified of its violation. funds reduced due to a finding of a (3) No fiscal year payment to a State State’s failure to conform to section will be reduced by more than 5 percent 471(a)(18) of the Act is limited to the of its title IV–E funds, as defined in number of quarters within the fiscal paragraph (f) of this section, where the year in which a determination of non- State has been determined to be out of conformity was made. However, an un- compliance with section 471(a)(18) of corrected violation may result in a the Act. subsequent review, another finding, (4) The State agency or entity, as ap- and additional penalties. plicable, will be liable for interest on (6) No penalty will be imposed for a the amount of funds reduced by the De- court finding of a violation of section partment, in accordance with the pro- 471(a)(18) until the judgement is final visions of 45 CFR 30.13. and all appeals have been exhausted, [65 FR 4082, Jan. 25, 2000] declined, or the appeal period has ex- pired. § 1355.39 Administrative and judicial (h) Determination of the amount of re- review. duction of Federal funds. ACF will de- States determined not to be in sub- termine the reduction in title IV–E stantial conformity with titles IV–B funds due to a section 471(a)(18) viola- and IV–E State plan requirements, or a tion in accordance with section State or entity in violation of section 474(d)(1) of the Act. 471(a)(18) of the Act: (1) State agencies that violate sec- (a) May appeal, pursuant to 45 CFR tion 471(a)(18) with respect to a person part 16, the final determination and
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any subsequent withholding of, or re- appendix A to this part. For children duction in, funds to the HHS Depart- who enter foster care prior to October mental Appeals Board within 60 days 1, 1995 and who are still in the system, after receipt of a notice of noncon- core data elements will be required; in formity described in § 1355.36(e)(1) of addition, States will also be required to this part, or receipt of a notice of non- report on the most recent case plan compliance by ACF as described in goal affecting those children. For chil- § 1355.38(a)(3) of this part; and dren in out-of-State placement, the (b) Will have the opportunity to ob- State placing the child and making the tain judicial review of an adverse deci- foster care payment submits and con- sion of the Departmental Appeals tinually updates the data. Board within 60 days after the State or (3) For the purposes of adoption re- entity receives notice of the decision porting, data are required to be trans- by the Board. Appeals of adverse De- mitted by the State on all adopted partment Appeals Board decisions children who were placed by the State must be made to the district court of title IV–B/IV–E agency, and on all the United States for the judicial dis- adopted children for whom the State trict in which the principal or head- agency is providing adoption assistance quarters office of the agency respon- (either ongoing or for nonrecurring ex- sible for administering the program is penses), care or services directly or by located. contract or agreement with other pri- (c) The procedure described in para- vate or public agencies. Full adoption graphs (a) and (b) of this section will data as specified in appendix B to this not apply to a finding that a State or part are required only for children entity has been determined to be in adopted after the implementation date violation of section 471(a)(18) which is of October 1, 1994. For children adopted based on a judicial decision. prior to October 1, 1994, who are con- [65 FR 4083, Jan. 25, 2000] tinuing to receive title IV–E subsidies, aggregate data are to be reported. For § 1355.40 Foster care and adoption a child adopted out-of-State, the State data collection. which placed the child submits the (a) Scope of the data collection system. data. (1) Each State which administers or su- (b) Foster care and adoption reporting pervises the administration of titles requirements. (1) The State agency shall IV–B and IV–E must implement a sys- transmit semi-annually, within 45 days tem that begins to collect data on Oc- of the end of the reporting period (i.e., tober 1, 1994. The first transmission by May 15 and November 14), informa- must be received in ACF no later than tion on each child in foster care and May 15, 1995. The data reporting system each child adopted during the reporting must meet the requirements of period. The information to be reported § 1355.40(b) and electronically report consists of the data elements found in certain data regarding children in fos- appendices A and B to this part. The ter care and adoption. The foster care data must be extracted from the data data elements are listed and defined in system as of the last day of the report- Appendix A to this part and the adop- ing period and must be submitted in tion data elements are listed and de- electronic form as described in appen- fined in Appendix B to this part. dix C to this part and in record layouts (2) For the purposes of foster care re- as delineated in appendix D to this porting, each State’s data transmission part. must include all children in foster care (2) For foster care information, the for whom the State title IV–B/IV–E child-specific data to be transmitted agency has responsibility for place- must reflect the data in the informa- ment, care, or supervision. This in- tion system when the data are ex- cludes American Indian children cov- tracted. Dates of removal from the ered under the assurances in section home and discharge from foster care 422(b)(10) of the Act on the same basis must be entered in accordance with as any other child. For children in care paragraph (d)(1) of this section. The less than 30 days, only a core set of in- date of the most recent periodic review formation will be required, as noted in (either administrative or court) must
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be entered for children who have been the subject transactions must have in foster care for more than nine been entered into the system within 60 months. Entry of this date constitutes days of the event (removal from home State certification that the data on the or discharge from foster care). child have been reviewed and are cur- (2) Penalties shall be invoked as pro- rent. vided in paragraph (e) of this section. (3) Adoption data are to be reported (e) Penalties. (1) Failure by a State to during the reporting period in which meet any of the standards described in the adoption is legalized or, at the paragraphs (a) through (d) of this sec- State’s option, in the following report- tion is considered a substantial failure ing period if the adoption is legalized to meet the requirements of the title within the last 60 days of the reporting IV–E State plan. Penalties for substan- period. For a semi-annual period in tial noncompliance will be assessed which no adoptions have been legal- semi-annually against a State’s title ized, States must report such an occur- IV–E administrative cost reimburse- rence. ment in an amount that is equal to no (4) A summary file of the semi-an- more than 10 percent of the State’s an- nual data transmission must be sub- nual share of title IV–B funds above mitted and will be used to verify the the base appropriation of $141 million. completeness of the State’s detailed The amount of incentive funds, section submission for the reporting period. 427 of the Act, against which a penalty (5) A variety of internal data consist- can be assessed will remain the same as ency checks will be used to judge the the amount promulgated as being internal consistency of the semi-an- available to the States as of June 30, nual detailed data submission. These 1993, the date of issuance of the amount are specified in Appendix E to this of section 427 funds for fiscal year 1993 part. (see Appendix F to this part). The pen- (c) Missing data standards. (1) The alties will be calculated and applied re- term ‘‘missing data’’ refers to in- gardless of any determination of com- stances where no data have been en- pliance with the requirements of sec- tered, if applicable, for a particular tion 427, and regardless of whether any data element. In addition, all data ele- State has withdrawn its certification ments which fail a consistency check with respect to section 427. Years One for a particular case will be converted through three (October 1, 1994 through to missing data. All data which are September 30, 1997) will be three pen- ‘‘out of range’’ (i.e., the response is be- alty-free years of operation. Year Four yond the parameters allowed for that (October 1, 1997 through September 30, particular data element) will also be 1998) will be at half penalty and Year converted to missing data. Details of Five (October 1, 1998 through Sep- the circumstances under which data tember 30, 1999) and thereafter will be will be converted to missing data are at full penalty. The maximum annual specified in appendix E to this part. penalty is 20 percent. Data elements with responses of ‘‘can- (2) Penalties will be assessed semi- not be determined’’ or ‘‘not yet deter- annually against a State’s title IV–E mined’’ are not considered as having administrative cost reimbursement for missing data. the period in which the noncompliance (2) For missing data in excess of 10 occurred and any subsequent period of percent for any one data element, the noncompliance. Following a decision penalty will be applied. sustaining ACYF’s proposed action, (3) The penalties for missing data are funds will be recovered until the State specified in paragraph (e) of this sec- demonstrates, by submitting an ac- tion. ceptable report, that it will no longer (d) Timeliness of foster care data re- fail to comply. ports. (1) For each child, a computer (3) Half of the maximum allowable generated transaction date must re- assessed penalty for a given reporting flect the actual date of data entry and period is applicable to foster care re- must accompany the date of latest re- porting and half to adoption reporting. moval from the home and the date of (4) The penalty for foster care report- exit from foster care. Ninety percent of ing will be applied for any semi-annual
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period when a State fails to meet one (1) Provides for the State to collect or more of the following criteria: and electronically report certain data (i) Fails to submit the report within required by section 479(b) of the Act 45 days of the end of the reporting pe- and § 1355.40 of this part; riod as specified in paragraphs (b)(1) (2) To the extent practicable, pro- and (b)(2) of this section; or vides for an interface with the State (ii) There is one or more element data collection system for child abuse which exceeds the level of tolerance for and neglect; missing data as specified in paragraphs (3) To the extent practicable, pro- (c)(1) and (c)(2) of this section; or vides for an interface with and re- (iii) Fails to meet the timeliness trieval of information from the State standards as specified in paragraph automated information system that (d)(1) of this section. collects information relating to the eli- (5) The penalty for adoption report- gibility of individuals under title IV–A ing will be applied for any semi-annual of the Act; and period when a State fails to meet one (4) Provides for more efficient, eco- or more of the following criteria: nomical and effective administration (i) Fails to submit the report within of the programs carried out under a 45 days of the end of the reporting pe- State plan approved under title IV–B riod as specified in paragraphs (b)(1) and title IV–E. and (b)(3) of this section; or (b) States may also be reimbursed for (ii) There is one or more element the full amount of expenditures for the which exceeds the level of tolerance for hardware components for such systems missing data as specified in paragraphs at the rates provided under paragraph (c)(1) and (c)(2) of this section. (a) of this section. (c) Expenditures for the operation of (Information collection requirements con- the automated information system de- tained in paragraphs (a) and (b) of this sec- tion were approved on August 22, 1994, by the scribed in paragraph (a) of this section Office of Management and Budget under Con- are eligible for FFP at the 50 percent trol Number 0980–0267). matching rate. [58 FR 67924, Dec. 22, 1993, as amended at 60 [58 FR 67945, Dec. 22, 1993] FR 40507, Aug. 9, 1995; 65 FR 4084, Jan. 25, 2000] § 1355.53 Conditions for approval of funding. § 1355.50 Purpose of this part. (a) As a condition of funding, the This part sets forth the requirements SACWIS must be designed, developed and procedures States must meet in (or an existing system enhanced), and order to receive Federal financial par- installed in accordance with an ap- ticipation for the planning, design, de- proved advance planning document velopment, installation and operation (APD). The APD must provide for a de- of statewide automated child welfare sign which, when implemented, will information systems authorized under produce a comprehensive system, section 474(a)(3)(c) of the Act. which is effective and efficient, to im- [58 FR 67945, Dec. 22, 1993] prove the program management and administration of the State plans for § 1355.52 Funding authority for state- titles IV–B and IV–E as provided under wide automated child welfare infor- this section. mation systems (SACWIS). (b) At a minimum, the system must (a) States may receive Federal reim- provide for effective management, bursement at the 75 percent match rate tracking and reporting by providing for FY 1994, FY 1995 and FY 1996, and at automated procedures and processes to: the 50 percent level thereafter for ex- (1) Meet the Adoption and Foster penditures related to the planning, de- Care reporting requirements through sign, development and installation of a the collection, maintenance, integrity statewide automated child welfare in- checking and electronic transmission formation system, to the extent such of the data elements specified by the system: Adoption and Foster Care Analysis and
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Reporting System (AFCARS) require- (1) Resource management, including ments mandated under section 479(b) of automated procedures to assist in man- the Act and § 1355.40 of this part; aging service providers, facilities, con- (2) Provide, for electronic exchanges tracts and recruitment activities asso- and referrals, as appropriate, with the ciated with foster care and adoptive following systems within the State, un- families; less the State demonstrates that such (2) Tracking and maintenance of interface or integration would not be legal and court information, and prepa- practicable because of systems limita- ration of appropriate notifications to tions or cost constraints: relevant parties; (i) Systems operated under title IV– (3) Administration and management A, of staff and workloads; (ii) National Child Abuse and Neglect (4) Licensing verification; and Data Systems (NCANDS), (5) Risk analysis. (iii) Systems operated under title (d) The system may also provide for XIX, and interface with other automated infor- (iv) Systems operated under title IV– mation systems, including, but not D; limited to, accounting and licensing (3) Support the provisions of section systems, court and juvenile justice sys- 422(a) by providing for the automated tems, vital statistics and education, as collection, maintenance, management appropriate. and reporting of information on all (e) If the cost benefit analysis sub- children in foster care under the re- mitted as part of the APD indicates sponsibility of the State, including that adherence to paragraphs (c) and statewide data from which the demo- (d) of this section would not be cost graphic characteristics, location, and beneficial, final approval of the APD goals for foster care children can be de- may be withheld until resolution is termined; reached on the level of automation ap- (4) Collect and manage information propriate to meet the State’s needs. necessary to facilitate the delivery of (f) A Statewide automated child wel- client services, the acceptance and re- fare information system may be de- ferral of clients, client registration, signed, developed and installed on a and the evaluation of the need for serv- phased basis, in order to allow States ices, including child welfare services to implement AFCARS requirements under title IV–B Subparts 1 and 2, fam- expeditiously, in accordance with sec- ily preservation and family support tion 479(b) of the Act, as long as the ap- services, family reunificication and proved APD includes the State’s plan permanent placement; for full implementation of a com- (5) Collect and manage information prehensive system which meets all necessary to determine eligibility for: functional and data requirements as (i) The foster care program, specified in paragraphs (a) and (b) of (ii) The adoption assistance program, this section, and a system design which and will support these enhancements on a (iii) The independent living program; phased basis. (6) Support necessary case assess- (g) The system must perform Quality ment activities; Assurance functions to provide for the (7) Monitor case plan development, review of case files for accuracy, com- payment authorization and issuance, pleteness and compliance with Federal review and management, including eli- requirements and State standards. gibility determinations and redeter- [58 FR 67945, Dec. 22, 1993, as amended at 60 minations; and FR 26839, Mar. 19, 1995] (8) Ensure the confidentiality and se- curity of the information and the sys- § 1355.54 Submittal of advance plan- tem. ning documents. (c) A system established under para- The State title IV–E agency must graph (a) of this section may also pro- submit an APD for a statewide auto- vide support in meeting the following mated child welfare information sys- program functions: tem, signed by the appropriate State
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official, in accordance with procedures Federal suspension, all Federal incen- specified by 45 CFR part 95, subpart F. tive funds invested to date that exceed the normal administrative FFP rate (50 [58 FR 67946, Dec. 22, 1993] percent) will be subject to recoupment. § 1355.55 Review and assessment of [58 FR 67946, Dec. 22, 1993] the system developed with en- hanced funds. § 1355.57 Cost allocation. (a) ACF will, on a continuing basis, (a) All expenditures of a State to review, assess and inspect the plan- plan, design, develop, install, and oper- ning, design, development, installation ate the data collection and information and operation of the SACWIS to deter- retrieval system described in § 1355.53 of mine the extent to which such systems: this part shall be treated as necessary (1) Meet § 1355.53 of this chapter, for the proper and efficient administra- (2) Meet the goals and objectives tion of the State plan under title IV–E, stated in the approved APD, without regard to whether the system (3) Meet the schedule, budget, and may be used with respect to foster or other conditions of the approved APD, adoptive children other than those on and behalf of whom foster care mainte- (4) Comply with the automated data nance payments or adoption assistance processing services and acquisitions payments may be made under the procedures and requirements of 45 CFR State plan. part 95, subpart F. (b) Cost allocation and distribution (b) [Reserved] for the planning, design, development, [58 FR 67946, Dec. 22, 1993] installation and operation must be in accordance with § 95.631 of this title § 1355.56 Failure to meet the condi- and section 474(e) of the Act, if the tions of the approved APD. SACWIS includes functions, processing, (a) If ACF finds that the State fails information collection and manage- to meet any of the conditions cited in ment, equipment or services that are § 1355.53, or to substantially comply not directly related to the administra- with the criteria, requirements and tion of the programs carried out under other undertakings prescribed by the the State plan approved under title IV– approved APD, approval of the APD B or IV–E. may be suspended. (b) If the approval of an APD is sus- [58 FR 67946, Dec. 22, 1993] pended during the planning, design, de- APPENDIX A TO PART 1355—FOSTER velopment, installation, or operation of CARE DATA ELEMENTS the system: (1) The State will be given written Section I—Foster Care Data Elements notice of the suspension. This notice Data elements preceded by ‘‘**’’ are the shall state: only data elements required for children who (i) The reason for the suspension, have been in care less than 30 days. For chil- (ii) The date of the suspension, dren who entered care prior to October 1, (iii) Whether the suspended system 1995, data elements preceded by either ‘‘**’’ complies with criteria for 50 percent and ‘‘***’’ are the only data elements re- FFP, and quired. This means that, for these two cat- (iv) The actions required by the State egories of children, these are the only data elements to which the missing data standard for future enhanced funding. will be applied. (2) The suspension will be effective as I. General Information of the date the State failed to comply **A. State lllllllllllllllll with the approved APD; **B. Report datell (mo.) ll (yr.) (3) The suspension shall remain in ef- **C. Local Agency (County or Equivalent fect until ACF determines that such Jurisdiction) lllllllllllllll system complies with prescribed cri- **D. Record Number lllllllllll teria, requirements, and other under- E. Date of Most Recent Periodic Review (If Applicable)ll (mo.) ll (day) ll (yr.) takings for future Federal funding. II. Child’s Demographic Information (4) Should a State cease development **A. Date of Birth ll (mo.) ll (day) ll of an approved system, either by vol- (yr.) untary withdrawal or as a result of **B. Sex llll
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Male: 1 Physical Abuse (Alleged/Reported) llll Female: 2 Sexual Abuse (Alleged/Reported) lllll C. Race/Ethnicity Neglect (Alleged/Reported) llllllll 1. Race Alcohol Abuse (Parent) llllllllll a. American Indian or Alaska Native Drug Abuse (Parent) lllllllllll b. Asian Alcohol Abuse (Child) lllllllllll c. Black or African American Drug Abuse (Child) llllllllllll d. Native Hawaiian or Other Pacific Is- Child’s Disability lllllllllllll lander Child’s Behavior Problem lllllllll e. White Death of Parent(s) llllllllllll f. Unable to Determine Incarceration of Parent(s) llllllll 2. Hispanic or Latino Ethnicitylll Caretaker’s Inability to Cope Due to Ill- Yes: 1 ness or Other Reasons lllllllllll No: 2 Abandonment lllllllllllllll Unable to Determine: 3 Relinquishment llllllllllllll D. Has this child been clinically diagnosed Inadequate Housing llllllllllll as having a disability(ies)? llll **V. Current Placement Setting llllll Yes: 1 **A. Pre-Adoptive Home: 1 No: 2 Foster Family Home (Relative): 2 Not Yet Determined: 3 Foster Family Home (Non-Relative): 3 1. If yes, indicate each type of disability Group Home: 4 found with a ‘‘1’’ Institution: 5 Mental Retardation lll Supervised Independent Living: 6 Visually or Hearing Impaired lll Runaway: 7 Physically Disabled lll Trial Home Visit: 8 Emotionally Disturbed (DSM III) **B. Is Current Placement Out-of-State? l Other Medically Diagnosed Condition Re- Yes (Out-of-State Placement): 1 quiring Special Care lll No (In State Placement): 2 E. 1. Has this child ever been adopted? ***VI. Most Recent Case Plan Goal lllll llll Reunify With Parent(s) or Principal Care- Yes: 1 taker(s): 1 No: 2 Live With Other Relative(s): 2 Unable to Determine: 3 Adoption: 3 2. If yes, how old was the child when the Long Term Foster Care: 4 adoption was legalized? llll Emancipation: 5 Less than 2 years old: 1 Guardianship: 6 2 to 5 years old: 2 Case Plan Goal Not Yet Established: 7 6 to 12 years old: 3 VII. Principal Caretaker(s) Information 13 years old or older: 4 A. Caretaker Family Structure llllll Unable to Determine: 5 Married Couple: 1 III. Removal/Placement Setting Indicators Unmarried Couple: 2 A. Removal Episodes Single Female: 3 Date of First Removal From Home ll Single Male: 4 (mo.) ll (day) ll (yr.) Unable to Determine: 5 Total Number of Removals From Home to B. Year of Birth Date llll 1st Principal Caretaker llllllllll Date Child was Discharged From Last Fos- 2nd Principal Caretaker (If Applicable) ll ter Care Episode (If Applicable) ll VIII. Parental Rights Termination (If Appli- (mo.) ll (day) ll (yr.) cable) **Date of Latest Removal From Home ll A. Mother ll (mo.) ll (day) ll (yr.) (mo.) ll (day) ll (yr.) B. Legal or Putative Father ll (mo.) ll ** Transaction Date ll (mo.) ll (day) (day) ll (yr.) ll (yr.) IX. Foster Family Home—Parent(s) Data (To B. Placement Settings be answered only if Section V., Part A. Date of Placement in Current Foster Care CURRENT PLACEMENT SETTING is 1, 2 Setting ll (mo.) ll (day) lll (yr.) or 3) Number of Previous Placement Settings A. Foster Family Structure llllllll During This Removal Episode llll Married Couple: 1 IV. Circumstances of Removal Unmarried Couple: 2 A. Manner of Removal From Home for Cur- Single Female: 3 rent Placement Episode llll Single Male: 4 Voluntary: 1 B. Year of Birth Court Ordered: 2 1st Foster Caretaker lllllllllll Not Yet Determined: 3 2nd Foster Caretaker (If Applicable) lll B. Actions or Conditions Associated With C. Race/Ethnicity Child’s Removal: (Indicate all that apply 1. Race of 1st Foster Caretaker with a ‘‘1’’) a. American Indian or Alaska Native
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b. Asian This population includes all children su- c. Black or African American pervised by or under the responsibility of an- d. Native Hawaiian or Other Pacific Is- other public agency with which the title IV– lander B/IV–E State agency has an agreement under e. White title IV–E and on whose behalf the State f. Unable to Determine makes title IV–E foster care maintenance 2. Hispanic or Latino Ethnicity of 1st Fos- payments. ter Caretakerlll Foster care is defined as 24 hour substitute Yes: 1 care for children outside their own homes. No: 2 The reporting system includes all children Unable to Determine: 3 who have or had been in foster care at least 3. Race of 2nd Foster Caretaker (If Applica- 24 hours. The foster care settings include, ble) but are not limited to: a. American Indian or Alaska Native —Family foster homes b. Asian —Relative foster homes (whether payments c. Black or African American are being made or not) d. Native Hawaiian or Other Pacific Is- —Group homes lander —Emergency shelters e. White —Residential facilities f. Unable to Determine —Child care institutions 4. Hispanic or Latino Ethnicity of 2nd Foster —Pre-adoptive homes Caretaker (If applicable)lll llllll Foster care does not include children who Yes: 1 No: 2 are in their own homes under the responsi- Unable to Determine: 3 bility of the State agency. However, children X. Outcome Information who are at home on a trial basis may be in- **A. Date of Discharge From Foster Care cluded even though they are not considered ll (mo.) ll (day) ll (yr.) to be in foster care. If they are included, ele- **Transaction Date ll (mo.) ll (day) ment number V. CURRENT PLACEMENT ll (yr.) SETTING must be given the value of ‘‘8’’. lllllllll **B. Reason for Discharge I. General Information Reunification With Parents or Primary Caretakers: 1 A. State**—U.S. Postal Service two letter Living With Other Relative(s): 2 abbreviation for the State submitting the re- Adoption: 3 port. Emancipation: 4 B. Report Date**—The last month and the Guardianship: 5 year for the reporting period. Transfer to Another Agency: 6 C. Local Agency**—Identity of the county Runaway: 7 or equivalent unit which has responsibility Death of Child: 8 for the case. The 5 digit Federal Information XI. Source(s) of Federal Financial Support/ Processing Standard (FIPS) must be used. Assistance for Child (Indicate all that D. Record Number**—The sequential num- apply with a ‘‘1’’) ber which the State uses to transmit data to Title IV–E (Foster Care) lllllllll the Department of Health and Human Serv- Title IV–E (Adoption Assistance) lllll ices (DHHS) or a unique number which fol- Title IV–A (Aid to Families with Depend- lows the child as long as he or she is in foster ent Children) lllllllllllllll care. The record number cannot be linked to Title IV–D (Child Support) llllllll the child’s case I.D. number except at the Title XIX (Medicaid) lllllllllll State or local level. SSI or Other Social Security Act Benefits E. Date of Most Recent Periodic Review (If None of the Above lllllllllllll applicable)—For children who have been in XII. Amount of the monthly foster care pay- care seven months or longer, enter the ment (regardless of sources). month, day and year of the most recent ad- llllllll. ministrative or court review, including dispositional hearing. For children who have Section II—Definitions of and Instructions for been in care less than seven months, leave Foster Care Data Elements the field blank. An entry in this field cer- Reporting population. The population to be tifies that the child’s computer record is cur- included in this reporting system includes rent up to this date. all children in foster care under the responsi- II. Child’s Demographic Information bility of the State agency administering or supervising the administration of the title A. Date of Birth**—Month, day and year of IV-B Child and Family Services State plan the child’s birth. If the child is abandoned or and the title IV-E State plan; that is, all the date of birth is otherwise unknown, children who are required to be provided the enter an approximate date of birth. Use the assurances of section 422(b)(10) of the Social 15th as the day of birth. Security Act. B. Sex**—Indicate as appropriate.
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C. Race/Ethnicity** Mental Retardation—Significantly sub- 1. Race—In general, a person’s race is de- average general cognitive and motor func- termined by how they define themselves or tioning existing concurrently with deficits in by how others define them. In the case of adaptive behavior manifested during the de- young children, parents determine the race velopmental period that adversely affect a of the child. Indicate all races (a through e) child’s/youth’s socialization and learning. that apply with a ‘‘1.’’ For those that do not Visually or Hearing Impaired—Having a apply, indicate a ‘‘0.’’ Indicate ‘‘f. Unable to visual impairment that may significantly af- Determine’’ with a ‘‘1’’ if it applies and a ‘‘0’’ fect educational performance or develop- if it does not. ment; or a hearing impairment, whether per- American Indian or Alaska Native—A per- manent or fluctuating, that adversely affects son having origins in any of the original peo- educational performance. ples of North or South America (including Central America), and who maintains tribal Physically Disabled—A physical condition affiliation or community attachment. that adversely affects the child’s day-to-day Asian—A person having origins in any of motor functioning, such as cerebral palsy, the original peoples of the Far East, South- spina bifida, multiple sclerosis, orthopedic east Asia, or the Indian subcontinent includ- impairments, and other physical disabilities. ing, for example, Cambodia, China, India, Emotionally Disturbed (DSM III)—A condi- Japan, Korea, Malaysia, Pakistan, the Phil- tion exhibiting one or more of the following ippine Islands, Thailand, and Vietnam. characteristics over a long period of time Black or African American—A person hav- and to a marked degree: An inability to build ing origins in any of the black racial groups or maintain satisfactory interpersonal rela- of Africa. tionships; inappropriate types of behavior or Native Hawaiian or Other Pacific Is- feelings under normal circumstances; a gen- lander—A person having origins in any of the eral pervasive mood of unhappiness or de- original peoples of Hawaii, Guam, Samoa, or pression; or a tendency to develop physical other Pacific Islands. symptoms or fears associated with personal White—A person having origins in any of problems. The term includes persons who are the original peoples of Europe, the Middle schizophrenic or autistic. The term does not East, or North Africa. include persons who are socially mal- Unable to Determine—The specific race adjusted, unless it is determined that they category is ‘‘unable to determine’’ because are also seriously emotionally disturbed. The the child is very young or is severely dis- diagnosis is based on the Diagnostic and Sta- abled and no person is available to identify tistical Manual of Mental Disorders (Third the child’s race. ‘‘Unable to determine’’ is Edition) (DSM III) or the most recent edi- also used if the parent, relative or guardian tion. is unwilling to identify the child’s race. 2. Hispanic or Latino Ethnicity—Answer Other Medically Diagnosed Conditions Re- ‘‘yes’’ if the child is of Mexican, Puerto quiring Special Care—Conditions other than Rican, Cuban, Central or South American or- those noted above which require special med- igin, or a person of other Spanish cultural ical care such as chronic illnesses. Included origin regardless of race. Whether or not a are children diagnosed as HIV positive or person is Hispanic or Latino is determined with AIDS. by how they define themselves or by how E. 1. Has this child ever been adopted? If others define them. In the case of young chil- this child has ever been legally adopted, dren, parents determine the ethnicity of the enter ‘‘yes.’’ If the child has never been le- child. ‘‘Unable to Determine’’ is used because gally adopted, enter ‘‘no’’. Enter ‘‘Unable to the child is very young or is severely dis- Determine’’ if the child has been abandoned abled and no person is available to determine or the child’s parent(s) are otherwise not whether or not the child is Hispanic or available to provide the information. Latino. ‘‘Unable to determine’’ is also used if 2. If yes, how old was the child when the the parent, relative or guardian is unwilling adoption was legalized? Enter the number to identify the child’s ethnicity. which represents the appropriate age range. D. Has the child been clinically diagnosed If uncertain, use an estimate. If no one is as having a disability(ies)? ‘‘Yes’’ indicates available to provide the information, enter that a qualified professional has clinically ‘‘Unable to Determine.’’ diagnosed the child as having at least one of the disabilities listed below. ‘‘No’’ indicates III. Removal/Placement Setting Indicators that a qualified professional has conducted a A. Removal Episodes—The removal of the clinical assessment of the child and has de- termined that the child has no disabilities. child from his/her normal place of residence ‘‘Not Yet Determined’’ indicates that a clin- resulting in his/her placement in a foster ical assessment of the child by a qualified care setting. professional has not been conducted. Date of First Removal From Home— 1. Indicate Each Type of Disability With a Month, day and year the child was removed ‘‘1’’ from home for the first time for purpose of
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placement in a foster care setting. If the cur- B. Actions or Conditions Associated With rent 1 removal is the first removal, enter the Child’s Removal (Indicate all that apply with date of the current removal. a ‘‘1’’.) Total Number of Removals from Home to Physical Abuse—Alleged or substantiated Date—The number of times the child was re- physical abuse, injury or maltreatment of moved from home, including the current re- the child by a person responsible for the moval. child’s welfare. Date Child was Discharged From Last Fos- Sexual Abuse—Alleged or substantiated ter Care Episode (If Applicable)—For chil- sexual abuse or exploitation of a child by a dren with prior removals, enter the month, person who is responsible for the child’s wel- day and year they were discharged from care fare. for the episode immediately prior to the cur- Neglect—Alleged or substantiated neg- rent episode. For children with no prior re- ligent treatment or maltreatment, including movals, leave blank. failure to provide adequate food, clothing, Date of Latest Removal From Home**— shelter or care. Month, day and year the child was last re- Alcohol Abuse (Parent)—Principal care- moved from his/her home for the purpose of taker’s compulsive use of alcohol that is not being placed in foster care. This would be the of a temporary nature. date for the current episode or, if the child Drug Abuse (Parent)—Principal care- has exited foster care, the date of removal taker’s compulsive use of drugs that is not of for the most recent removal. a temporary nature. Alcohol Abuse (Child)—Child’s compulsive Transaction Date**—A computer generated use of or need for alcohol. This element date which accurately indicates the month, should include infants addicted at birth. day and year the response to ‘‘Date of Latest Drug Abuse (Child)—Child’s compulsive Removal From Home’’ was entered into the use of or need for narcotics. This element information system. should include infants addicted at birth. B. Placement Settings. Child’s Disability—Clinical diagnosis by a Date of Placement in Current Foster Care qualified professional of one or more of the Setting—Month, day and year the child following: Mental retardation; emotional moved into the current foster home, facility, disturbance; specific learning disability; residence, shelter, institution, etc. for pur- hearing, speech or sight impairment; phys- poses of continued foster care. ical disability; or other clinically diagnosed Number of Previous Placement Settings handicap. Include only if the disability(ies) During This Removal Episode—Enter the was at least one of the factors which led to number of places the child has lived, includ- the child’s removal. ing the current setting, during the current Child’s Behavior Problem—Behavior in the removal episode. Do not include trial home school and/or community that adversely af- visits as a placement setting. fects socialization, learning, growth, and moral development. These may include adju- IV. Circumstances of Removal dicated or nonadjudicated child behavior A. Manner of Removal From Home for Cur- problems. This would include the child’s run- rent Placement Episode. ning away from home or other placement. Voluntary Placement Agreement—An offi- Death of Parent(s)—Family stress or in- cial voluntary placement agreement has ability to care for child due to death of a been executed between the caretaker and the parent or caretaker. agency. The placement remains voluntary Incarceration of Parent(s)—Temporary or even if a subsequent court order is issued to permanent placement of a parent or care- continue the child in foster care. taker in jail that adversely affects care for Court Ordered—The court has issued an the child. order which is the basis of the child’s re- Caretaker’s Inability to Cope Due to Ill- moval. ness or Other Reasons—Physical or emo- tional illness or disabling condition ad- Not Yet Determined—A voluntary place- versely affecting the caretaker’s ability to ment agreement has not been signed or a care for the child. court order has not been issued. This will mostly occur in very short-term cases. When Abandonment—Child left alone or with either a voluntary placement agreement is others; caretaker did not return or make signed or a court order issued, the record whereabouts known. should be updated to reflect the manner of Relinquishment—Parent(s), in writing, as- removal at that time. signed the physical and legal custody of the child to the agency for the purpose of having the child adopted. 1 For children who have exited foster care, Inadequate Housing—Housing facilities ‘‘current’’ refers to the most recent removal were substandard, overcrowded, unsafe or episode and the most recent placement set- otherwise inadequate resulting in their not ting. being appropriate for the parents and child
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to reside together. Also includes homeless- ter care for a limited time to enable the ness. agency to work with the family with whom the child had been living prior to entering V. Current Placement Setting** foster care in order to reestablish a stable A. Identify the type of setting in which the family environment. child currently lives. Live With Other Relatives—The goal is to Pre-Adoptive Home—A home in which the have the child live permanently with a rel- family intends to adopt the child. The family ative or relatives other than the ones from may or may not be receiving a foster care whom the child was removed. This could in- payment or an adoption subsidy on behalf of clude guardianship by a relative(s). the child. Adoption—The goal is to facilitate the Foster Family Home (Relative)—A li- child’s adoption by relatives, foster parents censed or unlicensed home of the child’s rel- or other unrelated individuals. atives regarded by the State as a foster care Long Term Foster Care—Because of spe- living arrangement for the child. cific factors or conditions, it is not appro- Foster Family Home (Non-Relative)—A li- priate or possible to return the child home or censed foster family home regarded by the place her or him for adoption, and the goal is State as a foster care living arrangement. to maintain the child in a long term foster Group Home—A licensed or approved home care placement. providing 24-hour care for children in a small Emancipation—Because of specific factors group setting that generally has from seven or conditions, it is not appropriate or pos- to twelve children. sible to return the child home, have a child Institution—A child care facility operated live permanently with a relative or have the by a public or private agency and providing child be adopted; therefore, the goal is to 24-hour care and/or treatment for children maintain the child in a foster care setting who require separation from their own until the child reaches the age of majority. homes and group living experience. These fa- Guardianship—The goal is to facilitate the cilities may include: Child care institutions; child’s placement with an agency or unre- residential treatment facilities; maternity lated caretaker, with whom he or she was homes; etc. not living prior to entering foster care, and Supervised Independent Living—An alter- whom a court of competent jurisdiction has native transitional living arrangement designated as legal guardian. where the child is under the supervision of Case Plan Goal Not Yet Established—No the agency but without 24 hour adult super- case plan goal has yet been established other vision, is receiving financial support from then the care and protection of the child. the child welfare agency, and is in a setting which provides the opportunity for increased VII. Principal Caretaker(s) Information responsibility for self care. Runaway—The child has run away from A. Caretaker Family Structure—Select the foster care setting. from the four alternatives—married couple, Trial Home Visit—The child has been in a unmarried couple, single female, single foster care placement, but, under State agen- male—the category which best describes the cy supervision, has been returned to the type of adult caretaker(s) from whom the principal caretaker for a limited and speci- child was removed for the current foster care fied period of time. episode. Enter ‘‘Unable to Determine’’ if the B. Is current placement setting out of child has been abandoned or the child’s care- State? takers are otherwise unknown. ‘‘Yes’’ indicates that the current place- B. Year of Birth—Enter the year of birth ment setting is located outside of the state for up to two caretakers. If the response to making the report. data element VII. A—Caretaker Family ‘‘No’’ indicates that the child continues to Structure, was 1 or 2, enter data for two reside within the state making the report. caretakers. If the response was 3 or 4, enter data only for the first caretaker. If the exact NOTE: Only the state with placement and year of birth is unknown, enter an estimated care responsibility for the child should in- year of birth. clude the child in this reporting system. VI. Most Recent Case Plan Goal*** VIII. Parental Rights Termination Indicate the most recent case plan goal for Enter the month, day and year that the the child based on the latest review of the court terminated the parental rights. If the child’s case plan—whether a court review or parents are known to be deceased, enter the an administrative review. If the child has date of death. been in care less than six months, enter the IX. Family Foster Home—Parent(s) Data goal in the case record as determined by the caseworker. Provide information only if data element Reunify With Parents or Principal Care- in Section V., Part A. CURRENT PLACE- taker(s)—The goal is to keep the child in fos- MENT SETTING is 1, 2, or 3.
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A. Foster Family Structure—Select from XI. SOURCE(S) OF FEDERAL SUPPORT/ASSIST- the four alternatives—married couple, un- ANCE FOR CHILD (INDICATE ALL THAT APPLY married couple, single female, single male— ITH A ‘‘1’’.) the category which best describes the nature Title IV–E (Foster Care)—Title IV–E foster of the foster parents with whom the child is care maintenance payments are being paid living in the current foster care episode. on behalf of the child. B. Year of Birth—Enter the year of birth Title IV–E (Adoption Subsidy)—Title IV–E for up to two foster parents. If the response adoption subsidy is being paid on behalf of to data element IX. A.—Foster Family the child who is in an adoptive home, but the Structure, was 1 or 2, enter data for two adoption has not been legalized. caretakers. If the response was 3 or 4, enter Title IV–A (Aid to Families With Depend- data only for the first caretaker. If the exact ent Children)—Child is living with relative(s) year of birth is unknown, enter an estimated whose source of support is an AFDC payment year of birth. for the child. Title IV–D (Child Support)—Child support C. Race—Indicate the race for each of the funds are being paid to the State agency on foster parent(s). See instructions and defini- behalf of the child by assignment from the tions for the race categories under data ele- receiving parent. ment II.C.1. Use ‘‘f. Unable to Determine’’ Title XIX (Medicaid)—Child is eligible for only when a parent is unwilling to identify and may be receiving assistance under title his or her race. Hispanic or Latino Eth- XIX. nicity—Indicate the ethnicity for each of the SSI or Other Social Security Act Bene- foster parent(s). See instructions and defini- fits—Child is receiving support under title tions under data element II.C.2. Use ‘‘f. Un- XVI or other Social Security Act titles not able to Determine’’ only when a parent is un- included in this section. willing to identify his or her ethnicity. None of the Above—Child is receiving sup- port only from the State or from some other X. Outcome Information source (Federal or non-Federal) which is not indicated above. Enter data only for children who have exited foster care during the reporting pe- XII. AMOUNT OF THE MONTHLY FOSTER CARE riod. PAYMENT (REGARDLESS OF SOURCES)—ENTER A. Date of Discharge From Foster Care**— THE MONTHLY PAYMENT PAID ON BEHALF OF Enter the month, day and year the child was THE CHILD REGARDLESS OF SOURCE (I.E., FED- discharged from foster care. If the child has ERAL, STATE, COUNTY, MUNICIPALITY, TRIB- not been discharged from care, leave blank. AL, AND PRIVATE PAYMENTS). IF TITLE IV–E Transaction Date**—A computer generated IS PAID ON BEHALF OF THE CHILD THE date which accurately indicates the month, AMOUNT INDICATED SHOULD BE THE TOTAL COMPUTABLE AMOUNT. IF THE PAYMENT MADE day and year the response to ‘‘Date of Dis- ON BEHALF OF THE CHILD IS NOT THE SAME charge from Foster Care’’ was entered into EACH MONTH, INDICATE THE AMOUNT OF THE the information system. LAST FULL MONTHLY PAYMENT MADE DURING B. Reason for Discharge**. THE REPORTING PERIOD. IF NO MONTHLY PAY- Reunification With Parents or Primary MENT HAS BEEN MADE DURING THE PERIOD, Caretakers—The child was returned to his or ENTER ALL ZEROS. her principal caretaker(s)’ home. Living With Other Relatives—The child [58 FR 67926, Dec. 22, 1993; 59 FR 13535, Mar. went to live with a relative other than the 22, 1994; 59 FR 42520, Aug. 18, 1994; 60 FR 40507, one from whose home he or she was removed. Aug. 9, 1995; 60 FR 46887, Sept. 8, 1995; 65 FR Adoption—The child was legally adopted. 4084, Jan. 25, 2000] Emancipation—The child reached majority according to State law by virtue of age, mar- APPENDIX B TO PART 1355—ADOPTION riage, etc. DATA ELEMENTS Guardianship—Permanent custody of the Section I—Adoption Data Elements child was awarded to an individual. Transfer to Another Agency—Responsi- I. General Information A. State llllllllllllllllll bility for the care of the child was awarded B. Report Date ll(mo.) ll(day) ll(yr.) to another agency—either in or outside of C. Record Number lllllllllllll the State. D. Did the State Agency Have any Involve- Runaway—The child ran away from the ment in This Adoption? llll foster care placement. Yes: 1 Death of Child—The child died while in fos- No: 2 ter care. II. Child’s Demographic Information
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A. Date of Birth ll(mo) ll(day) ll(yr.) C. Race/Ethnicity B. Sex ll 1. Adoptive Mother’s Race (If Applicable) Male: 1 a. American Indian or Alaska Native Female: 2 b. Asian C. Race/Ethnicity c. Black or African American 1. Race d. Native Hawaiian or Other Pacific Is- a. American Indian or Alaska Native lander b. Asian e. White c. Black or African American f. Unable to Determine d. Native Hawaiian or Other Pacific Is- 2. Hispanic or Latino Ethnicity of Mother lander (If Applicable)lll e. White Yes: 1 f. Unable to Determine No: 2 2. Hispanic or Latino Ethnicitylll Unable to Determine: 3 Yes: 1 3. Adoptive Father’s Race (If Applicable) No: 2 a. American Indian or Alaska Native Unable to determine: 3 b. Asian III. Special Needs Status c. Black or African American A. Has the State child welfare agency de- d. Native Hawaiian or Other Pacific Is- termined that this child has special lander needs? llll e. White Yes: 1 f. Unable to Determine No: 2 4. Hispanic or Latino Ethnicity of Father B. If yes, indicate the primary basis for de- (If Applicable)lll termining that this child has special Yes: 1 needs llll No: 2 Racial/Original Background: 1 Unable to Determine: 3 Age: 2 D. Relationship of Adoptive Parent(s) to Membership in a Sibling Group to be the Child (Indicate with a ‘‘1’’ all that Placed for Adoption Together: 3 apply) Medical Conditions or Mental, Physical or Stepparent Emotional Disabilities: 4 Other Relative of Child by Birth or Mar- Other: 5 riage llll 1. If III. B was ‘‘4,’’ indicate with a ‘‘1’’ the Foster Parent of Child llll type(s) of disability(ies) Non-Relative llll Mental Retardation llll VII. Placement Information Visually or Hearing Impaired llll A. Child Was Placed From llll Physically Disabled llll Within State: 1 Emotionally Disturbed (DSM III) llll Another State: 2 Other Medically Diagnosed Condition Re- Another Country: 3 quiring Special Care llll B. Child Was Placed by llll IV. Birth Parents Public Agency: 1 A. Year of Birth llll Private Agency: 2 Mother, If known llll Tribal Agency: 3 Father (Putative or Legal), if known Independent Person: 4 llll Birth Parent: 5 B. Was the mother married at the time of VIII. Federal/State Financial Adoption Sup- the child’s birth? llll port Yes: 1 A. Is a monthly financial subsidy being No: 2 paid for this child? llll Unable to Determine: 3 Yes: 1 V. Court Actions No: 2 A. Dates of Termination of Parental B. If yes, the monthly amount llll Rights C. If VIII. A is yes, is the subsidy paid Mother ll(mo.) ll(day) ll(yr.) under Title IV–E adoption assistance? Father ll(mo.) ll(day) ll(yr.) llll B. Date Adoption Legalized ll(mo.) Yes: 1 ll(day) ll(yr.) No: 2 VI. Adoptive Parents A. Family Structure llll Section II—Definitions of Instructions for Married Couple: 1 Adoption Data Elements Unmarried Couple: 2 Reporting population Single Female: 3 Single Male: 4 The State must report on all children who B. Year of Birth are adopted in the State during the reporting Mother (if Applicable) llll period and in whose adoption the State title Father (if Applicable) llll IV–B/IV–E agency has had any involvement.
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All adoptions which occurred on or after Oc- II. Child’s Demographic Information tober 1, 1994 and which meet the criteria set A. Date of Birth—Month and year of the forth in this regulation must be reported. child’s birth. If the child was abandoned or Failure to report on these adoptions will re- the date of birth is otherwise unknown, sult in penalties being assessed. Reports on enter an approximate date of birth. all other adoptions are encouraged but are B. Sex—Indicate as appropriate. voluntary. Therefore, reports on the fol- C. Race/Ethnicity lowing are mandated: 1. Race—In general, a person’s race is de- (a) All children adopted who had been in termined by how they define themselves or foster care under the responsibility and care by how others define them. In the case of of the State child welfare agency and who young children, parents determine the race were subsequently adopted whether special of the child. Indicate all races (a–e) that needs or not and whether subsidies are pro- apply with a ‘‘1.’’ For those that do not vided or not; apply, indicate a ‘‘0.’’ Indicate ‘‘f. Unable to (b) All special needs children who were Determine’’ with a 1’’ if it applies and a ‘‘0’’ adopted in the State, whether or not they if it does not. were in the public foster care system prior to American Indian or Alaska Native—A per- their adoption and for whom non-recurring son having origins in any of the original peo- expenses were reimbursed; and ples of North or South America (including (c) All children adopted for whom an adop- Central America), and who maintains tribal tion assistance payment or service is being affiliation or community attachment. provided based on arrangements made by or Asian—A person having origins in any of through the State agency. the original peoples of the Far East, South- These children must be identified by an- east Asia, or the Indian subcontinent includ- swering ‘‘yes’’ to data element I.D. Children ing, for example, Cambodia, China, India, who are reported by the State, but for whom Japan, Korea, Malaysia, Pakistan, the Phil- there has not been any State involvement, ippine Islands, Thailand, and Vietnam. and whose reporting, therefore, has not been Black or African American—A person hav- mandated, are identified by answering ‘‘no’’ ing origins in any of the black racial groups to element I.D. of Africa. Native Hawaiian or Other Pacific Is- I. General Information lander—A person having origins in any of the A. State—U.S. Postal Service two letter original peoples of Hawaii, Guam, Samoa, or abbreviation for the State submitting the re- other Pacific Islands. port. White—A person having origins in any of B. Report Date—The last month and the the original peoples of Europe, the Middle year for the reporting period. East, or North Africa. C. Record Number—The sequential number Unable to Determine—The specific race which the State uses to transmit data to the category is ‘‘unable to determine’’ because Department of Health and Human Services the child is very young or is severely dis- (DHHS). The record number cannot be linked abled and no person is available to identify the child’s race. ‘‘Unable to determine’’ is to the child except at the State or local also used if the parent, relative or guardian level. is unwilling to identify the child’s race. D. Did the State Agency Have Any Involve- 2. Hispanic or Latino Ethnicity—Answer ment in This Adoption? ‘‘yes’’ if the child is of Mexican, Puerto Indicate whether the State Title IV–B/IV– Rican, Cuban, Central or South American or- E agency had any involvement in this adop- igin, or a person of other Spanish cultural tion, that is, whether the adopted child be- origin regardless of race. Whether or not a longs to one of the following categories: person is Hispanic or Latino is determined • A child who had been in foster care under by how they define themselves or by how the responsibility and care of the State child others define them. In the case of young chil- welfare agency and who was subsequently dren, parents determine the ethnicity of the adopted whether special needs or not and child. ‘‘Unable to Determine’’ is used because whether a subsidy was provided or not; the child is very young or is severely dis- • A special needs child who was adopted in abled and no other person is available to de- the State, whether or not he/she was in the termine whether or not the child is Hispanic public foster care system prior to his/her or Latino. ‘‘Unable to determine’’ is also adoption and for whom non-recurring ex- used if the parent, relative or guardian is un- penses were reimbursed; or willing to identify the child’s ethnicity. • A child for whom an adoption assistance III. Special Needs Status payment or service is being provided based on arrangements made by or through the A. Has the State Agency Determined That State agency. the Child has Special Needs?
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Use the State definition of special needs as ical care such as chronic illnesses. Included it pertains to a child eligible for an adoption are children diagnosed as HIV positive or subsidy under title IV–E. with AIDS. B. Primary Factor or Condition for Special Needs—Indicate only the primary factor or IV. Birth Parents condition for categorization as special needs A. Year of Birth—Enter the year of birth and only as it is defined by the State. for both parents, if known. If the child was Racial/Original Background—Primary con- abandoned and no information was available dition or factor for special needs is racial/ on either one or both parents, leave blank original background as defined by the State. for the parent(s) for which no information Age—Primary factor or condition for spe- was available. cial needs is age of the child as defined by the State. B. Was the Mother Married at the Time of Membership in a Sibling Group to be the Child’s Birth? Placed for Adoption Together—Primary fac- Indicate whether the mother was married tor or condition for special needs is member- at time of the child’s birth; include common ship in a sibling group as defined by the law marriage if legal in the State. If the State. child was abandoned and no information was Medical Conditions of Mental, Physical, or available on the mother, enter ‘‘Unable to Emotional Disabilities—Primary factor or Determine.’’ condition for special needs is the child’s medical condition as defined by the State, V. Court Actions but clinically diagnosed by a qualified pro- A. Dates of Termination of Parental fessional. Rights—Enter the month, day and year that When this is the response to question B, the court terminated parental rights. If the then item 1 below must be answered. parents are known to be deceased, enter the 1. Types of Disabilities—Data are only to date of death. be entered if response to III.B was ‘‘4.’’ Indi- B. Date Adoption Legalized—Enter the cate with a ‘‘1’’ the types of disabilities. date the court issued the final adoption de- Mental Retardation—Significantly sub- cree. average general cognitive and motor func- tioning existing concurrently with deficits in VI. Adoptive Parents adaptive behavior manifested during the de- velopmental period that adversely affect a A. Family Structure—Select from the four child’s/youth’s socialization and learning. alternatives—married couple, unmarried Visually or Hearing Impaired—Having a couple, single female, single male—the cat- visual impairment that may significantly af- egory which best describes the nature of the fect educational performance or develop- adoptive parent(s) family structure. ment; or a hearing impairment, whether per- B. Year of Birth—Enter the year of birth manent or fluctuating, that adversely affects for up to two adoptive parents. If the re- educational performance. sponse to data element IV.A—Family Struc- Physically Disabled—A physical condition ture, was 1 or 2, enter data for two parents. that adversely affects the child’s day-to-day If the response was 3 or 4, enter data only for motor functioning, such as cerebral palsy, the appropriate parent. If the exact year of spina bifida, multiple sclerosis, orthopedic birth is unknown, enter an estimated year of impairments, and other physical disabilities. birth. Emotionally Disturbed (DSM III)—A condi- C. Race/Ethnicity—Indicate the race/eth- tion exhibiting one or more of the following nicity for each of the adoptive parent(s). See characteristics over a long period of time instructions and definitions for the race/eth- and to a marked degree: An inability to build nicity categories under data element II.C. or maintain satisfactory interpersonal rela- Use ‘‘f. Unable to Determine’’ only when a tionships; inappropriate types of behavior or parent is unwilling to identify his or her race feelings under normal circumstances; a gen- or ethnicity. eral pervasive mood of unhappiness or de- D. Relationship to Adoptive Parent(s)—In- pression; or a tendency to develop physical dicate the prior relationship(s) the child had symptoms or fears associated with personal with the adoptive parent(s). problems. The term includes persons who are Stepparent—Spouse of the child’s birth schizophrenic or autistic. The term does not mother or birth father. include persons who are socially mal- Other Relative of Child by Birth or Mar- adjusted, unless it is determined that they riage—A relative through the birth parents are also seriously emotionally disturbed. Di- by blood or marriage. agnosis is based on the Diagnostic and Statis- Foster Parent of Child—Child was placed tical Manual of Mental Disorders (Third Edi- in a non-relative foster family home with a tion) (DSM III) or the most recent edition. family which later adopted him or her. The Other Medically Diagnosed Conditions Re- initial placement could have been for the quiring Special Care—Conditions other than purpose of adoption or for the purpose of fos- those noted above which require special med- ter care.
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Non-Relative—Adoptive parent fits into gotiate a method of transmission best suited none of the categories above. to the States’ environment. There will be four semi-annual electronic VII. Placement Information data transmissions from the States to the A. Child Was Placed From: Indicate the lo- Administration for Children and Families cation of the individual or agency that had (ACF). The Summary Submission File, one custody or responsibility for the child at the each for Foster Care and Adoption, and the time of initiation of adoption proceedings. Detail Submission File, one each for Foster Within State—Responsibility for the child Care and Adoption. The Summary File must be transmitted first, followed immediately resided with an individual or agency within by the Detail File. See appendix D for Foster the State filing the report. Care and Adoption Detail and Summary Another State—Responsibility for the record layout formats. child resided with an individual or agency in There are four methods for electronic data another State or territory of the United exchange currently operating for other De- States. partmental programs of a similar nature. Another Country—Immediately prior to These methods are: (1) MITRON tape-to-tape the adoptive placement, the child was resid- transfer, (2) mainframe-to-mainframe data ing in another country and was not a citizen transfer, (3) personal computer (PC) to main- of the United States. frame data transmission using a data trans- B. Child Was Placed By: Indicate the indi- fer protocol, and (4) a personal computer to vidual or agency which placed the child for personal computer protocol. A general de- adoption. scription of these methods is provided below: Public Agency—A unit of State or local government. 1. MITRON, Tape-to-Tape Data Transmission Private Agency—A for-profit or non-profit In order to use the MITRON system, both agency or institution. the sender and receiver must have MITRON Tribal Agency—A unit within one of the equipment (tape drive and main unit) and Federally recognized Indian Tribes or Indian software. The MITRON system is capable of Tribal Organizations. handling a large volume of data but is lim- Independent Person—A doctor, a lawyer or ited to one reel of tape per transmission ses- some other individual. sion. (If the data quantity exceeds one tape, Birth Parent—The parent(s) placed the a header/trailer record must be placed on child directly with the Adoptive parent(s). each physical tape reel.) These are standard VIII. State/Federal Adoption Support 2400 foot tapes, using standard labels. The tape density is limited to the 1600 bits per A. Is The Child Receiving a Monthly Sub- inch (bpi) specification. sidy? Enter ‘‘yes’’ if this child was adopted with 2. Mainframe-to-Mainframe an adoption assistance agreement under The ACF has installed a mainframe-to- which regular subsidies (Federal or State) mainframe data exchange system using the are paid. Sterling Software data transfer package B. Monthly Amount—Indicate the monthly called ‘‘SUPERTRACS.’’ This package will amount of the subsidy. The amount of the allow data exchange between most computer subsidy should be rounded to the nearest dol- platforms (both mini and mainframe) and lar. Indicate ‘‘0’’ if the subsidy includes only the Department’s mainframe in a dial-up benefits under titles XIX or XX of the Social mode. No additional software is needed by Security Act. the remote computer site beyond what the C. If VIII.A is ‘‘Yes,’’ is Child Receiving Department will supply. This method has Title IV–E Adoption Subsidy? proven effective for small to moderate If VIII.A is ‘‘yes,’’ indicate whether the amounts (100 to 5,000 records) of data. subsidy is claimed by the State for reim- bursement under title IV–E. Do not include 3. Electronic File Transfer Between PC and title IV–E non-recurring costs in this item. Mainframe [58 FR 67929, Dec. 22, 1993; 59 FR 42520, Aug. This method uses the SIMPC software 18, 1994; 65 FR 4084, Jan. 25, 2000] package on the personal computer and the host mainframe. The software will be pro- APPENDIX C TO PART 1355—ELECTRONIC vided by the Department. This method is DATA TRANSMISSION FORMAT best suited for small to moderate (100 to 5,000) records transmissions. The advantages All AFCARS data to be sent from State of Electronic File Transfer are the elimi- agencies/Indian Tribes to the Department nation of tapes and associated problems and are to be in electronic form. In order to meet the advantage of automatic record checking this general specification, the Department during the transmission session. If a State is will offer as much flexibility as possible. currently maintaining the AFCARS data on Technical assistance will be provided to ne- a personal computer and is unable to
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download and upload to its mainframe, Elec- (4) All States and Indian Tribes must in- tronic File Transfer is an appropriate trans- form the Department, in writing, of the mission mechanism. method of transfer they intend to use. 4. Personal Computer to Personal Computer [58 FR 67931, Dec. 22, 1993; 59 FR 42520, Aug. 18, 1994, as amended at 60 FR 40507, Aug. 9, This method uses the SIMPC software 1995] package on the sending personal computer and the receiving personal computer. The APPENDIX D TO PART 1355—FOSTER software will be provided by the Department. This method is best suited for small to mod- CARE AND ADOPTION RECORD LAYOUTS erate (100 to 5,000) records transmissions. A. Foster Care The advantages of Electronic File Transfer are the elimination of tapes and associated 1. Foster Care Semi-Annual Detailed Data problems and the advantage of automatic Elements Record record checking during the transmission ses- sion. If a State is currently maintaining the a. The record will consist of 66 data AFCARS data on a personal computer, the elements. personal computer to personal computer b. Data must be supplied for each of the transfer is an appropriate transmission elements in accordance with these instruc- mechanism. tions: In conjunction with Departmental staff, State agencies and Indian Tribes should re- (1) All data must be numeric. Enter the ap- view their resources and select the system propriate value for each element. that will best suit their data transmission (2) Enter date values in year, month and needs. Over time, State agencies and Indian day order (YYYYMMDD), e.g., 19991030 for Tribes can change their transmission meth- October 30, 1999, or year and month order ods, provided that proper notification is pro- (YYYYMM), e.g., 199910 for October 1999. vided. Leave the element value blank if dates are Regardless of the electronic data trans- not applicable. mission methodology selected, certain cri- (3) For elements 8, 11–15, 26–40, 52, 54 and teria must be met by the State agencies and 59–65, which are ‘‘select all that apply’’ ele- Indian Tribes: ments, enter a ‘‘1’’ for each element that ap- (1) Records must be written using ASCII plies, enter a zero for non-applicable ele- standard character format. ments. (2) All elements must be comprised of inte- (4) Transaction Date—is a computer gen- ger (numeric) value(s). Element character erated date indicating when the datum (Ele- length specifications refer to the maximum ments 21 or 55) is entered into the State’s number of numeric values permitted for that automated information system. element. See appendix D. (5) Report the status of all children in fos- (3) All records must be a fixed length. The ter care as of the last day of the reporting Foster Care Detailed Data Elements Record period. Also, provide data for all children is 150 characters long and the Adoption De- who were discharged from foster care at any tailed Data Elements Record is 72 characters time during the reporting period, or in the long. The Foster Care Summary Data Ele- previous reporting period, if not previously ments Record and the Adoption Summary reported. Data Elements Record are each 172 char- c. Foster Care Semi-Annual Detailed Data acters long. Elements Record Layout follows:
No. of nu- Element No. Appendix A data element Data element description meric char- acters
01 ...... I.A...... State ...... 2 02 ...... I.B...... Report period ending date ...... 6 03 ...... I.C...... Local Agency FIPS code (county or equivalent jurisdiction) ...... 5 04 ...... I.D...... Record number ...... 12 05 ...... I.E...... Date of most recent periodic review ...... 8 06 ...... II.A...... Child's date of birth ...... 8 07 ...... II.B...... Sex ...... 1 08 ...... II.C.1...... Race. 08a ...... American Indian or Alaska native ...... 1 08b ...... Asian ...... 1 08c ...... Black or African American ...... 1 08d ...... Native Hawaiian or Other Pacific Islander ...... 1 08e ...... White ...... 1 08f ...... Unable to Determine ...... 1 09 ...... II.C.2...... Hispanic or Latino Ethnicity ...... 1 10 ...... II.D...... Has this child been clinically diagnosed as having a disability(ies) 1 Indicate each type of disability of the child with a ``1'' for ele- ments 11±15 and a zero for disabilities that do not apply.
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No. of nu- Element No. Appendix A data element Data element description meric char- acters
11 ...... II.D.1.a...... Mental retardation ...... 1 12 ...... II.D.1.b...... Visually or hearing impaired ...... 1 13 ...... II.D.1.c...... Physically disabled ...... 1 14 ...... II.D.1.d...... Emotionally disturbed (DSM III) ...... 1 15 ...... II.D.1.e ...... Other medically diagnosed condition requiring special care ...... 1 16 ...... II.E.1...... Has this child ever been adopted ...... 1 17 ...... II.E.2...... If yes, how old was the child when the adoption was legalized? .... 1 18 ...... III.A.1...... Date of first removal from home ...... 8 19 ...... III.A.2...... Total number of removals from home to date ...... 2 20 ...... III.A.3...... Date child was discharged from last foster care episode ...... 8 21 ...... III.A.4...... Date of latest removal from home ...... 8 22 ...... III.A.5...... Removal transaction date ...... 8 23 ...... III.B.1...... Date of placement in current foster care setting ...... 8 24 ...... III.B.2...... Number of previous placement settings during this removal epi- 2 sode. 25 ...... IV.A...... Manner of removal from home for current placement episode ...... 1 Actions or conditions associated with child's removal: Indi- cate with a ``1'' for elements 26±40 and a zero for condi- tions that do not apply. 26 ...... IV.B.1...... Physical abuse (alleged/reported) ...... 1 27 ...... IV.B.2...... Sexual abuse (alleged/reported) ...... 1 28 ...... IV.B.3...... Neglect (alleged/reported) ...... 1 29 ...... IV.B.4...... Alcohol abuse (parent) ...... 1 30 ...... IV.B.5...... Drug abuse (parent) ...... 1 31 ...... IV.B.6...... Alcohol abuse (child) ...... 1 32 ...... IV.B.7...... Drug abuse (child) ...... 1 33 ...... IV.B.8...... Child's disability ...... 1 34 ...... IV.B.9...... Child's behavior problem ...... 1 35 ...... IV.B.10...... Death of parent(s) ...... 1 36 ...... IV.B.11...... Incarceration of parent(s) ...... 1 37 ...... IV.B.12...... Caretaker's inability to cope due to illness or other reasons ...... 1 38 ...... IV.B.13...... Abandonment ...... 1 39 ...... IV.B.14...... Relinquishment ...... 1 40 ...... IV.B.15...... Inadequate housing ...... 1 41 ...... V.A...... Current placement setting ...... 1 42 ...... V.B...... Out of State placement ...... 1 43 ...... VI...... Most recent case plan goal ...... 1 44 ...... VII.A...... Caretaker family structure ...... 1 45 ...... VII.B.1...... Year of birth (1st principal caretaker) ...... 4 46 ...... VII.B.2...... Year of birth (2nd principal caretaker) ...... 4 47 ...... VIII.A...... Date of mother's parental rights termination ...... 8 48 ...... VIII.B...... Date of legal or putative father's parental rights ...... 8 49 ...... IX.A...... Foster family structure ...... 1 50 ...... IX.B.1...... Year of birth (1st foster caretaker) ...... 4 51 ...... IX.B.2...... Year of birth (2nd foster caretaker) ...... 4 52 ...... IX.C.1...... Race of 1st foster caretaker. 52a ...... American Indian or Alaska Native ...... 1 52b ...... Asian ...... 1 52c ...... Black or Asian American ...... 1 52d ...... Native Hawaiian or Other Pacific Islander ...... 1 52e ...... White ...... 1 52f ...... Unable to Determine ...... 1 53 ...... IX.C.2...... Hispanic or Latino ethnicity of 1st foster caretaker ...... 1 54 ...... IX.C.3...... Race of 2nd foster caretaker. 54a ...... American Indian or Alaska Native ...... 1 54b ...... Asian ...... 1 54c ...... Black or African American ...... 1 54d ...... Native Hawaiian or Other pacific islander ...... 1 54e ...... White ...... 1 54f ...... Unable to Determine ...... 1 55 ...... IX.C.4...... Hispanic or Latino ethnicity of 2nd foster caretaker ...... 1 56 ...... X.A.1...... Date of discharge from foster care ...... 8 57 ...... X.A.2...... Foster care discharge transaction date ...... 8 58 ...... X.B...... Reason for discharge ...... 1 Sources of Federal support/assistance for child; indicate with a ``1'' for elements 58±64 and a zero for sources that do not apply. 59 ...... XI.A...... Title IV±E (Foster Care) ...... 1 60 ...... XI.B...... Title IV±E (Adoption Assistance) ...... 1 61 ...... XI.C...... Title IV±A (Aid to Families With Dependent Children) ...... 1 62 ...... XI.D...... Title IV±D (Child Support) ...... 1 63 ...... XI.E...... Title XIX (Medicaid) ...... 1
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No. of nu- Element No. Appendix A data element Data element description meric char- acters
64 ...... XI.F...... SSI or other Social Security Act benefits ...... 1 65 ...... XI.G...... None of the above ...... 1 66 ...... XII ...... Amount of monthly foster care payment (regardless of source) ...... 5
Total characters ...... 197
2. Foster Care Semi-Annual Summary Data b. Data must be supplied for each of the Elements Record elements in accordance with these instruc- a. The record will consist of 22 data ele- tions: ments. (1) Enter the appropriate value for each The values for these data elements are gen- element. erated by processing all records in the semi- (2) For all elements where the total is zero, annual detailed data transmission and com- enter a numeric zero. puting the summary values for Elements 1 (3) Enter date values in year, month order and 3–22. Element 2 is the semi-annual report (YYYYMM), e.g.,199912 for December 1999. period ending date. In calculating the age c. Foster Care Semi-Annual Summary range for the child, the last day of the re- Data Elements Record Layout follows: porting period is to be used.
No. of char- Element No. Summary data file acters
01 ...... Number of records ...... 8 02 ...... Report period ending date (YYYYMM) ...... 6 03 ...... Children in care under 1 year ...... 8 04 ...... Children in care 1 year old ...... 8 05 ...... Children in care 2 years old ...... 8 06 ...... Children in care 3 years old ...... 8 07 ...... Children in care 4 years old ...... 8 08 ...... Children in care 5 years old ...... 8 09 ...... Children in care 6 years old ...... 8 10 ...... Children in care 7 years old ...... 8 11 ...... Children in care 8 years old ...... 8 12 ...... Children in care 9 years old ...... 8 13 ...... Children in care 10 years old ...... 8 14 ...... Children in care 11 years old ...... 8 15 ...... Children in care 12 years old ...... 8 16 ...... Children in care 13 years old ...... 8 17 ...... Children in care 14 years old ...... 8 18 ...... Children in care 15 years old ...... 8 19 ...... Children in care 16 years old ...... 8 20 ...... Children in care 17 years old ...... 8 21 ...... Children in care 18 years old ...... 8 22 ...... Children in care over 18 years old ...... 8
Record Length ...... 174
B. Adoption
1. Adoption Semi-Annual Detailed Data Elements Record a. The record will consist of 37 data elements. b. Data must be supplied for each of the elements in accordance with these in- structions: (1) Enter the appropriate value for each element. (2) Enter date values in year, month and day order (YYYYMMDD), e.g., 19991030 for October 30, 1999, or year and month (YYYYMM), e.g., 199910 for October 1999. Leave the element value blank if dates are not applicable. (3) For elements 7, 11–15, 25, 27 and 29–32 which are ‘‘select all that apply’’ ele- ments, enter a ‘‘1’’ for each element that applies; enter a zero for non-applicable elements. c. Adoption Semi-Annual Detailed Data Elements Record Layout follows:
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No. of nu- Element No. Appendix B data element Data element description meric char- acters
01 ...... I.A...... State ...... 2 02 ...... I.B...... Report period ending date ...... 6 03 ...... I.C...... Record number ...... 6 04 ...... I.D...... State Agency involvement ...... 1 05 ...... II.A...... Date of birth ...... 6 06 ...... II.B...... Sex ...... 1 07 ...... II.C.1...... Race. 07a ...... American Indian or Alaska Native ...... 1 07b ...... Asian ...... 1 07c ...... Black or African American ...... 1 07d ...... Native Hawaiian or Other Pacific Islander ...... 1 07e ...... White ...... 1 07f ...... Unable to Determine ...... 1 08 ...... II.C.2...... Hispanic or Latino ethnicity ...... 1 09 ...... III.A ...... Has the State Agency determined that this child has special needs 1 10 ...... III.B ...... Primary basis for special needs ...... 1 Indicate a primary basis of special needs with a ``1'' for ele- ments 11±15. Enter a zero for special needs that do not apply. 11 ...... III.B.1.a ...... Mental retardation ...... 1 12 ...... III.B.1.b...... Visually or hearing impaired ...... 1 13 ...... III.B.1.c ...... Physically disabled ...... 1 14 ...... III.B.1.d ...... Emotionally disturbed (DSM III) ...... 1 15 ...... III.B.1.e...... Other medically diagnosed condition requiring special care ...... 1 16 ...... IV.A.1...... Mother's year of birth ...... 4 17 ...... IV.A.2...... Father's (Putative or legal) year of birth ...... 4 18 ...... IV.B...... Was the mother married at time of child's birth ...... 1 19 ...... V.A.1...... Date of mother's termination of parental rights ...... 8 20 ...... V.A.2...... Date of father's termination of parental rights ...... 8 21 ...... V.B...... Date adoption legalized ...... 8 22 ...... VI.A...... Adoptive parents family structure ...... 1 23 ...... VI.B.1 ...... Mother's year of birth (if applicable) ...... 4 24 ...... VI.B.2 ...... Father's year of birth (if applicable) ...... 4 25 ...... VI.C.1...... Adoptive mother's race. 25a ...... American Indian or Alaska Native ...... 1 25b ...... Asian ...... 1 25c ...... Black or African American ...... 1 25d ...... Native Hawaiian or Other Pacific Islander ...... 1 25e ...... White ...... 1 25f ...... Unable to Determine ...... 1 26 ...... VI.C.2 ...... Hispanic or Latino Ethnicity ...... 1 27 ...... VI.C.3 ...... Adoptive father's race. 27a ...... American Indian or Alaska Native ...... 1 27b ...... Asian ...... 1 27c ...... Black or African American ...... 1 27d ...... Native Hawaiian or Other Pacific Islander ...... 1 27e ...... White ...... 1 27f ...... Unable to Determine ...... 1 28 ...... VI.C.4 ...... Hispanic or Latino Ethnicity ...... 1 Indicate each type of relationship of adoptive parent(s) to the child with a ``1'' for elements 29±32. Enter a zero for rela- tionships that do not apply below. 29 ...... VI.D.1 ...... Stepparent ...... 1 30 ...... VI.D.2...... Other relative of child by birth or marriage ...... 1 31 ...... VI.D.3 ...... Foster parent of child ...... 1 32 ...... VI.D.4 ...... Other non-relative ...... 1 33 ...... VII.A...... Child was placed from ...... 1 34 ...... VII.B...... Child was placed by ...... 1 35 ...... VIII.A...... Is this child receiving a monthly subsidy ...... 1 36 ...... VIII.B...... If VIII.B is ``yes.'' What is the monthly amount ...... 5 37 ...... VIII.C ...... If VII.B is ``yes.'' Is the child receiving title IV±E adoption assist- 1 ance?...... Total Characters ...... 111
2. Adoption Semi-Annual Summary Data Elements Record a. The record will consist of 22 data elements. The values for these data elements are generated by processing all records in the semi-annual detailed data transmission and computing the summary values for Elements 1 and 3–22. Element 2 is the semi-annual report period ending date.
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In calculating the age range for the child, the last day of the reporting period is to be used. b. Data must be supplied for each of the elements in accordance with these in- structions: (1) Enter the appropriate value for each element. (2) For all elements where the total is zero, enter a numeric zero. (3) Enter data values in year, month order (YYYYMM), e.g., 199912 for December 1999. c. Adoption Semi-Annual Summary Data Element Record Layout follows:
No. of char- Element No. Summary data file acters
01 ...... Number of records ...... 8 02 ...... Report period ending date (YYYYMM) ...... 6 03 ...... Children adopted Under 1 year old ...... 8 04 ...... Children adopted 1 year old ...... 8 05 ...... Children adopted 2 years old ...... 8 06 ...... Children adopted 3 years old ...... 8 07 ...... Children adopted 4 years old ...... 8 08 ...... Children adopted 5 years old ...... 8 09 ...... Children adopted 6 years old ...... 8 10 ...... Children adopted 7 years old ...... 8 11 ...... Children adopted 8 years old ...... 8 12 ...... Children adopted 9 years old ...... 8 13 ...... Children adopted 10 years old ...... 8 14 ...... Children adopted 11 years old ...... 8 15 ...... Children adopted 12 years old ...... 8 16 ...... Children adopted 13 years old ...... 8 17 ...... Children adopted 14 years old ...... 8 18 ...... Children adopted 15 years old ...... 8 19 ...... Children adopted 16 years old ...... 8 20 ...... Children adopted 17 years old ...... 8 21 ...... Children adopted 18 years old ...... 8 22 ...... Children adopted over 18 years old ...... 8
Record Length ...... 174
[58 FR 67931, Dec. 22, 1993; 59 FR 13535, Mar. 22, 1994; 59 FR 42520, Aug. 18, 1994, as amended at 60 FR 40507, Aug. 9, 1995; 65 FR 4085, Jan. 25, 2000]
APPENDIX E TO PART 1355—DATA transmissions must be sent through elec- STANDARDS tronic means (see appendix C for details). This summary will be used to verify basic All data submissions will be evaluated to counts of records on the detailed data re- determine the completeness and internal ceived. consistency of the data. Four types of assess- a. The summary file must be a discrete file ments will be conducted on both the foster separate from the semi-annual reporting pe- care and adoption data submissions. The re- riod detailed data file. The record layout for sults of these assessments will determine the the summary file is included in appendix D. applicability of the penalty provisions. (See section A.2.c. All data must be included. If § 1355.40(e) for penalty provision description.) the value for a numeric field is zero, zero The four types of assessments are: must be entered. • Comparisons of the detailed data to sum- b. The Department will develop a second mary data; summary file by computing the values from • Internal consistency checks of the de- the detailed data file received from the tailed data; State. The two summary files (the one sub- • An assessment of the status of missing mitted by the State and the one created dur- data; and ing Federal processing) will be compared, • Timeliness, an assessment of how current field by field. If the two files match, further the submitted data are. validation of the detailed data elements will commence. (See Section A.2 below.) If the A. Foster Care two summary files do not match, we will as- sume that there has been an error in trans- 1. Summary Data Elements Submission mission and will request a retransmission Standards from the State within 24 hours of the time A summary file must accompany the De- the State has been notified. In addition, a tailed Data Elements submission. Both log of these occurrences will be kept as a
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means of cataloging problems and offering (9) At least one element between elements suggestions on improved procedures. 26 and 40 must be answered by selecting a ‘‘1’’. Enter a zero (0) for conditions that do 2. Detailed Data File Submission Standards not apply. a. Internal Consistency Validations. (10) If Current Placement Setting (Element Internal consistency validations involve 41) is a value that indicates that the child is evaluating the logical relationships between not in a foster family or a pre-adoptive data elements in a detailed record. For ex- home, then elements 49–55 must be zero (0). ample, a child cannot be discharged from fos- (11) At least one element between elements ter care before he or she has been removed 59 and 65 must be answered by selecting a from his or her home. Thus, the Date of Lat- ‘‘1’’. Enter a zero for sources that do not est Removal From Home data element must be a date prior to the Date of Discharge. If apply. this is not case, an internal inconsistency (12) If the answer to the question, ‘‘Has will be detected and an ‘‘error’’ indicated in this child ever been adopted?’’ (Element 16) the detailed data file. is ‘‘1’’ (Yes), then the question, ‘‘How old was A number of data elements have ‘‘if appli- the child when the adoption was legalized?’’ cable’’ contingency relationships with other (Element 17) must have an answer from ‘‘1’’ data elements in the detailed record. For ex- to ‘‘5.’’ ample, if the Foster Family Structure has (13) If the Date of Most Recent Periodic only a single parent, then the appropriate Review (Element 5) is not blank, then Man- sex of the Single Female/Male element in the ner of Removal From Home for Current ‘‘Year of Birth’’ and ‘‘Race/Origin’’ elements Placement Episode (Element 25) cannot be must be completed and the ‘‘non-applicable’’ option 3, ‘‘Not Yet Determined.’’ fields for these elements are to be filled with (14) If Reason for Discharge (Element 58) is zero’s or, for dates, left blank. The internal consistency validations that option 3, ‘‘Adoption,’’ then Parental Rights will be performed on the foster care detailed Termination dates (Elements 46 and 47) must data are as follows: not be blank. (1) The Local Agency must be the county (15) If the Date of Latest Removal From or a county equivalent unit which has re- Home (Element 21) is present, the Date of sponsibility for the case. The 5 digit Federal Latest Removal From Home Transaction Information Processing Standard (FIPS) Date (Element 22) must be present and must code must be used. be later than or equal to the Date of Latest (2) If Date of Latest Removal From Home Removal From Home (Element 21). (Element 21) is less than nine months prior (16) If the Date of Discharge From Foster to the Report Period Ending Date (Element Care (Element 56) is present, the Date of Dis- 2) then the Date of Most Recent Periodic Re- charge From Foster Care Transaction Date view (Element 5) may be left blank. (Element 57) must be present and must be (3) If Date of Latest Removal From Home later than or equal to the Date of Discharge (Element 21) is greater than nine months From Foster Care (Element 56). from Report Date (Element 2) then the Date of Most Recent Periodic Review (Element 5) (17) If the Date of Discharge From Foster must not be more than nine months prior to Care (Element 56) is present, it must be after the Report Date (Element 2). the Date of Latest Removal From Home (4) If a child is identified as having a dis- (Element 21). ability(ies) (Element 10), at least one Type of (18) In Elements 8, 52, and 54, race cat- Disability Condition (Elements 11–15) must egories (‘‘a’’ through ‘‘e’’) and ‘‘f. Unable to be indicated. Enter a zero (0) for disabilities Determine’’ cannot be coded ‘‘0,’’ for it does that do not apply. not apply. If any of the race categories apply (5) If the Total Number of Removals From and are coded as ‘‘1’’ then ‘‘f. Unable to De- Home to Date (Element 19) is one (1), the termine’’ cannot also apply. Date Child was Discharged From Last Foster b. Out-of-Range Standards. Care Episode (Element 20) must be blank. Out-of-range standards relate to the occur- (6) If the Total Number of Removals From rence of values in response to data elements Home to Date (Element 19) is two or more, that exceed, either positively or negatively, then the Date Child was Discharged From the acceptable range of responses to the Last Foster Care Episode (Element 20) must not be blank. question. For example, if the acceptable re- (7) If Data Child was Discharged From Last sponses to the element, Sex of the Adoptive Foster Care Episode (Element 20) exists, then Child, is ‘‘1’’ for a male and ‘‘2’’ for a female, this date must be a date prior to the Date of but the datum provided in the element is Latest Removal From Home (Element 21). ‘‘3,’’ this represents an out-of-range response (8) The Date of Latest Removal From situation. Home (Element 21) must be prior to the Date Out-of-range comparisons will be made for of Placement in Current Foster Care Setting all elements. The acceptable values are de- (Element 23). scribed in Appendix A, Section I.
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3. Missing Data Standards Element No. Element description The term ‘‘missing data’’ refers to in- stances where data for an element are re- 45 ...... Year of birth of 1st principal caretaker. quired but are not present in the submission. 46 ...... Year of birth of 2nd principal caretaker. Data elements with values of ‘‘Unable to De- 47 ...... Date of mother's parental rights termination. termine,’’ ‘‘Not Yet Determined’’ or which 48 ...... Legal of putative father parental rights termi- are not applicable, are not considered miss- nation date. ing. 49 ...... Foster family structure. 50 ...... Year of birth of 1st foster caretaker. a. In addition, the following situations will 51 ...... Year of birth of 2nd foster caretaker. result in converting data values to a missing 52 ...... Race of 1st foster caretaker. data status: 53 ...... Hispanic or Latino Ethnicity of 1st foster care- (1) Data elements whose values fail inter- taker nal consistency validations as outlined in 54 ...... Race of 2nd foster caretaker. A.2.a.(1)–(18) above, and 55 ...... Hispanic or Latino Ethnicity of 2nd foster care- (2) Data elements whose values are out-of- taker range. 56 ...... Date of discharge from foster care. 57 ...... Foster care discharge transaction date. b. The maximum amount of allowable 58 ...... Reason for discharge. missing data is dependent on the data ele- 59±65 ...... Sources of Federal support/assistance for child ments as described below: (at least one must be selected). (1) No Missing Data. 66 ...... Amount of monthly foster care payment (re- The data for the elements listed below gardless of source). must be present in all records in the submis- sion. If any record contains missing data for c. Penalty Processing. any of these elements, the entire submission Missing data are a major factor in deter- will be considered missing and processing mining the application of the penalty provi- will not proceed. sions of this regulation. (1) Selection Rules. Element Element name All data elements will be used in calcu- No. lating the missing data provision of the pen- 01 ...... State. alty unless one of the following limiting 02 ...... Report date. rules applies to the detailed case record. 03 ...... Local agency FIPS code. (a) If Date of Latest Removal From Home 04 ...... Record number. (Element 21) and the Date of Discharge From Foster Care (Element 56) is less than 30 days, (2) Less Than Ten Percent Missing Data. then the following date elements are the The data for the elements listed below can- only ones to be used in evaluating the miss- not have ten percent or more missing data ing data provisions for purposes of penalty without incurring a penalty. calculation: Element Elements No. Element description 1 to 4 6 to 9 05 ...... Date of most recent periodic, review. 21 and 22 06 ...... Child's date of birth. 07 ...... Child's sex. 41 and 42 08 ...... Child's race. 56 to 58 09 ...... Child's Hispanic or Latino Ethnicity 10 ...... Does child have a disability(ies)? (b) If Date of Latest Removal From Home 11±15 ...... Type of disability (at least one must be se- (Element 18) is prior to October 1, 1995, then lected). the following data elements are the only 16 ...... Has child been adopted? ones to be used in evaluating the missing 17 ...... How old was child when adoption was legal- data provisions for purposes of penalty cal- ized? culation: 18 ...... Date of first removal from home. 19 ...... Total number of removals from home to date. Elements 20 ...... Date child was discharged from last foster 1 to 4 care. 6 to 9 21 ...... Date of latest removal from home. 21 and 22 22 ...... Removal transaction date. 41 and 43 23 ...... Date of placement in current foster care set- ting. 56 to 58 24 ...... Number of previous placement settings during (2) Penalty Calculations. this removal episode. The percentage calculation will be per- 25 ...... Manner of removal from home for current formed for each data element. The total placement episode. number of detailed records that are included 26±40 ...... Actions or conditions associated with child's re- by the selection rules in 3.c.(1), will serve as moval (at least one must be selected). the denominator. The number of missing 41 ...... Current placement setting. 42 ...... Out of State placement. data occurrences for each element will serve 43 ...... Most recent case plan goal. as the numerator. The result will be multi- 44 ...... Caretaker family structure. plied by one hundred. The penalty is invoked
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when any one element’s missing data per- commence. (See section B.2 below.) If the centage is ten percent or greater. two summary files do not match, we will as- sume that there has been an error in trans- 4. Timeliness of Foster Care Data Reports mission and will request a retransmission The semi-annual reporting periods will be from the State within 24 hours of the time as of the end of March and September for the State has been notified. In addition, a each year. The States are required to submit log of these occurrences will be kept as a reports within 45 calendar days after the end means of cataloging problems and offering of the semi-annual reporting period. suggestions on improved procedures. Computer generated transaction dates in- dicate the date when key foster care events 2. Detailed Data Elements File Submission are entered into the State’s computer sys- Standards tem. The intent of these transaction dates is to ensure that information about the status a. Internal Consistency Validations of children in foster care is recorded and, Internal consistency validations involve thus, reported in a timely manner. evaluating the logical relationships between a. Date of Latest Removal From Home data elements in a detailed record. For ex- The Date of Latest Removal From Home ample, an adoption cannot be finalized until Transaction Date (Element 22) must not be parental rights have been terminated. Thus, more than 60 days after the Date of Latest the dates of Mother/Father Termination of Removal From Home (Element 21) event. Parental Rights, elements must be present b. Date of Discharge From Foster Care and the dates must be prior to the ‘‘Date The Date of Discharge From Foster Care Adoption Legalized.’’ If this is not the case, Transaction Date (Element 57) must not be an internal inconsistency will be detected more than 60 days after the Date of Dis- and an ‘‘error’’ indicated in the detailed data charge From Foster Care (Element 56) event. file. For purposes of penalty processing, ninety percent of the records in a detailed data sub- A number of data elements have ‘‘if appli- mission, must indicate that: cable’’ contingency relationships with other (1) The difference between the Date of Lat- data elements in the detailed record. For ex- est Removal From Home Transaction Date ample, if the Adoptive Parent is single, then (Element 22) and the Date of Latest Removal the appropriate sex of the single female/male From Home (Element 21) event is 60 days or element in the ‘‘Family Structure,’’ ‘‘Year of less; Birth’’ and ‘‘Race/Origin’’ elements must be and, where applicable, completed and the ‘‘non-applicable’’ fields for these elements are to be filled with zeros (2) The difference between the Date of Dis- or left blank. charge From Foster Care Transaction Date (Element 57), and the Date of Discharge The internal consistency validations that From Foster Care (Element 56) event is 60 will be performed on the adoption detailed days or less. data are as follows: (1) The Child’s Date of Birth (Element 5) B. Adoption must be later than both the Mother’s and Fa- ther’s Year of Birth (Elements 16 and 17) un- 1. Summary Data Elements File Submission less either of these is unknown.) Standards (2) If the State child welfare agency has de- A summary file must accompany the de- termined that the child is a special needs tailed Data Elements File submission. Both child (Element 9), then ‘‘the primary basis files must be sent through electronic means for determining that this child has special (see appendix C for details). This summary needs’’ (Element 10) must be completed. If will be used to verify the completeness of the ‘‘the primary basis for determining that this Detailed Data File submission received. child has special needs’’ (Element 10) is an- a. The summary file should be a discrete swered by option ‘‘4,’’ then at least one ele- file separate from the semi-annual reporting ment between Elements 11–15, ‘‘Type of Dis- period detailed data file. The record layout ability,’’ must be selected. Enter a zero (0) for the summary file is included in appendix for disabilities that do not apply. D, section B.2.c. All data must be included. If the value for a numeric field is zero, zero (3) Dates of Parental Rights Termination must be entered. (Elements 19 and 20) must be completed and b. The Department will develop a second must be prior to the Date Adoption Legal- summary file by computing the values from ized (Element 21). the detailed data file received from the (4) If ‘‘Is a monthly financial subsidy being State. The two summary files (the one sub- paid for this child’’ (Element 35) is answered mitted by the State and the one created dur- negatively, ‘‘2’’, then Element 36 must be ing Federal processing) will be compared, zero (0) and ‘‘Is the subsidy paid under Title field by field. If the two files match, further IV–E adoption assistance’’ (Element 37) must validation of the detailed data elements will be a ‘‘2’’.
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(5) If the ‘‘Child Was Placed By’’ (Element b. The maximum amount of allowable 34) is answered with option 1, ‘‘Public Agen- missing data is dependent on the data ele- cy,’’ then the question, ‘‘Did the State Agen- ments as described below. cy Have any Involvement in This Adoption’’ (1) No Missing Data. (Element 4) must be ‘‘1’’. The data for the elements listed below (6) If the ‘‘Relationship of Adoptive Par- must be present in all records in the submis- ent(s) to the Child,’’ ‘‘Foster Parent of sion. If any record contains missing data for Child’’ (Element 31) is selected, then the any of these elements, the entire submission question, ‘‘Did the State Agency Have any will be considered missing and processing Involvement in This Adoption’’ (Element 4) will not proceed. must be ‘‘1’’. (7) If ‘‘Is a monthly financial subsidy being Element Element name paid for this child?’’ (Element 35) answered No. ‘‘1,’’ then the question, ‘‘Did the State Agen- 01 ...... State. cy Have any Involvement in This Adoption’’ 02 ...... Report date. (Element 4) must be ‘‘1.’’ 03 ...... Record number. (8) If the ‘‘Family Structure’’ (Element 22) 04 ...... Did the State agency have any involvement in is option 3, Single Female, then the Mother’s this adoption? Year of Birth (Element 23), the ‘‘Adoptive Mother’s Race’’ (Element 25) and ‘‘Hispanic (2) Less Than Ten Percent Missing Data or Latino Ethnicity’’ (Element 26) must be The data for the elements listed below can- completed. Similarly, if the ‘‘Family Struc- not have ten percent or more missing data ture’’ (Element 22) is option 4, Single Male, without incurring a penalty. then the Father’s Year of Birth (Element 24), the Adoptive Father’s Race’’ (Element 27) Element Element name and ‘‘Hispanic or Latino Ethnicity’’ (Ele- No. ment 28) must be completed. If the ‘‘Family 05 ...... Child's date of birth. Structure’’ (Element 22) is option 1 or 2, then 06 ...... Child's sex. both Mother’s and Father’s ‘‘Year of Birth,’’ 07 ...... Child's race. ‘‘Race’’ and ‘‘Hispanic or Latino Ethnicity’’ 08 ...... Is the child of Hispanic or Latino ethnicity? must be completed. 09 ...... Does child have special needs? (9) In Elements 7, 25, and 27, race cat- 10 ...... Indicate the primary basis for determining that egories (‘‘a’’ through ‘‘e’’) and ‘‘f. Unable to the child has special needs. (If Element 09 is Determine’’ cannot be coded ‘‘0,’’ for it does yes, you must answer this question.) not apply. If any of the race categories apply 11±15 ...... Type of special need (at least one must be se- lected.) and are coded as ‘‘1’’ then ‘‘f. Unable to De- 16 ...... Mother's year of birth. termine’’ cannot also apply. 17 ...... Father's year of birth. b. Out-of-Range Standards. 18 ...... Was mother married at time of child's birth? Out-of-range standards relate to the occur- 19 ...... Date of mother's termination of parental rights. rence of values in response to data elements 20 ...... Date of father's termination of parental rights. that exceed, either positively or negatively, 21 ...... Date adoption legalized. the acceptable range of responses to the 22 ...... Adoptive parent(s)' family structure. question. For example, if the acceptable re- 23 ...... Mother's year of birth. sponse to the element, Sex of the Adoptive 24 ...... Father's year of birth. 25 ...... Adoptive mother's race. Child, is ‘‘1’’ for a male and ‘‘2’’ for a female, 26 ...... Hispanic or Latino ethnicity of mother but the datum provided in the element is 27 ...... Adoptive father's race. ‘‘3,’’ this represents an out-of-range response 28 ...... Hispanic or Latino ethnicity of father situation. 29±32 ...... Relationship of adoptive parent(s) to child (at Out-of-range comparisons will be made for least one must be selected.) all elements. The acceptable values are de- 33 ...... Child placed from. scribed in appendix B, section I. 34 ...... Child placed by. 35 ...... Is a monthly financial subsidy paid for this 3. Missing Data Standards child? 36 ...... If yes, the monthly amount is? The term ‘‘missing data’’ refers to in- 37 ...... Is the child receiving Title IV±E adoption assist- stances where data for an element are re- ance? (If Element 35 is a ``1'' (Yes) an an- quired but are not present in the submission. swer to this question is required.) Data elements with values of ‘‘Unable to De- termine,’’ ‘‘Other’’ or which are not applica- c. Penalty Processing. ble, are not considered missing. Missing data are a major factor in deter- a. In addition, the following situations will mining the application of the penalty provi- result in converting data values to a missing sions of this regulation. data status: (1) Selection Rules. (1) Data elements whose values fail inter- Only the adoption records with a ‘‘1’’ (Yes) nal consistency validations as outlined in answer in Element 4, ‘‘Did the State Agency 2.a.(1)–(9) above, and have any Involvement in this adoption’’ will (2) Data elements whose values are out-of- be subject to the penalty assessment process. range. (2) Penalty Calculations.
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The percentage calculation will be per- apply. Data on adoptions should be sub- formed for each data element. The total mitted as promptly after finalization as pos- number of detailed records will serve as the sible. denominator and the number of missing data The desired approach to reporting adoption occurrences for each element will serve as data is that adoptions should be reported the numerator. The result will be multiplied during the reporting period in which the by one hundred. The penalty is invoked when adoption is legalized. Or, at the State’s op- any one element’s missing data percentage is tion, they can be reported in the following ten percent or greater. reporting period if the adoption is legalized 4. TIMELINESS OF ADOPTION DATA REPORTS within the last 60 days of the reporting pe- riod. The semi-annual reporting periods will be Negative reports must be submitted for as of the end of March and September for any semi-annual period in which no adop- each year. The States are required to submit tions have been legalized. reports within 45 calendar days after the end of the semi-annual reporting period. [58 FR 67934, Dec. 22, 1993; 59 FR 13535, Mar. For penalty assessment purposes, however, 22, 1994, as amended at 60 FR 40508, Aug. 9, no specific timeliness of data standards 1995]
APPENDIX F TO PART 1355
ALLOTMENT OF FUNDS WITH 427 INCENTIVE FUNDS TITLE IV±B CHILD WELFARE SERVICES FISCAL YEAR 1993
Name of State Allotment at Allotment at 427 incentive $294,624,000 1 $141,000,000 1 funds
Alabama ...... 5,798,251 2,771,128 3,027,123 Alaska ...... 674,777 355,179 319,598 Arizona ...... 4,781,390 2,291,632 2,489,758 Arkansas ...... 3,495,975 1,685,501 1,810,474 California ...... 30,048,818 14,206,363 15,842,455 Colorado ...... 3,844,876 1,850,024 1,994,852 Connecticut ...... 2,065,826 1,011,122 1,054,704 Delaware ...... 763,822 397,168 366,654 Dist of Col ...... 448,212 248,344 199,868 Florida ...... 12,946,006 6,141,615 6,804,391 Georgia ...... 8,386,050 3,991,391 4,394,659 Hawaii ...... 1,281,048 641,063 639,985 Idaho ...... 1,734,494 854,884 879,610 Illinois ...... 12,157,021 5,769,574 6,387,447 Indiana ...... 7,115,189 3,392,123 3,723,066 Iowa ...... 3,565,712 1,718,385 1,847,327 Kansas ...... 3,083,341 1,490,926 1,592,415 Kentucky ...... 5,192,133 2,485,316 2,706,817 Louisiana ...... 6,750,330 3,220,076 3,530,254 Maine ...... 1,533,067 759,902 773,165 Maryland ...... 4,256,288 2,044,023 2,212,265 Massachusetts ...... 4,566,755 2,190,422 2,376,333 Michigan ...... 10,860,253 5,158,089 5,702,164 Minnesota ...... 5,092,532 2,438,349 2,654,183 Mississippi ...... 4,437,556 2,129,499 2,308,057 Missouri ...... 6,217,709 2,968,921 3,248,788 Montana ...... 1,211,809 608,414 603,395 Nebraska ...... 2,136,670 1,044,528 1,092,142 Nevada ...... 1,326,362 662,431 663,931 New Hampshire ...... 1,078,123 545,375 532,748 New Jersey ...... 5,307,662 2,539,793 2,767,869 New Mexico ...... 2,493,475 1,212,778 1,280,697 New York ...... 15,530,358 7,360,253 8,170,105 North Carolina ...... 8,326,069 3,963,107 4,362,962 North Dakota ...... 982,955 500,499 482,456 Ohio ...... 13,052,582 6,191,871 6,860,711 Oklahoma ...... 4,428,365 2,125,165 2,303,200 Oregon ...... 3,576,418 1,723,434 1,852,984 Pennsylvania ...... 12,649,960 6,002,017 6,647,943 Rhode Island ...... 1,070,439 541,752 528,687 South Carolina ...... 5,101,221 2,442,447 2,658,774 South Dakota ...... 1,107,009 558,996 548,013 Tennessee ...... 6,328,617 3,021,219 3,307,398 Texas ...... 23,687,998 11,206,947 12,481,051 Utah ...... 3,478,384 1,667,206 1,801,178 Vermont ...... 749,584 390,454 359,130
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ALLOTMENT OF FUNDS WITH 427 INCENTIVE FUNDS TITLE IV±B CHILD WELFARE SERVICES FISCAL YEAR 1993ÐContinued
Name of State Allotment at Allotment at 427 incentive $294,624,000 1 $141,000,000 1 funds
Virginia ...... 6,321,841 3,018,024 3,303,817 Washington ...... 5,667,518 2,709,481 2,958,037 West Virginia ...... 2,564,554 1,246,294 1,318,260 Wisconsin ...... 6,033,052 2,881,847 3,151,205 Wyoming ...... 751,264 391,247 360,017 1 These totals include allotments to the United States Territories. Therefore, the summation of the States' allotments will not be equivalent. [58 FR 67937, Dec. 22, 1993, as amended at 65 FR 4087, Jan. 25, 2000]
PART 1356—REQUIREMENTS care maintenance payments and adop- APPLICABLE TO TITLE IV–E tion assistance under this part, a State must have a State plan approved by Sec. the Secretary that meets the require- 1356.10 Scope. ments of this part, part 1355 and sec- 1356.20 State plan document and submission tion 471(a) of the Act. The title IV–E requirements. State plan must be submitted to the 1356.21 Foster care maintenance payments appropriate Regional Office, ACYF, in program implementation requirements. 1356.22 Implementation requirements for a form determined by the State. children voluntarily placed in foster (b) Failure by a State to comply with care. the requirements and standards for the 1356.30 Safety requirements for foster care data reporting system for foster care and adoptive home providers. and adoption (§ 1355.40 of this chapter) 1356.40 Adoption assistance program: Ad- shall be considered a substantial fail- ministrative requirements to implement section 473 of the Act. ure by the State in complying with the 1356.41 Nonrecurring expenses of adoption. State plan for title IV–E. Penalties as 1356.50 Withholding of funds for non-compli- described in § 1355.40(e) of this chapter ance with the approved title IV–E State shall apply. plan. (c) For purposes of the application of 1356.60 Fiscal requirements (title IV–E). penalties described in § 1355.40 of this 1356.65–1356.70 [Reserved] 1356.71 Federal review of the eligibility of chapter, the requirement at § 201.6(e) children in foster care and the eligibility regarding the withholding of funds of foster care providers in title IV–E pro- until the Secretary ‘‘* * * is satisfied grams. that there will no longer be any such 1356.80 Independent Living Program (ILP). failure to comply * * *’’ will be met by AUTHORITY: 42 U.S.C. 620 et seq., 42 U.S.C. submission of one acceptable regularly 670 et seq.; 42 U.S.C. 1302. scheduled semi-annual data trans- mission of the type which was the § 1356.10 Scope. cause of the penalty. This part applies to State programs (d) If a State chooses to claim FFP for foster care maintenance payments, for voluntary foster care placements, adoption assistance payments, related the State must meet the requirements foster care and adoption administra- of paragraph (a) of this section and sec- tive and training expenditures, and the tion 102 of Pub. L. 96–272, the Adoption independent living services program Assistance and Child Welfare Act of under title IV–E of the Act. 1980, as it amends section 472 of the [61 FR 58655, Nov. 18, 1996] Act. (e) The following procedures for ap- § 1356.20 State plan document and proval of State plans and amendments submission requirements. apply to the title IV–E program: (a) To be in compliance with the (1) The State plan consists of written State plan requirements and to be eli- documents furnished by the State to gible to receive Federal financial par- cover its program under part E of title ticipation (FFP) in the costs of foster IV. After approval of the original plan
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by the Commissioner, ACYF, all rel- to the requirements for approval under evant changes, required by new stat- the Act and regulations issued pursu- utes, rules, regulations, interpreta- ant thereto shall be made promptly tions, and court decisions, are required and not later than the 45th day fol- to be submitted currently so that lowing the date on which the plan sub- ACYF may determine whether the plan mittal is received in the regional of- continues to meet Federal require- fice, unless the Regional Office, ACYF, ments and policies. has secured from the State agency a (2) Submittal. State plans and revi- written agreement to extend that pe- sions of the plans are submitted first to riod. the State governor or his designee for (7) Prompt approval of plan amend- review and then to the regional office, ments. Any amendment of an approved ACYF. The States are encouraged to State plan may, at the option of the obtain consultation of the regional State, be considered as a submission of staff when a plan is in process of prepa- a new State plan. If the State requests ration or revision. that such amendment be so considered (3) Review. Staff in the regional of- the determination as to its conformity fices are responsible for review of State with the requirements for approval plans and amendments. They also ini- shall be made promptly and not later tiate discussion with the State agency than the 45th day following the date on on clarification of significant aspects which such a request is received in the of the plan which come to their atten- regional office with respect to an tion in the course of this review. State amendment that has been received in plan material on which the regional such office, unless the Regional Office, staff has questions concerning the ap- ACYF, has secured from the State plication of Federal policy is referred with recommendations as required to agency a written agreement to extend the central office for technical assist- that period. In absence of request by a ance. Comments and suggestions, in- State that an amendment of an ap- cluding those of consultants in speci- proved State plan shall be considered fied areas, may be prepared by the cen- as a submission of a new State plan, tral office for use by the regional staff the procedures under § 201.6 (a) and (b) in negotiations with the State agency. shall be applicable. (4) Action. Each Regional Adminis- (8) Effective date. The effective date of trator, ACF, has the authority to ap- a new plan may not be earlier than the prove State plans and amendments first day of the calendar quarter in thereto which provide for the adminis- which an approvable plan is submitted, tration of foster care maintenance pay- and with respect to expenditures for as- ments and adoption assistance pro- sistance under such plan, may not be grams under section 471 of the Act. The earlier than the first day on which the Commissioner, ACYF, retains the au- plan is in operation on a statewide thority to determine that proposed basis. The same applies with respect to plan material is not approvable, or plan amendments. that a previously approved plan no (f) Once the title IV–E State plan has longer meets the requirements for ap- been submitted and approved, it shall proval. The Regional Office, ACYF, for- remain in effect until amendments are mally notifies the State agency of the required. An amendment is required if actions taken on State plans or revi- there is any significant and relevant sions. change in the information or assur- (5) Basis for approval. Determinations ances in the plan, or the organization, as to whether State plans (including policies or operations described in the plan amendments and administrative plan. practice under the plans) originally meet or continue to meet, the require- (This requirement has been approved by the ments for approval are based on rel- Office of Management and Budget under evant Federal statutes and regulations. OMB Control Number 0980–0141) (6) Prompt approval of State plans. The [48 FR 23115, May 23, 1983, as amended at 58 determination as to whether a State FR 67938, Dec. 22, 1993; 65 FR 4088, Jan. 25, plan submitted for approval conforms 2000]
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§ 1356.21 Foster care maintenance pay- (2) Judicial determination of reasonable ments program implementation re- efforts to finalize a permanency plan. quirements. (i) The State agency must obtain a (a) Statutory and regulatory require- judicial determination that it has ments of the Federal foster care program. made reasonable efforts to finalize the To implement the foster care mainte- permanency plan that is in effect nance payments program provisions of (whether the plan is reunification, the title IV–E State plan and to be eli- adoption, legal guardianship, place- gible to receive Federal financial par- ment with a fit and willing relative, or ticipation (FFP) for foster care main- placement in another planned perma- tenance payments under this part, a nent living arrangement) within twelve State must meet the requirements of months of the date the child is consid- this section, 45 CFR 1356.22, 45 CFR ered to have entered foster care in ac- 1356.30, and sections 472, 475(1), 475(4), cordance with the definition at § 1355.20 475(5) and 475(6) of the Act. of this part, and at least once every (b) Reasonable efforts. The State must twelve months thereafter while the make reasonable efforts to maintain child is in foster care. the family unit and prevent the unnec- (ii) If such a judicial determination essary removal of a child from his/her regarding reasonable efforts to finalize home, as long as the child’s safety is a permanency plan is not made, the assured; to effect the safe reunification child becomes ineligible under title IV– of the child and family (if temporary E from the end of the twelfth month out-of-home placement is necessary to following the date the child is consid- ensure the immediate safety of the ered to have entered foster care in ac- child); and to make and finalize alter- cordance with the definition at § 1355.20 nate permanency plans in a timely of this part, or the end of the month in manner when reunification is not ap- which the most recent judicial deter- propriate or possible. In order to sat- mination of reasonable efforts to final- isfy the ‘‘reasonable efforts’’ require- ize a permanency plan was made, and ments of section 471(a)(15) (as imple- remains ineligible until such a judicial mented through section 472(a)(1) of the determination is made. Act), the State must meet the require- (3) Circumstances in which reasonable ments of paragraphs (b) and (d) of this efforts are not required to prevent a section. In determining reasonable ef- child’s removal from home or to reunify forts to be made with respect to a child the child and family. Reasonable efforts and in making such reasonable efforts, to prevent a child’s removal from home the child’s health and safety must be or to reunify the child and family are the State’s paramount concern. not required if the State agency ob- (1) Judicial determination of reasonable tains a judicial determination that efforts to prevent a child’s removal from such efforts are not required because: the home. (i) A court of competent jurisdiction (i) When a child is removed from his/ has determined that the parent has her home, the judicial determination subjected the child to aggravated cir- as to whether reasonable efforts were cumstances (as defined in State law, made, or were not required to prevent which definition may include but need the removal in accordance with para- not be limited to abandonment, tor- graph (b)(3) of this section, must be ture, chronic abuse, and sexual abuse); made no later than 60 days from the (ii) A court of competent jurisdiction date the child is removed from the has determined that the parent has home pursuant to paragraph (k) of this been convicted of: section. (A) Murder (which would have been (ii) If the determination concerning an offense under section 1111(a) of title reasonable efforts to prevent the re- 18, United States Code, if the offense moval is not made as specified in para- had occurred in the special maritime graph (b)(1)(i) of this section, the child or territorial jurisdiction of the United is not eligible under the title IV–E fos- States) of another child of the parent; ter care maintenance payments pro- (B) Voluntary manslaughter (which gram for the duration of that stay in would have been an offense under sec- foster care. tion 1112(a) of title 18, United States
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Code, if the offense had occurred in the minations are not included as required special maritime or territorial jurisdic- in the court orders identified in para- tion of the United States) of another graphs (b) and (c) of this section, a child of the parent; transcript of the court proceedings is (C) Aiding or abetting, attempting, the only other documentation that will conspiring, or soliciting to commit be accepted to verify that these re- such a murder or such a voluntary quired determinations have been made. manslaughter; or (2) Neither affidavits nor nunc pro (D) A felony assault that results in tunc orders will be accepted as serious bodily injury to the child or an- verification documentation in support other child of the parent; or, of reasonable efforts and contrary to (iii) The parental rights of the parent the welfare judicial determinations. with respect to a sibling have been ter- (3) Court orders that reference State minated involuntarily. law to substantiate judicial determina- (4) Concurrent planning. Reasonable tions are not acceptable, even if State efforts to finalize an alternate perma- law provides that a removal must be nency plan may be made concurrently based on a judicial determination that with reasonable efforts to reunify the remaining in the home would be con- child and family. trary to the child’s welfare or that re- (5) Use of the Federal Parent Locator moval can only be ordered after reason- Service. The State agency may seek the able efforts have been made. services of the Federal Parent Locator (e) Trial home visits. A trial home Service to search for absent parents at visit may not exceed six months in du- any point in order to facilitate a per- ration, unless a court orders a longer manency plan. trial home visit. If a trial home visit (c) Contrary to the welfare determina- extends beyond six months and has not tion. Under section 472(a)(1) of the Act, been authorized by the court, or ex- a child’s removal from the home must ceeds the time period the court has have been the result of a judicial deter- deemed appropriate, and the child is mination (unless the child was removed subsequently returned to foster care, pursuant to a voluntary placement that placement must then be consid- agreement) to the effect that continu- ered a new placement and title IV–E ation of residence in the home would be eligibility must be newly established. contrary to the welfare, or that place- Under these circumstances the judicial ment would be in the best interest, of determinations regarding contrary to the child. The contrary to the welfare the welfare and reasonable efforts to determination must be made in the prevent removal are required. first court ruling that sanctions (even (f) Case review system. In order to sat- temporarily) the removal of a child isfy the provisions of section 471(a)(16) from home. If the determination re- of the Act regarding a case review sys- garding contrary to the welfare is not tem, each State’s case review system made in the first court ruling per- must meet the requirements of sec- taining to removal from the home, the tions 475(5) and 475(6) of the Act. child is not eligible for title IV–E fos- (g) Case plan requirements. In order to ter care maintenance payments for the satisfy the case plan requirements of duration of that stay in foster care. sections 471(a)(16), 475(1) and 475(5) (A) (d) Documentation of judicial deter- and (D) of the Act, the State agency minations. The judicial determinations must promulgate policy materials and regarding contrary to the welfare, rea- instructions for use by State and local sonable efforts to prevent removal, and staff to determine the appropriateness reasonable efforts to finalize the per- of and necessity for the foster care manency plan in effect, including judi- placement of the child. The case plan cial determinations that reasonable ef- for each child must: forts are not required, must be explic- (1) Be a written document, which is a itly documented and must be made on discrete part of the case record, in a a case-by-case basis and so stated in format determined by the State, which the court order. is developed jointly with the parent(s) (1) If the reasonable efforts and con- or guardian of the child in foster care; trary to the welfare judicial deter- and
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(2) Be developed within a reasonable a child is placement in another planned period, to be established by the State, permanent living arrangement, the but in no event later than 60 days from State must document to the court the the child’s removal from the home pur- compelling reason for the alternate suant to paragraph (k) of this section; plan. Examples of a compelling reason (3) Include a discussion of how the for establishing such a permanency case plan is designed to achieve a safe plan may include: placement for the child in the least re- (i) The case of an older teen who spe- strictive (most family-like) setting cifically requests that emancipation be available and in close proximity to the established as his/her permanency plan; home of the parent(s) when the case (ii) The case of a parent and child plan goal is reunification and a discus- who have a significant bond but the sion of how the placement is consistent parent is unable to care for the child with the best interests and special because of an emotional or physical needs of the child. (FFP is not avail- disability and the child’s foster parents able when a court orders a placement have committed to raising him/her to with a specific foster care provider); the age of majority and to facilitate (4) Include a description of the serv- visitation with the disabled parent; or, ices offered and provided to prevent re- (iii) the Tribe has identified another moval of the child from the home and planned permanent living arrangement to reunify the family; and for the child. (5) Document the steps to finalize a (4) When an administrative body, ap- placement when the case plan goal is pointed or approved by the court, con- or becomes adoption or placement in ducts the permanency hearing, the pro- another permanent home in accordance cedural safeguards set forth in the defi- with sections 475(1)(E) and (5)(E) of the nition of permanency hearing must be so Act. When the case plan goal is adop- extended by the administrative body. tion, at a minimum, such documenta- (i) Application of the requirements for tion shall include child-specific re- filing a petition to terminate parental cruitment efforts such as the use of rights at section 475(5)(E) of the Social Se- State, regional, and national adoption curity Act. (1) Subject to the exceptions exchanges including electronic ex- in paragraph (i)(2) of this section, the change systems. State must file a petition (or, if such a petition has been filed by another (This requirement has been approved by the party, seek to be joined as a party to Office of Management and Budget (OMB) the petition) to terminate the parental under OMB control number 0980–0140) rights of a parent(s): (h) Application of the permanency hear- (i) Whose child has been in foster ing requirements. care under the responsibility of the (1) To meet the requirements of the State for 15 of the most recent 22 permanency hearing, the State must, months. The petition must be filed by among other requirements, comply the end of the child’s fifteenth month with section 475(5)(C) of the Act. in foster care. In calculating when to (2) In accordance with paragraph file a petition for termination of paren- (b)(3) of this section, when a court de- tal rights, the State: termines that reasonable efforts to re- (A) Must calculate the 15 out of the turn the child home are not required, a most recent 22 month period from the permanency hearing must be held with- date the child entered foster care as de- in 30 days of that determination, unless fined at section 475(5)(F) of the Act; the requirements of the permanency (B) Must use a cumulative method of hearing are fulfilled at the hearing in calculation when a child experiences which the court determines that rea- multiple exits from and entries into sonable efforts to reunify the child and foster care during the 22 month period; family are not required. (C) Must not include trial home visits (3) If the State concludes, after con- or runaway episodes in calculating 15 sidering reunification, adoption, legal months in foster care; and, guardianship, or permanent placement (D) Need only apply section 475(5)(E) with a fit and willing relative, that the of the Act to a child once if the State most appropriate permanency plan for does not file a petition because one of
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the exceptions at paragraph (i)(2) of (j) Child of a minor parent in foster this section applies; care. Foster care maintenance pay- (ii) Whose child has been determined ments made on behalf of a child placed by a court of competent jurisdiction to in a foster family home or child care be an abandoned infant (as defined institution, who is the parent of a son under State law). The petition to ter- or daughter in the same home or insti- minate parental rights must be filed tution, must include amounts which within 60 days of the judicial deter- are necessary to cover costs incurred mination that the child is an aban- on behalf of the child’s son or daugh- doned infant; or, ter. Said costs must be limited to funds (iii) Who has been convicted of one of expended on those items described in the felonies listed at paragraph the definition of foster care maintenance (b)(3)(ii) of this section. Under such cir- payments. cumstances, the petition to terminate (k) Removal from the home of a speci- parental rights must be filed within 60 fied relative. days of a judicial determination that (1) For the purposes of meeting the reasonable efforts to reunify the child requirements of section 472(a)(1) of the and parent are not required. Act, a removal from the home must (2) The State may elect not to file or occur pursuant to: join a petition to terminate the paren- (i) A voluntary placement agreement tal rights of a parent per paragraph entered into by a parent or relative (i)(1) of this section if: which leads to a physical or construc- (i) At the option of the State, the tive removal (i.e., a non-physical or child is being cared for by a relative; paper removal of custody) of the child from the home; or (ii) The State agency has documented (ii) A judicial order for a physical or in the case plan (which must be avail- constructive removal of the child from able for court review) a compelling rea- a parent or specified relative. son for determining that filing such a (2) A removal has not occurred in sit- petition would not be in the best inter- uations where legal custody is removed ests of the individual child. Compelling from the parent or relative and the reasons for not filing a petition to ter- child remains with the same relative in minate parental rights include, but are that home under supervision by the not limited to: State agency. (A) Adoption is not the appropriate (3) A child is considered construc- permanency goal for the child; or, tively removed on the date of the first (B) No grounds to file a petition to judicial order removing custody, even terminate parental rights exist; or, temporarily, from the appropriate (C) The child is an unaccompanied specified relative or the date that the refugee minor as defined in 45 CFR voluntary placement agreement is 400.111; or signed by all relevant parties. (D) There are international legal ob- (l) Living with a specified relative.For ligations or compelling foreign policy purposes of meeting the requirements reasons that would preclude termi- for living with a specified relative prior nating parental rights; or to removal from the home under sec- (iii) The State agency has not pro- tion 472(a)(1) of the Act and all of the vided to the family, consistent with conditions under section 472(a)(4), one the time period in the case plan, serv- of the two following situations must ices that the State deems necessary for apply: the safe return of the child to the (1) The child was living with the par- home, when reasonable efforts to re- ent or specified relative, and was AFDC unify the family are required. eligible in that home in the month of (3) When the State files or joins a pe- the voluntary placement agreement or tition to terminate parental rights in initiation of court proceedings; or accordance with paragraph (i)(1) of this (2) The child had been living with the section, it must concurrently begin to parent or specified relative within six identify, recruit, process, and approve months of the month of the voluntary a qualified adoptive family for the placement agreement or the initiation child. of court proceedings, and the child
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would have been AFDC eligible in that ment in foster care unless there has month if s/he had still been living in been a judicial determination by a that home. court of competent jurisdiction, within (m) Review of payments and licensing the first 180 days of such placement, to standards. In meeting the requirements the effect that the continued voluntary of section 471(a)(11) of the Act, the placement is in the best interests of State must review at reasonable, spe- the child. cific, time-limited periods to be estab- (c) The State agency must establish lished by the State: and maintain a uniform procedure or (1) The amount of the payments system, consistent with State law, for made for foster care maintenance and revocation by the parent(s) of a vol- adoption assistance to assure their untary placement agreement and re- continued appropriateness; and turn of the child. (2) The licensing or approval stand- [65 FR 4090, Jan. 25, 2000] ards for child care institutions and fos- ter family homes. § 1356.30 Safety requirements for fos- (n) Foster care goals. The specific fos- ter care and adoptive home pro- ter care goals required under section viders. 471(a)(14) of the Act must be incor- (a) Unless an election provided for in porated into State law by statute or paragraph (d) of this section is made, administrative regulation with the the State must provide documentation force of law. that criminal records checks have been (o) Notice and opportunity to be heard. conducted with respect to prospective The State must provide the foster par- foster and adoptive parents. ent(s) of a child and any preadoptive (b) The State may not approve or li- parent or relative providing care for cense any prospective foster or adop- the child with timely notice of and an tive parent, nor may the State claim opportunity to be heard in permanency FFP for any foster care maintenance hearings and six-month periodic re- or adoption assistance payment made views held with respect to the child on behalf of a child placed in a foster during the time the child is in the care home operated under the auspices of a of such foster parent, preadoptive par- child placing agency or on behalf of a ent, or relative caregiver. Notice of and child placed in an adoptive home an opportunity to be heard does not in- through a private adoption agency, if clude the right to standing as a party the State finds that, based on a crimi- to the case. nal records check conducted in accord- [65 FR 4088, Jan. 25, 2000] ance with paragraph (a) of this section, a court of competent jurisdiction has § 1356.22 Implementation require- determined that the prospective foster ments for children voluntarily or adoptive parent has been convicted placed in foster care. of a felony involving: (a) As a condition of receipt of Fed- (1) Child abuse or neglect; eral financial participation (FFP) in (2) Spousal abuse; foster care maintenance payments for (3) A crime against a child or chil- a dependent child removed from his dren (including child pornography); or, home under a voluntary placement (4) A crime involving violence, in- agreement, the State must meet the cluding rape, sexual assault, or homi- requirements of: cide, but not including other physical (1) Section 472 of the Act, as amend- assault or battery. ed; (c) The State may not approve or li- (2) Sections 422(b)(10) and 475(5) of the cense any prospective foster or adop- Act; tive parent, nor may the State claim (3) 45 CFR 1356.21 (f), (g), (h), and (i); FFP for any foster care maintenance and or adoption assistance payment made (4) The requirements of this section. on behalf of a child placed in a foster (b) Federal financial participation is home operated under the auspices of a available only for voluntary foster care child placing agency or on behalf of a maintenance expenditures made within child placed in an adoptive home the first 180 days of the child’s place- through a private adoption agency, if
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the State finds, based on a criminal to be provided under such agreement records check conducted in accordance and, for purposes of eligibility under with paragraph (a) of this section, that title XIX of the Act, specify that the a court of competent jurisdiction has child is eligible for Medicaid services; determined that the prospective foster and or adoptive parent has, within the last (4) Specify, with respect to agree- five years, been convicted of a felony ments entered into on or after October involving: 1, 1983, that the agreement shall re- (1) Physical assault; main in effect regardless of the State (2) Battery; or, of which the adoptive parents are resi- (3) A drug-related offense. dents at any given time. (d)(1) The State may elect not to con- (c) There must be no income eligi- duct or require criminal records checks bility requirement (means test) for the on prospective foster or adoptive par- prospective adoptive parent(s) in deter- ents by: mining eligibility for adoption assist- (i) Notifying the Secretary in a letter ance payments. from the Governor; or (d) In the event an adoptive family (ii) Enacting State legislation. moves from one State to another (2) Such an election also removes the State, the family may apply for social State’s obligation to comport with services on behalf of the adoptive child paragraphs (b) and (c) of this section. in the new State of residence. However, (e) In all cases where the State opts for agreements entered into on or after out of the criminal records check re- October 1, 1983, if a needed service(s) quirement, the licensing file for that specified in the adoption assistance foster or adoptive family must contain agreement is not available in the new documentation which verifies that State of residence, the State making safety considerations with respect to the original adoption assistance pay- the caretaker(s) have been addressed. ment remains financially responsible (f) In order for a child care institu- for providing the specified service(s). tion to be eligible for title IV–E fund- (e) A State may make an adoption ing, the licensing file for the institu- assistance agreement with adopting tion must contain documentation parent(s) who reside in another State. which verifies that safety consider- If so, all provisions of this section ations with respect to the staff of the apply. institution have been addressed. (f) The State agency must actively [65 FR 4090, Jan. 25, 2000] seek ways to promote the adoption as- sistance program. § 1356.40 Adoption assistance program: Administrative requirements to im- [48 FR 23116, May 23, 1983, as amended at 53 plement section 473 of the Act. FR 50220, Dec. 14, 1988] (a) To implement the adoption assist- ance program provisions of the title § 1356.41 Nonrecurring expenses of adoption. IV–E State plan and to be eligible for Federal financial participation in adop- (a) The amount of the payment made tion assistance payments under this for nonrecurring expenses of adoption part, the State must meet the require- shall be determined through agreement ments of this section and sections between the adopting parent(s) and the 471(a), 473 and 475(3) of the Act. State agency administering the pro- (b) The adoption assistance agree- gram. The agreement must indicate ment for payments pursuant to section the nature and amount of the non- 473(a)(2) must meet the requirements of recurring expenses to be paid. section 475(3) of the Act and must: (b) The agreement for nonrecurring (1) Be signed and in effect at the time expenses may be a separate document of or prior to the final decree of adop- or a part of an agreement for either tion. A copy of the signed agreement State or Federal adoption assistance must be given to each party; and payments or services. The agreement (2) Specify its duration; and for nonrecurring expenses must be (3) Specify the nature and amount of signed prior to the final decree of adop- any payment, services and assistance tion, with two exceptions:
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(1) Cases in which the final decree of of this rule. For adoptions in which a adoption was entered into on or after final decree is entered more than six January 1, 1987 and within six months months after the effective date of this after the effective date of the final rule, the agreement must be signed at rule; or the time of or prior to the final decree (2) Cases in which a final decree was of adoption. In such cases, claims must entered into before January 1, 1987 but be filed with the State agency within nonrecurring adoption expenses were two years of the date of the final de- paid after January 1, 1987. cree of adoption. (c) There must be no income eligi- (f)(1) Funds expended by the State bility requirement (means test) for under an adoption assistance agree- adopting parents in determining ment, with respect to nonrecurring whether payments for nonrecurring ex- adoption expenses incurred by or on be- penses of adoption shall be made. How- half of parents who adopt a child with ever, parents cannot be reimbursed for special needs, shall be considered an out-of-pocket expenses for which they administrative expenditure of the title have otherwise been reimbursed. IV–E Adoption Assistance Program. (d) For purposes of payment of non- Federal reimbursement is available at recurring expenses of adoption, the a 50 percent matching rate, for State State must determine that the child is expenditures up to $2,000, for any adop- a ‘‘child with special needs’’ as defined tive placement. in section 473(c) of the Act, and that (2) States may set a reasonable lower the child has been placed for adoption maximum which must be based on rea- in accordance with applicable State sonable charges, consistent with State and local laws; the child need not meet and local practices, for special needs the categorical eligibility require- adoptions within the State. The basis ments at section 473(a)(2). for setting a lower maximum must be (e)(1) The State agency must notify documented and available for public in- all appropriate courts and all public spection. and licensed private nonprofit adoption agencies of the availability of funds for (3) In cases where siblings are placed the nonrecurring expenses of adoption and adopted, either separately or as a of children with special needs as well unit, each child is treated as an indi- as where and how interested persons vidual with separate reimbursement may apply for these funds. This infor- for nonrecurring expenses up to the mation should routinely be made avail- maximum amount allowable for each able to all persons who inquire about child. adoption services after the publication (g) Federal financial participation for date of this final rule. nonrecurring expenses of adoption is (2) The State agency must send a no- limited to costs incurred by or on be- tice to all public and private nonprofit half of adoptive parents that are not adoption agencies directing them to otherwise reimbursed from other notify all their clients who adopted a sources. Payments for nonrecurring ex- special needs child between January 1, penses shall be made either directly by 1986 and six months following the effec- the State agency or through another tive date of this rule of the availability public or licensed nonprofit private of reimbursement for nonrecurring ex- agency. penses paid after January 1, 1987. (h) When the adoption of the child in- (3) For adoptions in which a final de- volves interstate placement, the State cree is entered between January 1, 1987 that enters into an adoption assistance and six months after the effective date agreement under section 473(a)(1)(B)(ii) of this rule, or where a final decree was of the Act or under a State subsidy entered before January 1, 1987 but non- program will be responsible for paying recurring adoption expenses were paid the nonrecurring adoption expenses of after January 1, 1987, individuals who the child. In cases where there is inter- seek reimbursement must enter into an state placement but no agreement for agreement with the State agency and other Federal or State adoption assist- file a claim with the State agency ance, the State in which the final adop- within two years of the effective date tion decree is issued will be responsible
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for reimbursement of nonrecurring ex- (c) For purposes of this section, the penses if the child meets the require- provisions of 45 CFR part 213, Practice ments of section 473(c). and Procedure for Hearings to States (i) The term ‘‘nonrecurring adoption on Conformity of Public Assistance expenses’’ means reasonable and nec- Plans to Federal Requirements, apply. essary adoption fees, court costs, attor- [48 FR 23117, May 23, 1983, as amended at 65 ney fees and other expenses which are FR 4091, Jan. 25, 2000] directly related to the legal adoption of a child with special needs, which are § 1356.60 Fiscal requirements (title IV– not incurred in violation of State or E). Federal law, and which have not been (a) Federal matching funds for foster reimbursed from other sources or other care maintenance and adoption assistance funds. ‘‘Other expenses which are di- payments. (1) Effective October 1, 1980, rectly related to the legal adoption of a Federal financial participation (FFP) child with special needs’’ means the is available to States under an ap- costs of the adoption incurred by or on proved title IV–E State plan for allow- behalf of the parents and for which par- able costs in expenditures for: ents carry the ultimate liability for (i) Foster care maintenance pay- payment. Such costs may include the ments as defined in section 475(4) of the adoption study, including health and Act, made in accordance with 45 CFR psychological examination, supervision 1356.20 through 1356.30 of this part, sec- of the placement prior to adoption, tion 472 of the Act and section 102(d) of transportation and the reasonable Pub. L. 96–272, the Adoption Assistance costs of lodging and food for the child and Child Welfare Act of 1980; and/or the adoptive parents when nec- (ii) Adoption assistance payments essary to complete the placement or made in accordance with 45 CFR 1356.20 adoption process. and 1356.40 and sections 473 and 475(3) of (j) When State statutes must be the Act. amended in order to reimburse parents (2) Federal financial participation is for nonrecurring expenses in the adop- available at the rate of the Federal tion of eligible children, legislation medical assistance percentage as de- must be enacted before the close of the fined in section 1905(b) of the Act, Defi- second general session following publi- nitions, and pertinent regulations as cation of the final rule and must apply promulgated by the Secretary, or his retroactively to January 1, 1987. Fail- designee. ure to honor all eligible claims will be (b) Federal matching funds for State considered non-compliance by the and local training for foster care and State with Title IV–E of the Act. adoption assistance under title IV–E. (k) A State expenditure is considered (1) Federal financial participation is made in the quarter during which the available at the rate of seventy-five payment was made by a State agency percent (75%) in the costs of: to a private nonprofit agency, indi- (i) Training personnel employed or vidual or vendor payee. preparing for employment by the State [53 FR 50220, Dec. 14, 1988] or local agency administering the plan, and; §1356.50 Withholding of funds for non- (ii) Providing short-term training compliance with the approved title (including travel and per diem ex- IV–E State plan. penses) to current or prospective foster (a) To be in compliance with the title or adoptive parents and the members of IV–E State plan requirements, a State the state licensed or approved child must meet the requirements of the Act care institutions providing care to fos- and 45 CFR 1356.20, 1356.21, 1356.30, and ter and adopted children receiving title 1356.40 of this part. IV–E assistance. (b) To be in compliance with the title (2) All training activities and costs IV–E State plan requirements, a State funded under title IV–E shall be in- that chooses to claim FFP for vol- cluded in the State agency’s training untary placements must meet the re- plan for title IV–B. quirements of the Act, 45 CFR 1356.22 (3) Short and long term training at and paragraph (a) of this section; and educational institutions and in-service
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training may be provided in accordance (2) For information systems used for with the provisions of §§ 235.63 through purposes other than those specified by 235.66(a) of this title. section 479 of the Act, costs must be al- (c) Federal matching funds for other located and must bear the same ratio State and local administrative expendi- as the foster care and adoption popu- tures for foster care and adoption assist- lation bears to the total population ance under title IV–E. Federal financial contained in the information system as participation is available at the rate of verified by reports from all other pro- fifty percent (50%) for administrative grams included in the system. expenditures necessary for the proper (e) Federal matching funds for and efficient administration of the SACWIS. All expenditures of a State to title IV–E State plan. The State’s cost plan, design, develop, install and oper- allocation plan shall identify which ate the Statewide automated child wel- costs are allocated and claimed under fare information system approved this program. under § 1355.52 of this chapter, shall be (1) The determination and redeter- treated as necessary for the proper and mination of eligibility, fair hearings efficient administration of the State and appeals, rate setting and other plan without regard to whether the costs directly related only to the ad- system may be used with respect to ministration of the foster care program foster or adoptive children other than under this part are deemed allowable those on behalf of whom foster care administrative costs under this para- maintenance or adoption assistance graph. They may not be claimed under payments may be made under this any other section or Federal program. part. (2) The following are examples of al- (Approved by the Office of Management and lowable administrative costs necessary Budget under control numbers 0980–0130 and for the administration of the foster 0980–0131) care program: [47 FR 30925, July 15, 1982, as amended at 48 (i) Referral to services; FR 23117, May 23, 1983; 53 FR 50221, Dec. 14, (ii) Preparation for and participation 1988; 58 FR 67938, 67947, Dec. 22, 1993; 65 FR in judicial determinations; 4091, Jan. 25, 2000] (iii) Placement of the child; (iv) Development of the case plan; §§ 1356.65–1356.70 [Reserved] (v) Case reviews; § 1356.71 Federal review of the eligi- (vi) Case management and super- bility of children in foster care and vision; the eligibility of foster care pro- (vii) Recruitment and licensing of viders in title IV–E programs. foster homes and institutions; (a) Purpose, scope and overview of the (viii) Rate setting; and process. (ix) A proportionate share of related (1) This section sets forth require- agency overhead. ments governing Federal reviews of (x) Costs related to data collection State compliance with the title IV–E and reporting. eligibility provisions as they apply to (3) Allowable administrative costs do children and foster care providers not include the costs of social services under paragraphs (a) and (b) of section provided to the child, the child’s fam- 472 of the Act. ily or foster family which provide (2) The requirements of this section counseling or treatment to ameliorate apply to State agencies that receive or remedy personal problems, behav- Federal payments for foster care under iors or home conditions. title IV–E of the Act. (d) Cost of the data collection system. (3) The review process begins with a (1) Costs related to data collection sys- primary review of foster care cases for tem initiation, implementation and op- the title IV–E eligibility requirements. eration may be charged as an adminis- States determined to be in substantial trative cost of title IV–E at the 50 per- compliance based on the primary re- cent matching rate subject to the re- view will not be subject to another re- strictions in paragraph (d) (2) of this view for three years. States that are section determined not to be in compliance
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will develop and implement a program error rate is less than 15 percent and improvement plan designed to correct the State will be considered in substan- the areas of non-compliance, and a sec- tial compliance. For primary reviews ondary review will be conducted after held subsequent to the initial primary completion of the program improve- reviews, the acceptable population in- ment plan. eligibility case error rate threshold (b) Composition of review team and pre- will be reduced from less than 15 per- liminary activities preceding an on-site re- cent (eight or fewer ineligible cases) to view. less than 10 percent (four or fewer in- (1) The review team must be com- eligible cases)). A State agency which posed of representatives of the State meets this standard is considered to be agency, and ACF’s Regional and Cen- in ‘‘substantial compliance’’ (see para- tral Offices. graph (h) of this section). A disallow- (2) The State must provide ACF with ance will be assessed for the ineligible the complete payment history for each cases for the period of time the cases of the sample and oversample cases are ineligible. prior to the on-site review. (c) Sampling guidance and conduct of (5) A State which has been deter- review. mined to be in ‘‘noncompliance’’ (i.e., (1) The list of sampling units in the not in substantial compliance) will be target population (i.e., the sampling required to develop a program improve- frame) will be drawn by ACF statistical ment plan according to the specifica- staff from the Adoption and Foster tions discussed in paragraph (i) of this Care Analysis and Reporting System section, as well as undergo a secondary (AFCARS) data which are transmitted review. For the secondary review, a by the State agency to ACF. The sam- sample of 150 cases (plus a 10 percent pling frame will consist of cases of oversample of 15 cases) will be drawn children who were eligible for foster from the most recent AFCARS submis- care maintenance payments during the sion. Usually, the chosen methodology reporting period reflected in a State’s will be simple random sampling, but most recent AFCARS data submission. other probability samples may be uti- For the initial primary review, if these lized, when necessary and appropriate. data are not available or are deficient, Cases from the oversample will be sub- an alternative sampling frame, con- stituted and reviewed for each of the sistent with one AFCARS six-month original sample of 150 cases which is reporting period, will be selected by found to be in error. ACF in conjunction with the State (6) At the completion of the sec- agency. ondary review, the review team will (2) A sample of 80 cases (plus a 10 per- calculate both the sample case ineligi- cent oversample of eight cases) from bility and dollar error rates for the the title IV–E foster care program will cases determined ineligible during the be selected for the primary review uti- review. An extrapolated disallowance lizing probability sampling methodolo- equal to the lower limit of a 90 percent gies. Usually, the chosen methodology confidence interval for the population will be simple random sampling, but total dollars in error for the amount of other probability samples may be uti- lized, when necessary and appropriate. time corresponding to the AFCARS re- (3) Cases from the oversample will be porting period will be assessed if both substituted and reviewed for each of the child/provider (case) ineligibility the original sample of 80 cases which is and dollar error rates exceed 10 per- found to be in error. cent. If neither, or only one, of the (4) At the completion of the primary error rates exceeds 10 percent, a dis- review, the review team will determine allowance will be assessed for the ineli- the number of ineligible cases. When gible cases for the period of time the the total number of ineligible cases cases are ineligible. does not exceed eight, ACF can con- (d) Requirements subject to review. clude with a probability of 88 percent States will be reviewed against the re- that in a population of 1000 or more quirements of title IV–E of the Act re- cases the population ineligibility case garding:
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(1) The eligibility of the children on (1) Disallowances will be taken, and whose behalf the foster care mainte- plans for program improvement re- nance payments are made (section quired, based on the extent to which a 472(a)(1)–(4) of the Act) to include: State is not in substantial compliance (i) Judicial determinations regarding with recipient or provider eligibility ‘‘reasonable efforts’’ and ‘‘contrary to provisions of title IV–E, or applicable the welfare’’ in accordance with regulations in 45 CFR parts 1355 and § 1356.21(b) and (c), respectively; 1356. (ii) Voluntary placement agreements (2) Substantial compliance and non- in accordance with § 1356.22; compliance are defined as follows: (iii) Responsibility for placement and (i) Substantial compliance—For the care vested with the State agency; primary review (of the sample of 80 (iv) Placement in a licensed foster cases), no more than eight of the title family home or child care institution; IV–E cases reviewed may be deter- and, (v) eligibility for AFDC under such mined to be ineligible. (This critical State plan as it was in effect on July number of allowable ‘‘errors,’’ i.e., in- 16, 1996. eligible cases, is reduced to four errors (2) Allowable payments made to fos- or less in primary reviews held subse- ter care providers who comport with quent to the initial primary review). sections 471(a)(10), 471(a)(20), 472(b) and For the secondary review (if required), (c) of the Act and § 1356.30. substantial compliance means either the (e) Review instrument. A title IV–E case ineligibility or dollar error rate foster care eligibility review checklist does not exceed 10 percent. will be used when conducting the eligi- (ii) Noncompliance—means not in sub- bility review. stantial compliance. For the primary (f) Eligibility determination—child. The review (of the sample of 80 cases), nine case record of the child must contain or more of the title IV–E cases re- sufficient documentation to verify a viewed must be determined to be ineli- child’s eligibility in accordance with gible. (This critical number of allow- paragraph (d)(1) of this section, in able ‘‘errors,’’ i.e., ineligible cases, is order to substantiate payments made reduced to five or more in primary re- on the child’s behalf. views subsequent to the initial primary (g) Eligibility determination—provider. review). For the secondary review (if (1) For each case being reviewed, the required), noncompliance means both State agency must make available a li- the case ineligibility and dollar error censing file which contains the licens- rates exceed 10 percent. ing history, including a copy of the cer- (3) ACF will notify the State in writ- tificate of licensure/approval or letter ing within 30 calendar days after the of approval, for each of the providers in completion of the review of whether the following categories: the State is, or is not, operating in sub- (i) Public child care institutions with stantial compliance. 25 children or less in residence; (4) States which are determined to be (ii) Private child care institutions; in substantial compliance must under- (iii) Group homes; and go a subsequent review after a min- (iv) Foster family homes, including imum of three years. relative homes. (2) The licensing file must contain (i) Program improvement plans. documentation that the State has com- (1) States which are determined to be plied with the safety requirements for in noncompliance with recipient or foster and adoptive placements in ac- provider eligibility provisions of title cordance with § 1356.30. IV–E, or applicable regulations in 45 (3) If the licensing file does not con- CFR Parts 1355 and 1356, will develop a tain sufficient information to support a program improvement plan designed to child’s placement in a licensed facility, correct the areas determined not to be the State agency may provide supple- in substantial compliance. The pro- mental information from other sources gram improvement plan will: (e.g., a computerized database). (i) Be developed jointly by State and (h) Standards of compliance. Federal staff;
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(ii) Identify the areas in which the disallowances (if any) determined on State’s program is not in substantial the basis of individual cases reviewed compliance; and found to be in error. The amount of (iii) Not extend beyond one year. A disallowance will be computed on the State will have a maximum of one year basis of payments associated with in- in which to implement and complete eligible cases for the entire period of the provisions of the program improve- time that each case has been ineligible. ment plan unless State legislative ac- (2) States which are found to be in tion is required. In such instances, an noncompliance during the primary re- extension may be granted with the view will have disallowances deter- State and ACF negotiating the terms mined on the basis of individual cases and length of such extension that shall reviewed and found to be in error, and not exceed the last day of the first leg- must implement a program improve- islative session after the date of the ment plan in accordance with the pro- program improvement plan; and visions contained within it. A sec- (iv) Include: ondary review will be conducted no (A) Specific goals; later than during the AFCARS report- (B) The action steps required to cor- ing period which immediately follows rect each identified weakness or defi- the program improvement plan com- ciency; and, pletion date on a sample of 150 cases (C) a date by which each of the action drawn from the State’s most recent steps is to be completed. AFCARS data. If both the case ineligi- (2) States determined not to be in bility and dollar error rates exceed 10 substantial compliance as a result of a percent the State is in noncompliance primary review must submit the pro- and an additional disallowance will be gram improvement plan to ACF for ap- determined based on extrapolation proval within 90 calendar days from the from the sample to the universe of date the State receives written notifi- claims paid for the duration of the cation that it is not in substantial AFCARS reporting period (i.e., all title compliance. This deadline may be ex- IV-E funds expended for a case during tended an additional 30 calendar days the quarter(s) that case is ineligible). If when a State agency submits addi- either the case ineligibility or dollar tional documentation to ACF in sup- rate does not exceed 10 percent, the port of cases determined to be ineli- amount of disallowance will be com- gible as a result of the on-site eligi- puted on the basis of payments associ- bility review. ated with ineligible cases for the entire (3) The ACF Regional Office will period of time the case has been deter- intermittently review, in conjunction mined to be ineligible. with the State agency, the State’s (3) The State agency will be liable for progress in completing the prescribed interest on the amount of funds dis- action steps in the program improve- allowed by the Department, in accord- ment plan. ance with the provisions of 45 CFR (4) If a State agency does not submit 30.13. an approvable program improvement (4) States may appeal any disallow- plan in accordance with the provisions ance actions taken by ACF to the HHS of paragraphs (i)(1) and (2) of this sec- Departmental Appeals Board in accord- tion, ACF will move to a secondary re- ance with regulations at 45 CFR Part view in accordance with paragraph (c) 16. of this section. [65 FR 4091, Jan. 25, 2000] (j) Disallowance of funds. The amount of funds to be disallowed will be deter- § 1356.80 Independent Living Program mined by the extent to which a State is (ILP). not in substantial compliance with re- (a) Scope. To receive payments under cipient or provider eligibility provi- section 477 of the Act, the State agency sions of title IV–E, or applicable regu- must meet the applicable requirements lations in 45 CFR parts 1355 and 1356. of sections 472, 474, 475, and 477 of the (1) States which are in found to be in Act. substantial compliance during the pri- (b) Application requirements. Based on mary or secondary review will have section 477 of the Act, each State must
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submit an annual application for funds 1357.25 Requirements for eligibility for ad- under the Independent Living Program ditional payments under section 427. (ILP). 1357.30 State fiscal requirements (title IV– B, subpart 1, child welfare services). (c) Allotments. Payments to each 1357.32 State fiscal requirements (title IV– State will be made in accordance with B, subpart 2, family preservation and section 477(e)(1) of the Act. family support services). (d) Matching funds. (1) States are en- 1357.40 Direct payments to Indian Tribal Or- titled to their share of the basic ganizations (title IV-B, subpart 1, child amount of $45 million of the ILP appro- welfare services). priation with no requirement for 1357.50 Direct payments to Indian Tribal or- matching funds. ganizations (title IV–B, subpart 2, family preservation and support services). (2) States are required to match dol- lar-for-dollar any of the funds they re- AUTHORITY: 42 U.S.C. 620 et seq., 42 U.S.C. ceive, through additional or reallo- 670 et seq.; 42 U.S.C. 1302. cated funds, over their share of the $45 § 1357.10 Scope and definitions. million basic amount. (3) The State’s contribution may be (a) Scope. This part applies to State in cash, donated funds, or third-party and Indian Tribal programs for child in-kind contributions. welfare services under subpart 1, and (4) Matching contributions must be family preservation and family support for costs otherwise allowable under services under subpart 2 of title IV–B of section 477 of the Act (e.g., matching the Act. contributions for the provision of room (b) Eligibility. Child and family serv- and board are not allowable.) ices under title IV–B, subparts 1 and 2, (e) Reallocation of funds. Basic funds must be available on the basis of need and additional funds not requested by a for services and must not be denied on State will be available for reallocation the basis of income or length of resi- to other States under the provisions of dence in the State or within the Indian section 477(e)(2) of the Act. Tribe’s jurisdiction. (f) Expenditure of funds. Section (c) Definitions. 477(f)(3) of the Act requires that funds Child and Family Services Plan (CFSP) must be expended by September 30 of means the document, developed the fiscal year following the fiscal year through joint planning, which de- in which the funds were awarded. scribes the publicly-funded State child and family services continuum (family (g) Maintenance of effort. Amounts payable under section 477 of the Act support and family preservation serv- shall supplement and not replace: ices; child welfare services, including child abuse and neglect prevention, (1) Title IV–E foster care funds avail- intervention, and treatment services; able for maintenance payments and ad- services to support reunification, adop- ministrative and training costs; and tion, kinship care, foster care, inde- (2) Any other State funds available pendent living, or other permanent liv- for independent living activities and ing arrangements). For Indian Tribes, services. the document describes the child wel- (h) Prohibition. ILP funds may not be fare and/or family preservation and used for room and board (section support services to be provided by the 477(e)(3) of the Act). Indian Tribe; includes goals and objec- [61 FR 58655, Nov. 18, 1996] tives both for improved outcomes for the safety, permanency and well-being PART 1357—REQUIREMENTS of children and families and for service APPLICABLE TO TITLE IV–B delivery system reform; specifies the services and other implementation ac- tivities that will be undertaken to Sec. carry out the goals and objectives; and 1357.10 Scope and definitions. 1357.15 Comprehensive child and family includes plans for program improve- services plan requirements. ment and allocation of resources. 1357.16 Annual progress and services re- Child welfare services means public so- ports. cial services directed to accomplish the 1357.20 Child abuse and neglect programs. following purposes:
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(1) Protecting and promoting the wel- moved; or be placed for adoption, with fare and safety of all children, includ- a legal guardian, or, if adoption or ing individuals with disabilities; home- legal guardianship is determined not to less, dependent, or neglected children; be appropriate for a child, in some (2) Preventing or remedying, or as- other planned, permanent living ar- sisting in the solution of problems rangement; which may result in the neglect, abuse, (3) Service programs designed to pro- exploitation, or delinquency of chil- vide follow-up care to families to whom dren; a child has been returned after a foster (3) Preventing the unnecessary sepa- care placement; ration of children from their families (4) Respite care of children to provide by identifying family problems and as- temporary relief for parents and other sisting families in resolving their prob- caregivers (including foster parents); lems and preventing the breakup of the (5) Services designed to improve par- family where the prevention of child enting skills (by reinforcing parents’ removal is desirable and possible; confidence in their strengths, and help- (4) Restoring to their families chil- ing them to identify where improve- dren who have been removed and may ment is needed and to obtain assist- be safely returned, by the provision of ance in improving those skills) with re- services to the child and the family; spect to matters such as child develop- (5) Assuring adequate care of children ment, family budgeting, coping with away from their homes, in cases where stress, health, and nutrition; and the child cannot be returned home or cannot be placed for adoption; and (6) Case management services de- (6) Placing children in suitable adop- signed to stabilize families in crisis tive homes, in cases where restoration such as transportation, assistance with to the biological family is not possible housing and utility payments, and ac- or appropriate. cess to adequate health care. Children refers to individuals from Family support services means commu- birth to the age of 21 (or such age of nity-based services to promote the majority as provided under State law) well-being of children and families de- including infants, children, youth, ado- signed to increase the strength and sta- lescents, and young adults. bility of families (including adoptive, Community-based services refers to foster, and extended families), to in- programs delivered in accessible set- crease parents’ confidence and com- tings in the community and responsive petence in their parenting abilities, to to the needs of the community and the afford children a stable and supportive individuals and families residing there- family environment, and otherwise to in. These services may be provided enhance child development. Family under public or private nonprofit aus- support services may include: pices. (1) Services, including in-home visits, Families includes, but is not limited parent support groups, and other pro- to, biological, adoptive, foster, and ex- grams designed to improve parenting tended families. skills (by reinforcing parents’ con- Family preservation services refers to fidence in their strengths, and helping services for children and families de- them to identify where improvement is signed to protect children from harm needed and to obtain assistance in im- and help families (including foster, proving those skills) with respect to adoptive, and extended families) at matters such as child development, risk or in crisis, including— family budgeting, coping with stress, (1) Preplacement preventive services health, and nutrition; programs, such as intensive family (2) Respite care of children to provide preservation programs, designed to temporary relief for parents and other help children at risk of foster care caregivers; placement remain with their families, (3) Structured activities involving where possible; parents and children to strengthen the (2) Service programs designed to help parent-child relationship; children, where appropriate, return to (4) Drop-in centers to afford families families from which they have been re- opportunities for informal interaction
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with other families and with program (i) Child welfare services under title staff; IV–B, subpart 1; and (5) Transportation, information and (ii) Family preservation and family referral services to afford families ac- support services under title IV–B, sub- cess to other community services, in- part 2. cluding child care, health care, nutri- (2) For States only, the CFSP also tion programs, adult education literacy must contain information on the fol- programs, legal services, and coun- lowing programs: seling and mentoring services; and (i) The independent living program (6) Early developmental screening of under title IV–E, section 477 of the Act; children to assess the needs of such and children, and assistance to families in (ii) The Child Abuse and Neglect securing specific services to meet these State grant program (known as the needs. Basic State Grant) under the Child Joint planning means an ongoing Abuse Prevention and Treatment Act partnership process between ACF and (CAPTA) (42 U.S.C. 5101 et. seq.). the State and between ACF and an In- (3) States must meet all require- dian Tribe in the development, review, ments of this section except those that analysis, and refinement and/or revi- apply only to Indian Tribes. Indian sion of the State’s and the Indian Tribes must meet the requirements of Tribe’s child and family services plan. this section only as specified. Joint planning involves discussions, (4) States and eligible Indian Tribes consultation, and negotiation between have the option to phase-in the re- ACF and the State or Indian Tribe in quirements for a consolidated CFSP. all areas of CFSP creation such as, but The consolidated CFSP requirements not limited to, identifying the service must be in place by June 30, 1997 and needs of children, youth, and families; meet the requirements of 45 CFR selecting the unmet service needs that 1357.16. will be addressed; developing goals and (b) Eligibility for funds. (1) In order to objectives that will result in improving receive funding under title IV–B, sub- outcomes for children and families; de- parts 1 and 2, each State and eligible veloping a plan to meet the matching Indian Tribe must submit and have ap- requirements; and establishing a more proved a consolidated, five-year Child comprehensive, coordinated and effec- and Family Services Plan (CFSP) and a tive child and family services delivery CFS–101, Budget Request and Esti- system. The expectation of joint plan- mated Expenditure Report that meets ning is that both ACF and the State or the requirements under 45 CFR 1357.16. Indian Tribe will reach agreement on (2) States and Indian Tribes that are substantive and procedural matters re- consolidating the requirements for a lated to the CFSP. CFSP in FY 1995, in accordance with [61 FR 58655, Nov. 18, 1996] § 1357.15(a), must submit the CFSP and a CFS–101 for FY 1995 and 1996 by June § 1357.15 Comprehensive child and 30, 1995. family services plan requirements. (3) States and eligible Indian Tribes (a) Scope. (1) The CFSP provides an choosing to phase-in the requirements opportunity to lay the groundwork for for a consolidated CFSP in FY 1996 and a system of coordinated, integrated, 1997 must submit the CFSP, the CFS– culturally relevant family focused 101 for FY 1995 for subpart 1 and 2, and services. This section describes the re- the CFS–101 for subpart 2 for FY 1996 quirements for the development, imple- by June 30, 1995. mentation and phase-in of the five-year (4) The CFSP will be approved only if comprehensive child and family serv- the plan was developed jointly by ACF ices plan (CFSP). The State’s CFSP and the State (or the Indian Tribe), and must meet the requirements of both of only after broad consultation by the the following programs. The Indian State (and the Indian Tribe) with a Tribe’s CFSP must meet the require- wide range of appropriate public and ments of one or both of the following non-profit private agencies and com- programs depending on the Tribe’s eli- munity-based organizations with expe- gibility: rience in administering programs of
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services for children and families (in- (1) broad involvement and consulta- cluding family preservation and sup- tion with a wide range of appropriate port services). public and non-profit private agencies (5) By June 30, 1996, each grantee and community-based organizations, must submit and have approved the parents, including parents who are in- first Annual Progress and Services Re- volved or have experience with the port and a CFS 101 for FY 1997 that child welfare system, and others; meets the statutory and regulatory re- (2) coordination of the provision of quirements of title IV–B, subparts 1 services under the plan with other Fed- and 2. eral and federally assisted programs (6) The Annual Progress and Services serving children and families, includ- Report will be approved if it was devel- ing youth and adolescents; and oped jointly by ACF and the State (or (3) collection of existing or available the Indian Tribe) and if it meets the re- information to help determine vulner- quirements of 45 CFR 1357.16. able or at-risk populations or target (7) The five-year CFSP for FYs 1995– areas; assess service needs and re- 1999 may be submitted in the format of sources; identify gaps in services; se- the State’s or the Indian Tribe’s choice lect priorities for targeting funding and must be submitted no later than and services; formulate goals and ob- June 30, 1995, to the appropriate ACF jectives; and develop opportunities for Regional Office. bringing about more effective and ac- (c) Assurances. The following assur- cessible services for children and fami- ances will remain in effect on an ongo- lies. ing basis and will need to be re-sub- (e) State agency administering the pro- mitted only if a significant change in grams. (1) The State’s CFSP must iden- the State or the Indian Tribe’s pro- tify the name of the State agency that gram affects an assurance: will administer the title IV–B pro- (1) The State or Indian Tribe must grams under the plan. Except as pro- assure that it will participate in any vided by statute, the same agency is evaluations the Secretary of HHS may required to administer or supervise the require. administration of all programs under (2) The State or Indian Tribe must titles IV–B and IV–E of the Act and the assure that it will administer the social services block grant program CFSP in accordance with methods de- under title XX of the Act. (See the defi- termined by the Secretary to be proper nition of ‘‘State agency’’ in 45 CFR and efficient. 1355.20.) (3) The State or Indian Tribe must (2) The CFSP must include a descrip- assure that it has a plan for the train- tion of the organization and function of ing and use of paid paraprofessional the State agency and organizational staff, with particular emphasis on the charts as appropriate. It also must full-time or part-time employment of identify the organizational unit(s) low-income persons, as community within the State agency responsible for service aides; and a plan for the use of the operation and administration of nonpaid or partially paid volunteers in the CFSP, and include a description of providing services and in assisting any the unit’s organization and function advisory committees established by and a copy of the organizational the State or Tribe. chart(s). (4) The State or Indian Tribe must (f) Indian Tribal organization admin- assure that standards and require- istering the program(s). (1) The Indian ments imposed with respect to child Tribe’s CFSP must provide the name of care under title XX shall apply with re- the Indian Tribal organization (ITO) spect to day care services, if provided designated to administer funds under under the CFSP, except insofar as eli- title IV–B, subpart 1, child welfare gibility for such services is involved. services and/or under subpart 2, family (d) The child and family services plan preservation and family support serv- (CFSP): general. The State and the In- ices. If the Indian Tribe receives funds dian Tribe must base the development under both subparts, the same agency of the CFSP on a planning process that or organization must administer both includes: programs.
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(2) The Indian Tribe’s CFSP must in- cedures assuring the production of clude a description of the organization valid and reliable data and information and function of the office responsible must be specified. The data and infor- for the operation and administration of mation must be capable of determining the CFSP, an organizational chart of whether or not the interim bench- that office, and a description of how marks and multiyear timetable for ac- that office relates to Tribal and other complishing CFSP goals and objectives offices operating or administering serv- are being met. ices programs within the Indian Tribe’s (k) Baseline information. (1) For FY service area (e.g., Indian Health Serv- 1995, the State and the Indian Tribe ice.) must base the development of the (g) Vision Statement. The CFSP must CFSP vision, goals, objectives, and include a vision statement which ar- funding and service decisions on an ticulates the grantee’s philosophy in analysis of available baseline informa- providing child and family services and tion and any trends over time on indi- developing or improving a coordinated cators in the following areas: the well- service delivery system. The vision being of children and families; the should reflect the service principles at needs of children and families; the na- section 1355.25. ture, scope, and adequacy of existing (h) Goals. The CFSP must specify the child and family and related social goals, based on the vision statement, services. Additional and updated infor- that will be accomplished during and mation on service needs and organiza- by the end of the five-year period of the tional capacities must be obtained plan. The goals must be expressed in throughout the five-year period to terms of improved outcomes for and measure progress in accomplishing the the safety, permanency and well-being goals and objectives cited in the CFSP. of children and families, and in terms A description of how this process will of a more comprehensive, coordinated, continue to be carried out must be in- and effective child and family service cluded in the CFSP, and any revisions delivery system. should be provided in the Annual (i) Objectives. (1) The CFSP must in- Progress and Services Report. clude the realistic, specific, quantifi- (2) The State must collect and ana- able and measurable objectives that lyze State-wide information on family will be undertaken to achieve each preservation and family support serv- goal. Each objective should focus on ices currently available to families and outcomes for children, youth, and/or children, including the nature and their families or on elements of service scope of existing public and privately delivery (such as quality) that are funded family support and family pres- linked to outcomes in important ways. ervation services; the extent to which Each objective should include both in- each service is available and being pro- terim benchmarks and a long-term vided in different geographic areas and timetable, as appropriate, for achiev- to different types of families; and im- ing the objective. portant gaps in service, including (2) For States and Indian Tribes ad- mismatches between available services ministering the title IV–B, subpart 1 and family needs as identified through program, the CFSP must include objec- baseline data and the consultation tives to make progress in covering ad- process. Other services which impact ditional political subdivisions, reach- on the ability to preserve and support ing additional children in need of serv- families may be included in the assess- ices, expanding and strengthening the ment. The Indian Tribe must collect range of existing services, and devel- and analyze information on family oping new types of services. preservation and family support serv- (j) Measures of progress. The CFSP ices currently available within their must describe the methods to be used service delivery area including the in- in measuring the results, accomplish- formation in this paragraph as appro- ments, and annual progress toward priate. An Indian Tribe may submit meeting the goals and objectives, espe- documentation prepared to satisfy the cially the outcomes for children, requirements of other Federal child youth, and families. Processes and pro- welfare grants, or contracts (such as
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the section 638 reporting form), along and families, including family preser- with a descriptive addendum address- vation and family support services; ing specifically the family preservation (iv) Parents, including birth and and family support services available. adoptive parents, foster parents, fami- (3) The CFSP must include a sum- lies with a member with a disability, mary of the information used in devel- children both in and outside the child oping the plan; an explanation of how welfare system, and consumers of serv- this information and analysis were ices from diverse groups; used in developing the goals, objec- (v) For States, representatives of In- tives, and funding and service deci- dian Tribes within the State; sions, including decisions about geo- (vi) For States, representatives of graphic targeting and service mix; a local government (e.g., counties, cities, description of how information will be and other communities, neighborhoods, used to measure progress over the five- or areas where needs for services are year period; and how this information great;) will be used to facilitate the coordina- (vii) Representatives of professional tion of services. and advocacy organizations (including, (l) Consultation. (1) The State’s CFSP for example foundations and national must describe the internal and external resource centers with expertise to as- consultation process used to obtain sist States and Indian Tribes to design, broad and active involvement of major expand, and improve the delivery of actors across the entire spectrum of services); individual practitioners the child and family service delivery working with children and families; the system in the development of the plan. courts; representatives or other States The description should explain how or Indian Tribes with experience in ad- this process was coordinated with or ministering family preservation and was a part of other planning processes family support services; and academi- in the State; how it led or will lead to cians, especially those assisting the improved coordination of services. child and family service agency with (2) The Indian Tribe’s CFSP must de- management information systems, scribe the consultation process appro- training curricula, and evaluations; priate to its needs and circumstances (viii) Representatives of State and used to obtain the active involvement local agencies administering Federal of major actors providing child and and federally assisted programs which family services within the Tribe’s area may include: Head Start; the local edu- of jurisdiction. cation agency (school-linked social (3) For States and Indian Tribes, the services, adult education and literacy consultation process must involve: programs, Part H programs); develop- (i) All appropriate offices and agen- mental disabilities; nutrition services cies within the State agency or within (Food Stamps, Special Supplemental the Indian Tribal service delivery sys- Food Program for Women, Infants and tem (e.g., child protective services Children (WIC)); Title IV–A; runaway (CPS), foster care and adoption, the so- youth, youth gang, juvenile justice cial services block grant, reunification programs and youth residential and services, independent living, and other training institutions; child care and de- services to youth;) velopment block grant (CCDBG) and (ii) In a State-supervised, county-ad- respite care programs; domestic and ministered State, county social serv- community violence prevention and ices and/or child welfare directors or services programs; housing programs; representatives of the county social the health agency (substance abuse, services/child welfare administrators’ Healthy Start, maternal and child association; health, Early and Periodic Screening, (iii) A wide array of State, local, Diagnosis, and Treatment (EPSDT), Tribal, and community-based agencies mental health, and public health nurs- and organizations, both public and pri- ing); law enforcement; Children’s Trust vate nonprofit with experience in ad- Funds; Community-Based Family Re- ministering programs of services for source Programs, and new Federal ini- infants, children, youth, adolescents, tiatives such as the Empowerment
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Zones and Enterprise Communities lations to achieve the goals and objec- Program; and tives in the plan. The descriptions (ix) Administrators, supervisors and must include the participants in the front line workers (direct service pro- process and any examples of how the viders) of the State child and family process led or will lead to additional services agency. coordination of services. (4) The CFSP must describe the ongo- (n) Services. (1) The State’s CFSP ing consultation process that each must describe the publicly funded child grantee will use to ensure the contin- and family services continuum: child ued involvement of a wide range of welfare services (including child abuse major actors in meeting the goals and and neglect prevention, intervention, objectives over the five-year oper- and treatment services; and foster ational period of the plan and devel- care); family preservation services; oping the Annual Progress and Serv- family support services; and services to ices Report. support reunification, adoption, kin- (m) Services coordination. (1) States must include in the ongoing coordina- ship care, independent living, or other tion process representatives of the full permanent living arrangements. range of child and family services pro- (2) The Indian Tribe’s CFSP must de- vided by the State agency as well as scribe the child welfare services (in- other service delivery systems pro- cluding child abuse and neglect preven- viding social, health, education, and tion, intervention, treatment services economic services (including mental and foster care) and/or the family sup- health, substance abuse, developmental port and family preservation services disabilities, and housing) to improve to be provided. access and deliver a range of services (3) For each service described, the to children and their families. CFSP must include the following infor- (2) The State’s CFSP must describe mation, or it must be listed on the how services under the plan will be co- CFS–101, Part II: ordinated over the five-year period (i) The population(s) to be served; with services or benefits under other (ii) The geographic area(s) where the Federal or federally assisted programs services will be available; serving the same populations to (iii) The estimated number of indi- achieve the goals and objectives in the viduals and/or families to be served; plan. The description must include the (iv) The estimated expenditures for participants in the process and exam- these services from Federal, State, ples of how the process led or will lead local, and donated sources, including to additional coordination of services title IV–B, subparts 1 and 2, the CAPTA (e.g., integrated service models, im- program referenced in paragraph (a) of proved accessibility, use of a consoli- this section, and the independent living dated application or intake form, program. inter-disciplinary training, coordinated case management for several programs, (o) Family preservation and family sup- pooled resources through blended fi- port services and linkages to other social nancing, shared information across and health services. (1) The State’s services providers and compatible and CFSP must explain how the funds linked automated information sys- under title IV–B, subpart 2 of the Act, tems, co-location of several services or will be used to develop or expand fam- programs.) ily support and family preservation (3) The Indian Tribe must include in services; how the family support and the coordination process representa- family preservation services relate to tives of other Federal or federally as- existing family support and family sisted child and family services or re- preservation services; and how these lated programs. The Indian Tribe’s family support and preservation serv- CFSP must describe how services under ices will be linked to other services in the plan will be coordinated over the the child and family services con- five-year period with services or bene- tinuum. fits under other Federal or federally as- (2) The State’s CFSP must explain sisted programs serving the same popu- whether and/or how funds under the
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CAPTA and independent living pro- for community-based family support grams are coordinated with and inte- and for family preservation services, grated into the child and family serv- and the rationale for the decision. The ices continuum described in the plan. State must have an especially strong (3) The State’s CFSP must describe rationale if the request for either per- the existing or current linkages and centage is below 25 percent. It must the coordination of services between also include an explanation of how this the services in the child and family distribution was reached and why it services continuum and the services in meets the requirements that a ‘‘signifi- other public services systems (e.g., cant portion’’ of the service funds must health, education, housing, substance be spent for each service. Examples of abuse, the courts), and other Federal important considerations might in- and non-federally funded public and clude the nature of the planning efforts nonprofit private programs (e.g., Chil- that led to the decision, the level of ex- dren’s Trust Funds, Community-Based isting State effort in each area, and the Family Resource Programs, private resulting need for new or expanded foundations.) services. (p) Services in relation to service prin- (t) Staff training, technical assistance, ciples. The CFSP must describe how the and evaluation. (1) The State’s CFSP child and family services to be pro- must include a staff development and vided are designed to assure the safety training plan in support of the goals and protection of children as well as and objectives in the CFSP which ad- the preservation and support of fami- dresses both of the title IV–B programs lies, and how they are or will be de- covered by the plan. This training plan signed to be consistent with the other also must be combined with the train- service principles in 45 CFR 1355.25. ing plan under title IV–E as required (q) Services in relation to permanency by 45 CFR 1356.60(b)(2). Training must planning. For States administering be an on-going activity and must in- both title IV–B programs (subparts 1 clude content from various disciplines and 2), the CFSP must explain how and knowledge bases relevant to child these services will help meet the per- and family services policies, programs manency provisions for children and and practices. Training content must families in sections 422(b)(9) and 471 of also support the cross-system coordina- the Act (e.g., preplacement preventive tion consultation basic to the develop- services, reunification services, inde- ment of the CFSP. pendent living services.) The CFSP (2) The State’s CFSP must describe must describe the arrangements, joint- the technical assistance activities that ly developed with the Indian Tribes will be undertaken in support of the within its borders, made for the provi- goals and objectives in the plan. sion of the child welfare services and (3) The State’s CFSP must describe protections in section 422(b)(9) to In- any evaluation and research activities dian children under both State and underway or planned with which the Tribal jurisdiction. State agency is involved or partici- (r) Decision-making process: selection of pating and which are related to the family support programs for funding. The goals and objectives in the plan. State’s CFSP must include an expla- (u) Quality assurance. The State must nation of how agencies and organiza- include in the CFSP a description of tions were selected for funding to pro- the quality assurance system it will vide family support services and how use to regularly assess the quality of these agencies and organizations meet services under the CFSP and assure the requirement that family support that there will be measures to address services be community-based. identified problems. (s) Significant portion of funds used for (v) Distribution of the CFSP and the family support and family preservation annual progress and services report. The services. With each fiscal year’s budget CFSP must include a description of request, each State must indicate the how the State and the Indian Tribe will specific percentage of family preserva- make available to interested parties tion and family support funds (title IV– the CFSP and the Annual Progress and B, subpart 2) that the State will expend Services Report. (See 45 CFR 1355.21(c)
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and 45 CFR 1357.16(d)). State agencies services or program design and includ- and Indian Tribal organizations within ing the information required in 45 CFR the State must exchange copies of 1357.15(n); their CFSPs and their annual services (5) Information on activities in the reports. areas of training, technical assistance, [61 FR 58656, Nov. 18, 1996] research, evaluation, or management information systems that will be car- EFFECTIVE DATE NOTE: At 61 FR 58656, Nov. ried out in the upcoming fiscal year in 18, 1996, § 1357.15 was revised. The section con- support of the goals and objectives in tains information collection and record- keeping requirements and will not become the plan; effective until approval has been given by (6) For States only, the information the Office of Management and Budget. required to meet the maintenance of effort (non-supplantation) requirement § 1357.16 Annual progress and services in section 432(a) (7) and (8) of the Act; reports. (7) For States and eligible Indian (a) Annual progress and services re- Tribes phasing in requirements for a ports. Annually, each State and each consolidated CFSP, information on ac- Indian Tribe must conduct an interim tivities and progress directed toward a review of the progress made in the pre- consolidated plan by June 30, 1996 or vious year toward accomplishing the 1997. The report must include informa- goals and objectives in the plan, based tion that demonstrates States’ and eli- on updated information. In developing gible Indian Tribes’ progress toward paragraphs (a)(2) through (a)(4) of this the consolidation of a CFSP, including section, the State and the Indian Tribe activities that have been accomplished must involve the agencies, organiza- and still need to be accomplished; and tions, and individuals who are a part of (8) Any other information the State the on-going CFSP-related consulta- or the Indian Tribe wishes to include. tion and coordination process. On the (b) Submittal of the annual progress basis of this review, each State and In- and services report and CFS–101. (1) The dian Tribe must prepare and submit to State and the Indian Tribe must send ACF, and make available to the public, the Annual Progress and Services Re- an Annual Progress and Services Re- port and the CFS–101 to the appro- port which must include the fol- priate ACF Regional Office no later lowing— than June 30 of the year prior to the (1) A report on the specific accom- fiscal year in which the services will be plishments and progress made in the provided (e.g., the report submitted past fiscal year toward meeting each and made public by June 30, 1996 will goal and objective, including improved describe the services to be provided in outcomes for children and families, and FY 1997. The report covering FY 1998 a more comprehensive, coordinated, ef- services must be submitted by June 30, fective child and family services con- 1997.) tinuum; (2) In order for States and eligible In- (2) Any revisions in the statement of dian Tribes to receive title IV–B, sub- goals and objectives, or to the training parts 1 and 2 allocations a CFS–101 plan, if necessary, to reflect changed must be submitted for each fiscal year. circumstances; (3) States and Indian Tribes which (3) For Indian Tribes, a description of have consolidated the requirements for the child welfare and/or family preser- title IV–B, subparts 1 and 2, must sub- vation and family support services to mit the CFS–101 to the appropriate be provided in the upcoming fiscal year ACF Regional Office no later than June highlighting any changes in services or 30 of the year prior to the fiscal year in program design and including the in- which the services will be provided formation required in 45 CFR 1357.15(n); (e.g., for FY 1997 allocations, the CFS– (4) For States, a description of the 101 must be submitted by June 30, 1996; child protective, child welfare, family for FY 1998 allocations, the CFS–101 preservation, family support, and inde- must be submitted by June 30, 1997.) pendent living services to be provided (4) States and eligible Indian Tribes in the upcoming fiscal year high- choosing to phase-in the requirements lighting any additions or changes in for a consolidated CFSP must:
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(i) Submit by June 30, 1996 a CFS–101 CFSP following the requirements of 45 for title IV–B, subpart 1 for FY 1996 al- CFR 1357.15. locations; a CFS–101 for title IV–B, sub- [61 FR 58659, Nov. 18, 1996] part 2 for FY 1997 allocations; and, if a State or eligible Indian Tribe chooses, EFFECTIVE DATE NOTE: At 61 FR 58659, Nov. a CFS–101 for subpart 1 FY 1997 alloca- 18, 1996, § 1357.16 was added. The section con- tions. tains information collection and record- keeping requirements and will not become (ii) Submit by June 30, 1997 a CFS–101 effective until approval has been given by for title IV–B, subpart 1 for FY 1997 al- the Office of Management and Budget. locations, if not previously submitted by June 30, 1996; and a CFS–101 for FY § 1357.20 Child abuse and neglect pro- 1998 for subparts 1 and 2 allocations. grams. (c) Annual progress and services reports The State agency must assure that, on FY 1994 family support and family with regard to any child abuse and ne- preservation services. Each State and In- glect programs or projects funded dian Tribe that used FY 1994 funds under title IV–B of the Act, the re- under title IV–B, subpart 2, for services quirements of section 106(b) (1) and (2) must describe in the CFSP what serv- of the Child Abuse Prevention and ices were provided, the population(s) Treatment Act, as amended, are met. served, and the geographic areas where These requirements relate to the State services were available. The CFSP also plan and assurances required for the must include the amount of FY 1994 Child Abuse and Neglect State Grant funds used for planning, for family Program. preservation services, for family sup- port services, and a brief statement on [61 FR 58660, Nov. 18, 1996] how these services met the service pri- § 1357.25 Requirements for eligibility orities of the State or the Indian Tribe. for additional payments under sec- (d) Availability of the annual progress tion 427. and services report. The State and the Indian Tribe must make the Annual (a) For any fiscal year after FY 1979 Progress and Services Report available in which a sum in excess of $141,000,000 to the public including the agencies, is appropriated under Section 420 of the organizations, and individuals with Act, a State is not eligible for payment which the State or the Indian Tribe is of an amount greater than the amount coordinating services or consulting and for which it would be eligible if the ap- to other interested members of the propriation were equal to $141,000,000 public. Each State and eligible Indian unless the State complies with the re- Tribe within the State must exchange quirements of Section 427(a) of the Act. copies of their Annual Progress and (b) In meeting the requirements for Services Reports. the inventory and statewide informa- tion system in sections 427 (a)(1) and (e) FY 1999 Final Review. In FY 1999, each State and eligible Indian Tribe (2)(A) of the Act, the inventory and must conduct a final review of progress statewide information system must in- toward accomplishing the goals and ob- clude those children under the place- jectives in the plan. On the basis of the ment and care responsibility of the final review, it must— State title IV–B or IV–E agencies. At (1) Prepare a final report on the the State’s discretion, other children progress made toward accomplishing may be included. The six month re- the goals and objectives; and quirement in section 427(a)(1) and the (2) Send the final report to the ACF twelve month requirement in section Regional Office and make it available 427(a)(2)(A) of the Act must also be to the public. met. (f) FY 2000 Five-Year State Plan. Based (The requirement has been approved by on the FY 1999 final review and final the Office of Management and Budget Annual Progress and Services Report, under OMB Control Number 0980–0138) and in consultation with a broad range (c) If, for each of any two consecutive of agencies, organizations, and individ- fiscal years after FY 1979, there is ap- uals, the States and eligible Indian propriated under Section 420 of the Act Tribes must develop a new five-year a sum equal to or greater than
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$266,000,000, a State’s allotment or other relative with whom the child amount for any fiscal year after two involved is living, plus; such consecutive fiscal years shall be (ii) Foster care maintenance pay- reduced to an amount equal to what ments, plus; the allotment amount would have been (iii) Adoption assistance payments. for FY 1979 unless the State has imple- (3) Notwithstanding paragraph (e)(2) mented the requirements of section of this section, State expenditures re- 427(b) of the Act. quired to match the title IV–B, subpart (d) In meeting the requirements of 1 allotment may include foster care section 427(a)(2)(B) of the Act for maintenance expenditures in any dispositional hearings the State agency amount. must meet the requirements of section (f) Prohibition against purchase or con- 475(5)(C) of the Act and 45 CFR struction of facilities. Funds awarded 1356.21(e). under title IV–B may not be used for (e) A State may appeal a final deci- the purchase or construction of facili- sion by ACYF that the State has not ties. met the requirements of this section (g) Maintenance of effort. (1) A State and section 427 of the Act to the De- may not receive an amount of Federal partment Grant Appeals Board under funds under title IV–B in excess of the the provisions of 45 CFR part 16. Federal payment made in FY 1979 under title IV–B unless the State’s [48 FR 23118, May 23, 1983] total expenditure of State and local ap- propriated funds for child welfare serv- § 1357.30 State fiscal requirements (title IV–B, subpart 1, child welfare ices under title IV–B of the Act is equal services). to or greater than the total of the State’s expenditure from State and (a) Scope. The requirements of this local appropriated funds used for simi- section shall apply to all funds allotted lar covered services and programs or reallotted to States under title IV– under title IV–B in FY 1979. B, subpart 1. (2) In computing a State’s level of ex- (b) Allotments. Allotments for each penditures under this section in FY State shall be determined in accord- 1979 and any subsequent fiscal year, the ance with section 421 of the Act. following costs shall not be included— (c) Payments. Payments to States (i) Expenditures and costs for child shall be made in accordance with sec- day care necessary to support the em- tion 423 of the Act. ployment of a parent or other relative; (d) Enforcement and termination. In (ii) Foster care maintenance pay- the event of a State’s failure to comply ments; and with the terms of the grant under title (iii) Adoption assistance payments. IV–B, subpart 1, the provisions of 45 (3) A State applying for an amount of CFR 92.43 and 92.44 will apply. Federal funds under title IV–B greater (e) Matching or cost-sharing. Federal than the amount of title IV–B, subpart financial participation is available 1 funds received by that State in FY only if costs are incurred in imple- 1979 shall certify: menting sections 422, 423, and 425 of the (i) The amount of their expenditure Act in accordance with the grants ad- in FY 1979 for child welfare services as ministration requirements of 45 CFR described in paragraphs (g) (1) and (2) part 92 with the following conditions— of this section, and (1) The State’s contribution may be (ii) The amount of State and local in cash, donated funds, and non-public funds that have been appropriated and third party in-kind contributions. are available for child welfare services (2) The total of Federal funds used for as described in paragraphs (g) (1) and the following purposes under title IV- (2) of this section for the fiscal year for B, subpart 1 may not exceed an amount which application for funds is being equal to the FY 1979 Federal payment made. Records verifying the required under title IV–B: certification shall be maintained by (i) Child day care necessary solely be- the State and made available to the cause of the employment, or training Secretary as necessary to confirm com- to prepare for employment, of a parent pliance with this section.
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(h) Reallotment. (1) When a State cer- be used to meet the matching require- tifies to the Commissioner that funds ment. available to that State under its title (e) Prohibition against purchase or con- IV–B, subpart 1 allotment will not be struction of facilities. Funds awarded required, those funds shall be available under title IV–B may not be used for for reallotment to other States. the purchase or construction of facili- (2) When a State, after receiving no- ties. tice from the Commissioner of the (f) Maintenance of effort. States may availability of funds, does not certify not use the Federal funds under title by a date fixed by the Commissioner IV–B, subpart 2, to supplant Federal or that it will be able to expend during non-Federal funds for existing family the period stated in paragraph (i) of preservation and family support serv- this section all of the funds available ices. For the purpose of implementing to it under its title IV–B, subpart 1 al- this requirement, ‘‘non-Federal funds’’ lotment, those funds shall be available means State funds. ACF will collect in- for reallotment to other States. formation annually from each State on (3) The Commissioner may reallot expenditures for family support and available funds to another State when family preservation using the State fis- it is determined that— cal year 1992 as the base year. (i) The requesting State’s plan re- (g) Time limits on expenditures. Funds quires funds in excess of the State’s must be expended by September 30 of original allotment; and the fiscal year following the fiscal year (ii) the State will be able to expend in which the funds were awarded. the additional funds during the period (h) Administrative costs. (1) States stated in paragraph (i) of this section. claiming Federal financial participa- (i) Time limit on expenditures. Funds tion for services provided in FY 1994 under title IV–B, subpart 1, must be ex- and subsequent years may not claim pended by September 30 of the fiscal more than 10 percent of expenditures year following the fiscal year in which under subpart 2 for administrative the funds were awarded. costs. There is no limit on the percent- [61 FR 58660, Nov. 18, 1996] age of administrative costs which may be reported as State match. § 1357.32 State fiscal requirements (2) For the purposes of title IV–B, (title IV–B, subpart 2, family preser- subpart 2, ‘‘administrative costs’’ are vation and family support services). costs of auxiliary functions as identi- (a) Scope. The requirements of this fied through as agency’s accounting section apply to all funds allocated to system which are: States under title IV–B, subpart 2, of (i) Allocable (in accordance with the the Act. agency’s approved cost allocation plan) (b) Allotments. The annual allotment to the title IV–B, subpart 2 program to each State shall be made in accord- cost centers; ance with section 433 of the Act. (ii) necessary to sustain the direct ef- (c) Payments. Payments to each State fort involved in administering the will be made in accordance with sec- State plan for title IV–B, subpart 2, or tion 434 of the Act. an activity providing service to the (d) Matching or cost sharing. Funds program: and used to provide services in FY 1994 and (iii) centralized in the grantee de- in subsequent years will be federally partment or in some other agency, and reimbursed at 75 percent of allowable may include but are not limited to the expenditures. (This is the same Federal following: Procurement; payroll; per- financial participation rate as title IV– sonnel functions; management, main- B, subpart 1.) Federal funds, however, tenance and operation of space and will not exceed the amount of the property; data processing and com- State’s allotment. puter services; accounting; budgeting; (1) The State’s contribution may be auditing. in cash, donated funds, and non-public (3) Program costs are costs, other third party in-kind contributions. than administrative costs, incurred in (2) Except as provided by Federal connection with developing and imple- statute, other Federal funds may not menting the CFSP (e.g., delivery of
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services, planning, consultation, co- (4) An identification of the standards ordination, training, quality assurance for foster family homes and institu- measures, data collection, evaluations, tional care and day care; supervision). (5) The Indian Tribal organization’s political subdivisions, if any; [61 FR 58661, Nov. 18, 1996] (6) Whether the Tribal organization § 1357.40 Direct payments to Indian is controlled, sanctioned or chartered Tribal Organizations (title IV–B, by the governing body of Indians to be subpart 1, child welfare services). served and if so, documentation of that fact; (a) Who may apply for direct funding? (7) Any limitations on authorities Any Indian Tribal Organization (ITO) granted to the Indian Tribal organiza- that meets the definitions in section tions; and 428(c) of the Act, or any consortium or (8) The Tribal resolution(s) author- other group of eligible Tribal organiza- izing an application for a direct title tions authorized by the membership of IV–B, subpart 1 grant under this Part. the Tribes to act for them is eligible to (d) Grants: General. (1) Grants may be apply for direct funding if the ITO, con- made to eligible Indian Tribal organi- sortium or group has a plan for child zations in a State which has a jointly welfare services that is jointly devel- developed child and family services oped by the ITO and the Department. plan approved and in effect. (b) Title IV–B Child and Family Serv- (2) Federal funds made available for a ices Plan (CFSP). (1) In order to receive direct grant to an eligible ITO shall be funds under title IV–B, subpart 1, be- paid by the Department, from the title ginning in FY 1995, the Indian Tribe or IV–B allotment for the State in which Tribal organization must have in effect the ITO is located. Should a direct an approved five-year child and family grant be approved, the Department services plan that meets the applicable shall promptly notify the State(s) af- requirements of § 1357.15 of this part. fected. (2) The Indian Tribe or Tribal organi- (3) If an eligible ITO includes popu- zation must also comply with section lation from more than one State, a pro- 422(b)(1–8) of the Act; 45 CFR part 1355 portionate amount of the grant will be (except that the requirements in paid from each State’s allotment. § 1355.30 for a single Tribal agency and (4) The receipt of title IV–B funds Governor’s review of the CFSP do not must be in addition to and not a sub- apply); and other applicable require- stitute for funds otherwise previously ments of §§ 1357.10 and 1357.16. expended by the ITO for child welfare (c) Information related to the require- services. ments of Section 422(b)(9) of the Act. The (5) The following fiscal and adminis- following information must be sub- trative requirements apply to Indian mitted with the assurances required to Tribal grants under this section: be eligible for title IV–B, subpart 1 (i) Enforcement and termination. In the funds: event of an Indian Tribe’s failure to (1) A description of the arrange- comply with the terms of the grant ments, jointly developed with the under title IV–B, subpart 1, the provi- State, made for the provision of the sions of 45 CFR 92.43 and 92.44 will child welfare services and protections apply. in section 422(b)(9) to Indian children (ii) Matching or cost-sharing. Federal under both State and Tribal jurisdic- financial participation is available tion; only if costs are incurred in imple- (2) A statement of the legal responsi- menting sections 422, 423, and 425 of the bility, if any, for children who are in Act in accordance with the grants ad- foster care on the reservation and ministration requirements of 45 CFR those awaiting adoption; part 92 with the following conditions— (3) A description of Tribal jurisdic- (A) The ITO’s contribution may be in tion in civil and criminal matters, ex- cash, donated funds, and non-public istence or nonexistence of a Tribal third party in-kind contributions. court and the type of court and codes, (B) The total of Federal funds used if any; for the following purposes under title
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IV–B, subpart 1 may not exceed an nized as eligible for the special pro- amount equal to the FY 1979 Federal grams and services provided by the payment under title IV–B: United States to Indians because of (1) Child day care necessary solely their status as Indians; and for which a because of the employment, or training reservation (including Indian reserva- to prepare for employment, of a parent tions, public domain Indian allotments, or other relative with whom the child and former Indian reservations in involved is living, plus; Oklahoma) exists. (2) Foster care maintenance pay- Tribal organization means the recog- ments, plus; nized governing body of the Indian (3) Adoption assistance payments. Tribe. (C) Notwithstanding paragraph (b) Eligibility for funds: FY 1994. (1) (d)(5)(ii)(B) of this section, Tribal ex- Section 432(b)(2) of the Act provides penditures required to match the title that the Secretary may not approve a IV–B, subpart 1 allotment may include plan of an Indian Tribe whose FY 1995 foster care maintenance expenditures allotment under subpart 2 would be in any amount. less than $10,000. Therefore, only those (iii) Prohibition against purchase or Indian Tribes whose FY 1995 allotment construction of facilities. Funds awarded is $10,000 or more are eligible to receive under title IV–B may not be used for funds beginning in FY 1994. the purchase or construction of facili- (2) ACF will pay any amount to ties. which an Indian Tribe is entitled to the (iv) Time limit on expenditures. Funds Tribal organization of the Indian Tribe. under title IV–B, subpart 1, must be ex- (c) Eligibility for funds: FY 1995. In pended by September 30 of the fiscal order to receive funds under title IV–B, year following the fiscal year in which subpart 2, in FY 1995, an Indian Tribe the funds were awarded. that is eligible for planning funds in (6) In order to determine the amount FY 1994 must submit a Child and Fam- of Federal funds available for a direct ily Services Plan that meets the appli- grant to an eligible ITO, the Depart- cable requirements in section 1357.15 of ment shall first divide the State’s title this Part. IV–B allotment by the number of chil- (d) Eligibility for funds: FY 1996 dren in the State, then multiply the re- through FY 1998. (1) ACF will make sulting amount by a multiplication grants to additional Indian Tribes in factor determined by the Secretary, Fys 1996 through 1998 in the event that and then multiply that amount by the there are increased appropriations. number of Indian children in the ITO (2) Allotments will be calculated in population. The multiplication factor Fys 1996, 1997, and 1998 as required in will be set at a level designed to section 433 of the Act. Those Indian achieve the purposes of the act and re- Tribes in each year whose allotment is vised as appropriate. at least $10,000 will be notified of their [61 FR 58661, Nov. 18, 1996, as amended at 65 eligibility to apply. FR 4093, Jan. 25, 2000] (3) In order to receive funds, addi- tional Indian Tribes which become eli- § 1357.50 Direct payments to Indian gible for grants in FY 1996, 1997, and Tribal organizations (title IV–B, 1998 must submit either a five year subpart 2, family preservation and Child and Family Services Plan (CFSP) support services). that meets the applicable requirements (a) Definitions. of 45 CFR 1357.15 or an application for Alaska Native Organization means any planning funds by June 30 of the year organized group of Alaska Natives eli- in which they first become eligible for gible to operate a Federal program grants. Those Indian Tribes which sub- under the Indian Self-Determination mitted an application for planning Act (Pub. L. 93–638) or such group’s des- funds in their first year of funding ignee as defined in section 482(i)(7)(A) must submit a five year CFSP that of the Act. meets the applicable requirements of 45 Indian Tribe means any Tribe, band, CFR 1357.15 by June 30 of the second nation, or other organized group or year they receive funding. For exam- community of Indians that is recog- ple, in order to receive funds, an Indian
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Tribe which becomes eligible to receive (iii) The requirement that a signifi- funding beginning in FY 1996 must sub- cant portion of funds must be used for mit either an application for planning both family support and family preser- funds or a CFSP by June 30, 1996. If the vation services. Indian Tribe submitted an application (2) Specific exemptions from other for planning funds in FY 1996, they statutory requirements may be re- must submit a CFSP by June 30, 1997. quested by the Tribe in the course of (4) All Indian Tribes will be Federally its joint planning. Such a request must reimbursed at 75 percent of allowable contain a compelling reason. expenditures. Federal funds without match are available in the first year of (g) Matching requirement. (1) Funds receipt of funds for additional Indian used to provide services in FY 1994 and Tribes meeting the following criteria: in subsequent years will be federally (i) Submittal of an application for reimbursed at 75 percent of allowable planning funds, and not a five year expenditures. (This is the same Federal CFSP; financial participation rate as title IV– (ii) Receipt of an initial award in FY B, subpart 1.) The Indian Tribe’s match 1996 or 1997 or 1998; and must be at least 25 percent of the total (iii) A proposal to spend the entire project costs or one-third of the Fed- grant in the first year on planning. eral share. Federal funds, however, will (e) Allotments. Allotments to Indian not exceed the amount of the Indian Tribes are computed based on section Tribe’s allotment. 433 of the Act and are based on a ratio (2) The Indian Tribe’s contribution of the number of children in each In- may be in cash, donated funds, and dian Tribe with an approved plan com- non-public third party in-kind con- pared to the number of children in all tributions. Indian Tribes with approved plans, based on the most current and reliable (3) Indian Tribes, by statute, may use data available. the following three Federal sources of (f) Exemptions of requirements. (1) ACF funds as matching funds: Indian Child has exempted Indian Tribes from three Welfare Act funds, Indian Self-Deter- statutory requirements: mination and Education Assistance (i) The limitation on administrative Act funds, and Community Develop- costs to 10 percent of total Federal and ment Block Grant funds. Tribal funds— Indian Tribes may use (h) Time limits on expenditures. An In- the indirect cost rate agreement in ef- dian Tribe must expend all funds by fect for the Tribe; September 30 of the fiscal year fol- (ii) The requirement for maintenance lowing the fiscal year in which the of effort that funds under this program funds were awarded. may not be used to supplant other Fed- eral and non-Federal funds; and [61 FR 58662, Nov. 18, 1996]
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PART 1370—FAMILY VIOLENCE cation process, including information PREVENTION AND SERVICES on statutory requirements, other appli- PROGRAMS cable regulations, and any required fi- nancial and program reports, is pub- Sec. lished in the FEDERAL REGISTER. 1370.1 Purpose. 1370.2 State and Indian tribal grants. § 1370.3 Information and technical as- 1370.3 Information and technical assistance sistance center grants. center grants. Each grantee awarded funds under 1370.4 State domestic violence coalition grants. section 308 of the Act must meet the 1370.5 Public information campaign grants. statutory requirements of the Act and all applicable regulations. An an- AUTHORITY: 42 U.S.C. 10401 et seq. nouncement which describes the appli- SOURCE: 61 FR 6793, Feb. 22, 1996, unless cation process, including information otherwise noted. on statutory requirements, other appli- cable regulations, and any required fi- § 1370.1 Purpose. nancial and program reports, is pub- This part addresses sections 303, 308, lished in the FEDERAL REGISTER. 311, and 314 of the Family Violence Pre- vention and Services Act (the Act), as § 1370.4 State domestic violence coali- amended (42 U.S.C. 10401 et seq.). The tion grants. Act authorizes the Secretary to imple- ment programs for the purposes of in- Each grantee awarded funds under creasing public awareness about and section 311 of the Act must meet the preventing family violence; providing statutory requirements of the Act and immediate shelter and related assist- all applicable regulations. An an- ance for victims of family violence and nouncement which describes the appli- their dependents; and providing for cation process, including information technical assistance and training relat- on statutory requirements, other appli- ing to family violence programs to cable regulations, and any required fi- States, tribes, local public agencies (in- nancial and program reports, is pub- cluding law enforcement agencies, lished in the FEDERAL REGISTER. courts, legal, social service, and health care professionals), non-profit private § 1370.5 Public information campaign organizations and other persons seek- grants. ing such assistance. All programs au- Each grantee awarded funds under thorized under the Act are funded sub- section 314 of the Act must meet the ject to the availability of funds. statutory requirements of the Act and all applicable regulations. An an- § 1370.2 State and Indian tribal grants. nouncement which describes the appli- Each grantee awarded funds under cation process, including information section 303 of the Act must meet the on statutory requirements, other appli- statutory requirements of the Act and cable regulations, and any required fi- all applicable regulations. An an- nancial and program reports, is pub- nouncement which describes the appli- lished in the FEDERAL REGISTER.
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PART 1385—REQUIREMENTS APPLI- ADD means the Administration on CABLE TO THE DEVELOPMENTAL Developmental Disabilities, within the DISABILITIES PROGRAM Administration for Children and Fami- lies. Commissioner means the Commis- Sec. 1385.1 General. sioner of the Administration on Devel- 1385.2 Purpose of the regulations. opmental Disabilities, Administration 1385.3 Definitions. for Children and Families, Department 1385.4 Rights of individuals with develop- of Health and Human Services or his or mental disabilities. her designee. 1385.5 [Reserved] Department means the U.S. Depart- 1385.6 Employment of individuals with dis- ment of Health and Human Services abilities. (HHS). 1385.7 [Reserved] Developmental disability shall have the 1385.8 Formula for determining allotments. same meaning in 45 CFR parts 1385, 1385.9 Grants administration requirements. 1386, 1387, and 1388 as it does in the De- AUTHORITY: 42 U.S.C. 6000 et. seq. velopmental Disabilities Act, section SOURCE: 49 FR 11777, Mar. 27, 1984, unless 102(8), which reads ‘‘the term ‘develop- otherwise noted. mental disability’ means a severe, chronic disability of an individual 5 § 1385.1 General. years of age or older that— Except as specified in § 1385.4, the re- (1) Is attributable to a mental or quirements in this part are applicable physical impairment or combination of to the following programs and projects: mental and physical impairments; (a) Federal Assistance to State De- (2) Is manifested before the indi- velopmental Disabilities Councils; vidual attains age 22; (b) Protection and Advocacy of the (3) Is likely to continue indefinitely; Rights of Individuals with Develop- (4) Results in substantial functional mental Disabilities; limitations in three or more of the fol- (c)Projects of National Signifi- lowing areas of major life activity— cance;and (i) Self-care; (d) University Affiliated Programs (ii) Receptive and expressive lan- (UAPs). guage; (iii) Learning; [52 FR 44845, Nov. 20, 1987, as amended at 54 (iv) Mobility; FR 47984, Nov. 20, 1989; 61 FR 51153, Sept. 30, (v) Self-direction; 1996] (vi) Capacity for independent living; and §1385.2 Purpose of the regulations. (vii) Economic self-sufficiency. These regulations implement the De- (5) Reflects the individual’s need for velopmental Disabilities Assistance a combination and sequence of special, and Bill of Rights Act as amended (42 interdisciplinary, or generic services, U.S.C. 6000, et seq.). supports, or other assistance that is of lifelong or extended duration and is in- § 1385.3 Definitions. dividually planned and coordinated, ex- In addition to the definitions in sec- cept that such term, when applied to tion 102 of the Act (42 U.S.C. 6001), the infants and young children means indi- following definitions apply: vidual from birth to age 5, inclusive, ACF means the Administration for who have substantial developmental Children and Families within the De- delay or specific congenital or acquired partment of Health and Human Serv- conditions with a high probability of ices. resulting in developmental disabilities Act means the Developmental Dis- if services are not provided.’’ Such de- abilities Assistance and Bill of Rights termination shall be made on a case- Act, as amended (42 U.S.C. 6000 et. seq). by-case basis and any State eligibility
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definition of developmental disability § 1385.4 Rights of individuals with de- or policy statement which is more re- velopmental disabilities. strictive than that of the Act does not (a) Section 110 of the Act, Rights of apply as the Act takes precedence. Individuals with Developmental Dis- Fiscal year means the Federal fiscal abilities (42 U.S.C. 6009) is applicable to year unless otherwise specified. the programs authorized under the Act, Governor means the chief executive except for the Protection and Advocacy officer of the State or Territory, or his System. or her designee who has been formally (b) In order to comply with section designated to act for the Governor in 122(c)(5)(G) of the Act (42 U.S.C. carrying out the requirements of the 6022(c)(5)(G)), regarding the rights of Act and these regulations. individuals with developmental disabil- OHDS means the Office of Human De- ities, the State must meet the require- velopmental Services within the De- ments of 45 CFR 1386.30(f)(2). partment of Health and Human Serv- (c) Applications from university af- ices. filiated programs or for projects of na- Protection and Advocacy Agency tional significance grants must also means the organization or agency des- contain an assurance that the human ignated in a State to administer and rights of individuals assisted by these operate a protection and advocacy programs will be protected consistent (P&A) system for individuals with de- with section 110 (see section 153(c)(3) velopmental disabilities under part C and section 162(c)(3) of the Act). of the Developmental Disabilities As- sistance and Bill of Rights Act, as [61 FR 51154, Sept. 30, 1996] amended (A P&A System under part C § 1385.5 [Reserved] is authorized to investigate incidents of abuse and neglect regarding persons § 1385.6 Employment of individuals with developmental disabilities; pursue with disabilities. administrative, legal and appropriate Each grantee which receives Federal remedies or approaches to ensure pro- funding under the Act must meet the tection of, and advocacy for, the rights requirements of section 109 of the Act of such individuals; and provide infor- (42 U.S.C. 6008) regarding affirmative mation on and referral to programs and action. The grantee must take affirma- services addressing the needs of such tive action to employ and advance in individuals (section 142(a)(2)(A).); and employment and otherwise treat quali- advocacy programs under the Protec- fied individuals with disabilities with- tion and Advocacy for Mentally Ill In- out discrimination based upon their dividuals Act of 1986 (PAIMI Act), as physical or mental disability in all em- amended, (42 U.S.C. 10801 et seq.) the ployment practices such as the fol- Protection and Advocacy of Individual lowing: Advertising, recruitment, em- Rights Program (PAIR), (29 U.S.C. ployment, rates of pay or other forms 794(e); and the Technology-Related As- of compensation, selection for training, sistance for Individuals With Disabil- including apprenticeship, upgrading, ities Act of 1988, as amended (29 U.S.C. demotion or transfer, and layoff or ter- 2212(e)). The Protection and Advocacy mination. This obligation is in addition agency also may be designated by the to the requirements of 45 CFR part 84, Governor of a State to conduct the Cli- subpart B, prohibiting discrimination ent Assistance Program (CAP) author- in employment practices on the basis ized by section 112 of the Rehabilita- of disability in programs receiving as- tion Act of 1973, as amended, (29 U.S.C. sistance from the Department. Recipi- 732). Finally, the Protection and Advo- ents of funds under the Act also may be cacy agency may provide advocacy bound by the provisions of the Ameri- services under other Federal programs. cans with Disabilities Act (Pub. L. 101– Secretary means the Secretary of the 336, 42 U.S.C. 12101 et seq.) with respect Department of Health and Human to employment of individuals with dis- Services. abilities. Failure to comply with sec- [49 FR 11777, Mar. 27, 1984, as amended at 52 tion 109 of the Act may result in loss of FR 44845, Nov. 20, 1987; 54 FR 47984, Nov. 20, Federal funds under the Act. If a com- 1989; 61 FR 51153, Sept. 30, 1996] pliance action is taken, the State will
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be given reasonable notice and an op- 45 CFR Part 84—Nondiscrimination on the portunity for a hearing as provided in Basis of Handicap in Programs and Activi- Subpart D of 45 CFR part 1386. ties Receiving or Benefiting from Federal Financial Assistance. [61 FR 51154, Sept. 30, 1996] 45 CFR Part 86—Nondiscrimination on the Basis of Sex in Education Programs and § 1385.7 [Reserved] Activities Receiving or Benefiting from Federal Financial Assistance. § 1385.8 Formula for determining allot- 45 CFR Part 91—Nondiscrimination on the ments. Basis of Age in Programs or Activities Re- The Commissioner will allocate funds ceiving Federal Financial Assistance from HHS. appropriated under the Act for the 45 CFR Part 92—Uniform Administrative Re- State Developmental Disabilities quirements for Grants and Cooperative Councils and the Protection and Advo- Agreements to State and Local Govern- cacy Systems on the following basis: ments. (a) Two-thirds of the amount appro- (b) The Departmental Appeals Board priated are allotted to each State ac- also has jurisdiction over appeals by cording to the ratio the population of grantees which have received grants each State bears to the population of under the University Affiliated pro- the United States. This ratio is weight- gram or for Projects of National Sig- ed by the relative per capita income for nificance. The scope of the Board’s ju- each State. The data used to compute risdiction concerning these appeals is allotments are supplied by the U.S. De- described in 45 CFR part 16. partment of Commerce, for the three (c) The Departmental Appeals Board most recent consecutive years for also has jurisdiction to decide appeals which satisfactory data are available. brought by the States concerning any (b) One-third of the amount appro- disallowances taken by the Commis- priated is allotted to each State on the sioner with respect to specific expendi- basis of the relative need for services of tures incurred by the States or by con- persons with developmental disabil- tractors or subgrantees of States. This ities. The relative need is determined jurisdiction relates to funds provided by the number of persons receiving under the two formula programs—Part benefits under the Childhood Disabil- B of the Act—Federal Assistance to ities Beneficiary Program (section State Developmental Disabilities 202(d)(1)(B)(ii) of the Social Security Councils and Part C of the Act—Pro- Act), (42 U.S.C. 402(d)(1)(B)(ii)). tection and Advocacy of the Rights of [49 FR 11777, Mar. 27, 1984, as amended at 61 Individuals with Developmental Dis- FR 51154, Sept. 30, 1996] abilities. Appeals filed by States shall be decided in accordance with 45 CFR § 1385.9 Grants administration re- part 16. quirements. (d) In making audits and examina- (a) The following parts of title 45 tions to any books, documents, papers, CFR apply to grants funded under parts and transcripts of records of State De- 1386 and 1388 of this chapter and to velopmental Disabilities Councils, the grants for Projects of National Signifi- University Affiliated Programs, and cance under section 162 of the Act (42 the Projects of National Significance U.S.C. 6082). grantees and subgrantees, as provided for in 45 CFR part 74 and part 92, the 45 CFR Part 16—Procedures of the Depart- mental Grant Appeals Board. Department will keep information 45 CFR Part 46—Protection of Human Sub- about individual clients confidential to jects. the maximum extent permitted by law 45 CFR Part 74—Administration of Grants. and regulations. 45 CFR Part 75—Informal Grant Appeals Pro- (e) (1) The Department or other au- cedures. thorized Federal officials may access 45 CFR Part 80—Nondiscrimination under client and case eligibility records or Programs Receiving Federal Assistance other records of the Protection and Ad- Through the Department of Health and Human Services—Effectuation of title VI vocacy system for audit purposes and of the Civil Rights Act of 1964. for purposes of monitoring system 45 CFR Part 81—Practice and Procedure for compliance pursuant to section 104(b) Hearings Act under part 80 of this title. of the Act. However, such information
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will be limited pursuant to section Subpart C—Federal Assistance to State 142(j) of the Act. No personal identi- Developmental Disabilities Councils. fying information such as name, ad- dress, and social security number will 1386.30 State plan requirements. be obtained. Only eligibility informa- 1386.31 State Plan submittal and approval. tion will be obtained regarding type 1386.32 Periodic reports: Federal assistance and level of disability of individuals to State Developmental Disabilities Councils. being served by the P&A and the na- 1386.33 Protection of employees’ interest. ture of the issue concerning which the 1386.34 Designated State Agency. System represented an individual. 1386.35 Allowable and non-allowable costs (2) Notwithstanding paragraph for Federal Assistance to State Develop- (e)(1)of this section, if an audit, moni- mental Disabilities Councils. toring review, evaluation, or other in- 1386.36 Final disapproval of the State plan vestigation by the Department pro- or plan amendments. duces evidence that the system has vio- lated the Act or the regulations, the Subpart D—Practice and Procedure for system will bear the burden of proving Hearing Pertaining to States’ Con- its compliance. The system’s inability formity and Compliance with Devel- to establish compliance because of the opmental Disabilities State Plans, Re- confidentiality of records will not re- ports and Federal Requirements lieve it of this responsibility. The sys- tem may elect to obtain a release from GENERAL all individuals requesting or receiving 1386.80 Definitions. services at the time of intake or appli- 1386.81 Scope of rules. cation. The release shall state only in- 1386.82 Records to be public. formation directly related to client 1386.83 Use of gender and number. and case eligibility will be subject to 1386.84 Suspension of rules. disclosure to officials of the Depart- 1386.85 Filing and service of papers. ment. PRELIMINARY MATTERS—NOTICE AND PARTIES [49 FR 11777, Mar. 27, 1984, as amended at 52 1386.90 Notice of hearing or opportunity for FR 44846, Nov. 20, 1987; 54 FR 47984, Nov. 20, 1989; 61 FR 51154, Sept. 30, 1996] hearing. 1386.91 Time of hearing. 1386.92 Place. PART 1386—FORMULA GRANT 1386.93 Issues at hearing. PROGRAMS 1386.94 Request to participate in hearing.
Subpart A—Basic Requirements HEARING PROCEDURES 1386.100 Who presides. Sec. 1386.101 Authority of presiding officer. 1386.1 General. 1386.102 Rights of parties. 1386.2 Obligation of funds. 1386.103 Discovery. 1386.3 Liquidation of obligations. 1386.104 Evidentiary purpose. 1386.4 [Reserved] 1386.105 Evidence. Subpart B—State System for Protection and 1386.106 Exclusion from hearing for mis- Advocacy of the Rights of Individuals conduct. with Developmental Disabilities. 1386.107 Unsponsored written material. 1386.108 Official transcript. 1386.19 Definitions. 1386.109 Record for decision. 1386.20 Designated State Protection and Ad- vocacy agency. POSTHEARING PROCEDURES, DECISIONS 1386.21 Requirements and authority of the 1386.110 Posthearing briefs. Protection and Advocacy System. 1386.111 Decisions following hearing. 1386.22 Access to records, facilities and indi- 1386.112 Effective date of decision by the As- viduals with developmental disabilities. sistant Secretary. 1386.23 Periodic reports: Protection and Ad- vocacy System. AUTHORITY: 42 U.S.C. 6000 et. seq. 1386.24 Non-allowable costs for the Protec- SOURCE: 49 FR 11779, Mar. 27, 1984, unless tion and Advocacy System. otherwise noted. 1386.25 Allowable litigation costs.
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Subpart A—Basic Requirements made available for Federal Assistance to State Developmental Disabilities § 1386.1 General. Councils and to the Protection and Ad- All rules under this subpart are ap- vocacy System obligated under this plicable to both the State Develop- paragraph are subject to the require- mental Disabilities Councils and the ment of paragraph (a) of this section. Protection and Advocacy Agencies. These funds, if reobligated, may be re- obligated only within a two year period [49 FR 11779, Mar. 27, 1984, as amended at 61 beginning with the first day of the Fed- FR 51155, Sept. 30, 1996] eral fiscal year in which the funds were originally awarded. § 1386.2 Obligation of funds. (a) Funds which the Federal Govern- [49 FR 11779, Mar. 27, 1984, as amended at 54 ment allots under this Part during a FR 47985, Nov. 20, 1989; 61 FR 51155, Sept. 30, Federal fiscal year are available for ob- 1996] ligation by States for a two year period § 1386.3 Liquidation of obligations. beginning with the first day of the Fed- eral fiscal year in which the grant is (a) All obligations incurred pursuant awarded. to a grant made under the Act for a (b) (1) A State incurs an obligation specific Federal fiscal year, must be for acquisition of personal property or liquidated within two years of the close for the performance of work on the of the Federal fiscal year in which the date it makes a binding, legally en- grant was awarded. forceable, written commitment, or (b) The Commissioner may waive the when the State Developmental Disabil- requirements in paragraph (a) of this ities Council enters into an Inter- section when State law impedes imple- agency Agreement with an agency of mentation or the amount of obligated State government for acquisition of funds to be liquidated is in dispute. personal property or for the perform- (c) Funds attributable to obligations ance of work. which are not liquidated in accordance (2) A State incurs an obligation for with the provisions of this section re- personal services, for services per- vert to the Federal Government. formed by public utilities, for travel or for rental of real or personal property § 1386.4 [Reserved] on the date it receives the services, its personnel takes the travel, or it uses Subpart B—State System for Pro- the rented property. tection and Advocacy of the (c) (1) The Protection and Advocacy System may elect to treat entry of an Rights of Individuals with De- appearance in judicial and administra- velopmental Disabilities tive proceedings on behalf of an indi- § 1386.19 Definitions. vidual with a developmental disability as a basis for obligating funds for the As used in §§ 1386.20, 1386.21, 1386.22 litigation costs. The amount of the and 1386.25 of this part the following funds obligated must not exceed a rea- definitions apply: sonable estimate of the costs, and the Abuse means any act or failure to act way the estimate was calculated must which was performed, or which was be documented. failed to be performed, knowingly, (2) For the purpose of this paragraph, recklessly, or intentionally, and which litigation costs mean expenses for court caused, or may have caused, injury or costs, depositions, expert witness fees, death to an individual with develop- travel in connection with a case and mental disabilities, and includes such similar costs and costs resulting from acts as: Verbal, nonverbal, mental and litigation in which the agency has rep- emotional harassment; rape or sexual resented an individual with develop- assault; striking; the use of excessive mental disabilities (e.g. monitoring force when placing such an individual court orders, consent decrees), but not in bodily restraints; the use of bodily for salaries of employees of the Protec- or chemical restraints which is not in tion and Advocacy agency. All funds compliance with Federal and State
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laws and regulations or any other prac- mental disabilities only in individual tice which is likely to cause immediate legal matters, or officials responsible physical or psychological harm or re- for the provision of treatment or ha- sult in long term harm if such prac- bilitation services to an individual tices continue. with developmental disabilities or Complaint includes, but is not limited their designees. to any report or communication, Neglect means a negligent act or whether formal or informal, written or omission by an individual responsible oral, received by the system including for providing treatment or habilitation media accounts, newspaper articles, services which caused or may have telephone calls (including anonymous caused injury or death to an individual calls), from any source alleging abuse with developmental disabilities or or neglect of an individual with a de- which placed an individual with devel- velopmental disability. opmental disabilities at risk of injury Designating Official means the Gov- or death, and includes acts or omis- ernor or other State official, who is sions such as failure to: establish or empowered by the Governor or State carry out an appropriate individual legislature to designate the State offi- program plan or treatment plan (in- cial or public or private agency to be cluding a discharge plan); provide ade- accountable for the proper use of funds quate nutrition, clothing, or health by and conduct of the State Protection care to an individual with develop- and Advocacy agency. mental disabilities; provide a safe envi- Facility includes any setting that pro- ronment which also includes failure to vides care, treatment, services and ha- maintain adequate numbers of trained bilitation, even if only ‘‘as needed’’ or staff. under a contractual arrangement. Fa- Probable cause means a reasonable cilities include, but are not limited to ground for belief that an individual the following: with developmental disabilities has Community living arrangements been, or may be, subject to abuse or ne- (e.g., group homes, board and care glect. The individual making such de- homes, individual residences and apart- termination may base the decision on ments), day programs, juvenile deten- reasonable inferences drawn from his tion centers, hospitals, nursing homes, or her experience or training regarding homeless shelters, jails and prisons. similar incidents, conditions or prob- Full Investigation means access to fa- lems that are usually associated with cilities, clients and records authorized abuse or neglect. under these regulations, that is nec- essary for a protection and advocacy [61 FR 51155, Sept. 30, 1996] (P&A) system to make a determination about whether alleged or suspected in- § 1386.20 Designated State Protection and Advocacy agency. stances of abuse and neglect are taking place or have taken place. Full inves- (a) The designating official must des- tigations may be conducted independ- ignate the State official or public or ently or in cooperation with other private agency to be accountable for agencies authorized to conduct similar proper use of funds and conduct of the investigations. Protection and Advocacy agency. Legal Guardian, conservator and legal (b) An agency of the State or private representative all mean an individual agency providing direct services, in- appointed and regularly reviewed by a cluding guardianship services may not State court or agency empowered be designated as a Protection and Ad- under State law to appoint and review vocacy agency. such officers and having authority to (c) In the event that an entity out- make all decisions on behalf of individ- side of the State government is des- uals with developmental disabilities. It ignated to carry out the program, the does not include persons acting only as designating official or entity must as- a representative payee, person acting sign a responsible State official to re- only to handle financial payments, at- ceive, on behalf of the State, notices of torneys or other persons acting on be- disallowances and compliance actions half of an individual with develop- as the State is accountable for the
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proper and appropriate expenditure of Protection and Advocacy System under Federal funds. the Developmental Disabilities pro- (d) (1) Prior to any redesignation of gram. This agency will be eligible to the agency which administers and op- administer other Federal advocacy pro- erates the State Protection and Advo- grams; cacy (P&A) System, the designating of- (viii) A description of the system ficial must give written notice of the which the new agency would admin- intention to make the redesignation to ister and operate, including a descrip- the agency currently administering tion of all other Federal advocacy pro- and operating the State Protection and grams the agency would operate; Advocacy System by registered or cer- (ix) The timetable for assumption of tified mail. The notice must indicate operations by the new agency and the that the proposed redesignation is estimated costs of any transfer and being made for good cause. The desig- start-up operations; and nating official must also publish a pub- (x) A statement of assurance that the lic notice of the proposed action. The proposed new designated State P&A agency and the public shall have a rea- System will continue to serve existing sonable period of time, but not less clients and cases of the current P&A than 45 days to respond to the notice. system or refer them to other sources (2) The public notice must include: of legal advocacy as appropriate, with- (i) The Federal requirements for the out disruption. Protection and Advocacy system for (3) The public notice as required by individuals with developmental disabil- ities (section 142 of the Act); and, paragraph (d)(1) of this section, must where applicable, the requirements of be in a format accessible to individuals other Federal advocacy programs ad- with developmental disabilities or ministered by the State Protection and their representatives, e.g., tape, disk- Advocacy System. ette. The designating official must pro- (ii) The goals and function of the vide for publication of the notice of the State’s Protection and Advocacy Sys- proposed redesignation using the State tem including the current Statement register, State-wide newspapers, public of Objectives and Priorities; service announcements on radio and (iii) The name and address of the television, or any other legally equiva- agency currently designated to admin- lent process. Copies of the notice must ister and operate the Protection and be made generally available to individ- Advocacy system; and an indication of uals with developmental disabilities whether the agency also operates other and mental illness who live in residen- Federal advocacy programs; tial facilities through posting or some (iv) A description of the current Pro- other means. tection and Advocacy agency and the (4) After the expiration of the public system it administers and operates in- comment period required in paragraph cluding, as applicable, descriptions of (d)(1) of this section, the designating other Federal advocacy programs it op- official must conduct a public hearing erates; on the redesignation proposal. After (v) A clear and detailed explanation consideration of all public and agency of the good cause for the proposed re- comments, the designating official designation; must give notice of the final decision (vi) A statement suggesting that in- to the currently designated agency and terested persons may wish to write the the public through the same means current State Protection and Advocacy used under paragraph (d)(3) of this sec- agency at the address provided in para- tion. This notice must include a clear graph (d)(2)(iii) of this section to ob- and detailed explanation of the good tain a copy of its response to the notice cause finding. If the notice to the cur- required by paragraph (d)(1)of this sec- rently designated agency states that tion. Copies shall be provided in acces- the redesignation will take place, it sible formats to individuals with dis- also must inform the agency of its abilities upon request; right to appeal this decision to the As- (vii) The name of the new agency pro- sistant Secretary, Administration for posed to administer and operate the Children and Families and provide a
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summary of the public comments re- utilized under paragraph (d)(3) of this ceived in regard to the notice of intent section. to redesignate and the results of the (5) As part of their submission under public hearing and its responses to paragraph (e)(1) or (e)(3) of this section, those comments. The redesignation either party may request, and the As- shall not be effective until 10 working sistant Secretary may grant, an oppor- days after notifying the current Pro- tunity for an informal meeting with tection and Advocacy agency or, if the the Assistant Secretary at which rep- agency appeals, until the Assistant resentatives of both parties will Secretary has considered the appeal. present their views on the issues in the (e) (1) Following notification pursu- appeal. The meeting will be held within ant to paragraph (d)(4) of this section, 20 working days of the submission of the Protection and Advocacy agency written comments by the designating which is the subject of such action, official under paragraph (e)(2) of this may appeal the redesignation to the section. The Assistant Secretary will Assistant Secretary. To do so, the Pro- tection and Advocacy agency must sub- promptly notify the parties of the date mit an appeal in writing to the Assist- and place of the meeting. ant Secretary within 20 days of receiv- (6) Within 30 days of the informal ing official notification under para- meeting under paragraph (e)(5) of this graph (d)(4) of this section, with a sepa- section, or, if there is no informal rate copy sent by registered or cer- meeting under paragraph (e)(5) of this tified mail to the designating official section, within 30 days of the submis- who made the decision concerning re- sion under paragraph (e)(3) of this sec- designation. tion, the Assistant Secretary will issue (2) In the event that the agency sub- to the parties a final written decision ject to redesignation does exercise its on whether the redesignation was for right to appeal under paragraph (e)(1) good cause as defined in paragraph of this section, the designating official (d)(1) of this section. The Assistant must give public notice of the Assist- Secretary will consult with Federal ad- ant Secretary’s final decision regard- vocacy programs that will be directly ing the appeal through the same means affected by the proposed redesignation utilized under paragraph (d)(3) of this in making a final decision on the ap- section within 10 working days of re- peal. ceipt of the Assistant Secretary’s final (f) (1) Within 30 days after the redes- decision under paragraph (e)(6) of this ignation becomes effective under para- section. graph (d)(4) of this section, the desig- (3) The designating official within 10 nating official must submit an assur- working days from the receipt of a ance to the Assistant Secretary that copy of the appeal must provide writ- the newly designated Protection and ten comments to the Assistant Sec- Advocacy agency meets the require- retary (with a copy sent by registered ments of the statute and the regula- or certified mail to the Protection and tions. Advocacy agency appealing under para- graph (e)(1) of this section), or with- (2) In the event that the Protection draw the redesignation. The comments and Advocacy agency subject to redes- must include a summary of the public ignation does not exercise its rights to comments received in regard to the no- appeal within the period provided tice of intent to redesignate and the re- under paragraph (e)(1) of this section, sults of the public hearing and its re- the designating official must provide sponses to those comments. to the Assistant Secretary documenta- (4) In the event that the designating tion that the agency was redesignated official withdraws the redesignation for good cause. Such documentation while under appeal pursuant to para- must clearly demonstrate that the Pro- graph (e)(1) of this section, the desig- tection and Advocacy agency subject nating official must notify the Assist- to redesignation was not redesignated ant Secretary, and the current agency, for any actions or activities which and must give public notice of his or were carried out under section 142 of her decision through the same means the Act, these regulations or any other
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Federal advocacy program’s legislation ities of the system and requirements of or regulations. the Act, including the investigation of [49 FR 11779, Mar. 27, 1984, as amended at 52 allegations of abuse, neglect and rep- FR 44846, Nov. 20, 1987; 61 FR 51156, Sept. 30, resentations of individuals with devel- 1996] opmental disabilities regarding rights violations. § 1386.21 Requirements and authority (f) A Protection and Advocacy Sys- of the Protection and Advocacy Sys- tem may exercise its authority under tem. State law where the authority exceeds (a) In order for a State to receive the authority required by the Develop- Federal financial participation for Pro- mental Disabilities Assistance and Bill tection and Advocacy activities under of Rights Act, as amended. However, this subpart, as well as the State De- State law must not diminish the re- velopmental Disabilities Council ac- quired authority of the Protection and tivities (subpart C of this part), the Advocacy System. Protection and Advocacy System must (g) Each P&A system that is a public meet the requirements of section 142 of system without a multimember gov- the Act (42 U.S.C. 6042) and that system erning or advisory board must estab- must be operational. lish an advisory council in order to (b) Allotments must be used to sup- provide a voice for individuals with de- plement and not to supplant the level velopmental disabilities. The Advisory of non-federal funds available in the Council shall advise the P&A on pro- State for activities under the Act, gram policies and priorities and shall which shall include activities on behalf be comprised of a majority of individ- of individuals with developmental dis- uals with developmental disabilities abilities to remedy abuse, neglect and who are eligible for services, or have violations of rights as well and infor- received or are receiving services or mation and referral activities. parents or family members, (including (c) A Protection and Advocacy Sys- those representing individuals with de- tem shall not implement a policy or velopmental disabilities who live in in- practice restricting the remedies which stitutions and home and community may be sought on the behalf of individ- based settings), guardians, advocates, uals with developmental disabilities or or authorized representatives of such compromising the authority of the individuals. Protection and Advocacy System (h) Prior to any Federal review of the (P&A) to pursue such remedies through State program, a 30 day notice and an litigation, legal action or other forms opportunity for public comment must of advocacy. However, the above re- be provided. Reasonable effort shall be quirement does not prevent the P&A made by the appropriate Regional Of- from developing case or client accept- fice to seek comments through notifi- ance criteria as part of the annual pri- cation to major disability advocacy orities identified by the P&A system as groups, the State Bar, other disability described in § 1386.23(c) of this part. Cli- law resources, the State Develop- ents must be informed at the time they mental Disabilities Council and the apply for services of such criteria. University Affiliated Program, for ex- (d) A P&A system shall be free from ample, through newsletters and publi- hiring freezes, reductions in force, pro- cations of those organizations. The hibitions on staff travel, or other poli- findings of public comments may be cies, imposed by the State, to the ex- consolidated if sufficiently similar tent that such policies would impact issues are raised and they shall be in- system program staff or functions cluded in the report of the onsite visit. funded with Federal funds and would (i) Before the P&A system releases prevent the system from carrying out information to individuals not other- its mandates under the Act. wise authorized to receive it, the P&A (e) A Protection and Advocacy Sys- must obtain written consent from the tem shall have sufficient staff, quali- client requesting assistance, if com- fied by training and experience, to petent, or his or her guardian. carry out the responsibilities of the system in accordance with the prior- [61 FR 51157, Sept. 30, 1996]
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§ 1386.22 Access to records, facilities photographs or video or audio tape and individuals with developmental records) shall include, but shall not be disabilities. limited to: (a) Access to records—A protection (1) Records prepared or received in and advocacy (P&A) system shall have the course of providing intake, assess- access to the records of any of the fol- ment, evaluation, education, training lowing individuals with developmental and other supportive services, includ- disabilities: ing medical records, financial records, (1) An individual who is a client of and monitoring and other reports pre- the system, including any person who pared or received by a member of the has requested assistance from the sys- staff of a facility that is providing care tem, if authorized by that individual or or treatment; their legal guardian, conservator or (2) Reports prepared by an agency other legal representative. charged with investigating incidents of (2) An individual, including an indi- abuse or neglect, injury or death occur- vidual who has died or whose where- ring at a facility or while the indi- abouts is unknown, to whom all of the vidual with a developmental disability following conditions apply: is under the care of a member of the (i) The individual, due to his or her staff of a facility, or by or for such fa- mental or physical condition is unable cility, that describe any or all of the to authorize the system to have access; following: (ii) The individual does not have a (i) Abuse, neglect, injury, death; legal guardian, conservator or other (ii) The steps taken to investigate legal representative, or the individual’s the incidents; guardian is the State (or one of its po- (iii) Reports and records, including litical subdivisions); and personnel records, prepared or main- (iii) With respect to whom a com- tained by the facility in connection plaint has been received by the system with such reports of incidents; or, or the system has probable cause (iv) Supporting information that was (which can be the result of monitoring relied upon in creating a report, includ- or other activities including media re- ing all information and records which ports and newspaper articles) to believe describe persons who were interviewed, that such individual has been subject physical and documentary evidence to abuse or neglect. that was reviewed, and the related in- (3) An individual who has a legal vestigative findings; and guardian, conservator, or other legal (3) Discharge planning records. representative, with respect to whom a (c) Information in the possession of a complaint has been received by the sys- facility which must be available to tem or with respect to whom the sys- P&A systems in investigating in- tem has determined that there is prob- stances of abuse and neglect under sec- able cause to believe that the health or tion 142(a)(2)(B) (whether written or in safety of the individual is in serious another medium, draft or final, includ- and immediate jeopardy, whenever all ing hand written notes, electronic files, the following conditions exist: photographs or video or audio tape (i) The system has made a good faith records) shall include, but not be lim- effort to contact the representative ited to: upon receipt of the representative’s (1) Information in reports prepared name and address; by individuals and entities performing (ii) The system has offered assistance certification or licensure reviews, or by to the representative to resolve the sit- professional accreditation organiza- uation; and tions, as well as related assessments (iii) The representative has failed or prepared for a facility by its staff, con- refused to act on behalf of the indi- tractors or related entities, except that vidual. nothing in this section is intended to (b) Individual records to which P&A preempt State law protection records systems must have access under sec- produced by medical care evaluation or tion 142(A)(2)(I) (whether written or in peer review committees. another medium, draft or final, includ- (2) Information in professional, per- ing handwritten notes, electronic files, formance, building or other safety
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standards, demographic and statistical shall include normal working hours information relating to a facility. and visiting hours, for the purpose of: (d) A system shall be permitted to in- (1) Providing information and train- spect and copy information and ing on, and referral to, programs ad- records, subject to a reasonable charge dressing the needs of individuals with to offset duplicating costs. developmental disabilities, and the (e) The client’s record is the property protection and advocacy services avail- of the Protection and Advocacy Sys- able from the system, including the tem which must protect it from loss, name, address, and telephone number damage, tampering, or use by unau- of the system and other information thorized individuals. The Protection and training about individual rights; and Advocacy System must: and (1) Keep confidential all information contained in a client’s records, which (2) Monitoring compliance with re- includes, but is not limited to, infor- spect to the rights and safety of service mation contained in an automated recipients. data bank. This regulation does not (h) Unaccompanied access to resi- limit access by parents or legal guard- dents of a facility shall include the op- ians of minors unless prohibited by portunity to meet and communicate State or Federal law, court order or privately with such individuals regu- the rules of attorney-client privilege; larly, both formally and informally, by (2) Have written policies governing telephone, mail and in person. access to, storage of, duplication of, (i) If a system is denied access to fa- and release of information from the cli- cilities and its programs, individuals ent’s record; and with developmental disabilities, or (3) Be authorized to keep confidential records covered by the Act it shall be the names and identity of individuals provided promptly with a written who report incidents of abuse and ne- statement of reasons, including, in the glect and individuls who furnish infor- case of a denial for alleged lack of au- mation that forms the basis for a de- thorization, the name and address of termination that probable cause exists. the legal guardian, conservator, or (f) Access to Facilities and Individ- other legal representative of an indi- uals with Developmental Disabilities— vidual with developmental disabilities. A system shall have reasonable unac- companied access to public and private [61 FR 51158, Sept. 30, 1996] facilities which provide services, sup- ports, and other assistance for individ- § 1386.23 Periodic reports: Protection uals with developmental disabilities in and Advocacy System. the State when necessary to conduct a (a) By January 1 of each year the full investigation of an incident of Protection and Advocacy System shall abuse or neglect under section submit an Annual Program Perform- 142(a)(2)(B) of the Act. This authority ance Report as required in section shall include the opportunity: to inter- 107(b) of the Act, in a format des- view any facility service recipient, em- ignated by the Secretary. ployee, or other person, including the person thought to be the victim of such (b) Financial status reports must be abuse, who might be reasonably be- submitted by the Protection and Advo- lieved by the system to have knowl- cacy Agency according to a frequency edge of the incident under investiga- interval specified by the Administra- tion; and to inspect, view and photo- tion for Children and Families. In no graph all areas of the facility’s prem- case will such reports be required more ises that might be reasonably believed frequently than quarterly. by the system to have been connected (c) By January 1 of each year, the with the incident under investigation. Protection and Advocacy System shall (g) Under section 142(a)(2)(H) of the submit an Annual Statement of Objec- Act, the system and all of its author- tives and Priorities, (SOP) for the com- ized agents shall have unaccompanied ing fiscal year as required under sec- access to all residents of a facility at tion 142(a)(2)(C) of the Act. reasonable times, which at a minimum
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(1) The SOP is a description and ex- Program in the final Statement sub- planation of the priorities and selec- mitted to the Department; and tion criteria for the system’s indi- (5) Address how the Protection and vidual advocacy caseload; systemic ad- Advocacy System; State Develop- vocacy work and training activities, mental Disabilities Council; and the and the outcomes which it strives to University Affiliated Program will col- accomplish. laborate with each other and with (2) Where applicable, the SOP must other public and private entities. include a description of how the Pro- tection and Advocacy System operates (The requirements under paragraph (b) are and how it coordinates the Protection approved under control number 0348–0039 by and Advocacy program for individuals the Office of Management and Budget (OMB). with developmental disabilities with Information collection requirements con- other Protection and Advocacy (P&A) tained in paragraph (c) are approved under programs administered by the State OMB control number 0970–0132 pursuant to Protection and Advocacy System. This sections 142(a)(2) (C) and (D) and section 107(b) of the Act.) description must address the System’s intake process, internal and external [61 FR 51159, Sept. 30, 1996] referrals of eligible clients, duplication and overlap of services and eligibility, § 1386.24 Non-allowable costs for the streamlining of advocacy services, col- Protection and Advocacy System. laboration and sharing of information (a) Federal financial participation is on service needs and development of not allowable for: Statements of Objectives and Prior- (1) Costs incurred for activities on be- ities for the various advocacy pro- half of individuals with developmental grams. disabilities to solve problems not di- (3) Priorities as established through rectly related to their disabilities and the SOP serve as the basis for P&As to which are faced by the general popu- determine which cases are selected in a lace. Such activities include but are given fiscal year. P&As have the au- not limited to: Preparation of wills, di- thority to turn down a request for as- vorce decrees, and real estate pro- sistance when it is outside the scope of ceedings. Allowable costs in such cases the SOP but they must inform individ- would include the Protection and Ad- uals that this is the basis for turning vocacy System providing disability re- them down. lated technical assistance information (d) Each fiscal year, the Protection and referral to appropriate programs and Advocacy Agency shall: and services; and (1) Obtain formal public input on its (2) Costs not allowed under other ap- Statement of Objectives and Priorities; plicable statutes. Departmental regula- (2) At a minimum, provide for a tions and issuances of the Office of broad distribution of the proposed Management and Budget. Statement of Objectives and Priorities (b) Attorneys fees are considered pro- for the next fiscal year in a manner ac- gram income pursuant to Part 74–Ad- cessible to individuals with develop- ministration of Grants and Part 92– mental disabilities and their represent- Uniform Administrative Requirements atives, allowing at least 45 days from for Grants and Cooperative Agreements the date of distribution for comment; to State and Local Governments and (3) Provide to the State Develop- must be added to the funds committed mental Disabilities Council and the to the program and used to further the University Affiliated Program a copy objectives of the program. This re- of the proposed Statement of Objec- quirement shall apply to all attorneys tives and Priorities for comments con- currently with the public notice; fees, including those earned by con- tractors and those received after the (4) Incorporate or address any com- project period in which they were ments received through the public earned. input and any input received from the State Developmental Disabilities [52 FR 44847, Nov. 20, 1987; 61 FR 51159, Sept. Council and the University Affiliated 30, 1996]
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§ 1386.25 Allowable litigation costs. mental Disabilities Council, Protection Allotments may be used to pay the and Advocacy System agency, and Uni- otherwise allowable costs incurred by a versity Affiliated Program(s) collabo- Protection and Advocacy System in rate to remove barriers or address crit- bringing lawsuits in its own right to ical issues within the State and bring redress incidents of abuse or neglect, about broad systems changes to benefit discrimination and other rights viola- individuals with developmental disabil- tions impacting on individuals with de- ities and, as appropriate, individuals velopmental disabilities to obtain ac- with other disabilities. cess to records and when it appears on (d) The State plan must be reviewed behalf of named plaintiffs or a class of at least once every three years. plaintiff for such purposes. (e) (1) The State Plan may provide for funding projects to demonstrate [61 FR 51159, Sept. 30, 1996] new approaches to direct services which enhance the independence, pro- Subpart C—Federal Assistance to ductivity, and integration and inclu- State Developmental Disabil- sion into the community of individuals ities Councils with developmental disabilities. Direct service demonstrations must be short- § 1386.30 State plan requirements. term and include a strategy to locate (a) In order to receive Federal finan- on-going funding from other sources. cial assistance under this subpart, each For each demonstration funded, the State Developmental Disabilities State Plan must include an estimated Council must prepare and submit to period of the project’s duration and a the Secretary, and have in effect, a brief description of how the services State Plan which meets the require- will be continued without Federal de- ments of sections 122 and 124 of the Act velopmental disabilities program (42 U.S.C. 6022 and 6024) and these regu- funds. Council funds may not be used lations. Development of the State Plan to fund on-going services which should and applicable annual amendments are be paid for by the State or other responsibilities of the State Develop- sources. mental Disabilities Council. The Coun- (2) The State plan may provide for cil will provide opportunities for public funding of other projects or activities, input during the planning and develop- including but not limited to, studies, ment of the State Plan and will consult evaluation, outreach, advocacy, self- with the Designated State Agency to advocacy, training, community sup- determine that the plan is not in con- ports, public education, and preven- flict with applicable State laws and to tion. Where extended periods of time obtain appropriate State Plan assur- are needed to achieve desired results, ances. (b) Failure to comply with State plan these projects and activities need not requirements may result in loss of Fed- be time-limited. eral funds as described in section 127 of (f) The State Plan must contain as- the Act (42 U.S.C. 6027). surances that: (c) The State plan may be submitted (1) The State will comply with all ap- in any format the State selects as long plicable Federal statutes and regula- as the items contained in the Act are tions in effect during the time that the addressed. The plan must: State is receiving formula grant fund- (1) Identify the program unit(s) with- ing; in the Designated State Agency respon- (2) The human rights of individuals sible for helping the Council to obtain with developmental disabilities will be assurances and fiscal and other support protected consistent with section 110 of services. the Act (42 U.S.C. 6009). (2) Identify the priority areas se- (3) Buildings used in connection with lected by the Council and by the State activities assisted under the Plan must in which 65% of Federal allotment will meet all applicable provisions of Fed- be expended. eral and State laws pertaining to ac- (3) Where applicable, describe activi- cessibility, fire, health and safety ties in which the State’s Develop- standards.
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(4) The State Developmental Disabil- cal year for which it is applicable. Un- ities Council shall follow the require- less State law provides differently, the ments of section 124(c) (8), (9) and (10) State plan and amendments or related of the Act regarding budgeting, staff documents must be approved by the hiring and supervision and staff assign- Governor or the Governor’s designee as ment. Budget expenditures must be may be required by any applicable Fed- consistent with applicable State laws eral issuances. and policies regarding grants and con- (c) Failure to submit an approvable tracts and proper accounting and book- State plan or amendment prior to the keeping practices and procedures. In relation to staff hiring, the clause Federal fiscal years for which it is ap- ‘‘consistent with State law’’ in section plicable may result in the loss of Fed- 124(c)(9) means that the hiring of State eral financial participation. Costs re- Developmental Disabilities Council sulting from obligations incurred dur- staff must be done in accordance with ing the period of the fiscal year for State personnel policies and procedures which an approved plan is not in effect except that a State shall not apply hir- are not eligible for Federal financial ing freezes, reductions in force, prohi- participation. bitions on staff travel, or other poli- (d) The Commissioner must approve cies, to the extent that such policies any State plan or plan amendment pro- would impact staff or functions funded vided it meets the requirements of the with Federal funds and would prevent Act and these regulations. the Council from carrying out its func- (e) Amendments to the State plan are tions under the Act. required when substantive changes are contemplated in plan content. (Information collection requirements con- tained in paragraph (c) under control number [49 FR 11779, Mar. 27, 1984, as amended at 61 0980–0162 and paragraph (e) under control FR 51160, Sept. 30, 1996] number 0980–0139 are approved by the Office of Management and Budget) § 1386.32 Periodic reports: Federal as- [49 FR 11779, Mar. 27, 1984, as amended at 52 sistance to State Developmental FR 44847, Nov. 20, 1987; 54 FR 47985, Nov. 20, Disabilities Councils. 1989; 61 FR 51159, Sept. 30, 1996] (a) The Governor or appropriate § 1386.31 State Plan submittal and ap- State financial officer must submit fi- proval. nancial status reports on the programs (a) The Council shall issue a public funded under this subpart according to notice about the availability of the a frequency interval which will be proposed State Plan or State Plan specified by the Administration for amendment(s) for comment. The No- Children and Families. In no case will tice shall be published in formats ac- such reports be required more fre- cessible to individuals with develop- quently than quarterly. mental disabilities and the general (b) Pursuant to section 107(a) of the public (e.g., tape, diskette, public fo- Act (U.S.C. 6006a), the State Develop- rums, newspapers) and shall provide a mental Disabilities Council shall sub- 45 day period for public review and mit an Annual Program Performance comment. The Council shall take into Report in a form that facilitates Coun- account comments submitted within cil reporting of results of activities re- that period and respond in the State quired under sections 122 and 124 of the Plan to significant comments and sug- Act. The report shall be submitted to gestions. A summary of the Council’s the appropriate Regional ACF office, response to State Plan comments shall by January 1 of each year. be submitted with the State Plan and made available for public review. This [61 FR 51160, Sept. 30, 1996] document shall be made available in accessible formats upon request. § 1386.33 Protection of employee’s in- (b) The State plan must be submitted terests. to the appropriate Regional Office of (a) Based on section 122(c)(5)(K) of the Department 45 days prior to the fis- the Act (42 U.S.C. 6022(c)(5)(K), the
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State plan must assure fair and equi- the Assistant Secretary for a review of table arrangements to protect the in- the designation of the designated State terest of all institutional employees af- agency if the Council’s independence as fected by actions under the plan to pro- an advocate is not assured because of vide community living activities. Spe- the actions or inactions of the des- cific arrangements for the protection ignated State agency. of affected employees must be devel- (d) The following steps apply to the oped through negotiations between the appeal of the Governor’s (or legisla- appropriate State authorities and em- ture’s) designation of the Designated ployees or their representatives. Fair State Agency. and equitable arrangements must in- (1) Prior to an appeal to the Assist- clude procedures that provide for the ant Secretary, Administration for Chil- impartial resolution of disputes be- dren and Families, the State Develop- tween the State and an employee con- mental Disabilities Council, must give cerning the interpretation, application, a 30 day written notice, by certified and enforcement of protection arrange- mail, to the Governor (or legislature) ments. The State must inform employ- of the majority of non-State members’ ees of the State’s decision to provide intention to appeal the designation of for community living activities. (b) To the maximum extent prac- the Designated State Agency. ticable, fair and equitable arrange- (2) The appeal must clearly identify ments must include provisions for: the grounds for the claim that the (1) The preservation of rights and Council’s independence as an advocate benefits; is not assured because of the actions or (2) Guaranteeing employment to em- inactions of the designated State agen- ployees affected by action under the cy. plan to provide alternative community (3) Upon receipt of the appeal from living arrangements; and the State Developmental Disabilities (3) Employee training and retraining Council, the Assistant Secretary will programs. notify the State Developmental Dis- abilities Council and the Governor (or (Approved by the Office of Management and Budget under control number 0980–0162) legislature), by certified mail, that the appeal has been received and will be [49 FR 11779, Mar. 27, 1984, as amended at 52 acted upon within 60 days. The Gov- FR 44847, Nov. 20, 1987; 54 FR 47985, Nov. 20, 1989; 61 FR 51160, Sept. 30, 1996] ernor (or legislature) shall within 10 working days from the receipt of the § 1386.34 Designated State Agency. Assistant Secretary’s notification pro- (a) The Designated State Agency vide written comments to the Assist- shall provide the required assurances ant Secretary (with a copy sent by reg- and other support services as requested istered or certified mail to the Council) by and negotiated with the Council. on the claims in the Council’s appeal. These include: Either party may request, and the As- (1) Provision of financial reporting sistant Secretary may grant, an oppor- and other services as provided under tunity for an informal meeting with section 124(d)(3)(C) of the Act; and the Assistant Secretary at which rep- (2) Information and direction, as ap- resentatives of both parties will propriate, on procedures on the hiring, present their views on the issues in the supervision and assignment of staff in appeal. The meeting will be held within accordance with State law. 20 working days of the submission of (b) If the State Developmental Dis- written comments by the Governor (or abilities Council requests a review by legislature). The Assistant Secretary the Governor (or legislature) of the will promptly notify the parties of the Designated State Agency, the Council date and place of the meeting. must provide documentation of the (4) The Assistant Secretary will re- reason for change and recommend a view the issue(s) and provide a final preferred Designated State Agency. written decision within 60 days fol- (c) After the review is completed, a lowing receipt of the State Develop- majority of the non-State agency mental Disabilities Council’s appeal. If members of the Council may appeal to the determination is made that the
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Designated State Agency should be re- the same purpose. However, sup- designated, the Governor (or legisla- planting does not occur if State or ture) must provide written assurance local funds are replaced with Federal of compliance within 45 days from re- funds for a particular activity or pur- ceipt of the decision. pose in the approved State Plan if the (5) During any time of this appeals State or local funds are then used for process the State Developmental Dis- other activities or purposes in the ap- abilities Council may withdraw such proved State Plan. request if resolution has been reached (d) For purposes of determining ag- with the Governor (or legislature) on gregate minimum State share of ex- the designation of the Designated penditures, there are three categories State Agency. The Governor (or legis- of expenditures: lature) must notify the Assistant Sec- (1) Expenditures for projects or ac- retary in writing of such an occur- tivities carried out directly by the rence. Council and Council staff, as described (e) The designated State agency may in section 125A(a)(2) of the Act, require authorize the Council use or contract no non-Federal aggregate participa- with State agencies other than the des- tion. ignated State agency to perform func- (2) Expenditures for projects with ac- tions of the designated State agency. tivities or products targeted to urban or rural poverty areas but not carried [61 FR 51160, Sept. 30, 1996] out directly by the Council and Council § 1386.35 Allowable and non-allowable staff, as described in section 125A(a)(2) costs for Federal Assistance to State of the Act, shall have non-Federal par- Developmental Disabilities Coun- ticipation of at least 10% in the aggre- cils. gate. (a) Under this subpart, Federal finan- (3) All other activities not directly cial participation is available in costs carried out by the Council and Council resulting from obligations incurred staff, shall have non-Federal participa- under the approved State plan for the tion of at least 25% in the aggregate. necessary expenses of the approved (e) The Council may vary the non- State plan for the necessary expenses Federal participation required on a of the State Council, the administra- project by project, activity by activity tion and operation of the State plan, basis (both poverty and non-poverty and training of personnel. activities), including requiring no non- (b) Expenditures which are not allow- Federal participation from particular able for Federal financial participation projects or activities as the Council are: deems appropriate so long as the re- (1) Costs incurred by institutions or quirement for aggregate non-Federal other residential or non-residential participation is met. programs which do not comply with [49 FR 11779, Mar. 27, 1984, as amended at 52 the Congressional findings with respect FR 44847, Nov. 20, 1987; 54 FR 47985, Nov. 20, to the rights of individuals with devel- 1989; 61 FR 51161, Sept. 30, 1996] opmental disabilities in section 110 of the Act (42 U.S.C. 6009). § 1386.36 Final disapproval of the (2) Costs incurred for activities not State plan or plan amendments. provided for in the approved State The Department will disapprove any plan; and State plan or plan amendment only (3) Costs not allowed under other ap- after the following procedures have plicable statutes. Departmental regula- been complied with: tions or issuances of the Office of Man- (a) The State plan has been sub- agement and Budget. mitted to the appropriate HHS Re- (c) Expenditure of funds which sup- gional Office, and the Regional Office plant State and local funds will be dis- and State have been unable to resolve allowed. Supplanting occurs when their differences. State or local funds previously used to (b) The Regional Office has prepared fund activities in the developmental a detailed written analysis of its rea- disabilities State Plan are replaced by sons for recommending disapproval and Federal funds which are then used for has transmitted its analyses and all
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other relevant material to the Com- ant Secretary if the Assistant Sec- missioner, and has provided the State retary presides over the hearing. Council and State agency with copies Payment or Allotment means an of the material. amount provided under Part B or C of (c) The Commissioner, after review of the Developmental Disabilities Assist- the records and the recommendation of ance and Bill of Rights Act. This term the Regional Office, has determined includes Federal funds provided under whether the State plan, in whole or in the Act irrespective of whether the part, is not approvable. Notice of this State must match the Federal portion determination has been sent to the of the expenditure. This term shall in- State and contains appropriate ref- clude funds previously covered by the erences to the records, provisions of terms ‘‘Federal financial participa- the statute and regulations, and all rel- tion,’’ ‘‘the State’s total allotment,’’ evant interpretations of applicable ‘‘further payments,’’ ‘‘payments,’’ ‘‘al- laws and regulations. The notification lotment’’ and ‘‘Federal funds.’’ of the decision must inform the State of its right to appeal in accordance [61 FR 51161, Sept. 30, 1996] with 45 CFR part 1386, subpart D. § 1386.81 Scope of rules. (d) The Commissioner’s decision has been forwarded to the State Council (a) The rules of procedures in this and agency by certified mail with a re- subpart govern the practice for hear- turn receipt requested. ings afforded by the Department to (e) A State has filed its request for a States pursuant to sections 122, 127 and hearing with the Assistant Secretary 142 of the Act. (42 U.S.C. 6022, 6027 and within 21 days of the receipt of the de- 6042). cision. The request for a hearing must (b) Nothing in this part is intended to be sent by certified mail to the Assist- preclude or limit negotiations between ant Secretary. The date of mailing the the Department and the State, whether request is considered the date of filing before, during, or after the hearing to if it is supported by independent evi- resolve the issues which are, or other- dence of mailing, otherwise the date of wise would be, considered at the hear- receipt shall be considered the date of ing. Negotiations, and resolution of filing. issues are not part of the hearing, and are not governed by the rules in this [49 FR 11779, Mar. 27, 1984, as amended at 61 FR 51161, Sept. 30, 1996] subpart, except as otherwise provided in this subpart. Subpart D—Practice and Proce- [49 FR 11779, Mar. 27, 1984, as amended at 52 dure for Hearings Pertaining to FR 44847, Nov. 20, 1987] States’ Conformity and Com- § 1386.82 Records to be public. pliance With Developmental Disabilities State Plans, Re- All pleadings, correspondence, exhib- its, transcripts of testimony, excep- ports and Federal Require- tions, briefs, decisions, and other docu- ments ments filed in the docket in any pro- ceeding are subject to public inspec- GENERAL tion. § 1386.80 Definitions. § 1386.83 Use of gender and number. For purposes of this subpart: Assistant Secretary means the Assist- As used in this subpart, words im- ant Secretary for Children and Fami- porting the singular number may ex- lies (ACF). tend and be applied to several persons ADD means Administration on Devel- or things, and vice versa. Words im- opmental Disabilities, Administration porting either gender may be applied to for Children and Families. the other gender or to organizations. Presiding officer means anyone des- ignated by the Assistant Secretary to § 1386.84 Suspension of rules. conduct any hearing held under this Upon notice to all parties, the Assist- subpart. The term includes the Assist- ant Secretary may modify or waive
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any rule in this subpart, unless other- writing of additional issues which will wise expressly provided, upon deter- be considered at the hearing. That no- mination that no party will be unduly tice must be published in the FEDERAL prejudiced and justice will be served. REGISTER. If that notice is mailed to the State less than 20 days before the § 1386.85 Filing and service of papers. date of the hearing, the State or any (a) All papers in the proceedings other party, at its request, must be must be filed with the designated indi- granted a postponement of the hearing vidual in an original and two copies. to a date 20 days after the notice was Only the originals of exhibits and tran- mailed, or such later date as may be scripts of testimony need be filed. agreed to by the Assistant Secretary. (b) Copies of papers in the pro- (b) If any issue is resolved in whole or ceedings must be served on all parties in part, but new or modified issues are by personal delivery or by mail. Serv- presented, the hearing must proceed on ice on the party’s designated represent- the new or modified issues. ative is deemed service upon the party. (c)(1) If at any time, whether prior to, during, or after the hearing, the As- [49 FR 11779, Mar. 27, 1984, as amended at 61 FR 51161, Sept. 30, 1996] sistant Secretary finds that the State has come into compliance with Federal PRELIMINARY MATTERS—NOTICE AND requirements on any issue in whole or PARTIES in part, he or she must remove the issue from the proceedings in whole or § 1386.90 Notice of hearing or oppor- in part as may be appropriate. If all tunity for hearing. issues are removed the Assistant Sec- Proceedings are commenced by mail- retary must terminate the hearing. ing a notice of hearing or opportunity (2) Prior to the removal of an issue, for hearing from the Assistant Sec- in whole or in part, from a hearing in- retary to the State Developmental Dis- volving issues relating to the con- abilities Council and the Designated formity with Federal requirements State Agency, or to the State Protec- under Part B of the Act, of the State tion and Advocacy System or desig- plan or the activities of the State’s nating official. The notice must state Protection and Advocacy System, the the time and place for the hearing, and Assistant Secretary must provide all the issues which will be considered. parties other than the Department and The notice must be published in the the State (see § 1386.94(b)) with the FEDERAL REGISTER. statement of his or her intention to re- move an issue from the hearings and [49 FR 11779, Mar. 27, 1984, as amended at 61 FR 51161, Sept. 30, 1996] the reasons for that decision. A copy of the proposed State plan provision or § 1386.91 Time of hearing. document explaining changes in the ac- tivities of the State’s protection and The hearing must be scheduled not advocacy system on which the State less than 30 days nor more than 60 days and the Assistant Secretary have set- after the date notice of the hearing is tled must be sent to the parties. The mailed to the State. parties must have an opportunity to § 1386.92 Place. submit in writing within 15 days their views as to, or any information bearing The hearing must be held on a date upon, the merits of the proposed provi- and at a time and place determined by sion and the merits of the reasons for the Assistant Secretary with due re- removing the issue from the hearing. gard for convenience, and necessity of (d) In hearings involving questions of the parties or their representatives. noncompliance of a State’s operation The site of the hearing shall be acces- of its program under Part B of the Act sible to individuals with disabilities. with the State plan or with Federal re- [61 FR 51162, Sept. 30, 1996] quirements or compliance of the State’s Protection and Advocacy Sys- § 1386.93 Issues at hearing. tem with Federal requirements, the (a) Prior to a hearing, the Assistant same procedure set forth in paragraph Secretary may notify the State in (c)(2) of this section must be followed
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with respect to any report or evidence (iii) The issues on which the peti- resulting in a conclusion by the Assist- tioner intends to present argument. ant Secretary that a State has (2) The presiding officer may grant achieved compliance. the petition if he or she finds that the (e) The issues considered at the hear- petitioner has a legitimate interest in ing must be limited to those issues of the proceedings, that such participa- which the State is notified as provided tion will not unduly delay the outcome in § 1386.90 and paragraph (a) of this and may contribute materially to the section, and new or modified issues de- proper disposition of the issues. scribed in paragraph (b) of this section, (3) An amicus curiae may present a and may not include issues or parts of brief oral statement at the hearing at issues removed from the proceedings the point in the proceedings specified pursuant to paragraph (c) of this sec- by the presiding officer. It may submit tion. a written statement of position to the presiding officer prior to the beginning [49 FR 11779, Mar. 27, 1984, as amended at 61 FR 51162, Sept. 30, 1996] of a hearing and must serve a copy on each party. It also may submit a brief § 1386.94 Request to participate in or written statement at such time as hearing. the parties submit briefs and must serve a copy on each party. (a) The Department, the State, the State Developmental Disabilities [49 FR 11779, Mar. 27, 1984, as amended at 61 Council, the Designated State Agency, FR 51162, Sept. 30, 1996] and the State Protection and Advocacy System, as appropriate, are parties to HEARING PROCEDURES the hearing without making a specific request to participate. § 1386.100 Who presides. (b)(1) Other individuals or groups (a) The presiding officer at a hearing may be recognized as parties if the must be the Assistant Secretary or issues to be considered at the hearing someone designated by the Assistant have caused them injury and their in- Secretary. terests are relevant to the issues in the (b) The designation of a presiding of- hearing. ficer must be in writing. A copy of the (2) Any individual or group wishing designation must be served on all par- to participate as a party must file a pe- ties and amici curiae. tition with the designated individual within 15 days after notice of the hear- § 1386.101 Authority of presiding offi- ing has been published in the FEDERAL cer. REGISTER, and must serve a copy on (a) The presiding officer has the duty each party of record at that time in ac- to conduct a fair hearing, avoid delay, cordance with § 1386.85(b). The petition maintain order, and make a record of must concisely state: the proceedings. The presiding officer (i) Petitioner’s interest in the pro- has all powers necessary to accomplish ceeding; these ends, including, but not limited (ii) Who will appear for petitioner; to, the power to: (iii) The issues the petitioner wishes (1) Change the date, time, and place to address; and of the hearing, upon notice to the par- (iv) Whether the petitioner intends to ties. This includes the power to con- present witnesses. tinue the hearing in whole or in part; (c) (1) Any interested person or orga- (2) Hold conferences to settle or sim- nization wishing to participate as ami- plify the issues in a proceeding, or to cus curiae must file a petition with the consider other matters that may aid in designated individual before the com- the expeditious disposition of the pro- mencement of the hearing. The peti- ceedings; tion must concisely state: (3) Regulate participation of parties (i) The petitioner’s interest in the and amici curiae and require parties hearing; and amici curiae to state their posi- (ii) Who will represent the petitioner, tions with respect to the issues in the and proceeding;
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(4) Administer oaths and affirma- (c) Agree to stipulations of facts tions, which will be made a part of the (5) Rule on motions and other proce- record; dural items on matters pending before (d) Make opening statements at the him or her, including issuance of pro- hearing; tective orders or other relief to a party (e) Present relevant evidence on the against whom discovery is sought; issues at the hearing; (6) Regulate the course of the hearing (f) Present witnesses who then must and conduct of counsel therein; be available for cross-examination by (7) Examine witnesses; all other parties; (8) Receive, rule on, exclude, or limit (g) Present oral arguments at the evidence or discovery; hearing; (9) Fix for the time for filing mo- (h) Submit written briefs, proposed tions, petitions, briefs, or other items findings of fact, and proposed conclu- in matters pending before him or her, sions of law, after the hearing. (10) If the presiding officer is the As- sistant Secretary, make a final deci- § 1386.103 Discovery. sion; The Department and any party (11) If the presiding officer is a person named in the Notice issued pursuant to other than the Assistant Secretary, he § 1386.90 has the right to conduct dis- or she shall certify the entire record, covery (including depositions) against including recommended findings and opposing parties as provided by the proposed decision, to the Assistant Federal Rules of Civil Procedure. There Secretary; is no fixed rule on priority of dis- (12) Take any action authorized by covery. Upon written motion, the pre- the rules in the subpart or 5 U.S.C. 551– siding officer must promptly rule upon 559; and any objection to discovery action. The (b) The presiding officer does not presiding officer also has the power to have authority to compel the produc- grant a protective order or relief to tion of witnesses, papers, or other evi- any party against whom discovery is dence by subpoena. sought and to restrict or control dis- (c) If the presiding officer is a person covery so as to prevent undue delay in other than the Assistant Secretary, his the conduct of the hearing. Upon the or her authority is to render a rec- failure of any party to make discovery, ommended decision with respect to the presiding officer may issue any program requirements which are to be order and impose any sanction other considered at the hearing. In case of than contempt orders authorized by any noncompliance, he or she shall rec- Rule 37 of the Federal Rules of Civil ommend whether payments or allot- Procedure. ments should be withheld with respect to the entire State plan or the activi- § 1386.104 Evidentiary purpose. ties of the State’s Protection and Ad- The hearing is directed to receiving vocacy System, or whether the pay- factual evidence and expert opinion ments or allotments should be with- testimony related to the issues in the held only with respect to those parts of proceeding. Argument will not be re- the program affected by such non- ceived in evidence; rather, it must be compliance. presented in statements, memoranda, [49 FR 11779, Mar. 27, 1984, as amended at 61 or briefs, as directed by the presiding FR 51162, Sept. 30, 1996] officer. Brief opening statements, which shall be limited to a statement § 1386.102 Rights of parties. of the party’s position and what it in- All parties may: tends to prove, may be made at hear- (a) Appear by counsel, or other au- ings. thorized representative, in all hearing proceedings; § 1386.105 Evidence. (b) Participate in any prehearing (a) Testimony. Testimony by wit- conference held by the presiding offi- nesses at the hearing is given orally cer, under oath or affirmation. Witnesses
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must be available at the hearing for its, briefs, or memoranda of law filed cross-examination by all parties. with them is filed with the Department (b) Stipulations and exhibits. Two or Transcripts of testimony in hearings more parties may agree to stipulations may be obtained from the official re- of fact. Such stipulations, or any ex- porter by the parties and the public at hibit proposed by any party, must be rates not to exceed the maximum rates exchanged at the prehearing con- fixed by the contract between the De- ference or at a different time prior to partment and the reporter. Upon notice the hearing if the presiding officer re- to all parties, the presiding officer may quires it. authorize corrections to the transcript (c) Rules of evidence. Technical rules which involve matters of substance. of evidence do not apply to hearings Transcripts must be taken by steno- conducted pursuant to this subpart, type machine and not be voice record- but rules or principles designed to as- ing devices, unless otherwise agreed by sure production of the most credible all of the parties and the presiding offi- evidence available and to subject testi- cer. mony to test by cross-examination are applied where reasonably necessary by § 1386.109 Record for decision. the presiding officer. A witness may be The transcript of testimony, exhib- cross-examined on any matter material its, and all papers and requests filed in to the proceeding without regard to the the proceedings, except the correspond- scope of his or her direct examination. ence section of the docket, including The presiding officer may exclude irrel- rulings and any recommended or initial evant, immaterial, or unduly repeti- decision, constitute the exclusive tious evidence. All documents and record for decision. other evidence offered or taken for the record is open to examination by the POSTHEARING PROCEDURES, DECISIONS parties and opportunity must be given to refute facts and arguments advanced § 1386.110 Posthearing briefs. on either side of the issues. The presiding officer must fix the § 1386.106 Exclusion from hearing for time for filing posthearing briefs. This misconduct. time may not exceed 30 days after ter- Disrespectful, disorderly, or con- mination of the hearing and receipt of tumacious language or contemptuous the transcript. Briefs may contain pro- conduct, refusal to comply with direc- posed fundings of fact and conclusions tions, or continued use of dilatory tac- of law. If permitted, reply briefs may tics by any person at the hearing be- be filed no later than 15 days after fil- fore a presiding officer shall constitute ing of the posthearing briefs. grounds for immediate exclusion of § 1386.111 Decisions following hearing. such person from the hearing by the presiding officer. (a) If the Assistant Secretary is the presiding officer, he or she must issue a § 1386.107 Unsponsored written mate- decision within 60 days after the time rial. for submission of posthearing briefs Letters expressing views or urging has expired. action and other unsponsored written (b)(1) If the presiding officer is a per- material regarding matters in issue in son designated by the Assistant Sec- a hearing is placed in the correspond- retary, he or she must, within 30 days ence section of the docket of the pro- after the time for submission of ceeding. This material is not deemed posthearing briefs has expired, certify part of the evidence or record in the the entire record to the Assistant Sec- hearing. retary including recommended findings and proposed decision. The Assistant § 1386.108 Official transcript. Secretary must serve a copy of the rec- The Department will designate the ommended findings and proposed deci- official reporter for all hearings. The sion upon all parties and amici. official transcript of testimony taken, (2) Any party may, within 20 days, together with any stipulations, exhib- file exceptions to the recommended
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findings and proposed decision and sup- eral requirements, and the decision porting brief or statement with the As- provides that the payment or allot- sistant Secretary. ment will be authorized but limited to (3) The Assistant Secretary must re- parts of the State plan not affected by view the recommended decision and, such noncompliance, the decision must within 60 days of its issuance, issue his specify the effective date for the au- or her own decision. thorization of the payment or allot- (c) If the Assistant Secretary con- ment. cludes: (b) In the case of a hearing pursuant (1) In the case of a hearing pursuant to sections 127 or 142 of the Act, if the to sections 122, 127, or 142 of the Act, Assistant Secretary concludes that the that a State plan or the activities of State is not complying with the re- the State’s Protection and Advocacy quirements of the State plan or the ac- System does not comply with Federal tivities of the State’s Protection and requirements, he or she shall also Advocacy System do not comply with specify whether the State’s payment or Federal requirements, the decision allotment for the fiscal year will not be that further payments or allotments authorized for the State or whether, in will not be made to the State, or will the exercise of his or her discretion, be limited to the parts of the State the payment or allotment will be lim- plan or activities of the State’s Protec- ited to the parts of the State plan or tion and Advocacy System not af- the activities of the State’s Protection fected, must specify the effective date and Advocacy System not affected by for withholding payments of allot- the noncompliance. ments. (2) In the case of a hearing pursuant (c) The effective date may not be ear- to section 127 of the Act that the State lier than the date of the decision of the is not complying with the require- Assistant Secretary and may not be ments of the State plan, he or she must later than the first day of the next cal- also specify whether the State’s pay- endar quarter. ment or allotment will not be made (d) The provision of this section may available to the State or whether, in not be waived pursuant to § 1386.84. the exercise of his or her discretion, [49 FR 11779, Mar. 27, 1984, as amended 61 FR the payment or allotment will be lim- 51162, Sept. 30, 1996] ited to the parts of the State plan not affected by such noncompliance. The Assistant Secretary may ask the par- PART 1387—PROJECTS OF ties for recommendations or briefs or NATIONAL SIGNIFICANCE may hold conferences of the parties on these questions. AUTHORITY: 42 U.S.C. 6000 et. seq. (d) The decision of the Assistant Sec- retary under this section is the final § 1387.1 General requirements. decision of the Secretary and con- (a) All projects funded under this stitutes ‘‘final agency action’’ within part must be of national significance the meaning of 5 U.S.C. 704 and the and serve or relate to individuals with ‘‘Secretary’s action’’ within the mean- developmental disabilities to comply ing of Section 129 of the Act (42 U.S.C. with section 162 of the Act. 6029). The Assistant Secretary’s deci- (b) Based on section 162(d), proposed sion must be promptly served on all priorities for grants and contracts will parties and amici. be published in the FEDERAL REGISTER [49 FR 11779, Mar. 27, 1984, as amended at 52 and a 60 day period for public com- FR 44847, Nov. 20, 1987; 61 FR 51162, Sept. 30, ments will be allowed. 1996] (c) The requirements concerning for- mat and content of the application, § 1386.112 Effective date of decision by submittal procedures, eligible appli- the Assistant Secretary. cants and final priority areas will be (a) If, in the case of a hearing pursu- published in program announcements ant to section 122 of the Act, the As- in the FEDERAL REGISTER. sistant Secretary concludes that a (d) Projects of National Significance, State plan does not comply with Fed- including technical assistance and data
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collection grants, must be exemplary Collaboration means that the UAP co- and innovative models and have poten- operates with a wide range of persons, tial for dissemination or knowledge systems, and agencies, whether they utilization at the local level as well as utilize services of the UAP or are in- nationally or otherwise meet the goals volved in UAP planning and programs. of part E of the Act. These entities include individuals with developmental disabilities and family [54 FR 47985, Nov. 20, 1989, as amended at 61 FR 51163, Sept. 30, 1996] members, as well as the State Develop- mental Disabilities Councils, the Pro- tection and Advocacy agencies, other PART 1388—THE UNIVERSITY advocacy and disability groups, univer- AFFILIATED PROGRAMS sity components, generic and special- ized human service agencies, State Sec. agencies and citizen and community 1388.1 Definitions. 1388.2 Program criteria—purpose. groups. An example of this cooperation 1388.3 Program criteria—mission. is the Consumer Advisory Committee, 1388.4 Program criteria—governance and ad- a required element in each UAP. ministration. Cultural Diversity means that UAPs 1388.5 Program criteria—preparation of per- are characterized by their commitment sonnel. to involve individuals with disabilities, 1388.6 Program criteria—services and sup- family members and trainees from di- ports. verse cultural backgrounds in all levels 1388.7 Program criteria—dissemination. 1388.8 [Reserved] of their activities. This commitment to 1388.9 Peer review. cultural diversity means that each UAP must assure that individuals from AUTHORITY: 42 U.S.C. 6063 et. seq. racial and ethnic minority background SOURCE: 61 FR 51163, Sept. 30, 1996, unless are fully included; that efforts are otherwise noted. made to recruit individuals from mi- EDITORIAL NOTE: For nomenclature nority backgrounds into the field of de- changes to this part, see 54 FR 47985, Nov. 20, velopmental disabilities; that specific 1989. efforts must be made to ensure that in- dividuals from minority backgrounds § 1388.1 Definitions. have effective and meaningful opportu- For purposes of this part: nities for full participation in the de- Accessible means UAPs are character- velopmental disabilities service sys- ized by their program and physical ac- tem; and that recruitment efforts at commodation and their demonstrated the levels of preservice training, com- commitment to the goals of the Ameri- munity training, practice, administra- cans with Disabilities Act. tion and policymaking must focus on Capacity Building means that UAPs bringing large numbers of racial ethnic utilize a variety of approaches to minorities into the field in order to strengthen their university and their provide appropriate skills, knowledge, local, State, regional and National role models, and sufficient personnel to communities. These approaches in- address the growing needs of an in- clude, but are not limited to such ac- creasingly diverse population. tivities as: Culturally competent means provision (1) Enriching program depth and of services, supports, or other assist- breadth, for example, recruiting indi- ance in a manner that is responsive to viduals with developmental disabilities the beliefs, interpersonal styles, atti- and their families, local community tudes, language and behaviors of indi- leaders, additional faculty and stu- viduals who are receiving services, and dents to participate in the UAP; that has the greatest likelihood of en- (2) Acquiring additional resources, suring their maximum participation in for example, grants, space, and volun- the program. teer manpower; and Diverse Network means that although (3) Carrying out systems changes, for each UAP has the same mandates example, promoting inclusive program- under the Act, the expression of these ming for persons with developmental common mandates differs across pro- disabilities across all ages. grams. Each UAP must implement
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these mandates within the context of UAP. However, compliance with the their host university, their location program criteria does not, by itself, as- within the university, the needs of the sure funding. The Program Criteria are local and State community, the cul- one part of the Quality Enhancement tural composition of their State, their System (QES), and provide a structure resources and funding sources, and for self-assessment and peer review of their institutional history. These fac- each UAP. (The QES is a holistic ap- tors converge to create a network of proach to enable persons with develop- unique and distinct programs, bound mental disabilities and their families together by common mandates but en- to achieve maximum potential. All riched by diverse composition. UAPs use the QES.) Interdisciplinary Training means the use of individuals from different profes- § 1388.3 Program criteria—mission. sional specialties for UAP training and service delivery. (a) Introduction to mission: The UAP Lifespan Approach means that UAP is guided by values of independence, activities address the needs of individ- productivity, integration and inclusion uals with disabilities who are of all of individuals with developmental dis- ages. abilities and their families. The pur- Mandated Core Functions means the pose and scope of the activities must be UAP must perform: consistent with the Act as amended (1) Interdisciplinary preservice prepa- and include the provision of training, ration; service, research and evaluation, tech- (2) Community service activities nical assistance and dissemination of (community training and technical as- information in a culturally competent sistance); and manner, including the meaningful par- (3) Activities related to dissemina- ticipation of individuals from diverse tion of information and research find- racial and ethnic backgrounds. (The ings. concept of ‘‘diverse network’’ as de- Program Criteria means a statement of the Department’s expectation re- fined in § 1388.1 of this part applies to garding the direction and desired out- paragraphs (b), (f), (g), and (h) of this come of the University Affiliated Pro- section.) gram’s operation. (b) The UAP must develop a written Research and evaluation means that mission statement that reflects its val- the UAP refines its activities on the ues and promotes the goals of the uni- basis of evaluation results. As members versity in which it is located, including of the university community, involve- training, the development of new ment in program-relevant research and knowledge and service. The UAP’s development of new knowledge are im- goals, objectives and activities must be portant components of UAPs. consistent with the mission statement. State-of-the-art means that UAP ac- (c) The UAP’s mission and programs tivities are of high quality (using the must reflect a life span approach, in- latest technology), worthy of replica- corporate an interdisciplinary ap- tion (consistent with available re- proach and include the active partici- sources), and systemically evaluated. pation of individuals with develop- § 1388.2 Program criteria—purpose. mental disabilities and their families. (d) The UAP programs must address The program criteria will be used to the needs of individuals with develop- assess the quality of the University Af- mental disabilities, including individ- filiated Programs (UAP). The overall purpose of the program criteria is to uals with developmental disabilities assure the promotion of independence, who are unserved or underserved, in in- productivity, integration and inclusion stitutions, and on waiting lists. of individuals with developmental dis- (e) The UAP’s mission must reflect a abilities. Compliance with the program commitment to culturally competent criteria is a prerequisite for a UAP to attitudes and practices, which are in receive the minimum funding level of a response to local culture and needs.
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(f) The UAP’s mission must reflect the university by participation on uni- its unique role as a bridge between uni- versity committees, collaboration with versity programs, individuals with de- other university departments, and velopmental disabilities and their fam- other university community activities. ilies, service agencies and the larger (g) UAP faculty and staff must rep- community. resent the broad range of disciplines (g) The UAP’s goals, objectives, and and backgrounds necessary to imple- activities must be consistent with the ment the full inclusion of individuals mission statement and use capacity with developmental disabilities in all building strategies to address State’s aspects of society, consonant with the needs. spirit of the Americans with Disabil- (h) The UAP’s goals, objectives, and ities Act (ADA). activities must reflect interagency col- (h) The UAP must meet the require- laborations and strategies to effect sys- ments of section 109 of the Act [42 temic change within the university and U.S.C. 6008] regarding affirmative ac- in State and local communities and tion. The UAP must take affirmative service systems. action to employ and advance in em- ployment and otherwise treat qualified § 1388.4 Program criteria—governance and administration. individuals with disabilities without discrimination based upon their phys- (a) Introduction to governance and ical or mental disability in all employ- administration: The UAP must be asso- ment practices. ciated with, or an integral part of, a (i) The management practices of the university and promote the independ- UAP, as well as the organizational ence, productivity, integration, and in- structure, must promote the role of the clusion of individuals with develop- UAP as a bridge between the Univer- mental disabilities and their families. sity and the community. The UAP (The concept of ‘‘diverse network’’ as must actively participate in commu- defined in § 1388.1 of this part applies to nity networks and include a range of paragraphs (b), (c), (d), (i), and (l) of this section.) collaborating partners. (b) The UAP must have a written (j) The UAP’s Consumer Advisory agreement or charter with the univer- Committee must meet regularly. The sity that specifies the UAP designation membership of the Consumer Advisory as an official university component, Committee must reflect the racial and the relationships between the UAP and ethnic diversity of the State or com- other university components, the uni- munity in which the UAP is located. versity commitment to the UAP, and The deliberations of the Consumer Ad- the UAP commitment to the univer- visory Committee must be reflected in sity. UAP policies and programs. (c) Within the university, the UAP (k) The UAP must maintain collabo- must maintain the autonomy and orga- rative relationships with the State De- nizational structure required to carry velopmental Disabilities Council and out the UAP mission and provide for the Protection and Advocacy agency. the mandated activities. In addition, the UAP must be a mem- (d) The UAP must report directly to ber of the State Developmental Dis- a University administrator who will abilities Council and participate in represent the interests of the UAP Council meetings and activities, as pre- within the University. scribed by the Act. (e) The University must demonstrate (l) The UAP must maintain collabo- its support for the UAP through the rative relationships and be an active commitment of financial and other re- participant with the UAP network and sources. individuals, organizations, State agen- (f) UAP senior professional staff must cies and Universities. hold faculty appointments in appro- (m) The UAP must demonstrate the priate academic departments of the ability to leverage resources. host or an affiliated university, con- (n) The UAP must have adequate sistent with university policy. UAP space to carry out the mandated activi- senior professional staff contribute to ties.
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(o) The UAP physical facility and all (d) Preservice training must be inte- program initiatives conducted by the grated into all aspects of the UAP, in- UAP must be accessible to individuals cluding community training and tech- with disabilities as provided for by sec- nical assistance, direct services (if pro- tion 504 of the Rehabilitation Act and vided), and dissemination. Titles II and III of the Americans with (e) Trainees must be prepared to Disabilities Act. serve in a variety of roles, including (p) The UAP must integrate the man- advocacy and systems change. The dated core functions into its activities UAP must encourage graduates to and programs and must have a written work in situations where they will pro- plan for each core function area. mote the independence, productivity, (q) The UAP must have in place a integration and inclusion of individuals long range planning capability to en- with developmental disabilities and able the UAP to respond to emergent their families. and future developments in the field. (f) The UAP must influence Univer- (r) The UAP must utilize state-of- sity curricula to prepare personnel the-art methods, including the active who, in their future career in a broad participation of individuals, families range of social and community roles, and other consumers of UAP programs will contribute to the accommodation and services to evaluate programs. The and inclusion of individuals with devel- opmental disabilities, as mandated in UAP must refine and strengthen its the Americans with Disabilities Act. programs based on evaluation findings. (g) The UAP core curriculum must (s) The UAP Director must dem- incorporate cultural diversity and dem- onstrate commitment to the field of onstrate cultural competence. Trainees developmental disabilities and leader- must be prepared to address the needs ship and vision in carrying out the mis- of individuals with developmental dis- sion of the UAP. abilities and their families in a cul- turally competent manner. § 1388.5 Program criteria—preparation of personnel. (h) The UAP core curriculum must prepare trainees to be active partici- (a) Introduction to preparation of pants in research and dissemination ef- personnel: UAP interdisciplinary train- forts. In addition, the curriculum must ing programs reflect state-of-the-art prepare trainees to be consumers of re- practices and prepare personnel con- search as it informs practice and pol- cerned with developmental disabilities icy. to promote the independence, produc- tivity, integration and inclusion of in- § 1388.6 Program criteria—services dividuals with developmental disabil- and supports. ities and their families. (a) Introduction to services and sup- (b) UAP interdisciplinary training ports: The UAP engages in a variety of programs must be based on identified system interventions and may also en- personnel preparation needs and have gage in a variety of individual inter- identified outcomes that are consistent ventions to promote independence, pro- with the mission and goals of the UAP. ductivity, integration and inclusion of (c) The interdisciplinary training individuals with developmental disabil- process, as defined by the UAP, must ities and their families. reflect a mix of students from diverse (b) UAP community training and academic disciplines/academic pro- technical assistance activities must: grams and cultures that reflect the di- (1) Use capacity building strategies versity of the community. Faculty rep- to strengthen the capability of commu- resent a variety of backgrounds and nities, systems and service providers; specialties, including individuals with (2) Plan collaboratively, including disabilities and family members, and a the participation of individuals with variety of learning experiences, as well developmental disabilities and their as reflecting the cultural diversity of families; the community. Trainees must receive (3) Target to a wide range of audi- academic credit as appropriate for par- ences, including individuals with dis- ticipation in UAP training programs. abilities, family members, service and
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support personnel, and community developmental disabilities, and that members; are integrated within services and (4) Plan and be structured in a man- projects; ner that facilitates the participation of (iii) Innovative cost-effective con- targeted audiences; and cepts and practices that are evaluated (5) Address the unique needs of indi- according to accepted practices of sci- viduals with developmental disabilities entific evaluation; and their families from diverse cul- (iv) Research methods that are used tural and ethnic groups who reside to test hypotheses, validate proce- within the geographic locale. dures, and field test projects; and (c) Direct Services. These require- (v) Direct service and project prac- ments apply only where direct services tices and models that are evaluated, are offered. packaged for replication and dissemi- (1) A UAP must integrate direct serv- nated through the information dissemi- ices and projects into community set- nation component. tings. These services may be provided in a service delivery site or training § 1388.7 Program criteria—dissemina- setting within the community includ- tion. ing the university. Direct service projects may involve interdisciplinary (a) Introduction to dissemination: student trainees, professionals from The UAP disseminates information and various disciplines, service providers, research findings, including the empir- families and/or administrators. Direct ical validation of activities related to services must be extended, as appro- training, best practices, services and priate, to include adult and elderly in- supports, and contributes to the devel- dividuals with developmental disabil- opment of new knowledge. Dissemina- ities. The UAP must maintain coopera- tion activities promote the independ- tive relationships with other commu- ence, productivity, integration and in- nity service providers, including spe- clusion of individuals with develop- cialized state and local provider agen- mental disabilities and their families. cies. (b) The UAP must be a resource for (2) Services and projects provided in information for individuals with devel- community-integrated settings are to: opmental disabilities and their fami- (i) Be scheduled at times and in lies, community members, State agen- places that are consistent with routine cies and other provider and advocacy activities within the local community; organizations, produce a variety of and products to promote public awareness (ii) Interact with and involve com- and visibility of the UAP, and facili- munity members, agencies, and organi- tate replication of best practices. zations. (c) Specific target audiences must be (3) The bases for the services or identified for dissemination activities project development must be: and include individuals with develop- (i) A local or universal need that re- mental disabilities, family members, flects critical problems in the field of service providers, administrators, pol- developmental disabilities; or icy makers, university faculty, re- (ii) An emerging, critical problem searchers, and the general public. that reflects current trends or antici- (d) UAP dissemination activities pated developments in the field of de- must be responsive to community re- velopmental disabilities. quests for information and must utilize (4) State-of-the-art and innovative a variety of networks, including State practices include: Developmental Disabilities Councils, (i) Services and project concepts and Protection and Advocacy agencies, practices that facilitate and dem- other University Affiliated Programs, onstrate independence for the indi- and State service systems to dissemi- vidual, community integration, pro- nate information to target audiences. ductivity, and human rights; (e) The process of developing and (ii) Practices that are economical, evaluating materials must utilize the accepted by various disciplines, and input of individuals with develop- highly beneficial to individuals with mental disabilities and their families.
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(f) The values of the UAP must be re- § 1388.8 [Reserved] flected in the language and images used in UAP products. § 1388.9 Peer review. (g) Dissemination products must re- (a) The purpose of the peer review flect the cultural diversity of the com- process is to provide the Commissioner, munity. ADD, with technical and qualitative (h) Materials disseminated by the evaluation of UAP applications, includ- UAP must be available in formats ac- ing on-site visits or inspections as nec- cessible to individuals with a wide essary. range of disabilities, and appropriate (b) Applications for funding opportu- target audiences. nities under part D, Section 152 of the (i) The UAP must contribute to the Act, must be evaluated through the peer review process. development of the knowledge base (c) Panels must be composed of non- through publications and presen- Federal individuals who, by experience tations, including those based on re- and training, are highly qualified to as- search and evaluation conducted at the sess the comparative quality of appli- UAP. cations for assistance.
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Part Page 1600 Definitions ...... 411 1601 [Reserved] 1602 Procedures for disclosure of information under the Freedom of Information Act ...... 411 1603 State Advisory councils ...... 420 1604 Outside practice of law ...... 422 1605 Appeals on behalf of clients ...... 423 1606 Termination and debarment procedures; recom- petition ...... 423 1607 Governing bodies ...... 428 1608 Prohibited political activities ...... 431 1609 Fee-generating cases ...... 432 1610 Use of non-LSC funds, transfers of LSC funds, pro- gram integrity ...... 433 1611 Eligibility ...... 435 1612 Restrictions on lobbying and certain other activi- ties ...... 439 1613 Restrictions on legal assistance with respect to criminal proceedings ...... 442 1614 Private attorney involvement ...... 443 1615 Restrictions on actions collaterally attacking criminal convictions ...... 448 1616 Attorney hiring ...... 448 1617 Class actions ...... 449 1618 Enforcement procedures ...... 450 1619 Disclosure of information ...... 450 1620 Priorities in use of resources ...... 451 1621 Client grievance procedure ...... 453 1622 Public access to meetings under the Government in the Sunshine Act ...... 454 1623 Suspension procedures ...... 457 1624 Prohibition against discrimination on the basis of handicap ...... 459 1625 [Reserved] 409
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Part Page 1626 Restrictions on legal assistance to aliens ...... 463 1627 Subgrants and membership fees or dues ...... 468 1628 Recipient fund balances ...... 470 1629 Bonding of recipients ...... 473 1630 Costs standards and procedures ...... 474 1631 Expenditure of grant funds ...... 480 1632 Redistricting ...... 480 1633 Restriction on representation in certain eviction proceedings ...... 481 1634 Competitive bidding for grants and contracts ...... 481 1635 Timekeeping requirement ...... 486 1636 Client identity and statement of facts ...... 487 1637 Representation of prisoners ...... 488 1638 Restriction on solicitation ...... 489 1639 Welfare reform ...... 489 1640 Application of Federal law to LSC recipients ...... 490 1641 Debarment, suspension and removal of recipient auditors ...... 492 1642 Attorneys’ fees ...... 500 1643 Restriction on assisted suicide, euthanasia, and mercy killing ...... 501 1644 Disclosure of case information ...... 502
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1602.7 Index of records. pose of conducting scientific research, 1602.8 Requests for records. the results of which are not intended to 1602.9 Exemptions for withholding records. promote any particular product or in- 1602.10 Officials authorized to grant or deny dustry. requests for records. 1602.11 Denials. (f) Office of Inspector General records 1602.12 Appeals of denials. means those records as defined gen- 1602.13 Fees. erally in this section which are exclu- AUTHORITY: 42 U.S.C. 2996d(g); 5 U.S.C. 552. sively in the possession and control of the Office of Inspector General of the SOURCE: 63 FR 41196, Aug. 3, 1998, unless Legal Services Corporation. otherwise noted. (g) Records means books, papers, § 1602.1 Purpose. maps, photographs, or other documen- tary materials, regardless of whether This part contains the rules and pro- the format is physical or electronic, cedures the Legal Services Corporation made or received by the Corporation in follows in making records available to connection with the transaction of the the public under the Freedom of Infor- Corporation’s business and preserved mation Act. by the Corporation as evidence of the § 1602.2 Definitions. organization, functions, policies, deci- sions, procedures, operations, or other As used in this part— activities of the Corporation, or be- (a) means a re- Commercial use request cause of the informational value of quest from or on behalf of one who data in them. The term does not in- seeks information for a use or purpose clude, inter alia, books, magazines, or that furthers the commercial, trade, or other materials acquired solely for li- profit interests of the requester or the brary purposes. person on whose behalf the request is made. In determining whether a re- (h) Representative of the news media quester properly belongs in this cat- means any person actively gathering egory, the Corporation will look to the news for an entity that is organized use to which a requester will put the and operated to publish or broadcast documents requested. When the Cor- news to the public. The term ‘‘news’’ poration has reasonable cause to doubt means information that is about cur- the requester’s stated use of the rent events or that would be of current records sought, or where the use is not interest to the public. Examples of clear from the request itself, it will news media entities include television seek additional clarification before as- or radio stations broadcasting to the signing the request to a category. public at large and publishers of peri- (b) Duplication means the process of odicals (but only in those instances making a copy of a requested record when they can qualify as disseminators pursuant to this part. Such copies can of ‘‘news’’) who make their products take the form of paper copy, available for purchase or subscription microform, audio-visual materials, or by the general public. These examples machine readable electronic docu- are not intended to be all-inclusive. ments, among others. Moreover, as traditional methods of (c) Educational institution means a news delivery evolve (e.g., electronic preschool, a public or private elemen- dissemination of newspapers through tary or secondary school, an institu- telecommunications services), such al- tion of undergraduate or graduate ternative media would be included in higher education, or an institution of this category. In the case of ‘‘free- professional or vocational education lance’’ journalists, they will be re- which operates a program or programs garded as working for a news organiza- of scholarly research. tion if they can demonstrate a solid (d) FOIA means the Freedom of Infor- basis for expecting publication through mation Act, 5 U.S.C. 552. that organization, even though not ac- (e) Non-commercial scientific institution tually employed by it. means an institution that is not oper- (i) Review means the process of exam- ated on a ‘‘commercial’’ basis and ining documents located in response to which is operated solely for the pur- a request to determine whether any
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portion of any such document is ex- 20002–4250. This room will be supervised empt from disclosure. It also includes and will be open to the public during processing any such documents for dis- the regular business hours of the Cor- closure. Review does not include time poration for inspecting and copying spent resolving general legal or policy records described in paragraph (b) of issues regarding the application of ex- this section. emptions. (b) Subject to the limitation stated (j) Search means the process of look- in paragraph (c) of this section, the fol- ing for and retrieving records that are lowing records will be made available responsive to a request for records. It in the public reading room: includes page-by-page or line-by-line (1) All final opinions, including con- identification of material within docu- curring and dissenting opinions, and ments and also includes reasonable ef- orders issued in the adjudication of forts to locate and retrieve information cases; from records maintained in electronic (2) Statements of policy and interpre- form or format. Searches may be con- tations adopted by the Corporation ducted manually or by automated that are not published in the FEDERAL means and will be conducted in the REGISTER; most efficient and least expensive man- ner. (3) Administrative staff manuals and instructions to the staff that affect the § 1602.3 Policy. public or recipients; The Corporation will make records (4) Copies of records, regardless of concerning its operations, activities, form or format, released to any person and business available to the public to in response to a public request for the maximum extent reasonably pos- records pursuant to § 1602.8 which the sible. Records will be withheld from Corporation has determined are likely the public only in accordance with the to become subject to subsequent re- FOIA and this part. Records exempt quests for substantially the same from disclosure under the FOIA may be records, and a general index of such made available as a matter of discre- records; tion when disclosure is not prohibited (5) The current index required by by law, and disclosure would not § 1602.7; foreseeably harm a legitimate interest (6) To the extent feasible, other of the public, the Corporation, a recipi- records considered to be of general in- ent, or any individual. terest to recipients or members of the public in understanding activities of § 1602.4 Records published in the Fed- the Corporation or in dealing with the eral Register. Corporation in connection with those The Corporation routinely publishes activities. in the FEDERAL REGISTER information (c) Certain records otherwise re- on its basic structure and operations quired by FOIA to be available in the necessary to inform the public how to public reading room may be exempt deal effectively with the Corporation. from mandatory disclosure pursuant to The Corporation will make reasonable section 552(b) of the FOIA and § 1602.9. efforts to currently update such infor- Such records will not be made avail- mation, which will include basic infor- able in the public reading room. Other mation on the Corporation’s location, records maintained in the public read- functions, rules of procedure, sub- ing room may be edited by the deletion stantive rules, statements of general of identifying details concerning indi- policy, and information regarding how viduals to prevent a clearly unwar- the public may obtain information, ranted invasion of personal privacy. In make submittals or requests, or obtain such cases, the record shall have at- decisions. tached to it a full explanation of the deletion. The extent of the deletion § 1602.5 Public reading room. shall be indicated, unless doing so (a) The Corporation will maintain a would harm an interest protected by public reading room at its office at 750 the exemption under which the dele- First Street, NE., Washington DC tion is made. If technically feasible,
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the extent of the deletion shall be indi- § 1602.8 Requests for records. cated at the place in the record where (a) Except for records required by the the deletion was made. FOIA to be published in the FEDERAL (d) Records required by the FOIA to REGISTER (§ 1602.4) or to be made avail- be maintained and made available in able in the public reading room the public reading room that are cre- (§ 1602.5), Corporation records will be ated by the Corporation on or after No- made promptly available, upon request, vember 1, 1996, shall be made available to any person in accordance with this electronically. This includes the index section, unless it is determined that of published and reading room records, such records should be withheld and which shall indicate which records are are exempt from mandatory disclosure available electronically. under the FOIA and § 1602.9. (e) Most electronic public reading (b) Requests. Requests for records room records will also be made avail- under this section shall be made in able to the public on the Corporation’s writing, with the envelope and the let- websites at http://www.lsc.gov and ter or e-mail request clearly marked http://oig.lsc.gov. Freedom of Information Request. All such requests shall be addressed to the § 1602.6 Procedures for use of public Corporation’s Office of the General reading room. Counsel. Requests by letter shall use Any member of the public may in- the address given in § 1602.5(a). E-mail spect or copy records described in requests shall be addressed to § 1602.5(b) in the public reading room [email protected]. Any request not during regular business hours. Because marked and addressed as specified in it will sometimes be impossible to this paragraph will be so marked by produce records or copies of records on Corporation personnel as soon as it is properly identified, and will be for- short notice, a person who wishes to in- warded immediately to the Office of spect or copy records is advised to ar- the General Counsel. A request improp- range a time in advance, by telephone erly addressed will not be deemed to or letter request made to the Office of have been received for purposes of the the General Counsel. Persons submit- time period set forth in paragraph (i) of ting requests by telephone will be noti- this section until it has been received fied whether a written request would by the Office of the General Counsel. be advisable to aid in the identification Upon receipt of an improperly ad- and expeditious processing of the dressed request, the General Counsel or records sought. Written requests designee shall notify the requester of should identify the records sought in the date on which the time period the manner provided in § 1602.8(b) and began. should request a specific date for in- (c) A request must reasonably de- specting the records. The requester will scribe the records requested so that be advised as promptly as possible if, employees of the Corporation who are for any reason, it may not be possible familiar with the subject area of the to make the records sought available request are able, with a reasonable on the date requested. amount of effort, to determine which particular records are within the scope § 1602.7 Index of records. of the request. If it is determined that The Corporation will maintain a cur- a request does not reasonably describe rent index identifying any matter the records sought, the requester shall within the scope of § 1602.4 and be so informed and provided an oppor- § 1602.5(b) (1) through (5). The index will tunity to confer with Corporation per- be maintained and made available for sonnel in order to attempt to reformu- public inspection and copying at the late the request in a manner that will Corporation’s office in Washington, DC. meet the needs of the requester and the The cost of a copy of the index will not requirements of this paragraph. exceed the standard charge for duplica- (d) To facilitate the location of tion set out in § 1602.13(e). The Corpora- records by the Corporation, a requester tion will also make the index available should try to provide the following on its websites. kinds of information, if known:
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(1) The specific event or action to determination is expected to be dis- which the record refers; patched. (2) The unit or program of the Cor- (2) Initial response/delays. If the Gen- poration which may be responsible for eral Counsel or designee determines or may have produced the record; that a request or portion thereof is for (3) The date of the record or the date Office of Inspector General records, the or period to which it refers or relates; General Counsel or designee shall (4) The type of record, such as an ap- promptly refer the request or portion plication, a grant, a contract, or a re- thereof to the Office of Inspector Gen- port; eral and send notice of such referral to (5) Personnel of the Corporation who the requester. In such case, the Counsel may have prepared or have knowledge to the Inspector General or designee of the record; shall make an initial determination of whether to comply with or deny such (6) Citations to newspapers or publi- request and dispatch such determina- cations which have referred to the tion to the requester within 20 working record. days after receipt of such request, ex- (e) The Corporation is not required to cept for unusual circumstances, in create a record or to perform research which case the time limit may be ex- to satisfy a request. tended for up to 10 working days by (f) Estimated fees. The Corporation written notice to the requester setting shall advise the requester of any esti- forth the reasons for such extension mated fees as promptly as possible. The and the date on which a determination Corporation may require that fees be is expected to be dispatched. paid in advance, in accordance with (3) Unusual circumstances. As used in § 1602.13(i), and the Corporation will ad- this part, ‘‘unusual circumstances’’ are vise a requester as promptly as possible limited to the following, but only to if the fees are estimated to exceed $25 the extent reasonably necessary for the or any limit indicated by the requester. proper processing of the particular re- (g) Any request for a waiver or reduc- quest: tion of fees should be included in the (i) The need to search for and collect FOIA request, and any such request the requested records from establish- should indicate the grounds for a waiv- ments that are separate from the office er or reduction of fees, as set out in processing the request; § 1602.13(f). The Corporation shall re- (ii) The need to search for, collect, spond to such request as promptly as and appropriately examine a volumi- possible. nous amount of separate and distinct (h) Format. The Corporation will pro- records which are demanded in a single vide records in the form or format indi- request; or cated by the requester to the extent (iii) The need for consultation, which such records are readily reproducible in shall be conducted with all practicable the requested form or format. speed, with another agency or organi- (i)(1) The General Counsel or des- zation, such as a recipient, having a ignee, upon request for any records substantial interest in the determina- made in accordance with this section, tion of the request or among two or except in the case of a request for Of- more components of the Corporation fice of Inspector General records, shall having substantial subject matter in- make an initial determination of terest therein. whether to comply with or deny such (j) If a request is particularly broad request and dispatch such determina- or complex so that it cannot be com- tion to the requester within 20 days pleted within the time periods stated (excepting Saturdays, Sundays, and in paragraph (i) of this section, the legal public holidays) after receipt of Corporation may ask the requester to such request, except for unusual cir- narrow the request or agree to an addi- cumstances, in which case the time tional delay. limit may be extended for up to 10 (k) When no determination can be working days by written notice to the dispatched within the applicable time requester setting forth the reasons for limit, the General Counsel or designee such extension and the date on which a or the Counsel to the Inspector General
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or designee shall inform the requester tail the basis for requesting expedited of the reason for the delay, the date on processing. which a determination may be ex- (4) Within ten calendar days of its re- pected to be dispatched, and the re- ceipt of a request for expedited proc- quester’s right to treat the delay as a essing, the General Counsel or designee denial and to appeal to the Corpora- or the Inspector General or designee tion’s President or Inspector General, shall decide whether to grant the re- in accordance with § 1602.12. If no deter- quest and shall notify the requester of mination has been dispatched by the the decision. If a request for expedited end of the 20-day period, or the last ex- treatment is granted, the request shall tension thereof, the requester may be given priority and shall be processed deem the request denied, and exercise a as soon as practicable. If a request for right of appeal in accordance with expedited processing is denied, any ap- § 1602.12. The General Counsel or des- peal of that decision shall be acted on ignee or the Counsel to the Inspector expeditiously by the Corporation. General or designee may ask the re- quester to forego appeal until a deter- § 1602.9 Exemptions for withholding mination is made. records. (l) After it has been determined that (a) A requested record of the Corpora- a request will be granted, the Corpora- tion may be withheld from public dis- tion will act with due diligence in pro- closure only if one or more of the fol- viding a substantive response. lowing categories exempted by the (m)(1) Expedited treatment. Requests FOIA apply: and appeals will be taken out of order (1) Matter which is related solely to and given expedited treatment when- the internal personnel rules and prac- ever the requester demonstrates a com- tices of the Corporation; pelling need. A compelling need means: (i) Circumstances in which the lack (2) Matter which is specifically ex- of expedited treatment could reason- empted from disclosure by statute ably be expected to pose an imminent (other than the exemptions under FOIA threat to the life or physical safety of at 5 U.S.C. 552(b)), provided that such an individual; statute requires that the matters be (ii) An urgency to inform the public withheld from the public in such a about an actual or alleged Corporation manner as to leave no discretion on the or Federal government activity and the issues, or establishes particular cri- request is made by a person primarily teria for withholding, or refers to par- engaged in disseminating information; ticular types of matters to be withheld; (iii) The loss of substantial due proc- (3) Trade secrets and commercial or ess rights; or financial information obtained from a (iv) A matter of widespread and ex- person and privileged or confidential; ceptional media interest in which there (4) Inter-agency or intra-agency exist possible questions about the Cor- memoranda or letters which would not poration’s or the Federal government’s be available by law to a party other integrity which affect public con- than an agency in litigation with the fidence. Corporation; (2) A request for expedited processing (5) Personnel and medical files and may be made at the time of the initial similar files, the disclosure of which request for records or at any later would constitute a clearly unwarranted time. For a prompt determination, a invasion of personal privacy; request for expedited processing must (6) Records or information compiled be properly addressed and marked and for law enforcement purposes including received by the Corporation pursuant enforcing the Legal Services Corpora- to paragraphs (b) of this section. tion Act or any other law, but only to (3) A requester who seeks expedited the extent that the production of such processing must submit a statement law enforcement records or informa- demonstrating a compelling need that tion: is certified by the requester to be true (i) Could reasonably be expected to and correct to the best of that person’s interfere with enforcement pro- knowledge and belief, explaining in de- ceedings;
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(ii) Would deprive a person or a re- (d) Records that may be exempt from cipient of a right to a fair trial or an disclosure pursuant to paragraph (a) of impartial adjudication; this section may be made available at (iii) Could reasonably be expected to the discretion of the Corporation offi- constitute an unwarranted invasion of cial authorized to grant or deny the re- personal privacy; quest for records, after appropriate (iv) Could reasonably be expected to consultation as provided in § 1602.10. disclose the identity of a confidential Records may be made available pursu- source, including a State, local, or for- ant to this paragraph when disclosure eign agency or authority or any pri- is not prohibited by law, and it does vate institution which furnished infor- not appear adverse to legitimate inter- mation on a confidential basis, and in ests of the Corporation, the public, a the case of a record or information recipient, or any person. compiled by a criminal law enforce- § 1602.10 Officials authorized to grant ment authority in the course of a or deny requests for records. criminal investigation, information furnished by a confidential source; (a) The General Counsel shall furnish necessary advice to Corporation offi- (v) Would disclose techniques and cials and staff as to their obligations procedures for law enforcement inves- under this part and shall take such tigations or prosecutions, or would dis- other actions as may be necessary or close guidelines for law enforcement appropriate to assure a consistent and investigations or prosecutions if such equitable application of the provisions disclosure could reasonably be ex- of this part by and within the Corpora- pected to risk circumvention of the tion. law; or (b) The General Counsel or designee (vi) Could reasonably be expected to and the Counsel to the Inspector Gen- endanger the life or physical safety of eral or designee are authorized to grant any individual; or deny requests under this part. In the (b) In the event that one or more of absence of a Counsel to the Inspector the exemptions in paragraph (a) of this General, the Inspector General shall section apply, any reasonably seg- name a designee who will be authorized regable portion of a record shall be pro- to grant or deny requests under this vided to the requester after deletion of part and who will perform all other the portions that are exempt. The functions of the Counsel to the Inspec- amount of information deleted shall be tor General under this part. The Gen- indicated on the released portion of the eral Counsel or designee shall consult record, unless doing so would harm the with the Office of Inspector General interest protected by the exemption prior to granting or denying any re- under which the deletion is made. If quest for records or portions of records technically feasible, the amount of in- which originated with the Office of In- formation deleted shall be indicated at spector General, or which contain in- the place in the record where the dele- formation which originated with the tion is made. In appropriate cir- Office of Inspector General, but which cumstances, at the discretion of the are maintained by other components of Corporation officials authorized to the Corporation. The Counsel to the In- grant or deny a request for records, and spector General or designee shall con- after appropriate consultation as pro- sult with the Office of the General vided in § 1602.10, it may be possible to Counsel prior to granting or denying provide a requester with: any requests for records. (1) A summary of information in the exempt portion of a record; or § 1602.11 Denials. (2) An oral description of the exempt (a) A denial of a written request for a portion of a record. record that complies with the require- (c) No requester shall have a right to ments of § 1602.8 shall be in writing and insist that any or all of the techniques shall include the following: in paragraph (b) of this section should (1) A reference to the applicable ex- be employed in order to satisfy a re- emption or exemptions in § 1602.9 (a) quest. upon which the denial is based;
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(2) An explanation of how the exemp- shall contain an explanation responsive tion applies to the requested records; to the arguments advanced by the re- (3) A statement explaining why it is quester, the matters described in deemed unreasonable to provide seg- § 1602.11(a) (1) through (4), and the pro- regable portions of the record after de- visions for judicial review of such deci- leting the exempt portions; sion under section 552(a)(4) of the (4) An estimate of the volume of re- FOIA. The decision shall be dispatched quested matter denied unless providing to the requester within 20 working such estimate would harm the interest days after receipt of the appeal, unless protected by the exemption under an additional period is justified pursu- which the denial is made; ant to § 1602.8(i) and such period taken (5) The name and title of the person together with any earlier extension or persons responsible for denying the does not exceed 10 days. The decision of request; and the President or the Inspector General (6) An explanation of the right to ap- shall constitute the final action of the peal the denial and of the procedures Corporation. All such decisions shall be for submitting an appeal, including the treated as final opinions under address of the official to whom appeals § 1602.5(b). should be submitted. (d) On an appeal, the President or (b) Whenever the Corporation makes designee shall consult with the Office a record available subject to the dele- of Inspector General prior to reversing tion of a portion of the record, such ac- in whole or in part the denial of any re- tion shall be deemed a denial of a quest for records or portions of records record for purposes of paragraph (a) of which originated with the Office of In- this section. spector General, or which contain in- (c) All denials shall be treated as formation which originated with the final opinions under § 1602.5(b). Office of Inspector General, but which § 1602.12 Appeals of denials. are maintained by other components of the Corporation. The Inspector General (a) Any person whose written request or designee shall consult with the has been denied is entitled to appeal President prior to reversing in whole or the denial within 90 days by writing to in part the denial. the President of the Corporation or, in the case of a denial of a request for Of- § 1602.13 Fees. fice of Inspector General records, the Inspector General, at the addresses (a) No fees will be charged for infor- given in § 1602.5(a) and § 1602.8(b). The mation routinely provided in the nor- envelope and letter or e-mail appeal mal course of doing business. should be clearly marked: ‘‘Freedom of (b) Fees shall be limited to reason- Information Appeal.’’ An appeal need able standard charges for document not be in any particular form, but search, review, and duplication, when should adequately identify the denial, records are requested for commercial if possible, by describing the requested use; record, identifying the official who (c) Fees shall be limited to reason- issued the denial, and providing the able standard charges for document du- date on which the denial was issued. plication after the first 100 pages, when (b) No personal appearance, oral ar- records are sought by a representative gument, or hearing will ordinarily be of the news media or by an educational permitted on appeal of a denial. Upon or non-commercial scientific institu- request and a showing of special cir- tion; and cumstances, however, this limitation (d) For all other requests, fees shall may be waived and an informal con- be limited to reasonable standard ference may be arranged with the charges for search time after the first 2 President or designee, or Inspector hours and duplication after the first 100 General or designee, for this purpose. pages. (c) The decision of the President or (e) The schedule of charges for serv- the Inspector General on an appeal ices regarding the production or disclo- shall be in writing and, in the event sure of the Corporation’s records is as the denial is in whole or in part upheld, follows:
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(1) Manual search for and review of ‘‘significantly’’ to public under- records will be charged as follows: standing of the Corporation or Federal (i) Band 1: $10.26 per hour; government operations or activities. (ii) Band 2: $16.12 per hour; (2) In order to determine whether dis- (iii) Band 3: $25.22 per hour; closure of the information is not pri- (iv) Band 4–5: $42 per hour; marily in the commercial interest of (v) Charges for search and review the requester, the Corporation will time less than a full hour will be billed consider the following two factors: by quarter-hour segments; (i) The existence and magnitude of a (2) Computer time: actual charges as commercial interest: Whether the re- incurred; quester has a commercial interest that (3) Duplication by paper copy: 10 would be furthered by the requested cents per page; disclosure; and, if so, (4) Duplication by other methods: ac- (ii) The primary interest in disclo- tual charges as incurred; sure: Whether the magnitude of the (5) Certification of true copies: $1.00 identified commercial interest of the each; requester is sufficiently large, in com- (6) Packing and mailing records: no parison with the public interest in dis- charge for regular mail; closure, that disclosure is ‘‘primarily (7) Special delivery or express mail: in the commercial interest of the re- actual charges as incurred. quester.’’ (f) Fee waivers. Fees will be waived (3) These fee waiver/reduction provi- or reduced below the fees established sions will be subject to appeal in the under paragraph (e) of this section if same manner as appeals from denial disclosure of the information is in the under § 1602.12. public interest because it is likely to (g) No fee will be charged under this contribute significantly to public un- section unless the cost of routine col- derstanding of the operations or activi- lection and processing of the fee pay- ties of the Corporation or Federal gov- ment is likely to exceed $6.50. ernment and is not primarily in the (h) Requesters must agree to pay all commercial interest of the requester. fees charged for services associated (1) In order to determine whether dis- with their requests. The Corporation closure of the information is in the will assume that requesters agree to public interest because it is likely to pay all charges for services associated contribute significantly to public un- with their requests up to $25 unless derstanding of the operations or activi- otherwise indicated by the requester. ties of the Corporation or Federal gov- For requests estimated to exceed $25, ernment, the Corporation will consider the Corporation will first consult with the following four criteria: the requester prior to processing the (i) The subject of the request: Wheth- request, and such requests will not be er the subject of the requested records deemed to have been received by the concerns ‘‘the operations or activities Corporation until the requester agrees of the Corporation or the Federal gov- in writing to pay all fees charged for ernment’’; services. (ii) The informative value of the in- (i) No requester will be required to formation to be disclosed: Whether the make an advance payment of any fee disclosure is ‘‘likely to contribute’’ to unless: an understanding of Corporation or (1) The requester has previously Federal government operations or ac- failed to pay a required fee within 30 tivities; days of the date of billing, in which (iii) The contribution to an under- case an advance deposit of the full standing of the subject by the general amount of the anticipated fee together public likely to result from disclosure: with the fee then due plus interest ac- Whether disclosure of the requested in- crued may be required. (The request formation will contribute to ‘‘public will not be deemed to have been re- understanding’’; and ceived by the Corporation until such (iv) The significance of the contribu- payment is made.); or tion to public understanding: Whether (2) The Corporation determines that the disclosure is likely to contribute an estimated fee will exceed $250, in
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which case the requester shall be noti- 1603.7 Organization and procedural func- fied of the amount of the anticipated tioning of council. fee or such portion thereof as can read- 1603.8 Corporation support of council. ily be estimated. Such notification 1603.9 Annual report of council. 1603.10 Multi-state recipients. shall be transmitted as soon as pos- sible, but in any event within 5 work- AUTHORITY: Sec. 1004(f), 88 Stat. 379–380 (42 ing days of receipt by the Corporation, U.S.C. 2996c(f)). giving the best estimate then avail- SOURCE: 40 FR 59351, Dec. 23, 1975, unless able. The notification shall offer the otherwise noted. requester the opportunity to confer with appropriate representatives of the § 1603.1 Purpose. Corporation for the purpose of reformu- The purpose of this part is to imple- lating the request so as to meet the ment section 1004(f) of the Legal Serv- needs of the requester at a reduced ices Corporation Act of 1974, 42 U.S.C. cost. The request will not be deemed to 2996c(f), which provides authority for have been received by the Corporation the appointment of state advisory for purposes of the initial 20-day re- councils. sponse period until the requester makes a deposit on the fee in an § 1603.2 Definitions. amount determined by the Corpora- As used in this part, the term— tion. (a) Act means the Legal Services Cor- (j) Interest may be charged to those poration Act of 1974, Pub. L. 93–355, 88 requesters who fail to pay the fees Stat. 378, 42 U.S.C. 2996–2996l; charged. Interest will be assessed on (b) Apparent violation means a com- the amount billed, starting on the 31st plaint or other written communication day following the day on which the alleging facts which, if established, billing was sent. The rate charged will constitute a violation of the Act, or be as prescribed in 31 U.S.C. 3717. any applicable rules, regulations or (k) If the Corporation reasonably be- guidelines promulgated pursuant to the lieves that a requester or group of re- Act; questers is attempting to break a re- (c) Board means the Board of Direc- quest into a series of requests for the tors of the Legal Services Corporation; purpose of evading the assessment of (d) Corporation means the Legal Serv- fees, the Corporation shall aggregate ices Corporation established under the such requests and charge accordingly. Act; Likewise, the Corporation will aggre- (e) Council means a state advisory gate multiple requests for documents council established pursuant to Section received from the same requester with- 1004(f) of the Act; in 45 days. (f) Eligible client means any person fi- (l) The Corporation reserves the right nancially unable to afford legal assist- to limit the number of copies that will ance; be provided of any document to any (g) Governor means the chief execu- one requester or to require that special tive officer of a State; arrangements for duplication be made (h) Recipient means any grantee, con- in the case of bound volumes or other tractee, or recipient of financial assist- records representing unusual problems ance described in clause (A) of section of handling or reproduction. 1006(a)(1) of the Act; (i) State means any State of the PART 1603—STATE ADVISORY United States, the District of Colum- COUNCILS bia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Sec. Samoa, the Trust Territory of the Pa- 1603.1 Purpose. cific Islands, and any other territory or 1603.2 Definitions. possession of the United States. 1603.3 Composition and term of office of council membership. § 1603.3 Composition and term of of- 1603.4 Procedure for appointment of council. fice of council membership. 1603.5 Council purpose and duties. 1603.6 Duties of Corporation upon receipt of A council shall be composed of nine notification of violation. members. A majority of the members
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of a council shall be attorneys admit- person of the council shall inform the ted to practice in the State. It is rec- complainant, the Corporation and the ommended that the remainder of the recipient of any action taken on the council, to the maximum extent pos- complaint. Notification of an apparent sible, be broadly representative of per- violation forwarded by the council to sons concerned with the effective func- the Corporation shall not necessarily tioning of legal services programs. constitute a position of the council Membership of a council shall be sub- concerning the apparent violation. ject to annual reappointment, but it is (c) These procedures are not exclu- recommended that no member of a sive. Complaints may be submitted to council be appointed to serve for more the Corporation, and complaints sub- than three consecutive years. mitted to a council may be submitted to the Corporation without regard to § 1603.4 Procedure for appointment of council action. The Corporation shall council. inform the complainant, the council At the formal request of the Board, and the recipient of all action taken on to be made before January 14, 1976, the the complaint. Governor may appoint a council for the State. Those council members who are § 1603.6 Duties of Corporation upon attorneys admitted to practice in the receipt of notification of violation. State shall be appointed by the Gov- (a) Upon receipt of a notification of ernor after recommendations have an apparent violation, the matters con- been received from the State bar asso- tained therein shall be investigated ciation. In making such appointments, and resolved by the Corporation in ac- it is recommended the the Governor cordance with the Act and rules and consult with other bar associations in regulations issued thereunder. the State, representatives of groups (b) Upon receipt from a council of a concerned with the interests of recipi- notification of an apparent violation, ents, eligible clients and other inter- the Corporation shall allow any recipi- ested groups. It is recommended that ent affected thereby a reasonable time the Governor appoint attorneys who (but in no case less than thirty days) to have interest in and knowledge of the reply to any allegation contained in delivery of quality legal services to the the notication. poor, and that the remaining members (c) The Corporation shall inform the of the council, who are not attorneys, Chairperson of a council of the action, be selected after the Governor has con- if any, the Corporation has taken with sulted with representatives of groups regard to any notification received concerned with the interests of eligible from such council. clients. It is recommended that the Governor seek recommendations from § 1603.7 Organization and procedural recipients in the State before appoint- functioning of council. ing any members to the council. Sixty (a) Within 30 days after the appoint- days prior to the expiration of a mem- ment of the council, and annually ber’s term, the Governor shall notify thereafter, the Governor shall send to those groups mentioned in this Section the Secretary of the Corporation in so that their recommendations may be Washington, DC, a list of the members solicited for purposes of appointment of the council for the State that shall of a new member or reappointment of include the name, address and tele- an incumbent member of the council. phone number of each council member, and indicate which members are attor- § 1603.5 Council purpose and duties. neys. (a) The purpose of the council shall (b) It is recommended that the Gov- be to notify the Corporation of any ap- ernor appoint from among those named parent violation as defined in § 1603.2(b) to the council a Chairperson of the of this chapter. council. (b) In fulfilling the purpose set forth (c) It is recommended that each in paragraph (a) of this section, the council establish at its first meeting council shall forward any apparent vio- such fair and reasonable procedures for lation to the Corporation. The Chair- its operation as it may deem necessary
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to carry out the purpose set forth in ent at its local and administrative of- § 1603.5(a) of this chapter. The proce- fices. dures for operation of the council shall include provisions for notifying the ap- PART 1604—OUTSIDE PRACTICE OF propriate regional director of the Cor- LAW poration of the time and place of any meeting of the council. Sec. (d) It is recommended that a council 1604.1 Purpose. meet at the call of the Chairperson 1604.2 Definitions. thereof, or at the request to the Chair- 1604.3 General policy. person of at least four members there- 1604.4 Compensated outside practice. of, at such times as may be necessary 1604.5 Uncompensated outside practice.
to carry out its duties, but at least an- AUTHORITY: Secs. 1007(a)(4), 1008(e) (42 nually. U.S.C. 2996f(a)(4), 2996g(e)). § 1603.8 Corporation support of coun- SOURCE: 41 FR 18512, May 5, 1976, unless cil. otherwise noted. (a) The Corporation shall inform the § 1604.1 Purpose. Chairperson of each council of the funds available to the council from the This part is designed to permit an at- Corporation for actual and reasonable torney to comply with the reasonable expenses incurred by members of the demands made upon all members of the council to pursue council business. Bar and officers of the Court, so long as (b) It shall be the duty of the Presi- those demands do not hinder fulfill- dent of the Corporation to keep the ment of the attorney’s overriding re- Chairperson of each council informed sponsibility to serve those eligible for of the work of the Corporation. assistance under the Act. (c) The Secretary of the Corporation § 1604.2 Definitions. shall mail annually to each recipient the name and address of the Chair- (a) Attorney, as used in this part, person of the appropriate council and a means a person who is employed full form of notice indicating where com- time in legal assistance activities sup- plaints may be sent. The recipient ported in major part by the Corpora- shall post said name and address of the tion, and who is authorized to practice Chairperson and said notice in plain law in the jurisdiction where assist- public view in each office of the recipi- ance is rendered. ent. (b) Outside practice of law means the provision of legal assistance to a client § 1603.9 Annual report of council. who is not entitled to receive legal as- On or before March 31, 1977, and on or sistance from the employer of the at- before March 31 of each succeeding torney rendering assistance, but does year, a council shall submit to the Cor- not include, among other activities, poration a report of the activities of teaching, consulting, or performing the council during the previous cal- evaluation. ender year. The report may contain comments or suggestions regarding § 1604.3 General policy. how best to provide high quality legal No attorney shall engage in any out- assistance to the poor, and regarding side practice of law if the director of such other matters having to do with the recipient has determined that such provision of legal services to eligible practice is inconsistent with the attor- clients in the State as the council may ney’s full time responsibilities. deem advisable. § 1604.4 Compensated outside practice. § 1603.10 Multi-state recipients. A recipient may permit an attorney Where a recipient has offices in more to engage in the outside practice of law than one State, the council of the for compensation if § 1604.3 is satisfied, State in which the apparent violation and occurred has the responsibility for no- (a) The attorney is newly employed tifying the Corporation and the recipi- and has a professional responsibility to
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close cases from a previous law prac- (b) Give appropriate consideration to tice, and does so as expeditiously as priorities in resource allocation adopt- possible; or ed by the governing body, or required (b) The attorney is acting pursuant by the Act, or Regulations of the Cor- to an appointment made under a court poration; but rule or practice of equal applicability (c) Shall not interfere with the pro- to all attorneys in the jurisdiction, and fessional responsibilities of an attorney remits to the recipient all compensa- to a client. tion received.
§ 1604.5 Uncompensated outside prac- PART 1606—TERMINATION AND tice. DEBARMENT PROCEDURES; RE- A recipient may permit an attorney COMPETITION to engage in uncompensated outside practice of law if § 1604.3 is satisfied, Sec. and the attorney is acting: 1606.1 Purpose. 1606.2 Definitions. (a) Pursuant to an appointment made 1606.3 Grounds for a termination. under a court rule or practice of equal 1606.4 Grounds for debarment. applicability to all attorneys in the ju- 1606.5 Termination and debarment proce- risdiction; or on behalf of; dures. (b) A close friend or family member; 1606.6 Preliminary determination. or 1606.7 Informal conference. (c) A religious, community, or chari- 1606.8 Hearing. table group. 1606.9 Recommended decision. 1606.10 Final decision. 1606.11 Qualifications on hearing proce- PART 1605—APPEALS ON BEHALF dures. OF CLIENTS 1606.12 Time and waiver. 1606.13 Interim and termination funding; re- Sec. programming. 1605.1 Purpose. 1606.14 Recompetition. 1605.2 Definition. AUTHORITY: 42 U.S.C. 2996e (b)(1) and 1605.3 Review of Appeals. 2996f(a)(3); Pub. L. 105–119, 111 Stat. 2440, AUTHORITY: Secs. 1007(a)(7), 1008(e), 42 Secs. 501(b) and (c) and 504; Pub. L. 104–134, U.S.C. 2996f(a)(7), 2996g(e). 110 Stat. 1321. SOURCE: 41 FR 18513, May 5, 1976, unless SOURCE: 63 FR 64643, Nov. 23, 1998, unless otherwise noted. otherwise noted.
§ 1605.1 Purpose. § 1606.1 Purpose. This part is intended to promote effi- The purpose of this rule is to: cient and effective use of Corporation (a) Ensure that the Corporation is funds. It does not apply to any case or able to take timely action to deal with matter in which assistance is not being incidents of substantial noncompliance rendered with funds provided under the by recipients with a provision of the Act. LSC Act, the Corporation’s appropria- tions act or other law applicable to § 1605.2 Definition. LSC funds, a Corporation rule, regula- Appeal means any appellate pro- tion, guideline or instruction, or the ceeding in a civil action as defined by terms and conditions of the recipient’s law or usage in the jurisdiction in grant or contract with the Corpora- which the action is filed. tion; (b) Provide timely and fair due proc- § 1605.3 Review of Appeals. ess procedures when the Corporation The governing body of a recipient has made a preliminary decision to ter- shall adopt a policy and procedure for minate a recipient’s LSC grant or con- review of every appeal to an appellate tract, or to debar a recipient from re- court taken from a decision of any ceiving future LSC awards of financial court or tribunal. The policy adopted assistance; and shall (c) Ensure that scarce funds are pro- (a) Discourage frivolous appeals, and vided to recipients who can provide the
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most effective and economical legal as- with regulations promulgated by the sistance to eligible clients. Corporation. No such reduction shall be imposed except in accordance with § 1606.2 Definitions. regulations promulgated by the Cor- For the purposes of this part: poration. (a) Debarment means an action taken by the Corporation to exclude a recipi- § 1606.3 Grounds for a termination. ent from receiving an additional award (a) A grant or contract may be termi- of financial assistance from the Cor- nated when: poration or from receiving additional (1) There has been a substantial vio- LSC funds from another recipient of lation by the recipient of a provision of the Corporation pursuant to a the LSC Act, the Corporation’s appro- subgrant, subcontract or similar agree- priations act or other law applicable to ment, for the period of time stated in LSC funds, or Corporation rule, regula- the final debarment decision. tion, guideline or instruction, or a (b) Knowing and willful means that term or condition of the recipient’s the recipient had actual knowledge of grant or contract, and the violation oc- the fact that its action or lack thereof curred less than 5 years prior to the constituted a violation and despite date the recipient receives notice of such knowledge, undertook or failed to the violation pursuant to § 1606.6(a); or undertake the action. (2) There has been a substantial fail- (c) Recipient means any grantee or ure by the recipient to provide high contractor receiving financial assist- quality, economical, and effective legal ance from the Corporation under sec- assistance, as measured by generally tion 1006(a)(1)(A) of the LSC Act. accepted professional standards, the (d)(1) Termination means that a re- provisions of the LSC Act, or a rule, cipient’s level of financial assistance regulation, including 45 CFR under its grant or contract with the 1634.9(a)(2), or guidance issued by the Corporation will be reduced in whole or Corporation. in part prior to the expiration of the (b) A determination of whether there term of a recipient’s current grant or has been a substantial violation for the contract. A partial termination will af- purposes of paragraph (a)(1) of this sec- fect only the recipient’s current year’s tion will be based on consideration of funding, unless the Corporation pro- the following criteria: vides otherwise in the final termi- (1) The number of restrictions or re- nation decision. quirements violated; (2) A termination does not include: (2) Whether the violation represents (i) A reduction of funding required by an instance of noncompliance with a law, including a reduction in or rescis- substantive statutory or regulatory re- sion of the Corporation’s appropriation striction or requirement, rather than that is apportioned among all recipi- an instance of noncompliance with a ents of the same class in proportion to non-substantive technical or proce- their current level of funding; dural requirement; (ii) A reduction or deduction of LSC (3) The extent to which the violation support for a recipient under the Cor- is part of a pattern of noncompliance poration’s fund balance regulation at with LSC requirements or restrictions; 45 CFR part 1628; (4) The extent to which the recipient (iii) A recovery of disallowed costs failed to take action to cure the viola- under the Corporation’s regulation on tion when it became aware of the viola- costs standards and procedures at 45 tion; and CFR part 1630; (5) Whether the violation was know- (iv) A withholding of funds pursuant ing and willful. to the Corporation’s Private Attorney Involvement rule at 45 CFR Part 1614; § 1606.4 Grounds for debarment. or (a) The Corporation may debar a re- (v) A reduction of funding of less cipient, on a showing of good cause, than 5 percent of a recipient’s current from receiving an additional award of annual level of financial assistance im- financial assistance from the Corpora- posed by the Corporation in accordance tion.
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(b) As used in paragraph (a) of this terminated and/or that a recipient section, ‘‘good cause’’ means: should be debarred, the Corporation (1) A termination of financial assist- employee who has been designated by ance to the recipient pursuant to part the President as the person to bring 1640 of this chapter; such actions (hereinafter referred to as (2) A termination of financial assist- the ‘‘designated employee’’) shall issue ance in whole of the most recent grant a written notice to the recipient and of financial assistance; the Chairperson of the recipient’s gov- (3) The substantial violation by the erning body. The notice shall: recipient of the restrictions delineated (1) State the grounds for the proposed in § 1610.2 (a) and (b) of this chapter, action; provided that the violation occurred (2) Identify, with reasonable speci- within 5 years prior to the receipt of ficity, any facts or documents relied the debarment notice by the recipient; upon as justification for the proposed (4) Knowing entry by the recipient action; into: (3) Inform the recipient of the pro- (i) A subgrant, subcontract, or other posed sanctions; similar agreement with an entity (4) Advise the recipient of its right to debarred by the Corporation during the request: period of debarment if so precluded by (i) An informal conference under the terms of the debarment; or § 1606.7; and (ii) An agreement for professional (ii) a hearing under § 1606.8; and services with an IPA debarred by the (5) Inform the recipient of its right to Corporation during the period of debar- receive interim funding pursuant to ment if so precluded by the terms of § 1606.13. the debarment; or (b) If the recipient does not request (5) The filing of a lawsuit by a recipi- an informal conference or a hearing ent, provided that the lawsuit: within the time prescribed in § 1606.7(a) (i) Was filed on behalf of the recipi- or § 1606.8(a), the preliminary deter- ent as plaintiff, rather than on behalf mination shall become final. of a client of the recipient; (ii) Named the Corporation, or any § 1606.7 Informal conference. agency or employee of a Federal, State, or local government as a defend- (a) A recipient may submit a request ant; for an informal conference within 30 (iii) Seeks judicial review of an ac- days of its receipt of the proposed deci- tion by the Corporation or such gov- sion. ernment agency that affects the recipi- (b) Within 5 days of receipt of the re- ent’s status as a recipient of Federal quest, the designated employee shall funding, except for a lawsuit that seeks notify the recipient of the time and review of whether the Corporation or place the conference will be held. agency acted outside of its statutory (c) The designated employee shall authority or violated the recipient’s conduct the informal conference. constitutional rights; and (d) At the informal conference, the (iv) Was initiated after the effective designated employee and the recipient date of this rule. shall both have an opportunity to state their case, seek to narrow the issues, § 1606.5 Termination and debarment and explore the possibilities of settle- procedures. ment or compromise. Before a recipient’s grant or contract (e) The designated employee may may be terminated or a recipient may modify, withdraw, or affirm the pre- be debarred, the recipient will be pro- liminary determination in writing, a vided notice and an opportunity to be copy of which shall be provided to the heard as set out in this part. recipient within 10 days of the conclu- sion of the informal conference. § 1606.6 Preliminary determination. (a) When the Corporation has made a § 1606.8 Hearing. preliminary determination that a re- (a) The recipient may make written cipient’s grant or contract should be request for a hearing within 30 days of
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its receipt of the preliminary deter- maintain order, or to avoid delay. Ir- mination or within 15 days of receipt of relevant, immaterial, repetitious or the written determination issued by unduly prejudicial matter may be ex- the designated employee after the con- cluded. clusion of the informal conference. (j) Official notice may be taken of (b) Within 10 days after receipt of a published policies, rules, regulations, request for a hearing, the Corporation guidelines, and instructions of the Cor- shall notify the recipient in writing of poration, of any matter of which judi- the date, time and place of the hearing cial notice may be taken in a Federal and the names of the hearing officer court, or of any other matter whose ex- and of the attorney who will represent istence, authenticity, or accuracy is the Corporation. The time, date and lo- not open to serious question. cation of the hearing may be changed (k) A stenographic or electronic upon agreement of the Corporation and record shall be made in a manner de- the recipient. termined by the hearing officer, and a (c) A hearing officer shall be ap- copy shall be made available to the re- pointed by the President or designee cipient at no cost. and may be an employee of the Cor- (l) The Corporation shall have the poration. The hearing officer shall not initial burden to show grounds for a have been involved in the current ter- termination or debarment. The burden mination or debarment action and the of persuasion shall then shift to the re- President or designee shall determine cipient to show by a preponderance of that the person is qualified to preside evidence on the record that its funds over the hearing as an impartial deci- should not be terminated or that it sion maker. An impartial decision should not be disbarred. maker is a person who has not formed a prejudgment on the case and does not § 1606.9 Recommended decision. have a pecuniary interest or personal (a) Within 20 calendar days after the bias in the outcome of the proceeding. conclusion of the hearing, the hearing (d) The hearing shall be scheduled to officer shall issue a written rec- commence at the earliest appropriate ommended decision which may: date, ordinarily not later than 30 days (1) Terminate financial assistance to after the notice required by paragraph the recipient as of a specific date; or (b) of this section. (2) Continue the recipient’s current (e) The hearing officer shall preside grant or contract, subject to any modi- over and conduct a full and fair hear- fication or condition that may be ing, avoid delay, maintain order, and deemed necessary on the basis of infor- insure that a record sufficient for full mation adduced at the hearing; and/or disclosure of the facts and issues is (3) Debar the recipient from receiving maintained. an additional award of financial assist- (f) The hearing shall be open to the ance from the Corporation. public unless, for good cause and the (b) The recommended decision shall interests of justice, the hearing officer contain findings of the significant and determines otherwise. relevant facts and shall state the rea- (g) The Corporation and the recipient sons for the decision. Findings of fact shall be entitled to be represented by shall be based solely on the record of, counsel or by another person. and the evidence adduced at the hear- (h) At the hearing, the Corporation ing or on matters of which official no- and the recipient each may present its tice was taken. case by oral or documentary evidence, conduct examination and cross-exam- § 1606.10 Final decision. ination of witnesses, examine any doc- (a) If neither the Corporation nor the uments submitted, and submit rebuttal recipient requests review by the Presi- evidence. dent, a recommended decision shall be- (i) The hearing officer shall not be come final 10 calendar days after re- bound by the technical rules of evi- ceipt by the recipient. dence and may make any procedural or (b) The recipient or the Corporation evidentiary ruling that may help to in- may seek review by the President of a sure full disclosure of the facts, to recommended decision. A request shall
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be made in writing within 10 days after § 1606.8(c), to review the matter and receipt of the recommended decision by make a written recommended decision the party seeking review and shall on debarment. state in detail the reasons for seeking (2) The hearing officer’s rec- review. ommendation shall be based solely on (c) The President’s review shall be the information in the administrative based solely on the information in the record of the termination proceedings administrative record of the termi- providing grounds for the debarment nation or debarment proceedings and and any additional submissions, either any additional submissions, either oral oral or in writing, that the hearing of- or in writing, that the President may ficer may request. The recipient shall request. A recipient shall be given a be given a copy of and an opportunity copy of and an opportunity to respond to respond to any additional submis- to any additional submissions made to sions made to the hearing officer. All the President. All submissions and re- submissions and responses made to the sponses made to the President shall be- hearing officer shall become part of the come part of the administrative record. administrative record. (d) As soon as practicable after re- (3) If neither party appeals the hear- ceipt of the request for review of a rec- ing officer’s recommendation within 10 ommended decision, but not later than days of receipt of the recommended de- 30 days after the request for review, the cision, the decision shall become final. President may adopt, modify, or re- (4) Either party may appeal the rec- verse the recommended decision, or di- ommended decision to the President rect further consideration of the mat- who shall review the matter and issue ter. In the event of modification or re- a final written decision pursuant to versal, the President’s decision shall § 1606.9(b). conform to the requirements of (d) All final debarment decisions § 1606.9(b). shall state the effective date of the de- (e) The President’s decision shall be- barment and the period of debarment, come final upon receipt by the recipi- which shall be commensurate with the ent. seriousness of the cause for debarment but shall not be for longer than 6 years. § 1606.11 Qualifications on hearing (e) The Corporation may reverse a de- procedures. barment decision upon request for the (a) Except as modified by paragraph following reasons: (c) of this section, the hearing rights (1) Newly discovered material evi- set out in §§ 1606.6 through 1606.10 shall dence; apply to any action to debar a recipi- (2) Reversal of the conviction or civil ent or to terminate a recipient’s fund- judgment upon which the debarment ing. was based; (b) The Corporation may simulta- (3) Bona fide change in ownership or neously take action to debar and ter- management of a recipient; minate a recipient within the same (4) Elimination of other causes for hearing procedure that is set out in which the debarment was imposed; or §§ 1606.6 through 1606.10 of this part. In (5) Other reasons the Corporation such a case, the same hearing officer deems appropriate. shall oversee both the termination and debarment actions. § 1606.12 Time and waiver. (c) If the Corporation does not simul- (a) Except for the 6-year time limit taneously take action to debar and ter- for debarments in § 1606.11(c), any pe- minate a recipient under paragraph (b) riod of time provided in these rules of this section and initiates a debar- may, upon good cause shown and deter- ment action based on a prior termi- mined, be extended: nation under § 1606.4(b)(1) or (2), the (1) By the designated employee who hearing procedures set out in § 1606.6 issued the preliminary decision until a through 1606.10 shall not apply. In- hearing officer has been appointed; stead: (2) By the hearing officer, until the (1) The President shall appoint a recommended decision has been issued; hearing officer, as described in (3) By the President at any time.
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(b) Failure by the Corporation to SOURCE: 59 FR 65254, Dec. 19, 1994, unless meet a time requirement of this part otherwise noted. does not preclude the Corporation from terminating a recipient’s grant or con- § 1607.1 Purpose. tract with the Corporation. This part is designed to insure that the governing body of a recipient will § 1606.13 Interim and termination be well qualified to guide a recipient in funding; reprogramming. its efforts to provide high-quality legal (a) Pending the completion of termi- assistance to those who otherwise nation proceedings under this part, the would be unable to obtain adequate Corporation shall provide the recipient legal counsel and to insure that the re- with the level of financial assistance cipient is accountable to its clients. provided for under its current grant or contract with the Corporation. § 1607.2 Definitions. (b) After a final decision has been As used in this part, made to terminate a recipient’s grant (a) Attorney member means a board or contract, the recipient loses all member who is an attorney admitted rights to the terminated funds. to practice in a State within the recipi- (c) After a final decision has been ent’s service area. made to terminate a recipient’s grant (b) Board member means a member of or contract, the Corporation may au- a recipient’s governing body or policy thorize termination funding if nec- body. essary to enable the recipient to close (c) Eligible client member means a or transfer current matters in a man- board member who is financially eligi- ner consistent with the recipient’s pro- ble to receive legal assistance under fessional responsibilities to its present the Act and part 1611 of this chapter at clients. the time of appointment to each term (d) Funds recovered by the Corpora- of office to the recipient’s governing tion pursuant to a termination shall be body, without regard to whether the used in the same service area from person actually has received or is re- which they were recovered or will be ceiving legal assistance at that time. reallocated by the Corporation for Eligibility of client members shall be basic field purposes. determined by the recipient or, if the recipient so chooses, by the appointing § 1606.14 Recompetition. organization(s) or group(s) in accord- After a final decision has been issued ance with written policies adopted by by the Corporation terminating finan- the recipient. cial assistance to a recipient in whole (d) Governing body means the board of for any service area, the Corporation directors or other body with authority shall implement a new competitive bid- to govern the activities of a recipient ding process for the affected service receiving funds under § 1006(a)(1)(A) of area. Until a new recipient has been the Act. awarded a grant pursuant to such proc- (e) Policy body means a policy board ess, the Corporation shall take all or other body established by a recipi- practical steps to ensure the continued ent to formulate and enforce policy provision of legal assistance in the with respect to the services provided service area pursuant to § 1634.11. under a grant or contract made under the Act. (f) Recipient means any grantee or PART 1607—GOVERNING BODIES contractor receiving financial assist- ance from the Corporation under Sec. § 1006(a)(1)(A) of the Act. 1607.1 Purpose. 1607.2 Definitions. 1607.3 Composition. § 1607.3 Composition. 1607.4 Functions of a governing body. (a) A recipient shall be incorporated 1607.5 Compensation. in a State in which it provides legal as- 1607.6 Waiver. sistance and shall have a governing AUTHORITY: 42 U.S.C. 2996f(c); Pub. L. 103– body which reasonably reflects the in- 317. terests of the eligible clients in the
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area served and which consists of mem- sible, the variety of interests within bers, each of whom is supportive of the the client community, and eligible cli- purposes of the Act and has an interest ent members should be selected so that in, and knowledge of, the delivery of they reasonably reflect the diversity of quality legal services to the poor. the eligible client population served by (b) At least sixty percent (60%) of a the recipient, including race, gender, governing body shall be attorney mem- ethnicity and other similar factors. bers. (d) The remaining members of a gov- (1) A majority of the members of the erning body may be appointed by the governing body shall be attorney mem- recipient’s governing body or selected bers appointed by the governing in a manner described in the recipient’s body(ies) of one or more State, county bylaws or policies, and the appoint- or municipal bar associations, the ment or selection shall be made so that membership of which represents a ma- the governing body as a whole reason- jority of attorneys practicing law in ably reflects the diversity of the areas the localities in which the recipient served by the recipient, including race, provides legal assistance. ethnicity, gender and other similar fac- (i) Appointments may be made either tors. by the bar association which represents (e) The nonattorney members of a a majority of attorneys in the recipi- governing body shall not be dominated ent’s service area or by bar associa- by persons serving as the representa- tions which collectively represent a tives of a single association, group or majority of the attorneys practicing organization, except that eligible cli- law in the recipient’s service area. ent members may be selected from cli- (ii) Recipients that provide legal as- ent organizations that are composed of sistance in more than one State may coalitions of numerous smaller or re- provide that appointments of attorney gionally based client groups. members be made by the appropriate (f) Members of a governing body may bar association(s) in the State(s) or lo- be selected by appointment, election, cality(ies) in which the recipient’s principal office is located or in which or other means consistent with this the recipient provides legal assistance. part and with the recipient’s bylaws (2) Any additional attorney members and applicable State law. may be selected by the recipient’s gov- (g) Recipients shall make reasonable erning body or may be appointed by and good faith efforts to insure that other organizations designated by the governing body vacancies are filled as recipient which have an interest in the promptly as possible. delivery of legal services to the poor. (h) Recipients may recommend can- (3) Appointments shall be made so as didates for governing body membership to insure that the attorney members to the appropriate bar associations and reasonably reflect the diversity of the other appointing groups and should legal community and the population of consult with the appointing organiza- the areas served by the recipient, in- tions to insure that: cluding race, ethnicity, gender and (1) Appointees meet the criteria for other similar factors. board membership set out in this part, (c) At least one-third of the members including financial eligibility for per- of a recipient’s governing body shall be sons appointed as eligible clients, bar eligible clients when appointed. The admittance requirements for attorney members who are eligible clients shall board members, and the general re- be appointed by a variety of appro- quirements that all members be sup- priate groups designated by the recipi- portive of the purposes of the Act and ent that may include, but are not lim- have an interest in and knowledge of ited to, client and neighborhood asso- the delivery of legal services to the ciations and community-based organi- poor; zations which advocate for or deliver (2) The particular categories of board services or resources to the client com- membership and the board as a whole munity served by the recipient. Recipi- meet the diversity requirements de- ents shall designate groups in a man- scribed in §§ 1607.3(b)(3), 1607.3(c) and ner that reflects, to the extent pos- 1607.3(d);
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(3) Appointees do not have actual and (c) A recipient may adopt policies significant individual or institutional that permit attorney members, subject conflicts of interest with the recipient to terms and conditions applicable to or the recipient’s client community other attorneys in the service area: that could reasonably be expected to (1) To accept referrals of fee-gener- influence their ability to exercise inde- ating cases under part 1609 of these reg- pendent judgment as members of the ulations; recipient’s governing body. (2) To participate in any uncompen- sated private attorney involvement ac- § 1607.4 Functions of a governing tivities supported by the recipient; body. (3) To seek and accept attorneys’ fees (a) A governing body shall have at awarded by a court or administrative least four meetings a year. A recipient body or included in a settlement in shall give timely and reasonable prior cases undertaken pursuant to §§ 1607.5 public notice of all meetings, and all (c) (1) and (2); and meetings shall be public except for (4) To receive reimbursement from those concerned with matters properly the recipient for out-of-pocket ex- discussed in executive session in ac- penses incurred by the attorney mem- cordance with written policies adopted ber as part of the activities undertaken by the recipient’s governing body. pursuant to § 1607.5(c)(2). (b) In addition to other powers and [59 FR 65254, Dec. 19, 1994, as amended at 60 responsibilities that may be provided FR 2330, Jan. 9, 1995] for by State law, a governing body shall establish and enforce broad poli- § 1607.6 Waiver. cies governing the operation of a re- (a) Upon application, the president cipient, but neither the governing body shall waive the requirements of this nor any member thereof shall interfere part to permit a recipient that was with any attorney’s professional re- funded under § 222(a)(3) of the Economic sponsibilities to a client or obligations Opportunity Act of 1964 and, on July 25, as a member of the profession or inter- 1974, had a majority of persons who fere with the conduct of any ongoing were not attorneys on its governing representation. body, to continue such nonattorney (c) A governing body shall adopt by- majority. laws which are consistent with State (b) Upon application, the president law and the requirements of this part. may waive any of the requirements of Recipients shall submit a copy of such this part which are not mandated by bylaws to the Corporation and shall applicable law if a recipient dem- give the Corporation notice of any onstrates that it cannot comply with changes in such bylaws within a rea- them because of: (1) The nature of the sonable time after the change is made. population, legal community or area served; or (2) Special circumstances, § 1607.5 Compensation. including but not limited to, con- (a) While serving on the governing flicting requirements of the recipient’s body of a recipient, no attorney mem- other major funding source(s) or State ber shall receive compensation from law. that recipient, but any member may (c) A recipient seeking a waiver receive a reasonable per diem expense under § 1607.6(b)(1) shall demonstrate payment or reimbursement for actual that it has made diligent efforts to expenses for normal travel and other comply with the requirements of this reasonable out-of-pocket expenses in part. accordance with written policies adopt- (d) As a condition of granting a waiv- ed by the recipient. er under § 1607.6(b)(2) of any of the re- (b) Pursuant to a waiver granted quirements imposed upon governing under § 1607.6(b)(1), a recipient may bodies by § 1607.3, the president shall adopt policies that would permit part- require that a recipient have a policy ners or associates of attorney members body with a membership composed and to participate in any compensated pri- appointed in the manner prescribed by vate attorney involvement activities § 1607.3. Such policy body shall be sub- supported by the recipient. ject to the meeting requirements of
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§ 1607.4(a) and its attorney members § 1608.3 Prohibitions applicable to the shall be subject to the restrictions on Corporation and to recipients. compensation contained in § 1607.5. The (a) Neither the Corporation nor any policy body shall have such specific recipient shall use any political test or powers and responsibilities as the qualification in making any decision, President determines are necessary to enable it to formulate and enforce pol- taking any action, or performing any icy with respect to the services pro- function under the act. vided under the recipient’s LSC grant (b) Neither the Corporation nor any or contract. recipient shall contribute or make available Corporation funds, or any PART 1608—PROHIBITED POLITICAL personnel or equipment ACTIVITIES (1) To any political party or associa- tion; Sec. (2) To the campaign of any candidate 1608.1 Purpose. for public or party office; or 1608.2 Definition. (3) For use in advocating or opposing 1608.3 Prohibitions applicable to the Cor- any ballot measure, initiative, or ref- poration and to recipients. 1608.4 Prohibitions applicable to all employ- erendum. ees. 1608.5 Prohibitions applicable to Corpora- § 1608.4 Prohibitions applicable to all tion employees and staff attorneys. employees. 1608.6 Prohibitions applicable to attorneys (a) No employee shall intentionally and to staff attorneys. identify the Corporation or a recipient 1608.7 Attorney-client relationship. 1608.8 Enforcement. with any partisian or nonpartisan po- litical activity, or with the campaign AUTHORITY: Secs. 1001(5), 1005(b)(2), 1006(b)(3), 1006(b)(5)(B), 1006(d)(3), 1006 (d)(4), of any candidate for public or party of- 1006(e)(1), 1006(e)(2), 1007(a)(6), 1007(b)(2); 42 fice. U.S.C. 2996(5), 2996d(b)(2), 2996e(b)(3), (b) No employee shall use any Cor- 2996e(b)(5)(B), 2996e(d)(3), 2996e(d)(4), poration funds for activities prohibited 2996e(e)(1), 2996e(e)(2), 2996f(a)(6), 2996(b)(2). to attorneys under § 1608.6; nor shall an SOURCE: 43 FR 32773, July 28, 1978, unless employee intentionally identify or en- otherwise noted. courage others to identify the Corpora- tion or a recipient with such activities. § 1608.1 Purpose. This part is designed to insure that § 1608.5 Prohibitions applicable to the Corporation’s resources will be Corporation employees and to staff used to provide high quality legal as- attorneys. sistance and not to support or promote While employed under the act, no political activities or interests. The Corporation employee and no staff at- part should be construed and applied so torney shall, at any time, as to further this purpose without in- (a) Use official authority or influence fringing upon the constitutional rights for the purpose of interfering with or of employees or the professional re- affecting the result of an election or sponsibilities of attorneys to their cli- ents. nomination for office, whether partisan of nonpartisan; § 1608.2 Definition. (b) Directly or indirectly coerce, at- Legal assistance activities, as used in tempt to coerce, command or advise an this part, means any activity. employee of the Corporation or of any (a) Carried out during an employee’s recipient to pay, lend, or contribute working hours; anything of value to a political party, (b) Using resources provided by the or committee, organization, agency or Corporation or by a recipient; or person for political purposes; or (c) That, in fact, provides legal ad- (c) Be a candidate for partisan elec- vice, or representation to an eligible tive public office. client.
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§ 1608.6 Prohibitions applicable to at- (b) Fee-generating case does not in- torneys and to staff attorneys. clude a case where: While engaged in legal assistance ac- (1) A court appoints a recipient or an tivities supported under the act, no at- employee of a recipient to provide rep- torney shall engage in resentation in a case pursuant to a (a) Any political activity, statute or a court rule or practice (b) Any activity to provide voters equally applicable to all attorneys in with transportation to the polls, or to the jurisdiction, or provide similar assistance in connec- (2) A recipient undertakes represen- tion with an election, or tation under a contract with a govern- (c) Any voter registration activity. ment agency or other entity.
§ 1608.7 Attorney-client relationship. § 1609.3 General requirements. Nothing in this part is intended to (a) Except as provided in paragraph prohibit an attorney or staff attorney (b) of this section, a recipient may not from providing any form of legal assist- provide legal assistance in a fee-gener- ance to an eligible client, or to inter- ating case unless: fere with the fulfillment of any attor- (1) The case has been rejected by the ney’s professional responsibilities to a local lawyer referral service, or by two client. private attorneys; or (2) Neither the referral service nor § 1608.8 Enforcement. two private attorneys will consider the This part shall be enforced according case without payment of a consulta- to the procedures set forth in § 1612.5. tion fee. (b) A recipient may provide legal as- PART 1609—FEE-GENERATING sistance in a fee-generating case with- CASES out first attempting to refer the case pursuant to paragraph (a) of this sec- Sec. tion only when: 1609.1 Purpose. (1) An eligible client is seeking bene- 1609.2 Definition. fits under Subchapter II of the Social 1609.3 General requirements. Security Act, 42 U.S.C. 401 et seq., as 1609.4 Recipient policies, procedures and amended, Federal Old Age, Survivors, recordkeeping. and Disability Insurance Benefits; or AUTHORITY: 42 U.S.C. 2996f(b)(1) and Subchapter XVI of the Social Security 2996e(c)(6). Act, 42 U.S.C. 1381 et seq., as amended, SOURCE: 62 FR 19399, Apr. 21, 1997, unless Supplemental Security Income for otherwise noted. Aged, Blind, and Disabled; (2) The recipient, after consultation § 1609.1 Purpose. with appropriate representatives of the This part is designed: private bar, has determined that the (a) To ensure that recipients do not type of case is one that private attor- use scarce legal services resources neys in the area served by the recipient when private attorneys are available to ordinarily do not accept, or do not ac- provide effective representation and cept without prepayment of a fee; or (b) To assist eligible clients to obtain (3) The director of the recipient, or appropriate and effective legal assist- the director’s designee, has determined ance. that referral of the case to the private bar is not possible because: § 1609.2 Definition. (i) Documented attempts to refer (a) Fee-generating case means any similar cases in the past generally have case or matter which, if undertaken on been futile; behalf of an eligible client by an attor- (ii) Emergency circumstances compel ney in private practice, reasonably immediate action before referral can be may be expected to result in a fee for made, but the client is advised that, if legal services from an award to a cli- appropriate, and consistent with pro- ent, from public funds or from the op- fessional responsibility, referral will be posing party. attempted at a later time; or
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(iii) Recovery of damages is not the and 45 CFR part 1608 of the LSC Regu- principal object of the recipient’s cli- lations (Political activities); ent’s case and substantial statutory at- (2) Section 1007(a)(10) of the LSC Act torneys’ fees are not likely to be avail- (Activities inconsistent with profes- able. sional responsibilities); (c) Recipients should refer to 45 CFR (3) Section 1007(b)(1) of the LSC Act part 1642 for restrictions on claiming, and 45 CFR part 1609 of the LSC regula- or collecting and retaining attorneys’ tions (Fee-generating cases); fees. (4) Section 1007(b)(2) of the LSC Act and 45 CFR part 1613 of the LSC Regu- § 1609.4 Recipient policies, procedures and recordkeeping. lations (Criminal proceedings); (5) Section 1007(b)(3) of the LSC Act Each recipient shall adopt written and 45 CFR part 1615 of the LSC Regu- policies and procedures to guide its lations (Actions challenging criminal staff in complying with this part and convictions); shall maintain records sufficient to (6) Section 1007(b)(7) of the LSC Act document the recipient’s compliance and 45 CFR part 1612 of the LSC Regu- with this part. lations (Organizing activities); (7) Section 1007(b)(8) of the LSC Act PART 1610—USE OF NON-LSC (Abortions); FUNDS, TRANSFERS OF LSC (8) Section 1007(b)(9) of the LSC Act FUNDS, PROGRAM INTEGRITY (School desegregation); and (9) Section 1007(b)(10) of the LSC Act Sec. (Violations of Military Selective Serv- 1610.1 Purpose. ice Act or military desertion). 1610.2 Definitions. 1610.3 Prohibition. (b) Activity prohibited by or incon- 1610.4 Authorized use of non-LSC funds. sistent with Section 504 means any activ- 1610.5 Notification. ity prohibited by, or inconsistent with 1610.6 Applicability. the requirements of, the following sec- 1610.7 Transfers of LSC funds. tions of 110 Stat. 1321 (1996) and those 1610.8 Program integrity of recipient. provisions of the Corporation’s regula- 1610.9 Accounting. tions that implement those sections:
AUTHORITY: 42 U.S.C. 2996i; Pub. L. 104–208, (1) Section 504(a)(1) and 45 CFR part 110 Stat. 3009; Pub. L. 104–134, 110 Stat. 1321. 1632 of the LSC Regulations (Redis- tricting); SOURCE: 62 FR 27698, May 21, 1997, unless otherwise noted. (2) Sections 504(a) (2) through (6), as modified by Sections 504 (b) and (e), § 1610.1 Purpose. and 45 CFR part 1612 of the LSC Regu- lations (Legislative and administrative This part is designed to implement advocacy); statutory restrictions on the use of non-LSC funds by LSC recipients and (3) Section 504(a)(7) and 45 CFR part to ensure that no LSC-funded entity 1617 of the LSC Regulations (Class ac- shall engage in any restricted activi- tions); ties and that recipients maintain ob- (4) Section 504(a)(8) and 45 CFR part jective integrity and independence 1636 of the LSC Regulations (Client from organizations that engage in re- identification and statement of facts); stricted activities. (5) Section 504(a)(9) and 45 CFR part 1620 of the LSC Regulations (Prior- § 1610.2 Definitions. ities); (a) Purpose prohibited by the LSC Act (6) Section 504(a)(10) and 45 CFR part means any activity prohibited by the 1635 of the LSC Regulations following sections of the LSC Act and (Timekeeping); those provisions of the Corporation’s (7) Section 504(a)(11) and 45 CFR part regulations that implement such sec- 1626 of the LSC Regulations (Aliens); tions of the Act: (8) Section 504(a)(12) and 45 CFR part (1) Sections 1006(d)(3), 1006(d)(4), 1612 of the LSC Regulations (Public 1007(a)(6), and 1007(b)(4) of the LSC Act policy training);
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(9) Section 504(a)(13) and 45 CFR part less such use is authorized by §§ 1610.4, 1642 of the LSC Regulations (Attor- 1610.6 or 1610.7 of this part. neys’ fees); (10) Section 504(a)(14) (Abortion liti- § 1610.4 Authorized use of non-LSC gation); funds. (11) Section 504(a)(15) and 45 CFR part (a) A recipient may receive tribal 1637 of the LSC Regulations (Prisoner funds and expend them in accordance litigation); with the specific purposes for which (12) Section 504(a)(16), as modified by the tribal funds were provided. Section 504(e), and 45 CFR part 1639 of (b) A recipient may receive public or the LSC Regulations (Welfare reform); IOLTA funds and use them in accord- (13) Section 504(a)(17) and 45 CFR part ance with the specific purposes for 1633 of the LSC Regulations (Drug-re- which they were provided, if the funds lated evictions); and are not used for any activity prohibited (14) Section 504(a)(18) and 45 CFR part by or inconsistent with Section 504. 1638 of the LSC Regulations (In-person (c) A recipient may receive private solicitation). funds and use them in accordance with the purposes for which they were pro- (c) IOLTA funds means funds derived vided, provided that the funds are not from programs established by State used for any activity prohibited by the court rules or legislation that collect LSC Act or prohibited or inconsistent and distribute interest on lawyers’ with Section 504. trust accounts. (d) A recipient may use non-LSC (d) Non-LSC funds means funds de- funds to provide legal assistance to an rived from a source other than the Cor- individual who is not financially eligi- poration. ble for services under part 1611 of this (e) Private funds means funds derived chapter, provided that the funds are from an individual or entity other than used for the specific purposes for which a governmental source or LSC. those funds were provided and are not (f) Public funds means non-LSC funds used for any activity prohibited by the derived from a Federal, State, or local LSC Act or prohibited by or incon- government or instrumentality of a sistent with Section 504. government. For purposes of this part, IOLTA funds shall be treated in the § 1610.5 Notification. same manner as public funds. (a) Except as provided in paragraph (g) Transfer means a payment of LSC (b) of this section, no recipient may ac- funds by a recipient to a person or enti- cept funds from any source other than ty for the purpose of conducting pro- the Corporation, unless the recipient grammatic activities that are nor- provides to the source of the funds mally conducted by the recipient, such written notification of the prohibitions as the representation of eligible cli- and conditions which apply to the ents, or that provide direct support to funds. the recipient’s legal assistance activi- (b) A recipient is not required to pro- ties. Transfer does not include any pay- vide such notification for receipt of ment of LSC funds to vendors, account- contributions of less than $250. ants or other providers of goods and services made by the recipient in the § 1610.6 Applicability. normal course of business. Notwithstanding § 1610.7(a), the pro- (h) Tribal funds means funds received hibitions referred to in §§ 1610.2(a)(4) from an Indian tribe or from a private (Criminal proceedings), (a)(5) (Actions nonprofit foundation or organization challenging criminal convictions), for the benefit of Indians or Indian (b)(7) (Aliens) or (b)(11) (Prisoner liti- tribes. gation) of this part will not apply to: (a) A recipient’s or subrecipient’s § 1610.3 Prohibition. separately funded public defender pro- A recipient may not use non-LSC gram or project; or funds for any purpose prohibited by the (b) Criminal or related cases accepted LSC Act or for any activity prohibited by a recipient or subrecipient pursuant by or inconsistent with Section 504, un- to a court appointment.
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§ 1610.7 Transfers of LSC funds. one or more factors will not be deter- (a) If a recipient transfers LSC funds minative. Factors relevant to this de- to another person or entity, the prohi- termination shall include but will not bitions and requirements referred to in be limited to: (i) The existence of separate per- this part, except as modified by para- sonnel; graphs (b) and (c) of this section, will (ii) The existence of separate ac- apply both to the LSC funds trans- counting and timekeeping records; ferred and to the non-LSC funds of the (iii) The degree of separation from fa- person or entity to whom those funds cilities in which restricted activities are transferred. occur, and the extent of such restricted (b)(1) In regard to the requirement in activities; and § 1610.2(b)(5) on priorities, persons or (iv) The extent to which signs and entities receiving a transfer of LSC other forms of identification which dis- funds shall either: tinguish the recipient from the organi- (i) Use the funds transferred con- zation are present. sistent with the recipient’s priorities; (b) Each recipient’s governing body or must certify to the Corporation within (ii) Establish their own priorities for 180 days of the effective date of this the use of the funds transferred con- part that the recipient is in compliance sistent with 45 CFR part 1620; with the requirements of this section. (2) In regard to the requirement in Thereafter, the recipient’s governing § 1610.2(b)(6) on timekeeping, persons or body must certify such compliance to entities receiving a transfer of LSC the Corporation on an annual basis. funds are required to maintain records of time spent on each case or matter § 1610.9 Accounting. undertaken with the funds transferred. (c) For a transfer of LSC funds to bar Funds received by a recipient from a associations, pro bono programs, pri- source other than the Corporation vate attorneys or law firms, or other shall be accounted for as separate and entities for the sole purpose of funding distinct receipts and disbursements in private attorney involvement activi- a manner directed by the Corporation. ties (PAI) pursuant to 45 CFR part 1614, the prohibitions or requirements of PART 1611—ELIGIBILITY this part shall apply only to the funds transferred. Sec. 1611.1 Purpose. § 1610.8 Program integrity of recipi- 1611.2 Definitions. ent. 1611.3 Maximum income level. 1611.4 Authorized exceptions. (a) A recipient must have objective 1611.5 Determination of eligibility. integrity and independence from any 1611.6 Asset ceilings. organization that engages in restricted 1611.7 Manner of determining eligibility. activities. A recipient will be found to 1611.8 Retainer agreement. have objective integrity and independ- 1611.9 Change in circumstances. ence from such an organization if: APPENDIX A OF PART 1611—LEGAL SERVICES (1) The other organization is a legally CORPORATION 2000 POVERTY GUIDELINES separate entity; AUTHORITY: Secs. 1006(b)(1), 1007(a)(1), (2) The other organization receives Legal Services Corporation Act of 1974; 42 no transfer of LSC funds, and LSC U.S.C. 2996e(b)(1), 2996f(a)(1), 2996f(a)(2)). funds do not subsidize restricted activi- SOURCE: 48 FR 54205, Nov. 30, 1983, unless ties; and otherwise noted. (3) The recipient is physically and fi- nancially separate from the other orga- § 1611.1 Purpose. nization. Mere bookkeeping separation This part is designed to ensure that a of LSC funds from other funds is not recipient will determine eligibility ac- sufficient. Whether sufficient physical cording to criteria that give preference and financial separation exists will be to the legal needs of those least able to determined on a case-by-case basis and obtain legal assistance, and afford suf- will be based on the totality of the ficient latitude for a recipient to con- facts. The presence or absence of any sider local circumstances and its own
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resource limitations. The part also (2) The number of clients who can be seeks to ensure that eligibility is de- served by the resources of the recipi- termined in a manner conducive to de- ent; velopment of an effective attorney-cli- (3) The population who would be eli- ent relationship. gible at and below alternative income levels; and § 1611.2 Definitions. (4) The availability and cost of legal Governmental program for the poor services provided by the private bar in means any Federal, State or local pro- the area. gram that provides benefits of any kind (d) Unless authorized by § 1611.4, no to persons whose eligibility is deter- person whose income exceeds the max- mined on the basis of financial need. imum annual income level established Income means actual current annual by a recipient shall be eligible for legal total cash receipts before taxes of all assistance under the Act. persons who are resident members of, (e) This part does not prohibit a re- and contribute to, the support of a cipient from providing legal assistance family unit. to a client whose annual income ex- Total cash receipts include money ceeds the maximum income level es- wages and salaries before any deduc- tablished here, if the assistance pro- tion, but do not include food or rent in vided the client is supported by funds lieu of wages; income from self-employ- from a source other than the Corpora- ment after deductions for business or tion. farm expenses; regular payments from public assistance; social security; un- § 1611.4 Authorized exceptions. employment and worker’s compensa- tion; strike benefits from union funds; (a) A person whose gross income ex- veterans benefits; training stipends; al- ceeds the maximum income level es- imony, child support and military fam- tablished by a recipient but does not ily allotments or other regular support exceed 150 percent of the national eligi- from an absent family member or bility level (125% of poverty) may be someone not living in the household; provided legal assistance under the Act public or private employee pensions, if: and regular insurance or annuity pay- (1) The person’s circumstances re- ments; and income from dividends, in- quire that eligibility should be allowed terest, rents, royalties or from estates on the basis of one or more of the fac- and trusts. They do not include money tors set forth in § 1611.5(b)(1); or withdrawn from a bank, tax refunds, (2) The person is seeking legal assist- gifts, compensation and/or one-time in- ance to secure benefits provided by a surance payments for injuries sus- governmental program for the poor. tained, and non-cash benefits. (b) In the event that a recipient de- termines to serve a person whose gross § 1611.3 Maximum income level. income exceeds 125% of poverty, that (a) Every recipient shall establish a decision shall be documented and in- maximum annual income level for per- cluded in the client’s file. The recipient sons to be eligible to receive legal as- shall keep such other records as will sistance under the Act. provide information to the Corporation (b) Unless specifically authorized by as to the number of clients so served the Corporation, a recipient shall not and the factual bases for the decisions establish a maximum annual income made. level that exceeds one hundred and twenty-five percent (125 percent) of the § 1611.5 Determination of eligibility. current official Federal Poverty In- (a) The governing body of a recipient come Guidelines. The maximum annual shall adopt guidelines, consistent with income levels are set forth in Appendix these regulations, for determining the A. eligibility of persons seeking legal as- (c) Before establishing its maximum sistance under the Act. By January 30, income level, a recipient shall consider 1984, and annually thereafter, guide- relevant factors including: lines shall be reviewed and appropriate (1) Cost-of-living in the locality; adjustments made.
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(b) In addition to gross income, a re- termination that the person’s present cipient shall consider the other rel- lack of income results from refusal or evant factors listed in paragraphs (b)(1) unwillingness, without good cause, to and (b)(2) of this section before deter- seek or accept suitable employment. mining whether a person is eligible to (3)(A) If a recipient tentatively deter- receive legal assistance. mines to serve a client over the max- (1) Factors which shall be used in the imum income level on the basis of fac- determination of the eligibility of cli- tors listed in § 1611.5(b)(1), the factors ents over the maximum income level listed in § 1611.5(b)(2) shall also be used shall include: before reaching a final determination. (A) Current income prospects, taking (B) If a recipient tentatively deter- into account seasonal variations in in- mines not to serve a client under the come; maximum income level on the basis of (B) Medical expenses, and in excep- factors listed in §1611.5(b)(2), the fac- tional instances, with the prior, writ- tors listed in § 1611.5(b)(1) must also be ten approval of the project director used before reaching a final determina- based on written documentation re- tion. ceived by the recipient and available (c) A recipient may provide legal as- for review by the Corporation, if a per- sistance to a group, corporation, or as- son’s gross income is primarily com- sociation if it is primarily composed of mitted to medical or nursing home ex- persons eligible for legal assistance penses, a person may be served even if under the Act and if it provides infor- that person’s gross income exceeds 150 mation showing that it lacks, and has percent of the national eligibility no practical means of obtaining, funds level; to retain private counsel. (C) Fixed debts and obligations, in- cluding unpaid Federal, state and local § 1611.6 Asset ceilings. taxes from prior years; (a) By January 30, 1984, and annually (D) Child care, transportation, and thereafter, the governing body of the other expenses necessary for employ- recipient shall establish and transmit ment; to the Corporation guidelines incor- (E) Expenses associated with age or porating specific and reasonable asset physical infirmity of resident family ceilings, including both liquid and non- members; and liquid assets, to be utilized in deter- (F) Other significant factors related mining eligibility for services. The to financial inability to afford legal as- guidelines shall consider the economy sistance. of the service area and the relative (2) Factors which shall be used in the cost-of-living of low-income persons so determination of the eligibility of cli- as to ensure the availability of services ents under the maximum income level to those in the greatest economic and shall include: legal need. (A) Current income prospects, taking (b) The guidelines shall be consistent into account seasonal variations in in- with the recipient’s priorities estab- come; lished in accordance with 45 CFR 1620 (B) The availability of private legal and special consideration shall be representation at a low cost with re- given to the legal needs of the elderly, spect to the particular matter in which institutionalized, and handicapped. assistance is sought; (c) Assets considered shall include all (C) The consequences for the indi- liquid and non-liquid assets of all per- vidual if legal assistance is denied; sons who are resident members of a (D) The existence of assets, including family unit, except that a recipient both liquid and nonliquid, which are may exclude the principal residence of available to the applicant and are in a client. The guidelines shall take into excess of the asset ceiling set by the re- account impediments to an individual’s cipient pursuant to § 1611.6; access to assets of the family unit or (E) Other significant factors related household. to financial inability to afford legal as- (d) Reasonable equity value in work- sistance, which may include evidence related equipment which is essential to of a prior administrative or judicial de- the employment or self-employment of
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an applicant or member of a family deny specific allegations relating to unit, shall not be utilized to disqualify that particular client’s financial eligi- an applicant, provided that the owner bility and the recipient’s representa- is attempting to produce income con- tion thereof; and sistent with its fair market value. (4) The specific information sought (e) The governing body may establish by the Corporation is not protected by authority for the project director to the attorney-client privilege. waive the ceilings on minimum allow- able assets in unusual or extremely The information provided to the Cor- meritorious situations. In the event poration by the recipient shall not be that a waiver is granted, that decision disclosed to any person who is not em- shall be documented and included in ployed by the Corporation. Prior to the client’s file. The recipient shall providing the information to the Cor- keep such other records as will provide poration, the recipient shall notify the information to the Corporation as to client that the recipient is required to the number of clients so served and the provide to the Corporation the infor- factual basis for the decisions made. mation sought.
§ 1611.7 Manner of determining eligi- § 1611.8 Retainer agreement. bility. (a) A recipient shall execute a writ- (a) A recipient shall adopt a simple ten retainer agreement, in a form ap- form and procedure to obtain informa- proved by the Corporation, with each tion to determine eligibility in a man- client who receives legal services from ner that promotes the development of the recipient. The retainer agreement trust between attorney and client. The shall be executed when representation form and procedure adopted shall be subject to approval by the Corporation, commences (or, if not possible owing to and the information obtained shall be an emergency situation, as soon there- preserved, in a manner that protects after as is practicable), and shall clear- the identity of the client, for audit by ly identify the relationship between the Corporation. the client and the recipient, the matter (b) If there is substantial reason to in which representation is sought, the doubt the accuracy of the information, nature of the legal services to be pro- a recipient shall make appropriate in- vided, and the rights and responsibil- quiry to verify it, in a manner con- ities of the client. The recipient shall sistent with an attorney-client rela- retain the executed retainer agreement tionship. as part of the client’s file, and shall (c) Information furnished to a recipi- make the agreement available for re- ent by a client to establish financial view by the Corporation in a manner eligibility shall not be disclosed to any which protects the identity of the cli- person who is not employed by the re- ent. cipient in a manner that permits iden- (b) A recipient is not required to exe- tification of the client, without express cute a written retainer agreement written consent of the client, except when the only service to be provided is that the recipient shall provide such brief advice and consultation. information to the Corporation when: (1) The Corporation is investigating § 1611.9 Change in circumstances. allegations that question the financial eligibility of a previously identified cli- If an eligible client becomes ineli- ent and the recipient’s representation gible through a change in cir- thereof; cumstances, a recipient shall dis- (2) The information sought by the continue representation if the change Corporation relates solely to the finan- in circumstances is sufficiently likely cial eligibility of that particular cli- to continue for the client to afford pri- ent; vate legal assistance, and discontinu- (3) The information sought by the ation is not inconsistent with the at- Corporation is necessary to confirm or torney’s professional responsibilities.
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APPENDIX A OF PART 1611—LEGAL SERV- cipients may participate in public rule- ICES CORPORATION 2000 POVERTY making or in efforts to encourage GUIDELINES 1 State or local governments to make funds available to support recipient ac- 48 contiguous Size of family unit Alaska 3 Hawaii 4 states 2 tivities, and when they may respond to requests of legislative and administra- 1 ...... $10,438 $13,038 $11,988 tive officials. 2 ...... 14,063 17,575 16,163 3 ...... 17,688 22,113 20,338 4 ...... 21,313 26,650 24,513 § 1612.2 Definitions. 5 ...... 24,938 31,188 28,688 (a) (1) Grassroots lobbying means any 6 ...... 28,563 35,725 32,863 7 ...... 32,188 40,263 37,038 oral, written or electronically trans- 8 ...... 35,813 44,800 41,213 mitted communication or any adver- 1 The figures in this table represent 125% of the poverty tisement, telegram, letter, article, guidelines by family size as determined by the Department of newsletter, or other printed or written Health and Human Services. 2 For family units with more than eight members, add matter or device which contains a di- $3,625 for each additional member in a family. rect suggestion to the public to contact 3 For family units with more than eight members, add $4,538 for each additional member in a family. public officials in support of or in oppo- 4 For family units with more than eight members, add sition to pending or proposed legisla- $4,175 for each additional member in a family. tion, regulations, executive decisions, [65 FR 10718, Feb. 29, 2000] or any decision by the electorate on a measure submitted to it for a vote. It PART 1612—RESTRICTIONS ON also includes the provision of financial LOBBYING AND CERTAIN OTHER contributions by recipients to, or par- ticipation by recipients in, any dem- ACTIVITIES onstration, march, rally, fundraising drive, lobbying campaign, letter writ- Sec. 1612.1 Purpose. ing or telephone campaign for the pur- 1612.2 Definitions. pose of influencing the course of such 1612.3 Prohibited legislative and adminis- legislation, regulations, decisions by trative activities. administrative bodies, or any decision 1612.4 Grassroots lobbying. by the electorate on a measure sub- 1612.5 Permissible activities using any mitted to it for a vote. funds. (2) Grassroots lobbying does not in- 1612.6 Permissible activities using non-LSC clude communications which are lim- funds. 1612.7 Public demonstrations and activities. ited solely to reporting on the content 1612.8 Training. or status of, or explaining, pending or 1612.9 Organizing. proposed legislation or regulations. 1612.10 Recordkeeping and accounting for (b) (1) Legislation means any action or activities funded with non-LSC funds. proposal for action by Congress or by a 1612.11 Recipient policies and procedures. State or local legislative body which is AUTHORITY: Pub. L. 104–208, 110 Stat. 3009; intended to prescribe law or public pol- Pub. L. 104–134, 110 Stat. 1321, secs. 504(a) (2), icy. The term includes, but is not lim- (3), (4), (5), (6), and (12), 504 (b) and (e); 42 ited to, action on bills, constitutional U.S.C. 2996e(b)(5), 2996f(a) (5) and (6), 2996f(b) amendments, ratification of treaties (4), (6) and (7), and 2996g(e). and intergovernmental agreements, ap- SOURCE: 62 FR 19404, Apr. 21, 1997, unless proval of appointments and budgets, otherwise noted. and approval or disapproval of actions of the executive. § 1612.1 Purpose. (2) Legislation does not include those The purpose of this part is to ensure actions of a legislative body which ad- that LSC recipients and their employ- judicate the rights of individuals under ees do not engage in certain prohibited existing laws; nor does it include legis- activities, including representation be- lation adopted by an Indian Tribal fore legislative bodies or other direct Council. lobbying activity, grassroots lobbying, (c) Public policy means an overall participation in rulemaking, public plan embracing the general goals and demonstrations, advocacy training, procedures of any governmental body and certain organizing activities. The and pending or proposed statutes, part also provides guidance on when re- rules, and regulations.
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(d) (1) Rulemaking means any agency § 1612.3 Prohibited legislative and ad- process for formulating, amending, or ministrative activities. repealing rules, regulations or guide- (a) Except as provided in §§ 1612.5 and lines of general applicability and fu- 1612.6, recipients shall not attempt to ture effect issued by the agency pursu- influence: ant to Federal, State or local rule- (1) The passage or defeat of any legis- making procedures, including: lation or constitutional amendment; (i) The customary procedures that (2) Any initiative, or any referendum are used by an agency to formulate and or any similar procedure of the Con- adopt proposals for the issuance, gress, any State legislature, any local amendment or revocation of regula- council, or any similar governing body tions or other statements of general acting in any legislative capacity; applicability and future effect, such as (3) Any provision in a legislative negotiated rulemaking and ‘‘notice and measure appropriating funds to, or de- comment’’ rulemaking procedures fining or limiting the functions or au- under the Federal Administrative Pro- thority of, the recipient or the Cor- cedure Act or similar procedures used poration; or, by State or local government agencies; (4) The conduct of oversight pro- and ceedings concerning the recipient or (ii) Adjudicatory proceedings that the Corporation. are formal adversarial proceedings to (b) Except as provided in §§ 1612.5 and formulate or modify an agency policy 1612.6, recipients shall not participate in or attempt to influence any rule- of general applicability and future ef- making, or attempt to influence the fect. issuance, amendment or revocation of (2) Rulemaking does not include: any executive order. (i) Administrative proceedings that (c) Recipients shall not use any funds produce determinations that are of par- to pay for any personal service, adver- ticular, rather than general, applica- tisement, telegram, telephone commu- bility and affect only the private nication, letter, printed or written rights, benefits or interests of individ- matter, administrative expense, or re- uals, such as Social Security hearings, lated expense associated with an activ- welfare fair hearings, or granting or ity prohibited in paragraphs (a) and (b) withholding of licenses; in this section. (ii) Communication with agency per- sonnel for the purpose of obtaining in- § 1612.4 Grassroots lobbying. formation, clarification, or interpreta- A recipient shall not engage in any tion of the agency’s rules, regulations, grassroots lobbying. guidelines, policies or practices. (e) Public rulemaking means any rule- § 1612.5 Permissible activities using making proceeding or portion of such any funds. proceeding or procedure that is open to (a) A recipient may provide adminis- the public through notices of proposed trative representation for an eligible rulemaking published in the FEDERAL client in a proceeding that adjudicates REGISTER or similar State or local the particular rights or interests of journals, announcements of public such eligible client or in negotiations hearings on proposed rules or notices of directly involving that client’s legal proposed rulemaking including those rights or responsibilities, including that are routinely sent to interested pre-litigation negotiation and negotia- members of the public, or other similar tion in the course of litigation. notifications to members of the public; (b) A recipient may initiate or par- ticipate in litigation challenging agen- (f) Similar procedure refers to a legis- cy rules, regulations, guidelines or lative process by which matters must policies, unless such litigation is other- be determined by a vote of the elec- wise prohibited by law or Corporation torate. regulations. [62 FR 19404, Apr. 21, 1997; 62 FR 22895, Apr. (c) Nothing in this part is intended to 28, 1997] prohibit a recipient from:
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(1) Applying for a governmental extent that such distribution is re- grant or contract; quired to comply with the request. (2) Communicating with a govern- (c) No employee of the recipient shall mental agency for the purpose of ob- solicit or arrange for a request from taining information, clarification, or any official to testify or otherwise pro- interpretation of the agency’s rules, vide information in connection with regulations, practices, or policies; legislation or rulemaking. (3) Informing clients, other recipi- (d) Recipients shall maintain copies ents, or attorneys representing eligible of all written requests received by the clients about new or proposed statutes, recipient and written responses made executive orders, or administrative in response thereto and make such re- regulations; quests and written responses available (4) Communicating directly or indi- to monitors and other representatives rectly with the Corporation for any of the Corporation upon request. purpose including commenting upon (e) Recipients may use non-LSC existing or proposed Corporation rules, funds to provide oral or written com- regulations, guidelines, instructions ment to an agency and its staff in a and policies; public rulemaking proceeding. (5) Permitting its employees to par- (f) Recipients may use non-LSC funds ticipate in bar association activities, to contact or communicate with, or re- provided that recipient resources are spond to a request from, a State or not used to support and the recipient is local government agency, a State or not identified with activities of bar as- local legislative body or committee, or sociations that are devoted to activi- a member thereof, regarding funding ties prohibited by this part. for the recipient, including a pending (6) Advising a client of the client’s or proposed legislative or agency pro- right to communicate directly with an posal to fund such recipient. elected official; or (7) Participating in activity related § 1612.7 Public demonstrations and ac- to the judiciary, such as the promulga- tivities. tion of court rules, rules of professional (a) During working hours, while pro- responsibility and disciplinary rules. viding legal assistance or representa- § 1612.6 Permissible activities using tion to the recipient’s clients or while non-LSC funds. using recipient resources provided by the Corporation or by private entities, (a) If the conditions of paragraphs (b) no person shall: and (c) of this section are met, recipi- ents and their employees may use non- (1) Participate in any public dem- LSC funds to respond to a written re- onstration, picketing, boycott, or quest from a governmental agency or strike, except as permitted by law in official thereof, elected official, legisla- connection with the employee’s own tive body, committee, or member employment situation; or thereof made to the employee, or to a (2) Encourage, direct, or coerce oth- recipient to: ers to engage in such activities. (1) Testify orally or in writing; (b) No employee of a recipient shall (2) Provide information which may at any time engage in or encourage include analysis of or comments upon others to engage in any: existing or proposed rules, regulations (1) Rioting or civil disturbance; or legislation, or drafts of proposed (2) Activity determined by a court to rules, regulations or legislation; or be in violation of an outstanding in- (3) Participate in negotiated rule- junction of any court of competent ju- making under the Negotiated Rule- risdiction; or making Act of 1990, 5 U.S.C. 561, et seq., (3) Other illegal activity that is in- or comparable State or local laws. consistent with an employee’s respon- (b) Communications made in re- sibilities under applicable law, Cor- sponse to requests under paragraph (a) poration regulations, or the rules of may be distributed only to the party or professional responsibility of the juris- parties that made the request and to diction where the recipient is located other persons or entities only to the or the employee practices law.
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(c) Nothing in this section shall pro- (c) Recipients and their employees hibit an attorney from: may provide legal advice or assistance (1) Informing and advising a client to eligible clients who desire to plan, about legal alternatives to litigation or establish or operate organizations, the lawful conduct thereof; or such as by preparing articles of incor- (2) Taking such action on behalf of a poration and bylaws. client as may be required by profes- sional responsibilities or applicable law § 1612.10 Recordkeeping and account- of any State or other jurisdiction. ing for activities funded with non- LSC funds. § 1612.8 Training. (a) No funds made available by the (a) A recipient may not support or Corporation shall be used to pay for ad- conduct training programs that: ministrative overhead or related costs (1) Advocate particular public poli- associated with any activity listed in cies; § 1612.6. (2) Encourage or facilitate political (b) Recipients shall maintain sepa- activities, labor or anti-labor activi- rate records documenting the expendi- ties, boycotts, picketing, strikes or ture of non-LSC funds for legislative demonstrations, or the development of and rulemaking activities permitted by strategies to influence legislation or § 1612.6. rulemaking; (c) Recipients shall submit semi-an- (3) Disseminate information about nual reports describing their legisla- such policies or activities; or tive activities with non-LSC funds con- (4) Train participants to engage in ducted pursuant to § 1612.6, together activities prohibited by the Act, other with such supporting documentation as applicable law, or Corporation regula- specified by the Corporation. tions, guidelines or instructions. [62 FR 19404, Apr. 21, 1997; 62 FR 22895, Apr. (b) Nothing in this section shall be 28, 1997] construed to prohibit training of any attorneys or paralegals, clients, lay ad- § 1612.11 Recipient policies and proce- vocates, or others involved in the rep- dures. resentation of eligible clients nec- Each recipient shall adopt written essary for preparing them: policies and procedures to guide its (1) To provide adequate legal assist- staff in complying with this part. ance to eligible clients; or (2) To provide advice to any eligible client as to the legal rights of the cli- PART 1613—RESTRICTIONS ON ent. LEGAL ASSISTANCE WITH RE- SPECT TO CRIMINAL PRO- § 1612.9 Organizing. CEEDINGS (a) Recipients may not use funds pro- vided by the Corporation or by private Sec. entities to initiate the formation, or to 1613.1 Purpose. act as an organizer, of any association, 1613.2 Definition. federation, labor union, coalition, net- 1613.3 Prohibition. 1613.4 Authorized representation. work, alliance, or any similar entity. (b) This section shall not be con- AUTHORITY: Sec. 1007(b)(1); 42 U.S.C. strued to apply to: 2996f(b)(1). (1) Informational meetings attended SOURCE: 43 FR 32775, July 28, 1978, unless by persons engaged in the delivery of otherwise noted. legal services at which information about new developments in law and § 1613.1 Purpose. pending cases or matters are discussed; This part is designed to insure that or Corporation funds will not be used to (2) Organizations composed exclu- provide legal assistance with respect to sively of eligible clients formed for the criminal proceedings unless such as- purpose of advising a legal services sistance is required as part of an attor- program about the delivery of legal ney’s responsibilities as a member of services. the bar.
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§ 1613.2 Definition. poration funds involve private attor- Criminal proceeding means the adver- neys in the delivery of legal assistance sary judicial process prosecuted by a to eligible clients. Except as provided public officer and initiated by a formal hereafter, a recipient of Legal Services complaint, information, or indictment Corporation funding shall devote an charging a person with an offense de- amount equal to at least twelve and nominated ‘‘criminal’’ by applicable one-half percent (121⁄2%) of the recipi- law and punishable by death, imprison- ent’s LSC annualized basic field award ment, or a jail sentence. A mis- to the involvement of private attor- demeanor or lesser offense tried in an neys in such delivery of legal services; Indian tribal court is not a ‘‘criminal this requirement is hereinafter some- proceeding’’. times referred to as the ‘‘PAI require- ment’’. Funds received from the Cor- § 1613.3 Prohibition. poration as one-time special grants Corporation funds shall not be used shall not be considered in determining to provide legal assistance with respect a recipient’s PAI requirement. to a criminal proceeding, unless au- (b) Recipients of Native American or thorized by this part. migrant funding shall provide oppor- tunity for involvement in the delivery § 1613.4 Authorized representation. of services by the private bar in a man- Legal assistance may be provided ner which is generally open to broad with respect to a criminal proceeding. participation in those activities under- (a) Pursuant to a court appointment taken with those funds, or shall dem- made under a statute or a court rule or onstrate to the satisfaction of the Cor- practice of equal applicability to all at- poration that such involvement is not torneys in the jurisdiction, if author- feasible. ized by the recipient after a determina- (c) Because the Corporation’s PAI re- tion that it is consistent with the re- quirement is based upon an effort to cipient’s primary responsibility to pro- generate the most possible legal serv- vide legal assistance to eligible clients ices for eligible clients from available, in civil matters; or but limited, resources, recipients (b) When professional responsibility should attempt to assure that the mar- requires representation in a criminal ket value of PAI activities substan- proceeding arising out of a transaction tially exceeds the direct and indirect with respect to which the client is costs being allocated to meet the re- being, or has been, represented by a re- quirements of this Part. cipient. (d) As of January 1, 1986, the term ‘‘private attorney’’ as used in this Part PART 1614—PRIVATE ATTORNEY means an attorney who is not a staff INVOLVEMENT attorney as defined in § 1600.1 of these regulations. Sec. (e) After the effective date of this 1614.1 Purpose. regulation, no PAI funds shall be com- 1614.2 General policy. mitted for direct payment to any at- 1614.3 Range of activities. 1614.4 Procedure. torney who for any portion of the pre- 1614.5 Prohibition of revolving litigation vious two years has been a staff attor- funds. ney as defined in § 1600.1 of these regu- 1614.6 Waivers. lations; provided, however, that, for 1614.7 Failure to comply. the remainder of the 1986 fiscal year, AUTHORITY: Sec. 1007(a)(2)(C) and sec. recipients may honor contractual ar- 1007(a)(3); (42 U.S.C. 2996f(a)(2)(C) and 42 rangements made to such private at- U.S.C. 2996f(a)(3)). torneys if these arrangements were SOURCE: 50 FR 48591, Nov. 26, 1985, unless made before the effective date of this otherwise noted. regulation; provided, further, however, that this paragraph shall not be con- § 1614.1 Purpose. strued to restrict the use of PAI funds (a) This part is designed to ensure in a pro bono or judicare project on the that recipients of Legal Services Cor- same terms that are available to other
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attorneys; and provided further, how- stantial involvement requirement rest ever, that this paragraph shall not be with the recipient through its gov- construed to restrict the payment of erning body, subject to review and PAI funds as a result of work per- evaluation by the Corporation. formed by an attorney who practices in the same firm with such former staff § 1614.3 Range of activities. attorney. (a) Activities undertaken by the re- [50 FR 48591, Nov. 26, 1985, as amended at 51 cipient to meet the requirements of FR 21559, June 13, 1986] this part must include the direct deliv- ery of legal assistance to eligible cli- § 1614.2 General policy. ents through programs such as orga- (a) This part implements the policy nized pro bono plans, reduced fee plans, adopted by the Board of Directors of judicare panels, private attorney con- the Corporation which requires that a tracts, or those modified pro bono plans substantial amount of funds be made which provide for the payment of nomi- available to encourage the involvement nal fees by eligible clients and/or orga- of private attorneys in the delivery of nized referral systems; except that pay- legal assistance to eligible clients ment of attorney’s fees through ‘‘re- through both pro bono and compensated volving litigation fund’’ systems, as de- mechanisms, and that such funds be ex- scribed in § 1614.5 of this part, shall nei- pended in an economic and efficient ther be used nor funded under this part manner. nor funded with any LSC support; (b) In the case of recipients whose (b) Activities undertaken by recipi- service areas are adjacent, coterminous ents to meet the requirements of this or overlapping, the recipients may part may also include, but are not lim- enter into joint efforts to involve the ited to: private attorneys in the delivery of (1) Support provided by private attor- legal services to eligible clients, sub- neys to the recipient in its delivery of ject to the prior approval of the Office legal assistance to eligible clients on of Field Services. In order to be ap- either a reduced fee or pro bono basis proved the joint venture plan must through the provision of community meet the following conditions: legal education, training, technical as- (1) The recipients involved in the sistance, research, advice and counsel; joint venture must plan to expend at co-counseling arrangements; or the use least twelve and one-half percent of private law firm facilities, libraries, (121⁄2%) of the aggregate of their basic computer-assisted legal research sys- field awards on PAI. In the case of re- tems or other resources; and cipients with adjacent service areas, (2) Support provided by the recipient 121⁄2% of each recipient’s grant shall be expended to PAI; provided, however, in furtherance of activities undertaken that such expenditure is subject to pursuant to this Section including the waiver under § 1614.6; provision of training, technical assist- (2) Each recipient in the joint ven- ance, research, advice and counsel, or ture must be a bona fide participant in the use of recipient facilities, libraries, the activities undertaken by the joint computer assisted legal research sys- venture; and tems or other resources. (3) The joint PAI venture must pro- (c) The specific methods to be under- vide an opportunity for involving pri- taken by a recipient to involve private vate attorneys throughout the entire attorneys in the provision of legal as- joint service area(s). sistance to eligible clients will be de- (c) Private attorney involvement termined by the recipient’s taking into shall be an integral part of a total local account the following factors: program undertaken within the estab- (1) The priorities established pursu- lished priorities of that program in a ant to part 1620 of these regulations; manner that furthers the statutory re- (2) The effective and economic deliv- quirement of high quality, economical ery of legal assistance to eligible cli- and effective client-centered legal as- ents; sistance to eligible clients. Decisions (3) The linguistic and cultural bar- concerning implementation of the sub- riers to effective advocacy.
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(4) The actual or potential conflicts those employees have spent on PAI ac- of interest between specific partici- tivities. The timekeeping requirement pating attorneys and individual eligi- does not apply to such employees as re- ble clients; and ceptionists, secretaries, intake per- (5) The substantive and practical ex- sonnel or bookkeepers; however, per- pertise, skills, and willingness to un- sonnel cost allocations for non-attor- dertake new or unique areas of the law ney or non-paralegal staff should be of participating attorneys. based on other reasonable operating (d) Systems designed to provide di- data which is clearly documented; rect services to eligible clients by pri- (ii) Payments to private attorneys vate attorneys on either a pro bono or for support or direct client services reduced fee basis, shall include at a rendered. The recipient shall maintain minimum, the following components: contracts on file which set forth pay- (1) Intake and case acceptance proce- ment systems, hourly rates, and max- dures consistent with the recipient’s imum allowable fees. Bills and/or in- established priorities in meeting the voices from private attorneys shall be legal needs of eligible clients; submitted before payments are made. (2) Case assignments which ensure Encumbrances shall not be included in the referral of cases according to the calculating whether a recipient has nature of the legal problems involved met the requirement of this part; and the skills, expertise, and sub- (iii) Contractual payments to indi- stantive experience of the partici- viduals or organizations that under- pating attorney; take administrative, support, and/or di- (3) Case oversight and follow-up pro- rect services to eligible clients on be- cedures to ensure the timely disposi- half of the recipient consistent with tion of cases to achieve, if possible, the the provisions of this part. Contracts result desired by the client and the ef- concerning transfer of LSC funds for ficient and economical utilization of PAI activities shall require that such recipient resources; and funds be accounted for by the recipient (4) Access by private attorneys to in accordance with LSC guidelines, in- LSC recipient resources, including cluding the requirements of the Audit those of LSC national and state sup- and Accounting Guide for Recipients port centers, that provide back-up on and Auditors and 45 CFR part 1627; substantive and procedural issues of (iv) Other such actual costs as may the law. be incurred by the recipient in this re- (e) The recipient shall demonstrate gard. compliance with this part by utilizing (2) Support and expenses relating to financial systems and procedures and the PAI effort must be reported sepa- maintaining supporting documentation rately in the recipient’s year-end audit. to identify and account separately for This shall be done by establishing a costs related to the PAI effort. Such separate fund or providing a separate systems and records shall meet the re- schedule in the financial statement to quirements of the Corporation’s Audit account for the entire PAI allocation. and Accounting Guide for Recipients Recipients are not required to establish and Auditors and shall have the fol- separate bank accounts to segregate lowing characteristics: funds allocated to PAI. Auditors are re- (1) They shall accurately identify and quired to perform sufficient audit tests account for: to enable them to render an opinion on (i) The recipient’s administrative, the recipient’s compliance with the re- overhead, staff, and support costs re- quirements of this part. lated to PAI activities. Non-personnel (3) In private attorney models, attor- costs shall be allocated on the basis of neys may be reimbursed for actual reasonable operating data. All methods costs and expenses. Attorney’s fees of allocating common costs shall be paid may not exceed 50% of the local clearly documented. If any direct or in- prevailing market rate for that type of direct time of staff attorneys or para- service. legals is to be allocated as a cost to (4) All records pertaining to a recipi- PAI, such costs must be documented by ent’s PAI requirements which do not time sheets accounting for the time contain client confidences or secrets as
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defined by applicable state law shall be (b) No funds received from the Legal made available for inspection and re- Services Corporation shall be used to view by LSC auditors and monitors establish or maintain revolving litiga- during regular business hours. tion fund systems. (c) The prohibition in paragraph (b) § 1614.4 Procedure. of this section does not prevent recipi- (a) The recipient shall develop a plan ents from reimbursing or paying pri- and budget to meet the requirements of vate attorneys for costs and expenses, this part which shall be incorporated provided: as a part of the refunding application (1) The private attorney is rep- or initial grant application. The budget resenting an eligible client in a matter shall be modified as necessary to fulfill in which representation of the eligible this part. That plan shall take into client by the recipient would be al- consideration: lowed under the Act and under the Cor- (1) The legal needs of eligible clients poration’s Regulations; and in the geographical area served by the (2) The private attorney has expended recipient and the relative importance such funds in accordance with a sched- of those needs consistent with the pri- ule previously approved by the recipi- orities established pursuant to section ent’s governing body or, prior to initi- 1007(a)(2)(C) of the Legal Services Cor- ating action in the matter, has re- poration Act (42 U.S.C. 2996f(a)(2)(C)) quested the recipient to advance the and part 1620 of the Regulations (45 funds. CFR part 1620) adopted pursuant there- (d) Nothing in this section shall pre- to; vent a recipient from recovering from a (2) The delivery mechanisms poten- private attorney the amount advanced tially available to provide the oppor- for any costs, expenses, or fees from an tunity for private attorneys to meet award to the attorney for representing the established priority legal needs of an eligible client. eligible clients in an economical and effective manner; and § 1614.6 Waivers. (3) The results of the consultation as (a) While it is the expectation and ex- required below. perience of the Corporation that most (b) The recipient shall consult with basic field programs can effectively ex- significant segments of the client com- pend their PAI requirement, there are munity, private attorneys, and bar as- some circumstances, temporary or per- sociations, including minority and manent, under which the goal of eco- women’s bar associations, in the recipi- nomical and effective use of Corpora- ent’s service area in the development tion funds will be furthered by a par- of its annual plan to provide for the in- tial, or in exceptional circumstances, a volvement of private attorneys in the complete waiver of the PAI require- provision of legal assistance to eligible ment. clients and shall document that each (b) A complete waiver shall be grant- year its proposed annual plan has been ed by the Office of Field Services (OFS) presented to all local bar associations when the recipient shows to the satis- within the recipient’s service area and faction of OFS that: shall summarize their response. (1) Because of the unavailability of qualified private attorneys, an attempt § 1614.5 Prohibition of revolving litiga- to carry out a PAI program would be tion funds. futile; or (a) A revolving litigation fund sys- (2) All qualified private attorneys in tem is a system under which a recipi- the program’s service area either ent systematically encourages the ac- refuse to participate or have conflicts ceptance of fee-generating cases as de- generated by their practice which fined in § 1609.2 of these regulations by render their participation inappro- advancing funds to private attorneys priate. to enable them to pay costs, expenses, (c) A partial waiver shall be granted or attorneys fees for representing cli- by OFS when the recipient shows to ents. the satisfaction of OFS that:
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(1) The population of qualified pri- on behalf of eligible clients through its vate attorneys available to participate PAI program(s). in the program is too small to use the (d) (1) A waiver of special accounting full PAI allocation economically and and bookkeeping requirements of this effectively; or part may be granted by the Audit Divi- (2) Despite the recipient’s best efforts sion with the concurrence of OFS, if too few qualified private attorneys are the recipient shows to the satisfaction willing to participate in the program of the Audit Division of OFS that such to use the full PAI allocation economi- waiver will advance the purpose of this cally and effectively; or part as expressed in §§ 1614.1 and 1614.2. (3) Despite a recipient’s best ef- (2) As provided in 45 CFR 1627.3(c) forts,—including, but not limited to , communicating its problems expending with respect to subgrants, alternatives the required amount to OFS and re- to Corporation audit requirements or questing and availing itself of assist- to the accounting requirements of this ance and/or advice from OFS regarding part may be approved for subgrants by the problem—expenditures already the Audit Division with the concur- made during a program year are insuf- rence of OFS; such alternatives for PAI ficient to meet the PAI requirement, subgrants shall be approved liberally and there is insufficient time to make where necessary to foster increased economical and efficient expenditures PAI participation. during the remainder of a program (e) Waivers of the PAI expenditure year, but in this instance, unless the requirement may be full or partial, shortfall resulted from unforeseen and that is, the Corporation may waive all unusual circumstances, the recipient or some of the required expenditure for shall accompany the waiver request a fiscal year. with a plan to avoid such a shortfall in (1) Applications for waivers of any re- the future; or quirement under this part may be for (4) The recipient uses a fee-for-serv- the current, or next fiscal year. All ice program whose current encum- such applications must be in writing. brances and projected expenditures for Applications for waivers for the cur- the current fiscal year would meet the rent fiscal year must be received by the requirement, but its actual current ex- Corporation during the current fiscal penditures do not meet the require- ment, and could not be increased to do year. so economically and effectively in the (2) At the expiration of a waiver a re- remainder of the program year, or cipient may seek a similar or identical could not be increased to do so in a fis- waiver. cally responsible manner in view of (f) All Waiver requests shall be ad- outstanding encumbrances; or dressed to the Office of Field Services (5) The recipient uses a fee-for-serv- (OFS) or the Audit Division as is ap- ice program and its PAI expenditures propriate under the preceding provi- in the prior year exceeded the twelve sions of this Part. The Corporation and one-half percent (121⁄2%) require- shall make a written response to each ment but, because of variances in the such request postmarked not later timing of work performed by the pri- than thirty (30) days after its receipt. vate attorneys and the consequent bill- If the request is denied, the Corpora- ing for that work, its PAI expenditures tion will provide the recipient with an for the current year fail to meet the explanation and statement of the 1 twelve and one-half percent (12 ⁄2%) re- grounds for denial. If the waiver is to quirement; or be denied because the information sub- (6) If, in the reasonable judgment of mitted is insufficient, the Corporation the recipient’s governing body, it will inform the recipient as soon as would not be economical and efficient possible, both orally and in writing, for the recipient to expend its full about what additional information is 121⁄2% of Corporation funds on PAI ac- tivities, provided that the recipient has needed. Should the Corporation fail to handled and expects to continue to so respond, the request shall be deemed handle at least 121⁄2% of cases brought to be granted.
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§ 1614.7 Failure to comply. ture of habeas corpus seeking to collat- (a) If a recipient fails to comply with erally attack a criminal conviction. the expenditure required by this part § 1615.2 Prohibition. and if that recipient fails without good cause to seek a waiver during the term Except as authorized by this part, no of the grant or contract, the Corpora- Corporation funds shall be used to pro- tion shall withhold from the recipient’s vide legal assistance in an action in the support payments an amount equal to nature of habeas corpus collaterally at- the difference between the amount ex- tacking a criminal conviction if the ac- pended on PAI and twelve and one-half tion percent (121⁄2%) of the recipient’s basic (a) Is brought against an officer of a field award. court, a law enforcement official, or a (b) If a recipient fails with good cause custodian of an institution for persons to seek a waiver, or applies for but does convicted of crimes; and not receive a waiver, or receives a (b) Alleges that the conviction is in- waiver of part of the PAI requirement valid because of any alleged acts or and does not expend the amount re- failures to act by an officer of a court quired to be expended, the PAI expendi- or a law enforcement official. ture requirement for the ensuing year shall be increased for that recipient by § 1615.3 Application of this part. an amount equal to the difference be- This part does not prohibit legal as- tween the amount actually expended sistance— and the amount required to be ex- (a) To challenge a conviction result- pended. ing from a criminal proceeding in (c) Any funds withheld by the Cor- which the defendant received represen- poration pursuant to this section shall tation from a recipient pursuant to be made available by the Corporation Corporation regulations; or for use in providing legal services in (b) Pursuant to a court appointment the recipient’s service area through made under a statute or a court rule or PAI programs. Disbursement of these practice of equal applicability to all at- funds shall be made through a competi- torneys in the jurisdiction, if author- tive solicitation and awarded on the ized by the recipient after a determina- basis of efficiency, quality, creativity, tion that it is consistent with the pri- and demonstrated commitment to PAI mary responsibility of the recipient to service delivery to low-income people. (d) The withholding of funds under provide legal assistance to eligible cli- this section shall not be construed as a ents in civil matters. termination of financial assistance under part 1606 of these regulations or PART 1616—ATTORNEY HIRING a denial of refunding under part 1625 of these regulations. Sec. 1616.1 Purpose. PART 1615—RESTRICTIONS ON AC- 1616.2 Definition. TIONS COLLATERALLY ATTACK- 1616.3 Qualifications. 1616.4 Recommendations. ING CRIMINAL CONVICTIONS 1616.5 Preference to local applicants. 1616.6 Equal employment opportunity. Sec. 1616.7 Language ability. 1615.1 Purpose. 1615.2 Prohibition. AUTHORITY: Secs. 1007(a)(8); 1006(b)(6); 1615.3 Application of this part. 1006(b)(4); (42 U.S.C. 2996f(a)(8); 2996e(b)(6); 2996e(b)(4)). AUTHORITY: Sec. 1007(b)(1); (42 U.S.C. 2996f(b)(1)). SOURCE: 41 FR 38509, Sept. 10, 1976, unless SOURCE: 41 FR 38508, Sept. 10, 1976, unless otherwise noted. otherwise noted. § 1616.1 Purpose. § 1615.1 Purpose. This part is designed to promote a This part prohibits the provision of mutually beneficial relationship be- legal assistance in an action in the na- tween a recipient and the local Bar and
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community, and to insure that a re- § 1616.6 Equal employment oppor- cipient will choose highly qualified at- tunity. torneys for its staff. A recipient shall adopt employment qualifications, procedures, and policies § 1616.2 Definition. that meet the requirements of applica- Community, as used in this part, ble laws prohibiting discrimination in means the geographical area most employment, and shall take affirma- closely corresponding to the area tive action to insure equal employment served by a recipient. opportunity.
§ 1616.3 Qualifications. § 1616.7 Language ability. A recipient shall establish qualifica- In areas where a significant number tions for individual positions for attor- of clients speak a language other than neys providing legal assistance under English as their principal language, a the Act, that may include, among recipient shall adopt employment poli- other relevant factors: cies that insure that legal assistance (a) Academic training and perform- will be provided in the language spoken ance; by such clients. (b) The nature and extent of prior legal experience; (c) Knowledge and understanding of PART 1617—CLASS ACTIONS the legal problems and needs of the poor; Sec. (d) Prior working experience in the 1617.1 Purpose. 1617.2 Definitions. client community, or in other pro- 1617.3 Prohibition. grams to aid the poor; 1617.4 Recipient policies and procedures. (e) Ability to communicate with per- sons in the client community, includ- AUTHORITY: 29 U.S.C. 2996e(d)(5); 110 Stat. ing, in areas where significant numbers 3009 (1996); 110 Stat. 1321 (1996). of eligible clients speak a language SOURCE: 61 FR 63755, Dec. 2, 1996, unless other than English as their principal otherwise noted. language, ability to speak that lan- guage; and § 1617.1 Purpose. (f) Cultural similarity with the client This rule is intended to ensure that community. LSC recipients do not initiate or par- ticipate in class actions. § 1616.4 Recommendations. (a) Before filling an attorney posi- § 1617.2 Definitions. tion, a recipient shall notify the orga- (a) Class action means a lawsuit filed nized Bar in the community of the ex- as, or otherwise declared by the court istence of a vacancy, and of the quali- having jurisdiction over the case to be, fications established for it, and seek a class action pursuant to Rule 23 of recommendations for attorneys who the Federal Rules of Civil Procedure or meet the qualifications established for the comparable State statute or rule of the position. civil procedure applicable in the court (b) A recipient shall similarly notify in which the action is filed. and seek recommendations from other (b)(1) Initiating or participating in any organizations, deemed appropriate by class action means any involvement at the recipient, that have knowledge of any stage of a class action prior to or the legal needs of persons in the com- after an order granting relief. ‘‘Involve- munity unable to afford legal assist- ment’’ includes acting as amicus cu- ance. riae, co-counsel or otherwise providing representation relating to a class ac- § 1616.5 Preference to local applicants. tion. When equally qualified applicants are (2) Initiating or participating in any under consideration for an attorney po- class action does not include representa- sition, a recipient shall give preference tion of an individual client seeking to to an applicant residing in the commu- withdraw from or opt out of a class or nity to be served. obtain the benefit of relief ordered by
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the court, or non-adversarial activities, (b) Establish procedures, consistent including efforts to remain informed with the notice and hearing require- about, or to explain, clarify, educate or ments of section 1011 of the Act, for de- advise others about the terms of an termining whether an employee has order granting relief. violated a prohibition of the Act; and shall establish a policy for determining § 1617.3 Prohibition. the appropriate sanction to be imposed Recipients are prohibited from initi- for a violation, including: ating or participating in any class ac- (1) Administrative reprimand if a vio- tion. lation is found to be minor and unin- tentional, or otherwise affected by § 1617.4 Recipient policies and proce- mitigating circumstances; dures. (2) Suspension and termination of Each recipient shall adopt written employment; and policies and procedures to guide its (3) Other sanctions appropriate for staff in complying with this part. enforcement of the Act; but (c) Before suspending or terminating PART 1618—ENFORCEMENT the employment of any person for vio- PROCEDURES lating a prohibition of the Act, a re- cipient shall consult the Corporation Sec. to insure that its interpretation of the 1618.1 Purpose. Act is consistent with Corporation pol- 1618.2 Definition. icy. 1618.3 Complaints. 1618.4 Duties of Recipients. § 1618.5 Duties of the Corporation. 1618.5 Duties of the Corporation. (a) Whenever there is reason to be- AUTHORITY: Secs. 1006(b)(1), 1006(b)(2), 1006(b)(5), 1007(d), 1008(e); (42 U.S.C. lieve that a recipient or an employee 2996e(b)(1), 2996e(b)(2), 2996e(b)(5), 2996f(d), may have violated the Act, or failed to 2996g(e)). comply with a term of its Corporation grant or contract, the Corporation SOURCE: 41 FR 51608, Nov. 23, 1976, unless otherwise noted. shall investigate the matter promptly and attempt to resolve it through in- § 1618.1 Purpose. formal consultation with the recipient. In order to insure uniform and con- (b) Whenever there is substantial rea- sistent interpretation and application son to believe that a recipient has per- of the Act, and to prevent a question of sistently or intentionally violated the whether the Act has been violated from Act, or, after notice, has failed to take becoming an ancillary issue in any case appropriate remedial or disciplinary undertaken by a recipient, this part es- action to insure compliance by its em- tablishes a systematic procedure for ployees with the Act, and attempts at enforcing compliance with the Act. informal resolution have been unsuc- cessful, the Corporation may proceed § 1618.2 Definition. to suspend or terminate financial sup- As used in this part, Act means the port of the recipient pursuant to the Legal Services Corporation Act or the procedures set forth in part 1612, or rules and regulations issued by the may take other action to enforce com- Corporation. pliance with the Act. § 1618.3 Complaints. PART 1619—DISCLOSURE OF A complaint of a violation of the Act INFORMATION by a recipient or an employee may be made to the recipient, the State Advi- Sec. sory Council, or the Corporation. 1619.1 Purpose. 1619.2 Policy. § 1618.4 Duties of Recipients. 1619.3 Referral to the Corporation. A recipient shall: 1619.4 Exemptions. (a) Advise its employees of their re- AUTHORITY: Sec. 1006(b)(1), (42 U.S.C. sponsibilities under the Act; and 2996e(b)(1)); sec. 1008(e), (42 U.S.C. 2996g(e)).
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SOURCE: 42 FR 4848, Jan. 26, 1977, unless AUTHORITY: 42 U.S.C. 2996f(a)(2); Pub. L. otherwise noted. 104–208, 110 Stat. 3009; Pub. L. 104–134,110 Stat. 1321. § 1619.1 Purpose. SOURCE: 62 FR 19408, Apr. 21, 1997, unless This part is designed to insure disclo- otherwise noted. sure of information that is a valid sub- ject of public interest in the activities § 1620.1 Purpose. of a recipient. This part is designed to provide guid- § 1619.2 Policy. ance to recipients for setting priorities and to ensure that a recipient’s gov- A recipient shall adopt a procedure erning body adopts written priorities for affording the public appropriate ac- for the types of cases and matters, in- cess to the Act, Corporation rules, reg- cluding emergencies, to which the re- ulations and guidelines, the recipient’s cipient’s staff will limit its commit- written policies, procedures, and guide- ment of time and resources. lines, the names and addresses of the members of its governing body, and § 1620.2 Definitions. other materials that the recipient de- termines should be disclosed. The pro- (a) A case is a form of program serv- cedure adopted shall be subject to ap- ice in which an attorney or paralegal of proval by the Corporation. a recipient provides legal services to one or more specific clients, including, § 1619.3 Referral to the Corporation. without limitation, providing represen- If a person requests information, not tation in litigation, administrative required to be disclosed by this part, proceedings, and negotiations, and that the Corporation may be required such actions as advice, providing brief to disclose pursuant to part 1602 of this services and transactional assistance, chapter implementing the Freedom of and assistance with individual Private Information Act, the recipient shall ei- Attorney Involvement (PAI) cases. ther provide the information or inform (b) A matter is an action which con- the person seeking it how to request it tributes to the overall delivery of pro- from the Corporation. gram services but does not involve di- rect legal advice to or legal representa- § 1619.4 Exemptions. tion of one or more specific clients. Ex- Nothing in this part shall require dis- amples of matters include both direct closure of: services, such as community education (a) Any information furnished to a presentations, operating pro se clinics, recipient by a client; providing information about the avail- (b) The work product of an attorney ability of legal assistance, and devel- or paralegal; oping written materials explaining (c) Any material used by a recipient legal rights and responsibilities; and in providing representation to clients; indirect services, such as training, con- (d) Any matter that is related solely tinuing legal education, general super- to the internal personnel rules and vision of program services, preparing practices of the recipient; or and disseminating desk manuals, PAI (e) Personnel, medical, or similar recruitment, intake when no case is files. undertaken, and tracking substantive law developments. PART 1620—PRIORITIES IN USE OF RESOURCES § 1620.3 Establishing priorities. (a) The governing body of a recipient Sec. must adopt procedures for establishing 1620.1 Purpose. priorities for the use of all of its Cor- 1620.2 Definitions. poration and non-Corporation re- 1620.3 Establishing priorities. sources and must adopt a written 1620.4 Establishing policies and procedures for emergencies. statement of priorities, pursuant to 1620.5 Annual review. those procedures, that determines the 1620.6 Signed written agreement. cases and matters which may be under- 1620.7 Reporting. taken by the recipient.
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(b) The procedures adopted must in- § 1620.4 Establishing policies and pro- clude an effective appraisal of the cedures for emergencies. needs of eligible clients in the geo- The governing body of a recipient graphic area served by the recipient, shall adopt written policies and proce- and their relative importance, based on dures to guide the recipient in under- information received from potential or taking emergency cases or matters not current eligible clients that is solicited within the recipient’s established pri- in a manner reasonably calculated to orities. Emergencies include those non- obtain the views of all significant seg- priority cases or matters that require ments of the client population. The ap- immediate legal action to: praisal must also include and be based (a) Secure or preserve the necessities on information from the recipient’s of life, employees, governing body members, (b) Protect against or eliminate a the private bar, and other interested significant risk to the health or safety persons. The appraisal should address of the client or immediate family the need for outreach, training of the members, or recipient’s employees, and support (c) Address other significant legal services. issues that arise because of new and (c) The following factors shall be unforeseen circumstances. among those considered by the recipi- § 1620.5 Annual review. ent in establishing priorities: (1) The suggested priorities promul- (a) Priorities shall be set periodically gated by the Legal Services Corpora- and shall be reviewed by the governing body of the recipient annually or more tion; frequently if the recipient has accepted (2) The appraisal described in para- a significant number of emergency graph (b) of this section; cases outside of its priorities. (3) The population of eligible clients (b) The following factors should be in the geographic areas served by the among those considered in determining recipient, including all significant seg- whether the recipient’s priorities ments of that population with special should be changed: legal problems or special difficulties of (1) The extent to which the objectives access to legal services; of the recipient’s priorities have been (4) The resources of the recipient; accomplished; (5) The availability of another source (2) Changes in the resources of the re- of free or low-cost legal assistance in a cipient; particular category of cases or mat- (3) Changes in the size, distribution, ters; or needs of the eligible client popu- (6) The availability of other sources lation; and of training, support, and outreach serv- (4) The volume of non-priority emer- ices; gency cases or matters in a particular (7) The relative importance of par- legal area since priorities were last re- ticular legal problems to the individual viewed. clients of the recipient; § 1620.6 Signed written agreement. (8) The susceptibility of particular problems to solution through legal All staff who handle cases or mat- processes; ters, or are authorized to make deci- sions about case acceptance, must sign (9) Whether legal efforts by the re- a simple agreement developed by the cipient will complement other efforts recipient which indicates that the sig- to solve particular problems in the natory: area served; (a) Has read and is familiar with the (10) Whether legal efforts will result priorities of the recipient; in efficient and economic delivery of (b) Has read and is familiar with the legal services; and definition of an emergency situation (11) Whether there is a need to estab- and the procedures for dealing with an lish different priorities in different emergency that have been adopted by parts of the recipient’s service area. the recipient; and
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(c) Will not undertake any case or or committees, composed of lawyer and matter for the recipient that is not a client members of the governing body priority or an emergency. in approximately the same proportion in which they are on the governing § 1620.7 Reporting. body. (a) The recipient shall report to the recipient’s governing body on a quar- § 1621.3 Complaints about legal assist- terly basis information on all emer- ance. gency cases or matters undertaken (a) A recipient shall establish proce- that were not within the recipient’s dures for determining the validity of a priorities, and shall include a rationale complaint about the manner or quality for undertaking each such case or mat- of legal assistance that has been ren- ter. (b) The recipient shall report annu- dered. ally to the Corporation, on a form pro- (b) The procedures shall provide at vided by the Corporation, information least: on all emergency cases or matters un- (1) Information to a client at the dertaken that were not within the re- time of the initial visit about how to cipient’s priorities. make a complaint, and (c) The recipient shall submit to the (2) Prompt consideration of each Corporation and make available to the complaint by the director of the recipi- public an annual report summarizing ent, or the director’s designee, and, if the review of priorities; the date of the the director of the recipient is unable most recent appraisal; the timetable to resolve the matter, for the future appraisal of needs and (3) An opportunity for a complainant evaluation of priorities; mechanisms to submit an oral and written state- which will be utilized to ensure effec- ment to a grievance committee estab- tive client participation in priority- lished by the governing body. The com- setting; and any changes in priorities. plainant may be accompanied by an- other person. Upon request, the recipi- PART 1621—CLIENT GRIEVANCE ent shall transcribe a brief written PROCEDURE statement, dictated by the complain- ant, for inclusion in the recipient’s Sec. complaint file. 1621.1 Purpose. 1621.2 Grievance Committee. (c) A file containing every complaint 1621.3 Complaints about legal assistance. and a statement of its disposition shall 1621.4 Complaints about denial of assist- be preserved for examination by the ance. Corporation. The file shall include any AUTHORITY: Sec. 1006(b)(1), 41 U.S.C. written statement submitted by the 2996e(b)(1); sec. 1006(b)(3), 42 U.S.C. complainant. 2996e(b)(3); sec. 1007(a)(1), 42 U.S.C. 2996f(a)(1). SOURCE: 42 FR 37551, July 22, 1977, unless § 1621.4 Complaints about denial of as- otherwise noted. sistance. A recipient shall establish a simple § 1621.1 Purpose. procedure for review of a decision that By providing an effective remedy for a person is financially ineligible, or a person who believes that legal assist- that assistance is prohibited by the Act ance has been denied improperly, or or Corporation Regulations, or by pri- who is dissatisfied with the assistance orities established by the recipient pur- provided, this part seeks to insure that suant to section 1620. The procedure every recipient will be accountable to shall include information about how to those it is expected to serve, and will provide the legal assistance required by make a complaint, adequate notice, an the Act. opportunity to confer with the director of the recipient or the director’s des- § 1621.2 Grievance Committee. ignee, and, to the extent practicable, The governing body of a recipient with a representative of the governing shall establish a grievance committee body.
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PART 1622—PUBLIC ACCESS TO General Counsel or a member des- MEETINGS UNDER THE GOVERN- ignated by a council to act as its chief MENT IN THE SUNSHINE ACT legal officer. Meetings means the deliberations of a Sec. quorum of the Board, or of any com- 1622.1 Purpose and scope. mittee, or of a council, when such de- 1622.2 Definitions. liberations determine or result in the 1622.3 Open meetings. joint conduct or disposition of Corpora- 1622.4 Public announcement of meetings. tion business, but does not include de- 1622.5 Grounds on which meetings may be liberations about a decision to open or closed or information withheld. 1622.6 Procedures for closing discussion or close a meeting, a decision to withhold withholding information. information about a meeting, or the 1622.7 Certification by the General Counsel. time, place, or subject of a meeting. 1622.8 Records of closed meetings. Public observation means the right of 1622.9 Emergency procedures. any member of the public to attend and 1622.10 Report to Congress. observe a meeting within the limits of AUTHORITY: Sec. 1004(g), Pub. L. 95–222, 91 reasonable accommodations made Stat. 1619, (42 U.S.C. 2996c(g)). available for such purposes by the Cor- SOURCE: 49 FR 30940, Aug. 2, 1984, unless poration, but does not include any otherwise noted. right to participate unless expressly in- vited by the Chairman of the Board of § 1622.1 Purpose and scope. Directors, and does not include any This part is designed to provide the right to disrupt or interfere with the public with full access to the delibera- disposition of Corporation business. tions and decisions of the Board of Di- Publicly available for the purposes of rectors of the Legal Services Corpora- § 1622.6(e) means to be procurable either tion, committees of the Board, and from the Secretary of the Corporation state Advisory Councils, while main- at the site of the meeting or from the taining the ability of those bodies to Office of Government Relations at Cor- carry out their responsibilities and poration Headquarters upon reasonable protecting the rights of individuals. request made during business hours. Quorum means the number of Board § 1622.2 Definitions. or committee members authorized to Board means the Board of Directors conduct Corporation business pursuant of the Legal Services Corporation. to the Corporation’s By-laws, or the Committee means any formally des- number of council members authorized ignated subdivision of the Board estab- to conduct its business. lished pursuant to § 1601.27 of the By- Secretary means the Secretary of the Laws of the Corporation. Corporation, or, in the absence of the Council means a state Advisory Coun- Secretary of the Corporation, a person cil appointed by a state Governor or appointed by the Chairman of the the Board pursuant to section 1004(f) of meeting to fulfill the duties of the Sec- the Legal Services Corporation Act of retary, or a member designated by a 1974, 42 U.S.C. 2996c(f). council to act as its secretary. Director means a voting member of the Board or a Council. Reference to § 1622.3 Open meetings. actions by or communications to a ‘‘Director’’ means action by or commu- Every meeting of the Board, a com- nications to Board members with re- mittee or a council shall be open in its spect to proceedings of the Board, com- entirety to public observation except mittee members with respect to pro- as otherwise provided in § 1622.5. ceedings of their committees, and council members with respect to pro- § 1622.4 Public announcement of meet- ceedings of their councils. ings. General Counsel means the General (a) Public announcement shall be Counsel of the Corporation, or, in the posted of every meeting. The an- absence of the General Counsel of the nouncement shall include: (1) The Corporation, a person designated by time, place, and subject matter to be the President to fulfill the duties of the discussed;
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(2) Whether the meeting or a portion § 1622.5 Grounds on which meetings thereof is to be open or closed to public may be closed or information with- observation; and held. (3) The name and telephone number Except when the Board or council of the official designated by the Board, finds that the public interest requires committee, or council to respond to re- otherwise, a meeting or a portion quests for information about the meet- thereof may be closed to public obser- ing. vation, and information pertaining to (b) The announcement shall be posted such meeting or portion thereof may be at least seven calendar days before the withheld, if the Board or council deter- meeting, unless a majority of the Di- mines that such meeting or portion rectors determines by a recorded vote thereof, or disclosure of such informa- that Corporation business requires a tion, will more probably than not: meeting on fewer than seven days no- (a) Relate solely to the internal per- tice. In the event that such a deter- sonnel rules and practices of the Cor- mination is made, public announce- poration; ment shall be posted at the earliest (b) Disclose matters specifically ex- practicable time. empted from disclosure by statute (c) Each public announcement shall (other than the Freedom of Informa- be posted at the offices of the Corpora- tion Act, 5 U.S.C. 552): Provided, That tion in an area to which the public has such statute (1) requires that the mat- access, and promptly submitted to the ters be withheld from the public in FEDERAL REGISTER for publication. such a manner as to leave no discretion Reasonable effort shall be made to on the issue, or communicate the announcement of a (2) Establishes particular types of Board or committee meeting to the matters to be withheld; chairman of each council and the gov- (c) Disclose trade secrets and com- erning body and the program director mercial or financial information ob- of each recipient of funds from the Cor- tained from a person and privileged or poration, and of a council meeting to confidential; the governing body and program direc- (d) Involve accusing any person of a tor of each recipient within the same crime or formally censuring any per- State. son; (d) An amended announcement shall (e) Disclose information of a personal be issued of any change in the informa- nature where disclosure would con- tion provided by a public announce- stitute a clearly unwarranted invasion ment. Such changes shall be made in of personal privacy; the following manner: (f) Disclose investigatory records (1) The time or place of a meeting compiled for the purpose of enforcing may be changed without a recorded the Act or any other law, or informa- vote. tion which if written would be con- (2) The subject matter of a meeting, tained in such records, but only to the or a decision to open or close a meeting extent that production of such records or a portion thereof, may be changed or information would: (1) Interfere with by recorded vote of a majority of the enforcement proceedings, Directors that Corporation business so (2) Deprive a person of a right to a requires and that no earlier announce- fair trial or an impartial adjudication, ment of the change was possible. (3) Constitute an unwarranted inva- sion of personal privacy, An amended public announcement (4) Disclose the identity of a con- shall be made at the earliest prac- fidential source, ticable time and in the manner speci- (5) Disclose investigative techniques fied by § 1622.4 (a) and (c). In the event and procedures, or that changes are made pursuant to (6) Endanger the life or physical safe- § 1622.4(d)(2), the amended public an- ty of law enforcement personnel; nouncement shall also include the vote (g) Disclose information the pre- of each Director upon such change. mature disclosure of which would be [49 FR 30940, Aug. 2,1984, as amended at 50 FR likely to frustrate significantly imple- 30714, July 29,1985] mentation of a proposed Corporation
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action, except that this paragraph promptly communicate the request to shall not apply in any instance where the Directors, and a recorded vote as the Corporation has already disclosed required by paragraph (a) of this sec- to the public the content or nature of tion shall be taken if any Director so its proposed action, or where the Cor- requests. poration is required by law to make (d) With respect to each vote taken such disclosure on its own initiative pursuant to paragraphs (a) through (c) prior to taking final action on such of this section, the vote of each Direc- proposal; or tor participating in the vote shall be (h) Specifically concern the Corpora- recorded and no proxies shall be al- tion’s participation in a civil action or lowed. proceeding, an action in a foreign court (e) With respect to each vote taken or international tribunal, or an arbi- pursuant to paragraphs (a) through (c) tration, or the initiation, conduct, or of this section, the Corporation shall, disposition by the Corporation of a par- within one business day, make publicly ticular case involving a determination available: on the record after opportunity for a (1) A written record of the vote of hearing. each Director on the question; (2) A full written explanation of the § 1622.6 Procedures for closing discus- action closing the meeting, portion(s) sion or withholding information. thereof, or series of meetings, with ref- (a) No meeting or portion of a meet- erence to the specific exemptions listed ing shall be closed to public observa- in § 1622.5, including a statement of rea- tion, and no information about a meet- sons as to why the specific discussion ing shall be withheld from the public, comes within the cited exemption and except by a recorded vote of a majority a list of all persons expected to attend of the Directors with respect to each the meeting(s) or portion(s) thereof and meeting or portion thereof proposed to their affiliation. be closed to the public, or with respect [49 FR 30940, Aug. 2,1984, as amended at 50 FR to any information that is proposed to 30714, July 29,1985] be withheld. (b) A separate vote of the Directors § 1622.7 Certification by the General shall be taken with respect to each Counsel. meeting or portion thereof proposed to Before a meeting or portion thereof be closed to the public, or with respect is closed, the General Counsel shall to any information which is proposed publicly certify that, in his opinion, to be withheld; except, a single vote the meeting may be so closed to the may be taken with respect to a series public and shall state each relevant ex- of meetings or portions thereof which emption. A copy of the certification, are proposed to be closed to the public, together with a statement from the or with respect to any information con- presiding officer of the meeting setting cerning such series of meetings, so long forth the time and place of the meeting as each meeting in such series involves and the persons present, shall be re- the same particular matters and is tained by the Corporation. scheduled to be held no more than thir- ty days after the initial meeting in § 1622.8 Records of closed meetings. such series. (a) The Secretary shall make a com- (c) Whenever any person’s interest plete transcript or electronic recording may be directly affected by a matter to adequate to record fully the pro- be discussed at a meeting, the person ceedings of each meeting or portion may request that a portion of the thereof closed to the public, except meeting be closed to public observation that in the case of meeting or any por- by filing a written statement with the tion thereof closed to the public pursu- Secretary. The statement shall set ant to paragraph (h) of § 1622.5, a tran- forth the person’s interest, the manner script, a recording, or a set of minutes in which that interest will be affected shall be made. at the meeting, and the grounds upon Any such minutes shall describe all which closure is claimed to be proper matters discussed and shall provide a under § 1622.5. The Secretary shall summary of any actions taken and the
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reasons therefor, including a descrip- public, the number of meetings or por- tion of each Director’s views expressed tions of meetings closed to the public, on any item and the record of each Di- the reasons for closing such meetings rector’s vote on the question. All docu- or portions thereof, and a description ments considered in connection with of any litigation brought against the any action shall be identified in the Corporation under 5 U.S.C. 552b, includ- minutes. ing any costs assessed against the Cor- (b) A complete copy of the transcript, poration in such litigation. recording, or minutes required by para- graph (a) of this section shall be main- tained at the Corporation for a Board PART 1623—SUSPENSION or committee meeting, and at the ap- PROCEDURES propriate Regional Office for a council meeting, for a period of two years after Sec. the meeting, or until one year after the 1623.1 Purpose. conclusion of any Corporation pro- 1623.2 Definitions. ceeding with respect to which the 1623.3 Grounds for suspension. meeting was held, whichever occurs 1623.4 Suspension procedures. later. 1623.5 Time extensions and waiver. (c) The Corporation shall make avail- 1623.6 Interim funding. able to the public all portions of the AUTHORITY: 42 U.S.C. 2996e(b)(1); Pub. L. transcript, recording, or minutes re- 104–134, 110 Stat. 1321, Sec. 509; Pub. L. 105– quired by paragraph (a) of this section 119, 111 Stat. 2440, Sec. 501(b). that do not contain information that may be withheld under § 1622.5. A copy SOURCE: 63 FR 64648, Nov. 23, 1998, unless of those portions of the transcript, re- otherwise noted. cording, or minutes that are available to the public shall be furnished to any § 1623.1 Purpose. person upon request at the actual cost The purpose of this rule is to: of duplication or transcription. (a) Ensure that the Corporation is (d) Copies of Corporation records able to take prompt action when nec- other than notices or records prepared essary to safeguard LSC funds or to en- under this part may be pursued in ac- sure the compliance of a recipient with cordance with part 1602 of these regula- applicable provisions of law, or a rule, tions. regulation, guideline or instruction § 1622.9 Emergency procedures. issued by the Corporation, or the terms and conditions of a recipient’s grant or If, in the opinion of the Chairman, contract with the Corporation; and the Directors are rendered incapable of conducting a meeting by the acts or (b) Provide procedures for prompt re- conduct of any members of the public view that will ensure informed delib- present at the meeting, the Directors eration by the Corporation when it has may thereupon determine by a re- made a proposed determination that fi- corded vote of the majority of the num- nancial assistance to a recipient should ber of Directors present at the meeting be suspended. that the Chairman or presiding officer of the Board shall have the authority § 1623.2 Definitions. to have such members of the public For the purposes of this part: who are responsible for such acts or (a) Knowing and willful means that conduct removed from the meeting. the recipient had actual knowledge of [50 FR 30714, July 29,1985] the fact that its action or lack thereof constituted a violation and despite § 1622.10 Report to Congress. such knowledge, undertook or failed to The Corporation shall report to the undertake the action. Congress annually regarding its com- (b) Recipient means any grantee or pliance with the requirements of the contractor receiving legal assistance Government in the Sunshine Act, 5 from the Corporation under section U.S.C. 552(b), including a tabulation of 1006(a)(1)(A) of the LSC Act. the number of meetings open to the
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(c) Suspension means an action taken ommendation by the Office of Inspec- during the term of the recipient’s cur- tor General when the recipient has rent grant or contract with the Cor- failed to have an acceptable audit in poration that withholds financial as- accordance with the guidance promul- sistance to a recipient, in whole or in gated by the Corporation’s Office of In- part, until the end of the suspension spector General. period pending corrective action by the recipient or a decision by the Corpora- § 1623.4 Suspension procedures. tion to initiate termination pro- (a) When the Corporation has made a ceedings. proposed determination, based on the grounds set out in § 1623.3, that finan- § 1623.3 Grounds for suspension. cial assistance to a recipient should be (a) Financial assistance provided to a suspended, the Corporation shall serve recipient may be suspended when the a written proposed determination on Corporation determines that there has the recipient. The proposed determina- been a substantial violation by the re- tion shall: cipient of an applicable provision of (1) State the grounds and effective law, or a rule, regulation, guideline or date for the proposed suspension; instruction issued by the Corporation, (2) Identify, with reasonable speci- or a term or condition of the recipi- ficity, any facts or documents relied ent’s current grant or contract with upon as justification for the suspen- the Corporation; and the Corporation sion; has reason to believe that prompt ac- tion is necessary to: (3) Specify what, if any, corrective (1) Safeguard LSC funds; or action the recipient can take to avoid (2) Ensure immediate corrective ac- or end the suspension; tion necessary to bring a recipient into (4) Advise the recipient that it may compliance with an applicable provi- request, within 5 days of receipt of the sion of law, or a rule, regulation, guide- proposed determination, an informal line or instruction issued by the Cor- meeting with the Corporation at which poration, or the terms and conditions it may attempt to show that the pro- of the recipient’s grant or contract posed suspension should not be im- with the Corporation. posed; and (b) A determination of whether there (5) Advise the recipient that, within has been a substantial violation for the 10 days of its receipt of the proposed purposes of paragraph (a) of this sec- determination and without regard to tion will be based on consideration of whether it requests an informal meet- the following criteria: ing, it may submit written materials in (1) The number of restrictions or re- opposition to the proposed suspension. quirements violated; (b) If the recipient requests an infor- (2) Whether the violation represents mal meeting with the Corporation, the an instance of noncompliance with a Corporation shall designate the time substantive statutory or regulatory re- and place for the meeting. The meeting striction or requirement, rather than shall occur within 5 days after the re- an instance of noncompliance with a cipient’s request is received. non-substantive technical or proce- (c) The Corporation shall consider dural requirement; any written materials submitted by (3) The extent to which the violation the recipient in opposition to the pro- is part of a pattern of noncompliance posed suspension and any oral presen- with LSC requirements or restrictions; tation or written materials submitted (4) The extent to which the recipient by the recipient at an informal meet- failed to take action to cure the viola- ing. If, after considering such mate- tion when it became aware of the viola- rials, the Corporation determines that tion; and the recipient has failed to show that (5) Whether the violation was know- the suspension should not become ef- ing and wilfull. fective, the Corporation may issue a (c) Financial assistance provided to a written final determination to suspend recipient may also be suspended by the financial assistance to the recipient in Corporation pursuant to a rec- whole or in part and under such terms
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and conditions the Corporation deems PART 1624—PROHIBITION AGAINST appropriate and necessary. DISCRIMINATION ON THE BASIS (d) The final determination shall be OF HANDICAP promptly transmitted to the recipient in a manner that verifies receipt of the Sec. determination by the recipient, and the 1624.1 Purpose. suspension shall become effective when 1624.2 Application. the final determination is received by 1624.3 Definitions. the recipient or on such later date as is 1624.4 Discrimination prohibited. specified therein. 1624.5 Accessibility of legal services. (e) The Corporation may at any time 1624.6 Employment. 1624.7 Self-evaluation. rescind or modify the terms of the final 1624.8 Enforcement. determination to suspend and, on writ- ten notice to the recipient, may rein- AUTHORITY: 49 U.S.C. 794; 42 U.S.C. 2996f(a) state the suspension without further (1) and (3). proceedings under this part. Except as SOURCE: 44 FR 55178, Sept. 25, 1979, unless provided in paragraph (f) of this sec- otherwise noted. tion, the total time of a suspension shall not exceed 30 days, unless the § 1624.1 Purpose. Corporation and the recipient agree to The purpose of this part is to assist a continuation of the suspension for up and provide guidance to legal services to a total of 60 days without further programs supported in whole or in part proceedings under this part. by Legal Services Corporation funds in (f) When the suspension is based on removing any impediments that may the grounds in § 1623.3(c), a recipient’s exist to the provision of legal assist- funds may be suspended until an ac- ance to handicapped persons eligible ceptable audit is completed. for such assistance in accordance with section 504 of the Rehabilitation Act of § 1623.5 Time extensions and waiver. 1973, as amended, 29 U.S.C. section 794 (a) Except for the time limits in and with sections 1007(a) (1) and (3) of § 1623.4(e), any period of time provided the Legal Services Corporation Act, as in this part may be extended by the amended, 42 U.S.C. sections 2996f(a) (1) Corporation for good cause. Requests and (3), with respect to the provision of for extensions of time shall be consid- services to and employment of handi- ered in light of the overall objective capped persons. that the procedures prescribed by this part ordinarily shall be concluded § 1624.2 Application. within 30 days of the service of the pro- This part applies to each legal serv- posed determination. ices program receiving financial assist- (b) Any other provision of this part ance from the Legal Services Corpora- may be waived or modified by agree- tion. ment of the recipient and the Corpora- tion for good cause. § 1624.3 Definitions. (c) Failure by the Corporation to As used in this part, the term: meet a time requirement of this part (a) Legal services program means any shall not preclude the Corporation recipient, as defined by § 1600.1 of these from suspending a recipient’s grant or regulations, or any other public or pri- contract with the Corporation. vate agency, institution, organization, or other entity, or any person to which § 1623.6 Interim funding. or to whom financial assistance is ex- (a) Pending the completion of suspen- tended by the Legal Services Corpora- sion proceedings under this part, the tion directly or through another agen- Corporation shall provide the recipient cy, institution, organization, entity or with the level of financial assistance person, including any successor, as- provided for under its current grant or signee, or transferee of a legal services contract with the Corporation. program, but does not include the ulti- (b) Funds withheld pursuant to a sus- mate beneficiary of legal assistance; pension shall be returned to the recipi- (b) Facility means all or any portion ent at the end of the suspension period. of buildings, structures, equipment,
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roads, walks, parking lots, or other (d) Qualified handicapped person real or personal property or interest in means: (1) With respect to employ- such property; ment, a handicapped person who, with (c)(1) Handicapped person means any reasonable accommodation, can per- person who: (i) Has a physical or men- form the essential functions of the job tal impairment which substantially in question; (2) with respect to other limits one or more major life activi- services, a handicapped person who ties, (ii) has a record of such an impair- meets the eligibility requirements for ment, or (iii) is regarded as having the receipt of such services from the such an impairment; legal services program. (2) As used in paragraph (a)(1) of this section the phrase: § 1624.4 Discrimination prohibited. (i) Physical or mental impairment (a) No qualified handicapped person means: (A) Any physiological disorder shall, on the basis of handicap, be ex- or condition, cosmetic disfigurement, cluded from participation in, be denied or anatomical loss affecting one or the benefits of, or otherwise be sub- more of the following body systems: jected to discrimination by any legal Neurological; musculoskeletal; special services program, directly or through sense organs; digestive; genitourinary; any contractural or another arrange- hemic and lymphatic; skin; and endo- ment. crine; or (B) any mental or psycho- (b) A legal services program may not logical disorder, such as mental retar- deny a qualified handicapped person dation, organic brain syndrome, emo- the opportunity to participate in any tional or mental illness, and specific of its programs or activities or to re- learning disabilities; The phrase in- ceive any of its services provided at a cludes, but is not limited to, such dis- facility on the ground that the pro- eases and conditions as orthopedic, vis- gram operates a separate or different ual, speech, and hearing impairments, program, activity or facility that is cerebral palsy, epilepsy, muscular dys- specifically designed to serve handi- trophy, multiple sclerosis, cancer, capped persons. heart disease, diabetes, mental retar- (c) In determining the geographic dation, emotional illness, and drug ad- site or location of a facility, a legal diction and alcoholism; services program may not make selec- (ii) Major life activities means func- tions that have the purpose or effect of tions such as caring for one’s self, per- excluding handicapped persons from, forming manual tasks, walking, seeing, denying them the benefits of, or other- hearing, speaking, breathing, learning, wise subjecting them to discrimination and working; under any program or activity of the (iii) Has a record of such impairment legal services program. means has a history of, or has been (d)(1) A legal services program that misclassified as having, a mental or employs a total of fifteen or more per- physical impairment that substantially sons, regardless of whether such per- limits one or more major life activi- sons are employed at one or more loca- ties; tions, shall provide, when necessary, (iv) Is regarded as having an impair- appropriate auxiliary aids to persons ment means: (A) Has a physical or men- with impaired sensory, manual or tal impairment that does not substan- speaking skills, in order to afford such tially limit major life activities but is persons an equal opportunity to benefit treated by a legal services program as from the legal services program’s serv- constituting such a limitation; (B) has ices. A legal services program is not re- a physical or mental impairment that quired to maintain such aids at all substantially limits major life activi- times, provided they can be obtained ties only as a result of the attitudes of on reasonable notice. others toward such impairments; or (C) (2) The Corporation may require legal has none of the impairments defined in services programs with fewer than fif- paragraph (c)(2)(i) of this section but is teen employees to provide auxiliary treated by a legal services program as aids where the provision of such aids having such an impairment; would not significantly impair the
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ability of the legal services program to persons. Prior to entering into any provide its services. lease or contract for the purchase of a (3) For the purpose of § 1624.4(d) (1) building, a legal services program shall and (2), auxiliary aids include, but are submit a statement to the appropriate not limited to, brailled and taped ma- Regional Office certifying that the fa- terial, interpreters, telecommuni- cilities covered by the lease or con- cations equipment for the deaf, and tract will be accessible to handicapped other aids for persons with impaired persons, or if the facilities will not be hearing, speech or vision. accessible, a detailed description of the (e) A legal services program shall efforts the program made to obtain ac- take reasonable steps to insure that cessible space, the reasons why the in- communications with its applicants, accessible facility was nevertheless se- employees, and beneficiaries are avail- lected, and the specific steps that will able to persons with impaired vision be taken by the legal services program and hearing. to insure that its services are acces- (f) A legal services program may not sible to handicapped persons who would deny handicapped persons the oppor- otherwise use that facility. After a tunity to participate as members of or statement certifying facility accessi- in the meetings or activities of any bility has been submitted, additional planning or advisory board or process statements need not be resubmitted established by or conducted by the with respect to the same facility, un- legal services program, including but less substantial changes have been not limited to meetings and activities made in the facility that affect its ac- conducted in response to the require- cessibility. ments of part 1620 of these regulations. (d) A legal services program shall en- sure that new facilities designed or § 1624.5 Accessibility of legal services. constructed for it are readily acces- (a) No qualified handicapped person sible to and usable by handicapped per- shall, because a legal services pro- sons. Alterations to existing facilities gram’s facilities are inaccessible to or shall, to the maximum extent feasible, unusable by handicapped persons, be be designed and constructed to make denied the benefits of, be excluded from the altered facilities readily accessible participation in, or otherwise be sub- to and usable by handicapped persons. jected to discrimination by any legal services program. § 1624.6 Employment. (b) A legal services program shall (a) No qualified handicapped person conduct its programs and activities so shall, on the basis of handicap, be sub- that, when viewed in their entirety, jected to discrimination in employ- they are readily accessible to and usa- ment by any legal services program. ble by handicapped persons. This para- (b) A legal services program shall graph does not necessarily require a make all decisions concerning employ- legal services program to make each of ment under any program or activity to its existing facilities or every part of which this part applies in a manner an existing facility accessible to and that insures that discrimination on the usable by handicapped persons, or re- basis of handicap does not occur, and quire a legal services program to make may not limit, segregate, or classify structural changes in existing facilities applicants or employees in any way when other methods are effective in that adversely affects their opportuni- achieving compliance. In choosing ties or status because of handicap. among available methods for meeting (c) The prohibition against discrimi- the requirements of this paragraph, a nation in employment applies to the legal services program shall give pri- following activities: ority to those methods that offer legal (1) Recruitment, advertising, and the services to handicapped persons in the processing of applications for employ- most integrated setting appropriate. ment; (c) A legal services program shall, to (2) Hiring, upgrading, promotion, the maximum extent feasible, insure award of tenure, demotion, transfer, that new facilities that it rents or pur- layoff, termination, right of return chases are accessible to handicapped from layoff, and rehiring;
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(3) Rates of pay or any other form of (2) In determining whether an accom- compensation and changes in com- modation would impose an undue hard- pensation; ship on the operation of a legal services (4) Job assignments, job classifica- program, factors to be considered in- tions, organizational structures, posi- clude, but are not limited to, the over- tion descriptions, lines of progression, all size of the legal services program and seniority lists; with respect to number of employees, (5) Leaves of absence, sick leave, or number and type of facilities, and size any other leave; of budget, and the nature and costs of (6) Fringe benefits available by vir- the accommodation needed. tue of employment, whether or not (3) A legal services program may not adminstered by the legal services pro- deny any employment opportunity to a gram; qualified handicapped employee or ap- plicant if the basis for the denial is a (7) Selection and financial support need to make reasonable accommoda- for training, including apprenticeship, tion to the physical or mental limita- professional meetings, conferences, and tions of the employee or applicant. other related activities, and selection (f) A legal services program may not for leaves of absence to pursue train- use employment tests or criteria that ing; discriminate against handicapped per- (8) Employer sponsored activities, in- sons, and shall insure that employment cluding social or recreational pro- tests are adapted for use by persons grams; and who have handicaps that impair sen- (9) Any other term, condition, or sory, manual, or speaking skills. privilege of employment. (g) A legal services program may not (d) A legal services program may not conduct a pre-employment medical ex- participate in any contractual or other amination or make a pre-employment relationship with persons, agencies, or- inquiry as to whether an applicant is a ganizations or other entities such as, handicapped person or as to the nature but not limited to, employment and re- or severity of a handicap except under ferral agencies, labor unions, organiza- the circumstances described in 45 CFR tions providing or administering fringe 84.14(a) through (d)(2). The Corporation benefits to employees of the legal serv- shall have access to relevant informa- ices program, and organizations pro- tion obtained in accordance with this viding training and apprenticeship pro- section to permit investigations of al- grams, if the practices of such person, leged violations of this part. agency, organization, or other entity (h) A legal services program shall have the effect of subjecting qualified post in prominent places in each of its handicapped applicants or employees offices a notice stating that the legal to discrimination prohibited by this services program does not discriminate paragraph. on the basis of handicap. (e) A legal services program shall (i) Any recruitment materials pub- make reasonable accommodation to lished or used by a legal services pro- the known physical or mental limita- gram shall include a statement that tions of an otherwise qualified handi- the legal services program does not dis- capped applicant or employee unless criminate on the basis of handicap. the accommodation would impose an undue hardship on the operation of the § 1624.7 Self-evaluation. program. (a) By January 1, 1980, a legal serv- (1) For purposes of this paragraph (e), ices program shall evaluate, with the reasonable accommodation may in- assistance of interested persons includ- clude (i) making facilities used by em- ing handicapped persons or organiza- ployees readily accessible to and usable tions representing handicapped per- by handicapped persons, and (ii) job re- sons, its current facilities, policies and structuring, part-time or modified practices and the effects thereof to de- work schedules, acquisition or modi- termine the extent to which they may fication of equipment or devices, the or may not comply with the require- provision of readers or interpreters, ments of this part and the cost of and other similar actions. structural or other changes that would
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be necessary to make each of its facili- (citizens by naturalization) or ante- ties accessible to handicapped persons. cedent citizen statutes. (b) The results of the self-evaluation, (b) Eligible alien means a person who including steps the legal services pro- is not a citizen but who meets the re- gram plans to take to correct any defi- quirements of § 1626.5. ciencies revealed and the timetable for (c) Ineligible alien means a person who completing such steps, shall be made is not a citizen and who does not meet available for review by the Corporation the requirements of § 1626.5. and interested members of the public. (d) Rejected refers to an application for adjustment of status that has been § 1624.8 Enforcement. denied by the Immigration and Natu- The procedures described in part 1618 ralization Service (INS) and is not sub- of these regulations shall apply to any ject to further administrative appeal. alleged violation of this part by a legal (e) To provide legal assistance on be- services program. half of an ineligible alien is to render legal assistance to an eligible client PART 1625 [RESERVED] which benefits an ineligible alien and does not affect a specific legal right or PART 1626—RESTRICTIONS ON interest of the eligible client. LEGAL ASSISTANCE TO ALIENS (f) Battered or subjected to extreme cru- elty includes, but is not limited to, Sec. being the victim of any act or threat- 1626.1 Purpose. ened act of violence, including any 1626.2 Definitions. forceful detention, which results or 1626.3 Prohibition. threatens to result in physical or men- 1626.4 Applicability. 1626.5 Alien status and eligibility. tal injury. Psychological or sexual 1626.6 Verification of citizenship. abuse or exploitation, including rape, 1626.7 Verification of eligible alien status. molestation, incest (if the victim is a 1626.8 Emergencies. minor), or forced prostitution shall be 1626.9 Change in circumstances. considered acts of violence. Other abu- 1626.10 Special eligibility questions. sive actions may also be acts of vio- 1626.11 H–2 agricultural workers. lence under certain circumstances, in- 1626.12 Recipient policies, procedures and cluding acts that, in and of themselves, recordkeeping. may not initially appear violent but APPENDIX TO PART 1626—ALIEN ELIGIBILITY that are a part of an overall pattern of FOR REPRESENTATION BY LSC PROGRAMS violence. AUTHORITY: Pub. L. 104–208, 110 Stat. 1321; (g) Legal assistance directly related to Pub. L. 104–134, 110 Stat. 3009. the prevention of, or obtaining relief from, SOURCE: 62 FR 19414, Apr. 21, 1997, unless the battery or cruelty means any legal otherwise noted. assistance that will assist victims of abuse in their escape from the abusive § 1626.1 Purpose. situation, ameliorate the current ef- This part is designed to ensure that fects of the abuse, or protect against recipients provide legal assistance only future abuse. to citizens of the United States and eli- (h) United States, for purposes of this gible aliens. It is also designed to assist part, has the same meaning given that recipients in determining the eligi- term in 8 U.S.C. 1101(a)(38) of the INA. bility and immigration status of per- sons who seek legal assistance. [62 FR 19414, Apr. 21, 1997, as amended at 62 FR 45757, Aug. 29, 1997] § 1626.2 Definitions. (a) Citizen includes persons described § 1626.3 Prohibition. or defined as citizens or nationals of Except as provided in § 1626.4, recipi- the United States in 8 U.S.C. 1101(a)(22) ents may not provide legal assistance and Title III of the Immigration and for or on behalf of an ineligible alien. Nationality Act (INA), Chapter 1 (8 For purposes of this part, legal assist- U.S.C. 1401 et seq.) (citizens by birth) ance does not include normal intake and Chapter 2 (8 U.S.C. 1421 et seq.) and referral services.
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§ 1626.4 Applicability. sions) or who has been granted asylum (a) Except for § 1626.12, the require- by the Attorney General under section ments of this part do not apply to the 208 of the INA (8 U.S.C. 1158). use of non-LSC funds by a recipient to (d) An alien who is lawfully present provide legal assistance to an alien: in the United States as a result of (1) Who has been battered or sub- being granted conditional entry pursu- jected to extreme cruelty in the United ant to section 203(a)(7) of the INA (8 States by a spouse or a parent, or by a U.S.C. 1153(a)(7), as in effect on March member of the spouse’s or parent’s 31, 1980) before April 1, 1980, because of family residing in the same household persecution or fear of persecution on as the alien and the spouse or parent account of race, religion, or political consented or acquiesced to such bat- opinion or because of being uprooted by tery or cruelty; or catastrophic natural calamity; (2) Whose child has been battered or (e) An alien who is lawfully present subjected to extreme cruelty in the in the United States as a result of the United States by a spouse or parent of Attorney General’s withholding of de- the alien (without the active participa- portation pursuant to section 243(h) of tion of the alien in the battery or ex- the INA (8 U.S.C. 1253(h)); or treme cruelty), or by a member of the (f) An alien who meets the require- spouse’s or parent’s family residing in ments of § 1626.10 or 1626.11. the same household as the alien and the spouse or parent consented or ac- § 1626.6 Verification of citizenship. quiesced to such battery or cruelty, (a) A recipient shall require all appli- and the alien did not actively partici- cants for legal assistance who claim to pate in such battery or cruelty; pro- be citizens to attest in writing in a vided that the legal assistance is di- standard form provided by the Corpora- rectly related to the prevention of, or tion that they are citizens, unless the obtaining relief from, the battery or only service provided for a citizen is cruelty. brief advice and consultation by tele- (b) Recipients are not required by phone which does not include contin- § 1626.12 to maintain records regarding uous representation. the immigration status of clients rep- (b) When a recipient has reason to resented pursuant to paragraph (a) of doubt that an applicant is a citizen, this section. the recipient shall require verification of citizenship. A recipient shall not § 1626.5 Alien status and eligibility. consider factors such as a person’s ac- Subject to all other eligibility re- cent, limited English-speaking ability, quirements and restrictions of the LSC appearance, race or national origin as a Act and regulations and other applica- reason to doubt that the person is a ble law, a recipient may provide legal citizen. assistance to an alien who is present in (1) If verification is required, a re- the United States and who is within cipient may accept originals, certified one of the following categories: copies, or photocopies that appear to (a) An alien lawfully admitted for be complete, correct and authentic of permanent residence as an immigrant any of the following documents as evi- as defined by section 1101(a)(20) of the dence of citizenship: INA (8 U.S.C. 1101(a)(20)); (i) United States passport; (b) An alien who is either married to (ii) Birth certificate; a United States citizen or is a parent (iii) Naturalization certificate; or an unmarried child under the age of (iv) United States Citizenship Identi- 21 of such a citizen and who has filed fication Card (INS Form 1–197 or I–197); an application for adjustment of status or to permanent resident under the INA, (v) Baptismal certificate showing and such application has not been re- place of birth within the United States jected; and date of baptism within two months (c) An alien who is lawfully present after birth. in the United States pursuant to an ad- (2) A recipient may also accept any mission under section 207 of the INA (8 other authoritative document such as a U.S.C. 1157) (relating to refugee admis- document issued by INS, by a court or
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by another governmental agency, that (c) The recipient informs clients ac- provides evidence of citizenship. cepted under paragraph (a) or (b) of (3) If a person is unable to produce this section that only limited emer- any of the above documents, the person gency legal assistance may be provided may submit a notarized statement without satisfactory documentation signed by a third party, who shall not and that, if the client fails to produce be an employee of the recipient and timely and satisfactory written docu- who can produce proof of that party’s mentation, the recipient will be re- own United States citizenship, that the quired to discontinue representation person seeking legal assistance is a consistent with the recipient’s profes- United States citizen. sional responsibilities.
§ 1626.7 Verification of eligible alien § 1626.9 Change in circumstances. status. If, to the knowledge of the recipient, (a) An alien seeking representation a client who was an eligible alien be- shall submit appropriate documents to comes ineligible through a change in verify eligibility, unless the only serv- circumstances, continued representa- ice provided for an eligible alien is tion is prohibited by this part and a re- brief advice and consultation by tele- cipient must discontinue representa- phone which does not include contin- tion consistent with applicable rules of uous representation of a client. professional responsibility. (1) As proof of eligibility, a recipient may accept originals, certified copies, § 1626.10 Special eligibility questions. or photocopies that appear to be com- plete, correct and authentic, of any of (a) This part is not applicable to re- the documents found in the appendix to cipients providing services in the Com- this part. monwealth of the Northern Mariana Is- (2) A recipient may also accept any lands, the Republic of Palau, the Fed- other authoritative document issued erated States of Micronesia, or the Re- by the INS, by a court or by another public of the Marshall Islands. governmental agency, that provides (b) All Canadian-born American Indi- evidence of alien status. ans at least 50% Indian by blood are el- (b) A recipient shall upon request fur- igible to receive legal assistance pro- nish each person seeking legal assist- vided they are otherwise eligible under ance with a list of the documents in the Act. the appendix to this part. (c) Members of the Texas Band of Kickapoo are eligible to receive legal § 1626.8 Emergencies. assistance provided they are otherwise In an emergency, legal services may eligible under the Act. be provided prior to compliance with (d) An alien who qualified as a special §§ 1626.6 and § 1626.7 if: agricultural worker and whose status (a) An applicant cannot feasibly is adjusted to that of temporary resi- come to the recipient’s office or other- dent alien under the provisions of the wise transmit written documentation Immigration Reform and Control Act to the recipient before commencement (‘‘IRCA’’) is considered a permanent of the representation required by the resident alien for all purposes except emergency, and the applicant provides immigration under the provisions of oral information to establish eligi- section 302 of 100 Stat. 3422, 8 U.S.C. bility which the recipient records, and 1160(g). Since the status of these aliens the applicant submits the necessary is that of permanent resident alien documentation as soon as possible; or under section 1101(a)(20) of Title 8, (b) An applicant is able to come to these workers may be provided legal the recipient’s office but cannot assistance. These workers are ineli- produce the required documentation gible for legal assistance in order to before commencement of the represen- obtain the adjustment of status of tem- tation, and the applicant signs a state- porary resident under IRCA, but are el- ment of eligibility and submits the igible for legal assistance after the ap- necessary documentation as soon as plication for adjustment of status to possible; and that of temporary resident has been
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filed, and the application has not been (b) The following matters which arise rejected. under the provisions of the worker’s (e) A recipient may provide legal as- specific employment contract may be sistance to indigent foreign nationals the subject of legal assistance by an who seek assistance pursuant to the LSC-funded program: Hague Convention on the Civil Aspects (1) Wages; of International Child abduction and (2) Housing; the Federal implementing statute, the (3) Transportation; and International Child Abduction Rem- (4) Other employment rights as pro- edies Act, 42 U.S.C. 11607(b), provided vided in the worker’s specific contract that they are otherwise financially eli- under which the nonimmigrant worker gible. was admitted.
[62 FR 19414, Apr. 21, 1997; 62 FR 22895, Apr. § 1626.12 Recipient policies, proce- 28, 1997] dures and recordkeeping. § 1626.11 H–2 agricultural workers. Each recipient shall adopt written (a) Nonimmigrant agricultural work- policies and procedures to guide its ers admitted under the provisions of 8 staff in complying with this part and U.S.C. 1101(a)(15)(h)(ii), commonly shall maintain records sufficient to called H–2 workers, may be provided document the recipient’s compliance legal assistance regarding the matters with this part. specified in paragraph (b) of this sec- [62 FR 19414, Apr. 21, 1997; 62 FR 22895, Apr. tion. 28, 1997]
APPENDIX TO PART 1626
ALIEN ELIGIBILITY FOR REPRESENTATION BY LSC PROGRAMS
Immigration Act LSC Regs 45 CFR Alien category (INA) § 1626 Examples of acceptable documents
LAWFUL PERMA- INA § 101(a)(20) 8 § 1626.5(a) I±551 or I±151 NENT RESIDENT. USC, or I±181 (Memorandum of Creation of Record of Lawful § 1101(a)(20). Permanent Residence), with approval stamp; or passport bearing immigrant visa or stamp indicating ad- mission for lawful permanent residence or order granting residency or suspension or adjustment of status or I±327 Reentry Permit or I±94, with stamp indicating admission for lawful perma- nent residence or any computerized verification from INS or other authori- tative document.
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ALIEN ELIGIBILITY FOR REPRESENTATION BY LSC PROGRAMSÐContinued
Immigration Act LSC Regs 45 CFR Alien category (INA) § 1626 Examples of acceptable documents
ALIEN WHO IS INA §§ 209, 210, § 1626.5(b) Proof of relationship to U.S. citizen* Ðmarried to U.S. 244, (replaced by and citizen, INA § 240A(b) for I±485 (application for adjustment of status on the basis of Ðparent of U.S. cit- aliens in pro- a family-based visa, registry, Cuban Adjustment, Cuban- izen, or ceedings initiated Haitian Adjustment, or spouses and children eligible for Ðunmarried child after 4/1/97), Violence Against Women Act relief) and proof of filing** under 21 of U.S. 245, 245A, 249 8 or I±256A or EOIR±40 (application for suspension of de- citizen USC §§ 1159, portation)*** and proof of filing** and 1160, 1259, or EOIR±42 (application for cancellation of removal) and Ðhas filed an appli- 1254, 1255, proof of filing** cation for adjust- 1255a, 1259. or OF±230 (application at consulate for visa) and proof of ment of status to filing with consulate** permanent resi- or I±360 (application to qualify as abused spouse or child dency. under the Violence Against Women Act) or I±688B or I±766 (employment authorization document) coded 8 CFR § 274a.12(c)(9) (applicant for adjustment) or (c)(16)(registry applicant) or (c)(10)(suspension appli- cant) or letter or Form I±797 from INS acknowledging receipt of I±485; or I±94, with stamp indicated entry pursuant to advance parole (INA§ 212(d)(5)) for pending § 245; or I±512 (advance parole), indicating entry to pursue pend- ing § 245 application or passport, with stamp or writing by INS officer, indicating pending § 245 application or I±130 (visa petition) and proof of filing** or any computerized verification from INS or other authori- tative document *Proof of relationship may include a copy of the alien's marriage certificate accompanied by proof of the spouse's U.S. citizenship; a copy of the birth certificate, baptismal certificate, adoption decree or other docu- ments demonstrating that the alien is the parent of a U.S. citizen under the age of 21; a copy of the alien's birth certificate, baptismal certificate, adoption decree, or other documents demonstrating that the alien is a child under the age of 21, accompanied by proof that the alien's parent is a U.S. citizen; or in lieu of the above, a copy of INS Form I±130 (visa petition) containing infor- mation that demonstrates that the alien is related to such a U.S. citizen, accompanied by proof of filing. **Proof of filing may include a fee receipt showing that the application was filed with the INS or the immigration court; a filing stamp showing that the application was filed; or a copy of the application accompanied by a no- tarized statement signed by the alien that such form was filed. ***Note: ``cancellation of removal and adjustment of status'' replaces ``suspension of deportation'' for aliens in pro- ceedings initiated on or after April 1, 1997. REFUGEE ...... INA § 207, 8 USC § 1626.5(c) I±94 or passport stamped ``refugee'' or ``§ 207'' § 1157. or I±688B or I±766 coded 8 CFR § 274a.12(a)(3)(Refugee) or (a)(4)(paroled asylees) or I±571 refugee travel document, or any computerized verification from INS or other authori- tative document. ASYLEE ...... INA § 208 8 USC § 1626.5 (c) I±94 or passport stamped ``asylee'' on ``§ 208'' § 1158. or order granting asylum from INS, immigration judge, BIA, or federal court or I±571 refugee travel document or I±688B or I±766 coded 8 CFR § 274a.12(a) (5)(asylee) or other computerized verification from INS or other au- thoritative document.
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ALIEN ELIGIBILITY FOR REPRESENTATION BY LSC PROGRAMSÐContinued
Immigration Act LSC Regs 45 CFR Alien category (INA) § 1626 Examples of acceptable documents
GRANTING WITH- INA § 243(h) 8 § 1626.5(e) I±94 stamped ``§ 243(h)'' or order granting withholding of HOLDING OF USC § 1253(h) deportation from INS, immigration court, BIA, or federal DEPORTATION. (as of 4/1/97, re- court pealed and re- or I±688B or I±766 coded 8 CFR designated INA § 274a.12(a)(10)(withholding of deportation) § 241(b)(3), ``Re- or I±571 refugee travel document; striction on Re- or any computerized verification from INS or other authori- moval''). tative document. CONDITIONAL EN- INA § 203(a)(7) § 1626.5(d) I±94 or passport stamped ``conditional entrant'' TRANT. (prior to 4/1/80), or any computerized verification from INS or other authori- 8 USC tative document. § 1153(a)(7). AGRICULTURAL INA § 101(a)(15) § 1626.11 I±94 or passport stamped ``H±2A'' WORKER. (H)(II), 8 USC or any computerized verification from INS or other authori- § 1101(a)(15) tative document. (H)(II). SPECIAL AGRI- INA § 210, 8 USC § 1626.10(d) I±688, 688A, 688 or 766 indicating issuance under § 210 CULTURAL § 1160. (or under 8 CFR § 274a.12 (a)(2), with other evidence WORKER TEM- indicating eligibility under INA § 210). PORARY RESI- or any computerized verification from INS or other authori- DENT. tative document. National Immigration Law Center 3/7/97.
[62 FR 19414, Apr. 21, 1997; 62 FR 24159, May 2, § 1627.2 Definitions. 1997] (a) Recipient as used in this part means any recipient as defined in sec- PART 1627—SUBGRANTS AND tion 1002(6) of the Act and any grantee MEMBERSHIP FEES OR DUES or contractor receiving funds from the Corporation under section 1006(a)(1)(B) Sec. or 1006(a)(3) of the Act. 1627.1 Purpose. (b)(1) Subrecipient shall mean any en- 1627.2 Definitions. tity that accepts Corporation funds 1627.3 Requirements for all subgrants. from a recipient under a grant con- 1627.4 Membership fees or dues. tract, or agreement to conduct certain 1627.5 Contributions. activities specified by or supported by 1627.6 Transfers to other recipients. the recipient related to the recipient’s 1627.7 Tax sheltered annuities, retirement programmatic activities. Such activi- accounts and pensions. ties would normally include those that 1627.8 Recipient policies, procedures and might otherwise be expected to be con- recordkeeping. ducted directly by the recipient itself, AUTHORITY: 42 U.S.C. 2996e(b)(1), 2996f(a), such as representation of eligible cli- and 2996g(e); Pub. L. 104–208, 110 Stat 3009; ents, or which provide direct support to Pub. L. 104–134, 110 Stat 1321. a recipient’s legal assistance activities SOURCE: 48 FR 54209, Nov. 30, 1983, unless or such activities as client involve- otherwise noted. ment, training or state support activi- ties. Such activities would not nor- § 1627.1 Purpose. mally include those that are covered In order to promote accountability by a fee-for-service arrangement, such as those provided by a private law firm for Corporation funds and the observ- or attorney representing a recipient’s ance of the provisions of the Legal clients on a contract or judicare basis, Services Corporation Act and the Cor- except that any such arrangement in- poration’s regulations adopted pursu- volving more than $25,000 shall be in- ant thereto, it is necessary to set out cluded. Subrecipient activities would the rules under which Corporation normally also not include the provision funds may be transferred by recipients of goods or services by vendors or con- to other organizations (including other sultants in the normal course of busi- recipients). ness if such goods or services would not
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be expected to be provided directly by tion refuses to allow the renewal of any the recipient itself, such as auditing or such submitted agreement, the recipi- business machine purchase and/or ent shall be permitted to allow the sub- maintenance. A single entity could be recipient 60 days’ funding to close out a subrecipient with respect to some ac- the subgrant activities. tivities it conducts for a recipient (b)(1) A subgrant may not be for a pe- while not being a subrecipient with re- riod longer than one year, and all funds spect to other activities it conducts for remaining at the end of the grant pe- a recipient. riod shall be considered part of the re- (2) Subgrant shall mean any transfer cipient’s fund balance. of Corporation funds from a recipient (2) All subgrants shall contain a pro- which qualifies the organization re- vision providing for their orderly ter- ceiving such funds as a subrecipient under the definition set forth in para- mination in the event that the recipi- graph (b)(1) of this section. ent’s funding is terminated or the re- (c) Membership fees or dues as used in cipient is not refunded and for suspen- this part means payments to an organi- sion of activities if the recipient’s zation on behalf of a program or indi- funding is suspended. vidual to be a member thereof, or to (3) A substantial change in the work acquire voting or participatory rights program of a subgrant or an increase or therein. decrease in funding of more than 10% shall require Corporation approval pur- [48 FR 54209, Nov. 30, 1983, as amended at 61 FR 45754, Aug. 29, 1996; 62 FR 19418, Apr. 21, suant to the provisions of section 1997] 1627.3(a). Minor changes of work pro- gram or changes in funding of less than § 1627.3 Requirements for all sub- 10% shall not require prior Corporation grants. approval, but the Corporation shall be (a)(1) All subgrants must be sub- informed in writing thereof. mitted in writing to the Corporation (c) Recipients shall be responsible for for prior, written approval. The sub- ensuring that subrecipients comply mission shall include the terms and with the financial and audit provisions conditions of the subgrant and the of the Corporation. The recipient is re- amount of funds intended to be trans- sponsible for ensuring the proper ex- ferred. penditure, accounting for, and audit of (2) The Corporation shall have 45 delegated funds. Any funds delegated days to approve, disapprove, or suggest by a recipient to a subrecipient shall be modifications to the subgrant. A subject to the audit and financial re- subgrant which is disapproved or to quirements of the Audit and Account- which modifications are suggested may ing Guide for Recipients and Auditors. be resubmitted for approval. Should The delegated funds may be separately the Corporation fail to take action disclosed and accounted for, and re- within 45 days, the recipient shall no- ported upon in the audited financial tify the Corporation of this failure and, statements of a recipient; or such funds unless the Corporation responds within 7 days of the receipt of such notifica- may be included in a separate audit re- tion, the subgrant shall be deemed to port of the subrecipient. The relation- have been approved. ship between the recipient and sub- (3) Any subgrant not approved ac- recipient will determine the proper cording to the procedures of paragraph method of financial reporting in ac- (a)(2) of this section shall be subject to cordance with generally accepted ac- audit disallowance and recovery of all counting principles. A subgrant agree- the funds expended pursuant thereto. ment may provide for alternative (4) Any subgrant which is a continu- means of assuring the propriety of sub- ation of a previous subgrant and which recipient expenditures, especially in in- expires before March 1, 1984 may be ex- stances where a large organization re- tended until March 1, 1984, if a new ceives a small subgrant. If such an al- subgrant agreement is submitted for ternate means is approved by the Audit approval to the Corporation by Janu- Division of the Corporation, the infor- ary 15, 1984. In the event the Corpora- mation provided thereby shall satisfy
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the recipient’s annual audit require- subgrant funds. Thus, the Corporation ment with regard to the subgrant may recover all of the disallowed costs funds. from either recipient or subrecipient or (d) The recipient shall be responsible may divide the recovery between the for repaying the Corporation for any two; the Corporation’s total recovery disallowed expenditures by a sub- may not exceed the amount of expendi- recipient, irrespective of whether the tures disallowed. recipient is able to recover such ex- (d) Funds received by a recipient penditures from the subrecipient. from other recipients in the form of (e) To assure subrecipient compliance fees and dues shall be accounted for with the Act, Congressional restric- and included in the annual audit of the tions having the force of law, Corpora- recipient receiving these funds as Cor- tion Regulations (45 CFR chapter XVI), poration funds. and Corporation Guidelines or Instruc- tions, contracts between a recipient § 1627.7 Tax sheltered annuities, re- and a subrecipient shall provide for the tirement accounts and pensions. same oversight rights for the Corpora- No provision contained in this part tion with respect to subrecipients as shall be construed to affect any pay- apply to recipients. ment by a recipient on behalf of its em- [48 FR 54209, Nov. 30, 1983, as amended at 49 ployees for the purpose of contributing FR 1703, Jan. 13, 1984] to or funding a tax sheltered annuity, retirement account, or pension fund. § 1627.4 Membership fees or dues. [62 FR 19418, Apr. 21, 1997] (a) LSC funds may not be used to pay membership fees or dues to any private § 1627.8 Recipient policies, procedures or nonprofit organization, whether on and recordkeeping. behalf of a recipient or an individual. Each recipient shall adopt written (b) Paragraph (a) of this section does policies and procedures to guide its not apply to the payment of member- staff in complying with this part and ship fees or dues mandated by a gov- shall maintain records sufficient to ernmental organization to engage in a document the recipient’s compliance profession, or to the payment of mem- with this part. bership fees or dues from non-LSC funds. [62 FR 19418, Apr. 21, 1997] [62 FR 19418, Apr. 21, 1997] PART 1628—RECIPIENT FUND § 1627.5 Contributions. BALANCES Any contributions or gifts of Cor- poration funds to another organization Sec. or to an individual are prohibited. 1628.1 Purpose. 1628.2 Definitions. § 1627.6 Transfers to other recipients. 1628.3 Policy. 1628.4 Procedure. (a) The requirements of § 1627.3 shall 1628.5 Fund balance deficits. apply to all subgrants by one recipient to another recipient. AUTHORITY: Secs. 1006(b)(1)(A), 1007(a)(3); 42 (b) The subrecipient shall audit any U.S.C. 2996e(b)(1)(A), 42 U.S.C. 2996f(a)(3). funds subgranted to it in its annual SOURCE: 49 FR 21332, May 21, 1984, unless audit and supply a copy of this audit to otherwise noted. the recipient. The recipient shall ei- ther submit the relevant part of this § 1628.1 Purpose. audit with its next annual audit or, if (a) This part is designed to ensure an audit has been recently submitted, the timely allocation of Legal Services submit it as an addendum to that re- Corporation (LSC) funds for the effec- cently submitted audit. tive and economical provision of high (c) In addition to the provisions of quality legal assistance to eligible cli- § 1627.3(d), the Corporation may hold ents. To that end, recipients will be the subrecipient directly responsible permitted to maintain and re-program for any disallowed expenditures of from year to year fund balances of no
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more than 10% of their annualized LSC able and appropriate in each case after support. consultation with the recipient. (b) A waiver of this policy up to a (b) After the Corporation’s receipt maximum of 25% of the recipient’s and review of the recipient’s annual annualized grant amount may be ob- audit, the Corporation shall provide tained under certain conditions as de- written notice to the recipient of the scribed in § 1628.3(d). Funds carried over fund balance amount due and payable in excess of 10% or above the level per- to the Corporation as well as the meth- mitted by a specific waiver will be re- od for repayment 30 days prior to the covered as set forth in section 1628.3(a). effective date for repayment either to occur or to commence in accordance § 1628.2 Definitions. with § 1628.3(a). (a) LSC support for the reporting pe- (c) In no way shall any such reduc- riod shall be defined as the sum of: (1) tion and/or deduction in LSC support The annualized LSC grant award(s); be construed to affect permanently the (2) Any additional income derived annualized funding level of the recipi- from an LSC grant (interest, rents, ent, nor shall any such reduction and/ etc.); and or deduction in LSC support be consid- ered to be a termination or denial of (3) That proportion of any reimburse- refunding under 45 CFR 1606 and 1625 ment or recovery of direct payment to respectively. attorneys, proceeds from the sale of as- (d) A waiver of the 10% ceiling may sets, or other compensation or income be granted at the discretion of the Cor- attributable to any Corporation grant. poration in extraordinary cir- (b) The LSC fund balance amount cumstances; such a waiver may be shall be determined solely by reference granted by the Corporation to extend to the recipient’s annual audit. (The the ceiling for fund balance amounts fund balance reported in the recipient’s established under this regulation to a annual audit is subject to review and maximum of 25% of LSC support. Fur- approval by the Corporation’s Audit ther, in addition to the established 10% Division. Noncompliance with provi- ceiling, the Corporation shall grant a sions of the Corporation’s Audit and Ac- waiver up to 25% of direct payment to counting Guide for Recipients and Audi- attorneys in the last audit to recipi- tors may result in an increase or de- ents who operate compensated private crease in the fund balance as reported bar programs or components to be uti- in the audit.) lized exclusively to fund a cash reserve (c) The fund balance percentage shall or encumbrance system for direct pay- be determined by expressing the fund ment to attorneys. Such recipients balance amount as a percentage of the must submit a timely written request recipient’s LSC support for the report- to the Office of Field Services to obtain ing period. this waiver. However, under no cir- (d) Recipient as used in this part, cumstances will a recipient be allowed means any recipient as defined in sec- to retain a fund balance in excess of tion 1002(6) of the LSC Act and any 25% of support. grantee or contractor receiving funds (e) All one-time or special purpose from the Corporation under section grants awarded by the Corporation 1006(a)(1) or 1006(a)(3) of the Act. shall have an effective date and termi- nation date. Such grants are not sub- § 1628.3 Policy. ject to this fund balance policy. Rev- (a) In the absence of a waiver from enue and expenses relating to such the Director, Office of Field Services, grants must be reflected separately in any fund balance amount in excess of the audit report submitted to the Cor- 10% of LSC support shall be repaid to poration. This may be done by estab- the Corporation in a lump sum or by lishing a separate fund or by providing pro rata deductions from the recipi- a separate supplemental schedule of ent’s grant checks for a specific num- revenue and expenses related to such ber of months. The Office of Field Serv- grants as a part of the audit report. No ices shall determine which of the speci- funds provided under a one-time or spe- fied methods of repayment is reason- cial purpose grant may be expended
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subsequent to the termination date of request submitted pursuant to this reg- the grant without the prior written ap- ulation: proval of the Corporation. All unex- (1) Emergencies, unusual occur- pended funds under such grants shall rences, or other extraordinary cir- be returned to the Corporation. cumstances giving rise to the existence of a fund balance in excess of 10%, and § 1628.4 Procedure. the special needs of clients; (a) Any recipient whose audited fund (2) The need for a recipient which op- balance exceeds the ceiling set forth in erates a compensated bar program or § 1628.1 shall submit to the Director, Of- component to maintain a cash reserve; fice of Field Services, within 120 days and after the close of the recipient’s fiscal (3) The recipient’s financial manage- year, a statement of the fund balance ment record. which occurred according to the annual (e) Excess fund balance amounts ap- audit required by section 1009(c)(1) of proved for expenditure must be sepa- the Legal Services Corporation Act, as rately reported in the current fiscal amended. The funds will be recovered year audit. This may be done by estab- as set forth in § 1628.3, unless excluded lishing a separate fund or by providing by a specific waiver. a separate supplemental schedule as (b) The recipient may, within 120 part of the audit report. days after the close of its fiscal year, [49 FR 23056, June 4, 1984] apply to the Director, Office of Field Services for a waiver of the 10% ceil- § 1628.5 Fund balance deficits. ing. Such application must specify: (a) Sound financial management (1) The fund balance amount accord- practices such as those established in ing to the recipient’s annual audit; LSC’s ‘‘Fundamental Criteria of an Ac- (2) The reason such fund balance has counting and Financial Reporting Sys- been attained; tem,’’ should preclude deficit spending. (3) The recipient’s plan for the dis- Use of current year LSC grant funds to position or reserve of such fund balance liquidate deficit balances in the LSC amount within the current grant pe- fund from a preceding period(s) re- riod; quires the prior written approval of the (4) The amount of fund balance pro- Corporation. jected to be carried forward at the (b) The recipient may, within 120 close of the recipient’s then current fis- days of the close of its fiscal year, cal year; and, apply to the Corporation for approval (5) The extraordinary circumstances of the costs associated with the liq- justifying the retention of the fund bal- uidation of the deficit balances in the ance which include windfall receipts LSC fund. for which a recipient cannot reason- (c) In the absence of approval by the ably plan, such as proceeds from the Corporation, expenditures of current sale of property, receipt of direct pay- year LSC grant funds to liquidate a ment to attorneys, and collection of in- deficit from a prior year shall be iden- surance proceeds. tified as questioned costs. (c) Excess fund balance amounts (d) The recipient’s request must shall not be expended by the recipient specify the same information relative prior to approval of the waiver applica- to the deficit LSC fund balance as that tion by the Corporation. set forth in sections 1628.4(b) (1), (2), (d) The decision of the Corporation (3), and (4). Additionally, the recipient regarding the granting of a waiver must develop and submit a plan ap- (other than the automatically granted proved by its governing body describ- waiver for a cash reserve for com- ing the measures which will be imple- pensated bar programs) shall be guided mented to prevent a recurrence of a by the statutory mandate requiring the deficit balance in the LSC fund. The recipient to provide high quality legal Corporation reserves the right to re- services in an effective and economical quire changes in the submitted plan. manner. In addition, the Corporation (e) The decision of the Corporation shall give special consideration to the regarding acceptance of these deficit- following factors in reviewing a waiver related costs shall be guided by the
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statutory mandate requiring the re- § 1629.3 Criteria for determining han- cipient to provide high quality legal dling. services performed in an effective and (a) The term ‘‘handles’’ shall be economical manner. Special consider- deemed to encompass any relationship ation will be given for emergencies, un- of a director, officer, employee or usual occurrences, or other extraor- agent with respect to funds or other dinary circumstances giving rise to property which can give rise to a risk this situation. of loss through fraud or dishonesty. This shall include relationships such as PART 1629—BONDING OF those which involve access to funds or RECIPIENTS other property or decision-making powers with respect to funds or prop- Sec. erty which can give rise to such risk of 1629.1 General. loss. 1629.2 Persons required to be bonded. (b) Subject to the application of the 1629.3 Criteria for determining handling. basic standard of risk of loss to each 1629.4 Meaning of fraud or dishonesty. 1629.5 Form of bonds. situation, the criteria for determining 1629.6 Effective date. whether there is ‘‘handling’’ so as to require bonding are: AUTHORITY: Secs. 1006(b)(1)(A) and (1) Physical contact with cash, 1007(a)(3), Pub. L. 93–355, as amended, Pub. L. 95–222 (42 U.S.C. 2996e(1)(A) and 2996f(3)). checks or similar property; (2) The power to secure physical pos- SOURCE: 49 FR 28717, July 16, 1984, unless session of cash, checks or similar prop- otherwise noted. erty such as through access to a safe § 1629.1 General. deposit box or similar depository, ac- cess to cash or negotiable instruments (a) If any program which receives and assets, power of custody or safe- Corporation funds is not a government, keeping, or the power to borrow or or an agency or instrumentality there- withdraw funds from a bank or other of, such program shall carry fidelity account whether or not physical con- bond coverage at a minimum level of tact actually takes place; at least ten (10) percent of the pro- gram’s annualized LSC funding level (3) The power to transfer or cause to for the previous fiscal year, or of the be transferred property such as mort- initial grant or contract, if the pro- gages, title to land and buildings, or se- gram is a new grantee or contractor. curities, through actual or apparent No coverage carried pursuant to this authority, to oneself or to a third part shall be at a level less than $50,000. party, or to be negotiated for value. (b) A fidelity bond is a bond indem- (c) Persons who actually disburse nifying such program against losses re- funds or other property, such as offi- sulting from the fraud or lack of integ- cers authorized to sign checks or other rity, honesty or fidelity of one or more negotiable instruments, or persons who employees, officers, agents, directors make cash disbursements, shall be con- or other persons holding a position of sidered to be ‘‘handling’’ such funds or trust with the program. property. (d) In connection with disbursements, § 1629.2 Persons required to be bond- any persons with the power to sign or ed. endorse checks or similar instruments (a) Every director, officer, employee or otherwise render them transferable, and agent of a program who handles whether individually or as cosigners funds or property of the program shall with one or more persons, shall each be be bonded as provided in this part. considered to be ‘‘handling’’ such funds (b) Such bond shall provide protec- or other property. tion to the program against loss by (e) To the extent a person’s super- reason of acts of fraud or dishonesty on visory or decision-making responsi- the part of such director, officer, em- bility involves factors in relationship ployee or agent directly or through to funds discussed in paragraphs (b) (1), connivance with others. (2), (3), or paragraphs (c) and (d) of this
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section, such persons shall be consid- with the application for FY 1985 funds, ered to be ‘‘handling’’ in the same man- that it has obtained a bond or bonds ner as any person to whom the criteria which satisfy the requirements of this of those subparagraphs apply. part. (b) A copy of such bond or bonds shall § 1629.4 Meaning of fraud or dishon- be provided to the Corporation at its esty. request. The term ‘‘fraud or dishonesty’’ shall be deemed to encompass all those risks PART 1630—COST STANDARDS of loss that might arise through dis- honest or fraudulent acts in the han- AND PROCEDURES dling of funds as delineated in § 1629.3. As such, the bond must provide recov- Sec. 1630.1 Purpose. ery for loss occasioned by such acts 1630.2 Definitions. even though no personal gain accrues 1630.3 Standards governing allowability of to the person committing the act and costs under Corporation grants or con- the act is not subject to punishment as tracts. a crime or misdemeanor, provided that 1630.4 Burden of proof. within the law of the state in which 1630.5 Costs requiring Corporation prior ap- the act is committed, a court could af- proval. ford recovery under a bond providing 1530.6 Timetable and basis for granting protection against fraud or dishonesty. prior approval. As applied under state laws, the term 1630.7 Review of questioned costs and appeal ‘‘fraud or dishonesty’’ encompasses of disallowed costs. such matters as larceny, theft, embez- 1630.8 Recovery of disallowed costs and other corrective action. zlement, forgery, misappropriation, 1630.9 Other remedies; effect on other parts. wrongful abstraction, wrongful conver- 1630.10 Applicability to subgrants. sion, willful misapplication or any 1630.11 Applicability to non-LSC funds. other fraudulent or dishonest acts. 1630.12 Applicability to derivative income. 1630.13 Time. § 1629.5 Form of bonds. AUTHORITY: 5 U.S.C. App. 3, 42 U.S.C. 2996e, Any form of bond which may be de- 2996f, 2996g, 2996h(c)(1), and 2996i(c); Pub. L. scribed as individual, schedule or blan- 105–119, 111 Stat. 2440; Pub. L. 104–134, 110 ket, or any combination of such forms Stat. 3009. of bonds, shall be acceptable to meet SOURCE: 62 FR 68224, Dec. 31, 1997, unless the requirements of this part. The otherwise noted. basic types of bonds in general usage are: § 1630.1 Purpose. (a) An individual bond which covers a named individual in a stated penalty; This part is intended to provide uni- (b) A name schedule bond which cov- form standards for allowability of costs ers a number of named individuals in and to provide a comprehensive, fair, the respective amounts set opposite timely, and flexible process for the res- their names; olution of questioned costs. (c) A position schedule bond which § 1630.2 Definitions. covers all of the occupants of positions listed in the schedule in the respective (a) Allowed costs means a questioned amounts set opposite such positions; cost that the Corporation, in a man- (d) A blanket bond which covers all agement decision, has determined to be the insured’s directors, officers, em- eligible for payment from a recipient’s ployees and agents with no schedule or Corporation funds. list of those covered being necessary (b) Corrective action means action and with all new directors, officers, taken by a recipient that: employees and agents bonded auto- (1) Corrects identified deficiencies; matically, in a blanket penalty. (2) Produces recommended improve- ments; or § 1629.6 Effective date. (3) Demonstrates that audit or other (a) Each program shall certify in its findings are either invalid or do not Application for Refunding, beginning warrant recipient action.
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(c) Derivative income means income (h) Recipient as used in this part earned by a recipient from Corpora- means any grantee or contractor re- tion-supported activities during the ceiving funds from the Corporation term of a Corporation grant or con- under sections 1006(a)(1) or 1006(a)(3) of tract, and includes, but is not limited the Act. to, income from fees for services (in- [62 FR 68225, Dec. 31, 1997; 63 FR 1532, Jan. 9, cluding attorney fee awards and reim- 1998] bursed costs), sales and rentals of real or personal property, and interest § 1630.3 Standards governing allow- earned on Corporation grant or con- ability of costs under Corporation tract advances. grants or contracts. (d) Disallowed cost means a ques- (a) General criteria. Expenditures by a tioned cost that the Corporation, in a recipient are allowable under the re- management decision, has determined cipient’s grant or contract only if the should not be charged to a recipient’s recipient can demonstrate that the Corporation funds. cost was: (e) Final action means the completion (1) Actually incurred in the perform- of all actions that Corporation man- ance of the grant or contract and the agement, in a management decision, recipient was liable for payment; has concluded are necessary with re- (2) Reasonable and necessary for the spect to the findings and recommenda- performance of the grant or contract as tions in an audit or other report. In the approved by the Corporation; event that Corporation management (3) Allocable to the grant or contract; concludes no corrective action is nec- (4) In compliance with the Act, appli- essary, final action occurs when a man- cable appropriations law, Corporation agement decision has been made. rules, regulations, guidelines, and in- (f) Management decision means the structions, the Accounting Guide for evaluation by Corporation manage- LSC Recipients, the terms and condi- ment of findings and recommendations tions of the grant or contract, and in an audit or other report and the re- other applicable law; cipient’s response to the report, and (5) Consistent with accounting poli- the issuance of a final, written decision cies and procedures that apply uni- by management concerning its re- formly to both Corporation-financed sponse to such findings and rec- and other activities of the recipient; ommendations, including any correc- (6) Accorded consistent treatment tive actions which Corporation man- over time; agement has concluded are necessary (7) Determined in accordance with to address the findings and rec- generally accepted accounting prin- ommendations. ciples; (g) Questioned cost means a cost that (8) Not included as a cost or used to a recipient has charged to Corporation meet cost sharing or matching require- funds which Corporation management, ments of any other federally financed the Office of Inspector General, the program, unless the agency whose General Accounting Office, or an inde- funds are being matched determines in pendent auditor or other audit organi- writing that Corporation funds may be zation authorized to conduct an audit used for federal matching purposes; and of a recipient has questioned because of (9) Adequately and contempora- an audit or other finding that: neously documented in business (1) There may have been a violation records accessible during normal busi- of a provision of a law, regulation, con- ness hours to Corporation manage- tract, grant, or other agreement or ment, the Office of Inspector General, document governing the use of Cor- the General Accounting Office, and poration funds; independent auditors or other audit or- (2) The cost is not supported by ade- ganizations authorized to conduct au- quate documentation; or dits of recipients. (3) The cost incurred appears unnec- (b) Reasonable costs. A cost is reason- essary or unreasonable and does not re- able if, in its nature or amount, it does flect the actions a prudent person not exceed that which would be in- would take in the circumstances. curred by a prudent person under the
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same or similar circumstances pre- with grant awards are direct costs of vailing at the time the decision was the awards and are to be assigned di- made to incur the cost. If a questioned rectly thereto. Direct costs include, cost is disallowed solely on the ground but are not limited to, the salaries and that it is excessive, only the amount wages of recipient staff who are work- that is larger than reasonable shall be ing on cases or matters that are identi- disallowed. In determining the reason- fied with specific grants or contracts. ableness of a given cost, consideration Salary and wages charged directly to shall be given to: Corporation grants and contracts must (1) Whether the cost is of a type gen- be supported by personnel activity re- erally recognized as ordinary and nec- ports. essary for the operation of the recipi- (e) Indirect costs. Indirect costs are ent or the performance of the grant or those that have been incurred for com- contract; mon or joint objectives and cannot be (2) The restraints or requirements readily identified with a particular imposed by such factors as generally final cost objective. Any direct cost of accepted sound business practices, a minor amount may be treated as an arms-length bargaining, Federal and indirect cost for reasons of practicality State laws and regulations, and the where the accounting treatment for terms and conditions of the grant or such cost is consistently applied to all contract; final cost objectives. Indirect costs in- (3) Whether the recipient acted with clude, but are not limited to, the costs prudence under the circumstances, con- of operating and maintaining facilities, sidering its responsibilities to its cli- and the costs of general program ad- ents and employees, the public at ministration, such as the salaries and large, the Corporation, and the Federal wages of program staff whose time is government; and not directly attributable to a par- (4) Significant deviations from the ticular grant or contract. Such staff established practices of the recipient may include, but are not limited to, ex- which may unjustifiably increase the ecutive officers and personnel, ac- grant or contract costs. counting, secretarial and clerical staff. (c) Allocable costs. A cost is allocable to a particular cost objective, such as a (f) Allocation of indirect costs. Where a grant, project, service, or other activ- recipient has only one major function, ity, in accordance with the relative i.e., the delivery of legal services to benefits received. Costs may be allo- low-income clients, allocation of indi- cated to Corporation funds either as di- rect costs may be by a simplified allo- rect or indirect costs according to the cation method, whereby total allow- provisions of this section. A cost is al- able indirect costs (net of applicable locable to a Corporation grant or con- credits) are divided by an equitable dis- tract if it is treated consistently with tribution base and distributed to indi- other costs incurred for the same pur- vidual grant awards accordingly. The pose in like circumstances and if it: distribution base may be total direct (1) Is incurred specifically for the costs, direct salaries and wages, attor- grant or contract; ney hours, numbers of cases, numbers (2) Benefits both the grant or con- of employees, or another base which re- tract and other work and can be dis- sults in an equitable distribution of in- tributed in reasonable proportion to direct costs among funding sources. the benefits received; or (g) Exception for certain indirect costs. (3) Is necessary to the overall oper- Some funding sources may refuse to ation of the recipient, although a di- allow the allocation of certain indirect rect relationship to any particular cost costs to an award. In such instances, a objective cannot be shown. recipient may allocate a proportional (d) Direct costs. Direct costs are those share of another funding source’s share that can be identified specifically with of an indirect cost to Corporation a particular final cost objective, i.e., a funds, provided that the activity asso- particular grant award, project, serv- ciated with the indirect cost is permis- ice, or other direct activity of an orga- sible under the LSC Act and regula- nization. Costs identified specifically tions.
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(h) Applicable credits. Applicable cred- (2) Purchases and leases of equip- its are those receipts or reductions of ment, furniture, or other personal, expenditures which operate to offset or non-expendable property, if the current reduce expense items that are allocable purchase price of any individual item to grant awards as direct or indirect of property exceeds $10,000; costs. Applicable credits include, but (3) Purchases of real property; and are not limited to, purchase discounts, (4) Capital expenditures exceeding rebates or allowances, recoveries or in- $10,000 to improve real property. demnities on losses, insurance refunds, (c) Duration. The Corporation’s ap- and adjustments of overpayments or proval or advance understanding shall erroneous charges. To the extent that be valid for one year, or for a greater such credits relate to allowable costs, period of time which the Corporation they shall be credited as a cost reduc- may specify in its approval or under- tion or cash refund in the same fund to standing. which the related costs are charged. (i) Guidance. The Circulars of the Of- § 1630.6 Timetable and basis for grant- fice of Management and Budget shall ing prior approval. provide guidance for all allowable cost (a) The Corporation shall grant prior questions arising under this part when approval of a cost if the recipient has relevant policies or criteria therein are provided sufficient written information not inconsistent with the provisions of to demonstrate that the cost would be the Act, applicable appropriations law, consistent with the standards and poli- this part, the Accounting Guide for cies of this part. If the Corporation de- LSC Recipients, Corporation rules, reg- nies a request for approval, it shall pro- ulations, guidelines, instructions, and vide to the recipient a written expla- other applicable law. nation of the grounds for denying the request. [62 FR 68225, Dec. 31, 1997; 63 FR 1532, Jan. 9, (b) Except as provided in paragraphs 1998] (c) and (d) of this section, the Corpora- § 1630.4 Burden of proof. tion may not assert the absence of prior approval as a basis for dis- The recipient shall have the burden allowing a questioned cost, if the Cor- of proof under this part. poration has not responded to a writ- ten request for approval within sixty § 1630.5 Costs requiring Corporation (60) days of receiving the request. prior approval. (c) If additional information is nec- (a) Advance understandings. Under essary to enable the Corporation to re- any given grant award, the reasonable- spond to a request for prior approval, ness and allocability of certain cost the Corporation may make a written items may be difficult to determine. In request for additional information order to avoid subsequent disallowance within forty-five (45) days of receiving or dispute based on unreasonableness the request for approval. or nonallocability, recipients may seek (d) If the Corporation has made a a written understanding from the Cor- written request for additional informa- poration in advance of incurring spe- tion about a cost as provided by para- cial or unusual costs. If a recipient graph (c) of this section, and if the Cor- elects not to seek an advance under- poration has not responded within thir- standing from the Corporation, the ab- ty (30) days of receiving in writing all sence of an advance understanding on additional, requested information, the any element of a cost does not affect Corporation may not assert the ab- the reasonableness or allocability of sence of prior approval as a basis for the cost. disallowing the cost. (b) Prior approvals. Without prior written approval of the Corporation, no § 1630.7 Review of questioned costs cost attributable to any of the fol- and appeal of disallowed costs. lowing may be charged to Corporation (a) When the Office of Inspector Gen- funds: eral, the General Accounting Office, or (1) Pre-award costs and costs in- an independent auditor or other audit curred after the cessation of funding; organization authorized to conduct an
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audit of a recipient has identified and (2) If Corporation management has referred a questioned cost to the Cor- determined that the questioned cost poration, Corporation management should be disallowed, the management shall review the findings of the Office decision shall also describe the ex- of Inspector General, General Account- pected recipient action to repay the ing Office, or independent auditor or cost, including the method and sched- other authorized audit organization, as ule for collection of the amount of the well as the recipient’s written response cost. The management decision may to the findings, in order to determine also require the recipient to make fi- accurately the amount of the ques- nancial adjustments or take other cor- tioned cost, the factual circumstances rective action to prevent a recurrence giving rise to the cost, and the legal of the circumstances giving rise to the basis for disallowing the cost. Corpora- disallowed cost. tion management may also identify (e) If the amount of a disallowed cost questioned costs in the course of its exceeds $2,500, the recipient may appeal oversight of recipients. in writing to the Corporation President (b) If Corporation management deter- within thirty (30) days of receiving the mines that there is a basis for dis- Corporation’s management decision to allowing a questioned cost, and if not disallow the cost. The written appeal more than five years have elapsed since should state in detail the reasons why the recipient incurred the cost, Cor- the Corporation should not disallow poration management shall provide to part or all of the questioned cost. If the the recipient written notice of its in- amount of a disallowed cost does not tent to disallow the cost. The written exceed $2,500, or if the recipient elects notice shall state the amount of the not to appeal the disallowance of a cost cost and the factual and legal basis for in excess of $2,500, the Corporation’s disallowing it. management decision shall be final. (c) Within thirty (30) days of receiv- ing written notice of the Corporation’s (f) Within thirty (30) days of receipt intent to disallow the questioned cost, of the recipient’s appeal of a disallowed the recipient may respond with written cost in excess of $2,500, the President evidence and argument to show that shall either adopt, modify, or reverse the cost was allowable, or that the Cor- the Corporation’s management deci- poration, for equitable, practical, or sion to disallow the cost. If the Presi- other reasons, should not recover all or dent has had prior involvement in the part of the amount, or that the recov- consideration of the disallowed cost, ery should be made in installments. If the President shall designate another the recipient does not respond to the senior Corporation employee who has Corporation’s written notice, Corpora- not had prior involvement to review tion management shall issue a manage- the recipient’s appeal. The President ment decision on the basis of informa- shall also have discretion, in cir- tion available to it. cumstances where the President has (d) Within sixty (60) days of receiving not had prior involvement in the dis- the recipient’s written response to the allowed cost, to designate another sen- notice of intent to disallow the ques- ior Corporation employee to review the tioned cost, Corporation management recipient’s appeal, provided that the shall issue a management decision senior Corporation employee has not stating whether or not the cost has had prior involvement in the dis- been disallowed, the reasons for the de- allowed cost. cision, and the method of appeal as (g) The decision of the President or provided in this section. designee shall be final and shall be (1) If Corporation management has based on the written record, consisting determined that the questioned cost of the Corporation’s notice of intent to should be allowed, and that no correc- disallow the questioned cost, the re- tive action by the recipient is nec- cipient’s response, the management de- essary, final action with respect to the cision, the recipient’s written appeal, questioned cost occurs at the time any additional response or analysis when the Corporation issues the man- provided to the President or designee agement decision. by Corporation staff, and the relevant
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findings, if any, of the Office of Inspec- under part 1606, a suspension of funding tor General, General Accounting Of- under part 1623, or a denial of refunding fice, or other authorized auditor or under part 1625. audit organization. Upon request, the Corporation shall provide a copy of the § 1630.10 Applicability to subgrants. written record to the recipient. When disallowed costs arise from ex- penditures incurred under a subgrant § 1630.8 Recovery of disallowed costs and other corrective action. of Corporation funds, the recipient and the subrecipient will be jointly and (a) The Corporation shall recover any severally responsible for the actions of disallowed costs from the recipient the subrecipient, as provided by 45 CFR within the time limits and conditions part 1627, and will be subject to all set forth in the Corporation’s manage- remedies available under this part. ment decision. Recovery of the dis- Both the recipient and the subrecipient allowed costs may be in the form of a shall have access to the review and ap- reduction in the amount of future peal procedures of this part. grant checks or in the form of direct payment from the recipient to the Cor- § 1630.11 Applicability to non-LSC poration. funds. (b) The Corporation shall ensure that a recipient which has incurred a dis- (a) No costs attributable to a purpose allowed cost takes any additional, nec- prohibited by the LSC Act, as defined essary corrective action within the by 45 CFR 1610.2(a), may be charged to time limits and conditions set forth in private funds, except for tribal funds the Corporation’s management deci- used for the specific purposes for which sion. The recipient shall have taken they were provided. No cost attrib- final action when the recipient has re- utable to an activity prohibited by or paid all disallowed costs and has taken inconsistent with section 504, as de- all corrective action which the Cor- fined by 45 CFR 1610.2(b), may be poration has stated in its management charged to non-LSC funds, except for decision is necessary to prevent the re- tribal funds used for the specific pur- currence of circumstances giving rise poses for which they were provided. to a questioned cost. (b) According to the review and ap- (c) In the event of an appeal of the peal procedures of 45 CFR 1630.7, the Corporation’s management decision, Corporation may recover from a recipi- the decision of the President or des- ent’s Corporation funds an amount not ignee shall supersede the Corporation’s to exceed the amount improperly management decision, and the recipi- charged to non-LSC funds. ent shall repay any disallowed costs and take necessary corrective action § 1630.12 Applicability to derivative in- come. according to the terms and conditions of the decision of the President or des- (a) Derivative income resulting from ignee. an activity supported in whole or in part with funds provided by the Cor- § 1630.9 Other remedies; effect on poration shall be allocated to the fund other parts. in which the recipient’s LSC grant is (a) In cases of serious financial mis- recorded in the same proportion that management, fraud, or defalcation of the amount of Corporation funds ex- funds, the Corporation shall refer the pended bears to the total amount ex- matter to the Office of Inspector Gen- pended by the recipient to support the eral, and may take appropriate action activity. pursuant to parts 1606, 1623, 1625, and (b) Derivative income which is allo- 1640 of this chapter. cated to the LSC fund in accordance (b) The recovery of a disallowed cost with paragraph (a) of this section is according to the procedures of this part subject to the requirements of this does not constitute a permanent reduc- part, including the requirement of 45 tion in the annualized funding level of CFR 1630.3(a)(4) that expenditures of the recipient, nor does it constitute a such funds be in compliance with the termination of financial assistance Act, applicable appropriations law,
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Corporation rules, regulations, guide- (b) Programs seeking a waiver pursu- lines, and instructions, the Accounting ant to paragraph (a) of this section Guide for LSC recipients, the terms must submit documentation to the and conditions of the grant or con- Corporation detailing their efforts to tract, and other applicable law. dispose of such cases in accordance with the procedures required in [62 FR 68227, Dec. 31, 1997; 63 FR 1532, Jan. 9, § 1626.6(a) (1), (2) and (3), and receive 1998] Corporation approval to expend funds § 1630.13 Time. for completion of the affected cases. (a) Computation. Time limits specified PART 1632—REDISTRICTING in this part shall be computed in ac- cordance with Rules 6(a) and 6(e) of the Sec. Federal Rules of Civil Procedure. 1632.1 Purpose. (b) Extensions. The Corporation may, 1632.2 Definitions. on a recipient’s written request for 1632.3 Prohibition. good cause, grant an extension of time 1632.4 Recipient policies. and shall so notify the recipient in AUTHORITY: 42 U.S.C. 2996e(b)(1)(A); writing. 2996f(a)(2)(C); 2996f(a)(3); 2996(g)(e); 110 Stat. 3009; 110 Stat. 1321(1996). PART 1631—EXPENDITURE OF SOURCE: 61 FR 63756, Dec. 2, 1996, unless GRANT FUNDS otherwise noted.
Sec. § 1632.1 Purpose. 1631.1 Policy. This part is intended to ensure that 1631.2 Application and waiver. recipients do not engage in redis- tricting activities. AUTHORITY: 42 U.S.C. 2996e(b)(1)(A), 2996f(a)(3); Pub. L. 99–190, 99 Stat. 1185; Pub. L. 99–180, 99 Stat. 1136. § 1632.2 Definitions. (a) Advocating or opposing any plan SOURCE: 51 FR 24827, July 9, 1986, unless means any effort, whether by request otherwise noted. or otherwise, even if of a neutral na- § 1631.1 Policy. ture, to revise a legislative, judicial, or elective district at any level of govern- No Legal Services Corporation funds, ment. including income derived therefrom (b) Recipient means any grantee or and those LSC funds held by organiza- contractor receiving funds made avail- tions which control, are controlled by, able by the Corporation under sections or are subject to common control with, 1006(a)(1) or 1006(a)(3) of the LSC Act. a recipient or subrecipient, a group of For the purposes of this part, recipient recipients and/or subrecipients, or includes subrecipient and employees of agents or employees of such organiza- recipients and subrecipients. tions shall be expended, unless such (c) Redistricting means any effort, di- funds are expended in accordance with rectly or indirectly, that is intended to all of the restrictions and provisions of or would have the effect of altering, re- Pub. L. 99–180 of December 13, 1985, ex- vising, or reapportioning a legislative, cept that such funds may be expended judicial, or elective district at any for the continued representation of level of government, including influ- aliens prohibited by said Public Law encing the timing or manner of the where such representation commenced taking of a census. prior to January 1, 1983, or as approved by the Corporation. § 1632.3 Prohibition. (a) Neither the Corporation nor any § 1631.2 Application and waiver. recipient shall make available any (a) The Corporation may grant a funds, personnel, or equipment for use waiver of the restrictions contained in in advocating or opposing any plan or this part to enable a program to com- proposal, or representing any party, or plete representation in cases which participating in any other way in liti- commenced prior to January 1, 1986. gation, related to redistricting.
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(b) This part does not prohibit any (a) The person has been charged with litigation brought by a recipient under or has been convicted of the illegal the Voting Rights Act of 1965, as sale, distribution, or manufacture of a amended, 42 U.S.C. 1971 et seq., provided controlled substance, or possession of a such litigation does not involve redis- controlled substance with the intent to tricting. sell or distribute; and (b) The eviction proceeding is § 1632.4 Recipient policies. brought by a public housing agency on Each recipient shall adopt written the basis that the illegal drug activity policies to implement the requirements for which the person has been charged of this part. or for which the person has been con- victed threatens the health or safety of PART 1633—RESTRICTION ON REP- other tenants residing in the public housing project or employees of the RESENTATION IN CERTAIN EVIC- public housing agency. TION PROCEEDINGS § 1633.4 Recipient policies, procedures Sec. and recordkeeping. 1633.1 Purpose. 1633.2 Definitions. Each recipient shall adopt written 1633.3 Prohibition. policies and procedures to guide its 1633.4 Recipient policies, procedures and staff in complying with this part and recordkeeping. shall maintain records sufficient to document the recipient’s compliance AUTHORITY: 42 U.S.C. 2996e(a), 2996e(b)(1)(A), 2996f(a)(2)(C), 2996f(a)(3), with this part. 2996g(e); 110 Stat. 3009; 110 Stat. 1321 (1996).
SOURCE: 61 FR 63758, Dec. 2, 1996, unless PART 1634—COMPETITIVE BIDDING otherwise noted. FOR GRANTS AND CONTRACTS
§ 1633.1 Purpose. Sec. This part is designed to ensure that 1634.1 Purpose. in certain public housing eviction pro- 1634.2 Definitions. ceedings recipients refrain from de- 1634.3 Competition for grants and contracts. fending persons charged with or con- 1634.4 Announcement of competition. victed of illegal drug activities. 1634.5 Identification of qualified applicants for grants and contracts. 1634.6 Notice of intent to compete. § 1633.2 Definitions. 1634.7 Application process. (a) Controlled substance has the mean- 1634.8 Selection process. ing given that term in section 102 of 1634.9 Selection criteria. the Controlled Substances Act (21 1634.10 Transition provisions. U.S.C. 802); 1634.11 Replacement of recipient that does (b) Public housing project and public not complete grant term. housing agency have the meanings 1634.12 Emergency procedures and waivers. given those terms in section 3 of the AUTHORITY: 42 U.S.C. 2996e(a)(1)(A); United States Housing Act of 1937 (42 2996f(a)(3). U.S.C. 1437a); SOURCE: 61 FR 14258, Apr. 1, 1996, unless (c) Charged with means that a person otherwise noted. is subject to a pending criminal pro- ceeding instituted by a governmental § 1634.1 Purpose. entity with authority to initiate such This part is designed to improve the proceeding against that person for en- delivery of legal assistance to eligible gaging in illegal drug activity. clients through the use of a competi- tive system to award grants and con- § 1633.3 Prohibition. tracts for the delivery of legal services. Recipients are prohibited from de- The purposes of such a competitive sys- fending any person in a proceeding to tem are to: evict that person from a public housing (a) Encourage the effective and eco- project if: nomical delivery of high quality legal
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services to eligible clients that is con- (c) Service area is the area defined by sistent with the Corporation’s Per- the Corporation to be served by grants formance Criteria and the American or contracts to be awarded on the basis Bar Association’s Standards for Pro- of a competitive bidding process. A viders of Civil Legal Services to the service area is defined geographically Poor through an integrated system of and may consist of all or part of the legal services providers; area served by a current recipient, or it (b) Provide opportunities for quali- may include an area larger than the fied attorneys and entities to compete area served by a current recipient. for grants and contracts to deliver high (d) Subpopulation of eligible clients in- quality legal services to eligible cli- cludes Native Americans and migrant ents; farm workers and may include other (c) Encourage ongoing improvement groups of eligible clients that, because of performance by recipients in pro- they have special legal problems or viding high quality legal services to el- face special difficulties of access to igible clients; legal services, might better be ad- (d) Preserve local control over re- dressed by a separate delivery system source allocation and program prior- to serve that client group effectively. ities; and § 1634.3 Competition for grants and (e) Minimize disruptions in the deliv- contracts. ery of legal services to eligible clients (a) After the effective date of this within a service area during a transi- part, all grants and contracts for legal tion to a new provider. assistance awarded by the Corporation under Section 1006(a)(1)(A) of the LSC § 1634.2 Definitions. Act shall be subject to the competitive (a) Qualified applicants are those per- bidding process described in this part. sons, groups or entities described in No grant or contract for the delivery of section 1634.5(a) of this part who are el- legal assistance shall be awarded by igible to submit notices of intent to the Corporation for any period after compete and applications to partici- the effective date of this part, unless pate in a competitive bidding process the recipient of that grant has been se- as described in this part. lected on the basis of the competitive (b) Review panel means a group of in- bidding process described in this part. dividuals who are not Corporation staff (b) The Corporation shall determine but who are engaged by the Corpora- the service areas to be covered by tion to review applications and make grants or contracts and shall deter- recommendations regarding awards of mine whether the population to be grants or contracts for the delivery of served will consist of all eligible cli- legal assistance to eligible clients. A ents within the service area or a spe- majority of review panel members cific subpopulation of eligible clients shall be lawyers who are supportive of within one or more service areas. the purposes of the LSC Act and expe- (c) The use of the competitive bid- rienced in and knowledgeable about the ding process to award grant(s) or con- delivery of legal assistance to low-in- tract(s) shall not constitute a termi- come persons, and eligible clients or nation or denial of refunding of finan- representatives of low-income commu- cial assistance to a current recipient nity groups. The remaining members of pursuant to parts 1606 and 1625 of this the review panel shall be persons who chapter. are supportive of the purposes of the (d) Wherever possible, the Corpora- LSC Act and have an interest in and tion shall award no more than one knowledge of the delivery of quality grant or contract to provide legal as- legal services to the poor. No person sistance to eligible clients or a sub- may serve on a review panel for an ap- population of eligible clients within a plicant with whom the person has a fi- service area. The Corporation may nancial interest or ethical conflict; nor award more than one grant or contract may the person have been a board to provide legal assistance to eligible member of or employed by that appli- clients or a subpopulation of eligible cant in the past five years. clients within a service area only when
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the Corporation determines that it is may also include any other informa- necessary to award more than one such tion that the Corporation determines grant or contract in order to ensure to be appropriate. that all eligible clients within the serv- (c) The Corporation shall make a ice area will have access to a full range copy of the RFP available to any per- of high quality legal services in accord- son, group or entity that requests a ance with the LSC Act or other appli- copy in accordance with procedures es- cable law. tablished by the Corporation. (e) In no event may the Corporation award a grant or contract for a term § 1634.5 Identification of qualified ap- longer than five years. The amount of plicants for grants and contracts. funding provided annually under each (a) The following persons, groups and such grant or contract is subject to entities are qualified applicants who changes in congressional appropria- may submit a notice of intent to com- tions or restrictions on the use of those pete and an application to participate funds by the Corporation. A reduction in the competitive bidding process: in a recipient’s annual funding required (1) Current recipients; as a result of a change in the law or a (2) Other non-profit organizations reduction in funding appropriated to that have as a purpose the furnishing the Corporation shall not be considered of legal assistance to eligible clients; a termination or denial of refunding (3) Private attorneys, groups of at- under parts 1606 or 1625 of this chapter. torneys or law firms (except that no § 1634.4 Announcement of competition. private law firm that expends 50 per- cent or more of its resources and time (a) The Corporation shall give public litigating issues in the broad interests notice that it intends to award a grant of a majority of the public may be or contract for a service area on the awarded a grant or contract under the basis of a competitive bidding process, LSC Act); shall take appropriate steps to an- (4) State or local governments; nounce the availability of such a grant or contract in the periodicals of State (5) Substate regional planning and and local bar associations, and shall coordination agencies which are com- publish a notice of the Request For posed of substate areas and whose gov- Proposals (RFP) in at least one daily erning boards are controlled by locally newspaper of general circulation in the elected officials. area to be served under the grant or (b) All persons, groups and entities contract. In addition, the Corporation listed in paragraph (a) of this section shall notify current recipients, other must have a governing or policy body bar associations, and other interested consistent with the requirements of groups within the service area of the part 1607 of this chapter or other law availability of the grant or contract that sets out requirements for recipi- and shall conduct such other outreach ents’ governing bodies, unless such as the Corporation determines to be ap- governing body requirements are in- propriate to ensure that interested par- consistent with applicable law. ties are given an opportunity to par- (c) Applications may be submitted ticipate in the competitive bidding jointly by more than one qualified ap- process. plicant so long as the application de- (b) The Corporation shall issue an lineates the respective roles and re- RFP which shall include information sponsibilities of each qualified appli- regarding: who may apply, application cant. procedures, the selection process, se- lection criteria, the service areas that § 1634.6 Notice of intent to compete. will be the subject of the competitive (a) In order to participate in the com- bidding process, the amount of funding petitive bidding process, an applicant available for the service area, if must submit a notice of intent to com- known, applicable timetables and dead- pete on or before the date designated lines, and the LSC Act, regulations, by the Corporation in the RFP. The guidelines and instructions and any Corporation may extend the date if other applicable federal law. The RFP necessary to take account of special
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circumstances or to permit the Cor- (2) Request from an applicant and re- poration to solicit additional notices of view any additional information that intent to compete. the Corporation determines is appro- (b) At the time of the filing of the no- priate to evaluate the application tice of intent to compete, each appli- fully; cant must provide the Corporation (3) Conduct one or more on-site visits with the following information as well to an applicant if the Corporation de- as any additional information that the termines that such visits are appro- Corporation determines is appropriate: priate to evaluate the application (1) Names and resumes of principals fully; and key staff; (4) Summarize in writing information (2) Names and resumes of current and regarding the applicant that is not con- proposed governing board or policy tained in the application if appropriate body members and their appointing or- for the review process; and ganizations; (5) Convene a review panel unless (3) Initial description of area pro- there is only one applicant for a par- posed to be served by the applicant and ticular service area and the Corpora- the services to be provided. tion determines that use of a review panel is not appropriate. The review § 1634.7 Application process. panel shall: (a) The Corporation shall set a date (i) Review the applications and the for receipt of applications and shall an- summaries prepared by the Corpora- nounce the date in the RFP. The date tion staff. The review panel may re- shall afford applicants adequate oppor- quest other information identified by tunity, after filing the notice of intent the Corporation as necessary to evalu- to compete, to complete the applica- ate the applications fully; and tion process. The Corporation may ex- (ii) Make a written recommendation tend the application date if necessary to the Corporation regarding the award to take account of special cir- of grants or contracts from the Cor- cumstances. poration for a particular service area. (b) The application shall be sub- (6) After considering the rec- mitted in a form to be determined by ommendation made by the review the Corporation. panel, if a review panel was convened, (c) A completed application shall in- make a staff recommendation to the clude all of the information requested President. The staff recommendation by the RFP. It may also include any shall include the recommendation of additional information needed to fully the review panel and, if the staff rec- address the selection criteria, and any ommendation differs from that of the other information requested by the review panel, an explanation of the Corporation. Incomplete applications basis for the difference in the rec- will not be considered for awards by ommendations. the Corporation. (b) After reviewing the written rec- (d) The Corporation shall establish a ommendations, the President shall se- procedure to provide notification to ap- lect the applicants to be awarded plicants of receipt of the application. grants or contracts from the Corpora- tion and the Corporation shall notify § 1634.8 Selection process. each applicant in writing of the Presi- (a) After receipt of all applications dent’s decision regarding each appli- for a particular service area, Corpora- cant’s application. tion staff shall: (c) In the event that there are no ap- (1) Review each application and any plicants for a service area or that the additional information that the Cor- Corporation determines that no appli- poration has regarding each applicant, cant meets the criteria and therefore including for any applicant that is or determines not to award a grant or includes a current or former recipient, contract for a particular service area, past monitoring and compliance re- the Corporation shall take all practical ports, performance evaluations and steps to ensure the continued provision other pertinent records for the past six of legal assistance in that service area. years; The Corporation shall have discretion
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to determine how legal assistance is to ices delivery system in the State and be provided to the service area, includ- its willingness to coordinate with the ing, but not limited to, enlarging the various components as appropriate to service area of a neighboring recipient, assure the availability of a full range putting a current recipient on month- of legal assistance, including: to-month funding or entering into a (i) its capacity to cooperate with short term, interim grant or contract State and local bar associations, pri- with another qualified provider for the vate attorneys and pro bono programs provision of legal assistance in the to increase the involvement of private service area until the completion of a attorneys in the delivery of legal as- competitive bidding process within a sistance and the availability of pro reasonable period of time. bono legal services to eligible clients; and § 1634.9 Selection criteria. (ii) its knowledge of and willingness (a) The criteria to be used to select to cooperate with other legal services among qualified applicants shall in- providers, community groups, public clude the following: interest organizations and human serv- (1) Whether the applicant has a full ices providers in the service area; understanding of the basic legal needs (7) The applicant’s capacity to de- of the eligible clients in the area to be velop and increase non-Corporation re- served; sources; (2) The quality, feasibility and cost- (8) The applicant’s capacity to ensure effectiveness of the applicant’s legal continuity in client services and rep- services delivery and delivery approach resentation of eligible clients with in relation to the Corporation’s Per- pending matters; and formance Criteria and the American (9) The applicant does not have Bar Association’s Standards for Pro- known or potential conflicts of inter- viders of Civil Legal Services to the est, institutional or otherwise, with Poor, as evidenced by, among other the client community and dem- things, the applicant’s experience with onstrates a capacity to protect against the delivery of the type of legal assist- such conflicts. ance contemplated under the proposal; (b) In selecting recipients of awards (3) Whether the applicant’s governing for grants or contracts under this part, or policy body meets or will meet all the Corporation shall not grant any applicable requirements of the LSC preference to current or previous re- Act, regulations, guidelines, instruc- cipients of funds from the Corporation. tions and any other requirements of law in accordance with a time schedule § 1634.10 Transition provisions. set out by the Corporation; (a) When the competitive bidding (4) The applicant’s capacity to com- process results in the award of a grant ply with all other applicable provisions or contract to an applicant, other than of the LSC Act, rules, regulations, the current recipient, to serve the area guidelines and instructions, as well as currently served by that recipient, the with ethical requirements and any Corporation— other requirements imposed by law. (1) may provide, if the law permits, Evidence of the applicant’s capacity to continued funding to the current re- comply with this criterion may in- cipient, for a period of time and at a clude, among other things, the appli- level to be determined by the Corpora- cant’s compliance experience with the tion after consultation with the recipi- Corporation or other funding sources ent, to ensure the prompt and orderly or regulatory agencies, including but completion of or withdrawal from not limited to Federal or State agen- pending cases or matters or the trans- cies, bar associations or foundations, fer of such cases or matters to the new courts, IOLTA programs, and private recipient or to other appropriate legal foundations; service providers in a manner con- (5) The reputations of the applicant’s sistent with the rules of ethics or pro- principals and key staff; fessional responsibility for the jurisdic- (6) The applicant’s knowledge of the tion in which those services are being various components of the legal serv- provided; and
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(2) shall ensure, after consultation AUTHORITY: 42 U.S.C. §§ 2996e(b)(1)(A), with the recipient, the appropriate dis- 2996g(a), 2996g(b), 2996g(e). position of real and personal property SOURCE: 65 FR 41882, July 7, 2000, unless purchased by the current recipient in otherwise noted. whole or in part with Corporation funds consistent with the Corporation’s § 1635.1 Purpose. policies. This part is intended to improve ac- (b) Awards of grants or contracts for countability for the use of all funds of legal assistance to any applicant that a recipient by: is not a current recipient may, in the (a) Assuring that allocations of ex- Corporation’s discretion, provide for penditures of LSC funds pursuant to 45 incremental increases in funding up to CFR part 1630 are supported by accu- the annualized level of the grant or rate and contemporaneous records of contract award in order to ensure that the cases, matters, and supporting ac- the applicant has the capacity to uti- tivities for which the funds have been lize Corporation funds in an effective expended; and economical manner. (b) Enhancing the ability of the re- § 1634.11 Replacement of recipient cipient to determine the cost of spe- that does not complete grant term. cific functions; and (c) Increasing the information avail- In the event that a recipient is un- able to LSC for assuring recipient com- able or unwilling to continue to per- pliance with Federal law and LSC rules form the duties required under the terms of its grant or contract, the Cor- and regulations. poration shall take all practical steps § 1635.2 Definitions. to ensure the continued provision of legal assistance in that service area. As used in this part— The Corporation shall have discretion (a) A case is a form of program serv- to determine how legal assistance is to ice in which an attorney or paralegal of be provided to the service area, includ- a recipient provides legal services to ing, but not limited to, enlarging the one or more specific clients, including, service area of a neighboring recipient, without limitation, providing represen- putting a current recipient on month- tation in litigation, administrative to-month funding or entering into a proceedings, and negotiations, and short term, interim grant or contract such actions as advice, providing brief with another qualified provider for the services and transactional assistance, provision of legal assistance in the and assistance with individual PAI service area until the completion of a cases. competitive bidding process within a (b) A matter is an action which con- reasonable period of time. tributes to the overall delivery of pro- gram services but does not involve di- § 1634.12 Emergency procedures and rect legal advice to or legal representa- waivers. tion of one or more specific clients. Ex- The President of the Corporation amples of matters include both direct may waive the requirements of §§ 1634.6 services, such as but not limited to, and 1634.8(a) (3) and (5) when necessary community education presentations, to comply with requirements imposed operating pro se clinics, providing in- by law on the awards of grants and con- formation about the availability of tracts for a particular fiscal year. legal assistance, and developing writ- ten materials explaining legal rights PART 1635—TIMEKEEPING and responsibilities; and indirect serv- REQUIREMENT ices, such as training, continuing legal education, general supervision of pro- Sec. gram services, preparing and dissemi- 1635.1 Purpose. nating desk manuals, PAI recruitment, 1635.2 Definitions. referral, intake when no case is under- 1635.3 Timekeeping requirement. taken, and tracking substantive law 1635.4 Administrative provisions. developments.
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(c) Restricted activities means those on a quarterly basis and shall be made activities that recipients may not un- on a form determined by LSC. dertake as set out in 45 CFR part 1610. (d) A supporting activity is any action § 1635.4 Administrative provisions. that is not a case or matter, including Time records required by this section management in general, and fund-rais- shall be available for examination by ing. auditors and representatives of LSC, and by any other person or entity § 1635.3 Timekeeping requirement. statutorily entitled to access to such (a) All expenditures of funds for re- records. LSC shall not disclose any time record except to a Federal, State cipient actions are, by definition, for or local law enforcement official or to cases, matters, or supporting activi- an official of an appropriate bar asso- ties. The allocation of all expenditures ciation for the purpose of enabling such must be carried out in accordance with bar association official to conduct an 45 CFR part 1630. investigation of an alleged violation of (b) Time spent by attorneys and the rules of professional conduct. paralegals must be documented by time records which record the amount of time spent on each case, matter, or PART 1636—CLIENT IDENTITY AND supporting activity. STATEMENT OF FACTS (1) Time records must be created con- temporaneously and account for time Sec. 1636.1 Purpose. by date and in increments not greater 1636.2 Requirements. than one-quarter of an hour which 1636.3 Access to written statements. comprise all of the efforts of the attor- 1636.4 Applicability. neys and paralegals for which com- 1636.5 Recipient policies, procedures and pensation is paid by the recipient. recordkeeping. (2) Each record of time spent must AUTHORITY: Pub. L. 104–208, 110 Stat. 3009; contain: for a case, a unique client Pub. L. 104–134, 110 Stat. 1321. name or case number; for matters or SOURCE: 62 FR 19420, Apr. 21, 1997, unless supporting activities, an identification otherwise noted. of the category of action on which the time was spent. § 1636.1 Purpose. (c) The timekeeping system must be The purpose of this rule is to ensure able to aggregate time record informa- that, when an LSC recipient files a tion on both closed and pending cases complaint in a court of law or other- by legal problem type. wise initiates or participates in litiga- (d) Recipients shall require any at- tion against a defendant or engages in torney or paralegal who works part- pre-complaint settlement negotiations, time for the recipient and part-time for the recipient identifies the plaintiff it an organization that engages in re- represents to the defendant and en- stricted activities to certify in writing sures that the plaintiff has a colorable that the attorney or paralegal has not claim. engaged in restricted activity during any time for which the attorney or § 1636.2 Requirements. paralegal was compensated by the re- (a) When a recipient files a complaint cipient or has not used recipient re- in a court of law or otherwise initiates sources for restricted activities. The or participates in litigation against a certification requirement does not defendant, or before a recipient en- apply to a de minimis action related to gages in pre-complaint settlement ne- a restricted activity. Actions con- gotiations with a prospective defendant sistent with the de minimis standard are on behalf of a client who has author- those that meet all or most of the fol- ized it to file suit in the event that the lowing criteria: actions that are of lit- settlement negotiations are unsuccess- tle substance; require little time; are ful, it shall: not initiated by the part-time em- (1) Identify each plaintiff it rep- ployee; and, for the most part, are un- resents by name in any complaint it avoidable. Certifications shall be made files, or in a separate notice provided
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to the defendant against whom the § 1636.4 Applicability. complaint is filed where disclosure in This part applies to cases for which the complaint would be contrary to law private attorneys are compensated by or court rules or practice, and identify the recipient as well as to those cases each plaintiff it represents to prospec- initiated by the recipient’s staff. tive defendants in pre-litigation settle- ment negotiations, unless a court of § 1636.5 Recipient policies, procedures competent jurisdiction has entered an and recordkeeping. order protecting the client from such Each recipient shall adopt written disclosure based on a finding, after no- policies and procedures to guide its tice and an opportunity for a hearing staff in complying with this part and on the matter, of probable, serious shall maintain records sufficient to harm to the plaintiff if the disclosure document the recipient’s compliance is not prevented; and with this part. (2) Prepare a dated written statement signed by each plaintiff it represents, enumerating the particular facts sup- PART 1637—REPRESENTATION OF porting the complaint, insofar as they PRISONERS are known to the plaintiff when the statement is signed. Sec. (b) The statement of facts must be 1637.1 Purpose. written in English and, if necessary, in 1637.2 Definitions. a language other than English that the 1637.3 Prohibition. plaintiff understands. 1637.4 Change in circumstances. 1637.5 Recipient policies, procedures and (c) In the event of an emergency, recordkeeping. where the recipient reasonably believes that delay is likely to cause harm to a AUTHORITY: 42 U.S.C. 2996g(e); Pub. L. 104– significant safety, property or liberty 208, 110 Stat. 3009; Pub. L. 104–134, 110 Stat. 1321. interest of the client, the recipient may proceed with the litigation or ne- SOURCE: 62 FR 19422, Apr. 21, 1997, unless gotiation without a signed statement otherwise noted. of facts, provided that the statement is § 1637.1 Purpose. prepared and signed as soon as possible thereafter. This part is intended to ensure that recipients do not participate in any § 1636.3 Access to written statements. civil litigation on behalf of persons in- (a) Written statements of facts pre- carcerated in Federal, State or local pared in accordance with this part are prisons. to be kept on file by the recipient and § 1637.2 Definitions. made available to the Corporation or to any Federal department or agency (a) Incarcerated means the involun- auditing or monitoring the activities of tary physical restraint of a person who the recipient or to any auditor or mon- has been arrested for or convicted of a itor receiving Federal funds to audit or crime. monitor on behalf of a Federal depart- (b) Federal, State or local prison means ment or agency or on behalf of the Cor- any penal facility maintained under poration. governmental authority. (b) This part does not give any person or party other than those listed in § 1637.3 Prohibition. paragraph (a) of this section any right A recipient may not participate in of access to the plaintiff’s written any civil litigation on behalf of a per- statement of facts, either in the law- son who is incarcerated in a Federal, suit or through any other procedure. State or local prison, whether as a Access to the statement of facts by plaintiff or as a defendant, nor may a such other persons or parties is gov- recipient participate on behalf of such erned by applicable law and the dis- an incarcerated person in any adminis- covery rules of the court in which the trative proceeding challenging the con- action is brought. ditions of incarceration.
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§ 1637.4 Change in circumstances. (b) Recipients and their employees are also prohibited from referring to If, to the knowledge of the recipient, other recipients individuals to whom a client becomes incarcerated after they have given in-person unsolicited litigation has commenced, the recipi- advice. ent must use its best efforts to with- draw promptly from the litigation, un- § 1638.4 Permissible activities. less the period of incarceration is an- ticipated to be brief and the litigation (a) This part does not prohibit recipi- is likely to continue beyond the period ents or their employees from providing of incarceration. information regarding legal rights and responsibilities or providing informa- § 1637.5 Recipient policies, procedures tion regarding the recipient’s services and recordkeeping. and intake procedures through commu- Each recipient shall adopt written nity legal education activities such as policies and procedures to guide its outreach, public service announce- staff in complying with this part and ments, maintaining an ongoing pres- shall maintain records sufficient to ence in a courthouse to provide advice document the recipient’s compliance at the invitation of the court, dissemi- with this part. nating community legal education pub- lications, and giving presentations to groups that request them. PART 1638—RESTRICTION ON (b) A recipient may represent an oth- SOLICITATION erwise eligible individual seeking legal assistance from the recipient as a re- Sec. sult of information provided as de- 1638.1 Purpose. scribed in § 1638.4(a), provided that the 1638.2 Definitions. request has not resulted from in-person 1638.3 Prohibition. unsolicited advice. 1638.4 Permissible activities. (c) This part does not prohibit rep- 1638.5 Recipient policies. resentation or referral of clients by re- AUTHORITY: Sec. 504(a)(18), Pub. L. 104–208, cipients pursuant to a statutory or pri- 110 Stat. 3009; Pub. L. 104–134, 110 Stat. 1321. vate ombudsman program that pro- SOURCE: 62 FR 19424, Apr. 21, 1997, unless vides investigatory and referral serv- otherwise noted. ices and/or legal assistance on behalf of persons who are unable to seek assist- § 1638.1 Purpose. ance on their own, including those who This part is designed to ensure that are institutionalized or are physically recipients and their employees do not or mentally disabled. solicit clients. § 1638.5 Recipient policies. § 1638.2 Definitions. Each recipient shall adopt written (a) In-person means a face-to-face en- policies to implement the requirements counter or a personal encounter via of this part. other means of communication such as a personal letter or telephone call. PART 1639—WELFARE REFORM (b) Unsolicited advice means advice to obtain counsel or take legal action Sec. given by a recipient or its employee to 1639.1 Purpose. an individual who did not seek the ad- 1639.2 Definitions. vice and with whom the recipient does 1639.3 Prohibition. not have an attorney-client relation- 1639.4 Permissible representation of eligible clients. ship. 1639.5 Exceptions for public rulemaking and responding to requests with non-LSC § 1638.3 Prohibition. funds. (a) Recipients and their employees 1639.6 Recipient policies and procedures. are prohibited from representing a cli- AUTHORITY: 42 U.S.C. 2996g(e); Pub. L. 104– ent as a result of in-person unsolicited 208, 110 Stat. 3009; Pub. L. 104–134, 110 Stat. advice. 1321.
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SOURCE: 62 FR 30766, June 5, 1997, unless (a) Litigation challenging laws or otherwise noted. regulations enacted as part of an effort to reform a Federal or State welfare § 1639.1 Purpose. system. The purpose of this rule is to ensure (b) Rulemaking involving proposals that LSC recipients do not initiate liti- that are being considered to implement gation involving, or challenge or par- an effort to reform a Federal or State ticipate in, efforts to reform a Federal welfare system. or State welfare system. The rule also (c) Lobbying before legislative or ad- clarifies when recipients may engage in ministrative bodies undertaken di- representation on behalf of an indi- rectly or through grassroots efforts in- vidual client seeking specific relief volving pending or proposed legislation from a welfare agency and under what that is part of an effort to reform a circumstances recipients may use Federal or State welfare system. funds from sources other than the Cor- poration to comment on public rule- § 1639.4 Permissible representation of making or respond to requests from eligible clients. legislative or administrative officials Recipients may represent an indi- involving a reform of a Federal or vidual eligible client who is seeking State welfare system. specific relief from a welfare agency, if such relief does not involve an effort to § 1639.2 Definitions. amend or otherwise challenge existing (a) An effort to reform a Federal or law in effect on the date of the initi- State welfare system includes all of the ation of the representation. provisions, except for the Child Sup- port Enforcement provisions of Title § 1639.5 Exceptions for public rule- III, of the Personal Responsibility and making and responding to requests Work Opportunity Reconciliation Act with non-LSC funds. of 1996 (Personal Responsibility Act), Consistent with the provisions of 45 110 Stat. 2105 (1996), and subsequent leg- CFR 1612.6 (a) through (e), recipients islation enacted by Congress or the may use non-LSC funds to comment in States to implement, replace or modify a public rulemaking proceeding or re- key components of the provisions of spond to a written request for informa- the Personal Responsibility Act or by tion or testimony from a Federal, States to replace or modify key compo- State or local agency, legislative body, nents of their General Assistance or or committee, or a member thereof, re- similar means-tested programs con- garding an effort to reform a Federal ducted by States or by counties with or State welfare system. State funding or under State man- dates. § 1639.6 Recipient policies and proce- (b) Existing law as used in this part dures. means Federal, State or local statu- Each recipient shall adopt written tory laws or ordinances which are en- policies and procedures to guide its acted as an effort to reform a Federal staff in complying with this part. or State welfare system and regula- tions issued pursuant thereto that have been formally promulgated pursuant to PART 1640—APPLICATION OF public notice and comment procedures. FEDERAL LAW TO LSC RECIPIENTS
§ 1639.3 Prohibition. Sec. 1640.1 Purpose. Except as provided in §§ 1639.4 and 1640.2 Definitions. 1639.5, recipients may not initiate legal 1640.3 Contractual agreement. representation, or participate in any 1640.4 Violation of agreement. other way in litigation, lobbying or rulemaking, involving an effort to re- AUTHORITY: Sec. 504(a)(19), Pub. L. 104–208, form a Federal or State welfare sys- 110 Stat. 3009; Pub. L. 104–134, 110 Stat. 1321. tem. Prohibited activities include par- SOURCE: 62 FR 19426, Apr. 21, 1997, unless ticipation in: otherwise noted.
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§ 1640.1 Purpose. any of the laws listed in paragraph The purpose of this part is to ensure (a)(1) of this section, with respect to its that recipients use their LSC funds in LSC grant or contract, by the court accordance with Federal law related to having jurisdiction of the matter, and the proper use of Federal funds. This any appeals of the conviction or judg- part also identifies the Federal laws ment have been exhausted or the time which apply, and it provides notice of for the appeal has expired; or (2) An employee or board member of the consequences to a recipient of a the recipient has been convicted of, or violation of such Federal laws by a re- judgment has been entered against the cipient, its employees or board mem- bers. employee or board member for, a viola- tion of any of the laws listed in para- § 1640.2 Definitions. graph (a)(1) of this section with respect to a recipient’s grant or contract with (a)(1) Federal law relating to the proper LSC by the court having jurisdiction of use of Federal funds means: the matter, and any appeals of the con- (i) 18 U.S.C. 201(Bribery of Public Of- viction or judgment have been ex- ficials and Witnesses); (ii) 18 U.S.C. 286 (Conspiracy to De- hausted or the time for appeal has ex- fraud the Government With Respect to pired, and the Corporation finds that Claims); the recipient has knowingly or through (iii) 18 U.S.C. 287 (False, Fictitious or gross negligence allowed the employee Fraudulent Claims); or board member to engage in such ac- (iv) 18 U.S.C. 371 (Conspiracy to Com- tivities. mit Offense or Defraud the United § 1640.3 Contractual agreement. States); (v) 18 U.S.C. 641 (Public Money, Prop- As a condition of receiving LSC erty or Records); funds, a recipient must enter into a (vi) 18 U.S.C. 1001 (Statements or En- written contractual agreement with tries Generally); the Corporation that, with respect to (vii) 18 U.S.C. 1002 (Possession of its LSC funds, it will be subject to the False Papers to Defraud the United Federal laws listed in § 1640.2(a)(1). The States); agreement shall include a statement (viii) 18 U.S.C. 1516 (Obstruction of that all of the recipient’s employees Federal Audit); and board members have been informed (ix) 31 U.S.C. 3729 (False Claims); of such Federal law and of the con- (x) 31 U.S.C. 3730 (Civil Actions for sequences of a violation of such law, False Claims), except that actions that both to the recipient and to themselves are authorized by 31 U.S.C. 3730(b) to be as individuals. brought by persons may not be brought against the Corporation, any recipient, § 1640.4 Violation of agreement. subrecipient, grantee, or contractor of (a) A violation of the agreement the Corporation, or any employee under § 1640.2(b)(1) shall result in the thereof; recipient’s LSC grant or contract being (xi) 31 U.S.C. 3731 (False Claims Pro- terminated by the Corporation without cedure); need for a termination hearing. During (xii) 31 U.S.C. 3732 (False Claims Ju- the pendency of any appeal of a convic- risdiction); and tion or judgment, the Corporation may (xiii) 31 U.S.C. 3733 (Civil Investiga- take such steps as it determines nec- tive Demands). essary to safeguard its funds. (2) For the purposes of the laws listed (b) A violation of the agreement in paragraph (a)(1) of this section, LSC under § 1640.2(b)(2) shall result in the shall be considered a Federal agency recipient’s LSC grant or contract being and a recipient’s LSC funds shall be terminated by the Corporation. Prior considered to be Federal funds provided to such termination, the Corporation by grant or contract. shall provide notice and an opportunity (b) A violation of the agreement means: to be heard for the sole purpose of de- (1) That the recipient has been con- termining whether the recipient know- victed of, or judgment has been entered ingly or through gross negligence al- against the recipient for, a violation of lowed the employee or board member
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to engage in the activities which led to Subpart A—General the conviction or judgment. During the pendency of any appeal of a conviction § 1641.1 Purpose/Applicability. or judgment or during the pendency of In order to assist in ensuring that re- a hearing, the Corporation may take cipients receive acceptable audits, this such steps as it determines necessary part sets out the authority of the Legal to safeguard its funds. Services Corporation (‘‘LSC’’) Office of Inspector General (‘‘OIG’’) to debar, PART 1641—DEBARMENT, SUSPEN- suspend or remove independent public SION AND REMOVAL OF RECIPI- accountants (‘‘IPAs’’) from performing ENT AUDITORS audit services for recipients. This rule informs IPAs of their rights to notice Subpart A—General and an opportunity to be heard on ac- tions involving debarment, suspension Sec. or removal, and the standards upon 1641.1 Purpose/Applicability. which such actions will be taken. This 1641.2 Definitions. 1641.3 Scope of debarment, suspension and part applies to IPAs performing audit removal. services for recipients, subrecipients or 1641.4 Duration of debarment, suspension other entities which receive LSC funds and removal. and are required to have an audit per- formed in accordance with guidance Subpart B—Debarment promulgated by the OIG. 1641.5 Debarment. 1641.6 Procedures for debarment. § 1641.2 Definitions. 1641.7 Causes for debarment. Adequate evidence means information 1641.8 Notice of proposed debarment. sufficient to support the reasonable be- 1641.9 Response to notice of proposed debar- lief that a particular act or omission ment. has occurred. 1641.10 Additional proceedings as to dis- puted material facts. Audit services means the annual fi- nancial statement audit of a recipient, Subpart C—Suspension including an audit of the recipient’s fi- nancial statements, systems of inter- 1641.11 Suspension. nal control, and compliance with laws 1641.12 Procedures for suspension. and regulations. 1641.13 Causes for suspension. 1641.14 Notice of proposed suspension. Contract means an agreement be- 1641.15 Response to notice of proposed sus- tween a recipient and an IPA for an pension. IPA to provide audit services to the re- cipient. Subpart D—Removal Conviction means a judgment or con- viction of a criminal offense by any 1641.16 Removal. 1641.17 Procedures for removal. court, whether entered upon a verdict 1641.18 Causes for removal. or plea, including but not limited to, 1641.19 Notice of proposed removal. pleas of nolo contendere. 1641.20 Response to notice of proposed re- Debarment means a decision by the moval. debarring official to prohibit an IPA 1641.21 Additional proceedings as to dis- from soliciting or entering into new puted material facts. contracts to perform audit services for recipient(s) based upon a finding by a Subpart E—Decisions preponderance of the evidence that any 1641.22 Decisions of debarring official. of the causes for debarment set out in 1641.23 Exceptions to debarment, suspension § 1641.7 exist. Debarment may cover an and removal. IPA’s contracts with all recipients or 1641.24 Appeal and reconsideration of debar- with one or more specific recipients. ring official decisions. Debarring official is the official re- AUTHORITY: 42 U.S.C. 2996e(g); Pub. L. 105– sponsible for debarment, suspension or 277. removal actions under this part. The SOURCE: 64 FR 67507, Dec. 2, 1999, unless OIG legal counsel is the debarring offi- otherwise noted. cial. In the absence of an OIG legal
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counsel or in the discretion of the In- (a) Actions against individual IPAs. De- spector General, the debarring official barment, suspension or removal of an shall be the OIG staff person or other individual IPA, debars, suspends or re- individual designated by the Inspector moves that individual from performing General. audit services as an individual or as an Indictment means a charge by a grand employee, independent contractor, jury that the person named therein has agent or other representative of an IPA committed a criminal offense. An in- firm. formation, presentment, or other filing (b) Actions against IPA firms. (1) De- by competent authority charging a barment, suspension or removal shall criminal offense shall be given the affect only those divisions or other or- same effect as an indictment. ganizational elements materially in- IPA means an independent public ac- volved in the relevant engagement and countant or firm of accountants. as to which there is cause to debar, Knowingly means that an act was suspend or remove. done voluntarily and intentionally and (2) The debarment, suspension or re- not because of mistake or accident. moval action contemplated in para- graph (b)(1) of this section may include Material fact means one which is nec- any firm that is an affiliate, subcon- essary to determine the outcome of an tractor, joint venturer, agent or rep- issue or case and without which the resentative of the IPA firm only if such case could not be supported. firm was materially involved in the Person means an individual or a firm, relevant engagement and is specifically partnership, corporation, association, named and given notice of the proposed or other legal entity. action and an opportunity to respond Preponderance of the evidence means in accordance with this part. proof by information that, compared (3) The debarment, suspension or re- with that opposing it, leads to the con- moval action contemplated in para- clusion that the fact at issue is more graph (b)(1) of this section may include probably true than not. an individual officer, director, or part- Removal means a decision by the de- ner responsible for the engagement, or barring official to prohibit an IPA from an individual employee, independent performing audit services in subse- contractor, agent, representative or quent years of an existing contract other individual associated with an with one or more specific recipients IPA firm only if such individual is spe- based upon a finding by a preponder- cifically named and given notice of the ance of the evidence that any of the proposed action and an opportunity to causes set out in § 1641.18 exist. respond in accordance with this part. Suspension means a decision by the debarring official, in anticipation of a § 1641.4 Duration of debarment, sus- debarment, to prohibit an IPA from so- pension and removal. liciting or entering into new contracts A debarment, suspension or removal to perform audit services for recipi- is effective as set out in the debarring ent(s) based upon a finding of adequate official’s decision to debar, suspend or evidence that any of the causes re- remove, issued pursuant to § 1641.22. ferred to in § 1641.13 exist. Suspension (a) Debarment. (1) Debarment gen- may preclude an IPA from soliciting or erally should not exceed three years, entering into new contracts with all re- but may be for a shorter period based cipients or with one or more specific on a consideration of the evidence pre- recipients. sented by the IPA. Debarment may ex- ceed three years in extraordinary cir- § 1641.3 Scope of debarment, suspen- cumstances. sion and removal. (2) If a suspension precedes a debar- An IPA may be debarred, suspended ment, the suspension period shall be or removed under this part only if the considered in determining the debar- IPA is specifically named and given no- ment period. tice of the proposed action and an op- (3) The debarring official may extend portunity to respond in accordance an existing debarment for an addi- with this part. tional period if the debarring official
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determines, based on additional facts Subpart B—Debarment not previously in the record, that an extension is necessary to protect LSC § 1641.5 Debarment. funds. The standards and procedures in (a) IPAs debarred from providing this part shall be applied in any pro- audit services for all recipients are pro- ceeding to extend a debarment. hibited from soliciting or entering into (b) Suspension. (1) The debarring offi- any new contracts for audit services cial may determine that a cause for with recipients for the duration of the suspension exists, but that an inves- specified period of debarment. Recipi- tigation or other legal or debarment ents shall not knowingly award con- proceeding should be completed before tracts to, extend or modify existing proceeding to a debarment. Suspension contracts with, or solicit proposals shall be for a temporary period pending from, such IPAs. Debarred IPAs also the completion of an investigation or are prohibited from providing audit other legal or debarment proceedings, services to recipients as agents or rep- including a proceeding conducted by resentatives of other IPAs. the OIG, a law enforcement or other (b) IPAs debarred from providing government agency, an investigative or audit services for one or more specific recipient(s) are prohibited from solic- audit official from another OIG, a iting or entering into any new con- court, or a state licensing body or tracts for audit services with such re- other organization with authority over cipient(s) for the duration of the period IPAs. of debarment as determined pursuant (2) If debarment proceedings are not to this part. The affected recipient(s) initiated within 12 months after the shall not knowingly award contracts date of the suspension notice, the sus- to, extend or modify existing contracts pension shall be terminated unless an with, or solicit proposals from, such official or organization conducting a IPAs. Debarred IPAs also are prohib- proceeding referred to in paragraph ited from providing audit services to (b)(1) of this section requests its exten- the affected recipient(s) as agents or sion in writing. In such cases, the sus- representatives of other IPAs, and are pension may be extended up to an addi- required to provide prior written notice tional six months. In no event may a to the debarring official before pro- suspension be imposed for more than 18 viding such services to other recipi- months, unless debarment proceedings ents. Debarred IPAs also must provide have been initiated within that period. prior written notice of the debarment (3) The OIG shall notify the appro- to any recipient for which the IPA pro- priate official or organization con- vides audit services. ducting a proceeding referred to in § 1641.6 Procedures for debarment. paragraph (b)(1) of this section, if any, of the suspension within 10 days of its Before debarring an IPA, the OIG implementation, and shall notify such shall provide the IPA with a hearing in accordance with the procedures set out official or organization of an impend- in §§ 1641.7 through 1641.9. Such hearing ing termination of a suspension at shall be held entirely by written sub- least 30 days before the 12-month pe- missions, except: riod expires to allow an opportunity to (a) Additional proceedings shall be request an extension. held under § 1641.10 if the debarring offi- (4) The limit on the duration of a sus- cial finds there is a genuine dispute of pension in paragraph (b)(2) of this sec- material fact; and/or tion may be waived by the affected (b) A meeting may be held under IPA. § 1641.9(c). (c) Removal. Removal shall be effec- tive for the years remaining on the ex- § 1641.7 Causes for debarment. isting contract(s) between the IPA and The debarring official may debar an the recipient(s). IPA from performing audit services in
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accordance with the procedures set which may comment on the proposed forth in this part upon a finding by a action in the time frame set out in preponderance of the evidence that: § 1641.9. (a) The IPA has failed significantly to comply with government auditing § 1641.9 Response to notice of pro- standards established by the Comp- posed debarment. troller General of the United States, (a) The IPA shall have 30 days from generally accepted auditing standards receipt of the notice within which to and/or OIG audit guidance as stated in respond. the OIG Audit Guide for Recipients and (b) The response shall be in writing Auditors, including the Compliance and may include information and argu- Supplement for Audits of LSC Recipi- ment in opposition to the proposed de- ents, and in OIG Audit Bulletins; barment, including any additional spe- (b) The IPA is currently debarred cific information pertaining to the pos- from contracting with any Federal sible causes for debarment, and infor- agency or entity receiving Federal mation and argument in mitigation of funds, including when the IPA has stip- the proposed period of debarment. ulated to such debarment; (c) The response may request a meet- (c) The IPA’s license to practice ac- ing with the debarring official to per- counting has been revoked, terminated mit the IPA to discuss issues of fact or or suspended by a state licensing body law relating to the proposed debar- or other organization with authority ment, or to otherwise resolve the pend- over IPAs; ing matters. Any such meeting shall (d) The IPA has been convicted of take the form that the debarring offi- any offense indicating a breach of cial deems appropriate and shall be trust, dishonesty or lack of integrity, held within 20 days of the response. If or conspiracy to commit such an of- the IPA requests an in person meeting, fense, and the conviction is final; or it shall be held at LSC headquarters. (e) The IPA has been found subject to (d) Failure to respond to the notice a civil judgment for any action indi- shall be deemed an admission of the ex- cating a breach of trust, dishonesty or istence of the cause(s) for debarment lack of integrity, or conspiracy to take set forth in the notice and an accept- such action, and the judgment is final. ance of the period of debarment. In such circumstances, without further § 1641.8 Notice of proposed debarment. proceedings, the debarring official may (a) Before debarring an IPA, the OIG enter a final decision stating the period shall send the IPA written notice of of debarment. the proposed debarment. The notice shall be sent in a manner that provides § 1641.10 Additional proceedings as to evidence of its receipt and shall: disputed material facts. (1) State that debarment is being (a) In actions not based upon a con- considered; viction or civil judgment under § 1641.7 (2) Identify the reasons for the pro- (d) or (e), if the debarring official finds posed debarment sufficient to put the that the IPA’s submission raises a gen- IPA on notice of the conduct or trans- uine dispute of material fact, the IPA action(s) upon which a debarment pro- shall be afforded an opportunity to ap- ceeding is based; pear (with counsel, if desired), submit (3) Identify the regulatory provisions documentary evidence, present wit- governing the debarment proceeding; nesses, and confront any witnesses the and OIG presents. If the debarring official (4) State that debarment may be for finds that the IPA’s submission does a period of up to three years or longer not raise a genuine issue of material under extraordinary circumstances. If fact, additional proceedings will not be the OIG has determined that extraor- provided. In such case, the hearing dinary circumstances warranting de- shall be held entirely by written sub- barment in excess of three years may missions, except that a meeting may be exist, the notice shall so state. held under § 1641.9(c). (b) A copy of the notice also shall be (b) If the debarring official deter- sent to the affected recipient(s), if any, mines additional proceedings to be
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warranted, OIG shall notify the IPA. tirely by written submissions, except Such notice shall include notice of the that a meeting may be held under procedures under which such pro- § 1641.15(c). ceedings shall be conducted. (c) A transcribed record of any addi- § 1641.13 Causes for suspension. tional proceedings shall be prepared The debarring official may suspend and a copy shall be made available to an IPA in accordance with the proce- the IPA without cost. dures set forth in this part upon ade- (d) The debarring official may refer quate evidence that: disputed material facts to a fact finder, (a) A cause for debarment under who need not be a member of the OIG § 1641.7 may exist; staff, for fact finding, analysis and rec- (b) The IPA has been indicted for or ommendation. convicted of any offense described in § 1641.7; Subpart C—Suspension (c) The IPA has been found subject to § 1641.11 Suspension. a civil judgment described in § 1641.7(e), whether the judgment is final or not. (a) IPAs suspended from providing (d) The IPA has been suspended from audit services for all recipients are pro- contracting with a Federal agency or hibited from soliciting or entering into entity receiving Federal funds includ- any new contracts for audit services ing when the IPA has stipulated to the with recipients for the duration of the suspension. suspension. Recipients shall not know- ingly award contracts to, extend or § 1641.14 Notice of proposed suspen- modify existing contracts with, or so- sion. licit proposals from, such IPAs. Sus- pended IPAs also are prohibited from (a) Before suspending an IPA, OIG providing audit services to recipients shall send it written notice of cause to as agents or representatives of other suspend. Such notice shall: IPAs. (1) Include a directive to show cause, (b) IPAs suspended from providing signed by the debarring official, which audit services for one or more specific shall inform the IPA that unless the recipient(s) are prohibited from solic- IPA responds within 10 days as pro- iting or entering into any new con- vided in § 1641.15, a suspension will be tracts for audit services with such re- imposed; cipient(s) for the duration of the period (2) Identify the reasons for the pro- of suspension as determined pursuant posed suspension sufficient to put the to this part. The affected recipient(s) IPA on notice of the conduct or trans- shall not knowingly award contracts action(s) upon which a suspension pro- to, extend or modify existing contracts ceeding is based; with, or solicit proposals from, such (3) Identify the regulatory provisions IPAs. Suspended IPAs also are prohib- governing the suspension proceeding; ited from providing audit services to and the affected recipient(s) as agents or (4) State that, if imposed, the suspen- representatives of other IPAs, and are sion shall be for a temporary period required to provide prior written notice pending the completion of a investiga- to the debarring official before pro- tion or other legal or debarment pro- viding such services to other recipi- ceeding. ents. Suspended IPAs also must pro- (b) A copy of the notice also shall be vide prior written notice of the suspen- sent to the affected recipient(s), if any, sion to any recipient for which the IPA who may comment on the proposed ac- provides audit services. tion in the time frame set out in § 1641.15. § 1641.12 Procedures for suspension. Before suspending an IPA, the OIG § 1641.15 Response to notice of pro- shall provide the IPA with a show posed suspension. cause hearing in accordance with the (a) The IPA shall have 10 days from procedures set out in §§ 1641.13 through receipt of the notice within which to 1641.15. Such hearing shall be held en- respond.
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(b) The response shall be in writing prior written notice of the removal to and may include information and argu- any such recipient. ment in opposition to the proposed sus- pension, including any additional spe- § 1641.17 Procedures for removal. cific information pertaining to the pos- (a) Before removing an IPA, the OIG sible causes for suspension, and infor- shall provide the IPA with a hearing in mation and argument in mitigation of accordance with the procedures set out the proposed period of suspension. in §§ 1641.18 through 1641.21. Such hear- (c) The response may request a meet- ing shall be held entirely by written ing with the OIG official identified in submissions, except: the notice to permit the IPA to discuss (1) Additional proceedings shall be issues of fact or law relating to the held under § 1641.21 if the debarring offi- proposed suspension, or to otherwise cial finds there is a genuine dispute of resolve the pending matters. material fact; and/or (1) Any such meeting shall take such (2) A meeting may be held under form as the debarring official deems § 1641.20(c). appropriate and shall be held within 10 (b) A Notice of Proposed Removal days of the response. normally will be accompanied by a No- (2) No meeting will be held if a law tice of Proposed Debarment, and the enforcement official, an investigative proceedings may be consolidated. or audit official from another OIG, a state licensing body or other organiza- §1641.18 Causes for removal. tion with authority over IPAs, or a governmental agency has advised in The debarring official may remove an writing that the substantial interest of IPA from performing audit services in a governmental unit would be preju- accordance with the procedures set diced by such a meeting and the debar- forth in this part upon a finding by a ring official determines that the sus- preponderance of the evidence that: pension is based on the same facts as (a) The IPA has failed significantly the pending legal proceedings ref- to comply with government auditing erenced by the law enforcement offi- standards established by the Comp- cial. troller General of the United States, (d) Failure to respond to the notice generally accepted auditing standards shall be deemed an admission of the ex- and/or OIG audit guidance as stated in istence of the cause(s) for suspension the OIG Audit Guide for Recipients and set forth in the notice and an accept- Auditors, including the Compliance ance of the period of suspension. In Supplement for Audits of LSC Recipi- such circumstances, the OIG may pro- ents, and in OIG Audit Bulletins; ceed to a final decision without further (b) The IPA is currently debarred proceedings. from contracting with any Federal agency or entity receiving Federal Subpart D—Removal funds, including when the IPA has stip- ulated to such debarment; § 1641.16 Removal. (c) The IPA’s license to practice ac- Removed IPAs are prohibited from counting has been revoked, terminated performing audit services in subse- or suspended by a state licensing body quent years under an existing con- or other organization with authority tract(s) with one or more specific re- over IPAs; cipients. The affected recipient(s) shall (d) The IPA has been convicted of not extend existing contracts with any offense indicating a breach of such IPAs. Removed IPAs also are pro- trust, dishonesty or lack of integrity, hibited from providing audit services or conspiracy to commit such an of- to the affected recipient(s) as agents or fense, and the conviction is final; or representatives of other IPAs, and are (e) The IPA has been found subject to required to provide prior written notice a civil judgment for any action indi- to the debarring official before pro- cating a breach of trust, dishonesty or viding such services to other recipi- lack of integrity, or conspiracy to take ents. Removed IPAs also must provide such action, and the judgment is final.
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§ 1641.19 Notice of proposed removal. § 1641.21 Additional proceedings as to (a) Before removing an IPA, the OIG disputed material facts. shall send the IPA written notice of (a) In actions not based upon a con- the proposed removal. The notice shall viction or civil judgment under be sent in a manner that provides evi- § 1641.18(d) or (e), if the debarring offi- dence of its receipt and shall: cial finds that the IPA’s submission (1) State that removal is being con- raises a genuine dispute of material sidered; fact, the IPA shall be afforded an op- (2) Identify the reasons for the pro- portunity to appear (with counsel, if posed removal sufficient to put the IPA desired), submit documentary evi- on notice of the conduct or trans- dence, present witnesses, and confront action(s) upon which a removal pro- any witnesses the OIG presents. If the ceeding is based; debarring official finds that the IPA’s (3) Identify the regulatory provisions submission does not raise a genuine governing the removal proceeding; and issue of material fact, additional pro- (4) State that removal shall be for ceedings will not be provided. In such the years remaining on the existing case, the hearing shall be held entirely contract(s) between the IPA and the re- by written submissions, except that a cipient(s). meeting may be held under § 1641.20(c). (b) A copy of the notice also shall be (b) If the debarring official deter- sent to the affected recipient(s), if any, mines additional proceedings to be which may comment on the proposed warranted, OIG shall notify the IPA. action in the time frame set out in Such notice shall include notice of the § 1641.20. procedures under which such pro- ceedings shall be conducted. § 1641.20 Response to notice of pro- (c) A transcribed record of any addi- posed removal. tional proceedings shall be prepared (a) The IPA shall have 30 days from and a copy shall be made available to receipt of the notice within which to the IPA without cost. respond. (d) The debarring official may refer (b) The response shall be in writing disputed material facts to a fact finder, and may include information and argu- who need not be a member of the OIG ment in opposition to the proposed re- staff, for fact finding, analysis and rec- moval, including any additional spe- ommendation. cific information pertaining to the pos- sible causes for removal. Subpart E—Decisions (c) The response may request a meet- ing with the debarring official to per- § 1641.22 Decisions of debarring offi- cial. mit the IPA to discuss issues of fact or law relating to the proposed removal, (a) Standard of proof. (1) A debarment or to otherwise resolve the pending or removal must be based on a finding matters. Any such meeting shall take that the cause or causes for debarment the form that the debarring official or removal are established by a prepon- deems appropriate and shall be held derance of the evidence in the adminis- within 20 days of the response. If the trative record of the case. IPA requests an in person meeting, it (2) A suspension must be based on a shall be held at LSC headquarters. finding that the cause or causes are es- (d) Failure to respond to the notice tablished by adequate evidence in the shall be deemed an admission of the ex- administrative record of the case. istence of the cause(s) for removal set (b) The administrative record con- forth in the notice and an acceptance sists of any information, reports, docu- of the removal. In such circumstances, ments or other evidence identified and without further proceedings, the debar- relied upon in the Notice of Proposed ring official may enter a final decision Debarment, the Notice of Proposed removing the IPA. Suspension, or the Notice of Proposed Removal, together with any relevant
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material contained in the IPA’s re- eral may except a contract from the ef- sponse or submitted by an affected re- fects of debarment, suspension or re- cipient. In the case of debarment or re- moval upon a written determination moval, when additional proceedings are that a compelling reason exists for necessary to determine disputed mate- using the IPA in the particular in- rial facts, the administrative record stance. also shall consist of any relevant mate- rial submitted or presented at such § 1641.24 Appeal and reconsideration proceedings. of debarring official decisions. (c) Failure of the OIG to meet a time (a) Appeal and reconsideration gen- requirement of this part does not pre- erally. A debarred, suspended or re- clude the OIG from debarring, sus- moved IPA may submit the debarring pending or removing an IPA. In ex- official’s decision for appeal or recon- traordinary circumstances, the OIG sideration in accordance with this sec- may grant an IPA an extension of the tion. Within 60 days, IPAs shall be time requirements set out in this part. given notice of decisions on appeal and (d) Notice of decisions. IPAs shall be reconsideration. The relief, if any, given prompt notice of the debarring granted upon appeal or reconsideration official’s decision. A copy of the deci- shall be limited to the relief stated in sion also will be sent to the affected re- the decision on the appeal or reconsid- cipient. If the debarring official debars, eration. suspends or removes an IPA, the deci- (b) Appeal. (1) A debarred, suspended sion shall: or removed IPA may appeal the deci- (1) Set forth the finding(s) upon sion to the Inspector General, who may which the decision is based; uphold, reverse or modify the debarring (2) Set forth the effect of the debar- official’s decision. ment, suspension or removal action (2) The appeal shall be filed in writ- and the effective dates of the action; ing: (3) Refer the IPA to its procedural (i) By a debarred or removed IPA, rights of appeal and reconsideration within 30 days of receipt of the deci- under § 1641.24; and sion; (4) Inform the IPA that a copy of the (ii) By a suspended IPA, within 15 debarring official’s decision will be a days of receipt of the decision. public document and the fact of debar- (3) The Inspector General, at his or ment, suspension or removal will be a her discretion and after determining matter of public record. that a compelling reason exists, may (e) If the debarring official decides stay the effect of the debarment, sus- that a debarment, suspension, or re- pension or removal pending conclusion moval is not warranted, the Notice of his or her review of the matter. may be withdrawn or the proceeding (c) Reconsideration. (1) A debarred, may be otherwise terminated. suspended or removed IPA may submit (f) If the debarring official deems it a request to the debarring official to appropriate, the debarring official reconsider the debarment, suspension may, at any time, settle by agreement or removal decision, reduce the period with the IPA a debarment, suspension, of debarment or removal, or terminate or removal action. Such a negotiated the suspension. settlement may include the imposition (2) Such requests shall be in writing of appropriate conditions on the IPA. and supported by documentation that the requested action is justified by: § 1641.23 Exceptions to debarment, (i) In the case of suspension, reversal suspension and removal. of the conviction or civil judgment Exceptions to the effects of debar- upon which the suspension was based; ment, suspension or removal may be (ii) Newly discovered material evi- available in unique circumstances, dence; when there are compelling reasons to (iii) Bona fide change in ownership or use a particular IPA for a specific task. management; Requests for such exceptions may be (iv) Elimination of other causes for submitted only by the recipient requir- which the debarment, suspension or re- ing audit services. The Inspector Gen- moval was imposed; or
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(v) Other reasons the debarring offi- which a court appoints the recipient cial deems appropriate. employee to provide representation (3) A request for reconsideration of a pursuant to a statute or court rule or suspension which was based a convic- practice equally applicable to all attor- tion, civil judgment, or sanction that neys in the jurisdiction, and in which has been reversed may be filed at any the recipient or employee receives time. compensation under the same terms (4) Requests for reconsideration and conditions as are applied generally based on other grounds may only be to attorneys practicing in the court in filed during the period commencing 60 which the appointment is made; days after the debarring official’s deci- (2) Payments made to a recipient or sion imposing the debarment or sus- an employee of a recipient pursuant to pension. Only one such request may be a grant, contract or other agreement filed in any twelve month period. by a governmental agency or other (5) The debarring official’s decision third party for representation of cli- on a request for reconsideration is sub- ents; ject to the appeal procedure set forth (3) Payments received as a result of in paragraph (b) of this section. sanctions imposed by a court for viola- tions of court rules or practices, or PART 1642—ATTORNEYS’ FEES statutes relating to court practice, in- cluding Rule 11 or discovery rules of Sec. the Federal Rules of Civil Procedure, 1642.1 Purpose. or similar State court rules or prac- 1642.2 Definitions. tices, or statutes; and 1642.3 Prohibition. (4) Reimbursement of costs and ex- 1642.4 Applicability of restriction on attor- neys’ fees. penses from an opposing party or from 1642.5 Accounting for and use of attorneys’ a client pursuant to § 1642.6. fees. (c) An award is an order by a court or 1642.6 Acceptance of reimbursement from a an administrative agency that the un- client. successful party pay the attorneys’ fees 1642.7 Recipient policies, procedures and of the prevailing party or an order by a recordkeeping. court or administrative agency approv- AUTHORITY: 42 U.S.C. 2996e(d)(6); Pub. L. ing a settlement agreement of the par- 104–208, 110 Stat. 3009; Pub. L. 104–134, 110 ties which provides for payment of at- Stat 1321, section 504(a)(13). torneys’ fees by an adversarial party. SOURCE: 62 FR 25864, May 12, 1997, unless (d) To claim attorneys’ fees means to otherwise noted. include a request for attorneys’ fees in any pleading. § 1642.1 Purpose. This part is designed to insure that § 1642.3 Prohibition. recipients or employees of recipients Except as permitted by § 1642.4, no re- do not claim, or collect and retain at- cipient or employee of a recipient may torneys’ fees available under any Fed- claim, or collect and retain attorneys’ eral or State law permitting or requir- fees in any case undertaken on behalf ing the awarding of attorneys’ fees. of a client of the recipient.
§ 1642.2 Definitions. § 1642.4 Applicability of restriction on (a) Attorneys’ fees means an award to attorneys’ fees. compensate an attorney of the pre- (a) The prohibition contained in vailing party made pursuant to com- § 1642.3 shall not apply to cases filed mon law or Federal or State law per- prior to April 26, 1996, except that the mitting or requiring the awarding of prohibition shall apply to any addi- such fees or a payment to an attorney tional related claim for the client from a client’s retroactive statutory made in such a case on or subsequent benefits. to April 26, 1996. (b) Attorneys’ fees do not include the (b) Except as permitted in paragraph following: (a) of this section, the prohibition con- (1) Payments made to a recipient or tained in § 1642.3 shall apply to any case an employee of a recipient for a case in undertaken by a private attorney on
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behalf of an eligible client when the at- PART 1643—RESTRICTION ON AS- torney receives compensation from a SISTED SUICIDE, EUTHANASIA, recipient to provide legal assistance to AND MERCY KILLING such client under the recipient’s pri- vate attorney involvement (PAI) pro- Sec. gram, judicare program, contract or 1643.1 Purpose. other financial arrangement. 1643.2 Definitions. 1643.3 Prohibition. § 1642.5 Accounting for and use of at- 1643.4 Applicability. torneys’ fees. 1643.5 Recipient policies and recordkeeping.
(a) Attorneys’ fees received by a re- AUTHORITY: Pub. L. 105–12; 42 U.S.C. cipient pursuant to § 1642.4(a) for rep- 2996f(b)(11).
resentation supported in whole or in SOURCE: 62 FR 67749, Dec. 30, 1997, unless part with funds provided by the Cor- otherwise noted. poration shall be allocated to the fund in which the recipient’s LSC grant is § 1643.1 Purpose. recorded in the same proportion that This part is intended to ensure that the amount of Corporation funds ex- recipients do not use any LSC funds for pended bears to the total amount ex- any assisted suicide, euthanasia or pended by the recipient to support the mercy killing activities prohibited by representation. this part. (b) Attorneys’ fees received pursuant to § 1642.4(a) shall be recorded during § 1643.2 Definitions. the accounting period in which the (a) Assisted suicide means the provi- money from the fee award is actually sion of any means to another person received by the recipient and may be with the intent of enabling or assisting expended for any purpose permitted by that person to commit suicide. the LSC Act, regulations and other law (b) Euthanasia (or mercy killing) is the applicable at the time the money is re- use of active means by one person to ceived. cause the death of another person for reasons assumed to be merciful, regard- § 1642.6 Acceptance of reimbursement less of whether the person killed con- from a client. sents to be killed. (a) When a case results in a recovery (c) Suicide means the act or instance of damages or statutory benefits, a re- of taking one’s own life voluntarily and cipient may accept reimbursement intentionally. from the client for out-of-pocket costs § 1643.3 Prohibition. and expenses incurred in connection with the case, if the client has agreed No recipient may use LSC funds to in writing to reimburse the recipient assist in, support, or fund any activity for such costs and expenses out of any or service which has a purpose of as- sisting in, or to bring suit or provide such recovery. any other form of legal assistance for (b) A recipient may require a client the purpose of: to pay court costs when the client does (a) Securing or funding any item, not qualify to proceed in forma pauperis benefit, program, or service furnished under the rules of the jurisdiction. for the purpose of causing, or the pur- pose of assisting in causing, the sui- § 1642.7 Recipient policies, procedures cide, euthanasia, or mercy killing of and recordkeeping. any individual; The recipient shall adopt written (b) Compelling any person, institu- policies and procedures to guide its tion, or governmental entity to provide staff in complying with this part and or fund any item, benefit, program, or shall maintain records sufficient to service for such purpose; or document the recipient’s compliance (c) Asserting or advocating a legal with this part. right to cause, or to assist in causing,
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the suicide, euthanasia, or mercy kill- § 1644.2 Definitions. ing of any individual. For the purposes of this part: § 1643.4 Applicability. (a) To disclose the cause of action means to provide a sufficient descrip- (a) Nothing in § 1643.3 shall be inter- tion of the case to indicate the type r preted to apply to: principal nature of the case. (1) The withholding or withdrawing (b) Recipient means any entity receiv- of medical treatment or medical care; ing funds from the Corporation pursu- (2) The withholding or withdrawing ant to a grant or contract under sec- of nutrition or hydration; tion 1006(a)(1)(A) of the Act. (3) Abortion; (c) Attorney means any full-time or (4) The use of items, goods, benefits, part-time attorney employed by the re- or services furnished for purposes relat- cipient as a regular or contract em- ing to the alleviation of pain or dis- ployee. comfort even if they may increase the risk of death, unless they are furnished § 1644.3 Applicability. for the purpose of causing or assisting (a) The case disclosure requirements in causing death; or of this part apply: (5) The provision of factual informa- (1) To actions filed on behalf of plain- tion regarding applicable law on as- tiffs or petitioners who are clients of a sisted suicide, euthanasia and mercy recipient; killing. Nor shall § 1643.3 be interpreted (2) Only to the original filing of a as limiting or interfering with the op- case, except for appeals filed in appel- eration of any other statute or regula- late courts by a recipient if the recipi- tion governing the activities listed in ent was not the attorney of record in this paragraph. the case below and the recipient’s cli- (b) This part does not apply to activi- ent is the appellant; ties funded with a recipient’s non-LSC (3) To a request filed on behalf of a funds. client of the recipient in a court of competent jurisdiction for judicial re- § 1643.5 Recipient policies and record- view of an administrative action; and keeping. (4) To cases filed pursuant to sub- The recipient shall adopt written grants under 45 CFR part 1627 for the policies to guide its staff in complying direct representation of eligible cli- with this part and shall maintain ents, except for subgrants for private records sufficient to document the re- attorney involvement activities under cipient’s compliance with this part. part 1614 of this chapter. (b) This part does not apply to any PART 1644—DISCLOSURE OF CASE cases filed by private attorneys as part INFORMATION of a recipient’s private attorney in- volvement activities pursuant to part Sec. 1614 of this chapter. 1644.1 Purpose. 1644.2 Definitions. § 1644.4 Case disclosure requirement. 1644.3 Applicability. (a) For each case filed in court by its 1644.4 Case disclosure requirement. attorneys on behalf of a client of the 1644.5 Recipient policies and procedures. recipient after January 1, 1998, a recipi- AUTHORITY: Pub. L. 105–119, 111 Stat. 2440, ent shall disclose, in accordance with Sec. 505; Pub. L. 104–134, 110 Stat. 1321; 42 the requirements of this part, the fol- U.S.C. 2996g(a). lowing information: SOURCE: 63 FR 33254, June 18, 1994, unless (1) The name and full address of each otherwise noted. party to a case, unless: (i) the information is protected by an § 1644.1 Purpose. order or rule of court or by State or The purpose of this rule is to ensure Federal law; or that recipients disclose to the public (ii) the recipient’s attorney reason- and to the Corporation certain infor- ably believes that revealing such infor- mation on cases filed in court by their mation would put the client of the re- attorneys. cipient at risk of physical harm;
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(2) The cause of action; pursuant to the Freedom of Informa- (3) The name and full address of the tion Act, 5 U.S.C. 552. court where the case is filed; and (c) Upon request, a recipient shall (4) The case number assigned to the make the information required in para- case by the court. graph (a) of this section available in (b) Recipients shall provide the infor- written form to any person. Recipients mation required in paragraph (a) of may charge a reasonable fee for mail- this section to the Corporation in semi- ing and copying documents. annual reports in the manner specified by the Corporation. Recipients may file § 1644.5 Recipient policies and proce- such reports on behalf of their sub- dures. recipients for cases that are filed under subgrants. Reports filed with the Cor- Each recipient shall adopt written poration will be made available by the policies and procedures to implement Corporation to the public upon request the requirements of this part.
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Part Page 1700 Organization and functions ...... 507 1701 Disclosure of information ...... 508 1703 Government in the Sunshine Act ...... 511 1705 Privacy regulations ...... 516 1706 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by National Commission on Libraries and Informa- tion Science ...... 518
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§ 1700.2 Functions. § 1700.5 Executive Director. The Commission’s functions include (a) The Executive Director serves as the following: the administrative and technical head (a) Developing and recommending of the Commission staff, directly re- overall plans for library and informa- sponsible for managing its day-to-day tion services adequate to meet the operations and assuring that Commis- needs of the people of the United sion operations conform to all applica- States; ble Federal laws. (b) Coordinating, at the Federal, (b) The Executive Director is directly State and local levels, implementation responsible to the Commission, works of the plans referred to in paragraph (a) under the general direction of the of this section and related activities; Chairperson, and assists the Chair- (c) Conducting studies, surveys and person in carrying out the Commis- analyses of, and hearings on, the li- sion’s organizational and administra- brary and informational needs of the tive responsibilities. Nation, including the special needs of (c) The Executive Director acts as rural areas, economically, socially or the principal staff advisor to the Chair- culturally deprived persons and the el- person and Commissioners, partici- derly; pating with the Commissioners in the (d) Evaluating the means by which development, recommendation and im- the needs referred to in paragraph (c) plementation of overall plans and poli- of this section may be met through the cies to achieve the Commission’s goals. establishment or improvement of infor- (d) To facilitate its work, the Com- mation centers and libraries; mission from time to time delegates to
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the Executive Director various duties (2) Related solely to the internal per- and responsibilities. sonnel rules and practices of the Com- (e) The Commission records formal mission; delegation of the duties and respon- (3) Specifically exempted from disclo- sibilities referred to in paragraph (d) of sure by statute; this section in resolutions and in the (4) Trade secrets and information minutes of its meetings. which is privileged or which relates to (f) The Executive Director may dele- the business, personal or financial af- gate the duties and responsibilities re- fairs of any person and which is fur- ferred to in paragraph (d) of this sec- nished in confidence; tion, as necessary, to other members of (5) Inter-agency and intra-agency the Commission staff. memoranda or letters which would not be available by law to a private party PART 1701—DISCLOSURE OF in litigation with the Commission; INFORMATION (6) Personnel, medical and similar files the disclosure of which would con- Sec. stitute a clearly unwarranted invasion 1701.1 Statement of policy. of personal privacy; 1701.2 Disclosure of records and informa- (7) Investigatory records compiled for tional materials. law enforcement purposes, but only to 1701.3 Requests. the extent that the production of such 1701.4 Fees. records would: (i) Interfere with en- 1701.5 Prompt response. forcement proceedings, (ii) deprive a 1701.6 Form of denial. 1701.7 Appeals. person of a right to a fair trial or an impartial adjudication, (iii) constitute AUTHORITY: 5 U.S.C. 552, 20 U.S.C. 1501 et an unwarranted invasion of personal seq. privacy, (iv) disclose the identity of a § 1701.1 Statement of policy. confidential source and, in the case of a record compiled by a criminal law en- The records of the National Commis- forcement authority in the course of a sion on Libraries and Information criminal investigation, or by an agency Science shall be available to the fullest conducting a lawful national security extent possible consistent with the intelligence investigation, confidential terms and policies of 5 U.S.C. section information furnished only by the con- 552 and on request will be promptly fur- fidential source, (v) disclose investiga- nished to any member of the public. tive techniques and procedures, or (vi) [39 FR 39879, Nov. 4, 1974] endanger the life or physical safety of law enforcement personnel. § 1701.2 Disclosure of records and in- (8) Contained in or related to exam- formational materials. ination, operating or condition reports (a) With the exception of records and prepared by, on behalf of, or for the use materials exempt from disclosure pur- of an agency responsible for the regula- suant to paragraph (b) of this section, tion or supervision of financial institu- any person in accordance with the pro- tions; or cedure provided in § 1701.3 may inspect (9) Geological and geophysical infor- and copy any document of the National mation and data, including maps, con- Commission on Libraries and Informa- cerning wells. tion Science. (c) The Commission shall maintain (b) The provisions of 5 U.S.C. section and make available for public inspec- 552 which require that agencies make tion and copying a current index pro- their records available for public in- viding identifying information for the spection and copying do not apply to public as to any matter issued, adopt- Commission records which are: ed, or promulgated by the Commission (1)(i) Specifically authorized under since its creation on July 20, 1970, and criteria established by an Executive required by section 552(a)(2) of title 5 to Order to be kept secret in the interest be made available or published. How- of national defense or foreign policy ever, in accordance with 5 U.S.C. and (ii) are in fact properly classified 552(a)(4)(A) the Commission deems that pursuant to such Executive Order; publication of the index or supplements
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thereto would be unnecessary and im- § 1701.5 Prompt response. practicable. Accordingly, it shall pro- (a) Within ten days (excluding Satur- vide copies of such index on request but days, Sundays and legal public holi- shall not publish and distribute it days) of the receipt of a request, the quarterly or more frequently. Associate Director shall determine [39 FR 39879, Nov. 12, 1974, as amended at 40 whether to comply with or deny such FR 7652, Feb. 21, 1975] request and shall dispatch such deter- mination to the requester, unless an § 1701.3 Requests. extension is made under paragraph (c) of this section. (a) A member of the public may re- (b) Only the Associate Director may quest records from the National Com- deny a request and is the ‘‘person re- mission on Libraries and Information sponsible for the denial’’ within the Science by writing to the Associate Di- meaning of 5 U.S.C. 552(a). When a de- rector, National Commission on Li- nial is made at the behest of another braries and Information Science, Suite agency, the person in that agency re- 601, 1717 K Street, NW, Washington, DC sponsible for urging the denial may 20036. also be a ‘‘person responsible for the (b) A request for access to records denial’’ if he is so advised before the should reasonably describe the records Associate Director informs the re- requested such that Commission per- quester that his request is denied. sonnel will be able to locate them with (c) In unusual circumstances as spec- a reasonable amount of effort. Where ified in this paragraph, the Associate possible, specific information regarding Director may extend the time for the initial determination of a request up to dates, titles, file designations, and a total of ten days (excluding Satur- other information which may help days, Sundays and legal public holi- identify the records should be supplied days). Extensions shall be made by by the requester. written notice to the requester setting (c) Records or materials will be avail- forth the reason for the extension and able for inspection and copying at the the date upon which a determination is offices of the Commission during the expected to be dispatched. As used in normal business hours of regular busi- this paragraph ‘‘unusual cir- ness days or they may be obtained by cumstances’’ means, but only to the mail. extent necessary to the proper proc- essing of the request— [39 FR 39879, Nov. 12, 1974, as amended at 40 (1) The need to search for and collect FR 7652, Feb. 21, 1975] the requested records from field facili- § 1701.4 Fees. ties or other establishments that are separate from the Commission; (a) A fee may be charged for direct (2) The need to search for, collect, costs of document search and duplica- and appropriately examine a volumi- tion at the rate of $0.10 per page for nous amount of separate and distinct copying and $5.00 per hour for time ex- records which are demanded in a single pended in identifying and locating request; or records. (3) The need for consultation, which (b) A fee may be waived in whole or shall be conducted with all practicable in part where it is determined that it is speed, with another agency having sub- in the public interest because fur- stantial interest in the determination nishing the information can be consid- of the request. ered as primarily benefiting the gen- (d) If no determination has been dis- eral public or where other cir- patched at the end of the ten-day pe- cumstances indicate that a waiver is riod, or the last extension thereof, the appropriate. requester may deem his request denied, (c) The Commission may limit the and exercise a right of appeal in ac- number of copies of any document pro- cordance with § 1701.7. When no deter- mination can be dispatched within the vided to any person. applicable time limit, the Associate Di- [40 FR 7653, Feb. 21, 1975] rector shall nevertheless continue to
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process the request. On expiration of days, and legal public holidays) minus the time limit he shall inform the re- any extension granted at the initial re- quester of the reason for the delay, of quest level pursuant to § 1701.5(c). Such the date on which a determination may extension shall be made by written no- be expected to be dispatched, and of his tice to the requester setting forth the rights to treat the delay as a denial reason for the extension and the date and appeal to the Executive Director in on which a determination is expected accordance with § 1701.7. He may also to be dispatched. As used in this para- ask the requester to forgo appeal until graph ‘‘unusual circumstances’’ means, a determination is made. but only to the extent necessary to the [40 FR 7653, Feb. 21, 1975] proper processing of the appeal— (1) The need to search for and collect § 1701.6 Form of denial. the requested records from field facili- A reply denying a request shall be in ties or other establishments that are writing, signed by the Associate Direc- separate from the Commission; tor, and shall include: (a) A specific (2) The need to search for, collect, reference to the exemption or exemp- and appropriately examine a volumi- tions under the Freedom of Informa- nous amount of separate and distinct tion Act authorizing the withholding of records which are demanded in a single the record, (b) brief explanation of how request; or the exemption(s) applies to the (3) The need for consultation, which record(s) withheld, (c) a statement that shall be conducted with all practicable the denial may be appealed under speed, with another agency having sub- § 1701.7 within thirty days by writing to stantial interest in the determination the Executive Director, National Com- of the request. mission on Libraries and Information Science, Suite 601, 1717 K Street NW., (d) If no determination of the appeal Washington, DC 20036, and (d) that ju- has been dispatched at the end of the dicial review will thereafter be avail- twenty-day period or the last extension able in the district in which the re- thereof, the requester is deemed to quester resides or has his principal have exhausted his administrative place of business, the district in which remedies, giving rise to a right of re- the agency records are situated, or in view in a district court of the United the District of Columbia. States as specified in 5 U.S.C. 552(a)(4). When no determination can be dis- [40 FR 7653, Feb. 21, 1975] patched within the applicable time § 1701.7 Appeals. limit, the appeal will nevertheless con- tinue to be processed. On expiration of (a) When the Associate Director has the time limit the requester shall be denied a request for records in whole or informed of the reason for the delay, of in part, the requester may, within thir- the date on which a determination may ty days of receipt of the letter noti- be expected to be dispatched, and of his fying him of the denial, appeal to the Commission. Appeals to the Commis- right to seek judicial review in the sion shall be in writing, addressed to United States district court in the dis- the Executive Director, National Com- trict in which he resides or has his mission on Libraries and Information principal place of business, the district Science, 1717 K Street NW., Wash- in which the records are situated, or ington, DC 20036. the District of Columbia. The requester (b) The Commission will act upon an may be asked to forgo judicial review appeal within twenty days (excepting until determination of the appeal. Saturdays, Sundays or legal public (e) The Commission’s determination holidays) of its receipt, unless an ex- on appeal shall be in writing. An af- tension is made under paragraph (c) of firmance in whole or in part of a denial this section. on appeal shall include: (1) A reference (c) In unusual circumstances as spec- to the specific exemption or exemp- ified in this paragraph, the time for ac- tions under the Freedom of Informa- tion on an appeal may be extended up tion Act authorizing the withholding of to ten days (excluding Saturdays, Sun- the record,
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(2) A brief explanation of how the ex- SOURCE: 42 FR 13553, Mar. 11, 1977, unless emption(s) applies to the record(s) otherwise noted. withheld, and (3) A statement that judicial review Subpart A—General Provisions of the denial is available in the district in which the requester resides or has § 1703.101 Purpose. his principal place of business, the dis- This part sets forth the regulations trict in which the agency records are under which the Commission shall en- situated, or the District of Columbia. gage in public decision-making proc- [40 FR 7653, Feb. 21, 1975] esses, make public announcement of meetings at which a quorum of or all Commission members consider and de- PART 1703—GOVERNMENT IN THE termine official Commission action, SUNSHINE ACT and inform the public of which meet- ings they are entitled to observe. Subpart A—General Provisions § 1703.102 Definitions. Sec. 1703.101 Purpose. In this part: 1703.102 Definitions. (a) Meeting means the deliberations 1703.103 Applicability and scope. of a majority of the Commission mem- 1703.104 Open meeting policy. bers who have been appointed by the President and confirmed by the Senate Subpart B—Procedures Governing where such deliberations determine or Decisions About Meetings result in the joint conduct of official 1703.201 Decision to hold meetings. Commission business. 1703.202 Provisions under which a meeting (b) Member means one of the Commis- may be closed. sioners of the National Commission on 1703.203 Decision to close meeting. Libraries and Information Science 1703.204 Public availability of recorded vote (NCLIS) who is appointed to that posi- to close meeting. 1703.205 Public announcement of meeting. tion by the President with the advice 1703.206 Providing information to the pub- and consent of the Senate. lic. 1703.207 Change in meeting plans after pub- § 1703.103 Applicability and scope. lic announcement. This part applies to deliberations of a 1703.208 Meetings for extraordinary agency majority of the Commission members business. who have been appointed by the Presi- 1703.209 Notice of meeting in FEDERAL REG- ISTER. dent and confirmed by the Senate. Ex- cluded from coverage of this part are Subpart C—Conduct of Meetings deliberations of interagency commit- tees whose composition includes Com- 1703.301 Meeting place. mission members and deliberations of 1703.302 Role of observers. Commission officials who are not mem- Subpart D—Maintenance of Meeting bers; individual member’s consider- Records ation of official agency business cir- culated to the members in writing for 1703.401 Requirements for maintaining disposition or notation; and delibera- records of closed meetings. tions by the agency in determining 1703.402 Availability of records to the pub- whether or not to close a portion or lic. 1703.403 Requests for records under Freedom portions of a meeting or series of meet- of Information and Privacy Acts. ings as provided in § 1703.202. 1703.404 Copying and transcription charges. § 1703.104 Open meeting policy. Subpart E—Administrative Review The public is entitled to the fullest 1703.501 Administrative Review. practicable information regarding the decision-making processes of the Com- Subpart F—Judicial Review mission. Commission meetings involv- ing deliberations which determine or 1703.601 Judicial review. result in the joint conduct or disposi- AUTHORITY: 5 U.S.C. 552b. tion of official Commission business
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are presumptively open to the public. (4) Disclose trade secrets and com- It is the intent of these regulations to mercial or financial information ob- open such meetings to public observa- tained from a person and privileged or tion while protecting individuals’ confidential; rights and the Commission’s ability to (5) Involve accusing any person of a carry out its responsibilities. Meetings crime, or formally censuring any per- or portions of meetings may be closed son; to public observation only if closure (6) Disclose information of a personal can be justified under one of the provi- nature where disclosure would con- sions set forth in § 1703.202. stitute a clearly unwarranted invasion of personal privacy; Subpart B—Procedures Governing (7) Disclose investigatory records Decisions About Meetings compiled for law enforcement purposes, or information which if written would § 1703.201 Decision to hold meeting. be contained in such records, but only When Commission members make a to the extent that the production of decision to hold a meeting, the pro- such records or information would: (i) posed meeting will ordinarily be sched- Interfere with enforcement pro- uled for a date no earlier than eight ceedings, days after the decision to allow suffi- (ii) Deprive a person of a right to a cient time to give appropriate public fair trial or an impartial adjudication, notice. At the time a decision is made (iii) Constitute an unwarranted inva- to hold a meeting, the time, place, and sion of personal privacy, subject matter of the meeting will be (iv) Disclose the identity of a con- determined, as well as whether the fidential source and, in the case of a meeting is to be open or closed to the record compiled by a criminal law en- public. forcement authority in the course of a criminal investigation, or by an agency § 1703.202 Provisions under which a conducting a lawful national security meeting may be closed. intelligence investigation, confidential (a) A meeting or portion thereof may information furnished only by the con- be closed to public observation, and in- fidential source, formation pertaining to such meeting (v) Disclose investigative techniques may be withheld from the public, and procedures, or where the Commission determines that (vi) Endanger the life or physical such portion or portions of its meeting safety of law enforcement personnel; or disclosure of such information is (8) Disclose information contained in likely to: or related to examination, operating, (1) Disclose matters that are: (i) Spe- or condition reports prepared by, on be- cifically authorized under criteria es- half of, or for the use of an agency re- tablished by an Executive order to be sponsible for the regulation or super- kept secret in the interests of national vision of financial institutions; defense or foreign policy and (9) Disclose information the pre- (ii) In fact properly classified pursu- mature disclosure of which would be ant to such Executive order; likely to significantly frustrate imple- (2) Relate solely to the internal per- mentation of a proposed agency action, sonnel rules and practices of an agen- except this subparagraph shall not cy; apply in any instance where the agency (3) Disclose matters specifically ex- has already disclosed to the public the empted from disclosure by statute content or nature of its proposed ac- (other than section 552 of this title). tion, or where the agency is required Provided that such statute: (i) Re- by law to make such disclosure on its quires that the matters be withheld own initiative prior to taking final from the public in such a manner as to agency action on such proposal; or leave no discretion on the issue, or (10) Specifically concern the agency’s (ii) Establishes particular criteria for issuance of a subpoena, or the agency’s withholding or refers to particular participation in a civil action or pro- types of matters to be withheld; ceeding, an action in a foreign court or
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international tribunal, or an arbitra- ment from the Chairman setting forth tion, or the initiation, conduct, or dis- the time and place of the meeting and position by the agency of a particular listing the persons present, shall be re- case of formal agency adjudication pur- tained by the Commission. suant to the procedures in section 554 (c) Whenever any person whose inter- of this title or otherwise involving a ests may be directly affected by a por- determination on the record after op- tion of a meeting requests that the portunity for a hearing. Commission close such portion to the (b) The Commission may exercise its public for any of the reasons referred authority to open to public observation to in § 1703.202 (a) (5), (6), or (7), the a meeting which could be closed under Commission members, upon request of one of the provisions of § 1703.202(a), if any of the Commissioners, shall decide it would be in the public interest to do by recorded vote whether to close such so. The Commission will determine portion. If a closure decision is made, whether the discussion comes within the Commission shall prepare a full one of the specific exemptions. If the written explanation of the closure ac- discussion is determined to be exempt, tion together with a list naming all the Commission will consider and de- persons expected to attend the meeting termine whether the public interest and identifying their affiliation. nevertheless requires that the meeting be open. § 1703.204 Public availability of re- corded vote to close meeting. § 1703.203 Decision to close meeting. Within one day of any vote taken on (a) Commission members may decide a proposal to close a meeting, the Com- before the meeting to close to public mission shall make publicly available a observation a meeting or portion or record reflecting the vote of each mem- portions thereof, or to withhold infor- ber on the question. In addition, within mation pertaining to such meeting, one day of any vote which closes a por- only if a majority of the members vote tion or portions of a meeting to the on the record to take such action. No public, the Commission shall make proxy votes on this action shall be al- publicly available a full written expla- lowed. A single vote may be taken with nation of its closure action together respect to a series of meetings, a por- with a list naming all persons expected tion or portions of which are proposed to attend and identifying their affili- to be closed to the public, or with re- ation, unless such disclosure would re- spect to any information concerning veal the information that the meeting such series of meetings, so long as each itself was closed to protect. meeting in such series involves the same particular matters and is sched- § 1703.205 Public announcement of uled to be held no more than thirty meeting. days after the initial meeting in such series. If a decision is made to close a (a) Except as provided in §§ 1703.207 portion or portions of a meeting or a and 1703.208, the Commission shall series of meetings, the Commission make a public announcement at least shall prepare a full written explanation one week before the scheduled meeting, of the closure action together with a to include the following: list naming all persons expected to at- (1) Time, place, and subject matter of tend the meeting and identifying their the meeting; affiliation. (2) Whether the meeting is to be open (b) For every meeting or portion or closed; and thereof which Commission members (3) Name and telephone number of have voted to close, the Chairman of agency official who will respond to re- NCLIS shall certify that, in his or her quests for information about the meet- opinion, the meeting may properly be ing. closed to the public. In addition, the (b) If announcement of the subject Chairman shall state each relevant ex- matter of a closed meeting would re- emptive provision as set forth in veal the information that the meeting § 1703.202(a). A copy of the Chairman’s was closed to protect, the subject mat- certification, together with a state- ter shall not be announced.
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§ 1703.206 Providing information to (d) The name and telephone number the public. of an agency official who will respond Individuals or organizations inter- to requests for information about the ested in obtaining copies of informa- meeting. tion available in accordance with § 1703.204 may request same under pro- Subpart C—Conduct of Meetings visions set forth in §§ 1703.402 and 1704.404. Individuals or organizations § 1703.301 Meeting place. having a special interest in activities Meetings will be held in meeting of the Commission may request the Ex- rooms designated in the public an- ecutive Director to the Commissioners nouncement. Whenever the number of to place them on a mailing list for re- observers is greater than can be accom- ceipt of information available under modated in the meeting room des- § 1703.205. The Commission shall pro- ignated, every reasonable effort will be vide information to publications whose made to provide alternative facilities. readers are likely to have a special in- terest in the work of the Commission. § 1703.302 Role of observers. The public may attend open meetings § 1703.207 Change in meeting plans for the sole purpose of observation and after public announcement. may not record any of the discussions (a) Following public announcement by means of electronic or other devices of a meeting, the time or place of a or cameras unless approved in advance meeting may be changed only if the by the Executive Committee of the change is announced publicly at the Commission. Observers may not par- earliest practicable time. ticipate in meetings unless expressly invited or create distractions to inter- § 1703.208 Meetings for extraordinary fere with the conduct and disposition agency business. of Commission business. Such partici- Where agency business so requires, pation or attempted participation shall Commission members may decide by be cause for removal of any person so majority, recorded vote to schedule a engaged at the discretion of the pre- meeting for a date earlier than eight siding member of the Commission. days after the decision. Such a decision When meetings are partially closed, ob- would obviate the general requirement servers will leave the meeting room for a public announcement at least one promptly upon request so that discus- week before the scheduled meeting. At sion, of matters exempt under provi- the earliest practicable time, however, sions of subpart B of this part, the Commission will announce publicly § 1703.202, may take place expeditiously. the time, place, and subject matter of the meeting, whether the meeting is to Subpart D—Maintenance of be open or closed, and the name and Meeting Records telephone number of an agency official who will respond to requests for infor- § 1703.401 Requirements for maintain- mation about the meeting. ing records of closed meetings. (a) A record of each meeting or por- § 1703.209 Notice of meeting in Federal tion thereof which is closed to the pub- Register. lic must be made and retained for two Immediately following each public years or for one year after the conclu- announcement required by this sub- sion of the Commission proceeding in- part, the following information, as ap- volved in the meeting. The record of plicable, shall be submitted for publi- any portion of a meeting closed to the cation in the FEDERAL REGISTER: public shall be a transcript or elec- (a) Notice of the time, place, and sub- tronic recording. ject matter of a meeting; (b) When minutes are produced, such (b) Whether the meeting is open or minutes shall fully and clearly describe closed; all matters discussed, and will provide (c) Any change in one of the pre- a full and accurate summary of any ac- ceding; and tions taken and the reasons expressed
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therefor. The minutes must also reflect § 1703.404 Copying and transcription the vote of each member on any roll charges. call vote taken during the proceedings (a) The Commission will charge fees and identify all documents produced at for furnishing records at the rate of ten the meeting. cents per page for photocopies and at (c) The following documents pro- the actual cost of transcription. When duced under provisions of paragraph (b) the anticipated charges exceed $50, a of this section shall be retained by the deposit of 20 percent of the amount an- agency as part of the minutes of the ticipated must be made within 30 days. meeting: Requested information will not be re- (1) Certification by the Chairman leased until the deposit is received. that the meeting may properly be Fees shall be paid by check or money closed; and order made payable to the National (2) Statement from the presiding offi- Commission on Libraries and Informa- cer of the meeting setting forth the tion Science. date, time and place of the meeting and (b) The Executive Director of the listing the persons present. Commission has the discretion to § 1703.402 Availability of records to waive charges whenever release of the the public. copies is determined to be in the public interest. (a) The Commission shall make promptly available to the public the minutes maintained as a record of a Subpart E—Administrative Review closed meeting, except for such infor- § 1703.501 Administrative Review. mation as may be withheld under one of the provisions of § 1703.202(a) of this Any person who believes a Commis- report. Copies of such minutes, dis- sion action governed by this part to be closing the identity of each speaker, contrary to the provisions of this part shall be furnished to any person at the may file an objection in writing with actual cost of duplication or tran- the Executive Director to the Commis- scription. sioners. Wherever possible, the Execu- (b) The nonexempt part of the min- tive Director will respond within two utes shall be in the official custody of working days to objections concerning the Executive Director of the Commis- decisions to close meetings or portions sion. Appropriate facilities will be thereof. Responses to objections con- made available to any persons who cerning matters other than closed make a request to review these records. meetings will be made within ten (c) Requests for copies of nonexempt working days. parts of minutes, shall be directed to the Executive Director of the Commis- Subpart F—Judicial Review sion. Such requests shall identify the records being sought and include a § 1703.601 Judicial review. statement that whatever costs are in- Any person may bring an action in a volved in furnishing the records will be United States District Court to chal- acceptable or, alternatively, that costs lenge or enforce the provisions of this will be acceptable up to a specified part or the manner of their implemen- amount. tation. Such action may be brought prior to or within sixty days after the § 1703.403 Requests for records under Freedom of Information and Pri- meeting in question, except that if vacy Acts. proper public announcement of the meeting is not made, the action may be Requests to review or obtain copies instituted at any time within sixty of records other than the minutes of a days after such announcement is made. meeting will be processed under the An action may be brought where the Freedom of Information Act (5 U.S.C. Commission meeting was or is to be 552) or, where applicable, the Privacy Act (5 U.S.C. 552a). held or in the District of Columbia.
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PART 1705—PRIVACY Conference on Library and Information REGULATIONS Services.’’ (d) The term routine use means, with Sec. respect to the disclosure of a record, 1705.1 Purpose and scope. the use of such record for a purpose 1705.2 Definitions. which is compatible with the purpose 1705.3 Procedures for requests pertaining to for which it was collected. individual records in the D/AC File. 1705.4 Times, places, and requirements for § 1705.3 Procedures for requests per- identification of individuals making re- taining to individual records in the quests. D/AC File. 1705.5 Disclosure of requested information (a) An individual who wishes to know to individuals. whether the D/AC File contains a 1705.6 Request for correction or amendment to the record. record pertaining to him or her shall 1705.7 Agency review of request for correc- submit a written request to that effect tion or amendment of the record. to the System Manager at the Commis- 1705.8 Appeal of an initial adverse agency sion. The System Manager shall, with- determination on correction or amend- in 10 days of receipt of such submis- ment of the record. sion, inform the individual whether the 1705.9 Disclosure of record to a person other D/AC File contains such a record. than the individual to whom the record (b) An individual who desires access pertains. 1705.10 Fees. to any identified record shall file a re- 1705.11 Penalties. quest therefor addressed to the System 1705.12 Exemptions. Manager indicating whether such indi- vidual intends to appear in person at AUTHORITY: 5 U.S.C. 552a. the Commission’s offices or whether he SOURCE: 43 FR 47195, Oct. 13, 1978, unless or she desires to receive a copy of any otherwise noted. identified record through the mail.
§ 1705.1 Purpose and scope. § 1705.4 Times, places, and require- These procedures provide the means ments for identification of individ- by which individuals may safeguard uals making requests. their privacy by obtaining access to, (a) An individual who, in accord with and requesting amendments or correc- § 1705.3(b) indicated that he or she tions in, information, if any, about would appear personally shall do so at these individuals which is contained in the Commission’s offices, 1717 K Street the White House Conference Delegate/ NW., Suite 601, Washington, DC, be- Alternate Certification File (D/AC tween the hours of 8:30 a.m. and 4 p.m. File), which is under the control of the Monday through Friday (legal holidays National Commission on Libraries and excluded) and present either: (1) The Information Science (hereafter, the response from the System Manager in- Commission). dicating that such a record exists; or (2) A copy of the executed certifi- § 1705.2 Definitions. cation form, as well as another suitable For the purpose of these procedures: form of identification, such as a valid (a) The term individual means a cit- drivers license or equivalent. izen of the United States or an alien (b) In response to a request for mail lawfully admitted for permanent resi- delivery, the Commission will mail dence; only to the home address appearing in (b) The term maintain includes main- the D/AC File a copy of the record for tain, collect, use or disseminate; that individual within 10 working days. (c) The term record means any item or set of items about an individual that § 1705.5 Disclosure of requested infor- is maintained by the Commision in ei- mation to individuals. ther hard copy or computerized form, Upon verification of identity, the including name, residence and other in- System Manager shall disclose to the formation obtained from the form, individual: (a) The information con- ‘‘Certification of State/Territorial Del- tained in the record which pertains to egates/Alternates to the White House that individual; and (b) the accounting
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of disclosures of the record, if any, re- may seek judicial review of the Chair- quired by 5 U.S.C. 552a(c). man’s determination under 5 U.S.C. 552a(g)(1)(A). § 1705.6 Request for correction or amendment to the record. § 1705.9 Disclosure of record to a per- If a person wishes a change to be son other than the individual to made in the record, he or she should whom the record pertains. follow the procedures for making An individual to whom a record is to changes which are included in the in- be disclosed in person may have a per- structions accompanying the certifi- son of his or her own choosing accom- cation form by which the information pany the individual when the record is was obtained. Copies of these instruc- disclosed. tions will be mailed to any delegate/al- ternate upon request. § 1705.10 Fees. (a) The Commission will not charge § 1705.7 Agency review of request for correction or amendment of the an individual for the costs of making a record. search for a record or the costs of re- viewing the record. When the Commis- Within 10 days of the receipt of the sion makes a copy of a record as a nec- request to correct or to amend the essary part of the process of disclosing record, the System Manager will ac- the record to an individual, the Com- knowledge in writing such receipt and mission will not charge the individual promptly either: (a) Make any correc- for the cost of making that copy. tion or amendment of any portion thereof which the individual believes is (b) If an individual requests the Com- not accurate, relevant, timely, or com- mission to furnish him or her with a plete and inform the individual of copy of the record (when a copy has not same: or otherwise been made as a necessary (b) Inform the individual of his or her part of the process of disclosing the refusal to correct or amend the record record to the individual) the Commis- in accordance with the request, the sion will charge a fee of $0.25 per page 1 reason for the refusal, and the proce- (maximum per page dimension of 8 ⁄2 by dures established by the Commission 13 inches) to the extent that the re- for the individual to request a review quest exceeds $5 in cost to the Commis- of that refusal. sion. Requests not exceeding $5 in cost to the Commission will be met without § 1705.8 Appeal of an initial adverse cost to the requester. agency determination on correction or amendment of the record. § 1705.11 Penalties. An individual who disagrees with the Title 18 U.S.C. 1001, Crimes and refusal of the System Manager to cor- Criminal Procedures, makes it a crimi- rect or to amend his or her record may nal offense, subject to a maximum fine submit a request for review of such re- of $10,000 or imprisonment for not more fusal to the Chairman of the Commis- than 5 years or both to knowingly and sion, 1717 K Street NW., Suite 601, willfully make or cause to be made any Washington, DC 20036. The Chairman false or fraudulent statements or rep- will, not later than 30 days from the resentations in any matter within the date on which the individual requests jurisdiction of any agency of the such review, complete such review and United States. Section 552a(i)(3) of the make a final determination unless, for Privacy Act (5 U.S.C. 552a(i)(3)), makes good cause shown, the Chairman ex- it a misdemeanor, subject to a max- tends such 30-day period. If, after his or imum fine of $5,000, to knowingly and her review, the Chairman also refuses willfully request or obtain any record to correct or to amend the record in ac- concerning an individual under false cordance with the request, the indi- pretenses. Section 552a(i) (1) and (2) of vidual may file with the Commission a the Privacy Act (5 U.S.C. 552a(i) (1) and concise statement setting forth the (2)) provide penalties for violations by reasons for his or her disagreement agency employees of the Privacy Act with the refusal of the Commission and or regulations established thereunder.
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§ 1705.12 Exemptions. Assistant Attorney General means the No Commission records system is ex- Assistant Attorney General, Civil empted from the provisions of 5 U.S.C. Rights Division, United States Depart- 552a as permitted under certain condi- ment of Justice. tions by 5 U.S.C. 552a (j) and (k). Auxiliary aids means services or de- vices that enable persons with im- paired sensory, manual, or speaking PART 1706—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 DUCTED BY NATIONAL COMMIS- useful for persons with impaired vision SION ON LIBRARIES AND INFOR- include readers, Brailled materials, MATION SCIENCE audio recordings, telecommunications devices and other similar services and Sec. devices. Auxiliary aids useful for per- 1706.101 Purpose. sons with impaired hearing include 1706.102 Application. telephone handset amplifiers, tele- 1706.103 Definitions. phones compatible with hearing aids, 1706.104—1706.109 [Reserved] telecommunication devices for deaf 1706.110 Self-evaluation. persons (TDD’s), interpreters, 1706.111 Notice. 1706.112—1706.129 [Reserved] notetakers, written materials, and 1706.130 General prohibitions against dis- other similar services and devices. crimination. Complete complaint means a written 1706.131—1706.139 [Reserved] statement that contains the complain- 1706.140 Employment. ant’s name and address and describes 1706.141—1706.148 [Reserved] the agency’s alleged discriminatory ac- 1706.149 Program accessibility: Discrimina- tion in sufficient detail to inform the tion prohibited. 1706.150 Program accessibility: Existing fa- agency of the nature and date of the al- cilities. leged violation of section 504. It shall 1706.151 Program accessibility: New con- be signed by the complainant or by struction and alterations. someone authorized to do so on his or 1706.152—1706.159 [Reserved] her behalf. Complaints filed on behalf 1706.160 Communications. of classes or third parties shall describe 1706.161—1706.169 [Reserved] or identify (by name, if possible) the 1706.170 Compliance procedures. 1706.171—1706.999 [Reserved] alleged victims of discrimination. Facility means all or any portion of AUTHORITY: 29 U.S.C. 794. buildings, structures, equipment, SOURCE: 51 FR 4578, 4579, Feb. 5, 1986, unless roads, walks, parking lots, rolling otherwise noted. stock or other conveyances, or other real or personal property. § 1706.101 Purpose. Handicapped person means any person This part effectuates section 119 of who has a physical or mental impair- the Rehabilitation, Comprehensive ment that substantially limits one or Services, and Developmental Disabil- more major life activities, has a record ities Amendments of 1978, which of such an impairment, or is regarded amended section 504 of the Rehabilita- as having such an impairment. tion Act of 1973 to prohibit discrimina- As used in this definition, the phrase: tion on the basis of handicap in pro- (l) Physical or mental impairment in- grams or activities conducted by Exec- cludes— utive agencies or the United States (i) Any physiological disorder or con- Postal Service. dition, cosmetic disfigurement, or ana- tomical loss affecting one of more of § 1706.102 Application. the following body systems: Neuro- This part applies to all programs or logical; musculoskeletal; special sense activities conducted by the agency. organs; respiratory, including speech organs; cardiovascular; reproductive; § 1706.103 Definitions. digestive; genitourinary; hemic and For purposes of this part, the term— lymphatic; skin; and endocrine; or
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(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 § 1706.140. disabilities. The term ‘‘physical or Section 504 means section 504 of the mental impairment’’ includes, but is Rehabilitation Act of 1973 (Pub. L. 93– not limited to, such diseases and condi- 112, 87 Stat. 394 (29 U.S.C. 794)), as tions as orthopedic, visual, speech, and amended by the Rehabilitation Act hearing impairments, cerebral palsy, Amendments of 1974 (Pub. L. 93–516, 88 epilepsy, muscular dystrophy, multiple Stat. 1617), and the Rehabilitation, sclerosis, cancer, heart disease, diabe- Comprehensive Services, and Develop- tes, mental retardation, emotional ill- mental Disabilities Amendments of ness, and 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 §§ 1706.104—1706.109 [Reserved] physical impairment that substantially limits one or more major life activi- § 1706.110 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 impair- ing 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 subparagraph (1) of this defini- tion process by submitting comments tion but is treated by the agency as (both oral and written). having 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 pro- gram or activity without modifications § 1706.111 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 who meets the essential eligibility re- conducted by the agency, and make quirements for participation in, or re- such information available to them in ceipt of benefits from, that program or such manner as the head of the agency activity. finds necessary to apprise such persons
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of the protections against discrimina- sibly separate or different programs or tion assured them by section 504 and activities. this regulation. (3) The agency may not, directly or through contractual or other arrange- §§ 1706.112—1706.129 [Reserved] ments, utilize criteria or methods of administration the purpose or effect of § 1706.130 General prohibitions which would— against discrimination. (i) Subject qualified handicapped per- (a) No qualified handicapped person sons to discrimination on the basis of shall, on the basis of handicap, be ex- handicap; or cluded from participation in, be denied (ii) Defeat or substantially impair ac- the benefits of, or otherwise be sub- complishment of the objectives of a jected to discrimination under any pro- program or activity with respect to gram or activity conducted by the handicapped persons. agency. (4) The agency may not, in deter- (b)(1) The agency, in providing any mining the site or location of a facil- aid, benefit, or service, may not, di- ity, make selections the purpose or ef- rectly or through contractual, licens- fect of which would— ing, or other arrangements, on the (i) Exclude handicapped persons basis of handicap— from, deny them the benefits of, or oth- (i) Deny a qualified handicapped per- erwise subject them to discrimination son the opportunity to participate in under any program or activity con- or benefit from the aid, benefit, or ducted by the agency; or service; (ii) Defeat or substantially impair (ii) Afford a qualfied 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 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; §§ 1706.131—1706.139 [Reserved] or (vi) Otherwise limit a qualified § 1706.140 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 employ- ing 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 tunity to participate in programs or section 501 of the Rehabilitation Act of activities that are not separate or dif- 1973 (29 U.S.C. 791), as established by ferent, despite the existence of permis- the Equal Employment Opportunity
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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 §§ 1706.141—1706.148 [Reserved] through such means as redesign of equipment, reassignment of services to § 1706.149 Program accessibility: Dis- crimination prohibited. accessible buildings, assignment of aides to beneficiaries, home visits, de- Except as otherwise provided in livery of services at alternate acces- § 1706.150, no qualified handicapped per- sible sites, alteration of existing facili- son shall, because the agency’s facili- ties and construction of new facilities, ties are inaccessible to or unusable by use of accessible rolling stock, or any handicapped persons, be denied the 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- § 1706.150 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 (d) Transition plan. In the event that § 1706.150(a) would result in such alter- structural changes to facilities will be ation or burdens. The decision that 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 in such an alteration or such burdens shall be made available for public in- but would nevertheless ensure that spection. The plan shall, at a min- handicapped persons receive the bene- imum—
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(1) Identify physical obstacles in the fective telecommunication systems agency’s facilities that limit the acces- shall be used. sibility of its programs or activities to (b) The agency shall ensure that in- handicapped persons; terested persons, including persons (2) Describe in detail the methods with impaired vision or hearing, can that will be used to make the facilities obtain information as to the existence accessible; and location of accessible services, ac- (3) Specify the schedule for taking tivities, and facilities. the steps necessary to achieve compli- (c) The agency shall provide signage ance with this section and, if the time at a primary entrance to each of its in- period of the transition plan is longer accessible facilities, directing users to than one year, identify steps that will a location at which they can obtain in- be taken during each year of the tran- formation about accessible facilities. sition period; and The international symbol for accessi- (4) Indicate the official responsible bility shall be used at each primary en- for implementation of the plan. trance 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- § 1706.151 Program accessibility: New mental alteration in the nature of a construction and alterations. 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 § 1706.160 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 §§ 1706.152—1706.159 [Reserved] be made by the agency head or his or her designee after considering all agen- § 1706.160 Communications. cy resources available for use in the (a) The agency shall take appropriate funding and operation of the conducted steps to ensure effective communica- program or activity, and must be ac- tion with applicants, participants, per- companied by a written statement of sonnel of other Federal entities, and the reasons for reaching that conclu- members of the public. sion. If an action required to comply (1) The agency shall furnish appro- with this section would result in such priate auxiliary aids where necessary an alteration or such burdens, the to afford a handicapped person an equal agency shall take any other action opportunity to participate in, and that would not result in such an alter- enjoy the benefits of, a program or ac- ation or such burdens but would never- tivity conducted by the agency. theless ensure that, to the maximum (i) In determining what type of auxil- extent possible, handicapped persons iary aid is necessary, the agency shall receive the benefits and services of the give primary consideration to the re- program or activity. quests of the handicapped person. (ii) The agency need not provide indi- §§ 1706.161—1706.169 [Reserved] vidually prescribed devices, readers for personal use or study, or other devices § 1706.170 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 persons (TDD’s) or equally ef- activities conducted by the agency.
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(b) The agency shall process com- risdiction, the agency shall notify the plaints alleging violations of section complainant of the results of the inves- 504 with respect to employment accord- tigation in a letter containing— ing to the procedures established by (1) Findings of fact and conclusions the Equal Employment Opportunity of law; Commission in 29 CFR part 1613 pursu- (2) A description of a remedy for each ant to section 501 of the Rehabilitation violation found; Act of 1973 (29 U.S.C. 791). (3) A notice of the right to appeal. (c) The Deputy Director shall be re- (h) Appeals of the findings of fact and sponsible for coordinating implementa- conclusions of law or remedies must be tion of this section. Complaints may be filed by the complainant within 90 days sent to Deputy Director, National of receipt from the agency of the letter Commission on Libraries and Informa- required by § 1706.170(g). The agency tion Science, Suite 3122, GSA–ROB 3, may extend this time for good cause. Washington, DC 20024. (i) Timely appeals shall be accepted (d) The agency shall accept and in- and processed by the head of the agen- vestigate all complete complaints for cy. which it has jurisdiction. All complete (j) The head of the agency shall no- complaints must be filed within 180 tify the complainant of the results of days of the alleged act of discrimina- the appeal within 60 days of the receipt tion. The agency may extend this time of the request. If the head of the agen- period for good cause. cy determines that additional informa- (e) If the agency receives a complaint tion is needed from the complainant, over which it does not have jurisdic- he or she shall have 60 days from the tion, it shall promptly notify the com- date of receipt of the additional infor- plainant and shall make reasonable ef- mation to make his or her determina- forts to refer the complaint to the ap- tion on the appeal. propriate government entity. (k) The time limits cited in para- (f) The agency shall notify the Archi- graphs (g) and (j) of this section may be tectural and Transportation Barriers extended with the permission of the Compliance Board upon receipt of any Assistant Attorney General. complaint alleging that a building or (l) The agency may delegate its au- facility that is subject to the Architec- thority for conducting complaint in- tural Barriers Act of 1968, as amended vestigations to other Federal agencies, (42 U.S.C. 4151–4157), or section 502 of except that the authority for making the Rehabilitation Act of 1973, as the final determination may not be amended (29 U.S.C. 792), is not readily delegated to another agency. accessible to and usable by handi- [51 FR 4578, 4579, Feb. 5, 1986, as amended at capped persons. 51 FR 4578, Feb. 5, 1986] (g) Within 180 days of the receipt of a complete complaint for which it has ju- §§1706.171—1706.999 [Reserved]
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Part Page 1800 Privacy Act of 1974 ...... 527 1801 Harry S. Truman scholarship program ...... 528 1802 Public meeting procedures of the board of trustees 535 1803 Nondiscrimination on the basis of handicap ...... 539
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§ 1800.6 Request for correction or termination under 5 U.S.C. amendment to the record. 552a(g)(1)(A). The individual should submit a re- § 1800.9 Disclosure of record to a per- quest to the Deputy Executive Sec- son other than the individual to retary of the Foundation which states whom the record pertains. the individual’s desire to correct or to The Foundation will not disclose a amend his or her record. This request record to any individual other than to is to be made in accord with the provi- the individual to whom the record per- sions of § 1800.4. tains without receiving the prior writ- ten consent of the individual to whom § 1800.7 Agency review of request for the record pertains, unless the disclo- correction or amendment of the record. sure has been listed as a ‘‘routine use’’ in the Foundation’s notices of its sys- Within ten working days of the re- tems of records. ceipt of the request to correct or to amend the record, the Deputy Execu- § 1800.10 Fees. tive Secretary of the Foundation will If an individual requests copies of his acknowledge in writing such receipt or her record, he or she shall be and promptly either— charged ten cents per page, excluding (a) Make any correction or amend- the cost of any search for review of the ment of any portion thereof which the record, in advance of receipt of the individual believes is not accurate, rel- pages. evant, timely, or complete; or (b) Inform the individual of his or her PART 1801—HARRY S. TRUMAN refusal to correct or to amend the SCHOLARSHIP PROGRAM record in accordance with the request, the reason for the refusal, and the pro- Subpart A—General cedures established by the Foundation for the individual to request a review Sec. of that refusal. 1801.1 Annual Truman Scholarship competi- tion. § 1800.8 Appeal of an initial adverse 1801.2 Truman Scholars are selected from qualified applicants from each State. agency determination on correction 1801.3 Students eligible for nomination. or amendment of the record. 1801.4 Definitions. An individual who disagrees with the refusal of the Deputy Executive Sec- Subpart B—Nominations retary of the Foundation to correct or 1801.10 Nomination by institution of higher to amend his or her record may submit education. a request for a review of such refusal to 1801.11 Annual nomination. the Executive Secretary, Harry S. Tru- 1801.12 Institutions with more than one man Scholarship Foundation, 712 Jack- campus. son Place, NW., Washington, DC 20006. 1801.13 Two-year institutions. 1801.15 Faculty representative. The Executive Secretary will, not later 1801.16 Closing date for receipt of nomina- than thirty working days from the date tions. on which the individual requests such 1801.17 Contents of application. review, complete such review and make a final determination unless, for good Subpart C—The Competition cause shown, the Executive Secretary 1801.20 Selection of finalists. extends such thirty day period. If, after 1801.21 Evaluation criteria. his or her review, the Executive Sec- 1801.22 Interview of finalists with panel. retary also refuses to correct or to 1801.23 Recommendation by panel. amend the record in accordance with 1801.24 Nomination of seniors. the request, the individual may file 1801.25 Selection of Truman Scholars by the with the Foundation a concise state- Foundation. ment setting forth the reasons for his Subpart D—Graduate Study and the Work or her disagreement with the refusal of Experience Program the Foundation and may seek judicial review of the Executive Secretary’s de- 1801.30 Continuation into graduate study.
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1801.31 Approval of graduate study pro- wealth of the Northern Mariana Is- grams by the Foundation. lands. 1801.32 Eligible colleges and degree pro- grams. § 1801.3 Students eligible for nomina- 1801.33 Public service internships and em- tion. ployment prior to graduate study. A student is eligible to be nominated Subpart E—Payments to Finalists and for a Truman Scholarship if he or she: Scholars (a) Is a junior level student pursuing a bachelor’s degree as a full-time stu- 1801.40 Travel Expenses of finalists. dent at an accredited institution of 1801.41 Scholarship stipends. higher education and will receive a 1801.42 Definition of ‘‘fee’’. baccalaureate degree the following aca- 1801.43 Allowance for books. demic year; or, is a senior-level student 1801.44 Allowance for room and board. 1801.45 Deduction for benefits from other and is a resident of a state which did sources. not have a Truman Scholar the pre- vious year (see § 1801.24); Subpart F—Payment Conditions and (b) Has an undergraduate field of Procedures study that permits admission to a graduate program leading to a career 1801.50 Acceptance of the scholarship. in public service; 1801.51 Report at the beginning of each (c) Ranks in the upper quarter of his term. 1801.52 Payment schedule. or her class; and 1801.53 Postponement of payment. (d) Is a U.S. citizen, a U.S. national, 1801.54 Annual Report. or a permanent resident of the Com- monwealth of the Northern Mariana Is- Subpart G—Duration of Scholarship lands.
1801.60 Renewal of scholarship. § 1801.4 Definitions 1801.61 Termination of scholarship. 1801.62 Recovery of scholarship funds. As used in this part: Academic year means the period of AUTHORITY: 20 U.S.C. 2001–2012. time, typically 8 or 9 months in which SOURCE: 59 FR 43058, Aug. 22, 1994, unless a full-time student would normally otherwise noted. complete two semesters, three quar- ters, or the equivalent. Subpart A—General Foundation means the Harry S. Tru- man Scholarship Foundation. § 1801.1 Annual Truman Scholarship Full-time student means a student who competition. is carrying a sufficient number of cred- Each year, the Harry S. Truman it hours or their equivalent to secure Scholarship Foundation carries out a the degree or certificate toward which nationwide competition to select stu- he or she is working, in no more time dents to be Truman Scholars. than the length of time normally taken at the institution of higher education. § 1801.2 Truman Scholars are selected Graduate study means the courses of from qualified applicants from each study beyond the baccalaureate level State. which lead to an advanced degree. (a) At least one Truman Scholar is Institution of higher education has the selected each year from each State in meaning given in section 1201(a) of the which there is a resident applicant who Higher Education Act of 1965 (20 U.S.C. meets eligibility criteria in §§ 1801.3 1141(a)). and 1801.21 and who is recommended for Junior means a student who following appointment as a Truman Scholar as completion of the current academic provided in § 1801.23. year has one more year of full-time (b) As used in this part, ‘‘State’’ course work to receive a baccalaureate means each of the States, the District degree. of Columbia, the Commonwealth of President means the principal official Puerto Rico, and considered as a single responsible for the overall direction of entity: Guam, the Virgin Islands, the operations of an institution of American Samoa, and the Common- higher education.
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Public service means employment in: special circumstances under which governments at any level, the uni- each institution may nominate one or formed services, public interest organi- more additional candidates. zations, non-governmental research (c) To nominate a student for the and/or educational organizations, and competition, the President of the insti- non-profit organizations such as those tution or the designated Faculty Rep- whose primary purposes are to help resentative must send the student’s ap- needy or disadvantaged persons or to plication to the Foundation in accord- protect the environment. ance with §§ 1801.16 and 1801.17. Resident means a person who has legal residence in the State, recognized § 1801.12 Institutions with more than under State law. If a question arises one campus. concerning the State of residence, the Foundation determines, for the pur- If an institution of higher education poses of this program of which State has more than one component sepa- the person is a resident, taking into ac- rately listed in the current edition of count place of registration to vote, par- the Directory of Postsecondary Institu- ent’s placer of residence, and eligibility tions published by the U.S. Department for ‘‘in-State’’ tuition rates at public of Education, each may nominate up to institutions of higher education. three students. However, a component Scholar means a person who has been that is organized solely for administra- selected by the Foundation as a Tru- tive purposes and has no students may man Scholar, has accepted the Scholar- not nominate a student. ship and agreed to the conditions of the award, and is eligible for Scholarship § 1801.13 Two-year institutions. stipend(s). If an institution of higher education Senior means the academic level rec- does not offer education beyond the ognized by the institution of higher sophomore level, the institution may education as being in the last year of study before receiving a baccalaureate nominate only students who have com- degree. pleted their sophomore year and have Sophomore means the academic level become full-time juniors at other ac- recognized by the institution of higher credited institutions of higher edu- education has having second year cation. The Faculty Representatives at standing. the two-year institutions must forward Term means the period which the in- the nomination materials to the Presi- stitution of higher education uses to dent or the Faculty Representative of divide its academic year; Semester, tri- the four-year institution attended by mester, or quarter. the nominee in sufficient time for cer- tification that the nominee is a full- Subpart B—Nominations time student with junior-level aca- demic standing and for transmission of § 1801.10 Nomination by institution of the nominations materials of transfer higher education. students to the Foundation by the clos- To be considered in the competition a ing date for receipt of nominations. student must be nominated by the in- stitution of higher education that he or § 1801.15 Faculty representative. she attends. (a) Each institution which nominates § 1801.11 Annual nomination. a student must give the Foundation the name, business address, and busi- (a) Except as provided in §§ 1801.11(b), ness telephone number of a member of 1801.12, and 1801.24, each institution of the faculty who will serve as liaison be- higher education may nominate up to three students annually. Each nominee tween the institution and the Founda- may have legal residence in the same tion. State as the institution or in a dif- (b) It is the role of this Faculty Rep- ferent State. resentative to publicize the Truman (b) The Foundation may announce Scholarship on campus, solicit rec- each year in its Bulletin of Information ommendations of potential nominees
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from members of the faculty, and in- (1) Leadership abilities and potential; sure that the institution’s nomina- (2) Suitability of the nominee’s pro- tions, with all required supporting doc- posed program of study and its appro- uments, are forwarded to the Founda- priateness for a leadership career in tion as required by § 1801.16 and the cur- public service with substantial impact rent Bulletin of Information. on public policies; (c) It is the role of the Faculty Rep- (3) Writing and analytic skills; resentative or the President at a four- (4) Academic performance and poten- year institution to transmit to the tial to perform well in graduate school; Foundation the nomination materials and of transfer students for receipt by the (5) Quality and extent of public and stated deadline. The institution may community service and government in- attach letters of endorsement for up to volvement. three transfer students. (b) The Foundation selects finalists § 1801.16 Closing date for receipt of solely on the basis of the information nominations. required under § 1801.17. The Foundation publishes an annual (c) In the event that the Foundation determines that there are less than two notice in the FEDERAL REGISTER of the date, usually December 2, by which well-qualified candidates from a state, time the Foundation must receive the Foundation may invite all four- nominations at the address specified in year institutions that nominated can- the nominations materials in order to didates for this competition to submit be considered by the Foundation. additional nominations of candidates from this state or to revise and re-sub- § 1801.17 Contents of application. mit nominations of unsuccessful can- (a) The Foundation provides a form didates from this state. that must be used as the application. § 1801.22 Interview of finalists with (b) Each application must include the panel. following: (1) A certification of nomination and The Foundation invites each finalist eligibility signed by the Faculty Rep- to an interview with a regional review resentative or the President; panel. Panels evaluate Truman Final- (2) A completed Nomination and Sup- ists primarily on: porting Information Form signed by (a) Leadership potential including vi- the nominee; sion, sensitivity, and communications (3) An analysis of a public policy skills; issue written by the nominee; (b) Commitment to a career in gov- (4) A current official college tran- ernment or elsewhere in public service; script; and (5) Four letters of recommendation (c) Intellectual strength, analytical including one from the Faculty Rep- abilities, and prospects of performing resentative or President; and a well in graduate school. (6) Statement that the student is willing to participate in a Truman § 1801.23 Recommendation by panel. Scholars Leadership program spon- (a) Each Panel is asked to rec- sored by the Foundation and to attend ommend to the Board of Trustees the the awards ceremony. name of one candidate from each state in the region to be appointed as a Tru- Subpart C—The Competition man Scholar. The Foundation may au- thorize each region review panel to rec- § 1801.20 Selection of finalists. ommend additional Scholars from the (a) The Foundation selects finalists States in its region. from the students who are nominated. (b) The recommendations are based on the material required under § 1801.17 § 1801.21 Evaluation criteria. and, as determined in the interview, (a) The Foundation selects finalists the panel’s assessment of each finalist from the students nominated primarily in terms of criteria presented in on the basis of the following criteria: § 1801.22.
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§ 1801.24 Nomination of seniors. ering approval include being consistent with: (a) In the event that a regional re- view panel determines that none of the (1) Field of study initially proposed finalists from a state meet all the re- in the Scholar’s Nomination and Sup- quirements expected of a Truman porting Information Form; Scholar, it does not have to provide a (2) Graduate school programs given recommendation. The Foundation will priority in the current Bulletin of In- carry over the Scholarship for that formation; state making two Scholarships avail- (3) Undergraduate educational pro- able the succeeding year. Seniors will gram and work experience of the be eligible to participate the suc- Scholar; and ceeding year as well as juniors. Institu- (4) Preparation specifically for a ca- tions may nominate up to three seniors reer in public service. for this extra Scholarship in addition (b) Foundation approval in writing of to three juniors. the Scholar’s proposal is required be- (b) If additional nominations are fore financial support is granted for made under paragraph (a) of this sec- graduate work. tion, the applications must meet the (c) Scholars must include in their requirements of Subpart B of this part, submission to the Foundation a state- and are considered under the proce- ment of interest in a career in public dures of this subpart. service that specifies in detail how their graduate program and their over- § 1801.25 Selection of Truman Scholars all educational and work experience by the Foundation. plans will realistically prepare them The Foundation names Truman for their chosen career goal in govern- Scholars after receiving recommenda- ment or elsewhere in the public serv- tions from the regional review panels. ice. The Foundation issues guidelines to help Scholars prepare their pro- posals. Subpart D—Graduate Study and (d) After completing his or her under- the Work Experience Program graduate studies, a Scholar may re- quest in writing each year a deferral of § 1801.30 Continuation into graduate support for graduate studies. Deferrals study. must be requested no later than June (a) The Foundation will not conduct 15 for the succeeding academic year. a new and separate competition for Scholars failing to request a year’s de- graduate scholarships, nor will it add ferral and to receive written approval new Truman Scholars at the graduate from the Foundation will lose one year level. of funding support for each year for (b) Only Scholars who satisfactorily which they fail to request and receive complete their undergraduate edu- deferrals. Total deferrals may not ex- cation and who comply with § 1801.31 ceed four years unless an extension is shall be eligible for continued Founda- approved by the Foundation. Exten- tion support for an approved program sions are generally granted only for of graduate study. Scholars attending graduate or profes- sional school and supported by other § 1801.31 Approval of graduate study scholarships or private resources or for programs by the Foundation. Scholars with commitments to the uni- (a) By December 1, Scholars desiring formed services. Foundation support for graduate study the following academic year must sub- § 1801.32 Eligible colleges and degree mit a proposed program of graduate programs. study to the Foundation for approval. (a) Truman Scholars at the graduate The graduate study program proposed level may use Foundation support to for approval may differ from that pro- study at any accredited institution posed by the Scholar when nominated that offers graduate study appropriate for a Truman Scholarship. Factors to and relevant to their public service ca- be used by the Foundation in consid- reer goals.
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(b) They may enroll in any relevant The benefits received from all graduate program for a career in public sources combined may not exceed the service. A wide variety of fields of costs of tuition, fees, books, and room study can lead to careers in public and board as determined by the Foun- service including—but not limited to— dation. agriculture, biology and environmental (a) Scholars selected in 1990 and prior sciences, engineering, mathematics, years are eligible to receive annually physical and social sciences as well as up to $7,000. traditional fields such as economics, (b) Scholars selected in 1991 and in education, government, history, inter- subsequent years are eligible to receive national relations, law, medicine and a total of no more than $30,000. Each public health, political science, and Scholar is eligible to receive up to public administration and public pol- $3000 for the senior year of under- icy. graduate education. Scholars in grad- (c) Foundation support for graduate uate programs planning to receive de- study is restricted to three years of grees in one to two years are eligible to full-time study for Scholars selected in receive up to $13,500 per year or $10,000 1991 and subsequent years from four (adjusted annually from January 1985 year institutions and to two years for to reflect increases, if any, in the Con- all other Scholars. sumer Price Index for All Urban Con- § 1801.33 Public service internships sumers, published by the Bureau of and employment prior to graduate Labor Statistics), whichever is less. study. Scholars in graduate programs requir- ing three or more years of academic The Foundation encourages all study are eligible to receive up to $9000 Scholars to consider participating in paid internships, regular employment, per year for a maximum of three years. or in voluntary programs of work expe- § 1801.42 Definition of ‘‘fee’’. rience in the government or in other public service organizations before at- Fee, in this part, means a typical and tending graduate school. The Founda- usual non-refundable charge by the in- tion may give preference in its selec- stitution of higher education for a tion process to nominees planning such service, a privilege, or the use of prop- internships and employment. erty which is required for a Scholars’ enrollment and registration. Subpart E—Payments to Finalists and Scholars § 1801.43 Allowance of books. The cost allowance for a Scholar’s § 1801.40 Travel expenses of finalists. books is $1000 per year. This figure may The Foundation will provide support be increased by the Foundation with for intercity round trip transportation the new figure published in the Bul- from the finalist’s place of study to the letin of Information. interview site. The Foundation does not reimburse finalists for lodging, § 1801.44 Allowance for room and board. meals, local transportation, or other expenses. The Foundation announces The cost allowed for a Scholar’s room the terms and conditions of support in and board is the amount the institu- the annual Bulletin of Information. tion of higher education reports to the Foundation as the average cost of room § 1801.41 Scholarship stipends. and board for the Scholar’s institution, The award covers eligible expenses in given the type of housing the Scholar the following categories: tuition, fees, occupies. books, and room and board. Payments from the Foundation may be received § 1801.45 Deduction for benefits from to supplement, but not to duplicate, other sources. benefits received by the Scholar from The cost allowed for a Scholar’s tui- the educational institution or from tion, fees, books, room and board must other foundations or organizations. be reduced to the extent that the cost
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is paid by another organization or pro- § 1801.53 Postponement of payment. vided for or waived by the Scholar’s in- (a) A Scholar may request the Foun- stitution. dation to postpone one or more pay- ments because of sickness or other cir- Subpart F—Payment Conditions cumstances. and Procedures (b) If the Foundation grants a post- ponement, it may impose such condi- § 1801.50 Acceptance of the scholar- tions as necessary. ship. To receive any payment, a Scholar § 1801.54 Annual report. must sign an acceptance of the scholar- (a) Scholars with remaining eligi- ship and acknowledgment of the condi- bility for scholarship stipends must tions of the award and submit it to the submit no later than July 15 an annual Foundation. report to the Foundation. (b) The annual report should be in § 1801.51 Report at the beginning of narrative form and cover: courses each term. taken and grades earned; courses (a) To receive a Scholarship stipend, planned for the coming year if Founda- a Scholar must submit a current Pay- tion support will be requested; public ment Request Form containing the fol- service and school activities; part-time lowing: or full-time employment and summer (1) A statement of the Scholar’s costs employment or internships; public for tuition, fees, books, room and service career goals and ambitions; and board; achievements, awards and recognition, (2) A certification by an authorized publications or significant develop- official of the institution that the ments. statement of those costs is accurate; (c) Newly selected Scholars are re- (3) A certification of the amounts of quired to submit an annual report up- those costs that are paid or waived by dating the Foundation on their activi- the institution or paid by another or- ties and accomplishments since the ganization. time they submitted their applications (4) A certification by an authorized for the Truman Award. official of the institution that the Scholar is a full-time student and is Subpart G—Duration of taking a course of study, training, or Scholarship other educational activities to prepare for a career in public service; and is not § 1801.60 Renewal of scholarship. engaged in gainful employment that It is the intent of the Foundation to interferes with the Scholar’s studies. provide scholarship awards for a period (5) A certification by an authorized not to exceed a total of four academic official of the institution that the years, only in accordance with the reg- Scholar is in academic good standing. ulations established by its Board of (b) At the beginning of the academic Trustees, and subject to an annual re- year, the Scholar must have his or her view for compliance with the require- institution submit a certified Edu- ments of this part. cational Expense Form showing the charges for tuition, fees, books, room § 1801.61 Termination of scholarship. and board and other expenses required (a) The Foundation may suspend or for the academic year in which the terminate a scholarship under the fol- Scholar will request Foundation sup- lowing specific conditions. port. (1) Unsatisfactory academic perform- ance for two terms, failure to pursue § 1801.52 Payment schedule. preparation for a career in public serv- The Foundation will pay the Scholar ice, or loss of interest in a career in a portion of the award after each re- public service. Failure as an under- port submitted under § 1801.51. graduate to maintain a B or better
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term average for two terms is consid- dividuals and the Foundation’s abili- ered unsatisfactory academic perform- ties to carry out its responsibilities. ance. Accordingly, these procedures apply to (2) Failure to meet the criteria in meetings of the Board of Trustees, § 1801.3(d), 1801.31(b), or 1801.51. Harry S. Truman Scholarship Founda- (3) Providing false, misleading, or tion, including committees of the materially incomplete information on Board of Trustees. any report, payment request or other submission to the Foundation. § 1802.2 Definitions. (b) Before it terminates a scholar- As used in this part: ship, the Foundation will notify the Board or Board of Trustees means the Scholar of the proposed action and will collegial body that conducts the busi- provide an opportunity to be heard ness of the Harry S. Truman Scholar- with respect to the grounds for termi- ship Foundation as specified in section nation. 5(b), Pub. L. 93–642 (20 U.S.C. 2004), con- sisting of: § 1801.62 Recovery of scholarship funds. (a) Eight persons appointed by the President, by and with the advice and (a) When a Truman Scholarship is consent of the Senate; terminated for any reason, the Scholar (b) Two members of the Senate, one must return to the Foundation any sti- from each political party, appointed by pend funds which have not yet been the President of the Senate; spent or which the Scholar may re- cover. (c) Two members of the House of Rep- (b) A Scholar who fails for any reason resentatives, one from each political to complete as a full-time student a party, appointed by the Speaker; and school term for which he or she has re- (d) The Commissioner of Education ceived a Foundation stipend, must re- or his designee, who serves as an ex turn the amount of that stipend to the officio member of the Board. Foundation. The Foundation may Chairman means the presiding officer waive this requirement upon applica- of the Board. tion by the Scholar showing goods Committee means any formally des- cause for doing so. ignated subdivision of the Board, con- sisting of at least two Board members, PART 1802—PUBLIC MEETING PRO- authorized to act on behalf of the Board, including the Board’s standing CEDURES OF THE BOARD OF committees and any ad hoc commit- TRUSTEES tees appointed by the Board for special purposes. Sec. Executive Secretary means the indi- 1802.1 Purpose and scope. 1802.2 Definitions. vidual appointed by the Board to serve 1802.3 Open meetings. as the chief executive officer of the 1802.4 Grounds on which meetings may be Foundation. closed, or information may be withheld. Meeting means the deliberations of at 1802.5 Procedure for announcing meetings. least the number of individual voting 1802.6 Procedure for closing meetings. members of the Board required to take 1802.7 Transcripts, recordings, minutes of action on behalf of the Board, where meetings. such deliberations determine or result AUTHORITY: 5 U.S.C. 552b(g); 20 U.S.C. 2001– in the joint conduct or disposition of 2012. official business of the Board, but does SOURCE: 42 FR 14722, Mar. 16, 1977, unless not include: (1) Deliberations to open otherwise noted. or close a meeting, to establish the agenda for a meeting, or to release or § 1802.1 Purpose and scope. withhold information, required or per- The Harry S. Truman Scholarship mitted by § 1802.5 or § 1802.6, (2) nota- Foundation will provide the public tion voting or similar consideration of with the fullest practical information matters whether by circulation of ma- regarding its decision-making proc- terial to members individually in writ- esses while protecting the rights of in- ing, or polling of members individually
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by telephone or telegram and (3) in- properly classified pursuant to such stances where individual members, au- Executive Order; thorized to conduct business on behalf (b) Relate solely to the internal per- of the Board or to take action on be- sonnel rules and practices of the Harry half of the Board, meet with members S. Truman Scholarship Foundation; of the public or staff. Conference tele- (c) Disclose matters specifically ex- phone calls that involve the requisite empted from disclosure by statute number of members, and otherwise (other than section 552, Title 5, United come within the definition, are in- States Code), provided that such stat- cluded. ute: (1) Requires that the matters be Member means a member of the Board withheld from the public in such a of Trustees. manner as to leave no discretion on the Staff includes the employees of the issue, or (2) establishes particular cri- Harry S. Truman Scholarship Founda- teria for withholding or refers to par- tion, other than the members of the ticular types of matters to be withheld; Board. (d) Disclose trade secrets and com- mercial and financial information ob- § 1802.3 Open meetings. tained from a person and privileged or (a) Members shall not jointly conduct confidential; or dispose of business of the Board of (e) Involve accusing any person of a Trustees other than in accordance with crime or formally censuring any per- these procedures. Every portion of son; every meeting of the Board of Trustees (f) Disclose information of a personal or any committees of the Board shall nature where disclosure would con- be open to public observation subject stitute a clearly unwarranted invasion to the exceptions provided in § 1802.4. of personal privacy; (b) Open meetings will be attended by (g) Disclose investigatory records members of the Board, certain staff, compiled for law enforcement purposes, and any other individual or group de- or information which if written would siring to observe the meeting. The pub- be contained in such records, but only lic will be invited to observe and listen to the extent that the production of to the meeting but not to participate. such records or information would: (1) The use of cameras and disruptive re- Interfere with enforcement pro- cording devices will not be permitted. ceedings, (2) Deprive a person of a right to a § 1802.4 Grounds on which meetings fair trial or an impartial adjudication, may be closed, or information may (3) Constitute an unwarranted inva- be withheld. sion of personal privacy, Except in a case where the Board or (4) Disclose the identity of a con- a committee finds that the public in- fidential source and, in the case of a terest requires otherwise, the open record compiled by a criminal law en- meeting requirement as set forth in the forcement authority in the course of a second sentence of § 1802.3(a) shall not criminal investigation, or by an agency apply to any portion of a Board or com- conducting a lawful national security mittee meeting, and the informational intelligence investigation, confidential disclosure requirements of §§ 1802.5 and information furnished only by the con- 1802.6 shall not apply to any informa- fidential source, tion pertaining to such meeting other- (5) Disclose investigative techniques wise required by this part to be dis- and procedures, or closed to the public, where the Board (6) Endanger the life or physical safe- or committee, as applicable, properly ty of law enforcement personnel; determines that such portion or por- (h) Disclose information contained in tions of its meetings or the disclosure or related to examination, operating, of such information is likely to: or condition reports prepared by, on be- (a) Disclose matters that are: (1) Spe- half of, or for the use of an agency re- cifically authorized under criteria es- sponsible for the regulation or super- tablished by an Executive Order to be vision of financial institutions; kept secret in the interests of national (i) Disclose information the pre- defense or foreign policy and (2) in fact mature disclosure of which would be
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likely to significantly frustrate imple- (c) The time or place of a meeting mentation of a proposed agency action, may be changed following the public except that this paragraph shall not announcement required by paragraph apply in any instance where the agency (a) only if the Executive Secretary, has already disclosed to the public the acting at the direction of the Board, content or nature of its proposed ac- publicly announces such change at the tion, or where the agency is required earliest practicable time. Such change by law to make such disclosure on its need not be voted on by the members. own initiative prior to taking final (d) The subject matter of a meeting, agency action on such proposal; or or the determination of the Board or (j) Specifically concern the issuance committee, as applicable, to open or of a subpoena, or Foundation participa- close a meeting, or portion of a meet- tion in a civil action or proceeding, an ing, to the public, may be changed fol- action in a foreign court or inter- lowing the public announcement re- national tribunal, or an arbitration, or quired by paragraph (a) of this section the initiation, conduct, or disposition only if: (1) A majority of the entire vot- by the Foundation of a particular case ing membership of the Board or a ma- of formal adjudication pursuant to the jority of the entire voting membership procedures in section 554 of title 5, of a committee, determines by a re- United States Code, or otherwise in- corded vote that Board or committee volving a determination on the record business so requires and that no earlier after opportunity for a hearing. announcement of the change was pos- sible, and § 1802.5 Procedure for announcing (2) The Board or committee publicly meetings. announces such change and the vote of (a) Except to the extent that such in- each member upon such change at the formation is exempt from disclosure earliest practicable time. under the provisions of § 1802.4, in the (e) The ‘‘earliest practicable time’’ as case of each Board or committee meet- used in this section, means as soon as ing, the Executive Secretary, acting at possible, which should in few, if any, the direction of the Board, shall pub- instances be no later than commence- lish in the FEDERAL REGISTER, at least ment of the meeting or portion in ques- seven days before the meeting, the fol- tion. lowing information: (f) Immediately following each public (1) Time of the meeting; announcement required by this section, (2) Place of the meeting; notice of the time, place and subject (3) Subject matter of the meeting; matter of a meeting, whether the meet- (4) Whether the meeting or parts ing is open or closed, any change in one thereof are to be open or closed to the of the preceding, and the name and public; and phone number of the person designated (5) The name and phone number of by the Board or committee to respond the person designated by the Board or to requests for information about the committee to respond to requests for meeting, shall be submitted for publi- information about the meeting. cation in the FEDERAL REGISTER. (b) The seven-day period for the pub- lic announcement required by para- § 1802.6 Procedure for closing meet- graph (a) of this section may be re- ings. duced if a majority of the members of (a) Action to close a meeting or a the Board or committee, as applicable, portion thereof, pursuant to the ex- determine by a recorded vote that emptions set forth in § 1802.4, shall be Board or committee business requires taken only when a majority of the en- that such expedited meeting be called tire voting membership of the Board or at an earlier date. The Board or com- a majority of the entire voting mem- mittee shall make public announce- bership of a committee, as applicable, ment of the time, place, and subject vote to take such action. Any such ac- matter of such meeting, and whether tion shall include a specific finding by open or closed to the public, at the ear- the Board that an open meeting is not liest practicable time. required by the public interest.
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(b) A separate vote of the Board or (e) of this section, make publicly avail- committee members shall be taken able a full written explanation of its with respect to each Board or com- action closing the portion together mittee meeting, a portion or portions with a list of all persons expected to of which are proposed to be closed to attend the meeting and their affili- the public pursuant to § 1802.4 or with ation. The information required by this respect to any information which is paragraph shall be disclosed except to proposed to be withheld under § 1802.4. the extent it is exempt from disclosure (c) A single vote of the Board or com- under the provisions of § 1802.4. mittee may be taken with respect to a (g) For every meeting closed pursu- series of meetings, a portion or por- ant to § 1802.4, the General Counsel of tions of which are proposed to be closed the Harry S. Truman Scholarship to the public, or with respect to any in- Foundation shall certify before the formation concerning such series of meeting may be closed that, in his or meetings, so long as each meeting in her opinion, the meeting may be closed such series involves the same par- to the public and shall state each rel- ticular matters and is scheduled to be evant exemptive provision. A copy of held no more than 30 days after the ini- such certification, together with a tial meeting in such series. statement from the presiding officer of (d) The vote of each member shall be the meeting setting forth the time and recorded, and may be by notation vot- place of the meeting, and the persons ing, telephone polling or similar con- present, shall be retained by the Board sideration. as part of the transcript, recording or (e) Whenever any person whose inter- minutes required by § 1802.7. ests may be directly affected by a por- tion of a meeting requests that the § 1802.7 Transcripts, recordings, min- Board or a committee close such por- utes of meetings. tion to the public under any of the ex- (a) The Board of Trustees shall main- emptions relating to personal privacy, tain a complete transcript or elec- criminal accusation, or law enforce- tronic recording adequate to record ment information referred to in para- graph (e), (f), or (g) of § 1802.4, the fully the proceedings of each meeting, Board or committee, as applicable, or portion of a meeting, closed to the upon request of any one of its mem- public, except that in the case of a bers, shall vote by recorded vote meeting closed to the public pursuant whether to close such meeting. Where to paragraph (j) of § 1802.4, the Board the Board receives such a request prior shall maintain either such a transcript to a meeting, the Board may ascertain or recording, or a set of minutes. by notation voting, or similar consider- (b) Where minutes are maintained ation, the vote of each member of the they shall fully and clearly describe all Board, or committee, as applicable, as matters discussed and shall provide a to the following: full and accurate summary of any ac- (1) Whether the business of the Board tions taken, and the reasons for such or committee permits consideration of actions, including a description of each the request at the next meeting, and of the views expressed on any item and delay of the matter in issue until the the record of any roll call vote (reflect- meeting following, or ing the vote of each member on the (2) Whether the members wish to question). All documents considered in close the meeting. connection with any action shall be (f) Within one day of any vote taken identified in such minutes. pursuant to paragraph (a), (b), (c) or (c) The Board shall maintain a com- (e), of this section, the Board or com- plete verbatim copy of the transcript, a mittee shall make publicly available a complete copy of the minutes, or a written copy of such vote reflecting the complete electronic recording of each vote of each member on the question. If meeting or portion of a meeting, closed a portion of a meeting is to be closed to to the public, for a period of at least the public, the Board or committee two years after such meeting, or until shall, within one day of the vote taken one year after the conclusion of any pursuant to paragraph (a), (b), (c), or Board proceeding with respect to which
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the meeting or portion was held, 1803.10 Communications. whichever occurs later. 1803.11 Compliance procedures. (d) Public availability of records AUTHORITY: 29 U.S.C. 794. shall be as follows: (1) Within ten days of receipt of a re- SOURCE: 54 FR 4795, Jan. 31, 1989, unless quest for information (excluding Satur- otherwise noted. days, Sundays, and legal public holi- § 1803.1 Purpose. days), the Foundation shall make available to the public, in the offices of This part effectuates section 119 of the Harry S. Truman Scholarship the Rehabilitation, Comprehensive Foundation, 712 Jackson Place NW., Services, and Developmental Disabil- Washington, DC, the transcript, elec- ities Amendments of 1978, which tronic recording, or minutes of the dis- amended section 504 of the Rehabilita- cussion of any item on the agenda, or tion Act of 1973 to prohibit discrimina- of any item of the testimony of any tion on the basis of handicap in pro- witness received at the meeting except grams or activities conducted by exec- for such item or items of such discus- utive agencies. sion or testimony as the General Coun- sel determines to contain information § 1803.2 Application. which may be withheld under § 1802.4. This part applies to all programs or (2) Copies of such transcript, or min- activities conducted by the Founda- utes, or a transcription of such record- tion, except for programs or activities ing disclosing the identify of each conducted outside the United States speaker, shall be available at the ac- that do not involve individual(s) with tual cost of duplication or tran- handicaps in the United States. scription. (3) The determination of the General § 1803.3 Definitions. Counsel to withhold information pursu- For purposes of this part, the term— ant to paragraph (d)(1) of this section Assistant Attorney General means the may be appealed to the Board. The ap- Assistant Attorney General, Civil peal shall be circulated to individual Rights Division, United States Depart- Board members. The Board shall make ment of Justice. a determination to withhold or release Auxiliary aids means services or de- the requested information within twen- vices that enable persons with im- ty days from the date of receipt of a paired sensory, manual, or speaking written request for review (excluding skills to have an equal opportunity to Saturdays, Sundays, and legal public participate in and enjoy the benefits of holidays). programs or activities conducted by (4) A written request for review shall the Foundation. be deemed received by the Board when it has arrived at the offices of the Complete complaint means a written Board in a form that describes in rea- statement containing: (1) Date and na- sonable detail the material sought. ture of the alleged violation of section 504; (2) the complainant’s name and ad- dress; and (3) the signature of the com- PART 1803—NONDISCRIMINATION plainant or of someone authorized to ON THE BASIS OF HANDICAP act on his or her behalf. Complaints filed on behalf of classes or Sec. 1803.1 Purpose. third parties shall describe or identify, 1803.2 Application. by name if possible, the alleged victims 1803.3 Definitions. of discrimination. 1803.4 Self-evaluation. Executive Secretary means the Execu- 1803.5 Notice. tive Secretary of the Harry S. Truman 1803.6 General prohibitions against dis- Scholarship Foundation. crimination. Facility means all or any portion of 1803.7 Program accessibility: Existing fa- cilities. buildings, structures, equipment, 1803.8 Program accessibility: New construc- roads, walks, parking lots, rolling tion and alterations. stock or other conveyances, or other 1803.9 Employment. real or personal property.
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Foundation means the Harry S. Tru- titudes of others toward such impair- man Scholarship Foundation. ment; or General Counsel means the General (iii) Has none of the impairments de- Counsel of the Harry S. Truman Schol- fined in subparagraph (1) of this defini- arship Foundation. tion, but is treated by the Foundation Individual with handicaps means any as having such an impairment. person who has a physical or mental Qualified individual with handicaps impairment that substantially limits means an individual with handicaps one or more major life activities, has a who meets the essential eligibility re- record of such an impairment, or is re- quirements for participation in, or re- garded as having such an impairment. ceipt of benefits from, any Foundation As used in this definition, the phrase: program or activity. For purposes of (1) Physical or mental impairment in- employment, ‘‘qualified individual cludes— with handicaps’’ means ‘‘qualified (i) Any physiological disorder or con- handicapped person’’ as defined in 29 dition, cosmetic disfigurement, or ana- CFR 1613.702(f), which is made applica- tomical loss affecting one or more of ble to this part by § 1803.10. the following body systems: Neuro- Section 504 means section 504 of the logical; musculoskeletal; special sense Rehabilitation Act of 1973, Pub. L. 93– organs; respiratory, including speech 112, 87 Stat. 394, 29 U.S.C. 794, as organs; cardiovascular; reproductive; amended by the Rehabilitation Act digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or Amendments of 1974, Pub. L. 93–516, 88 Stat. 1617; the Rehabilitation, Com- (ii) Any mental or psychological dis- order, such as mental retardation, or- prehensive Services, and Develop- ganic brain syndrome, emotional or mental Disabilities Amendments of mental illness, and specific learning 1978, Pub. L. 95–602, 92 Stat. 2955; and by disabilities. The term ‘‘physical or the Rehabilitation Act amendments of mental impairment’’ includes, but is 1986, Pub. L. 99–506, 100 Stat. 1810. As not limited to, such diseases and condi- used in this part, section 504 applies tions as orthopedic, visual, speech, and only to programs or activities con- hearing impairments, cerebral palsy, ducted by the Foundation and not to epilepsy, muscular dystrophy, multiple federally assisted programs. sclerosis, cancer, heart disease, diabe- tes, mental retardation, emotional ill- § 1803.4 Self-evaluation. ness, and drug addiction and alco- (a) The Foundation shall, within one holism. year of the effective date of this part, (2) Major life activities includes func- evaluate, with the assistance of inter- tions such as caring for one’s self, per- ested persons, including individuals forming manual tasks, walking, seeing, with handicaps or organizations rep- hearing, speaking, breathing, learning, resenting individuals with handicaps, and working. its current policies and practices, and (3) Has a record of such an impairment the effects thereof, that do not or may means has a history of, or has been not meet the requirements of this part, classified as having, a mental or phys- and, to the extent modification of any ical impairment that substantially such policies and practices is required, limits one or more major life activi- the Foundation shall proceed to make ties. the necessary modification. (4) Is regarded as having an impairment means— (b) The Foundation shall, for at least three years following completion of the (i) Has a physical or mental impair- ment that does not substantially limit evaluation required under paragraph major life activities but is treated by (a) of this section, maintain on file and the Foundation as constituting such a make available for public inspection— limitation; (1) A description of areas examined (ii) Has a physical or mental impair- and any problems identified; and ment that substantially limits major (2) A description of any modifications life activities only as a result of the at- made.
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§ 1803.5 Notice. § 1803.7 Program accessibility: Exist- ing facilities. The Foundation shall make available to employees, applicants, participants, (a) The Foundation shall operate beneficiaries, and other interested per- each program or activity so that the sons such information regarding the program or activity, when viewed in its provisions of this part and its applica- entirety, is readily accessible to and bility to the programs or activities usable by individuals with handicaps. conducted by the Foundation as the This paragraph does not necessarily re- Executive Secretary finds necessary to quire the Foundation to make each of apprise such persons of the protections its existing facilities accessible to and against discrimination assured them usable by individuals with handicaps, but no qualified individual with handi- by section 504 and this regulation. caps shall be denied the benefit of, be § 1803.6 General prohibitions against excluded from participation in, or oth- discrimination. erwise be subjected to discrimination under any of the Foundation’s pro- (a) No qualified individual with grams and activities because any of the handicaps shall, on the basis of handi- Foundation’s facilities are inaccessible cap, be excluded from participation in, to or unusable by individuals with be denied the benefits of, or otherwise handicaps. be subjected to discrimination under (b) When the Foundation uses facili- any program or activity subject to this ties leased or otherwise provided by the part. General Services Administration (b) The Foundation may not, either (GSA), it shall request GSA to make directly or through arrangements with any structural changes that the Foun- others, on the basis of handicap— dation determines are required to pro- (1) Discriminate against a qualified vide necessary accessibility for individ- individual with handicaps in the award uals with handicaps, and shall inform or renewal of scholarships, through se- that agency of any complaints regard- lection criteria or otherwise; ing accessibility by individuals with (2) Deny a qualified individual with handicaps. handicaps the opportunity to partici- (c) The Foundation periodically uses pate as a member of boards or panels meeting rooms or similar facilities used to screen scholarship applicants; made available by non-federal entities. (3) Deny a qualified individual with In any instances in which such tempo- handicaps the opportunity to partici- rarily used facilities are not readily ac- pate as a member of planning or advi- cessible to qualified individuals with sory boards; or handicaps, the Foundation shall make alternative arrangements so that such (4) Otherwise subject a qualified indi- qualified individuals with handicaps vidual with handicaps to discrimina- can participate fully in the Founda- tion. tion’s activity. (c) The Foundation may not, either (d) This section does not require the directly or through arrangements with Foundation to take any action that it others, utilize criteria or methods of can demonstrate would result in a fun- administration the purpose or effect of damental alteration in the nature of a which would— program or activity or in undue finan- (1) Subject qualified individuals with cial and administration burdens. In handicaps to discrimination on the those circumstances where Foundation basis of handicap; or personnel believe that the proposed ac- (2) Defeat or substantially impair ac- tion would fundamentally alter a pro- complishment of the objectives of a gram or activity or would result in program or activity with respect to in- undue financial and administrative dividuals with handicaps. burdens, the Foundation has the bur- (d) The Foundation shall administer den of proving that compliance with programs and activities in the most paragraph (a) of this section would re- feasibly integrated setting appropriate sult in such alteration or burdens. The to the needs of qualified individuals decision that compliance would result with handicaps. in such alteration or burdens must be
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made by the Executive Secretary after ticipate in the scholarship interview considering all agency resources avail- process or other programs or activities able for use in the funding and oper- conducted by the Foundation. ation of the conducted program or ac- (i) In determining what type of auxil- tivity, and must be accompanied by a iary aid is necessary, the Foundation written statement of the reasons for shall give primary consideration to the reaching that conclusion. If an action requests of the individual with handi- required to comply with this section caps. would result in such an alteration or (ii) The Foundation need not provide such burdens, the Foundation shall individually prescribed devices or other take other action not resulting in such devices of a personal nature. an alteration or such burdens, but would nevertheless ensure that, to the (2) When the Foundation commu- maximum extent possible, individuals nicates with applicants and bene- with handicaps receive the benefits and ficiaries by telephone, the Foundation services of the programs or activities. shall use, for persons with impaired hearing, a telecommunication device § 1803.8 Program accessibility: New for deaf persons or equally effective construction and alterations. telecommunication device. Each building or part of a building (b) The Foundation shall take appro- that is constructed or altered by, on priate steps to provide individuals with behalf of, or for the use of the Founda- handicaps with information regarding tion shall be designed, constructed, or their section 504 rights under the Foun- altered so as to be readily accessible to dation’s programs or activities. and usable by individuals with handi- (c) This section does not require the caps. The definitions, requirements, Foundation to take any action that it and standards of the Architectural Bar- can demonstrate would result in a fun- riers Act (42 U.S.C. 4151–4157), as estab- damental alteration in the nature of a lished in 41 CFR 101–19.600 to 101–19.607, program or activity or in undue finan- apply to buildings covered by this sec- cial and administrative burdens. In tion. those circumstances where Foundation § 1803.9 Employment. personnel believe that the proposed ac- tion would fundamentally alter a pro- No qualified individual with handi- gram or activity or would result in caps shall, on the basis of handicap, be undue financial and administrative subjected to discrimination in employ- burdens, the Foundation has the bur- ment under any program or activity den of proving that compliance with conducted by the Foundation. The defi- paragraphs (a) and (b) of this section nitions, requirements and procedures of section 501 of the Rehabilitation Act would result in such alteration or bur- of 1973 (29 U.S.C. 791), as established by dens. The decision that compliance the Equal Employment Opportunity would result in such alteration or bur- Commission in 29 CFR part 1613, shall dens must be made by the Executive apply to employment in federally con- Secretary after considering all Founda- ducted programs or activities. tion resources available for use in the funding and operation of a conducted § 1803.10 Communications. program or activity, and must be ac- (a) The Foundation shall take appro- companied by a written statement of priate steps to assure that interested the reasons for reaching that conclu- persons, including persons with im- sion. If an action required to comply paired vision or hearing, can effec- with this section would result in such tively communicate with the Founda- an alteration or such burdens, the tion and obtain information as to the Foundation shall take other action not existence and availability of the Foun- resulting in such an alteration or such dation’s programs and activities. burdens, but would nevertheless ensure (1) The Foundation shall furnish ap- that, to the maximum extent possible, propriate auxiliary aids where nec- individuals with handicaps receive the essary to afford an individual with benefits and services of the programs handicaps an equal opportunity to par- or activities.
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§ 1803.11 Compliance procedures. (g) The Foundation shall notify the (a) Except as provided in paragraph complainant of the results of the inves- (b) of this section, this section applies tigation within 90 days of the receipt of to all allegations of discrimination on a complete complaint over which it has the basis of handicap in programs or jurisdiction. Notification must be in a activities conducted by the Founda- letter, and must include— tion. (1) Findings of fact and conclusions (b) The Foundation shall process of law; complaints alleging violations of § 504 (2) A description of a remedy for each with respect to employment according violation discovered; and to the procedures established by the (3) A notice of the right to appeal. Equal Employment Opportunity Com- (h) Appeals of the findings of fact and mission in 29 CFR part 1613 pursuant to conclusions of law or remedies must be section 501 of the Rehabilitation Act of filed by the complainant within 90 days 1973 (29 U.S.C. 791). of receipt from the agency of the letter (c) Responsibility for implementa- tion and operation of this section shall required by paragraph (f) of this sec- be vested in the Executive Secretary. tion. The Foundation may extend this (d) The Foundation shall accept and time for good cause. investigate all complete complaints for (i) Timely appeals shall be accepted which it has jurisdiction. All complete and processed by the General Counsel. complaints must be filed within 180 (j) The Foundation shall notify the days of the alleged act of discrimina- complainant of the results of the ap- tion. The Foundation may extend this peal within 90 days of the receipt of the time period for good cause. request. If the Foundation determines (e) If the Foundation receives a com- that it needs additional information plaint over which it does not have ju- from the complainant, it shall have 90 risdiction, it shall promptly notify the days from the date it receives the addi- complainant and shall make reason- tional information to make its deter- able efforts to refer the complaint to mination on the appeal. the appropriate government entity. (f) The Foundation shall notify the (k) The time limits cited in para- Architectural and Transportation Bar- graphs (g) and (h) of this section may riers Compliance Board upon receipt of be extended with the permission of the any complaint alleging that a building Assistant Attorney General. or facility that is used by the Founda- (l) The Foundation may delegate its tion that is subject to the Architec- authority for conducting complaint in- tural Barriers Act of 1968, as amended vestigations to other federal agencies, (42 U.S.C. 4151–4157), is not readily ac- but may not delegate to another agen- cessible to and usable by individuals cy the authority for making the final with handicaps. determination.
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Part Page 2101 Functions and organization ...... 547 2102 Meetings and procedures of the Commission ...... 549 2103 Statements of policy ...... 552 2104 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Commission of Fine Arts ...... 552 2105 Rules for compliance with 5 U.S.C. 552, the Free- dom of Information Act ...... 558 2106 Rules for compliance with 5 U.S.C. 552a, the Pri- vacy Act of 1974 ...... 560
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to such government as to the effect of and shall provide such design changes the plans on the preservation and pro- as may be required to obtain approval. tection of places and areas that have historic interest or that manifest ex- § 2101.2 Relationships of Commission’s emplary features and types of architec- functions to responsibilities of ture, including recommendations for other government units. any changes in plans necessary in the (a) Projects involving the Capitol build- judgement of the Commission to pre- ing and the Library of Congress. Plans serve the historic value of Old George- concerning the Capitol building and town, and takes any such actions as in the buildings of the Library of Con- the judgement of the Commission are gress are outside the purview of the right or proper in the circumstances. Commission except as to questions on (Old Georgetown Act, Public Law 81– which the Committees of Congress re- 808, 64 Stat. 903 (D.C. Code 5–801).) quire the Commission to advise. (d) United States medals, insignia, and (b) Other Federal government projects. coins. On medals, insignia, and coins to Officers and departments of the federal be produced by an executive depart- government responsible for finally ap- ment of the United States including proving or acting upon proposed the Mint, the Commission advises as to projects within the purview of the the merits of their designs which shall Commission’s functions as described in be submitted before the executive offi- § 2101.1 (a) are required first to submit cer having charge of the same shall ap- plans or designs for such projects to prove thereof. the Commission for its advice and com- (e) Heraldic services provided by the De- ments. partment of the Army. The Commission (c) Projects within the jurisdiction of upon request advises the Heraldic the District of Columbia government. The Branch of the Army upon the merits of District of Columbia seeks Commission proposed designs for medals, insignia, advice on exterior alteration or new seals, etc. prepared under the authority construction of public buildings or of the Act of August 26, 1957 to furnish major public works within its bound- heraldic services to the other depart- aries. The District of Columbia govern- ments and agencies of the government. ment also shall seek Commission ad- (f) Questions of art with which the Fed- vice on certain private construction re- eral government is concerned. When re- quiring building or demolition permits quired to do so by the President or by from the D.C. Permit Branch (D.C. Law Committees of either House of Con- 5–422). These include certain actions by gress, the Commission advises gen- the District of Columbia government erally on questions of art, and when- pursuant to either D.C. Law 5–422 or ever questions of such nature are sub- D.C. Law 2–144 within areas subject to mitted to it by an officer or depart- the Shipstead-Luce or Old Georgetown ment of the federal government the Acts (§ 2101.1 (b) and (c)) prior to the Commission advises and comments. issuance of a permit.2 Alterations of (g) Commemorative works. The Com- buildings, demolition, or new construc- memorative Works Act provides stand- tion at individually designated land- ards for placement of commemorative marks or within historic districts are works on certain federal lands in the further subject to the permit require- District of Columbia and its environs, ments of the Historic Landmark and and for other purposes; and requires Historic District Protection Act of 1978 site and design approval of all com- (D.C. Law 2–144). Upon request, advice memorative works by the Commission will be given on the subject of lot sub- of Fine Arts, National Capital Plan- divisions. ning Commission, and (as appropriate) the Secretary of Interior or the Admin- 2 Provisions of the Shipstead-Luce Act istrator of General Services. The spon- (§ 2101.1 (b)) do not include full demolition, soring agencies therefore shall submit though partial demolition is viewed as an al- designs to the Commission for review teration.
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Subpart B—General Organization 2102.3 Public notice of meetings. 2102.4 Public attendance and participation. § 2101.10 The Commission. 2102.5 Records and minutes; public inspec- tion. The Commission is composed of seven members, each of whom is ap- Subpart B—Procedures on Submission of pointed by the President and serves for Plans or Designs a period of four years or until his or 2102.10 Timing, scope and content of sub- her successor is appointed and quali- missions for proposed projects involving fied. The Chairman and Vice Chairman land, buildings or other structures. are elected by the members. The Com- 2102.11 Scope and content of submission for mission is assisted by a staff as author- proposed medals, insignia, coins, seals, ized by the Commission. and the like. 2102.12 Responses of Commission to submis- § 2101.11 Secretary to the Commission. sions.
Subject to the direction of the Chair- AUTHORITY: 5 U.S.C., App. 1; OMB Circular man, the Secretary to the Commission No. A–63. is responsible for the day-to-day oper- SOURCE: 62 FR 4647, Jan. 31, 1997, unless ations of the agency and for super- otherwise noted. vising the staff in its support of the functions of the Commission; for pre- Subpart A—Commission Meetings paring the agenda of Commission meet- ings; for organizing presentations be- § 2102.1 Times and places of meetings. fore the Commission of plans, designs, Regular meetings of the Commission, or questions upon which it is to advise, open to the public, are held monthly on comment, or respond; for interpreting the third Thursday of the month, be- the Commission’s conclusions, advice, ginning at 10:00 o’clock a.m., at its of- or recommendations on each matter fices in Suite 312, 441 F Street, N.W. submitted to it; for maintaining a liai- Washington, D.C. 20001, except that by son with other governmental entities, action of the Commission a regular professionals, and the public; and for meeting in any particular month may maintaining the Commission’s records. be omitted or it may be held on an- The Assistant Secretary of the Com- other day or at a different time or mission shall carry out duties dele- place. A special meeting, open to the gated to him/her by the Secretary and public, may be held in the interval be- shall act in place of the Secretary dur- tween regular meetings upon call of ing his/her absence or disability. the Chairman and five days’ written § 2101.12 Georgetown Board of Archi- notice of the time and place mailed to tectural Consultants. each member who does not in writing waive such notice. On all matters of of- To assist the Commission in carrying ficial business, the Commission shall out the purposes of the Old Georgetown conduct its deliberations and reach its Act (§ 2101.1 (c)), a committee of three conclusions at such open meetings ex- architects appointed for a term of cept as stated in § 2101.12 provided, three years by the Commission serves however, the Commission members as the Board of Architectural Consult- may receive staff briefings or may have ants without expense to the United informal background discussions States. This committee advises the among themselves and the staff outside Commission regarding designs and of such meetings. plans referred to it. The Chairman is elected by its members. § 2102.2 Actions outside of meetings. Between meetings in situations of PART 2102—MEETINGS AND emergency, the Commission may act PROCEDURES OF THE COMMISSION through a canvass by the Secretary of individual members, provided that any Subpart A—Commission Meetings action so taken is brought up and rati- Sec. fied at the next meeting. In addition, 2102.1 Times and places of meetings. the Commission members may convene 2102.2 Actions outside of meetings. away from the Commission’s offices to
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make inspections at the site of a pro- ments made available to, or prepared posed project or at the location of a for or by, the Commission shall be mock-up for the project and may then available for public inspection and, at and there reach its conclusions respect- the requesting party’s expense, for ing such project which shall be re- copying at the offices of the Commis- corded in the minutes of the meeting sion. held on the same day or, if none was then held, in the minutes of the next Subpart B—Procedures on meeting. Submissions of Plans or Designs § 2102.3 Public notice of meetings. § 2102.10 Timing, scope and content of Notice of each meeting of the Com- submissions for proposed projects mission shall be published in the FED- involving land, buildings, or other ERAL REGISTER. structures. (a) A party proposing a project which § 2102.4 Public attendance and partici- is within the purview of the Commis- pation. sion’s functions under § 2101.1 (a), (b), Interested persons are permitted to or (c) should make a submission when attend meetings of the Commission, to concept plans for the project are ready file statements with the Commission at but before detailed plans and specifica- or before a meeting, and to appear be- tions or working drawings are pre- fore the Commission when it is in pared. In order to assure that a submis- meeting, provided that an appearance sion will be considered at the next is germane to the functions and poli- scheduled meeting of the Commission, cies of the Commission and to the mat- it should be delivered to the Commis- ter or issues then before the Commis- sions offices not later than ten (10) sion, and if the presentation or argu- working days before the meeting; if it ment is made in a concise manner, is a project subject to review first by within reasonable time limits and the Georgetown Board, not later than avoids duplicating information or ten (10) working days before the views already before the Commission. Georgetown Board meeting. The Com- A decision of the Chairman as to the mission will attempt to consider a sub- order of appearances and as to compli- mission which is not made in con- ance with these regulations by any per- formity with this schedule, but it re- son shall be final unless the Commis- serves the right to postpone consider- sion determines otherwise. ation until its next subsequent meet- ing. § 2102.5 Records and minutes; public (b) (1) Each submission should state inspection. or disclose: A detailed record of each meeting (i) The nature, location, and jus- shall be made and kept which shall tification of the project, including any contain copies of all written, printed, relevant historical information about or graphic materials presented. The the building or other structure to be Secretary shall have prepared minutes altered or razed; of each meeting which shall state the (ii) The identity of the owner or de- time and place it was held and attend- veloper (or for public buildings, the ance by Commission members and staff governmental unit with authority to and which shall contain a complete approve or act upon the plans) and of summary of matters discussed and con- the architect; clusions reached and an explanation of (iii) The functions, uses, and purpose the extent of public participation, in- of the project; and cluding names of persons who pre- (iv) Other information to the extent sented oral or written statements; and it is relevant, such as area studies, site he shall send a copy to all members of plans, building and landscape sche- the Commission for their approval. matics, renderings, models, depictions Subsequent to such approval, the min- or samples of exterior materials and utes shall be certified by the Secretary. components, and photographs of exist- The minutes and any completed re- ing conditions to be affected by the ports, studies, agenda or other docu- project.
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(2) Alternative proposals may be in- members of the public, or the submit- cluded within one submission. The in- ting party may augment any submis- formation submitted shall be suffi- sion by additional relevant information ciently complete, detailed, and accu- made available to the Commission be- rate as will enable the Commission to fore or at the meeting where the sub- judge the ultimate character, siting, mission is considered. The staff should height, bulk, and appearance of the also make information available con- project, in its entirety, including the cerning prior considerations or conclu- grounds within the scope of the sions of the Commission regarding the project, its setting and environs, and same project or earlier versions of it. its effect upon existing conditions and upon historical and prevailing archi- § 2102.11 Scope and content of submis- tectural values. Record drawings and sions for proposed medals, insignia, photographs will be submitted by the coins, seals, and the like. applicant for a permanent Commission Each submission of the design for a record of the submission. proposed item which is within the (c) If a project consists of a first or Commission’s purview under § 2101.1 (d) intermediate phase of a contemplated should identify the sponsoring govern- larger program of construction, similar ment unit and disclose the uses and information about the eventual plans purpose of the item, the size and forms should accompany the submission. in which it will be produced, and the Even though a submission relates only materials and finishes to be used, in- to approval for razing or removal of a cluding colors if any, along with a building or other structure, the project sketch, model, or prototype. will be regarded as part of phased de- velopment, and the submission is sub- § 2102.12 Responses of Commission to ject to such requirement. submissions. (d) If the project involves a statue, (a) The Commission before disposing fountain or a monument within the of any project presented to it may ask purview of the Commission under for the proposed plans or designs to be § 2101.1 (a)(2), partial submissions changed in certain particulars and re- should be made as appropriate to per- submitted, or for the opportunity to re- mit the Commission to advise on each view plans, designs, and specifications aspect of the project as prescribed by in certain particulars at a later stage the Commemorative Works Act (Pub. in their development, and to see sam- L. 99–652, H.R. 4378, 40 U.S.C. 1001). ples or mock-ups of materials or com- (e) The Commission staff will advise ponents; and when appropriate in the owners and architects concerning the matter of a statue or other object of scope and content of particular submis- art, the Commission may ask for the sions. Material relevant to the func- opportunity to see a larger or full-scale tions and policies of the Commission model. All conclusions, advice, or com- varies greatly depending upon the na- ments of the Commission which lead to ture, size, and importance of the further development of plans, designs, project to be reviewed by the Commis- and specifications or to actual carrying sion. Also, it is the policy of the Com- out of the project are made in con- mission not to impose unnecessary bur- templation that such steps will con- dens or delays on persons who make form in all substantial respects with submissions to the Commission. How- the plans or designs submitted to the ever, the Commission at any meeting Commission, including only such may decline to reach a conclusion changes as the Commission may have about a proposed project if it deems the recommended; any other changes in submission materials inadequate for its plans or designs require further sub- purposes, or it may condition its con- mission to the Commission. clusions on the submission of further (b) In the case of plans for a project information to it at a later meeting or, subject to the Old Georgetown Act in its discretion, may delegate final ac- (§ 2101.1 (c)), if the Commission does not tion to the staff. respond with a report on such plans (f) The Commission staff, members of within forty-five days after their re- the Georgetown Board, interested ceipt by the Commission, its approval
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shall be assumed and a permit may be proposed in other circumstances, the issued by the government of the Dis- Commission may consider whether the trict of Columbia. public need or value of the project or (c) In the case of plans for a project the private interests to be served subject to the Shipstead-Luce Act thereby justify making any change or (§ 2101.1 (b)), if the Commission does not addition, and it will consider whether respond with a report on such plans the project can be accomplished in rea- within thirty days after their receipt sonable harmony with the nearby area, by the Commission, its approval shall with a minimum loss of attractive fea- be assumed and a permit may be issued tures of the existing building or site, by the government of the District of with due deference to the historical Columbia. and architectural values affected, and (d) In the event that any project or without creating an anomalous dis- item within the Commission’s purview turbing element in the public view of under 2101.1 has not progressed to a the city. substantial start of construction or production within four years following [62 FR 4649, Jan. 31, 1997] the Commission meeting date on which the final design was approved, the PART 2104—ENFORCEMENT OF Commission’s approval is suspended. NONDISCRIMINATION ON THE The plans or designs previously ap- proved or alternative plans or designs, BASIS OF HANDICAP IN PRO- may thereupon be resubmitted for GRAMS OR ACTIVITIES CON- Commission review. The Commission’s DUCTED BY THE COMMISSION subsequent approval, if granted, shall OF FINE ARTS remain in effect for four years. Sec. PART 2103—STATEMENTS OF 2104.101 Purpose. POLICY 2104.102 Application. 2104.103 Definitions. 2104.104—2104.109 [Reserved] AUTHORITY: Pub. L. 81–808, 64 Stat. 903; 40 2104.110 Self-evaluation. U.S.C. 72, 104, 106, and 121; E.O. 1259 of Octo- 2104.111 Notice. ber 25, 1910; E.O. 1862 of November 28, 1913; 2104.112—2104.129 [Reserved] E.O. 3524 of July 28, 1921. 2104.130 General prohibitions against dis- § 2103.1 General approaches to review crimination. of plans by the Commission. 2104.131—2104.139 [Reserved] 2104.140 Employment. The Commission functions relate to 2104.141—2104.148 [Reserved] the appearance of proposed projects 2104.149 Program accessibility: Discrimina- within its purview as specified herein. tion prohibited. These functions are to serve the pur- 2104.150 Program accessibility: Existing fa- pose of conserving and enhancing the cilities. visual assets which contribute signifi- 2104.151 Program accessibility: New con- cantly to the character and quality of struction and alterations. Washington as the nation’s capital and 2104.152—2104.159 [Reserved] which appropriately reflect the history 2104.160 Communications. and features of its development over 2104.161—2104.169 [Reserved] two centuries. Where existing condi- 2104.170 Compliance procedures. tions detract from the overall appear- 2104.171—2104.999 [Reserved] ance of official Washington or historic AUTHORITY: 29 U.S.C. 794. Georgetown—such as conditions caused by temporary, deteriorated, or aban- SOURCE: 51 FR 22895, 22896, June 23, 1986, doned buildings of little or no histor- unless otherwise noted. ical or architectural value, by inter- rupted developments, or by vacant lots § 2104.101 Purpose. not devoted to public use as parks or This part effectuates section 119 of squares—the Commission will favor the Rehabilitation, Comprehensive suitable corrections to these condi- Services, and Developmental Disabil- tions. When changes or additions are ities Amendments of 1978, which
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amended section 504 of the Rehabilita- of such an impairment, or is regarded tion Act of 1973 to prohibit discrimina- as having such an impairment. tion on the basis of handicap in pro- As used in this definition, the phrase: grams or activities conducted by Exec- (1) Physical or mental impairment in- utive agencies or the United States cludes— Postal Service. (i) Any physiological disorder or con- dition, cosmetic disfigurement, or ana- § 2104.102 Application. tomical loss affecting one or more of This part applies to all programs or the following body systems: Neuro- activities conducted by the agency. logical; musculoskeletal; special sense organs; respiratory, including speech § 2104.103 Definition. organs; cardiovascular; reproductive; digestive; genitourinary; hemic and For purposes of this part, the term— lymphatic; skin; and endocrine; or Assistant Attorney General means the (ii) Any mental or psychological dis- Assistant Attorney General, Civil order, such as mental retardation, or- Rights Division, United States Depart- ganic brain syndrome, emotional or ment of Justice. mental illness, and specific learning Auxiliary aids means services or de- disabilities. The term ‘‘physical or vices that enable persons with im- mental impairment’’ includes, but is paired sensory, manual, or speaking not 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 aids sclerosis, cancer, heart disease, diabe- useful for persons with impaired vision tes, mental retardation, emotional ill- include readers, brailled materials, ness, and drug addiction and audio recordings, telecommunications alocoholism. devices and other similar services and (2) Major life activities includes func- devices. Auxiliary aids useful for per- tions such as caring for one’s self, per- sons with impaired hearing include forming manual tasks, walking, seeing, telephone handset amplifiers, tele- hearing, speaking, breathing, learning, phones compatible with hearing aids, and working. telecommunication devices for deaf (3) Has a record of such an impairment persons (TDD’s), interpreters, means has a history of, or has been notetakers, written materials, and misclassified as having, a mental or other similar services and devices. physical impairment that substantially Complete complaint means a written limits one or more major life activi- statement that contains the complain- ties. ant’s name and address and describes (4) Is regarded as having an impairment the agency’s alleged discriminatory ac- means— tion in sufficient detail to inform the (i) Has a physical or mental impair- agency of the nature and date of the al- ment that does not substantially limit leged violation of section 504. It shall major life activities but is treated by be signed by the complainant or by the agency as constituting such a limi- someone authorized to do so on his or tation; her behalf. Complaints filed on behalf (ii) Has a physical or mental impair- of classes or third parties shall describe ment that substantially limits major or identify (by name, if possible) the life activities only as a result of the at- alleged victims of discrimination. titudes of others toward such impair- Facility means all or any portion of ment; or buildings, structures, equipment, (iii) Has none of the impairments de- roads, walks, parking lots, rolling fined in subparagraph (1) of this defini- stock or other conveyances, or other tion but is treated by the agency as real or personal property. having such an impairment. Handicapped person means any person Historic preservation programs means who has a physical or mental impair- programs conducted by the agency that ment that substantially limits one or have preservation of historic properties more major life activities, has a record as a primary purpose.
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Historic properties means those prop- §§ 2104.104—2104.109 [Reserved] erties that are listed or eligible for listing in the National Register of His- § 2104.110 Self-evaluation. toric Places or properties designated as (a) The agency shall, by August 24, historic under a statute of the appro- 1987, evaluate its current policies and priate State or local government body. practices, and the effects thereof, that Qualified handicapped person means— do not or may not meet the require- (1) With respect to preschool, elemen- ments of this part, and, to the extent tary, or secondary education services modification of any such policies and provided by the agency, a handicapped practices is required, the agency shall person who is a member of a class of proceed to make the necessary modi- persons otherwise entitled by statute, fications. regulation, or agency policy to receive (b) The agency shall provide an op- education services from the agency. portunity to interested persons, includ- (2) With respect to any other agency ing handicapped persons or organiza- program or activity under which a per- tions representing handicapped per- son is required to perform services or sons, to participate in the self-evalua- to achieve a level of accomplishment, a tion process by submitting comments handicapped person who meets the es- (both oral and written). sential eligibility requirements and (c) The agency shall, until three who can acheive the purpose of the pro- years following the completion of the gram or activity without modifications self-evaluation, maintain on file and in the program or activity that the make available for public inspection: agency can demonstrate would result (1) a description of areas examined in a fundamental alteration in its na- and any problems identified, and ture; (2) a description of any modifications (3) With respect to any other pro- made. gram or activity, a handicapped person who meets the essential eligibility re- § 2104.111 Notice. quirements for participation in, or re- The agency shall make available to ceipt of benefits from, that program or employees, applicants, participants, activity; and beneficiaries, and other interested per- (4) Qualified handicapped person is de- sons such information regarding the fined for purposes of employment in 29 provisions of this part and its applica- CFR 1613.702(f), which is made applica- bility to the programs or activities ble to this part by § 2104.140. conducted by the agency, and make Section 504 means section 504 of the such information available to them in Rehabilitation Act of 1973 (Pub. L. 93– such manner as the head of the agency 112, 87 Stat. 394 (29 U.S.C. 794)), as finds necessary to apprise such persons amended by the Rehabilitation Act of the protections against discrimina- Amendments of 1974 (Pub. L. 93–516, 88 tion assured them by section 504 and Stat. 1617), and the Rehabilitation, this regulation. Comprehensive Services, and Develop- mental Disabilities Amendments of §§ 2104.112—2104.129 [Reserved] 1978 (Pub. L. 95–602, 92 Stat. 2955). As used in this part, section 504 applies § 2104.130 General prohibitions only to programs or activities con- against discrimination. ducted by Executive agencies and not (a) No qualified handicapped person to federally assisted programs. shall, on the basis of handicap, be ex- Substantial impairment means a sig- cluded from participation in, be denied nificant loss of the integrity of finished the benefits of, or otherwise be sub- materials, design quality, or special jected to discrimination under any pro- character resulting from a permanent gram or activity conducted by the alteration. agency.
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(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 qualified 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 (6) The agency may not administer a equal opportunity to obtain the same licensing or certification program in a result, to gain the same benefit, or to manner that subjects qualified handi- reach the same level of achievement as capped persons to discrimination on that provided to others; the basis of handicap, nor may the (iv) Provide different or separate aid, agency establish requirements for the benefits, or services to handicapped persons or to any class of handicapped programs or activites of licensees or persons than is provided to others un- certified entities that subject qualified less such action is necessary to provide handicapped persons to discrimination qualified handicapped persons with aid, on the basis of handicap. However, the benefits, or services that are as effec- programs or activities of entities that tive as those provided to others; are licensed or certified by the agency (v) Deny a qualified handicapped per- are not, themselves, covered by this son the opportunity to participate as a part. member of planning or advisory boards; (c) The exclusion of nonhandicapped or persons from the benefits of a program (vi) Otherwise limit a qualified limited by Federal statute or Execu- handicapped person in the enjoyment tive order to handicapped persons or of any right, privilege, advantage, or the exclusion of a specific class of opportunity enjoyed by others receiv- handicapped persons from a program ing the aid, benefit, or service. limited by Federal statute or Execu- (2) The agency may not deny a quali- tive order to a different class of handi- fied handicapped person the oppor- capped persons is not prohibited by tunity to participate in programs or this part. activities that are not separate or dif- (d) The agency shall administer pro- ferent, despite the existence of permis- grams and activities in the most inte- sibly separate or different programs or grated setting appropriate to the needs activities. of qualified handicapped persons. (3) The agency may not, directly or through contractual or other §§ 2104.131—2104.139 [Reserved] arrangments, utilize criteria or meth- ods of administration the purpose or ef- § 2104.140 Employment. fect of which would— No qualified handicapped person (i) Subject qualified handicapped per- shall, on the basis of handicap, be sub- sons to discrimination on the basis of jected to discrimination in employ- handicap; or ment under any program or activity (ii) Defeat or substantially impair ac- conducted by the agency. The defini- complishment of the objectives of a tions, requirements, and procedures of program or activity with respect to section 501 of the Rehabilitation Act of handicapped persons. 1973 (29 U.S.C. 791), as established by (4) The agency may not, in deter- the Equal Employment Opportunity mining the site or location of a facil- Commission in 29 CFR part 1613, shall
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apply to employment in federally con- such burdens, the agency shall take ducted programs or activities. any other action that would not result in such an alteration or such burdens §§ 2104.141—2104.148 [Reserved] but would nevertheless ensure that handicapped persons receive the bene- § 2104.149 Program accessibility: Dis- fits and services of the program or ac- crimination prohibited. tivity. Except as otherwise provided in (b) Methods—(1) General. The agency § 2104.150, no qualified handicapped per- may comply with the requirements of son shall, because the agency’s facili- this section through such means as re- ties are inaccessible to or unusable by design of equipment, reassignment of handicapped persons, be denied the services to accessible buildings, assign- benefits of, be excluded from participa- ment of aides to beneficiaries, home tion in, or otherwise be subjected to visits, delivery of services at alternate discrimination under any program or accessible sites, alteration of existing activity conducted by the agency. facilities and construction of new fa- cilities, use of accessible rolling stock, § 2104.150 Program accessibility: Exist- or any other methods that result in ing facilities. making its programs or activities read- (a) General. The agency shall operate ily accessible to and usable by handi- each program or activity so that the capped persons. The agency is not re- program or activity, when viewed in its quired to make structural changes in entirety, is readily accessible to and existing facilities where other methods usable by handicapped persons. This are effective in achieving compliance paragraph does not— with this section. The agency, in mak- (1) Necessarily require the agency to ing alterations to existing buildings, make each of its existing facilities ac- shall meet accessibility requirements cessible to and usable by handicapped to the extent compelled by the Archi- persons; tectural Barriers Act of 1968, as amend- (2) In the case of historic preserva- ed (42 U.S.C. 4151–4157), and any regula- tion programs, require the agency to tions implementing it. In choosing take any action that would result in a among available methods for meeting substantial impairment of significant the requirements of this section, the historic features of an historic prop- agency shall give priority to those erty; or methods that offer programs and ac- (3) Require the agency to take any tivities to qualified handicapped per- action that it can demonstrate would sons in the most integrated setting ap- result in a fundamental alteration in propriate. the nature of a program or activity or (2) Historic preservation programs. In in undue financial and administrative meeting the requirements of burdens. In those circumstances where § 2104.150(a) in historic preservation agency personnel believe that the pro- programs, the agency shall give pri- posed action would fundamentally ority to methods that provide physical alter the program or activity or would access to handicapped persons. In cases result in undue financial and adminis- where a physical alteration to an his- trative burdens, the agency has the toric property is not required because burden of proving that compliance with of § 2104.150(a)(2) or (a)(3), alternative §2104.150(a) would result in such alter- methods of achieving program accessi- ation or burdens. The decision that bility include— compliance would result in such alter- (i) Using audio-visual materials and ation or burdens must be made by the devices to depict those portions of an agency head or his or her designee historic property that cannot other- after considering all agency resources wise be made accessible; available for use in the funding and op- (ii) Assigning persons to guide handi- eration of the conducted program or capped persons into or through por- activity, and must be accompanied by tions of historic properties that cannot a written statement of the reasons for otherwise be made accessible; or reaching that conclusion. If an action (iii) Adopting other innovative meth- would result in such an alteration or ods.
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(c) Time period for compliance. The §§ 2104.152—2104.159 [Reserved] agency shall comply with the obliga- tions established under this section by § 2104.160 Communications. October 21, 1986, except that where (a) The agency shall take appropriate structural changes in facilities are un- steps to ensure effective communica- dertaken, such changes shall be made tion with applicants, participants, per- by August 22, 1989, but in any event as sonnel of other Federal entities, and expeditiously as possible. members of the public. (d) Transition plan. In the event that (1) The agency shall furnish appro- structural changes to facilities will be priate auxiliary aids where necessary undertaken to achieve program acces- to afford a handicapped person an equal 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. or organizations representing handi- (ii) The agency need not provide indi- capped persons, to participate in the vidually precribed devices, readers for development of the transition plan by personal use or study, or other devices submitting comments (both oral and of a personal nature. written). A copy of the transition plan (2) Where the agency communicates shall be made available for public in- with applicants and beneficiaries by spection. The plan shall, at a min- telephone, telecommunication devices imum— for deaf person (TDD’s) or equally ef- (1) Identify physical obstacles in the fective telecommunication systems agency’s facilities that limit the acces- shall be used. (b) The agency shall ensure that in- sibility of its programs or activities to terested persons, including persons handicapped persons; with impaired vision or hearing, can (2) Describe in detail the methods obtain information as to the existence that will be used to make the facilities and location of accessible services, ac- accessible; tivities, and facilities. (3) Specify the schedule for taking (c) The agency shall provide signage the steps necessary to achieve compli- at a primary entrance to each of its in- ance with this section and, if the time accessible facilities, directing users to period of the transition plan is longer a location at which they can obtain in- than one year, identify steps that will formation about accessible facilities. be taken during each year of the tran- The international symbol for accessi- sition period; and bility shall be used at each primary en- (4) Indicate the official responsible trance of an accessible facility. for implementation of the plan. (d) This section does not require the agency to take any action that it can § 2104.151 Program accessibility: New demonstrate would result in a funda- 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 adminstrative 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 § 2104.160 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
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be made by the agency head or his or tural Barriers Act of 1968, as amended her designee after considering all agen- (42 U.S.C. 4151–4157), or section 502 of cy resources available for use in the the Rehabilitation Act of 1973, as funding and operation of the conducted amended (29 U.S.C. 792), is not readily program or activity, and must be ac- accessible to and usable by handi- companied by a written statement of capped persons. the reasons for reaching that conclu- (g) Within 180 days of the receipt of a sion. If an action required to comply complete complaint for which it has ju- with this section would result in such risdiction, the agency shall notify the an alteration or such burdens, the complainant of the results of the inves- agency shall take any other action tigation in a letter containing— that would not result in such an alter- (1) Findings of fact and conclusions ation or such burdens but would never- of law; theless ensure that, to the maximum (2) A description of a remedy for each extent possible, handicapped persons violation found; and receive the benefits and services of the (3) A notice of the right to appeal. program or activity. (h) Appeals of the findings of fact and conclusions of law or remedies must be § 2104.161—2104.169 [Reserved] filed by the complainant within 90 days of receipt from the agency of the letter § 2104.170 Compliance procedures. required by § 2104.170(g). The agency (a) Except as provided in paragraph may extend this time for good cause. (b) of this section, this section applies (i) Timely appeals shall be accepted to all allegations of discrimination on and processed by the head of the agen- the basis of handicap in programs or cy. activities conducted by the agency. (j) The head of the agency shall no- (b) The agency shall process com- tify the complainant of the results of plaints alleging violations of section the appeal within 60 days of the receipt 504 with respect to employment accord- of the request. If the head of the agen- ing to the procedures established by cy determines that additional informa- the Equal Employment Opportunity tion is needed from the complainant, Commission in 29 CFR part 1613 pursu- he or she shall have 60 days from the ant to section 501 of the Rehabilitation date of receipt of the additional infor- Act of 1973 (29 U.S.C. 791). mation to make his or her determina- (c) The Secretary, Commission of tion on the appeal. Fine Arts, shall be responsible for co- (k) The time limits cited in para- ordinating implementation of this sec- graphs (g) and (j) of this section may be tion. Complaints may be sent to Sec- extended with the permission of the retary, Commission of Fine Arts, 708 Assistant Attorney General. Jackson Place NW., Washington, DC (l) The agency may delegate its au- 20006. thority for conducting complaint in- (d) The agency shall accept and in- vestigations to other Federal agencies, vestigate all complete complaints for except that the authority for making which it has jurisdiction. All complete the final determination may not be complaints must be filed within 180 delegated to another agency. days of the alleged act of discrimina- [51 FR 22895, 22896, June 23, 1986, as amended tion. The agency may extend this time at 51 FR 22895, June 23, 1986] period for good cause. (e) If the agency receives a complaint §§ 2104.171—2104.999 [Reserved] over which it does not have jurisdic- tion, it shall promptly notify the com- PART 2105—RULES FOR COMPLI- plainant and shall make reasonable ef- ANCE WITH 5 U.S.C. 552, THE forts to refer the complaint to the ap- FREEDOM OF INFORMATION ACT propriate government entity. (f) The agency shall notify the Archi- Sec. tectural and Transportation Barriers 2105.1 Purpose and scope. Compliance Board upon receipt of any 2105.2 Requests for identifiable records and complaint alleging that a building or copies. facility that is subject to the Architec- 2105.3 Action on initial requests.
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2105.4 Appeals. the requested information if: (1) It is 2105.5 Fees. not exempt from disclosure or AUTHORITY: 5 U.S.C. 552, as amended. (2) It is exempt from disclosure but its withholding is neither required by SOURCE: 40 FR 40802, Sept. 4, 1975. Redesig- statute, nor supported by sound nated and amended at 51 FR 23056, June 25, 1986, unless otherwise noted. grounds. (b) Determination will be dispatched EDITORIAL NOTE: The regulations in this within ten days, excluding Saturdays, part 2105 were formerly codified in 36 CFR Sundays, and legal public holidays, chapter X, part 1000. after initial receipt of the request. (c) In unusual circumstances, the § 2105.1 Purpose and scope. time for initial determination on re- This part contains the regulations of quests may be delayed up to a total of the Commission of Fine Arts imple- ten additional days, excluding Satur- menting 5 U.S.C. 552. The regulations days, Sundays, and legal public holi- of this part provide information con- days and notice of such delay shall be cerning the procedures by which rec- dispatched within the first ten days, ords may be obtained from the Com- excluding Saturdays, Sundays, and mission. Members and employees of the legal public holidays following the ini- Commission may continue to furnish tial receipt of the request. to the public, informally and without (d) Letters denying access to infor- neglecting the rights of requesters de- mation will: scribed herein, information and records (1) Provide the requester with the which prior to enactment of 5 U.S.C. reason for the denial. 552 were furnished customarily in the (2) Inform the requester of his right regular performance of their duties. to appeal the denial within 30 days. Persons seeking information or records (3) Give the name and title of the of- of the Commission may find it useful ficial to whom the appeal may be sent. to consult with the Secretary before (4) Give the name and title of the of- invoking the formal procedures set out ficial responsible for the denial. below. § 2105.4 Appeals. § 2105.2 Requests for identifiable (a) The Chairman of the Commission records and copies. is the appellate authority for all deni- (a) Formal public requests for infor- als. mation from the records of the Com- (b) The Chairman will act upon the mission of Fine Arts shall be made in appeal within twenty days, excluding writing with the letter clearly marked Saturdays, Sundays, and legal public ‘‘FREEDOM OF INFORMATION RE- holidays. QUEST.’’ All such requests should be (c) In unusual circumstances, the addressed to the Secretary, Commis- time for action on an appeal may be ex- sion of Fine Arts, 708 Jackson Place, tended by an additional ten days, ex- NW., Washington, DC 20006. cluding Saturdays, Sundays, and legal (b) Records must be reasonably de- public holidays minus any extension scribed. A request for all records fall- granted at the initial request level ing within a reasonably specific cat- under § 2105.3(c). egory shall be regarded as conforming (d) In the event that the appeal up- to the requirement that records be rea- holds the denial, the requester will be sonably described if it enables the advised that there are provisions for records requested to be identified by judicial review of such decisions under any process that is not unreasonably the Freedom of Information Act. burdensome or disruptive of Commis- sion operations. § 2105.5 Fees. (a) Fees shall be charged according to § 2105.3 Action on initial requests. the schedule in paragraph (b) of this (a) The Secretary will make a deter- section for services rendered in re- mination as to whether or not to re- sponding to requests for Commission of lease requested information. Generally, Fine Arts records under this part un- determination will be made to release less determination is made that such
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charges or a portion of them are not in in advance whether any records will be the public interest because furnishing made available, fees may be charged. the information primarily benefits the (c) Where it is anticipated that the general public. fees chargeable under this section will (b) The following charges will be as- amount to more than $10, and the re- sessed for the services listed: quester has not indicated in advance 1 ″ × ″ (1) For copies of documents 8 ⁄2 14 his willingness to pay fees as high as or smaller, $0.25 for the first copy of are anticipated, the requester shall be the first page and $0.10 for each copy of notified of the amount of the antici- each page thereafter. pated fee or such portion thereof as can (i) Ordinarily, no more than one copy readily be estimated. In such cases, a of each page will be supplied. request will not be deemed to have (ii) Ordinarily, photographs 81⁄2″ × 14″ or smaller will be copied on a photo- been received until the requester is no- copy machine, rather than by tified of the anticipated cost and photographing and printing of such agrees to bear it. Such a notification photographs. will be transmitted as soon as possible (2) When in responding to a request, but in any event, within five days, ex- copying of bound works such as books cluding Saturdays, Sundays, and legal or periodicals, copying of documents public holidays after the receipt of the larger than 81⁄2″ × 14″, photographing initial request. and printing of records, or other serv- (d) Payment should be made by check ices not normally performed by the or money order payable to the U.S. Commission and its staff are required, Treasury. the direct cost of such services or ma- (e)(1) Where the anticipated fee terial to the Commission of Fine Arts chargeable under this section exceeds may be charged, but only if the re- $10, an advance deposit of 25% of the quester has been notified of such cost anticipated fee or $10, whichever is before it is incurred. greater may be required. (3) For each one quarter hour spent (2) Where a requester has previously by clerical personnel in excess of the failed to pay a fee under this section, first quarter hour in searching for and an advance deposit of the full amount producing a requested record, $1.50. of the anticipated fee may be required. (4) When a search cannot be per- formed by clerical personnel and the amount of time that must be expended PART 2106—RULES FOR COMPLI- in the search and collection of the re- ANCE WITH 5 U.S.C. 552a, THE quested records by such higher level PRIVACY ACT OF 1974 personnel is substantial, charges may be made at a rate in excess of the cler- Sec. ical rate, namely, for each one quarter 2106.1 Rules for determining if an individual hour spent in excess of the first quarter is the subject of a record. hour by such higher level personnel in 2106.2 Requests for access. searching for a requested record, $3. 2106.3 Access to the accounting of disclo- (5) No charge will be made for time sures from records. spent in resolving legal or policy issues 2106.4 Requests for copies of records. affecting access to records of known 2106.5 Requests to amend records. contents. In addition, no charge will be 2106.6 Request for review. made for the time involved in exam- 2106.7 Schedule of fees. ining records in connection with deter- AUTHORITY: Pub. L. 93–579, 88 Stat. 1896 (5 mining whether they are exempt from U.S.C. 552a(f)). mandatory disclosure and should be withheld, as a matter of sound policy. SOURCE: 40 FR 52369, Nov. 10, 1975. Redesig- In addition, no charge will ordinarily nated and amended at 51 FR 23056, June 25, be made if the records requested are 1986, unless otherwise noted. not found. However, if the time ex- EDITORIAL NOTE: The regulations in this pended in processing the request is sub- part 2106 were formerly codified in 36 CFR stantial, and if the requester has been chapter X, part 1002. notified that it cannot be determined
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§ 2106.1 Rules for determining if an in- § 2106.2 Requests for access. dividual is the subject of a record. (a) Requirement for written requests. (a) Individuals desiring to know if a Individuals desiring to gain access to a specific system of records maintained record pertaining to them in a system by the Commission of Fine Arts con- of records maintained by CFA must tains a record pertaining to them submit their request in writing in ac- should address their inquiries to the cordance with the procedures set forth Secretary, Commission of Fine Arts, in paragraph (b) of this section. 708 Jackson Place, NW., Washington, (b) Procedures. (1) Content of the re- quest. The request for access to a DC 20006. The written inquiry should record in a system of records shall be contain a specific reference to the sys- addressed to the Secretary, at the ad- tem of records maintained by CFA list- dress cited above; and shall name the ed in the CFA Notices of Systems of system of records or contain a descrip- Records or it should describe the type tion (as concise as possible) of such of record in sufficient detail to reason- system of records. The request should ably identify the system of records. No- state that the request is pursuant to tice of CFA Systems of Records will be the Privacy Act of 1974. In the absence made in the FEDERAL REGISTER and of such a statement, if the request is copies of the notices will be available for a record pertaining to the requester upon request to the Secretary when so maintained by CFA in a system of published. A compilation of such no- records, the request will be presumed tices will also be made and published to be made under the Privacy Act of by the Office of the Federal Register in 1974. The requester should include any accordance with section 5 U.S.C. other information which may assist in 552a(f). the rapid identification of the record (b) At a minimum, the request should for which access is being requested contain sufficient identifying informa- (e.g., maiden name, dates of employ- tion to allow CFA to determine if there ment, etc.). (2) Requirements for identification is a record pertaining to the individual will normally be limited to the presen- making the request in a particular sys- tation of any standard picture and sig- tem of records. In instances where nature or signature identification card, identification is insufficient to insure such as driver’s license, so that a com- disclosure to the individual to whom parison of the signature and the signa- the information pertains in view of the ture on the original request may be sensitivity of the information, CFA re- made. The appearing individual will be serves the right to solicit from the re- read paragraph (3), subsection (i) to quester additional identifying informa- title 5 U.S.C. 552a which specifies the tion. penalty for knowingly or willfully re- (c) Ordinarily the requester will be questing or obtaining a record con- informed whether the named system of cerning an individual from an agency records contains a record pertaining to under false pretenses and asked to sign the requester within 10 days of the re- a statement attesting to the fact that ceipt of such a request (excluding Sat- he or she understands the paragraph urdays, Sundays, and legal Federal and that he or she is, in fact, the indi- holidays). Such a response will also vidual who made the request (or the in- contain or reference the procedures dividual authorized to receive the dis- which must be followed by the indi- closure by the requesting individual). vidual making the request in order to This signature will be compared with gain access to the record. the other two. If the appearing indi- vidual is other than the requesting in- (d) Whenever a response cannot be dividual, then he or she must also made within 10 days, the Secretary will present a letter of introduction signed inform the requester of the reasons for by the requesting individual so that the delay and the date by which a re- the comparison of signature may be sponse may be anticipated. made.
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(c) CFA action on request. (1) A re- the examination of the record, the indi- quest for access will ordinarily be an- vidual making the request shall submit swered within 10 days (excluding Satur- to the official having operational con- days, Sundays, and legal Federal holi- trol of the record a signed statement days), except when the Secretary deter- authorizing that person access to the mines otherwise, in which case the re- record. quester will be informed of the reason (C) Access in response to congressional for the delay and an anticipated date inquiries. Disclosure may be made to a by which the request will be answered. congressional office from the record of When the request can be answered an individual in response to an inquiry within 10 days, it shall include the fol- from the congressional office made at lowing: the request of that individual. (i) A statement that there is a record (vi) Medical records. The records in a as requested or a statement that there system of records which are medical is not a record in the system of records records shall be disclosed to the indi- maintained by CFA; vidual in such a manner and following (ii) A statement as to whether access such procedures as the Secretary shall will be granted only by providing a direct. When CFA, in consultation with copy of the record through the mail; or a physician, determines that the dis- the address of the location and the date closure of medical information could and time at which the record may be have an adverse effect upon the indi- examined. In the event the requester is vidual to whom it pertains, CFA may unable to meet the specified date and transmit such information to a physi- time, alternate arrangements may be cian named by the individual. made with the official specified in (vii) Exceptions. Nothing in this sec- paragraph (b)(1) of this section; tion shall be construed to entitle an in- (iii) A statement, when appropriate, dividual the right to access to any in- that examination in person will be the formation compiled in reasonable an- sole means of granting access only ticipation of a civil action or pro- when the Secretary has determined ceeding. that it would not unduly impede the [40 FR 52369, Nov. 10, 1975, as amended at 41 requester’s right of access; FR 2385, Jan. 16, 1976] (iv) The amount of fees charged, if any (see §§ 2106.4 and 2106.7); and § 2106.3 Access to the accounting of (v) The name, title, and telephone disclosures from records. number of the CFR official having Rules governing the granting of ac- operational control over the record. cess to the accounting of disclosures (A) Access by the parent of a minor, or are the same as those for granting ac- legal guardian. A parent of a minor, cess to the records outlined in § 2106.2 upon presenting suitable personal iden- of this part. tification, may access on behalf of the minor any record pertaining to the § 2106.4 Requests for copies of records. minor maintained by CFA in a system Rules governing requests for copies of records. A legal guardian may simi- of records are the same as those for the larly act on behalf of an individual de- granting of access to the records out- clared to be incompetent due to phys- lined in § 2106.2 of this part (see also ical or mental incapacity or age by a § 2106.7 for rules regarding fees). court of competent jurisdiction, upon the presentation of documents author- § 2106.5 Requests to amend records. izing the legal guardian to so act; and (a) Requirements for written requests. upon suitable personal identification of Individuals desiring to amend a record the guardian. that pertains to them in a system of (B) Granting access when accompanied records maintained by CFA must sub- or represented by another individual. mit their request in writing in accord- When an individual requesting access ance with the procedures set forth to his or her record in a system of herein unless the requirement is records maintained by CFA wishes to waived by the official having responsi- be accompanied or represented by an- bility for the system of records. Rec- other individual during the course of ords not subject to the Privacy Act of
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1974 will not be amended in accordance upon a request for amendment will in- with these provisions; however, indi- clude the following: viduals who believe that such records (i) The decision of the Commission of are inaccurate may bring this to the Fine Arts whether to grant in full, or attention of the CFA. deny any part of the request to amend (b) Procedures. (1)(i) The request to the record; amend a record in a system of records (ii) The reasons for the determina- shall be addressed to the Secretary. In- tion for any part of the request which cluded in the request shall be the name is denied; of the system and a brief description of (iii) The name and address of the offi- the record proposed for amendment. In cial with whom an appeal of the denial the event the request to amend the may be lodged; record is the result of the individual’s (iv) The name and address of the offi- having gained access to the record as cial designated to assist, as necessary, set forth above, copies of previous cor- and upon the request of, the individual respondence between the requester and making the request in preparation of CFA will serve in lieu of a separate de- the appeal; scription of the record. (v) A description of the review of the (ii) Individuals desiring assistance in appeal within CFA (see § 2106.6); and the preparation of a request to amend (vi) A description of any other proce- a record should contact the Secretary dures which may be required of the in- at the address cited above. dividual in order to process an appeal. (iii) The exact portion of the record the individual seeks to have amended § 2106.6 Request for review. should be clearly indicated. If possible, (a) Individuals wishing to request a the proposed alternative language review of the decision by CFA with re- should also be set forth, or, at a min- gard to an initial request to amend a imum, the facts which the individual record in accordance with the provi- believes are not accurate, relevant, sions of § 2106.5 of this part, should sub- timely, or complete, should be set forth mit the request for review in writing with such particularity as to permit and, to the extent possible, include the CFA not only to understand the indi- information specified in paragraph (a) vidual’s basis for the request, but also of this section. Individuals desiring as- to make an appropriate amendment to sistance in the preparation of their re- the record. quest for review should contact the (iv) The request must also set forth Secretary at the address provided here- the reasons why the individual believes in. his record is not accurate, relevant, (b) The request for review should con- timely, or complete. In order to avoid tain a brief description of the record the retention by CFA of personal infor- involved or in lieu thereof, copies of mation merely to permit the the correspondence from CFA in which verification of records, the burden of the request to amend was denied and persuading CFA to amend a record will also the reasons why the requester be- be upon the individual. The individual lieves that the disputed information must furnish sufficient facts to per- should be amended. The request for re- suade the official in charge of the sys- view should make reference to the in- tem of the inaccuracy, irrelevancy, formation furnished by the individual timeliness, or incompleteness of the in support of his claim and the reasons record. as required by § 2106.5 of this part set (2) CFA action on the request. To the forth by CFA in its decision denying extent possible, a decision upon a re- the amendment. Appeals filed without quest to amend a record will be made a complete statement by the requester within 10 days (excluding Saturdays, setting forth the reasons for the review Sundays, and legal Federal holidays). will, of course, be processed. However, In the event that a decision cannot be in order to make the appellate process made within this time frame, the indi- as meaningful as possible, the request- vidual making the request will be in- er’s disagreement should be under- formed within the 10 days of the ex- standably set forth. In order to avoid pected date for a decision. The decision the unnecessary retention of personal
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information, CFA reserves the right to legal Federal holidays) from the date dispose of the material concerning the of receipt by CFA of the individual’s request to amend a record if no request request for review unless the Chairman for review in accordance with this sec- extends the 30-day period for good tion is received by CFA within 180 days cause. The extension of and the reasons of the mailing by CFA of its decision therefor will be sent by CFA to the re- upon an initial request. A request for quester within the initial 30–day pe- review received after the 180–day period riod. Included in the notice of a deci- may, at the discretion of the Sec- sion being reviewed, if the decision retary, be treated as an initial request does not grant in full the request for to amend a record. review, will be a description of the (c) The request for review should be steps the individual may take to obtain addressed to the Secretary. judicial review of such a decision, and (d) Upon receipt of a request for re- a statement that the individual may view, the Secretary will convene a re- file a concise statement with CFA set- view group composed of the Secretary ting forth the individual’s reasons for and the Chairman. This group will re- his disagreement with the decision view the basis for the requested review upon the request for review. The Sec- and will develop a recommended course retary has the authority to determine of action to the office’s Committee on the ‘‘conciseness’’ of the statement, Freedom of Information and Privacy taking into account the scope of the (hereinafter referred to as the Com- disagreement and the complexity of mittee). If at any time additional in- the issues. Upon the filing of a proper formation is required from the concise statement by the individual, requestee, the Secretary is authorized any subsequent disclosure of the infor- to acquire it or authorize its acquisi- mation in dispute will have the infor- tion from the requester. mation in dispute clearly noted and a (e) The Committee is composed of: copy of the concise statement fur- (1) The Chairman; nished, as well as a concise statement (2) The Secretary; by CFA setting forth its reasons for not (3) The Assistant Secretary; making the requested changes, if CFA (4) The Administrative Assistant. chooses to file such a statement. A (f) The Committee will review the re- copy of the individual’s statement, quest for review and the recommended and, if it chooses, CFA’s statement will course of action and will recommend a be sent to any prior transferree of the decision on the request for review to disputed information who is listed on the Chairman, who has the final au- the accounting required by 5 U.S.C. thority regarding appeals. 552a(c). (g) The Chairman will inform the re- quester in writing of the decision on § 2106.7 Schedule of fees. the request for review within 30 days No fees will be charged for search, re- (excluding Saturdays, Sundays, and view, or copies of the record.
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Part Page 2301 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the United States Arctic Research Commission .. 567
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(i) Any physiological disorder or con- receive education services from the dition, cosmetic disfigurement, or ana- agency; tomical loss affecting one or more of (2) With respect to any other agency the following body systems: Neuro- program or activity under which a per- logical; musculoskeletal; special sense son is required to perform services or organs; respiratory, including speech to achieve a level of accomplishment, organs; cardiovascular; reproductive; an individual with handicaps who digestive; genitourinary; hemic and meets the essential eligibility require- lymphatic; skin; and endocrine; or ments and who can achieve the purpose (ii) Any mental or psychological dis- of the program or activity without order, such as mental retardation, or- modifications in the program or activ- ganic brain syndrome, emotional or ity that the agency can demonstrate mental illness, and specific learning would result in a fundamental alter- disabilities. The term ‘‘physical or ation in its nature; mental impairment’’ includes, but is (3) With respect to any other pro- not limited to, such diseases and condi- gram or activity, an individual with tions as orthopedic, visual, speech, and handicaps who meets the essential eli- hearing impairments, cerebral palsy, gibility requirements for participation epilepsy, muscular dystrophy, multiple in, or receipt of benefits from, that pro- sclerosis, cancer, heart disease, diabe- gram or activity; and tes, mental retardation, emotional ill- (4) Qualified handicapped person as ness, HIV disease (whether sympto- that term is defined for purposes of em- matic or asymptomatic), and drug ad- ployment in 29 CFR 1614.203(a)(6), diction and alcoholism. which is made applicable to this part (2) Major life activities include func- by § 2301.140. tions such as caring for one’s self, per- Section 504 means section 504 of the forming manual tasks, walking, seeing, Rehabilitation Act of 1973 (Pub. L. 93– hearing, speaking, breathing, learning, 112, 87 Stat. 394 (29 U.S.C. 794)), as and working. amended. As used in this part, section (3) Has a record of such an impairment 504 applies only to programs or activi- means has a history of, or has been ties conducted by Executive agencies misclassified as having, a mental or and not to federally assisted programs. physical impairment that substantially Substantial impairment means a sig- limits one or more major life activi- nificant loss of the integrity of finished ties. materials, design quality, or special (4) Is regarded as having an impairment character resulting from a permanent means— alteration. (i) Has a physical or mental impair- ment that does not substantially limit §§ 2301.104—2301.109 [Reserved] major life activities but is treated by the agency as constituting such a limi- § 2301.110 Self-evaluation. tation; (a) The agency shall, by November 28, (ii) Has a physical or mental impair- 1994, evaluate its current policies and ment that substantially limits major practices, and the effects thereof, that life activities only as a result of the at- do not or may not meet the require- titudes of others toward such impair- ments of this part and, to the extent ment; or modification of any such policies and (iii) Has none of the impairments de- practices is required, the agency shall fined in paragraph (1) of this definition proceed to make the necessary modi- but is treated by the agency as having fications. such an impairment. (b) The agency shall provide an op- Qualified individual with handicaps portunity to interested persons, includ- means— ing individuals with handicaps or orga- (1) With respect to preschool, elemen- nizations representing individuals with tary, or secondary education services handicaps, to participate in the self- provided by the agency, an individual evaluation process by submitting com- with handicaps who is a member of a ments (both oral and written). class of persons otherwise entitled by (c) The agency shall, for at least statute, regulation, or agency policy to three years following completion of the
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self-evaluation, maintain on file and ers unless such action is necessary to make available for public inspection: provide qualified individuals with (1) A description of areas examined handicaps with aid, benefits, or serv- and any problems identified; and ices that are as effective as those pro- (2) A description of any modifications vided to others; made. (v) Deny a qualified individual with handicaps the opportunity to partici- § 2301.111 Notice. pate as a member of planning or advi- The agency shall make available to sory boards; employees, applicants, participants, (vi) Otherwise limit a qualified indi- beneficiaries, and other interested per- vidual with handicaps in the enjoy- sons such information regarding the ment of any right, privilege, advan- provisions of this part and its applica- tage, or opportunity enjoyed by others bility to the programs or activities receiving the aid, benefit, or service. conducted by the agency, and make (2) The agency may not deny a quali- such information available to them in fied individual with handicaps the op- such manner as the head of the agency portunity to participate in programs or finds necessary to apprise such persons activities that are no separate or dif- of the protections against discrimina- ferent, despite the existence of permis- tion assured them by section 504 and sibly separate or different programs or this part. activities. (3) The agency may not, directly or §§ 2301.112—2301.129 [Reserved] through contractual or other arrange- ments, utilize criteria or methods of § 2301.130 General prohibitions administration the purpose or effect of against discrimination. which would— (a) No qualified individual with (i) Subject qualified individuals with handicaps shall, on the basis of handi- handicaps to discrimination on the cap, be excluded from participation in, basis of handicap; or be denied the benefits of, or otherwise (ii) Defeat or substantially impair ac- be subjected to discrimination under complishment of the objectives of a any program or activity conducted by program or activity with respect to in- the agency. dividuals with handicaps. (b)(1) The agency, in providing any (4) The agency may not, in deter- aid, benefit, or service, may not, di- mining the site or location of a facil- rectly or through contractual, licens- ity, make selections the purpose or ef- ing, or other arrangements, on the fect of which would— basis of handicap— (i) Exclude individuals with handi- (i) Deny a qualified individual with caps from, deny them the benefits of, handicaps the opportunity to partici- or otherwise subject them to discrimi- pate in or benefit from the aid, benefit, nation under any program or activity or service; conducted by the agency; or (ii) Afford a qualified individual with (ii) Defeat or substantially impair 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 agency, in the selection of (iii) Provide a qualified individual procurement contractors, may not use with handicaps with an aid, benefit, or criteria that subject qualified individ- service that is not as effective in ac- uals with handicaps to discrimination cording equal opportunity to obtain on the basis of handicap. the same result, to gain the same ben- (6) The agency may not administer a efit, or to reach the same level of licensing or certification program in a achievement as that provided to oth- manner that subjects qualified individ- ers; uals with handicaps to discrimination (iv) Provide different or separate aid, on the basis of handicap, nor may the benefits, or services to individuals with agency establish requirements for the handicaps or to any class of individuals programs or activities of licensees or with handicaps than is provided to oth- certified entities that subject qualified
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individuals with handicaps to discrimi- (1) Necessarily require the agency to nation on the basis of handicap. How- make each of its existing facilities ac- ever, the programs or activities of enti- cessible to and usable by individuals ties that are licensed or certified by with handicaps; the agency are not, themselves, cov- (2) In the case of historic preserva- ered by this 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 individuals with handi- erty; or caps or the exclusion of a specific class (3) Require the agency to take any of individuals with handicaps from a action that it can demonstrate would program limited by Federal statute or result in a fundamental alteration in Executive order to a different class of the nature of a program or activity or individuals with handicaps is not pro- in undue financial and administrative hibited by this part. burdens. In those circumstances where (d) The agency shall administer pro- agency personnel believe that the pro- grams and activities in the most inte- posed action would fundamentally grated setting appropriate to the needs alter the program or activity or would of qualified individuals with handicaps. result in undue financial and adminis- trative burdens, the agency has the §§ 2301.131—2301.139 [Reserved] burden of proving that compliance with § 2301.140 Employment. § 2301.150(a) would result in such alter- ation or burdens. The decision that No qualified individual with handi- compliance would result in such alter- caps shall, on the basis of handicap, be ation or burdens must be made by the subjected to discrimination in employ- agency head or his or her designee ment under any program or activity after considering all agency resources conducted by the agency. The defini- available for use in the funding and op- tions, requirements, and procedures of eration of the conducted program or section 501 of the Rehabilitation Act of activity, and must be accompanied by 1973 (29 U.S.C. 791), as established by a written statement of the reasons for the Equal Employment Opportunity reaching that conclusion. If an action Commission in 29 CFR part 1614, shall would result in such an alteration or apply to employment in federally con- such burdens, the agency shall take ducted programs or activities. any other action that result in such an §§ 2301.141—2301.148 [Reserved] alteration or such burdens but would nevertheless ensure that individuals § 2301.149 Program accessibility: Dis- with handicaps receive the benefits and crimination prohibited. services of the program or activity. Except as otherwise provided in (b) Methods.—(1) General. The agency § 2301.150, no qualified individual with may comply with the requirements of handicaps shall, because the agency’s this section through such means as re- facilities are inaccessible to or unus- design of equipment, reassignment of able by individuals with handicaps, be services to accessible buildings, assign- denied the benefits of, be excluded from ment of aides to beneficiaries, home participation in, or otherwise be sub- visits, delivery of services at alternate jected to discrimination under any pro- accessible sites, alteration of existing gram or activity conducted by the facilities and construction of new fa- agency. cilities, use of accessible rolling stock, or any other methods that result in § 2301.150 Program accessibility: Exist- making its programs or activities read- ing facilities. ily accessible to and usable by individ- (a) General. The agency shall operate uals with handicaps. The agency is not each program or activity so that the required to make structural changes in program or activity, when viewed in its existing facilities where other methods entirety, is readily accessible to and are effective in achieving compliance usable by individuals with handicaps. with this section. The agency, in mak- This paragraph does not— ing alterations to existing buildings,
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shall meet accessibility requirements (1) Identify physical obstacles in the to the extent compelled by the Archi- agency’s facilities that limit the acces- tectural Barriers Act of 1968, as amend- sibility of its programs or activities to ed (42 U.S.C. 4151–4157), and any regula- individuals with handicaps; tions implementing it. In choosing (2) Describe in detail the methods among available methods for meeting that will be used to make the facilities the requirements of this section, the accessible; agency shall give priority to those (3) Specify the schedule for taking methods that offer programs and ac- the steps necessary to achieve compli- tivities to qualified individuals with ance with this section and, if the time handicaps in the most integrated set- period of the transition plan is longer ting appropriate. than one year, identify steps that will (2) Historic preservation programs. In be taken during each year of the tran- meeting the requirements of sition period; and § 2301.150(a) in historic preservation (4) Indicate the official responsible programs, the agency shall give pri- for implementation of the plan. ority to methods that provide physical access to individuals with handicaps. § 2301.151 Program accessibility: New In cases where a physical alteration to construction and alterations. an historic property is not required be- Each building or part of a building cause of § 2301.150(a)(2) or (a)(3), alter- that is constructed or altered by, on native methods of achieving program behalf of, or for the use of the agency accessibility 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 individuals with handi- historic property that cannot other- caps. The definitions, requirements, wise be made accessible; and standards of the Architectural Bar- (ii) Assigning persons to guide indi- riers Act (42 U.S.C. 4151–4157), as estab- viduals with handicaps into or through lished in 41 CFR 101–19.600 to 101–19.607, portions of historic properties that apply to buildings covered by this sec- cannot otherwise be made accessible; tion. or (iii) Adopting other innovative meth- §§ 2301.152—2301.159 [Reserved] ods. (c) Time period for compliance. The § 2301.160 Communications. agency shall comply with the obliga- tions established under this section by (a) The agency shall take appropriate January 24, 1994, 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 November 26, 1996, but in any event members of the public. as expeditiously as possible. (1) The agency shall furnish appro- (d) Transition plan. In the event that priate auxiliary aids where necessary structural changes to facilities will be to afford an individual with handicaps undertaken to achieve program acces- an equal opportunity to participate in, sibility, the agency shall develop, by and enjoy the benefits of, a program or May 26, 1994, a transition plan setting activity conducted by the agency. forth the steps necessary to complete (i) In determining what type of auxil- such changes. The agency shall provide iary aid is necessary, the agency shall an opportunity to interested persons, give primary consideration to the re- including individuals with handicaps or quests of the individual with handi- organizations representing individuals caps. with handicaps, to participate in the (ii) The agency need not provide indi- development of the transition plan by vidually prescribed devices, readers for submitting comments (both oral and personal use or study, or other devices written). A copy of the transition plan of a personal nature. shall be made available for public in- (2) Where the agency communicates spection. The plan shall, at a min- with applicants and beneficiaries by imum— telephone, telecommunication devices
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for deaf persons (TDD’s) or equally ef- the basis of handicap in programs and fective telecommunication systems activities conducted by the agency. shall be used to communicate with per- (b) The agency shall process com- sons with impaired hearing. 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 1614 pursu- and location of accessible services, ac- ant to section 501 of the Rehabilitation tivities, and facilities. Act of 1973 (29 U.S.C. 791). (c) The agency shall provide signage (c) The Executive Director shall be at a primary entrance to each of its in- responsible for coordinating implemen- accessible facilities, directing users to tation of this section. Complaints may a location at which they can obtain in- be sent to Executive Director, United formation about accessible facilities. States Arctic Research Commission, The international symbol for accessi- ICC Building, room 6333, 12th & Con- bility shall be used at each primary en- stitution Avenue, NW., Washington, DC trance of an accessible facility. 20423. (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 § 2301.160 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. 4151–4157), is not readily ac- funding and operation of the conducted cessible to and usable by individuals program or activity and must be ac- with handicaps. 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, individuals with handi- (3) A notice of the right to appeal. caps receive the benefits and services (h) Appeals of the findings of fact and of the program or activity. conclusions of law or remedies must be filed by the complainant within 90 days §§ 2301.161—2301.169 [Reserved] of receipt from the agency of the letter required by § 2301.170(g). The agency § 2301.170 Compliance procedures. may extend this time for good cause. (a) Except as provided in paragraph (i) Timely appeals shall be accepted (b) of this section, this section applies and processed by the head of the agen- to all allegations of discrimination on cy.
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(j) The head of the agency shall no- extended with the permission of the tify the complainant of the results of Assistant Attorney General. the appeal within 60 days of the receipt (l) The agency may delegate its au- of the request. If the head of the agen- thority for conducting complaint in- cy determines that additional informa- vestigations to other Federal agencies, tion is needed from the complainant, except that the authority for making he or she shall have 60 days from the the final determination may not be date of receipt of the additional infor- delegated to another agency. mation to make his or her determina- tion on the appeal. [58 FR 57698, 57699, Oct. 26, 1993] (k) The time limits cited in para- graphs (g) and (j) of this section may be §§ 2301.171—2301.999 [Reserved]
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Part Page 2400 Fellowship Program requirements ...... 577 2490 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the James Madison Memorial Fellowship Foun- dation ...... 587
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Subpart A—General Subpart A—General 2400.1 Purposes. § 2400.1 Purposes. 2400.2 Annual competition. 2400.3 Eligibility. (a) The purposes of the James Madi- 2400.4 Definitions. son Memorial Fellowship Program are to: Subpart B—Application (1) Provide incentives for master’s 2400.10 Application. degree level graduate study of the his- 2400.11 Faculty representatives. tory, principles, and development of the United States Constitution by out- Subpart C—Application Process standing in-service teachers of Amer- ican history, American government, 2400.20 Preparation of application. 2400.21 Contents of application. social studies, and political science in 2400.22 Application deadline. grades 7–12 and by outstanding college graduates who plan to become teachers Subpart D—Selection of Fellows of the same subjects; and 2400.30 Selection criteria. (2) Strengthen teaching in the na- 2400.31 Selection process. tion’s secondary schools about the principles, framing, ratification, and Subpart E—Graduate Study subsequent history of the United States Constitution. 2400.40 Institutions of graduate study. 2400.41 Degree programs. (b) The Foundation may from time to 2400.42 Approval of Plan of Study. time operate its own programs and un- 2400.43 Required courses of graduate study. dertake other closely-related activities 2400.44 Commencement of graduate study. to fulfill these goals. 2400.45 Special consideration: Junior Fel- lows’ Plan of study. § 2400.2 Annual competition. 2400.46 Special consideration: second mas- ter’s degrees. To achieve its principal purposes, the 2400.47 Summer Institute’s relationship to Foundation holds an annual national fellowship. competition to select teachers in 2400.48 Fellows’ participation in the Sum- grades 7–12, college seniors, and college mer Institute. graduates to be James Madison Fel- 2400.49 Contents of the Summer Institute. lows. 2400.50 Allowances and Summer Institute costs. 2400.51 Summer Institute accreditation. § 2400.3 Eligibility. Individuals eligible to apply for and Subpart F—Fellowship Stipend hold James Madison Fellowships are 2400.52 Amount of stipend. United States citizens, United States 2400.53 Duration of stipend. nationals, or permanent residents of 2400.54 Use of stipend. the Northern Mariana Islands who are: 2400.55 Certification for stipend. (a) Teachers of American history, 2400.56 Payment of stipend. American government, social studies, 2400.57 Termination of stipend. or political science in grades 7–12 who: 2400.58 Repayment of stipend. (1) Are teaching full time during the Subpart G—Special Conditions year in which they apply for a fellow- ship; 2400.59 Other awards. (2) Are under contract, or can provide 2400.60 Renewal of award. 2400.61 Postponement of award. evidence of being under prospective 2400.62 Evidence of master’s degree. contract, to teach full time as teachers 2400.63 Excluded graduate study. of American history, American govern- 2400.64 Alterations to Plan of Study. ment, social studies, or political 2400.65 Teaching obligation. science in grades 7–12; 2400.66 Completion of fellowship. (3) Have demonstrated records of AUTHORITY: 20 U.S.C. 4501 et. seq. willingness to devote themselves to
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civic responsibilities and to profes- full time and will receive those degrees sional and collegial activities within no later than August 31st of the year of their schools and school districts; the fellowship competition in which (4) Are highly recommended by their they apply or prior recipients of bacca- department heads, school heads, school laureate degrees; district superintendents, or other su- (2) Plan to begin graduate study on a pervisors; full-time basis; (5) Qualify for admission with grad- (3) Have demonstrated records of uate standing at accredited univer- willingness to devote themselves to sities of their choice that offer mas- civic responsibilities; ter’s degree programs allowing at least (4) Are highly recommended by fac- 12 semester hours or their equivalent of ulty members, deans, or other persons study of the origins, principles, and de- velopment of the Constitution of the familiar with their potential for grad- United States and of its comparison uate study of American history and with the constitutions of other forms government and with their serious in- of government; tention to enter the teaching profes- (6) Are able to complete their pro- sion as secondary school teachers of posed courses of graduate study within American history, American govern- five calendar years from the com- ment, social studies, or political mencement of study under their fellow- science in grades 7–12; ships, normally through part-time (5) Qualify for admission with grad- study during summers or in evening or uate standing at accredited univer- weekend programs; sities of their choice that offer mas- (7) Agree to attend the Foundation’s ter’s degree programs that allow at four-week Summer Institute on the least 12 semester hours or their equiva- Constitution, normally during the lent of study of the origins, principles, summer following the commencement and development of the Constitution of of study under their fellowships; and the United States and of its compari- (8) Sign agreements that, after com- son with the constitutions and history pleting the education for which the fel- of other forms of government; lowship is awarded, they will teach (6) Are able to complete their pro- American history, American govern- posed courses of graduate study in no ment, social studies, or political more than two calendar years from the science full time in secondary schools commencement of study under their for a period of not less than one year fellowships, normally through full- for each full academic year of study for time study; which assistance was received, pref- (7) Agree to attend the Foundation’s erably in the state listed as their legal four-week Summer Institute on the residence at the time of their fellow- Constitution, normally during the ship award. For the purposes of this provision, a full academic year of study summer following the commencement is the number of credit hours deter- of study under their fellowships; and mined by each university at which Fel- (8) Sign an agreement that, after lows are studying as constituting a full completing the education for which the year of study at that university. Fel- fellowship is awarded, they will teach lows’ teaching obligations will be fig- American history, American govern- ured at full academic years of study; ment, social studies, or political and when Fellows have studies for par- science full time in secondary schools tial academic years, those years will be for a period of not less than one year rounded upward to the nearest one-half for each full academic year of study for year to determine Fellows’ total teach- which assistance was received, pref- ing obligations. erably in the state listed as their legal (b) Those who aspire to become full- residence at the time of their fellow- time teachers of American history, ship award. For the purposes of this American government, social studies, provision, a full academic year of study or political science in grades 7–12 who: is the number of credit hours deter- (1) Are matriculated college seniors mined by each university at which Fel- pursuing their baccalaureate degrees lows are studying as constituting a full
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year of study at that university. Fel- the Fellow has not received graduate lows’ teaching obligations will be fig- credit for the course. ured at full academic years of study; Institution of higher education has the and when Fellows have studies for par- meaning given in Section 1201(a) of the tial academic years, those years will be Higher Education Act of 1965 (20 U.S.C. rounded upward to the nearest one-half 1141(a)). year to determine Fellows’ total teach- Junior Fellowship means a James ing obligations. Madison Fellowship granted either to a college senior or to a college graduate § 2400.4 Definitions. who has received a baccalaureate de- As used in this part: gree and who seeks to become a sec- Academic year means the period of ondary school teacher of American his- time in which a full-time student tory, American government, social would normally complete two semes- studies, or political science for full- ters, two trimesters, three quarters, or time graduate study toward a master’s their equivalent of study. degree whose course of study empha- Act means the James Madison Memo- sizes the framing, principles, history, rial Fellowship Act. and interpretation of the United States College means an institution of high- Constitution. er education offering only a bacca- Master’s degree means the first pre- laureate degree or the undergraduate doctoral graduate degree offered by a division of a university in which a stu- university beyond the baccalaureate dent is pursuing a baccalaureate de- degree, for which the baccalaureate de- gree. gree is a prerequisite. Credit Hour Equivalent means the Matriculated means formally enrolled number of graduate credit hours ob- in a master’s degree program in a uni- tained in credits, courses or units dur- versity. ing a quarter, a trimester, or a semes- Repayment means if the fellowship is ter which are needed to equal a specific relinquished by the fellow or is termi- number of semester graduate credit nated by the Foundation prior to the hours. completion of the Fellow’s degree, and/ Fee means a typical and usually non- or the Fellow fails to fulfill the teach- refundable charge levied by an institu- ing obligation after the graduate de- tion of higher education for a service, gree is awarded, the Fellow must repay privilege, or use of property which is to the Foundation all Fellowship costs required for a Fellow’s enrollment and received plus interest at a rate of 6% registration. per annum and, if applicable, reason- Fellow means a recipient of a fellow- able collection fees. ship from the Foundation. Resident means a person who has Fellowship means an award, called a legal residence in the state, recognized James Madison Fellowship, made to a under state law. If a question arises person by the Foundation for graduate concerning a Fellow’s state of resi- study. dence, the Foundation determines, for Foundation means the James Madison the purposes of this program, of which Memorial Fellowship Foundation. state the person is a resident, taking Full-time study means study for an en- into account the Fellow’s place of reg- rolled student who is carrying a full- istration to vote, his or her parent’s time academic workload as determined place of residence, and the Fellow’s eli- by the institution under a standard ap- gibility for in-state tuition rates at plicable to all students enrolled in a public institutions of higher education. particular educational program. Satisfactory progress for a Junior Fel- Graduate study means the courses of low means the completion of the num- study beyond the baccalaureate level, ber of required courses normally ex- which are offered as part of a univer- pected of full-time master’s degree can- sity’s master’s degree program and didates at the university that the Fel- which lead to a master’s degree. low attends, with grades acceptable to Incomplete means a course which the that university, in not more than two Foundation has paid for but the Fellow calendar years from the commence- has received an incomplete grade or ment of that study. Satisfactory
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progress for a Senior Fellow means the fellowship or has not made satisfactory completion each year of a specific progress in his or her program of study. number of required courses in the Fel- University means an institution of low’s master’s degree program, as higher education that offers post-bac- agreed upon each year with the Foun- calaureate degrees. dation and outlined on the Plan of Withdrawal means the voluntary re- Study form, with grades acceptable to linquishment or surrender of a Fellow- the Fellow’s university, in not more ship by the Fellow. than five calendar years from the com- mencement of that study. Subpart B—Application Secondary school means grades 7 through 12. § 2400.10 Application. Senior means a student at the aca- demic level recognized by an institu- Eligible applicants for fellowships tion of higher education as being the must apply directly to the Foundation. last year of study before receiving the baccalaureate degree. § 2400.11 Faculty representatives. Senior Fellowship means a James Each college and university that Madison Fellowship granted to a sec- chooses to do so may annually appoint ondary school teacher of American his- or reappoint a faculty representative tory, American government, social who will be asked to identify and re- studies, or political science for part- cruit fellowship applicants on campus, time graduate study toward a master’s publicize the annual competition on degree whose course of study empha- campus, and otherwise assist eligible sizes the framing, principles, history, candidates in preparation for applying. and interpretation of the United States In order to elicit the appointment of Constitution. faculty representatives, the Founda- State means each of the 50 states, the tion will each year request the head of District of Columbia, the Common- each college and university campus to wealth of Puerto Rico, and, considered appoint or reappoint a faculty rep- as a single entity, Guam, the United resentative and to provide the Founda- States Virgin Islands, American tion with the name, business address, Samoa, the Commonwealth of the and business telephone number of a Northern Mariana Islands, and, until member of its faculty representative adoption of its Compact of Free Asso- on forms provided for that purpose. ciation, the Republic of Palau. Stipend means the amount paid by Subpart C—Application Process the Foundation to a Fellow or on his or her behalf to pay the allowable costs of § 2400.20 Preparation of application. graduate study which have been ap- Applications, on forms mailed di- proved under the fellowship. rectly by the Foundation to those who Teaching Obligation means that a Fel- request applications, must be com- low, upon receiving a master’s degree, pleted by all fellowship candidates in must teach American history, Amer- order that they be considered for an ican government, social studies, or po- award. litical science on a full-time basis to students in secondary school for a pe- § 2400.21 Contents of application. riod of not less than one year for each year for which financial assistance was Applications must include for received. (a) Senior Fellowships: Term means the period—semester, (1) Supporting information which af- trimester, or quarter—used by an insti- firms an applicant’s wish to be consid- tution of higher education to divide its ered for a fellowship; provides informa- academic year. tion about his or her background, in- Termination means the non-voluntary terests, goals, and the school in which ending of a fellowship by the Founda- he or she teaches; and includes a state- tion when the Fellow has not complied ment about the applicant’s educational with the rules and regulations of the plans and specifies how those plans will
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enhance his or her career as a sec- § 2400.22 Application deadline. ondary school teacher of American his- Completed applications must be re- tory, American government, social ceived by the Foundation no later than studies, or political science; March 1st of each year preceding the (2) An essay of up to 600 words that start of the academic year for which explains the importance of the study of candidates are applying. the Constitution to: (i) Young students; (ii) The applicant’s career aspirations Subpart D—Selection of Fellows and his or her contributions to public service; and § 2400.30 Selection criteria. (iii) Citizenship generally in a con- Applicants will be evaluated, on the stitutional republic; basis of materials in their applications, (3) The applicant’s proposed course of as follows: graduate study, including the name of (a) Demonstrated commitment to the degree to be sought, the required teaching American history, American courses to be taken, as well as informa- government, social studies, or political tion about the specific degree sought; science at the secondary school level; (4) Three evaluations, one from an (b) Demonstrated intention to pursue immediate supervisor, that attest to a program of graduate study that em- the applicant’s strengths and abilities phasizes the Constitution and to offer as a teacher in grades 7–12; and classroom instruction in that subject; (5) A copy of his or her academic (c) Demonstrated record of willing- transcript. ness to devote themselves to civic re- (b) Junior Fellowships: sponsibility; (1) Supporting information which af- (d) Outstanding performance or po- firms an applicant’s wish to be consid- tential of performance as classroom ered for a fellowship; provides informa- teachers; tion about the applicant’s background, interests, goals, and the college which (e) Academic achievements and dem- he or she attends or attended; and in- onstrated capacity for graduate study; cludes a statement about the appli- and cant’s educational plans and specifies (f) Proposed courses of graduate how those plans will lead to a career as study, especially the nature and extent a teacher of American history, Amer- of their subject matter components, ican government, social studies, or po- and their relationship to the enhance- litical science in grades 7–12; ment of applicants’ teaching and pro- (2) An essay of up to 600 words that fessional activities. explains the importance of the study of the Constitution to: § 2400.31 Selection process. (i) Young students; (a) An independent Fellow Selection (ii) The applicant’s career aspirations Committee will evaluate all valid ap- and his or her contribution to public plications and recommend to the Foun- service; and dation the most outstanding applicants (iii) Citizenship generally in a con- from each state for James Madison stitutional republic; Fellowships. (3) Applicant’s proposed course of (b) From among candidates rec- graduate study, including the name of ommended for fellowships by the Fel- the degree sought, the name of the re- low Selection Committee, the Founda- quired courses to be taken, and infor- tion will name James Madison Fellows. mation about the specific degree The selection procedure will assure sought; that at least one James Madison Fel- (4) Three evaluations that attest to low, junior or senior, is selected from the applicant’s academic achievements each state in which there are at least and to his or her potential to become two legally resident applicants who an outstanding secondary school teach- meet the eligibility requirements set er; and forth in § 2400.3 and are judged favor- (5) A copy of his or her academic ably against the selection criteria in transcript. § 2400.30.
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(c) The Foundation may name, from (a) On a part-time or full-time basis among those applicants recommended lead to a master’s degree in history or by the Fellow Selection Committee, an political science, the degree of Master alternate or alternates for each fellow- of Arts in Teaching in history or polit- ship. An alternate will receive a fellow- ical science, or a related master’s de- ship if the person named as a James gree in education that permits a con- Madison Fellow declines the award or centration in American history, Amer- is not able to pursue graduate study as ican government, social studies, or po- contemplated at the time the fellow- litical science; ship was accepted. An alternate may be (b) Include courses, graduate semi- named to replace a Fellow who declines nars, or opportunities for independent or relinquishes an award until, but no study in topics directly related to the later than, March 1st following the framing and history of the constitution competition in which the alternate has of the United States; been selected. (c) Be pursued at a university that (d) Funds permitting, the Foundation assures a willingness to accept up to 6 may also select, from among those rec- semester hours of accredited transfer ommended by the Fellow Selection credits from another graduate institu- Committee, Fellows at large. tion for a Fellow’s satisfactory comple- tion of the Foundation’s Summer Insti- Subpart E—Graduate Study tute on the Constitution. For the Foundation’s purposes, these 6 semes- § 2400.40 Institutions of graduate ter hours may be included in the re- study. quired minimum of 12 semester hours Fellowship recipients may attend or their equivalent of study of the any accredited university in the United United States Constitution; and States with a master’s degree program (d) Be pursued at a university that offering courses or training that em- encourages the Fellow to enhance his phasize the origins, principles, and de- or her capacities as a teacher of Amer- velopment of the Constitution of the ican history, American government, United States and its comparison with social studies, or political science and the constitutions and history of other to continue his or her career as a sec- forms of government. ondary school teacher. The Foundation reserves the right to refuse to approve § 2400.41 Degree programs. a Fellow’s Plan of Study at a univer- (a) Fellows may pursue a master’s de- sity that will not accept on transfer gree in history or political science (in- the 6 credits for the Institute. cluding government or politics), the degree of Master of Arts in Teaching in § 2400.43 Required courses of graduate history or political science (including study. government or politics), or a related (a) To be acceptable to the Founda- master’s degree in education that per- tion, those courses related to the Con- mits a concentration in American his- stitution referred to in § 2400.43(b) must tory, American government, social amount to at least 12 semester or 18 studies, or political science. Graduate quarter hours or their credit hour degrees under which study is excluded equivalent of study of topics directly from fellowship support are indicated related to the United States Constitu- in § 2400.63. tion. More than 12 semester hours or (b) A master’s degree pursued under a their credit hour equivalent of such James Madison Fellowship may entail study is strongly encouraged. either one or two years or their equiva- (b) The courses that fulfill the re- lent of study, according to the require- quired minimum of 12 semester hours ments of the university at which a Fel- or their credit hour equivalent of study low is enrolled. of the United States Constitution must cover one or more of the following sub- § 2400.42 Approval of Plan of Study. ject areas: The Foundation must approve each (1) The history of colonial America Fellow’s Plan of Study. To be ap- leading up to the framing of the Con- proved, the plan must: stitution;
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(2) The Constitution itself, its fram- date on which each Fellow commences ing, the history and principles upon study under a fellowship. which it is based, its ratification, the Federalist Papers, Anti-Federalist § 2400.45 Special consideration: Junior writings, and the Bill of Rights; Fellows’ Plan of Study. (3) The historical development of po- Applicants for Junior Fellowships litical theory, constitutional law, and who seek or hold baccalaureate degrees civil liberties as related to the Con- in education are strongly encouraged stitution; to pursue master’s degrees in history (4) Interpretations of the Constitu- or political science. Those applicants tion by the Supreme Court and other who hold undergraduate degrees in his- branches of the federal government; tory, political science, government, or (5) Debates about the Constitution in any other subjects may take some other forums and about the effects of teaching methods and related courses, constitutional norms and decisions although the Foundation will not pay upon American society and culture; for them unless they are required for and the degree for which the Fellow is ma- (6) Any other subject clearly related triculated. The Foundation will review to the framing, history, and principles each proposed Plan of Study for an ap- of the Constitution. propriate balance of subject matter and (c) If a master’s degree program in other courses based on the Fellow’s which a Fellow is enrolled requires a goals, background, and degree require- master’s thesis in place of a course or ments. courses, the Fellow will have the op- tion of writing the thesis based on the § 2400.46 Special consideration: second degree requirements. The preparation master’s degree. of a master’s thesis should not add ad- The Foundation may award Senior ditional required credits to the min- Fellowships to applicants who are imum number of credits required for seeking their second master’s degrees the master’s degree. If a Fellow must providing that the applicants’ first write a thesis, the topic of the thesis master’s degree was obtained at least must relate to subjects concerning the five years prior to the year in which framing, principles, or history of the the applicants would normally com- United States Constitution. If the Fel- mence study under a fellowship. In low can choose between two degree tracks, a thesis track or a non-thesis evaluating applications from individ- track, the Foundation strongly encour- uals intending to pursue a second mas- ages the non-thesis track. ter’s degree, the Fellow Selection Com- mittee will favor those applicants who § 2400.44 Commencement of graduate are planning to become American his- study. tory, American government, social (a) Fellows may commence study studies, or political science teachers under their fellowships as early as the after having taught another subject summer following the announcement of and applicants whose initial master’s their award. Fellows are normally ex- degree was in a subject different from pected to commence study under their that sought under the second master’s fellowships in the fall term of the aca- degree. demic year following the date on which their award is announced. However, as § 2400.47 Summer Institute’s relation- indicated in § 2400.6, they may seek to ship to fellowship. postpone the commencement of fellow- Each year, the Foundation offers, ship study under extenuating cir- normally during July, a four-week cumstances. graduate-level Institute on the prin- (b) In determining the two- and five- ciples, framing, ratification, and imple- year fellowship periods of Junior and mentation of the United States Con- Senior Fellows respectively, the Foun- stitution at an accredited university in dation will consider the commence- the Washington, DC area. The Institute ment of the fellowship period to be the is an integral part of each fellowship.
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§ 2400.48 Fellows’ participation in the Plan of Study and accept the 6 Insti- Summer Institute. tute credits toward the minimum num- Each Fellow is required as part of his ber of credits required for their mas- or her fellowship to attend the Insti- ter’s degrees. tute, normally during the summer fol- lowing the Fellow’s commencement of Subpart F—Fellowship Stipend graduate study under a fellowship. § 2400.52 Amount of stipend. § 2400.49 Contents of the Summer In- Junior and Senior Fellowships carry stitute. a stipend of up to a maximum of $24,000 The principal element of the Insti- pro-rated over the period of Fellows’ tute is a graduate history course, graduate study. In no case shall the ‘‘Foundations of American Constitu- stipend for a fellowship exceed $12,000 tionalism.’’ Other components of the per academic year. Within this limit, Institute include study visits to sites stipends will be pro-rated over the pe- associated with the lives and careers of riod of Fellows’ graduate study as fol- members of the founding generation. lows: a maximum of $6,000 per aca- demic semester or trimester of full- § 2400.50 Allowances and Summer In- time study, and a maximum of $4,000 stitute costs. per academic quarter of full-time For their participation in the Insti- study. Stipends for part-time study tute, Fellows are paid an allowance to will be pro rata shares of those allow- help offset income foregone by their re- able for full-time study. quired attendance. The Foundation also funds the costs of the Institute § 2400.53 Duration of stipend. and Fellows’ round-trip transportation Stipends for Junior Fellowships may to and from the Institute site. The be payable over a period up to 2 cal- costs of tuition, required fees, books, endar years of full-time graduate room, and board entailed by the Insti- study, and those for Senior Fellowships tute will be paid for by the Foundation may be payable over a period of not directly but may be offset against fel- more than 5 calendar years of part- lowship award limits if the credits time graduate study, beginning with earned for the Institute are included the dates under which Fellows com- within the Fellows’ degree require- mence their graduate study under their ments. fellowships. However, the duration of stipend payments will be subject to the § 2400.51 Summer Institute accredita- maximum payment limits, the length tion. of award time limits, and the comple- The Institute is accredited for six tion of the minimum degree require- graduate semester credits by the uni- ments, whichever occurs first. versity at which it is held. It is ex- pected that the universities at which § 2400.54 Use of stipend. Fellows are pursuing their graduate Stipends shall be used only to pay study will, upon Fellows’ satisfactory the costs of tuition, required fees, completion of the Institute, accept books, room, and board associated with these credits or their credit-hour graduate study under a fellowship. The equivalent upon transfer from the uni- costs allowed for a Fellow’s room and versity at which the Institute is held in board will be the amount the Fellow’s fulfillment of the minimum number of university reports to the Foundation credits required for Fellows’ graduate as the cost of room and board for a degrees. Satisfactory completion of the graduate student if that student were Institute will fulfill 6 of the Founda- to share a room at the student’s uni- tion’s 12 semester credits required in versity. If no shared graduate housing graduate study of the history and de- exists, then costs for regular shared velopment of the Constitution. Fel- student housing will be used. If no lows, with the Foundation’s assistance, campus housing exists, the equivalent are strongly encouraged to make good room and board costs at neighboring faith efforts to have their universities universities will be used. Stipends for incorporate the Institute into their room, board, and books will be pro-
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rated for Fellows enrolled in study less limitations in § 2400.52 through § 2400.55 than full time. The Foundation will and § 2400.59 through § 2400.60 will be not reimburse Fellows for any portion paid to each Fellow at the beginning of of their master’s degree study, that each term of enrollment upon the Fel- Fellows may have completed prior to low’s submission of a completed Pay- the commencement of their fellow- ment Request Form and the University ships. Nor will the Foundation reim- bulletin of cost information. burse Fellows for any credits acquired above the minimum number of credits § 2400.57 Termination of stipend. required for the degree. If a Fellow has (a) The Foundation may suspend or already taken and paid for courses that can be credited toward the Fellow’s terminate the payment of a stipend if a graduate degree under a fellowship, Fellow fails to meet the criteria set those must be credited to the degree; forth in § 2400.40 through § 2400.44 and the remaining required courses will be § 2400.60, except as provided for in paid for by the Foundation. § 2400.61. Before it suspends or termi- nates a fellowship under these cir- § 2400.55 Certification for stipend. cumstances, the Foundation will give In order to receive a fellowship sti- notice to the Fellow, as well as the op- pend, a Fellow must submit the fol- portunity to be heard with respect to lowing nine items in writing: the grounds for suspension or termi- (a) An acceptance of the terms and nation. conditions of the fellowship including a (b) The Foundation will normally completed certificate of compliance suspend the payment of a stipend if a form; Fellow has more than one grade of ‘‘In- (b) Evidence of admission to an ap- complete’’ in courses for which the proved graduate program; Foundation has made payment to the (c) Certified copies of undergraduate Fellow. and, if any, graduate transcripts; (d) A certified payment request form § 2400.58 Repayment of stipend. indicating the estimated costs for tui- (a) If a Fellow fails to secure a mas- tion, required fees, books, room, and ter’s degree, fails to teach American board; history, American government, social (e) a photo copy of the university’s studies, or political science on a full- bulletin of cost information; time basis in a secondary school for at (f) the amount of income from any least one school year for each academic other grants or awards; year for which assistance was provided (g) information about the Fellow’s under a fellowship, fails to secure fewer degree requirements, including the than 12 semester hours or their credit number of required credits to fulfill the hour equivalent for study of the Con- degree; (h) a statement of the university’s stitution as indicated in § 2400.43(b), or willingness to accept the transfer of 6 fails to attend the Foundation’s Sum- credits toward the Fellow’s degree re- mer Institute on the Constitution, the quirements for the Fellow’s satisfac- Fellow must repay all of the fellowship tory completion of the Summer Insti- costs received plus interest at the rate tute (see § 2400. 51); and of 6% per annum or as otherwise au- (i) a full Plan of Study over the dura- thorized and, if applicable, reasonable tion of the fellowship, including infor- collection fees, as prescribed in Section mation on the contents of required 807 of the Act (20 U.S.C. 4506(b)). courses. Senior Fellows must provide (b) If a Fellow withdraws from the evidence of their continued full-time fellowship or has a fellowship termi- employment as teachers in grades 7–12. nated by the Foundation, the Founda- tion will seek to recover all fellowship § 2400.56 Payment of stipend. funds which have been remitted to the Payment for tuition, required fees, Fellow or on his or her behalf under a books, room, and board subject to the fellowship.
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Subpart G—Special Conditions (b) Fellowship renewal will be subject to an annual review by the Foundation § 2400.59 Other awards. and certification by an authorized offi- Fellows may accept grants from cial of the university at which a Fellow other foundations, institutions, cor- is registered that the Fellow is making porations, or government agencies to satisfactory progress toward the degree support their graduate study or to re- and is in good academic standing ac- place any income foregone for study. cording to the standards of each uni- However, the stipend paid by the Foun- versity. dation for allowable costs indicated in (c) As a condition of renewal of § 2400.52 will be reduced to the extent awards, each Fellow must submit an these costs are paid from other sources, annual activity report to the Founda- and in no case will fellowship funds be tion by July 15th. That report must in- paid to Fellows to provide support in dicate, through submission of a copy of excess of their actual total costs of tui- the Fellow’s most recent transcript, tion, required fees, books, room, and courses taken and grades achieved; board. The Foundation may also reduce courses planned for the coming year; a Fellow’s stipend if the Fellow is re- changes in academic or professional munerated for the costs of tuition plans or situations; any awards, rec- under a research or teaching ognitions, or special achievements in assistantship or a work-study program. the Fellow’s academic study or school In such a case, the Foundation will re- employment; and such other informa- quire information from a Fellow’s uni- tion as may relate to the fellowship versity about the intended use of and its holder. assistantship or work-study support before remitting fellowship payments. § 2400.61 Postponement of award.
§ 2400.60 Renewal of award. Upon application to the Foundation, a Fellow may seek postponement of his (a) Provided that Fellows have sub- or her fellowship because of ill health mitted all required documentation and or other mitigating circumstances, are making satisfactory academic such as military duty, temporary dis- progress, it is the intent of the Founda- ability, necessary care of an immediate tion to renew Junior Fellowship family member, or unemployment as a awards annually for a period not to ex- teacher. Substantiation of the reasons ceed two calendar years or the comple- for the requested postponement of tion of their graduate degrees, which- study will be required. ever comes first, and Senior Fellow- ships for a period not to exceed 5 cal- § 2400.62 Evidence of master’s degree. endar years (except when those periods have been altered because of changes in At the conclusion of graduate stud- Fellows’ Plan of Study as provided for ies, each Fellow must provide a cer- in § 2400.64), or until a Fellow has com- tified transcript which indicates that pleted all requirements for a master’s he or she has secured an approved mas- degree, whichever comes first. In no ter’s degree as set forth in the Fellow’s case, however, will the Foundation original Plan of Study or approved continue payments under a fellowship modifications thereto. to a Fellow who has reached the max- imum payments under a fellowship as § 2400.63 Excluded graduate study. indicated in § 2400.52, or completed the James Madison Fellowships do not minimum number of credits required provide support for study toward doc- for the degree. Although Fellows are toral degrees, for the degree of master not discouraged in taking courses in of arts in public affairs or public ad- addition to those required for the de- ministration, or toward the award of gree or required to maintain full-time teaching certificates. Nor do fellow- status, the Foundation will not in such ships support practice teaching re- cases pay for those additional courses quired for professional certification or unless they are credited to the min- other courses related to teaching un- imum number of credits required for less those courses are required for the the degree. degree. In those cases, however, the
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Foundation will provide reimburse- cepting Foundation support for study, ment only toward those courses related and submitted all required reports. to teaching that fall within the min- imum number of courses required for PART 2490—ENFORCEMENT OF the degree, not in addition to that min- NONDISCRIMINATION ON THE imum. BASIS OF HANDICAP IN PRO- § 2400.64 Alterations to Plan of Study. GRAMS OR ACTIVITIES CON- DUCTED BY THE JAMES MADISON Although Junior Fellows are ex- pected to pursue full-time study and MEMORIAL FELLOWSHIP FOUN- Senior Fellows to pursue part-time DATION study, the Foundation may permit Junior Fellows with an established Sec. need (such as the need to accept a 2490.101 Purpose. teaching position) to study part time 2490.102 Application. and Senior Fellows with established 2490.103 Definitions. 2490.104–2490.109 [Reserved] need (such as great distance between 2490.110 Self-evaluation. the Fellow’s residence and the nearest 2490.111 Notice. university, thus necessitating a full- 2490.112–2490.129 [Reserved] time leave of absence from employ- 2490.130 General prohibitions against dis- ment in order to study) to study full crimination. time. 2490.131–2490.139 [Reserved] 2490.140 Employment. § 2400.65 Teaching obligation. 2490.141–2490.148 [Reserved] Upon receiving a Master’s degree, 2490.149 Program accessibility: Discrimina- each Fellow must teach American his- tion prohibited. tory, American government, social 2490.150 Program accessibility: Existing fa- cilities. studies, or political science on a full- 2490.151 Program accessibility: New con- time basis to students in secondary struction and alterations. school for a period of not less than one 2490.152–2490.159 [Reserved] year for each academic year for which 2490.160 Communications. financial assistance was received. Each 2490.161–2490.169 [Reserved] Fellow will be required to provide the 2490.170 Compliance procedures. Foundation with an annual certifi- 2490.171–2490.999 [Reserved] cation from an official of the secondary AUTHORITY: 29 U.S.C. 794. school where the Fellow is employed indicating the teaching activities of SOURCE: 58 FR 57699, Oct. 26, 1993, unless the Fellow during the past year. This otherwise noted. same certification will be required each year until the Fellow’s teaching § 2490.101 Purpose. obligation is completed. Any teaching The purpose of this part is to effec- done by the Fellow prior to or during tuate section 119 of the Rehabilitation, graduate studies does not count to- Comprehensive Services, and Develop- wards meeting this teaching obliga- mental Disabilities Amendments of tion. 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit § 2400.66 Completion of fellowship. discrimination on the basis of handicap A Fellow will be deemed to have sat- in programs or activities conducted by isfied all terms of a fellowship and all Executive agencies or the United obligations under it when the Fellow States Postal Service. has completed no fewer than 12 grad- uate semester hours or the equivalent § 2490.102 Application. of study of the Constitution, formally This part (§§ 2490.101—2490.170) applies secured the masters degree, attended to all programs or activities conducted the Foundation’s Summer Institute on by the agency, except for programs or the Constitution, completed teaching activities conducted outside the United for the number of years and fractions States that do not involve individuals thereof required as a condition of ac- with handicaps in the United States.
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§ 2490.103 Definitions. (1) Physical or mental impairment in- For purposes of this part, the term— cludes— Assistant Attorney General means the (i) Any physiological disorder or con- Assistant Attorney General, Civil dition, cosmetic disfigurement, or ana- Rights Division, United States Depart- tomical loss affecting one or more of ment of Justice. the following body systems: Neuro- Auxiliary aids means services or de- logical; musculoskeletal; special sense vices that enable persons with im- organs; respiratory, including speech paired sensory, manual, or speaking organs; cardiovascular; reproductive; skills to have an equal opportunity to digestive; genitourinary; hemic and participate in, and enjoy the benefits lymphatic; skin; and endocrine; or of, programs or activities conducted by (ii) Any mental or psychological dis- the agency. For example, auxiliary aids order, such as mental retardation, or- useful for persons with impaired vision ganic brain syndrome, emotional or include readers, Brailled materials, mental illness, and specific learning audio recordings, and other similar disabilities. The term ‘‘physical or services and devices. Auxiliary aids mental impairment’’ includes, but is useful for persons with impaired hear- not limited to, such diseases and condi- ing include telephone handset ampli- tions as orthopedic, visual, speech, and fiers, telephones compatible with hear- hearing impairments, cerebral palsy, ing aids, telecommunication devices epilepsy, muscular dystrophy, multiple for deaf persons (TTD’s), interpreters, sclerosis, cancer, heart disease, diabe- notetakers, written materials, and tes, mental retardation, emotional ill- other similar services and devices. ness, HIV disease (whether sympto- Complete complaint means a written matic or asymptomatic), and drug ad- statement that contains the complain- diction and alcoholism. ant’s name and address and describes (2) Major life activities include func- the agency’s alleged discriminatory ac- tions such as caring for one’s self, per- tion in sufficient detail to inform the forming manual tasks, walking, seeing, agency of the nature and date of the al- hearing, speaking, breathing, learning, leged violation of section 504. It shall and working. be signed by the complainant or by (3) Has a record of such an impairment someone authorized to do so on his or means has a history of, or has been her behalf. Complaints filed on behalf misclassified as having, a mental or of classes or third parties shall describe physical impairment that substantially or identify (by name, if possible) the limits one or more major life activi- alleged victims of discrimination. ties. Facility means all or any portion of (4) Is regarded as having an impairment buildings, structures, equipment, means— roads, walks, parking lots, rolling (i) Has a physical or mental impair- stock or other conveyances, or other ment that does not substantially limit real or personal property. major life activities but is treated by Historic preservation programs means the agency as constituting such a limi- programs conducted by the agency that tation; have preservation of historic properties (ii) Has a physical or mental impair- as a primary purpose. ment that substantially limits major Historic properties means those prop- life activities only as a result of the at- erties that are listed or eligible for titudes of others toward such impair- listing in the National Register of His- ment; or toric Places or properties designated as (iii) Has none of the impairments de- historic under a statute of the appro- fined in paragraph (1) of this definition priate State or local government body. but is treated by the agency as having Individual with handicaps means any such an impairment. person who has a physical or mental Qualified individual with handicaps impairment that substantially limits means— one or more major life activities, has a (1) With respect to preschool, elemen- record of such an impairment, or is re- tary, or secondary education services garded as having such an impairment. provided by the agency, an individual As used in this definition, the phrase: with handicaps who is a member of a
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class of persons otherwise entitled by (c) The agency shall, for at least statute, regulation, or agency policy to three years following completion of the receive education services from the self-evaluation, maintain on file and agency; make available for public inspection: (2) With respect to any other agency (1) A description of areas examined program or activity under which a per- and any problems identified; and son is required to perform services or (2) A description of any modifications to achieve a level of accomplishment, made. an individual with handicaps who meets the essential eligibility require- § 2490.111 Notice. ments and who can achieve the purpose The agency shall make available to of the program or activity without employees, applicants, participants, modifications in the program or activ- beneficiaries, and other interested per- ity that the agency can demonstrate sons such information regarding the would result in a fundamental alter- provisions of this part and its applica- ation in its nature; bility to the programs or activities (3) With respect to any other pro- conducted by the agency, and make gram or activity, an individual with such information available to them in handicaps who meets the essential eli- such manner as the head of the agency gibility requirements for participation finds necessary to apprise such persons in, or receipt of benefits from, that pro- of the protections against discrimina- gram or activity; and tion assured them by section 504 and (4) Qualified handicapped person as this part. that term is defined for purposes of em- ployment in 29 CFR 1614.203(a)(6), §§ 2490.112—2490.129 [Reserved] which is made applicable to this part by § 2490.140. § 2490.130 General prohibitions Section 504 means section 504 of the against discrimination. Rehabilitation Act of 1973 (Pub. L. 93– (a) No qualified individual with 112, 87 Stat. 394 (29 U.S.C. 794)), as handicaps shall, on the basis of handi- amended. As used in this part, section cap, be excluded from participation in, 504 applies only to programs or activi- be denied the benefits of, or otherwise ties conducted by Executive agencies be subjected to discrimination under and not to federally assisted programs. any program or activity conducted by Substantial impairment means a sig- the agency. nificant loss of the integrity of finished (b)(1) The agency, in providing any materials, design quality, or special aid, benefit, or service, may not, di- character resulting from a permanent rectly or through contractual, licens- alteration. ing, or other arrangements, on the basis of handicap— §§ 2490.104—2490.109 [Reserved] (i) Deny a qualified individual with handicaps the opportunity to partici- § 2490.110 Self-evaluation. pate in or benefit from the aid, benefit, (a) The agency shall, by November 28, or service; 1994, evaluate its current policies and (ii) Afford a qualified individual with practices, and the effects thereof, that handicaps an opportunity to partici- do not or may not meet the require- pate in or benefit from the aid, benefit, ments of this part and, to the extent or service that is not equal to that af- modification of any such policies and forded others; practices is required, the agency shall (iii) Provide a qualified individual proceed to make the necessary modi- with handicaps with an aid, benefit, or fications. service that is not as effective in ac- (b) The agency shall provide an op- cording equal opportunity to obtain portunity to interested persons, includ- the same result, to gain the same ben- ing individuals with handicaps or orga- efit, or to reach the same level of nizations representing individuals with achievement as that provided to oth- handicaps, to participate in the self- ers; evaluation process by submitting com- (iv) Provide different or separate aid, ments (both oral and written). benefits, or services to individuals with
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handicaps or to any class of individuals programs or activities of licensees or with handicaps than is provided to oth- certified entities that subject qualified ers unless such action is necessary to individuals with handicaps to discrimi- provide qualified individuals with nation on the basis of handicap. How- handicaps with aid, benefits, or serv- ever, the programs or activities of enti- ices that are as effective as those pro- ties that are licensed or certified by vided to others; the agency are not, themselves, cov- (v) Deny a qualified individual with ered by this part. handicaps the opportunity to partici- (c) The exclusion of nonhandicapped pate as a member of planning or advi- persons from the benefits of a program sory boards; limited by Federal statute or Execu- (vi) Otherwise limit a qualified indi- tive order to individuals with handi- vidual with handicaps in the enjoy- caps or the exclusion of a specific class ment of any right, privilege, advan- of individuals with handicaps from a tage, or opportunity enjoyed by others program limited by Federal statute or receiving the aid, benefit, or service. Executive order to a different class of (2) The agency may not deny a quali- individuals with handicaps is not pro- fied individual with handicaps the op- hibited by this part. portunity to participate in programs or (d) The agency shall administer pro- activities that are no separate or dif- grams and activities in the most inte- ferent, despite the existence of permis- grated setting appropriate to the needs sibly separate or different programs or of qualified individuals with handicaps. activities. §§ 2490.131—2490.139 [Reserved] (3) The agency may not, directly or through contractual or other arrange- § 2490.140 Employment. ments, utilize criteria or methods of administration the purpose or effect of No qualified individual with handi- caps shall, on the basis of handicap, be which would— subjected to discrimination in employ- (i) Subject qualified individuals with ment under any program or activity handicaps to discrimination on the conducted by the agency. The defini- basis of handicap; or tions, requirements, and procedures of (ii) Defeat or substantially impair ac- section 501 of the Rehabilitation Act of complishment of the objectives of a 1973 (29 U.S.C. 791), as established by program or activity with respect to in- the Equal Employment Opportunity dividuals with handicaps. Commission in 29 CFR part 1614, shall (4) The agency may not, in deter- apply to employment in federally con- mining the site or location of a facil- ducted programs or activities. ity, make selections the purpose or ef- fect of which would— §§ 2490.141—2490.148 [Reserved] (i) Exclude individuals with handi- caps from, deny them the benefits of, § 2490.149 Program accessibility: Dis- or otherwise subject them to discrimi- crimination prohibited. nation under any program or activity Except as otherwise provided in conducted by the agency; or § 2490.150, no qualified individual with (ii) Defeat or substantially impair handicaps shall, because the agency’s the accomplishment of the objectives facilities are inaccessible to or unus- of a program or activity with respect able by individuals with handicaps, be to individuals with handicaps. denied the benefits of, be excluded from (5) The agency, in the selection of participation in, or otherwise be sub- procurement contractors, may not use jected to discrimination under any pro- criteria that subject qualified individ- gram or activity conducted by the uals with handicaps to discrimination agency. on the basis of handicap. (6) The agency may not administer a § 2490.150 Program accessibility: Exist- licensing or certification program in a ing facilities. manner that subjects qualified individ- (a) General. The agency shall operate uals with handicaps to discrimination each program or activity so that the on the basis of handicap, nor may the program or activity, when viewed in its agency establish requirements for the entirety, is readily accessible to and
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usable by individuals with handicaps. with this section. The agency, in mak- This paragraph does not— ing alterations to existing buildings, (1) Necessarily require the agency to shall meet accessibility requirements make each of its existing facilities ac- to the extent compelled by the Archi- cessible to and usable by individuals tectural Barriers Act of 1968, as amend- with handicaps; ed (42 U.S.C. 4151–4157), and any regula- (2) In the case of historic preserva- tions implementing it. In choosing tion programs, require the agency to among available methods for meeting take any action that would result in a the requirements of this section, the substantial impairment of significant agency shall give priority to those historic features of an historic prop- methods that offer programs and ac- erty; or tivities to qualified individuals with (3) Require the agency to take any handicaps in the most integrated set- action that it can demonstrate would ting appropriate. result in a fundamental alteration in (2) Historic preservation programs. In the nature of a program or activity or meeting the requirements of in undue financial and administrative § 2490.150(a) in historic preservation burdens. In those circumstances where programs, the agency shall give pri- agency personnel believe that the pro- ority to methods that provide physical posed action would fundamentally access to individuals with handicaps. alter the program or activity or would In cases where a physical alteration to result in undue financial and adminis- an historic property is not required be- trative burdens, the agency has the cause of § 2490.150(a)(2) or (a)(3), alter- burden of proving that compliance with native methods of achieving program § 2490.150(a) would result in such alter- accessibility include— ation or burdens. The decision that (i) Using audio-visual materials and compliance would result in such alter- devices to depict those portions of an ation or burdens must be made by the historic property that cannot other- agency head or his or her designee wise be made accessible; after considering all agency resources available for use in the funding and op- (ii) Assigning persons to guide indi- eration of the conducted program or viduals with handicaps into or through activity, and must be accompanied by portions of historic properties that a written statement of the reasons for cannot otherwise be made accessible; reaching that conclusion. If an action or would result in such an alteration or (iii) Adopting other innovative meth- such burdens, the agency shall take ods. any other action that result in such an (c) Time period for compliance. The alteration or such burdens but would agency shall comply with the obliga- nevertheless ensure that individuals tions established under this section by with handicaps receive the benefits and January 24, 1994, except that where services of the program or activity. structural changes in facilities are un- (b) Methods.—(1) General. The agency dertaken, such changes shall be made may comply with the requirements of by November 26, 1996, but in any event this section through such means as re- as expeditiously as possible. design of equipment, reassignment of (d) Transition plan. In the event that services to accessible buildings, assign- structural changes to facilities will be ment of aides to beneficiaries, home undertaken to achieve program acces- visits, delivery of services at alternate sibility, the agency shall develop, by accessible sites, alteration of existing May 26, 1994, a transition plan setting facilities and construction of new fa- forth the steps necessary to complete cilities, use of accessible rolling stock, such changes. The agency shall provide or any other methods that result in an opportunity to interested persons, making its programs or activities read- including individuals with handicaps or ily accessible to and usable by individ- organizations representing individuals uals with handicaps. The agency is not with handicaps, to participate in the required to make structural changes in development of the transition plan by existing facilities where other methods submitting comments (both oral and are effective in achieving compliance written). A copy of the transition plan
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shall be made available for public in- personal use or study, or other devices spection. The plan shall, at a min- of a personal nature. imum— (2) Where the agency communicates (1) Identify physical obstacles in the with applicants and beneficiaries by agency’s facilities that limit the acces- telephone, telecommunication devices sibility of its programs or activities to for deaf persons (TDD’s) or equally ef- individuals with handicaps; fective telecommunication systems (2) Describe in detail the methods shall be used to communicate with per- that will be used to make the facilities sons with impaired hearing. accessible; (b) The agency shall ensure that in- (3) Specify the schedule for taking terested persons, including persons the steps necessary to achieve compli- with impaired vision or hearing, can ance with this section and, if the time obtain information as to the existence period of the transition plan is longer and location of accessible services, ac- than one year, identify steps that will tivities, and facilities. be taken during each year of the tran- (c) The agency shall provide signage sition period; and at a primary entrance to each of its in- (4) Indicate the official responsible accessible facilities, directing users to for implementation of the plan. a location at which they can obtain in- formation about accessible facilities. § 2490.151 Program accessibility: New The international symbol for accessi- construction and alterations. bility shall be used at each primary en- Each building or part of a building trance of an accessible facility. that is constructed or altered by, on (d) This section does not require the behalf of, or for the use of the agency agency to take any action that it can shall be designed, constructed, or al- demonstrate would result in a funda- tered so as to be readily accessible to mental alteration in the nature of a and usable by individuals with handi- program or activity or in undue finan- caps. The definitions, requirements, cial and administrative burdens. In and standards of the Architectural Bar- those circumstances where agency per- riers Act (42 U.S.C. 4151–4157), as estab- sonnel believe that the proposed action lished in 41 CFR 101–19.600 to 101–19.607, would fundamentally alter the program apply to buildings covered by this sec- or activity or would result in undue fi- tion. nancial and administrative burdens, the agency has the burden of proving §§ 2490.152—2490.159 [Reserved] that compliance with § 2490.160 would result in such alteration or burdens. § 2490.160 Communications. The decision that compliance would re- (a) The agency shall take appropriate sult in such alteration or burdens must steps to ensure effective communica- be made by the agency head or his or tion with applicants, participants, per- her designee after considering all agen- sonnel of other Federal entities, and cy resources available for use in the members of the public. funding and operation of the conducted (1) The agency shall furnish appro- program or activity and must be ac- priate auxiliary aids where necessary companied by a written statement of to afford an individual with handicaps the reasons for reaching that conclu- an equal opportunity to participate in, sion. If an action required to comply and enjoy the benefits of, a program or with this section would result in such activity conducted by the agency. an alteration or such burdens, the (i) In determining what type of auxil- agency shall take any other action iary aid is necessary, the agency shall that would not result in such an alter- give primary consideration to the re- ation or such burdens but would never- quests of the individual with handi- theless ensure that, to the maximum caps. extent possible, individuals with handi- (ii) The agency need not provide indi- caps receive the benefits and services vidually prescribed devices, readers for of the program or activity.
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§§ 2490.161—2490.169 [Reserved] cessible to and usable by individuals with handicaps. § 2490.170 Compliance procedures. (g) Within 180 days of the receipt of a (a) Except as provided in paragraph complete complaint for which it has ju- (b) of this section, this section applies risdiction, the agency shall notify the to all allegations of discrimination on complainant of the results of the inves- tigation in a letter containing— the basis of handicap in programs and (1) Findings of fact and conclusions activities conducted by the agency. of law; (b) The agency shall process com- (2) A description of a remedy for each plaints alleging violations of section violation found; and 504 with respect to employment accord- (3) A notice of the right to appeal. ing to the procedures established by (h) Appeals of the findings of fact and the Equal Employment Opportunity conclusions of law or remedies must be Commission in 29 CFR part 1614 pursu- filed by the complainant within 90 days ant to section 501 of the Rehabilitation of receipt from the agency of the letter Act of 1973 (29 U.S.C. 791). required by § 2490.170(g). The agency (c) The Director of Administration may extend this time for good cause. and Finance shall be responsible for co- (i) Timely appeals shall be accepted ordinating implementation of this sec- and processed by the head of the agen- tion. Complaints may be sent to James cy. Madison Memorial Fellowship Founda- (j) The head of the agency shall no- tion, 2000 K Street, NW., suite 303, tify the complainant of the results of Washington, DC 20006. the appeal within 60 days of the receipt (d) The agency shall accept and in- of the request. If the head of the agen- vestigate all complete complaints for cy determines that additional informa- which it has jurisdiction. All complete tion is needed from the complainant, complaints must be filed within 180 he or she shall have 60 days from the days of the alleged act of discrimina- date of receipt of the additional infor- tion. The agency may extend this time mation to make his or her determina- period for good cause. tion on the appeal. (e) If the agency receives a complaint (k) The time limits cited in para- over which it does not have jurisdic- graphs (g) and (j) of this section may be tion, it shall promptly notify the com- extended with the permission of the plainant and shall make reasonable ef- Assistant Attorney General. forts to refer the complaint to the ap- (l) The agency may delegate its au- propriate Government entity. thority for conducting complaint in- (f) The agency shall notify the Archi- vestigations to other Federal agencies, tectural and Transportation Barriers except that the authority for making Compliance Board upon receipt of any the final determination may not be complaint alleging that a building or delegated to another agency. facility that is subject to the Architec- [58 FR 57699, Oct. 26, 1993] tural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157), is not readily ac- §§ 2490.171—2490.999 [Reserved]
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Part Page 2500–2504[Reserved] 2505 Rules implementing the Government in the Sun- shine Act ...... 597 2506 Claims collection ...... 600 2507 Procedures for disclosure of records under the Freedom of Information Act ...... 612 2508 Implementation of the Privacy Act of 1974 ...... 622 2510 Overall purposes and definitions ...... 631 2513 State Plan: Purpose, application requirements and selection criteria ...... 636 2515 Service-learning program purposes ...... 637 2516 School-based service-learning programs ...... 637 2517 Community-based service-learning programs ...... 645 2518 Service-learning clearinghouse ...... 649 2519 Higher education innovative programs for commu- nity service ...... 649 2520 General provisions: Americorps programs ...... 653 2521 Eligible Americorps program applicants and types of grants available for award ...... 654 2522 Americorps participants, programs, and applicants 657 2523 Agreements with other Federal agencies for the provision of Americorps program assistance ...... 672 2524 Americorps technical assistance and other special grants ...... 674 2525 National Service Trust: Purpose and definitions .... 676 2526 Eligibility for an education award ...... 677 2527 Determining the amount of an education award ..... 679 2528 Using an education award ...... 680 2529 Payment of accrued interest ...... 682 2530 Purpose and availability of grants for investment for quality and innovation activities ...... 683 2531 Innovative and special demonstration programs .... 684 2532 Technical assistance, training, and other service infrastructure-building activities ...... 686 595
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Part Page 2533 Special activities ...... 687 2540 General administration provisions ...... 688 2541 Uniform administrative requirements for grants and cooperative agreements to State and local governments ...... 693 2542 Governmentwide debarment and suspension (non- procurement) and governmentwide requirements for drug-free workplace (grants) ...... 721 2543 Grants and agreements with institutions of higher education, hospitals, and other non-profit orga- nizations ...... 739 2544 Solicitation and acceptance of donations ...... 767 2550 Requirements and general provision for State com- missions, alternative administrative entities and transitional entities ...... 769 2551 Senior Companion Program ...... 777 2552 Foster Grandparent Program ...... 790 2553 The Retired and Senior Volunteer Program ...... 804 2555 Nondiscrimination on the basis of sex in education programs or activities receiving Federal finan- cial assistance ...... 813
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exchanges of views that do not effec- (2) Establishes particular criteria for tively predetermine official Corpora- withholding or refers to particular tion action on a particular matter. types of matters to be withheld; (f) Member means a current member (d) Disclose trade secrets and com- of the Corporation’s Board of Direc- mercial or financial information ob- tors. tained from a person and privileged or (g) Presiding Officer means the Chair- confidential; person or, in the absence of the Chair- (e) Involve accusing any person of a person, the Vice Chairperson of the crime, or formally censuring any per- Board of Directors or other member au- son; thorized to act in this capacity by the (f) Disclose information of a personal Board. nature where disclosure would con- (h) Quorum means the number of stitute a clearly unwarranted invasion Members authorized to conduct Cor- of personal privacy; poration business pursuant to the (g) Disclose investigatory records Board’s bylaws. compiled for law enforcement purposes, or information which, if written, would § 2505.3 To what extent are meetings be contained in such records, but only of the Board open to the public? to the extent that the production of such records or information would— The Board shall conduct meetings, as (1) Interfere with enforcement pro- defined in § 2505.2, in accordance with ceedings; this part. Except as provided in § 2505.4, (2) Deprive a person of a right to a the Board’s meetings shall be open to fair trial or an impartial adjudication; the public. The public is invited to at- (3) Constitute an unwarranted inva- tend all meetings of the Board that are sion of personal privacy; open to the public but may not partici- (4) Disclose the identity of a con- pate in the Board’s deliberations at fidential source and, in the case of a such meetings or record any meeting record compiled by a criminal law en- by means of electronic, photographic, forcement authority in the course of a or other device. criminal investigation, or by an agency § 2505.4 On what grounds may the conducting a lawful national security Board close a meeting or withhold intelligence investigation, confidential information? information furnished only by the con- fidential source; The Board may close a meeting or (5) Disclose investigative techniques withhold information that otherwise and procedures; or would be required to be disclosed under (6) Endanger the life or physical safe- §§ 2505.5, 2505.6 and 2505.7 if it properly ty of law enforcement personnel; determines that an open meeting or (h) Disclose information contained in disclosure is likely to— or related to examination, operating or (a) Disclose matters that are— condition reports prepared by, on be- (1) Specifically authorized under cri- half of, or for the use of an agency re- teria established by an Executive order sponsible for the regulation or super- to be kept secret in the interests of na- vision of financial institution; tional defense or foreign policy; and (i) Disclose information the pre- (2) In fact properly classified pursu- mature disclosure of which would be ant to such Executive order; likely to significantly frustrate imple- (b) Relate solely to the internal per- mentation of a proposed action of the sonnel rules and practices of the Cor- Corporation, except that this provision poration; shall not apply in any instance where (c) Disclose matters specifically ex- the Corporation has already disclosed empted from disclosure by statute to the public the content or nature of (other than 5 U.S.C. 552), provided that its proposed action, or where the Cor- such statute— poration is required by law to make (1) Requires that the matters be such disclosure on its own initiative withheld from the public in such a prior to taking final action; or manner as to leave no discretion on the (j) Specifically concerning the Cor- issue; or poration’s issuance of a subpoena or
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the Corporation’s participation in a all persons expected to attend the civil action or proceeding, an action in meeting and their affiliation. a foreign court or international tri- (d) For each closed meeting, the Gen- bunal, or an arbitration, or the initi- eral Counsel shall publicly certify that, ation, conduct, or disposition by the in his or her opinion, the meeting may Corporation of a particular case of for- be closed to the public and shall state mal adjudication pursuant to the pro- each relevant exemption relied upon. A cedures in 5 U.S.C. 554 or otherwise in- copy of the certification shall be avail- volving a determination on the record able for public inspection. after opportunity for a hearing. (e) For each closed meeting, the § 2505.5 What are the procedures for Board shall issue a statement setting closing a meeting, withholding in- forth the time, place, and persons formation, and responding to re- present. A copy of such statement shall quests by affected persons to close be available for public inspection. a meeting? (f)(1) For each closed meeting, with (a) The Board may vote to close a the exception of a meeting closed pur- meeting or withhold information per- suant to § 2505.4(h) or (j), the Board taining to a meeting. Such action may shall maintain a complete transcript or be taken only when a majority of the electronic recording adequate to record entire membership of the Board votes fully the proceedings of each meeting. to take such action. A separate vote (2) For meetings that are closed pur- shall be taken with respect to each ac- suant to § 2505.4(h) or (j), the Board tion under § 2505.4. The Board may act may maintain a set of minutes in lieu by taking a single vote with respect to of a transcript or recording. Such min- a series of meetings which are proposed utes shall fully and clearly describe all to be closed to the public, or with re- matters discussed and shall provide a spect to any information concerning a full and accurate summary of any ac- series of meetings, so long as each tions taken, and the reasons therefor, meeting in the series involves the same particular matters and is scheduled to including a description of each of the be held no more than thirty days after views expressed on any item and the the initial meeting in the series. Each record of any vote. All documents con- Member’s vote under this paragraph sidered in connection with any action shall be recorded and no proxies shall shall be identified in such minutes. be allowed. (3) The Corporation shall make (b) If your interests may be directly promptly available to the public, in a affected if a meeting is open you may place easily accessible to the public, request that the Board close the meet- the transcript, electronic recording, or ing on one of the grounds referred to in minutes of the discussion of any item § 2505.4(e), (f), or (g). You should submit on the agenda, or of any item of the your request to the Office of the Gen- testimony of any witness received at eral Counsel, Corporation for National the meeting, except for such item or and Community Service, 1201 New York items of such discussion or testimony Avenue NW, Washington, D.C. 20525. as the Corporation determines to con- The Board shall, upon the request of tain information which may be prop- any one of its members, determine by erly withheld. Copies of such tran- recorded vote whether to grant your script, or minutes, or a transcription of request. such recording disclosing the identity (c) Within one working day of any of each speaker, shall be furnished to vote taken pursuant to this section, any person at the actual cost of dupli- the Board shall make publicly avail- cation or transcription. The Corpora- able a written copy of such vote re- tion shall maintain the transcript, re- flecting the vote of each Member on cording, or minutes for each closed the question. If a meeting is to be meeting for at least two years or at closed to the public, the Board shall, within one working day, make avail- least one year after the conclusion of able a full written explanation of its any Corporation business acted upon at action closing the meeting and a list of the meeting, whichever occurs later.
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§ 2505.6 What are the procedures for quires and that no earlier announce- making a public announcement of a ment of the change was possible; and meeting? (2) The Board publicly announces the (a) For each meeting, the Board shall change and the vote of each Member at make a public announcement, at least the earliest practicable time. one week before the meeting, of— (c) The deletion of any subject-mat- (1) The meeting’s time and place; ter previously announced for a meeting (2) The matters to be considered; is not a change requiring the approval (3) Whether the meeting is to be open of the Board under paragraph (b) of or closed; and this section. (4) The name and business telephone number of the official designated by PART 2506—CLAIMS COLLECTION the Board to respond to requests for in- formation about the meeting. Subpart A—Definitions, Authority, Adminis- (b) The one week advance notice re- trative Collection, Compromise, Termi- quired by paragraph (a) of this section nation, and Referral of Claims may be reduced only if— Sec. (1) The Board determines by recorded 2506.1 What definitions apply to the regula- vote that Board business requires that tions in this part? the meeting be scheduled in less than 2506.2 What is the Corporation’s authority seven days; and to issue these regulations? (2) The public announcement re- 2506.3 What other regulations also apply to quired by paragraph (a) of this section the Corporation’s debt collection efforts? is made at the earliest practicable time 2506.4 Do these regulations apply to claims and posted on the Corporation’s home involving fraud or misrepresentation? page. 2506.5 What is the extent of the Chief Exec- utive Officer’s authority to compromise (c) Immediately following a public debts owed to the Corporation? announcement required by paragraph 2506.6 What notice will I be provided if I owe (a) of this section, the Corporation will a debt to the Corporation? submit for publication in the FEDERAL 2506.7 What interest, penalty, and adminis- REGISTER a notice of the time, place, trative costs will I have to pay on a debt and subject matter of the meeting, owed to the Corporation? whether the meeting is open or closed, 2506.8 What opportunity do I have to obtain any change in one of the preceding, and a review of my debt within the Corpora- the name and phone number of the offi- tion? cial designated by the agency to re- 2506.9 How can I resolve the Corporation’s claim through a voluntary repayment spond to requests for information agreement? about the meeting. 2506.10 How will the Corporation use credit reporting agencies to collect its claims? § 2505.7 What are the procedures for 2506.11 How will the Corporation contract changing the time or place of a for collection services? meeting following the public an- 2506.12 When will the Corporation refer nouncement? claims to the DOJ? (a) After there has been a public an- 2506.13 Will the Corporation use a cross- nouncement of a meeting, the time or servicing agreement with the Treasury place of the meeting may be changed to collect its claims? only if the Board publicly announces Subpart B—Salary Offset the change at the earliest practicable time. Such a change need not be deter- 2506.20 What debts are included or excluded mined by recorded vote. from coverage of these regulations on (b) After there has been a public an- salary offset? nouncement of a meeting, the subject- 2506.21 May I ask the Corporation to waive matter of the meeting, or the deter- an overpayment that would otherwise be collected by offsetting my salary as a mination of the Board to open or to federal employee? close a meeting may be changed only 2506.22 What are the Corporation’s proce- when— dures for salary offset? (1) The Board determines, by re- 2506.23 How will the Corporation coordinate corded vote, that Board business so re- salary offsets with other agencies?
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2506.24 Under what conditions will the Cor- tives, and any court, court administra- poration make a refund of amounts col- tive office, or instrumentality in the lected by salary offset? judicial or legislative branches of the 2506.25 Will the collection of a claim by sal- ary offset act as a waiver of my rights to Government, and Government corpora- dispute the claimed debt? tions. (c) Corporation means the Corpora- Subpart C—Tax Refund Offset tion for National and Community Serv- ice. 2506.30 Which debts can the Corporation (d) Certification means a written debt refer to the Department of the Treasury for collection by offsetting tax refunds? claim form received from a creditor 2506.31 What are the Corporation’s proce- agency which requests the paying dures for collecting debts by tax refund agency to offset the salary of an em- offset? ployee. (e) Chief Executive Officer means the Subpart D—Administrative Offset Chief Executive Officer of the Corpora- 2506.40 Under what circumstances will the tion for National and Community Serv- Corporation collect amounts that I owe ice, or his or her designee. to the Corporation (or some other federal (f) Creditor agency means an agency of agency) by offsetting the debt against the Federal Government to which the payments that the Corporation (or some debt is owed. other federal agency) owes me? (g) Debt means money owed by a per- 2506.41 How will the Corporation request that my debt to the Corporation be col- son to the United States, including a lected by offsetting against some pay- debt owed to the Corporation or to any ment that another federal agency owes other Federal agency. me? (h) Debtor means a person who owes a 2506.42 What procedures will the Corpora- debt. Uses of the terms ‘‘I’’, ‘‘you,’’ tion use to collect amounts I owe to a ‘‘me,’’ and similar references to the federal agency by offsetting a payment reader of the regulations in this part that the Corporation would otherwise make to me? are meant to apply to debtors as de- 2506.43 When may the Corporation make an fined in this paragraph (h). offset in an expedited manner? (i) Delinquent debt means a debt that has not been paid within the time limit AUTHORITY: 31 U.S.C. 3711, 3716, 3720A; 42 U.S.C. 12651f. prescribed by the Corporation. (j) Disposable pay means that part of SOURCE: 64 FR 4316, Jan. 28, 1999, unless current basic pay, special pay, incen- otherwise noted. tive pay, retirement pay, retainer pay, or, in the case of an employee not enti- Subpart A—Definitions, Authority, tled to basic pay, other authorized pay Administrative Collection, remaining after the deduction of any Compromise, Termination, amount required by law to be withheld, and Referral of Claims excluding any garnishment under 5 CFR parts 581 and 582. The Corporation § 2506.5 What definitions apply to the will deduct the following items in de- regulations in this part? termining the amount of disposable As used in this part: pay that will be subject to salary off- (a) Administrative offset means the set: withholding of funds payable by the (1) Federal Social Security and Medi- United States to any person (including care taxes; funds payable to the United States on (2) Federal, state, and local income behalf of a State government), or the taxes, but no more than would be the withholding of funds held by the case if the employee claimed all de- United States for any person, in order pendents to which he or she is entitled to satisfy a debt owed to the United and any additional amounts for which States. the employee presents evidence of a (b) Agency means an executive de- tax obligation supporting the addi- partment or agency, the United States tional withholding; Postal Service, the Postal Rate Com- (3) Health insurance premiums; mission, the United States Senate, the (4) Normal retirement contributions United States House of Representa- as set forth in 5 CFR 581.105(e);
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(5) Normal life insurance premiums, § 2506.2 What is the Corporation’s au- excluding optional life insurance pre- thority to issue these regulations? miums; and The Corporation is issuing regula- (6) Levies pursuant to the Internal tions in this part under 42 U.S.C. 12651f Revenue Code, as defined in 5 U.S.C. and 31 U.S.C. 3711, 3716, and 3720A. The 5514(d). Corporation is also issuing the regula- (k) Employee means a current em- tions in this part in conformity with ployee of an agency, including a cur- the Federal Claims Collection Stand- rent member of the Armed Forces or ards, 4 CFR chapter II, which prescribe Reserve of the Armed Forces of the standards for the handling of the fed- United States. eral government’s claims for money or (l) Federal Claims Collection Standards property, including standards for ad- means the standards published at 4 ministrative collection, compromise, CFR chapter II. termination of agency collection ac- (m) Paying agency means the agency tion, and referral to the U.S. Depart- of the Federal Government that em- ment of Justice (DOJ) for litigation. ploys the individual who owes a debt to the United States. In some cases, the § 2506.3 What other regulations also Corporation may be both the creditor apply to the Corporation’s debt col- agency and the paying agency. lection efforts? (n) Payroll office means the payroll All provisions of the Federal Claims office in the paying agency that is pri- Collection Standards also apply to the marily responsible for the payroll regulations in this part. This part sup- records and the coordination of pay plements the Federal Claims Collection matters with the appropriate personnel Standards by prescribing procedures office with respect to an employee. and directives necessary and appro- (o) Person includes a natural person priate for operations of the Corpora- or persons, profit or non-profit corpora- tion. tion, partnership, association, trust, estate, consortium, State and local § 2506.4 Do these regulations apply to government, or other entity that is ca- claims involving fraud or misrepre- pable of owing a debt to the United sentation? States Government; however, agencies The Federal Claims Collection Stand- of the United States are excluded. ards and this part do not apply to any (p) Private collection contractor means claim as to which there is an indica- a private debt collector under contract tion of fraud or misrepresentation, as with an agency to collect a non-tax described in the Federal Claims Collec- debt owed to the United States. tion Standards, unless returned to the (q) Salary offset means a payroll pro- Corporation by the DOJ to the Cor- cedure to collect a debt under 5 U.S.C. poration for handling. 5514 by deduction(s) at one or more of- ficially established pay intervals from § 2506.5 What is the extent of the Chief the current pay account of an em- Executive Officer’s authority to compromise debts owed to the Cor- ployee, without his or her consent. poration? (r) Tax refund offset means the reduc- tion of a tax refund by the amount of a The Chief Executive Officer may ex- past-due legally enforceable debt owed ercise his or her compromise authority to the Corporation or any other Fed- for those debts not exceeding $100,000, eral agency. excluding interest, in conformity with (s) Waiver means the cancellation, re- the Federal Claims Collection Act of mission, forgiveness, or non-recovery 1966, as amended; the Federal Claims of a debt allegedly owed by a person to Collection Standards issued there- the Corporation or any other Federal under; and this part, except where agency as permitted or required by 5 standards are established by other U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 statutes or authorized regulations U.S.C. 716, or any other law. issued pursuant to them.
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§ 2506.6 What notice will I be provided (2) If you are a Corporation em- if I owe a debt to the Corporation? ployee, by deducting money from your (a) When the Chief Executive Officer disposable pay account (in the amount determines that you owe a debt to the and with the frequency, approximate Corporation, he or she will send you a beginning date and duration specified written notice. The notice will be by the Corporation) until the debt (and hand-delivered or sent to you by cer- all accumulated interest, penalties, tified mail, return receipt requested at and administrative costs) is paid in the most current address known to the full, and that such proceedings with re- Corporation. The notice will inform spect to the debt are governed by 5 you of the following: U.S.C. 5514; (1) The amount, nature, and basis of (3) If you are an employee of a federal the debt, and that a designated Cor- agency other than the Corporation, by poration official has reviewed the initiating certification procedures to claim and has determined that the debt implement a salary offset by the fed- is valid; eral agency, as appropriate (which may (2) That payment of your debt is due not exceed 15 percent of the employee’s as of the date of the notice, and that disposable pay), and that such pro- the debt will be considered delinquent ceedings with respect to the debt are if you do not pay it within 30 days of governed by 5 U.S.C. 5514; the date the notice is mailed or hand- (4) By referring the debt to the U.S. delivered; Department of the Treasury (Treasury) (3) The Corporation’s policy con- for offset against any refund of over- cerning interest, penalties, and admin- payment of tax (see Subpart C of this istrative costs, including a statement part); or that such assessments must be made (5) By administrative offset (see Sub- against you unless excused in accord- part D of this part). ance with the Federal Claims Collec- (c) Notice of opportunity for review. tion Standards and this part; The notice provided by the Chief Exec- (4) That you have the right to inspect utive Officer under paragraph (a) of and copy Corporation records per- this section will also advise you of the taining to your debt, or to receive cop- opportunity to obtain a review within ies of those records if personal inspec- the Corporation concerning the exist- tion is impractical; ence or amount of the debt, the pro- (5) That you have the opportunity to posed schedule for offset of federal em- enter into an agreement, in writing ployee salary payments, or whether the and signed by both you and the Chief debt is past due or legally enforceable. Executive Officer, for voluntary repay- The notice shall also advise you: ment of the debt; and (6) The address, telephone number, (1) Of the name, address, and tele- and name of the Corporation official phone number of an officer or employee available to discuss the debt. of the Corporation who may be con- (b) Notice of possible collection actions. tacted concerning procedures for re- The notice provided by the Chief Exec- questing a review; utive Officer under paragraph (a) of (2) Of the method and time period for this section will also advise you that, if requesting a review; your debt (including any interest, pen- (3) That the timely filing of a request alties and administrative costs) is not for a review on or before the 60th cal- paid within 60 days of the date of the endar day following the date of the no- notice, or you do not enter into a vol- tice to the debtor will stay the com- untary repayment agreement within 60 mencement of collection proceedings; days of the date of the notice, the Cor- (4) Of the name and address of the of- poration may enforce the collection of ficer or employee of the Corporation to the debt by any or all of the following whom you should send the request for a methods: review; (1) Referral to a credit reporting (5) That a final decision on the re- agency (See § 2506.10), a collection view (if one is requested) will be issued agency (See § 2506.11), or the DOJ (See at the earliest practical date, but not § 2506.12); later than 60 days after the receipt of
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the request for a review, unless you re- mines that such action is in the best quest, and the review official grants, a interest of the Corporation. A decision delay in the proceedings; to extend or not to extend the payment (6) That any knowingly false or frivo- period is final and is not subject to fur- lous statements, representations, or ther review. evidence may subject you to: (b) Penalty. The Corporation will as- (i) Disciplinary procedures appro- sess a penalty charge, not to exceed six priate under 5 U.S.C. chapter 75, 5 CFR percent a year, on any portion of a debt part 752, or any other applicable stat- that is delinquent for more than 90 ute or regulations; days. (ii) Penalties under the False Claims (c) Administrative costs. The Corpora- Act, 31 U.S.C. 3729–3733, or any other tion will assess charges to cover ad- applicable statutory authority; and ministrative costs incurred as a result (iii) Criminal penalties under 18 of your failure to pay a debt before it U.S.C. 286, 287, 1001, and 102, or any becomes delinquent. Administrative other applicable statutory authority; costs include the additional costs in- (7) Of any other rights available to curred in processing and handling the you to dispute the validity of the debt debt because it became delinquent, or to have recovery of the debt waived, such as costs incurred in obtaining a or remedies available to you under credit report, or in using a private col- statutes or regulations governing the lection contractor, or service fees program for which the collection is charged by a Federal agency for collec- being made; and tion activities undertaken on behalf of (8) That unless there are applicable the Corporation. contractual or statutory provisions to (d) Allocation of payments. A partial the contrary, amounts paid on or de- payment by a debtor will be applied ducted for the debt which are later first to outstanding administrative waived or found not owed will be costs, second to penalty assessments, promptly refunded to you. third to accrued interest, and then to (d) The Corporation will respond the outstanding debt principal. promptly to communications from you. (e) Waiver. (1) The Chief Executive Officer may (without regard to the § 2506.7 What interest, penalty, and ad- amount of the debt) waive collection of ministrative costs will I have to pay all or part of accrued interest, penalty, on a debt owed to the Corporation? or administrative costs, if he or she de- (a) Interest. (1) The Corporation will termines that collection of these assess interest on all delinquent debts charges would be against equity and unless prohibited by statute, regula- good conscience or not in the best in- tion, or contract. terest of the Corporation. (2) Interest begins to accrue on all (2) A decision to waive interest, pen- debts from the date that the debt be- alty charges, or administrative costs comes delinquent. The Corporation will may be made at any time before a debt not recover interest if you pay the debt is paid. However, where these charges within 30 days of the date on which in- have been collected before the waiver terest begins to accrue. Unless other- decision, they will not be refunded. The wise established in a contract, repay- Chief Executive Officer’s decision to ment agreement, or by statute, the waive or not waive collection of these Corporation shall assess interest at the charges is final and is not subject to rate established annually by the Sec- further review. retary of the Treasury under 31 U.S.C. 3717, unless a different rate is nec- § 2506.8 What opportunity do I have to essary to protect the interests of the obtain a review of my debt within Corporation. The Corporation will no- the Corporation. tify you of the basis for its finding (a) Request for review. If you desire a when a different rate is necessary to review within the Corporation con- protect the Corporation’s interests. cerning the existence or amount of the (3) The Chief Executive Officer may debt, the proposed schedule for offset of extend the 30-day period for payment federal employee salary payments, or without interest where he or she deter- whether the debt is past due or legally
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enforceable, you must send such a re- cial or employee of the Corporation, quest to the Corporation office des- any unresolved dispute you have re- ignated in the notice to debtor. (See garding whether all or part of the debt § 2506.6(c)). is past due or legally enforceable (for (1) Your request for review must be purposes of collection by tax refund signed by you and fully identify and ex- offset under § 2506.31), must be referred plain with reasonable specificity all to the Chief Executive Officer for ulti- the facts and evidence that support mate administrative disposition, and your position. the Chief Executive Officer must di- (2) The request for review must be re- rectly notify you of his or her deter- ceived by the designated office on or mination. before the 60th calendar day following the date of the notice. Timely filing (d) Review procedure. After you re- will stay the commencement of collec- quest a review, the reviewing official tion procedures. If you file a request will notify you of the form of the re- for a review after the expiration of the view to be provided. The reviewing offi- 60 day period provided for in this sec- cial shall determine the type of review tion, the Corporation will accept the to be conducted (i.e. whether an oral request if you can show that the delay hearing is required), and shall conduct was the result of circumstances beyond the review in accordance with the his or her control or because you did standards included in 4 CFR 102.3(c). If not receive notice of the filing deadline the review will include an oral hearing, (unless you had actual notice of the fil- the notice will set forth the date, time, ing deadline). and location of the hearing. If the re- (b) Review of Corporation records re- view will be on a written record, you lated to the debt. (1) In accordance with will be notified that you should submit § 2506.6, if you want to inspect or copy arguments and evidence in writing to Corporation records related to the the review official by a specified date debt, you must send a letter to the offi- after which the record will be closed. cial designated in the notice to the This date will give you reasonable time debtor stating his or her intention. to submit documentation. Your letter must be received within 30 (e) Date of decision. The reviewing of- calendar days after the date of the no- tice to debtor. ficial will issue a written decision, (2) In response to a timely request based upon either the written record or submitted by the debtor, the des- documentary evidence and information ignated official will notify you of the developed at an oral hearing, as soon as location and time when you may in- practical, but not later than 60 days spect and copy records related to the after the date on which the Corpora- debt. tion received your request for a review, (3) If personal inspection is imprac- unless you request and the review offi- tical, reasonable arrangements will be cial grants a delay in the proceedings. made to send you copies of those (f) Content of review decision. The re- records. view official shall prepare a written de- (c) Review official. The Chief Execu- cision that will include: tive Officer shall designate an officer (1) A statement of the facts presented or employee of the Corporation (who to support the origin, nature, and was not involved in the determination amount of the debt; of the debt) as the review official. (2) The reviewing official’s findings, When required by law or regulation, analysis, and conclusions; and the Corporation may request an admin- istrative law judge to conduct the re- (3) The terms of any repayment view, or may obtain a review official schedules, if applicable. who is an official, employee, or agent (g) Interest, penalty, and administrative of the United States (but who is not cost accrual during review period. During under the supervision or control of the the review period, interest, penalties, Chief Executive Officer). However, un- and administrative costs authorized by less the review is conducted by an offi- law will continue to accrue.
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§ 2506.9 How can I resolve the Cor- (3) The amount, status, and history poration’s claim through a vol- of the debt; and untary repayment agreement? (4) The program or pertinent activity In response to a notice of a debt owed under which the debt arose. to the Corporation, you may propose to (b) Before disclosing debt informa- the Corporation you be allowed to tion to a credit reporting agency, the repay a debt through a voluntary pay- Corporation will: ment agreement in lieu of the Corpora- (1) Take reasonable action to locate tion taking other collection actions the debtor if a current address is not under this part. available; and (a) Your request to enter into a vol- (2) If a current address is available, untary repayment must: provide the notice required under (1) Admit the existence of the debt; § 2506.6. and (c) At the time debt information is (2) Either propose payment of the submitted to a credit reporting agency, debt (together with interest, penalties, the Corporation will provide a written and administrative costs) in a lump statement to the reporting agency that sum, or set forth a proposed repayment all required actions have been taken. schedule. In addition, the Corporation will, (b) The Corporation will consider a thereafter, ensure that the credit re- request to enter into a voluntary re- porting agency is promptly informed of payment agreement consistent with any substantive change in the condi- the standards in 4 CFR 102.11. The Chief tions or amount of the debt, and Executive Officer may request addi- promptly verify or correct information tional information from you in order to relevant to the claim. make a determination of whether to (d) If a debtor disputes the validity of accept a voluntary repayment agree- the debt, the credit reporting agency ment, including requesting financial will refer the matter to the appropriate statements if you request to make pay- Corporation official. The credit report- ments in installments. It is within the ing agency will exclude the debt from Chief Executive Officer’s discretion to its reports until the Corporation cer- accept a repayment agreement instead tifies in writing that the debt is valid. of proceeding with other debt collec- tion actions under this part, and to set § 2506.11 How will the Corporation the necessary terms of any voluntary contract for collection services? repayment agreement. At the Corpora- The Corporation will use the services tion’s option, you may be required to of a private collection contractor enter into a confess-judgment note or where it determines that such use is in bond of indemnity with surety as part the best interest of the Corporation. of an agreement to make payments in When the Corporation determines that installments. Notwithstanding the pro- there is a need to contract for collec- visions of this section, any reduction tion services, it will— or compromise of a claim will be gov- erned by 31 U.S.C. 3711. (a) Retain sole authority to: (1) Resolve any dispute with the debt- § 2506.10 How will the Corporation use or regarding the validity of the debt; credit reporting agencies to collect (2) Compromise the debt; its claims? (3) Suspend or terminate collection (a) The Corporation may report de- action; linquent debts to appropriate credit re- (4) Refer the debt to the DOJ for liti- porting agencies by providing the fol- gation; and lowing information: (5) Take any other action under this (1) A statement that the debt is valid part which does not result in full col- and is overdue; lection of the debt; (2) The name, address, taxpayer iden- (b) Require the contractor to comply tification number, and any other infor- with the Privacy Act of 1974, as amend- mation necessary to establish the iden- ed, to the extent specified in 5 U.S.C. tity of the debtor; 552a(m), with applicable Federal and
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State laws pertaining to debt collec- ing under the Internal Revenue Code of tion practices (e.g., the Fair Debt Col- 1986, as amended (title 26, United lection Practices Act (15 U.S.C. 1692– States Code); the Social Security Act 1692o)), and with applicable regulations (42 U.S.C. 301 et seq.); the tariff laws of of the Corporation in this chapter; the United States; or to any case where (c) Require the contractor to account collection of a debt by salary offset is accurately and fully for all amounts explicitly provided for or prohibited by collected; and another statute (e.g., travel advances (d) Require the contractor to provide in 5 U.S.C. 5705 and employee training to the Corporation, upon request, all expenses in 5 U.S.C. 4108). data and reports contained in its files (d) Nothing in the regulations in this relating to its collection actions on a subpart precludes the compromise, sus- debt. pension, or termination of collection § 2506.12 When will the Corporation actions under the standards imple- refer claims to the DOJ? menting the Federal Claims Collection The Chief Executive Officer will refer Act (31 U.S.C. 3711 et seq., 4 CFR parts to the DOJ for litigation all claims on 101–105, 38 CFR 1.900–1.994). which aggressive collection actions (e) A levy pursuant to the Internal have been taken but which could not be Revenue Code takes precedence over a collected, compromised, suspended, or salary offset under this subpart, as pro- terminated. Referrals will be made as vided in 5 U.S.C. 5514(d). early as possible, consistent with ag- (f) This subpart does not apply to any gressive Corporation collection action, adjustment to pay arising out of an and within the period for bringing a employee’s election of coverage or a timely suit against the debtor. change in coverage under a Federal benefits program requiring periodic de- § 2506.13 Will the Corporation use a ductions from pay, if the amount to be cross-servicing agreement with the recovered was accumulated over four Treasury to collect its claims? or fewer pay periods. Yes. The Corporation will enter into a cross-servicing agreement with the § 2506.21 May I ask the Corporation to Treasury which will authorize the waive an overpayment that would Treasury to take all of the debt collec- otherwise be collected by offsetting tion actions described in this part. my salary as a federal employee? These debt collection services will be Yes, the regulations in this subpart provided to the Corporation in accord- do not preclude an employee from re- ance with 31 U.S.C. Chapter 37. questing waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 U.S.C. Subpart B—Salary Offset 2774, 32 U.S.C. 716, or under other statu- tory provisions pertaining to the par- § 2506.20 What debts are included or ticular debts being collected. excluded from coverage of these regulations on salary offset? § 2506.22 What are the Corporation’s (a) The regulations in this subpart procedures for salary offset? provide Corporation procedures for the (a) The Corporation will coordinate collection by salary offset of a federal employee’s pay to satisfy certain debts salary deductions under this subpart as owed to the Corporation or to other appropriate. federal agencies. (b) The Corporation’s payroll office (b) The regulations in this subpart will determine the amount of an em- apply to collections by the Chief Exec- ployee’s disposable pay and will imple- utive Officer, from: ment the salary offset. (1) Federal employees who owe debts (c) Deductions will begin within to the Corporation; and three official pay periods following re- (2) Employees of the Corporation who ceipt by the Corporation’s payroll of- owe debts to other federal agencies. fice of certification of debt from the (c) The regulations in subpart A and creditor agency. this subpart do not apply to debts aris- (d) Types of collection—
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(1) Lump-sum offset. If the amount of (1) The Corporation must include in the debt is equal to or less than 15 per- its claim a certification, in writing, cent of disposable pay, the debt gen- that: erally will be collected through one (i) The employee owes the debt; lump-sum offset. (ii) The amount and basis of the debt; (2) Installment deductions. Installment (iii) The date the Corporation’s right deductions will be made over a period to collect the debt first accrued; not greater than the anticipated period (iv) That the Corporation’s regula- of employment. The size and frequency tions in this subpart have been ap- of installment deductions will bear a proved by the Office of Personnel Man- reasonable relation to the size of the agement under 5 CFR part 550, subpart debt and the employee’s ability to pay. K; (2) If the collection must be made in However, the amount deducted from installments, the Corporation’s claim any period will not exceed 15 percent of will also advise the paying agency of the disposable pay from which the de- the amount or percentage of disposable duction is made unless the employee pay to be collected in each installment. has agreed in writing to the deduction The Corporation may also advise the of a greater amount. paying agency of the number of install- (3) Deductions from final check. A de- ments to be collected, and the date of duction exceeding the 15 percent dis- the first installment if that date is posable pay limitation may be made other than the next officially estab- from any final salary payment under 31 lished pay period. U.S.C. 3716 and the Federal Claims Col- (3) The Corporation shall also include lection Standards, in order to liquidate in its claim either: the debt, whether the employee is (i) The employee’s written consent to being separated voluntarily or involun- the salary offset; tarily. (ii) The employee’s signed statement (4) Deductions from other sources. If an acknowledging receipt of the proce- employee subject to salary offset is dures required by 5 U.S.C. 5514; or separated from the Corporation, and (iii) Information regarding the com- the balance of the debt cannot be liq- pletion of procedures required by 5 uidated by offset of the final salary U.S.C. 5514, including the actions taken check, the Corporation may offset any and the dates of those actions. later payments of any kind against the (4) If the employee is in the process balance of the debt, as allowed by 31 of separating and has not received a U.S.C. 3716 and the Federal Claims Col- final salary check or other final pay- lection Standards. ment(s) from the paying agency, the Corporation must submit its debt (e) Multiple debts. In instances where claim to the paying agency for collec- two or more creditor agencies are seek- tion under 31 U.S.C. 3716. The paying ing salary offsets, or where two or agency will (under its regulations more debts are owed to a single cred- adopted under 5 U.S.C. 5514 and 5 CFR itor agency, the Corporation’s payroll part 550, subpart K), certify the total office may, at its discretion, determine amount of its collection on the debt whether one or more debts should be and notify the employee and the Cor- offset simultaneously within the 15 poration. If the paying agency’s collec- percent limitation. tion does not fully satisfy the debt, and the paying agency is aware that the § 2506.23 How will the Corporation co- debtor is entitled to payments from the ordinate salary offsets with other Civil Service Retirement and Dis- agencies? ability Fund or other similar payments (a) Responsibilities of the Corporation that may be due the debtor employee as the creditor agency. Upon completion from other Federal Government of the procedures established in the sources, then (under its regulations regulations in this subpart and pursu- adopted under 5 U.S.C. 5514 and 5 CFR ant to 5 U.S.C. 5514, the Corporation part 550, subpart K), the paying agency must submit a debt claim to a paying will provide written notice of the out- agency. standing debt to the agency responsible
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for making the other payments to the agency must comply with the proce- debtor employee. The written notice dures required under 5 U.S.C. 5514 and 5 will state that the employee owes a CFR part 550, subpart K, and must debt, the amount of the debt, and that properly certify a debt claim to the the provisions of this section have been Corporation before the Corporation fully complied with. However, the Cor- will take action to collect from the poration must submit a properly cer- employee’s current pay account. tified claim under this paragraph (a)(4) (3) Review. The Corporation is not au- to the agency responsible for making thorized to review the merits of the the payments before the collection can creditor agency’s determination with be made. respect to the amount or validity of (5) Separated employee. If the em- the debt certified by the creditor agen- ployee is already separated and all pay- cy. ments due from his or her former pay- (4) Employees who transfer from the ing agency have been paid, the Cor- Corporation to another paying agency. poration may request, unless otherwise If, after the creditor agency has sub- prohibited, that money due and pay- mitted the debt claim to the Corpora- able to the employee from the Civil tion, the employee transfers from the Service Retirement and Disability Corporation to a different paying agen- Fund (5 CFR part 831, subpart R, or 5 cy before the debt is collected in full, CFR part 845, subpart D) or other simi- the Corporation will certify the total lar funds, be administratively offset to amount collected on the debt and no- collect the debt. tify the employee and the creditor (6) Employee transfer. When an em- agency in writing. The notification to ployee transfers from one paying agen- the creditor agency will include infor- cy to another paying agency, the Cor- mation on the employee’s transfer. poration will not repeat the due proc- ess procedures described in 5 U.S.C. § 2506.24 Under what conditions will 5514 and this subpart to resume the col- the Corporation make a refund of lection. The Corporation will submit a amounts collected by salary offset? properly certified claim to the new If the Corporation is the creditor paying agency and will subsequently review the debt to make sure the col- agency, it will promptly refund any lection is resumed by the new paying amount deducted under the authority agency. of 5 U.S.C. 5514, when: (b) Responsibility of the Corporation as (a) The debt is waived or all or part the paying agency. (1) Complete claim. of the funds deducted are otherwise When the Corporation receives a cer- found not to be owed (unless expressly tified claim from a creditor agency prohibited by statute or regulation); or (under the creditor agency’s regula- (b) An administrative or judicial tions adopted under 5 U.S.C. 5514 and 5 order directs the Corporation to make CFR part 550, subpart K), deductions a refund. should be scheduled to begin within (c) Unless required or permitted by three officially established pay inter- law or contract, refunds under this sec- vals. Before deductions can begin, the tion will not bear interest. employee will receive a written notice from the Corporation including: § 2506.25 Will the collection of a claim (i) A statement that the Corporation by salary offset act as a waiver of has received a certified debt claim my rights to dispute the claimed debt? from the creditor agency; (ii) The amount of the debt claim; Your involuntary payment of all or (iii) The date salary offset deductions any portion of a debt being collected will begin; and under this subpart will not be con- (iv) The amount of such deductions. strued as a waiver of any rights which (2) Incomplete claim. When the Cor- you may have under 5 U.S.C. 5514 or poration receives an incomplete certifi- any other provisions of a written con- cation of debt from a creditor agency, tract or law, unless there are statutory the Corporation will return the debt or contractual provisions to the con- claim with a notice that the creditor trary.
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Subpart C—Tax Refund Offset tions relating to the eligibility of a debt for tax return offset have been § 2506.30 Which debts can the Corpora- satisfied (31 CFR 285.2). tion refer to the Department of the Treasury for collection by offsetting § 2506.31 What are the Corporation’s tax refunds? procedures for collecting debts by (a) The regulations in this subpart tax refund offset? implement 31 U.S.C. 3720A which au- (a) The Chief Executive Officer will thorizes the Treasury to reduce a tax be the point of contact with the Treas- refund by the amount of a past-due le- ury for administrative matters regard- gally enforceable debt owed to a Fed- ing the offset program. eral agency. (b) The Corporation will ensure that (b) For purposes of this section, a the procedures prescribed by the Treas- past-due legally enforceable debt ref- ury are followed in developing informa- erable to the Treasury for tax refund tion about past-due debts and submit- offset is a debt that is owed to the Cor- ting the debts to the Treasury. poration; and: (c) The Corporation will submit a no- (1) Is at least $25.00 dollars; tification of a taxpayer’s liability for (2) Except in the case of a judgment past-due legally enforceable debt to the debt, has been delinquent for at least Treasury which will contain: three months and will not have been (1) The name and taxpayer identi- delinquent more than 10 years at the fying number (as defined in section 6109 time the offset is made; of the Internal Revenue Code, 26 U.S.C. (3) Cannot be currently collected 6109) of the person who is responsible under the salary offset provisions of 5 for the debt; U.S.C. 5514; (2) The dollar amount of the past-due (4) Is ineligible for administrative and legally enforceable debt; offset under 31 U.S.C. 3716(a) by reason (3) The date on which the original of 31 U.S.C. 3716(c)(2) or cannot be col- debt became past due; lected by administrative offset under 31 U.S.C. 3716(a) by the Corporation (4) A statement certifying that, with against amounts payable to the debtor respect to each debt reported, all of the by the Corporation; requirements of eligibility of the debt (5) With respect to which the Cor- for referral for the refund offset have poration has given the debtor at least been satisfied. (See § 2506.30(b)). For 60 days to present evidence that all or purposes of this section, notice that part of the debt is not past due or le- collection of the debt is affected by a gally enforceable, has considered evi- bankruptcy proceeding involving the dence presented by the debtor, and has individual will bar referral of the debt determined that an amount of the debt to the Treasury. is past due and legally enforceable; (d) The Corporation shall promptly (6) Which has been disclosed by the notify the Treasury to correct Corpora- Corporation to a credit reporting agen- tion data submitted when it: cy as authorized by 31 U.S.C. 3711(e), (1) Determines that an error has been unless the credit reporting agency made with respect to a debt that has would be prohibited from reporting in- been referred; formation concerning the debt by rea- (2) Receives or credits a payment on son of 15 U.S.C. 1681c; the debt; or (7) With respect to which the Cor- (3) Receives notice that the person poration has notified or has made a owing the debt has filed for bankruptcy reasonable attempt to notify the debt- under Title 11 of the United States or that: Code or has been adjudicated bankrupt (i) The debt is past due, and and the debt has been discharged. (ii) Unless repaid within 60 days (e) When advising debtors of an in- thereafter, the debt will be referred to tent to refer a debt to the Treasury for the Treasury for offset against any re- offset, the Corporation will also advise fund of overpayment of tax; and the debtors of remedial actions avail- (8) All other requirements of 31 able to defer or prevent the offset from U.S.C. 3720A and the Treasury regula- taking place.
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Subpart D—Administrative Offset (e) No collection by administrative offset will be made on any debt that § 2506.40 Under what circumstances has been outstanding for more than 10 will the Corporation collect years unless facts material to the Cor- amounts that I owe to the Corpora- poration or a federal agency’s right to tion (or some other federal agency) collect the debt were not known, and by offsetting the debt against pay- reasonably could not have been known, ments that the Corporation (or some other federal agency) owes by the official or officials responsible me? for discovering and collecting the debt. (f) The regulations in this subpart do (a) The regulations in this subpart not apply to: apply to the collection of any debts (1) A case in which administrative you owe to the Corporation, or to any offset of the type of debt involved is ex- request from another federal agency plicitly provided for or prohibited by that the Corporation collect a debt you another statute; or owe by offsetting your debt against a (2) Debts owed to the Corporation by payment the Corporation owes you. federal agencies or by any State or Administrative offset is authorized local government. under section 5 of the Federal Claims Collection Act of 1966, as amended (31 § 2506.41 How will the Corporation re- U.S.C. 3716). The Corporation shall quest that my debt to the Corpora- carry out administrative offset in ac- tion be collected by offsetting cordance with the provisions of the against some payment that another Federal Claims Collection Standards; federal agency owes me? the regulations in this subpart are in- The Chief Executive Officer may re- tended only to supplement the provi- quest that funds due and payable to sions of the Federal Claims Collection you by another federal agency instead Standards. be paid to the Corporation in payment (b) The Chief Executive Officer, after of a debt you owe to the Corporation. attempting to collect a debt you owe to In requesting administrative offset, the the Corporation under section 3(a) of Corporation, as creditor, will certify in the Federal Claims Collection Act of writing to the federal agency that is 1966, as amended (31 U.S.C. 3711(a)), holding funds for you: may collect the debt by administrative (a) That you owe the debt; offset, subject to the following: (b) The amount and basis of the debt; (1) The debt you owe is certain in and amount; and (c) That the Corporation has com- (2) It is in the best interest of the plied with the requirements of 31 Corporation to collect your debt by ad- U.S.C. 3716, its own administrative off- ministrative offset because of the de- set regulations in this subpart, and the creased costs of collection and accel- applicable provisions of the Federal eration in the payment of the debt. Claims Collection Standards with re- (c) The Chief Executive Officer may spect to providing the debtor with due initiate administrative offset with re- process. gard to debts you owe to another fed- eral agency. The head of the creditor § 2506.42 What procedures will the agency, or his or her designee, must Corporation use to collect amounts submit a written request for the offset I owe to a federal agency by offset- with a certification that the debt ex- ting a payment that the Corpora- ists and that you have been afforded tion would otherwise make to me? the necessary due process rights. Any federal agency may request that (d) The Chief Executive Officer may the Corporation administratively off- request another federal agency that set funds due and payable to you in holds funds payable to you to instead order to collect a debt you owe to that pay those funds to the Corporation in agency. The Corporation will initiate settlement of your debt. The Corpora- the requested offset only: tion will provide certification that: (a) Upon receipt of written certifi- (1) The debt exists; and cation from the creditor agency stat- (2) You have been afforded the nec- ing: essary due process rights. (1) That you owe the debt;
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(2) The amount and basis of the debt; 2507.8 How are fees determined? (3) That the agency has prescribed 2507.9 What records will be denied disclo- regulations for the exercise of adminis- sure under this part? trative offset; and 2507.10 What records are specifically exempt (4) That the agency has complied from disclosure? with its own administrative offset reg- 2507.11 What are the procedures for the re- lease of commercial business informa- ulations and with the applicable provi- tion? sions of the Federal Claims Collection 2507.12 Authority. Standards, including providing you APPENDIX A TO PART 2507—FREEDOM OF IN- with any required hearing or review; FORMATION ACT REQUEST LETTER (SAM- and PLE) (b) Upon a determination by the APPENDIX B TO PART 2507—FREEDOM OF IN- Chief Executive Officer that offsetting FORMATION ACT APPEAL FOR RELEASE OF funds payable to you by the Corpora- INFORMATION (SAMPLE) tion in order to collect a debt owed by AUTHORITY: 42 U.S.C. 12501 et seq. you would be in the best interest of the United States as determined by the SOURCE: 63 FR 26489, May 13, 1998, unless facts and circumstances of the par- otherwise noted. ticular case, and that such an offset § 2507.1 Definitions. would not otherwise be contrary to law. As used in this part, the following definitions shall apply: § 2506.43 When may the Corporation (a) Act means section 552 of Title 5, make an offset in an expedited United States Code, sometimes re- manner? ferred to as the ‘‘Freedom of Informa- The Corporation may effect an ad- tion Act’’, and Pub. L. 104–231, 110 Stat. ministrative offset against a payment 3048, sometimes referred to as the to be made to you before completion of ‘‘Electronic Freedom of Information the procedures required by §§ 2506.41 Act Amendments of 1996.’’ and 2506.42 if failure to take the offset (b) Agency means any executive de- would substantially jeopardize the Cor- partment, military department, gov- poration’s ability to collect the debt ernment corporation, or other estab- and the time before the payment is to lishment in the executive branch of the be made does not reasonably permit Federal Government, or any inde- the completion of those procedures. An pendent regulatory agency. Thus, the expedited offset will be promptly fol- Corporation is a Federal agency. lowed by the completion of those pro- (c) Commercial use request means a re- cedures. Amounts recovered by offset, quest from, or on behalf of, a person but later found not to be owed to the who seeks information for a use or pur- Corporation, will be promptly re- pose that furthers the commercial, funded. trade, or profit interests of the re- quester or the person on whose behalf PART 2507—PROCEDURES FOR DIS- the request is made. The use to which CLOSURE OF RECORDS UNDER the requester will put the records THE FREEDOM OF INFORMATION sought will be considered in deter- mining whether the request is a com- ACT mercial use request. (d) Corporation means the Corpora- Sec. 2507.1 Definitions. tion for National and Community Serv- 2507.2 What is the purpose of this part? ice. 2507.3 What types of records are available (e) Educational institution means a for disclosure to the public? pre-school, elementary or secondary 2507.4 How are requests for records made? school, institution of undergraduate or 2507.5 How does the Corporation process re- graduate higher education, or institu- quests for records? tion of professional or vocational edu- 2507.6 Under what circumstances may the Corporation extend the time limits for cation, which operates a program of an initial response? scholarly research. 2507.7 How does one appeal the Corpora- (f) Electronic data means records and tion’s denial of access to records? information (including e-mail) which
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are created, stored, and retrievable by exist and be in the possession and con- electronic means. trol of the Corporation at the time of (g) Freedom of Information Act Officer the request to be considered subject to (FOIA Officer) means the Corporation this part and the FOIA. There is no ob- official who has been delegated the au- ligation to create, compile, or obtain a thority to make the initial determina- record to satisfy a FOIA request. See tion on whether to release or withhold § 2507.5(d) with respect to creating a records, and to assess, waive, or reduce record in the electronic environment. fees in response to FOIA requests. (k) Representative of the news media (h) Non-commercial scientific institution means a person who is actively gath- means an institution that is not oper- ering information for an entity orga- ated substantially for purposes of fur- nized to publish, broadcast or other- thering its own or someone else’s busi- wise disseminate news to the public. ness trade, or profit interests, and that News media entities include television is operated for purposes of conducting and radio broadcasters, publishers of scientific research whose results are periodicals who distribute their prod- not intended to promote any particular ucts to the general public or who make product or industry. their products available for purchase or (i) Public interest means the interest subscription by the general public, and in obtaining official information that entities that may disseminate news sheds light on an agency’s performance through other media (e.g., electronic of its statutory duties because the in- dissemination of text). Freelance jour- formation falls within the statutory nalists will be treated as representa- purpose of the FOIA to inform citizens tives of a new media entity if they can about what their government is doing. show a likelihood of publication (j) Record includes books, brochures, through such an entity. A publication electronic mail messages, punch cards, contract would be the clearest proof, magnetic tapes, cards, discs, paper but the Corporation may also look to tapes, audio or video recordings, maps, the past publication record of a re- pamphlets, photographs, slides, micro- quester in making this determination. film, and motion pictures, or other doc- (l) FOIA request means a written re- umentary materials, regardless of physical form or characteristics, made quest for Corporation records, made by or received by the Corporation pursu- any person, including a member of the ant to Federal law or in connection public (U.S. or foreign citizen), an or- with the transaction of public business ganization, or a business, but not in- and preserved by the Corporation as cluding a Federal agency, an order evidence of the organization, functions, from a court, or a fugitive from the policies, decisions, procedures, oper- law, that either explicitly or implicitly ations, programs, or other activities. involves the FOIA, or this part. Writ- Record does not include objects or arti- ten requests may be received by postal cles such as tangible exhibits, models, service or by facsimile. equipment, or processing materials; or (m) Review means the process of ex- formulas, designs, drawings, or other amining records located in response to items of valuable property. Record does a request to determine whether any not include books, magazines, pam- record or portion of a record is per- phlets or other materials acquired sole- mitted to be withheld. It also includes ly for reference purposes. Record does processing records for disclosure (i.e., not include personal records of an indi- excising portions not subject to disclo- vidual not subject to agency creation sure under the Act and otherwise pre- or retention requirements, created and paring them for release). Review does maintained primarily for the conven- not include time spent resolving legal ience of an agency employee, and not or policy issues regarding the applica- distributed to other agency employees tion of exemptions under the Act. for their official use. Record does not (n) Search means looking for records include information stored within a or portions of records responsive to a computer for which there is no existing request. It includes reading and inter- computer program for retrieval of the preting a request, and also page-by- requested information. A record must page and line-by-line examination to
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identify responsive portions of a docu- (2) Copies of a current index of the ment. However, it does not include materials in paragraphs (a)(1)(i) line-by-line examination where merely through (v) of this section that are duplicating the entire page would be a maintained by the Corporation, or any less expensive and quicker way to com- portion thereof, will be furnished or ply with the request. made available for inspection upon re- quest. § 2507.2 What is the purpose of this (b) To the extent necessary to pre- part? vent a clearly unwarranted invasion of The purpose of this part is to pre- personal privacy, the Corporation may scribe rules for the inspection and re- delete identifying details from mate- lease of records of the Corporation for rials furnished under this part. National and Community Service pur- (c) Brochures, leaflets, and other suant to the Freedom of Information similar published materials shall be Act (‘‘FOIA’’), 5 U.S.C. 552, as amended. furnished to the public on request to Information customarily furnished to the extent they are available. Copies of the public in the regular course of the any such materials which are out of Corporation’s official business, whether print shall be furnished to the public at hard copy or electronic records which the cost of duplication, provided, how- are available to the public through an ever, that, in the event no copy exists, established distribution system, or the Corporation shall not be respon- through the FEDERAL REGISTER, the sible for reprinting the document. National Technical Information Serv- (d) All records of the Corporation ice, or the Internet, may continue to be which are requested by a member of furnished without processing under the the public in accordance with the pro- provisions of the FOIA or complying cedures established in this part shall be with this part. duplicated for the requester, except to § 2507.3 What types of records are the extent that the Corporation deter- available for disclosure to the pub- mines that such records are exempt lic? from disclosure under the Act. (a) (1) The Corporation will make (e) The Corporation will not be re- available to any member of the public quired to create new records, compile who requests them, the following Cor- lists of selected items from its files, or poration records: provide a requester with statistical or (i) All publications and other docu- other data (unless such data has been ments provided by the Corporation to compiled previously and is available in the public in the normal course of the form of a record.) agency business will continue to be (f) These records will be made avail- made available upon request to the able for public inspection and copying Corporation; in the Corporation’s reading room lo- (ii) Final opinions, including concur- cated at the Corporation for National ring and dissenting opinions, as well as and Community Service, 1201 New York orders, made in the adjudication of ad- Avenue, NW., Room 8200, Washington, ministrative cases; D.C. 20525, during the hours of 9:30 a.m. (iii) Statements of policy and inter- to 4:00 p.m., Monday through Friday, pretation adopted by the agency and except on official holidays. not published in the FEDERAL REG- (g) Corporation records will be made ISTER; available to the public unless it is de- (iv) Administrative staff manuals and termined that such records should be instructions to the staff that affect a withheld from disclosure under sub- member of the public; and section 552(b) of the Act and or in ac- (v) Copies of all records, regardless of cordance with this part. form or format, which, because of the nature of their subject matter, the § 2507.4 How are requests for records agency determines have become or are made? likely to become the subject of subse- (a) How made and addressed. (1) Re- quent requests for substantially the quests for Corporation records under same records. the Act must be made in writing, and
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can be mailed, hand-delivered, or re- (5) The name(s) of Corporation per- ceived by facsimile, to the FOIA Offi- sonnel who may have prepared or been cer, Corporation for National and Com- referenced in the record; and munity Service, Office of the General (6) Citation to newspapers or other Counsel, 1201 New York Avenue, N.W., publications which refer to the record. Room 8200, Washington, D.C. 20525. (See (c) Agreement to pay fees. The filing of Appendix A for an example of a FOIA a request under this section shall be request.) All such requests, and the en- deemed to constitute an agreement by velopes in which they are sent, must be the requester to pay all applicable fees, plainly marked ‘‘FOIA Request’’. Hand- up to $25.00, unless a waiver of fees is delivered requests will be received be- sought in the request letter. When fil- tween 9 a.m. and 4 p.m., Monday ing a request, a requester may agree to through Friday, except on official holi- pay a greater amount, if applicable. days. Although the Corporation main- (See § 2507.8 for further information on tains offices throughout the conti- fees.) nental United States, all FOIA re- quests must be submitted to the Cor- § 2507.5 How does the Corporation poration’s Headquarters office in Wash- process requests for records? ington, DC. (a) Initial processing. Upon receipt of a (2) Corporation records that are request for agency records, the FOIA available in the Corporation’s reading Officer will make an initial determina- room will also be made available for tion as to whether the requester has public access through the Corpora- reasonably described the records being tion’s ‘‘electronic reading room’’ inter- net site under ‘‘Resource Links’’. The sought with sufficient specificity to de- following address is the Corporation’s termine which Corporation office may Internet Web site: http:// have possession of the requested www.nationalservice.org. records. The office head or his or her (b) Request must adequately describe designees shall determine whether the the records sought. A request must de- description of the record(s) requested is scribe the records sought in sufficient sufficient to permit a determination as detail to enable Corporation personnel to existence, identification, and loca- to locate the records with reasonable tion. It is the responsibility of the effort, and without unreasonable bur- FOIA Officer to provide guidance and den to or disruption of Corporation op- assistance to the Corporation staff re- erations. Among the kinds of identi- garding all FOIA policies and proce- fying information which a requester dures. All requests for records under may provide are the following: the control and jurisdiction of the Of- (1) The name of the specific program fice of the Inspector General will be within the Corporation which may forwarded to the Inspector General, have produced or may have custody of through the FOIA Officer, for the Cor- the record (e.g., AmeriCorps*State/Na- poration’s initial determination and tional Direct, AmeriCorps*NCCC (Na- reply to the requester. tional Civilian Community Corps), (b) Insufficiently identified records. On AmeriCorps*VISTA (Volunteers In making a determination that the de- Service To America), Learn and Serve scription contained in the request does America, National Senior Service not reasonably describe the records Corps (NSSC), Retired and Senior Vol- being sought, the FOIA Officer shall unteer Program (RSVP), Foster Grand- promptly advise the requester in writ- parent Program (FGP), Senior Com- ing or by telephone if possible. The panion Program (SCP), and HUD Hope FOIA Officer shall provide the re- VI); quester with appropriate assistance to (2) The specific event or action, if help the requester provide any addi- any, to which the record pertains; tional information which would better (3) The date of the record, or an ap- identify the record. The requester may proximate time period to which it re- submit an amended request providing fers or relates; the necessary additional identifying in- (4) The type of record (e.g. contract, formation. Receipt of an amended re- grant or report); quest shall start a new 20 day period in
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which the Corporation will respond to her right to appeal the denial, in ac- the request. cordance with the procedures set forth (c) Furnishing records. The Corpora- in § 2507.7. If the FOIA Officer deter- tion is required to furnish only copies mines that a request describes a re- of what it has or can retrieve. It is not quested record sufficiently to permit compelled to create new records or do its identification, he/she shall make it statistical computations. For example, available unless he/she determines, as the Corporation is not required to appropriate, to withhold the record as write a new program so that a com- being exempt from mandatory disclo- puter will print information in a spe- sure under the Act. cial format. However, if the requested (f) Form and content of notice granting information is maintained in comput- a request. The Corporation shall provide erized form, and it is possible, without inconvenience or unreasonable burden, written notice of a determination to to produce the information on paper, grant access within 20 days (excepting the Corporation will do this if this is Saturdays, Sundays, and legal public the only feasible way to respond to a holidays) of receipt of the request. This request. The Corporation is not re- will be done either by providing a copy quired to perform any research for the of the record to the requester or by requester. The Corporation reserves making the record available for inspec- the right to make a decision to con- tion at a reasonable time and place. If serve government resources and at the the record cannot be provided at the same time supply the records requested time of the initial response, the Cor- by consolidating information from var- poration shall make such records avail- ious records rather than duplicating all able promptly. Records disclosed in of them. For example, if it requires less part shall be marked or annotated to time and expense to provide a com- show both the amount and the location puter record as a paper printout rather of the information deleted wherever than in an electronic medium, the Cor- practicable. poration will provide the printout. The (g) Form and content of notice denying Corporation is only required to furnish request. The Corporation shall notify one copy of a record. the requester in writing of the denial of (d) Format of the disclosure of a record. access within 20 days (excepting Satur- The requester, not the Corporation, days, Sundays, and legal public holi- will be entitled to choose the form of days) of receipt of the request. Such disclosure when multiple forms of a record already exist. Any further re- notice shall include: quest for a record to be disclosed in a (1) The name and title or position of new form or format will have to be con- the person responsible for the denial; sidered by the Corporation, on a case- (2) A brief statement of the reason(s) by-case basis, to determine whether for denial, including the specific ex- the records are ‘‘readily reproducible’’ emption(s) under the Act on which the in that form or format with ‘‘reason- Corporation has relied in denying each able efforts’’ on the part of the Cor- document that was requested; poration. The Corporation shall make (3) A statement that the denial may reasonable efforts to maintain its be appealed under § 2507.7, and a de- records in forms or formats that are re- scription of the requirements of that producible for purposes of replying to a § 2507.7; FOIA request. (4) An estimate of the volume of (e) Release of record. Upon receipt of a records or information withheld, in request specifically identifying exist- number of pages or in some other rea- ing Corporation records, the Corpora- sonable form of estimation. This esti- tion shall, within 20 days (excepting mate does not need to be provided if Saturdays, Sundays, and legal public the volume is otherwise indicated holidays), either grant or deny the re- quest in whole or in part, as provided through deletions on records disclosed in this section. Any notice of denial in in part, or if providing an estimate whole or in part shall require the FOIA would harm an interest protected by an Officer to inform the requester of his/ applicable exemption.
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§ 2507.6 Under what circumstances viding notice of the right to judicial re- may the Corporation extend the view. A decision will be made on the time limits for an initial response? appeal within 20 days (excepting Satur- The time limits specified for the Cor- days, Sundays, and legal public holi- poration’s initial response in § 2507.5, days), from the date the appeal was re- and for its determination on an appeal ceived by the COO. in § 2507.7, may be extended by the Cor- (d) When appeal is required. If a re- poration upon written notice to the re- quester wishes to seek review by a quester which sets forth the reasons for court of an unfavorable determination, such extension and the date upon an appeal must first be submitted which the Corporation will respond to under this section. the request. Such extension may be ap- plied at either the initial response § 2507.8 How are fees determined? stage or the appeal stage, or both, pro- (a) Policy. It is the policy of the Cor- vided the aggregate of such extensions poration to provide the widest possible shall not exceed ten working days. Cir- access to releasable Corporation cumstances justifying an extension records at the least possible cost. The under this section may include the fol- purpose of the request is relevant to lowing: the fees charged. (a) Time necessary to search for and (b) Types of request. Fees will be de- collect requested records from field of- termined by category of requests as fices of the Corporation; follows: (b) Time necessary to locate, collect and review voluminous records; or (1) Commercial use requests. When a re- (c) Time necessary for consultation quest for records is made for commer- with another agency having an interest cial use, charges will be assessed to in the request; or among two or more cover the costs of searching for, re- offices of the Corporation which have viewing for release, and reproducing an interest in the request; or with a the records sought. submitter of business information hav- (2) Requests for educational and non- ing an interest in the request. commercial scientific institutions. When a request for records is made by an edu- § 2507.7 How does one appeal the Cor- cational or non-commercial scientific poration’s denial of access to institution in furtherance of scholarly records? or scientific research, respectively, (a) Right of appeal. A requester has charges may be assessed to cover the the right to appeal a partial or full de- cost of reproduction alone, excluding nial of an FOIA request. The appeal charges for reproduction of the first 100 must be put in writing and sent to the pages. Whenever the total fee cal- reviewing official identified in the de- culated is $18.00 or less, no fee shall be nial letter. The requester must send charged. the appeal within 60 days of the letter (3) Requests from representatives of the denying the appeal. news media. When a request for records (b) Contents of appeal. The written ap- is made by a representative of the news peal may include as much or as little media for the purpose of news dissemi- information as the requester wishes for nation, charges may be assessed to the basis of the appeal. cover the cost of reproduction alone, (c) Review process. The Chief Oper- excluding the charges for reproduction ating Officer (COO) is the designated of the first 100 pages. Whenever the official to act on all FOIA appeals. The total fee calculated is $18.00 or less, no COO’s determination of an appeal con- fee shall be charged. stitutes the Corporation’s final action. (4) Other requests. When other re- If the appeal is granted, in whole or in quests for records are made which do part, the records will be made available not fit the three preceding categories, for inspection or sent to the requester, charges will be assessed to cover the promptly, unless a reasonable delay is costs of searching for and reproducing justified. If the appeal is denied, in the records sought, excluding charges whole or in part, the COO will state the for the first two hours of search time reasons for the decision in writing, pro- and for reproduction of the first 100
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pages. (However, requests from individ- or if records located are determined to uals for records about themselves con- be exempt from disclosure. tained in the Agency’s systems of (e) Consent to pay fees. In the event records will be treated under the fee that a request for records does not provisions of the Privacy Act of 1974 (5 state that the requester will pay all U.S.C. 552a) which permit the assess- reasonable costs, or costs up to a speci- ment of fees for reproduction costs fied dollar amount, and the FOIA Offi- only, regardless of the requester’s char- cer determines that the anticipated as- acterization of the request.) Whenever sessable costs for search, review and re- the total fee calculated is $18.00 or less, production of requested records will ex- no fee shall be charged to the re- ceed $25.00, or will exceed the limit quester. specified in the request, the requester (c) Direct costs. Fees assessed shall shall be promptly notified in writing. provide only for recovery of the Cor- Such notification shall state the an- poration’s direct costs of search, re- ticipated assessable costs of search, re- view, and reproduction. Review costs view and reproduction of records re- shall include only the direct costs in- quested. The requester shall be af- curred during the initial examination forded an opportunity to amend the re- of a record for the purposes of deter- quest to narrow the scope of the re- mining whether a record must be dis- quest, or, alternatively, may agree to closed under this part and whether any be responsible for paying the antici- portion of a record is exempt from dis- pated costs. Such a request shall be closure under this part. Review costs deemed to have been received by the shall not include any costs incurred in Corporation upon the date of receipt of resolving legal or policy issues raised the amended request. in the course of processing a request or (f) Advance payment. (1) Advance pay- an appeal under this part. ment of assessable fees are not required (d) Charging of fees. The following from a requester unless: charges may be assessed for copies of (i) The Corporation estimates or de- records provided to a requester: termines that assessable charges are (1) Copies made by photostat shall be likely to exceed $250.00, and the re- charged at the rate of $0.10 per page. quester has no history of payment of (2) Searches for requested records FOIA fees. (Where the requester has a performed by clerical/administrative history of prompt payment of fees, the personnel shall be charged at the rate Corporation shall notify the requester of $4.00 per quarter hour. of the likely cost and obtain written (3) Where a search for requested assurance of full payment.) records cannot be performed by clerical (ii) A requester has previously failed administrative personnel (for example, to pay a FOIA fee charged in a timely where the tasks of identifying and fashion (i.e., within 30 days of the date compiling records responsive to a re- of the billing). quest must be performed by a skilled (2) When the Corporation acts under technician or professional), such search paragraphs (f)(1)(i) or (ii) of this sec- shall be charged at the rate of $7.00 per tion, the administrative time limits quarter hour. prescribed in § 2507.5(a) and (b) will (4) Where the time of managerial per- begin to run only after the Corporation sonnel is required, the fee shall be has received fee payments or assur- $10.25 for each quarter hour of time ances. spent by such managerial personnel. (g) Interest on non-payment. Interest (5) Computer searches for requested charges on an unpaid bill may be as- records shall be charged at a rate com- sessed starting on the 31st day fol- mensurate with the combined cost of lowing the day on which the billing computer operation and operator’s sal- was sent. Interest will be assessed at ary attributable to the search. the rate prescribed in 31 U.S.C. 3717 and (6) Charges for non-release. Charges will accrue from the date of the billing. may be assessed for search and review The Corporation may use the author- time, even if the Corporation fails to ization of the Debt Collection Act of locate records responsive to a request 1982 (Pub. L. 97–365, 96 Stat. 1749), as
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amended, and its administrative proce- determining whether a waiver or reduc- dures, including disclosure to consumer tion of fees will be granted: reporting agencies and the use of col- (i) Does the requested information lection agencies, to encourage payment concern the operations or activities of of delinquent fees. the Corporation? (h) Aggregating requests. Where the (ii) If so, will disclosure of the infor- Corporation reasonably believes that a mation be likely to contribute to pub- requester or a group of requesters act- lic understanding of the Corporation’s ing together is attempting to divide a operations and activities? request into a series of requests for the (iii) If so, would such a contribution purpose of avoiding fees, the Corpora- be significant? tion may aggregate those requests and (iv) Does the requester have a com- charge accordingly. The Corporation mercial interest that would be may presume that multiple requests of furthered by disclosure of the informa- this type made within a 30-day period tion? have been made in order to avoid fees. (v) If so, is the magnitude of the iden- Where requests are separated by a tified commercial interest of the re- longer period, the Corporation will ag- quester sufficiently large, in compari- gregate them only where there exists a son with the public interest in disclo- solid basis for determining that aggre- sure, that disclosure is primarily in the gation is warranted under the cir- commercial interest of the requester? cumstances involved. Multiple requests (2) In applying the criteria in para- involving unrelated matters will not be graph (k)(1) of this section, the Cor- aggregated. poration will weigh the requester’s (i) Making payment. Payment of fees commercial interest against any public shall be forwarded to the FOIA Officer interest in disclosure. Where there is a by check or money order payable to public interest in disclosure, and that ‘‘Corporation for National and Commu- interest can fairly be regarded as being nity Service’’. A receipt for any fees of greater magnitude than the request- paid will be provided upon written re- er’s commercial interest, a fee waiver quest. or reduction may be granted. (j) Fee processing. No fee shall be (3) When a fee waiver application has charged if the administrative costs of been included in a request for records, collection and processing of such fees the request shall not be considered offi- are equal to or do not exceed the cially received until a determination is amount of the fee. made regarding the fee waiver applica- (k) Waiver or reduction of fees. A re- tion. Such determination shall be made quester may, in the original request, or within five working days from the date subsequently, apply for a waiver or re- any such request is received in writing duction of document search, review and by the Corporation. reproduction fees. Such application shall be in writing, and shall set forth § 2507.9 What records will be denied in detail the reason(s) a fee waiver or disclosure under this part? reduction should be granted. The Since the policy of the Corporation is amount of any reduction requested to make the maximum amount of in- shall be specified in the request. Upon formation available to the public con- receipt of such a request, the FOIA Of- sistent with its other responsibilities, ficer will determine whether a fee written requests for a Corporation waiver or reduction should be granted. record made under the provisions of (1) A waiver or reduction of fees shall the FOIA may be denied when: be granted only if release of the re- (a) The record is subject to one or quested information to the requester is more of the exemptions of the FOIA. in the public interest because it is like- (b) The record has not been described ly to contribute significantly to public clearly enough to enable the Corpora- understanding of the operations or ac- tion staff to locate it within a reason- tivities of the Corporation, and it is able amount of effort by an employee not primarily in the commercial inter- familiar with the files. est of the requester. The Corporation (c) The requestor has failed to com- shall consider the following factors in ply with the procedural requirements,
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including the agreement to pay any re- in arriving at policy determinations quired fee. and decisions. (d) For other reasons as required by (f) Personnel, medical and similar files. law, rule, regulation or policy. Included in this category are personnel and medical information files of staff, § 2507.10 What records are specifically individual national service applicants exempt from disclosure? and participants, lists of names and Any reasonably segregable portion of home addresses, and other files or ma- a record shall be provided to any per- terial containing private or personal son requesting such record after dele- information, the public disclosure of tion of portions which are exempt which would amount to a clearly un- under this section. The following cat- warranted invasion of the privacy of egories are examples of records main- any person to whom the information tained by the Corporation which, under pertains. the provision of 5 U.S.C. 552(b), are ex- (g) Investigatory files. Included in this empted from disclosure: category are files compiled for the en- forcement of all laws, or prepared in (a) Records required to be withheld connection with government litigation under criteria established by an Executive and adjudicative proceedings, provided Order in the interest of national defense however, that such records shall be and policy and which are in fact properly made available to the extent that their classified pursuant to any such Executive production will not: Order. Included in this category are (1) Interfere with enforcement pro- records required by Executive Order ceedings; No. 12958 (3 CFR, 1995 Comp., p. 333), as (2) Deprive a person of a right to a amended, to be classified in the inter- fair trial or an impartial adjudication; est of national defense or foreign pol- (3) Constitute an unwarranted inva- icy. sion of personal privacy; (b) Records related solely to internal (4) Disclose the identity of a con- personnel rules and practices. Included in fidential source, and in the case of a this category are internal rules and record compiled by a criminal law en- regulations relating to personnel man- forcement authority in the course of a agement operations which cannot be criminal investigation, or by an agency disclosed to the public without sub- conducting a lawful security intel- stantial prejudice to the effective per- ligence investigation, confidential in- formance of significant functions of formation furnished by confidential the Corporation. source; (c) Records specifically exempted (5) Disclose investigative techniques from disclosure by statute. and procedures; or (d) Information of a commercial or fi- (6) Endanger the life or physical safe- nancial nature including trade secrets ty of law enforcement personnel. given in confidence. Included in this cat- egory are records containing commer- § 2507.11 What are the procedures for cial or financial information obtained the release of commercial business from any person and customarily re- information? garded as privileged and confidential (a) Notification of business submitter. by the person from whom they were ob- The Corporation shall promptly notify tained. a business submitter of any request for (e) Interagency or intra-agency memo- Corporation records containing busi- randa or letters which would not be avail- ness information. The notice shall ei- able by law to a party other than a party ther specifically describe the nature of in litigation with the Corporation. In- the business information requested or cluded in this category are memo- provide copies of the records, or por- randa, letters, inter-agency and intra- tions thereof containing the business agency communications and internal information. drafts, opinions and interpretations (b) Business submitter reply. The Cor- prepared by staff or consultants and poration shall afford a business sub- records meant to be used as part of de- mitter 10 working days to object to dis- liberations by staff, or ordinarily used closure, and to provide the Corporation
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with a written statement specifying (e) Notice of suit for release. Whenever the grounds and arguments why the in- a requester brings suit to compel dis- formation should be withheld under closure of business information, the Exemption (b)(4) of the Act. Corporation shall promptly notify the (c) Considering and balancing respec- business submitter. tive interests. (1) The Corporation shall carefully consider and balance the § 2507.12 Authority. business submitter’s objections and The Corporation receives authority specific grounds for nondisclosure to change its governing regulations against such factors as: from the National and Community (i) The general custom or usage in Service Act of 1990, as amended (42 the occupation or business to which U.S.C. 12501 et seq.). the information relates that it be held confidential; and APPENDIX A TO PART 2507—FREEDOM OF (ii) The number and situation of the INFORMATION ACT REQUEST LETTER individuals who have access to such in- (SAMPLE) formation; and Freedom of Information Act Officer llll (iii) The type and degree of risk of fi- Name of Agency lllllllllllllll nancial injury to be expected if disclo- Address of Agency lllllllllllll sure occurs; and City, State, Zip Code llllllllllll (iv) The length of time such informa- Re: Freedom of Information Act Request. tion should be regarded as retaining Dearllll: This is a request under the the characteristics noted in paragraphs Freedom of Information Act. (c)(1) (i) through (iii) of this section in I request that a copy of the following docu- determining whether to release the re- ments [or documents containing the fol- quested business information. lowing information] be provided to me: (2)(i) Whenever the Corporation de- [identify the documents or information as cides to disclose business information specifically as possible]. over the objection of a business sub- [Sample requester descriptions] mitter, the Corporation shall forward —A representative of the news media affili- to the business submitter a written no- ated with the llll newspaper (magazine, tice of such decision, which shall in- television station, etc.) and this request is clude: made as part of news gathering and not for (A) The name, and title or position, commercial use. of the person responsible for denying —Affiliated with an educational or non- the submitter’s objection; commercial scientific institution, and this request is not for commercial use. (B) A statement of the reasons why —An individual seeking information for the business submitter’s objection was personal use and not for commercial use. not sustained; —Affiliated with a private corporation and (C) A description of the business in- am seeking information for use in the com- formation to be disclosed; and pany’s business. (D) A specific disclosure date. [Optional] I am willing to pay fees for this llll (ii) The notice of intent to disclose request up to a maximum of $ . If you estimate that the fees will exceed this limit, business information shall be mailed please inform me first. by the Corporation not less than six [Optional] I request a waiver of all fees for working days prior to the date upon this request. Disclosure of the requested in- which disclosure will occur, with a formation to me is in the public interest be- copy of such notice to the requester. cause it is likely to contribute significantly (d) When notice to business submitter is to public understanding of the operations or not required. The notice to business activities of government and is not primarily submitter shall not apply if: in my commercial interest. [Include a spe- cific explanation.] (1) The Corporation determines that In order to help you determine my status the information shall not be disclosed; to assess fees, you should know that I am (2) The information has previously (insert a suitable description of the requester been published or otherwise lawfully and the purpose of the request). been made available to the public; or Thank you for your consideration of this (3) Disclosure of the information is request. required by law (other than 5 U.S.C. Sincerely, 552). Name llllllllllllllllllll
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Address lllllllllllllllllll 2508.7 To whom does the Corporation pro- City, State, Zip Code llllllllllll vide reports to regarding changes in its Telephone Number [Optional] llllllll system of records? 2508.8 Who is responsible for establishing APPENDIX B TO PART 2507—FREEDOM OF the Corporation’s rules of conduct for INFORMATION ACT APPEAL FOR RE- Privacy Act compliance? LEASE OF INFORMATION (SAMPLE) 2508.9 What officials are responsible for the security, management and control of Appeal Officer llllllllllllllll Corporation record keeping systems? Name of Agency lllllllllllllll 2508.10 Who has the responsibility for main- Address of Agency lllllllllllll taining adequate technical, physical, and City, State, Zip Code llllllllllll security safeguards to prevent unauthor- Re: Freedom of Information Act Appeal. ized disclosure or destruction of manual Dearllll: This is an appeal under the and automatic record systems? Freedom of Information Act. 2508.11 How shall offices maintaining a sys- On (date), I requested documents under the tem of records be accountable for those Freedom of Information Act. My request was records to prevent unauthorized disclo- assigned the following identification number sure of information? llll. On (date), I received a response to 2508.12 What are the contents of the sys- my request in a letter signed by (name of of- tems of records that are to be main- ficial). I appeal the denial of my request. tained by the Corporation? [Optional] The documents that were with- 2508.13 What are the procedures for acquir- held must be disclosed under the FOIA be- ing access to Corporation records by an cause * * *. individual about whom a record is main- [Optional] Respond for waiver of fees. I ap- tained? peal the decision to deny my request for a 2508.14 What are the identification require- waiver of fees. I believe that I am entitled to ments for individuals who request access a waiver of fees. Disclosure of the documents to records? I requested is in the public interest because 2508.15 What are the procedures for request- the information is likely to contribute sig- ing inspection of, amendment or correc- nificantly to public understanding of the op- tion to, or appeal of an individual’s eration or activities of government and is records maintained by the Corporation not primarily in my commercial interest. other than that individual’s official per- (Provide details) sonnel file? [Optional] I appeal the decision to require 2508.16 What are the procedures for filing an me to pay review costs for this request. I am appeal for refusal to amend or correct not seeking the documents for a commercial records? use. (Provide details) 2508.17 When shall fees be charged and at (Optional] I appeal the decision to require what rate? me to pay search charges for this request. I 2508.18 What are the penalties for obtaining am a reporter seeking information as part of a record under false pretenses? news gathering and not for commercial use. 2508.19 What Privacy Act exemptions or Thank you for your consideration of this control of systems of records are exempt appeal. from disclosure? Sincerely, 2508.20 What are the restrictions regarding Name llllllllllllllllllll the release of mailing lists? Address lllllllllllllllllll City, State, Zip Code llllllllllll AUTHORITY: 5 U.S.C. 552a; 42 U.S.C. 12501 et Telephone Number [Optional] llllllll seq.; 42 U.S.C. 4950 et seq. SOURCE: 64 FR 19294, Apr. 20, 1999, unless PART 2508—IMPLEMENTATION OF otherwise noted. THE PRIVACY ACT OF 1974 § 2508.1 Definitions.
Sec. (a) Amend means to make a correc- 2508.1 Definitions. tion to, or expunge any portion of, a 2508.2 What is the purpose of this part? record about an individual which that 2508.3 What is the Corporation’s Privacy individual believes is not accurate, rel- Act policy? evant, timely, or complete. 2508.4 When can Corporation records be dis- (b) Appeal Officer means the indi- closed? vidual delegated the responsibility to 2508.5 When does the Corporation publish its notice of its system of records? act on all appeals filed under the Pri- 2508.6 When will the Corporation publish a vacy Act. notice for new routine uses of informa- (c) Chief Executive Officer means the tion in its system of records? Head of the Corporation.
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(d) Corporation means the Corpora- part are those described in aforesaid tion for National and Community Serv- act and maintained by the Corporation ice. and/or any component thereof. (e) Individual means any citizen of the United States or an alien lawfully § 2508.3 What is the Corporation’s Pri- admitted for permanent residence. vacy Act policy? (f) Maintain means to collect, use, It is the policy of the Corporation to store, disseminate or any combination protect, preserve, and defend the right of these recordkeeping functions; exer- of privacy of any individual about cise of control over and therefore, re- whom the Corporation maintains per- sponsibility and accountability for, sonal information in any system of systems of records. records and to provide appropriate and (g) Personnel record means any infor- complete access to such records includ- mation about an individual that is ing adequate opportunity to correct maintained in a system of records by any errors in said records. Further, it the Corporation that is needed for per- is the policy of the Corporation to sonnel management or processes such maintain its records in such a manner as staffing, employment development, that the information contained therein retirement, grievances, and appeals. is, and remains material and relevant (h) Privacy Act Officer means the indi- to the purposes for which it is received vidual delegated the authority to allow in order to maintain its records with access to, the release of, or the with- fairness to the individuals who are the holding of records pursuant to an offi- subjects of such records. cial Privacy Act request. The Privacy Act Officer is further delegated the au- § 2508.4 When can Corporation records thority to make the initial determina- be disclosed? tion on all requests to amend records. (a) (1) The Corporation will not dis- (i) Record means any document or close any record that is contained in other information about an individual its system of records by any means of maintained by the agency whether col- communication to any person, or to lected or grouped, and including, but another agency, except pursuant to a not limited to, information regarding written request by, or with the prior education, financial transactions, med- written consent of the individual to ical history, criminal or employment whom the record pertains, unless dis- history, or any other personal informa- closure of the record would be: tion that contains the name or other (i) To employees of the Corporation personal identification number, sym- who maintain the record and who have bol, etc. assigned to such individual. a need for the record in the perform- (j) Routine use means, with respect to ance of their official duties; the disclosure of a record, the use of (ii) When required under the provi- such record for a purpose which is com- sions of the Freedom of Information patible with the purpose for which it Act (5 U.S.C. 552); was collected. (iii) For routine uses as appropriately (k) System of records means a group of published in the annual notice of the any records under the maintenance and FEDERAL REGISTER; control of the Corporation from which (iv) To the Bureau of the Census for information is retrieved by use of the purposes of planning or carrying out a name of an individual or by some per- census or survey or related activity sonal identifier of the individual. pursuant to the provisions of title 13; (v) To a recipient who has provided § 2508.2 What is the purpose of this the Corporation with advance adequate part? written assurance that the record will The purpose of this part is to set be used solely as a statistical research forth the basic policies of the Corpora- or reporting record, and the record is tion governing the maintenance of its to be transferred in a form that is not system of records which contains per- individually identifiable; sonal information concerning its em- (vi) To the National Archives and ployees as defined in the Privacy Act (5 Records Administration of the United U.S.C. 552a). Records included in this States as a record which has sufficient
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historical or other value to warrant its pose of the release to perform a survey, continued preservation by the United audit, or other review of the Corpora- States Government, or for evaluation tion’s procedures and operations; and by the Archivist of the United States (xiii) To a consumer reporting agency or the designee of the Archivist to de- in accordance with section 3711(f) of termine whether the record has such title 31. value; (vii) To another agency or to an in- § 2508.5 When does the Corporation strumentality of any governmental ju- publish its notice of its system of records? risdiction within or under the control of the United States for civil or crimi- The Corporation shall publish annu- nal law enforcement activity if the ac- ally a notice of its system of records tivity is authorized by law, and if the maintained by it as defined herein in head of the agency or instrumentality the format prescribed by the General has made a written request to the Cor- Services Administration in the FED- poration for such records specifying ERAL REGISTER; provided, however, the particular portion desired and the that such publication shall not be law enforcement activity for which the made for those systems of records record is sought. Such a record may maintained by other agencies while in also be disclosed by the Corporation to the temporary custody of the Corpora- the law enforcement agency on its own tion. initiative in situations in which crimi- § 2508.6 When will the Corporation nal conduct is suspected provided that publish a notice for new routine such disclosure has been established as uses of information in its system of a routine use or in situations in which records? the misconduct is directly related to At least 30 days prior to publication the purpose for which the record is of information under the preceding sec- maintained; tion, the Corporation shall publish in (viii) To a person pursuant to a show- the FEDERAL REGISTER a notice of its ing of compelling circumstances affect- intention to establish any new routine ing the health or safety of any indi- use of any system of records main- vidual if, upon such disclosure, notifi- tained by it with an opportunity for cation is transmitted to the last known public comments on such use. Such no- address of such individual; tice shall contain the following: (ix) To either House of Congress, or, (a) The name of the system of records to the extent of matter within its juris- for which the routine use is to be es- diction, any committee or sub- tablished. committee thereof, any joint com- (b) The authority for the system. mittee of Congress or subcommittee of (c) The purpose for which the record any such joint committee; is to be maintained. (x) To the Comptroller General or (d) The proposed routine use(s). any of his or her authorized representa- (e) The purpose of the routine use(s). tives, in the course of the performance (f) The categories of recipients of of official duties in the General Ac- such use. In the event of any request counting Office; for an addition to the routine uses of (xi) Pursuant to an order of a court the systems which the Corporation of competent jurisdiction served upon maintains, such request may be sent to the Corporation pursuant to 45 CFR the following office: Corporation for 1201.3, and provided that if any such National and Community Service, Di- record is disclosed under such compul- rector, Administration and Manage- sory legal process and subsequently ment Services, Room 6100, 1201 New made public by the court which issued York Avenue, NW, Washington, DC it, the Corporation must make a rea- 20525. sonable effort to notify the individual to whom the record pertains of such § 2508.7 To whom does the Corpora- disclosure; tion provide reports regarding (xii) To a contractor, expert, or con- changes in its system of records? sultant of the Corporation (or an office The Corporation shall provide to the within the Corporation) when the pur- Committee on Government Operations
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of the House of Representatives, the tainers whenever not in use or in the Committee on Governmental Affairs of direct control of authorized personnel. the Senate, and the Office of Manage- ment and Budget, advance notice of § 2508.10 Who has the responsibility any proposal to establish or alter any for maintaining adequate technical, system of records as defined herein. physical, and security safeguards to prevent unauthorized disclosure or This report will be submitted in ac- destruction of manual and auto- cordance with guidelines provided by matic record systems? the Office of Management and Budget. The Chief Executive Officer has the § 2508.8 Who is responsible for estab- responsibility of maintaining adequate lishing the Corporation’s rules of technical, physical, and security safe- conduct for Privacy Act compli- guards to prevent unauthorized disclo- ance? sure or destruction of manual and (a) The Chief Executive Officer shall automatic record systems. These secu- ensure that all persons involved in the rity safeguards shall apply to all sys- design, development, operation or tems in which identifiable personal maintenance of any system of records data are processed or maintained, in- as defined herein are informed of all re- cluding all reports and outputs from quirements necessary to protect the such systems that contain identifiable privacy of individuals who are the sub- personal information. Such safeguards ject of such records. All employees must be sufficient to prevent negligent, shall be informed of all implications of accidental, or unintentional disclosure, the Act in this area including the civil modification or destruction of any per- remedies provided under 5 U.S.C. sonal records or data, and must fur- 552a(g)(1) and the fact that the Cor- thermore minimize, to the extent prac- poration may be subject to civil rem- ticable, the risk that skilled techni- edies for failure to comply with the cians or knowledgeable persons could provisions of the Privacy Act and this improperly obtain access to modify or regulation. destroy such records or data and shall (b) The Chief Executive Officer shall further insure against such casual also ensure that all personnel having entry by unskilled persons without of- access to records receive adequate ficial reasons for access to such records training in the protection of the secu- or data. rity of personal records, and that ade- (a) Manual systems. (1) Records con- quate and proper storage is provided tained in a system of records as defined for all such records with sufficient se- herein may be used, held or stored only curity to assure the privacy of such where facilities are adequate to pre- records. vent unauthorized access by persons within or outside the Corporation. § 2508.9 What officials are responsible (2) All records, when not under the for the security, management and personal control of the employees au- control of Corporation record keep- thorized to use the records, must be ing systems? stored in a locked metal filing cabinet. (a) The Director of Administration Some systems of records are not of and Management Services shall have such confidential nature that their dis- overall control and supervision of the closure would constitute a harm to an security of all systems of records and individual who is the subject of such shall be responsible for monitoring the record. However, records in this cat- security standards set forth in this reg- egory shall also be maintained in ulation. locked metal filing cabinets or main- (b) A designated official (System tained in a secured room with a lock- Manager) shall be named who shall ing door. have management responsibility for (3) Access to and use of a system of each record system maintained by the records shall be permitted only to per- Corporation and who shall be respon- sons whose duties require such access sible for providing protection and ac- within the Corporation, for routine countability for such records at all uses as defined in § 2508.4 as to any times and for insuring that such given system, or for such other uses as records are secured in appropriate con- may be provided herein.
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(4) Other than for access within the of identifiable personal data and auto- Corporation to persons needing such mated systems shall be adequately records in the performance of their of- trained in the security and privacy of ficial duties or routine uses as defined personal data. in § 2508.4, or such other uses as pro- (4) The disposal and disposition of vided herein, access to records within a identifiable personal data and auto- system of records shall be permitted mated systems shall be done by shred- only to the individual to whom the ding, burning or in the case of tapes or record pertains or upon his or her writ- discs, degaussing, in accordance with ten request to the Director, Adminis- any regulations now or hereafter pro- tration and Management Services. posed by the General Services Adminis- (5) Access to areas where a system of tration or other appropriate authority. records is stored will be limited to those persons whose duties require § 2508.11 How shall offices maintain- work in such areas. There shall be an ing a system of records be account- accounting of the removal of any able for those records to prevent records from such storage areas uti- unauthorized disclosure of informa- lizing a written log, as directed by the tion? Director, Administration and Manage- (a) Each office maintaining a system ment Services. The written log shall be of records shall account for all records maintained at all times. within such system by maintaining a (6) The Corporation shall ensure that written log in the form prescribed by all persons whose duties require access the Director, Administration and Man- to and use of records contained in a agement Services, containing the fol- system of records are adequately lowing information: trained to protect the security and pri- (1) The date, nature, and purpose of vacy of such records. each disclosure of a record to any per- (7) The disposal and destruction of son or to another agency. Disclosures records within a system of records made to employees of the Corporation shall be in accordance with rules pro- in the normal course of their duties, or mulgated by the General Services Ad- pursuant to the provisions of the Free- ministration. dom of Information Act, need not be (b) Automated systems. (1) Identifiable accounted for. personal information may be processed, (2) Such accounting shall contain the stored or maintained by automated name and address of the person or data systems only where facilities or agency to whom the disclosure was conditions are adequate to prevent un- made. authorized access to such systems in any form. Whenever such data, whether (3) The accounting shall be main- contained in punch cards, magnetic tained in accordance with a system of tapes or discs, are not under the per- records approved by the Director, Ad- sonal control of an authorized person, ministration and Management Serv- such information must be stored in a ices, as sufficient for the purpose but in locked or secured room, or in such any event sufficient to permit the con- other facility having greater safe- struction of a listing of all disclosures guards than those provided for herein. at appropriate periodic intervals. (2) Access to and use of identifiable (4) The accounting shall reference personal data associated with auto- any justification or basis upon which mated data systems shall be limited to any release was made including any those persons whose duties require written documentation required when such access. Proper control of personal records are released for statistical or data in any form associated with auto- law enforcement purposes under the mated data systems shall be main- provisions of subsection (b) of the Pri- tained at all times, including mainte- vacy Act of 1974 (5 U.S.C. 552a). nance of accountability records show- (5) For the purpose of this part, the ing disposition of input and output doc- system of accounting for disclosures is uments. not a system of records under the defi- (3) All persons whose duties require nitions hereof, and need not be main- access to processing and maintenance tained within a system of records.
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(6) Any subject individual may re- and completeness as is reasonably nec- quest access to an accounting of disclo- essary to assure fairness to the indi- sures of a record. The subject indi- vidual in the making of any determina- vidual shall make a request for access tion about such individual, provided, to an accounting in accordance with however, that the Corporation shall § 2508.13. An individual will be granted not be required to update or keep cur- access to an accounting of the disclo- rent retired records. sures of a record in accordance with (e) Before disseminating any record the procedures of this subpart which about any individual to any person govern access to the related record. Ac- other than an employee in the Corpora- cess to an accounting of a disclosure of tion, unless the dissemination is made a record made under § 2508.13 may be pursuant to the provisions of the Free- granted at the discretion of the Direc- dom of Information Act (5 U.S.C. 552), tor, Administration and Management the Corporation shall make reasonable Services. efforts to ensure that such records are, or were at the time they were col- § 2508.12 What are the contents of the lected, accurate, complete, timely and systems of record that are to be relevant for Corporation purposes. maintained by the Corporation? (f) Under no circumstances shall the (a) The Corporation shall maintain Corporation maintain any record about all records that are used in making de- any individual with respect to or de- terminations about any individual with scribing how such individual exercises such accuracy, relevance, timeliness, rights guaranteed by the First Amend- and completeness as is reasonably nec- ment of the Constitution of the United essary to assure fairness to the indi- States, unless expressly authorized by vidual in the determination; statute or by the individual about (b) In situations in which the infor- whom the record is maintained, or un- mation may result in adverse deter- less pertinent to and within the scope minations about such individual’s of an authorized law enforcement ac- rights, benefits and privileges under tivity. any Federal program, all information (g) In the event any record is dis- placed in a system of records shall, to closed as a result of the order of a the greatest extent practicable, be col- court of appropriate jurisdiction, the lected from the individual to whom the Corporation shall make reasonable ef- record pertains. forts to notify the individual whose (c) Each form or other document that record was so disclosed after the proc- an individual is expected to complete ess becomes a matter of public record. in order to provide information for any system of records shall have appended § 2508.13 What are the procedures for thereto, or in the body of the docu- acquiring access to Corporation ment: records by an individual about (1) An indication of the authority au- whom a record is maintained? thorizing the solicitation of the infor- (a) Any request for access to records mation and whether the provision of from any individual about whom a the information is mandatory or vol- record is maintained will be addressed untary. to the Corporation for National and (2) The purpose or purposes for which Community Service, Office of the Gen- the information is intended to be used. eral Counsel, Attn: Privacy Act Officer, (3) Routine uses which may be made Room 8200, 1201 New York Avenue, NW, of the information and published pur- Washington, DC 20525, or delivered in suant to § 2508.6. person during regular business hours, (4) The effect on the individual, if whereupon access to his or her record, any, of not providing all or part of the or to any information contained there- required or requested information. in, if determined to be releasable, shall (d) Records maintained in any sys- be provided. tem of records used by the Corporation (b) If the request is made in person, to make any determination about any such individual may, upon his or her individual shall be maintained with request, be accompanied by a person of such accuracy, relevancy, timeliness, his or her choosing to review the
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record and shall be provided an oppor- Such individual may also be required tunity to have a copy made of any to sign a statement under oath as to record about such individual. his or her identity, acknowledging that (c) A record may be disclosed to a he or she is aware of the penalties for representative chosen by the individual improper disclosure under the provi- as to whom a record is maintained sions of the Privacy Act. upon the proper written consent of (b) In the event that disclosure is re- such individual. quested by mail, the Corporation may (d) A request made in person will be request such information as may be promptly complied with if the records necessary to reasonably ensure that sought are in the immediate custody of the individual making such request is the Corporation. Mailed requests or properly identified. In certain cases, personal requests for documents in the Corporation may require that a storage or otherwise not immediately available, will be acknowledged within mail request be notarized with an indi- 10 working days, and the information cation that the notary received an ac- requested will be promptly provided knowledgment of identity from the in- thereafter. dividual making such request. (e) With regard to any request for (c) In the event an individual is un- disclosure of a record, the following able to provide suitable documentation procedures shall apply: or identification, the Corporation may (1) Medical or psychological records require a signed notarized statement shall be disclosed to an individual un- asserting the identity of the individual less, in the judgment of the Corpora- and stipulating that the individual un- tion, access to such records might have derstands that knowingly or willfully an adverse effect upon such individual. seeking or obtaining access to records When such determination has been about another person under false pre- made, the Corporation may require tenses is punishable by a fine of up to that the information be disclosed only $5,000. to a physician chosen by the requesting (d) In the event a requestor wishes to individual. Such physician shall have be accompanied by another person full authority to disclose all or any while reviewing his or her records, the portion of such record to the request- Corporation may require a written ing individual in the exercise of his or statement authorizing discussion of his her professional judgment. or her records in the presence of the ac- (2) Test material and copies of cer- companying representative or other tificates or other lists of eligibles or any other listing, the disclosure of persons. which would violate the privacy of any § 2508.15 What are the procedures for other individual, or be otherwise ex- requesting inspection of, amend- empted by the provisions of the Pri- ment or correction to, or appeal of vacy Act, shall be removed from the an individual’s records maintained record before disclosure to any indi- by the Corporation other than that vidual to whom the record pertains. individual’s official personnel file? § 2508.14 What are the identification (a) A request for inspection of any requirements for individuals who record shall be made to the Director, request access to records? Administration and Management Serv- The Corporation shall require reason- ices. Such request may be made by able identification of all individuals mail or in person provided, however, who request access to records to ensure that requests made in person may be that records are disclosed to the proper required to be made upon a form pro- person. vided by the Director of Administra- (a) In the event an individual re- tion and Management Services who quests disclosure in person, such indi- shall keep a current list of all systems vidual shall be required to show an of records maintained by the Corpora- identification card such as a drivers li- tion and published in accordance with cense, etc., containing a photo and a the provisions of this regulation. How- sample signature of such individual. ever, the request need not be in writing
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if the individual makes his or her re- essary to accomplish the Corporation’s quest in person. The requesting indi- function for which the record was pro- vidual may request that the Corpora- vided or is maintained. In either case, tion compile all records pertaining to the individual will be informed in writ- such individual at any named Service ing of the amendment, correction, or Center/State Office, AmeriCorps*NCCC deletion and, if accounting was made of Campus, or at Corporation Head- prior disclosures of the record, all pre- quarters in Washington, DC, for the in- vious recipients of the record will be dividual’s inspection and/or copying. In informed of the corrective action the event an individual makes such re- taken. quest for a compilation of all records (4) If the Privacy Act Officer does not pertaining to him or her in various lo- agree that the record should be amend- cations, appropriate time for such com- ed or corrected, the individual will be pilation shall be provided as may be informed in writing of the refusal to necessary to promptly comply with amend or correct the record. He or she such requests. will also be informed that he or she (b) Any such requests should contain, may appeal the refusal to amend or at a minimum, identifying information correct his or her record in accordance needed to locate any given record and a with § 2508.17. brief description of the item or items (5) Requests to amend or correct a of information required in the event record governed by the regulation of the individual wishes to see less than another government agency will be for- all records maintained about him or warded to such government agency for her. processing and the individual will be (1) In the event an individual, after informed in writing of the referral. examination of his or her record, de- (c) In the event an individual dis- sires to request an amendment or cor- agrees with the Privacy Act Officer’s rection of such records, the request initial determination, he or she may must be submitted in writing and ad- appeal such determination to the Ap- dressed to the Corporation for National peal Officer in accordance with and Community Service, Office of the § 2508.17. Such request for review must General Counsel, Attn: Privacy Act Of- be made within 30 days after receipt by ficer, Room 8200, 1201 New York Ave- the requestor of the initial refusal to nue, NW, Washington, DC 20525. In his amend. or her written request, the individual shall specify: § 2508.16 What are the procedures for (i) The system of records from which filing an appeal for refusal to the record is retrieved; amend or correct records? (ii) The particular record that he or (a) In the event an individual desires she is seeking to amend or correct; to appeal any refusal to correct or (iii) Whether he or she is seeking an amend records, he or she may do so by addition to or a deletion or substi- addressing, in writing, such appeal to tution of the record; and, the Corporation for National and Com- (iv) His or her reasons for requesting munity Service, Office of the Chief Op- amendment or correction of the record. erating Officer, Attn: Appeal Officer, (2) A request for amendment or cor- 1201 New York Avenue NW, Wash- rection of a record will be acknowl- ington, DC 20525. Although there is no edged within 10 working days of its re- time limit for such appeals, the Cor- ceipt unless the request can be proc- poration shall be under no obligation essed and the individual informed of to maintain copies of original requests the Privacy Act Officer’s decision on or responses thereto beyond 180 days the request within that 10 day period. from the date of the original request. (3) If the Privacy Act Officer agrees (b) An appeal will be completed with- that the record is not accurate, timely, in 30 working days from its receipt by or complete, based on a preponderance the Appeal Officer; except that, the ap- of the evidence, the record will be cor- peal authority may, for good cause, ex- rected or amended. The record will be tend this period for an additional 30 deleted without regard to its accuracy, days. Should the appeal period be ex- if the record is not relevant or nec- tended, the individual appealing the
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original refusal will be informed in § 2508.17 When shall fees be charged writing of the extension and the cir- and at what rate? cumstances of the delay. The individ- (a) No fees shall be charged for search ual’s request for access to or to amend time or for any other time expended by or correct the record, the Privacy Act the Corporation to review or produce a Officer’s refusal to amend or correct record except where an individual re- the record, and any other pertinent quests that a copy be made of the material relating to the appeal will be record to which he or she is granted ac- reviewed. No hearing will be held. cess. Where a copy of the record must (c) If the Appeal Officer determines be made in order to provide access to that the record that is the subject of the record (e.g., computer printout the appeal should be amended or cor- where no screen reading is available), rected, the record will be amended or the copy will be made available to the individual without cost. corrected and the individual will be in- (b) The applicable fee schedule is as formed in writing of the amendment or follows: correction. Where an accounting was (1) Each copy of each page, up to made of prior disclosures of the record, 81⁄2″×14″, made by photocopy or similar all previous recipients of the record process is $0.10 per page. will be informed of the corrective ac- (2) Each copy of each microform tion taken. frame printed on paper is $0.25. (d) If the appeal is denied, the subject (3) Each aperture card is $0.25. individual will be informed in writing: (4) Each 105-mm fiche is $0.25. (1) Of the denial and reasons for the (5) Each 100′ foot role of 35-mm denial; microfilm is $7.00. (2) That he or she has a right to seek (6) Each 100′ foot role of 16-mm judicial review of the denial; and microfilm is $6.00. (3) That he or she may submit to the (7) Each page of computer printout without regard to the number of car- Appeal Officer a concise statement of bon copies concurrently printed is disagreement to be associated with the $0.20. disputed record and disclosed whenever (8) Copying records not susceptible to the record is disclosed. photocopying (e.g., punch cards or (e) Whenever an individual submits a magnetic tapes), at actual cost to be statement of disagreement to the Ap- determined on a case-by-case basis. peal Officer in accordance with para- (9) Other copying forms (e.g., typing graph (d)(3) of this section, the record or printing) will be charged at direct will be annotated to indicate that it is costs, including personnel and equip- disputed. In any subsequent disclosure, ment costs. a copy of the subject individual’s state- (c) All copying fees shall be paid by ment of disagreement will be disclosed the individual before the copying will with the record. If the appeal authority be undertaken. Payments shall be deems it appropriate, a concise state- made by check or money order payable ment of the Appeal Officer’s reasons for to the ‘‘Corporation for National and denying the individual’s appeal may Community Service,’’ and provided to the Privacy Act Officer processing the also be disclosed with the record. While request. the individual will have access to this (d) A copying fee shall not be charged statement of reasons, such statement or collected, or alternatively, it may will not be subject to correction or be reduced, when it is determined by amendment. Where an accounting was the Privacy Act Officer, based on a pe- made of prior disclosures of the record, tition, that the petitioning individual all previous recipients of the record is indigent and that the Corporation’s will be provided a copy of the individ- resources permit a waiver of all or part ual’s statement of disagreement, as of the fee. An individual is deemed to well as the statement, if any, of the be indigent when he or she is without Appeal Officer’s reasons for denying income or lacks the resources suffi- the individual’s appeal. cient to pay the fees.
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(e) Special and additional services (H), and (I), and (f), and 45 CFR 2508.11, provided at the request of the indi- 2508.12, 2508.13, 2508.14, 2508.15, 2508.16, vidual, such as certification or authen- and 2508.17, insofar as the system con- tication, postal insurance and special tains investigatory materials compiled mailing arrangement costs, will be for law enforcement purposes. charged to the individual. (b) Exemptions to the General Coun- (f) A copying fee totaling $5.00 or less sel system of records. Pursuant to, and shall be waived, but the copying fees limited by 5 U.S.C. 552a(d)(5), the sys- for contemporaneous requests by the tem of records maintained by the Of- same individual shall be aggregated to fice of the General Counsel that con- determine the total fee. tains the Legal Office Litigation/Cor- respondence Files shall be exempted § 2508.18 What are the penalties for ob- from the provisions of 5 U.S.C. taining a record under false pre- 552a(d)(5), and 45 CFR 2508.4, insofar as tenses? the system contains information com- The Privacy Act provides, in perti- piled in reasonable anticipation of a nent part that: civil action or proceeding. (a) Any person who knowingly and willfully requests to obtain any record § 2508.20 What are the restrictions re- concerning an individual from the Cor- garding the release of mailing lists? poration under false pretenses shall be An individual’s name and address guilty of a misdemeanor and fined not may not be sold or rented by the Cor- more than $5,000 (5 U.S.C. 552a(I)(3)). poration unless such action is specifi- (b) A person who falsely or fraudu- cally authorized by law. This section lently attempts to obtain records does not require the withholding of under the Privacy Act also may be sub- names and addresses otherwise per- ject to prosecution under such other mitted to be made public. criminal statutes as 18 U.S.C. 494, 495 and 1001. PART 2510—OVERALL PURPOSES § 2508.19 What Privacy Act exemptions AND DEFINITIONS or control of systems of records are exempt from disclosure? Sec. (a) Certain systems of records that 2510.10 What are the purposes of the pro- are maintained by the Corporation are grams and activities of the Corporation exempted from provisions of the Pri- for National and Community Service? vacy Act in accordance with exemp- 2510.20 Definitions. tions (j) and (k) of 5 U.S.C. 552a. AUTHORITY: 42 U.S.C. 12501 et seq. (1) Exemption of Inspector General system of records. Pursuant to, and § 2510.10 What are the purposes of the limited by 5 U.S.C. 552a(j)(2), the sys- programs and activities of the Cor- tem of records maintained by the Of- poration for National and Commu- fice of the Inspector General that con- nity Service? tains the Investigative Files shall be The National and Community Serv- exempted from the provisions of 5 ice Trust Act of 1993 established the U.S.C. 552a, except subsections (b), (c) Corporation for National and Commu- (1) and (2), (e)(4) (A) through (F), nity Service (the Corporation). The (e)(6)(7), (9), (10), and (11), and (I), and Corporation’s mission is to engage 45 CFR 2508.11, 2508.12, 2508.13, 2508.14, Americans of all ages and backgrounds 2508.15, 2508.16, and 2508.17, insofar as in community-based service. This serv- the system contains information per- ice will address the Nations edu- taining to criminal law enforcement cational, public safety, human, and en- investigations. vironmental needs to achieve direct (2) Pursuant to, and limited by 5 and demonstrable results. In doing so, U.S.C. 552a(k)(2), the system of records the Corporation will foster civic re- maintained by the Office of the Inspec- sponsibility, strengthen the ties that tor General that contains the Inves- bind us together as a people, and pro- tigative Files shall be exempted from 5 vide educational opportunity for those U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), who make a substantial commitment
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to service. The Corporation will under- independent evaluations and internal take activities and provide assistance evaluations of a program or project). to States and other eligible entities to (iii) Costs for general liability insur- support national and community serv- ance that protects the organization(s) ice programs and to achieve other pur- responsible for operating a program or poses consistent with its mission. project, other than insurance costs solely attributable to a program or [59 FR 13783, Mar. 23, 1994] project. § 2510.20 Definitions. Adult Volunteer. (1) The term adult volunteer means an individual, such as The following definitions apply to an older adult, an individual with dis- terms used in 45 CFR parts 2510 ability, a parent, or an employee of a through 2550: business of public or private nonprofit Act. The term Act means the National organization, who— and Community Service Act of 1990, as (i) Works without financial remu- amended (42 U.S.C. 12501 et seq.). neration in an educational institution Administrative costs. The term admin- to assist students of out-of-school istrative costs means general or central- youth; and ized expenses of overall administration (2) Is beyond the age of compulsory of an organization that receives assist- school attendance in the State in ance under the Act and does not in- which the educational institution is lo- clude program costs. cated. (1) For organizations that have an es- AmeriCorps. The term AmeriCorps tablished indirect cost rate for Federal means the combination of all awards, administrative costs mean AmeriCorps programs and participants. those costs that are included in the or- AmeriCorps educational award. The ganization’s indirect cost rate. Such term AmeriCorps educational award costs are generally identified with the means a national service educational organization’s overall operation and award described in section 147 of the are further described in Office of Man- Act. agement and Budget Circulars A–21 AmeriCorps participant. The term (Cost Principles for Educational Insti- AmeriCorps participant means any indi- tutions), A–87 (Cost Principles for vidual who is serving in— State, Local and Indian Tribal Govern- (1) An AmeriCorps program; ments), and A–122 (Cost Principles for (2) An approved AmeriCorps position; Nonprofit Organizations) that provide or guidance on indirect cost to Federal (3) Both. agencies. Copies of Office of Manage- AmeriCorps program. The term ment and Budget Circulars are avail- AmeriCorps program means— able from the Executive Office of the (1) Any program that receives ap- President, 725 17th Street, NW., room proved AmeriCorps positions; 2200, New Executive Office Building, (2) Any program that receives Cor- Washington, D.C. 20503. They may also poration funds under section 121 of the be accessed on-line at: http:// Act; or www.whitehouse.gov/WH/EOP/OMB/ (3) Both. grants/index.html. Approved AmeriCorps position. The (2) For organizations that do not term approved AmeriCorps position have an established indirect cost rate means an AmeriCorps position for for Federal awards, administrative which the Corporation has approved costs include: the provision of an AmeriCorps edu- (i) Costs for financial, accounting, cational award as one of the benefits to auditing, contracting, or general legal be provided for successful service in services except in unusual cases when the position. they are specifically approved in writ- Carry out. The term carry out, when ing by the Corporation as program used in connection with an AmeriCorps costs. program described in section 122 of the (ii) Costs for internal evaluation, in- Act, means the planning, establish- cluding overall organizational manage- ment, operation, expansion, or replica- ment improvement costs (except for tion of the program.
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Chief Executive Officer. The term Chief safety, human, or environmental serv- Executive Officer, except when used to ice by school-age youth in two or more refer to the chief executive officer of a States; and State, means the Chief Executive Offi- (ii) Was in existence at least one year cer of the Corporation appointed under before the date on which the organiza- section 193 of the Act. tion submitted the application. Community-based agency. The term Higher Education partnerships. The community-based agency means a pri- term higher education partnership vate nonprofit organization (including means one or more public or private a church or other religious entity) nonprofit organizations, or public that— agencies, including States, and one or (1) Is representative of a community more institutions of higher education or a significant segment of a commu- that have entered into a written agree- nity; and ment specifying the responsibilities of (2) Is engaged in meeting edu- each partner. cational, public safety, human, or envi- Indian. The term Indian means a per- ronmental community needs. son who is a member of an Indian tribe, Corporation. The term Corporation or is a ‘‘Native’’, as defined in section means the Corporation for National 3(b) of the Alaska Native Claims Set- and Community Service established tlement Act (43 U.S.C. 1602(b)). under section 191 of the Act. Indian lands. The term Indian lands Economically disadvantaged. The term means any real property owned by an economically disadvantaged, with re- Indian tribe, any real property held in spect to an individual, has the same trust by the United States for an In- meaning as such term as defined in the dian or Indian tribe, and any real prop- Job Training Partnership Act (29 erty held by an Indian or Indian tribe U.S.C. 1503(8)). that is subject to restrictions on alien- Elementary school. The term elemen- ation imposed by the United States. tary school has the same meaning given Indian tribe. The term Indian tribe the term in section 1471(8) of the Ele- means— mentary and Secondary Education Act (1) An Indian tribe, band, nation, or of 1965 (20 U.S.C. 2891(8)). other organized group or community Empowerment zone. The term em- that is recognized as eligible for the powerment zone means an area des- special programs and services provided ignated as an empowerment zone by by the United States under Federal law the Secretary of the Department of to Indians because of their status as In- Housing and Urban Development or the dians, including— Secretary of the Department of Agri- (i) Any Native village, as defined in culture. section 3(c) of the Alaska Native Grantmaking entity. (1) For school- Claims Settlement Act (43 U.S.C. based programs, the term grantmaking 1602(c)), whether organized tradition- entity means a public or private non- ally or pursuant to the Act of June 18, profit organization experienced in serv- 1934 (commonly known as the ‘‘Indian ice-learning that— Reorganization Act’’, 25 U.S.C. 461 et (i) Submits an application to make seq.); and grants for school-based service-learn- (ii) Any Regional Corporation or Vil- ing programs in two or more States; lage Corporation, as defined in sub- and section (g) or (j), respectively, of sec- (ii) Was in existence at least one year tion 3 of the Alaska Native Claims Set- before the date on which the organiza- tlement Act (43 U.S.C. 1602 (g) or (j)); tion submitted the application. and (2) For community-based programs, (2) Any tribal organization con- the term grantmaking entity means a trolled, sanctioned, or chartered by an qualified organization that— entity described in paragraph (1) of this (i) Submits an application to make definition. grants to qualified organizations to im- Individual with a disability. Except as plement, operate, expand, or replicate provided in section 175(a) of the Act, community-based service programs the term individual with a disability has that provide for educational, public the meaning given the term in section
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7(8)(B) of the Rehabilitation Act of 1973 fying the partnership’s goals and ac- (29 U.S.C. 706(8)(B)), which includes in- tivities as well as the responsibilities, dividuals with cognitive and other goals, and activities of each partner. mental impairments, as well as indi- Partnership program. The term part- viduals with physical impairments, nership program means a program who meet the criteria in that defini- through which an adult volunteer, a tion. public or private nonprofit organiza- Infrastructure-building activities. The tion, an institution of higher edu- term infrastructure-building activities re- cation, or a business assists a local fers to activities that increase the ca- educational agency. pacity of organizations, programs and Program. The term program, unless individuals to provide high quality the context otherwise requires, and ex- service to communities. cept when used as part of the term aca- Institution of higher education. The demic program, means a program de- term institution of higher education has scribed in section 111(a) (other than a the same meaning given the term in program referred to in paragraph (3)(B) section 1201(a) of the Higher Education of that section), 117A(a), 119(b)(1), or Act of 1965 (20 U.S.C. 1141(a)). 122(a) of the Act, or in paragraph (1) or Local educational agency (LEA). The (2) of section 152(b) of the Act, or an ac- term local educational agency has the tivity that could be funded under sec- same meaning given the term in sec- tions 198, 198C, or 198D of the Act. tion 1471(12) of the Elementary and Program costs. The term program costs Secondary Education Act of 1965 (20 means expenses directly related to a U.S.C. 2891(12)). program or project, including their op- Local partnership. The term local part- erations and objectives. Program costs nership means a partnership, as defined include, but are not limited to: in § 2510.20 of this chapter, that meets (1) Costs attributable to participants, the eligibility requirements to apply including: living allowances, insurance for subgrants under § 2516.110 or payments, and expenses for training § 2517.110 of this chapter. and travel. National nonprofit. The term national (2) Costs (including salary, benefits, nonprofit means any nonprofit organi- training, travel) attributable to staff zation whose mission, membership, ac- who recruit, train, place, support, co- tivities, or constituencies are national ordinate, or supervise participants, or in scope. who develop materials used in such ac- National service laws. The term na- tivities. tional service laws means the Act and (3) Costs for independent evaluations the Domestic Volunteer Service Act of and internal evaluations to the extent 1973 (42 U.S.C. 4950 et seq.). that the evaluations cover only the Objective. The term objective means a funded program or project. desired accomplishment of a program. (4) Costs, excluding those already Out-of-school youth. The term out-of- covered in an organization’s indirect school youth means an individual who— cost rate, attributable to staff that (1) Has not attained the age of 27; work in a direct program or project (2) Has not completed college or its support, operational, or oversight ca- equivalent; and pacity, including, but not limited to: (3) Is not enrolled in an elementary support staff whose functions directly or secondary school or institution of support program or project activities; higher education. staff who coordinate and facilitate sin- Participant. (1) The term participant gle or multi-site program and project means an individual enrolled in a pro- activities; and staff who review, dis- gram that receives assistance under seminate and implement Corporation the Act. guidance and policies directly relating (2) A participant may not be consid- to a program or project. ered to be an employee of the program (5) Space, facility, and communica- in which the participant is enrolled. tions costs for program or project oper- Partnership. The term partnership ations and other costs that primarily means two or more entities that have support program or project operations, entered into a written agreement speci- excluding those costs that are already
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covered by an organization’s indirect Service-learning. The term service- cost rate. learning means a method under which (6) Other allowable costs, excluding students or participants learn and de- those costs that are already covered by velop through active participation in an organization’s indirect cost rate, thoughtfully organized service that— specifically approved by the Corpora- (1) Is conducted in and meets the tion as directly attributable to a pro- needs of a community; gram or project. (2) Is coordinated with an elementary Program sponsor. The term program school, secondary school, institution of sponsor means an entity responsible for higher education, or community serv- recruiting, selecting, and training par- ice program, and with the community; ticipants, providing them benefits and support services, engaging them in reg- (3) Helps foster civic responsibility; ular group activities, and placing them (4) Is integrated into and enhances in projects. the academic curriculum of the stu- Project. The term project means an ac- dents or the educational components of tivity, or a set of activities, carried out the community service program in through a program that receives assist- which the participants are enrolled; ance under the Act, that results in a and specific identifiable service or improve- (5) Includes structured time for the ment that otherwise would not be done students and participants to reflect on with existing funds, and that does not the service experience. duplicate the routine services or func- Service-learning coordinator. The term tions of the employer to whom partici- service-learning coordinator means an in- pants are assigned. dividual trained in service-learning Project sponsor. The term project spon- who identifies community partners for sor means an organization, or other en- LEAs; assists in designing and imple- tity, that has been selected to provide menting local partnerships service- a placement for a participant. learning programs; provides technical Qualified individual with a disability. assistance and information to, and fa- The term qualified individual with a dis- cilitates the training of, teachers; and ability has the meaning given the term in section 101(8) of the Americans with provides other services for an LEA. Disabilities Act of 1990 (42 U.S.C. State. The term State means each of 12111(8)). the several States, the District of Co- Qualified organization. The term lumbia, the Commonwealth of Puerto qualified organization means a public or Rico, the United States Virgin Islands, private nonprofit organization, other Guam, American Samoa, and the Com- than a grantmaking entity, that— monwealth of the Northern Mariana Is- (1) Has experience in working with lands. The term also includes Palau, school-age youth; and until the Compact of Free Association (2) Was in existence at least one year is ratified. before the date on which the organiza- State Commission. The term State Com- tion submitted an application for a mission means a State Commission on service-learning program. National and Community Service School-age youth. The term school-age maintained by a State pursuant to sec- youth means— tion 178 of the Act. Except when used (1) Individuals between the ages of 5 in section 178, the term includes an al- and 17, inclusive; and ternative administrative entity for a (2) Children with disabilities, as de- State approved by the Corporation fined in section 602(a)(1) of the Individ- under that section to act in lieu of a uals with Disabilities Education Act State Commission. (20 U.S.C. 1401(a)(1)), who receive serv- ices under part B of that Act. State educational agency (SEA). The Secondary school. The term secondary term State educational agency has the school has the same meaning given the same meaning given that term in sec- term in section 1471(21) of the Elemen- tion 1471(23) of the Elementary and tary and Secondary Education Act of Secondary Education Act of 1965 (20 1965 (20 U.S.C. 2891(21)). U.S.C. 2891(23)).
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Student. The term student means an infrastructure and to specify strategies individual who is enrolled in an ele- for achieving the stated goals; mentary or secondary school or insti- (c) To inform the Corporation of the tution of higher education on a full- relevant historical background of the time or part-time basis. State’s infrastructure for supporting Subdivision of a State. The term sub- national and community service and division of a State means an govern- other volunteer opportunities, as well mental unit within a State other than as the current status of such infra- a unit with Statewide responsibilities. structure; U.S. Territory. The term U.S. Territory (d) To assist the Corporation in mak- means the Virgin Islands, Guam, Amer- ing decisions on applications to receive ican Samoa, the Commonwealth of the formula and competitive funding under Northern Mariana Islands, and Palau, § 2521.30 of this chapter and to assist until the Compact of Free Association the Corporation in assessing a State’s with Palau is ratified. application for renewal funding for [59 FR 13783, Mar. 23, 1994, as amended at 63 State administrative funds as provided FR 18137, Apr. 14, 1998] in part 2550 of this chapter; and (e) To serve as a working document PART 2513—STATE PLAN: PURPOSE, that forms the basis of on-going dia- APPLICATION REQUIREMENTS logue between the State and the Cor- AND SELECTION CRITERIA poration and which is subject to modi- fications as circumstances require.
Sec. § 2513.30 What information must a 2513.10 Who must submit a State Plan? State Plan contain? 2513.20 What are the purposes of a State Plan? The State Plan must include the fol- 2513.30 What information must a State Plan lowing information: (a) An overview of contain? a State’s experience in coordinating 2513.40 How will the State Plans be evalu- and supporting the network of service ated? programs within the State that address AUTHORITY: 42 U.S.C. 12501 et seq. educational, public safety, human, and SOURCE: 59 FR 13785, Mar. 23, 1994, unless environmental needs, including, where otherwise noted. appropriate, a description of specific service programs. This overview should § 2513.10 Who must submit a State encompass programs that have oper- Plan? ated independently of and/or without The fifty States, the District of Co- financial support from the State; lumbia, and Puerto Rico, through a (b) A description of the State’s prior- Corporation-approved State Commis- ities and vision for strengthening the sion, Alternative Administrative Enti- service program infrastructure, includ- ty, or Transitional Entity must submit ing how programs proposed for Cor- a comprehensive national and commu- poration funding fit into this vision. nity service plan (‘‘State Plan’’) in The plan should also describe how order to apply to the Corporation for State priorities relate to any national support under parts 2515 through 2524 of priorities established by the Corpora- this chapter. tion; (c) A description of the goals estab- § 2513.20 What are the purposes of a lished to advance the State’s plan, in- State Plan? cluding the strategies for achieving The purposes of the State Plan are: such goals. With respect to technical (a) To set forth the States plan for pro- assistance activities (if any) and pro- moting national and community serv- grams proposed to be funded by the ice and strengthening its service infra- Corporation, the plan should describe structure, including how Corporation- how such activities and programs will funded programs fit into the plan; be coordinated with other service pro- (b) To establish specific priorities grams within the State. The plan and goals that advance the State’s plan should also describe the manner and for strengthening its service program extent to which the proposed programs
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will build on existing programs, includ- (c) Such other criteria as the Cor- ing Corporation programs such as both poration deems necessary. the K–12 and Higher Education compo- nents of the Learn and Serve America PART 2515—SERVICE-LEARNING program, and programs funded under PROGRAM PURPOSES the Domestic Volunteer Service Act and other programs; (d) A description of the extent to AUTHORITY: 42 U.S.C. 12501 et seq. which the State entity has coordinated its efforts with the State educational § 2515.10 What are the service-learning agency (SEA) in the SEA’s application programs of the Corporation for for school-based service learning funds; National and Community Service? (e) A description of how the State (a) There are three service-learning reached out to a broad cross-section of programs: (1) School-based programs, individuals and organizations to obtain described in part 2516 of this chapter. their participation in the development (2) Community-based programs, de- of the State plan, including a discus- scribed in part 2517 of this chapter. sion of the types of organizations and (3) Higher education programs, de- individuals who were actually involved scribed in part 2519 of this chapter. in the process and the manner and ex- (b) Each program gives participants tent of their involvement; and the opportunity to learn and develop (f) Such other information as the their own capabilities through service- Corporation may reasonably require. learning, while addressing needs in the community. § 2513.40 How will the State Plans be evaluated? [59 FR 13786, Mar. 23, 1994] State plans will be evaluated on the basis of the following criteria: PART 2516—SCHOOL-BASED (a) The quality of the plan as evi- SERVICE-LEARNING PROGRAMS denced by: (1) The development and quality of realistic goals and objectives Subpart A—Eligibility To Apply for moving service ahead in the State; (2) The extent to which proposed Sec. strategies can reasonably be expected 2516.100 Who may apply for a direct grant to accomplish stated goals; from the Corporation? 2516.110 Who may apply for a subgrant from (3) The extent of input in the devel- a Corporation grantee? opment of the State plan from a broad cross-section of individuals and organi- Subpart B—Use of Grant Funds zations including community-based agencies; organizations with a dem- 2516.200 How may grant funds be used? onstrated record of providing edu- cational, public safety, human, or envi- Subpart C—Eligibility To Participate ronmental services; residents of the 2516.300 Who may participate in a school- State, including youth and other pro- based service-learning program? spective participants, State Education 2516.310 May private school students par- Agencies; traditional service organiza- ticipate? tions; and labor unions; 2516.320 Is a participant eligible to receive (b) The sustainability of the national an AmeriCorps educational award? service efforts outlined in the plan, as evidenced by the extent to which they Subpart D—Application Contents are supported by: (1) The State, through financial, in-kind, and bi-par- 2516.400 What must a State or Indian tribe include in an application for a grant? tisan political support, including the 2516.410 What must a grantmaking entity, existence of supportive legislation; and local partnership, or LEA include in an (2) Other support, including the fi- application for a grant? nancial, in-kind, and other support of 2516.420 What must an LEA, local partner- the private sector, foundations, and ship, or qualified organization include in other entities and individuals; and an application for a subgrant?
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Subpart E—Application Review except for the purpose of § 2516.600 (b), U.S. Territories. 2516.500 How does the Corporation review the merits of an application? (2) An Indian tribe. 2516.510 What happens if the Corporation re- (3) A grantmaking entity as defined jects a State’s application for an allot- in § 2515.20 of this chapter. ment grant? (4) For activities in a nonpartici- 2516.520 How does a State, Indian tribe, or pating State, a local educational agen- grantmaking entity review the merits of cy (LEA) as defined in § 2510.20 of this an application? chapter or a local partnership as de- Subpart F—Distribution of Funds scribed in § 2516.110. (b) The types of grants for which 2516.600 How are funds for school-based each entity is eligible are described in service-learning programs distributed? § 2516.200.
Subpart G—Funding Requirements § 2516.110 Who may apply for a 2516.700 Are matching funds required? subgrant from a Corporation grant- 2516.710 Are there limits on the use of ee? funds? Entities that may apply for a 2516.720 What is the length of each type of subgrant from a State, Indian tribe, or grant? grantmaking entity are: 2516.730 May an applicant submit more than one application to the Corporation for (a) An LEA, for a grant from a State the same project at the same time? for planning school-based service- learning programs. Subpart H—Evaluation Requirements (b) A local partnership, for a grant from a State or a grantmaking entity 2516.800 What are the purposes of an evalua- to implement, operate, or expand a tion? 2516.810 What types of evaluations are school-based service learning program. grantees and subgrantees required to per- (1) The local partnership must in- form? clude an LEA and one or more commu- 2516.820 What types of internal evaluation nity partners. The local partnership activities are required of programs? may include a private for-profit busi- 2516.830 What types of activities are re- ness or private elementary or sec- quired of Corporation grantees to evalu- ondary school. ate the effectiveness of their sub- grantees? (2) The community partners must in- 2516.840 By what standards will the Corpora- clude a public or private nonprofit or- tion evaluate individual Learn and Serve ganization that has demonstrated ex- America programs? pertise in the provision of services to 2516.850 What will the Corporation do to meet educational, public safety, evaluate the overall success of the serv- human, or environmental needs; was in ice-learning program? existence at least one year before the 2516.860 Will information on individual par- ticipants be kept confidential? date on which the organization sub- mitted an application under this part; AUTHORITY: 42 U.S.C. 12501 et seq. and will make projects available for SOURCE: 59 FR 13786, Mar. 23, 1994, unless participants, who must be students. otherwise noted. (c) A local partnership, for a grant from a State or a grantmaking entity Subpart A—Eligibility To Apply to implement, operate, or expand an adult volunteer program. The local § 2516.100 Who may apply for a direct partnership must include an LEA and grant from the Corporation? one or more public or private nonprofit (a) The following entities may apply organizations, other educational agen- for a direct grant from the Corpora- cies, or private for-profit businesses tion: that coordinate and operate projects (1) A State, through a State edu- for participants who must be students. cational agency (SEA) as defined in (d) A qualified organization, as de- § 2510.20 of this chapter. For the pur- fined in § 2515.20 of this chapter, for a pose of part, ‘‘State’’ means one of the grant from a State or Indian tribe for 50 States, the District of Columbia, the planning or building the capacity of Commonwealth of Puerto Rico, and, the State or Indian tribe.
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Subpart B—Use of Grant Funds to fund applications from those local partnerships for programs in that § 2516.200 How may grant funds be State. used? (3) Authorized activities include pay- Funds under a school based service ing the costs of the recruitment, train- learning grant may be used for the pur- ing, supervision, placement, salaries poses described in this section. and benefits of service learning coordi- (a) Planning and capacity-building for nators. States and Indian tribes. (1) A State or (4) A grantmaking entity may also Indian tribe may use funds to pay for use funds to provide technical assist- planning and building its capacity to ance and training to appropriate per- implement school-based service-learn- sons relating to its subgrants. ing programs. These entities may use (c) Planning programs. (1) A State funds either directly or through sub- may use funds to make subgrants to grants or contracts with qualified orga- LEAs for planning school-based serv- nizations. ice-learning programs. (2) Authorized activities include the (2) If a State does not submit an ap- following: (i) Providing training for plication that meets the requirements teachers, supervisors, personnel from for an allotment grant under § 2516.400, community-based agencies (particu- larly with regard to the utilization of the Corporation may use the allotment participants) and trainers, conducted to fund applications from LEAs for by qualified individuals or organiza- planning programs in that State. tions experienced in service-learning. (3) Authorized activities include pay- (ii) Developing service-learning cur- ing the costs of— ricula to be integrated into academic (i) The salaries and benefits of serv- programs, including the age-appro- ice-learning coordinators as defined in priate learning components for stu- § 2510.20 of this chapter; and dents to analyze and apply their serv- (ii) The recruitment, training, super- ice experiences. vision, and placement of service-learn- (iii) Forming local partnerships de- ing coordinators who may be partici- scribed in § 2516.110 to develop school- pants in an AmeriCorps program de- based service-learning programs in ac- scribed in parts 2520 through 2524 of cordance with this part. this chapter or who receive AmeriCorps (iv) Devising appropriate methods for educational awards. research and evaluation of the edu- (d) Adult volunteer programs. (1) A cational value of service-learning and State, Indian tribe, or grantmaking en- the effect of service-learning activities tity may use funds to make subgrants on communities. to local partnerships described in (v) Establishing effective outreach § 2516.110 (c) to implement, operate, or and dissemination of information to expand school-based programs involv- ensure the broadest possible involve- ing adult volunteers to utilize service- ment of community-based agencies learning to improve the education of with demonstrated effectiveness in students. working with school-age youth in their communities. (2) If a State does not submit an ap- (b) Implementing, operating, and ex- plication that meets the requirements panding school-based programs. (1) A for an allotment grant under § 2516.400, State, Indian Tribe, or grantmaking the Corporation may use the allotment entity may use funds to make sub- to fund applications from those local grants to local partnerships described partnerships for adult volunteer pro- in § 2516.110 (b) to implement, operate, grams in that State. or expand school-based service-learning (e) Planning by Indian tribes and U.S. programs. Territories. If the Corporation makes a (2) If a State does not submit an ap- grant to an Indian tribe or a U.S. Ter- plication that meets the requirements ritory to plan school-based service- for an allotment grant under § 2516.400, learning programs, the grantee may the Corporation may use the allotment use the funds for that purpose.
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Subpart C—Eligibility To positions are eligible for AmeriCorps Participate educational awards.
§ 2516.300 Who may participate in a Subpart D—Application Contents school-based service-learning pro- gram? § 2516.400 What must a State or Indian tribe include in an application for a Students who are enrolled in elemen- grant? tary or secondary schools on a full- time or part-time basis may partici- In order to apply for a grant from the pate in school-based programs. Corporation under this part, a State (SEA) or Indian tribe must submit the § 2516.310 May private school students following: (a) A three-year strategic participate? plan for promoting service-learning through programs under this part, or a (a) Yes. To the extent consistent revision of a previously approved three- with the number of students in the year strategic plan. The application of State or Indian tribe or in the school a SEA must include a description of district of the LEA involved who are how the SEA will coordinate its serv- enrolled in private nonprofit elemen- ice-learning plan with the State Plan tary or secondary schools, the State, under part 2513 of this chapter and with Indian tribe, or LEA must (after con- other federally-assisted activities. sultation with appropriate private (b) A proposal containing the specific school representatives) make provi- program, budget, and other informa- sion— tion specified by the Corporation in the (1) For the inclusion of services and grant application package. arrangements for the benefit of those (c) Assurances that the applicant students so as to allow for the equi- will— table participation of the students in (1) Keep such records and provide the programs under this part; and such information to the Corporation (2) For the training of the teachers of with respect to the programs as may be those students so as to allow for the required for fiscal audits and program equitable participation of those teach- evaluation; and ers in the programs under this part. (2) Comply with the nonduplication, (b) (1) If a State, Indian tribe, or LEA nondisplacement, and grievance proce- is prohibited by law from providing for dure requirements of part 2540 of this the participation of students or teach- chapter. ers from private nonprofit schools as required by paragraph (a) of this sec- § 2516.410 What must a grantmaking tion, or if the Corporation determines entity, local partnership, or LEA in- that a State, Indian tribe, or LEA sub- clude in an application for a grant? stantially fails or is unwilling to pro- In order to apply to the Corporation vide for their participation on an equi- for a grant, a grantmaking entity, table basis, the Corporation will waive local partnership, or LEA must submit those requirements and arrange for the the following: (a) A detailed descrip- provision of services to the students tion of the proposed program goals and and teachers. activities. The application of a (2) Waivers will be subject to the Cor- grantmaking entity must include— poration procedures that are consistent (1) A description of how the applicant with the consultation, withholding, no- will coordinate its activities with the tice, and judicial review requirements State Plan under part 2513 of this chap- of section 1017(b) (3) and (4) of the Ele- ter, including a description of plans to mentary and Secondary Education Act meet and consult with the State Com- of 1965 (20 U.S.C. 2727 (b)). mission, if possible, and to provide a copy of the program application to the § 2516.320 Is a participant eligible to State Commission and with other fed- receive an AmeriCorps educational erally-assisted activities; and award? (2) A description of how the program No. However, service-learning coordi- will be carried out in more than one nators who are approved AmeriCorps State.
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(b) The specific program, budget, and (ii) The program will meet commu- other information specified by the Cor- nity needs and involve individuals from poration in the grant application pack- diverse backgrounds (including eco- age. nomically disadvantaged youth) who (c) Assurances that the applicant will serve together to explore the root will— causes of community problems; (1) Keep such records and provide (iii) The principal leaders of the pro- such information to the Corporation gram will be well qualified for their re- with respect to the program as may be sponsibilities; required for fiscal audits and program (iv) The program has sound plans and evaluation; processes for training, technical assist- (2) Prior to the placement of a partic- ance, supervision, quality control, ipant, consult with the appropriate evaluation, administration, and other local labor organization, if any, rep- key activities; and resenting employees in the area who (v) The program will advance knowl- are engaged in the same or similar edge about how to do effective and in- work as that proposed to be carried out novative community service and serv- by the program, to prevent the dis- ice-learning and enhance the broader placement and protect the rights of elementary and secondary education those employees; field. (3) Develop an age-appropriate learn- (2) Replicability, as indicated by the ing component for participants in the extent to which the program will assist program that includes a chance for par- others in learning from experience and ticipants to analyze and apply their replicating the approach of the pro- service experiences; and gram. (4) Comply with the nonduplication, (3) Sustainability, as indicated by the nondisplacement, and grievance proce- extent to which— dure requirements of part 2540 of this (i) An SEA, Indian tribe or chapter. grantmaking entity applicant dem- (d) For a local partnership, an assur- onstrates the ability and willingness to ance that the LEA will serve as the fis- coordinate its activities with the State cal agent. Plan under part 2513 of this chapter and with other federally assisted activities; § 2516.420 What must an LEA, local (ii) The program will foster collabo- partnership, or qualified organiza- rative efforts among local educational tion include in an application for a agencies, local government agencies, subgrant? community based agencies, businesses, In order to apply for a subgrant from and State agencies; an SEA, Indian tribe, or grantmaking (iii) The program will enjoy strong, entity under this part, an applicant broad-based community support; and must include the information required (iv) There is evidence that financial by the Corporation grantee. resources will be available to continue the program after the expiration of the Subpart E—Application Review grant. (b) The Corporation also gives pri- § 2516.500 How does the Corporation ority to proposals that— review the merits of an application? (1) Involve participants in the design (a) In reviewing the merits of an ap- and operation of the program; plication submitted to the Corporation (2) Reflect the greatest need for as- under this part, the Corporation evalu- sistance, such as programs targeting ates the quality, innovation, low-income areas; replicability, and sustainability of the (3) Involve students from public and proposal on the basis of the following private schools serving together; criteria: (1) Quality, as indicated by (4) Involve students of different ages, the extent to which— races, genders, ethnicities, abilities (i) The program will provide produc- and disabilities, or economic back- tive meaningful, educational experi- grounds, serving together; ences that incorporate service-learning (5) Are integrated into the academic methods; program of the participants;
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(6) Best represent the potential of than three percent for grants to Indian service-learning as a vehicle for edu- tribes and U.S. Territories to be allot- cation reform and school-to-work tran- ted in accordance with their respective sition; needs. (7) Develop civic responsibility and (b) The Corporation will use the re- leadership skills and qualities in par- mainder of the funds appropriated as ticipants; follows: (1) Competitive Grants. From (8) Demonstrate the ability to 25 percent of the remainder, the Cor- achieve the goals of this part on the poration may make grants on a com- basis of the proposal’s quality, innova- petitive basis to States, Indian tribes, tion, replicability, and sustainability; or grantmaking entities. or (2) Allotments to States. (9) Address any other priority estab- (i) From 37.5 percent of the remain- lished by the Corporation for a par- der, the Corporation will allot to each ticular period. State an amount that bears the same (c) In reviewing applications sub- ratio to 37.5 percent of the remainder mitted by Indian tribes and U.S. Terri- as the number of school-age youth in tories, the Corporation— the State bears to the total number of (1) May decide to approve only plan- school-age youth of all States. ning of school-based service-learning (ii) From 37.5 percent of the remain- programs; and der, the Corporation will allot to each (2) Will set the amounts of grants in State an amount that bears the same accordance with the respective needs of ratio to 37.5 percent of the remainder applicants. as the allocation to the State for the previous fiscal year under Chapter 1 of § 2516.510 What happens if the Cor- Title I of the Elementary and Sec- poration rejects a State’s applica- ondary Education Act of 1965 (20 U.S.C. tion for an allotment grant? 2711 et seq.) bears to the allocations to If the Corporation rejects a State’s all States. application for an allotment grant (iii) Notwithstanding other provi- under § 2516.600(b)(2), the Corporation sions of paragraph (b)(2) of this section, will— no State will receive an allotment that (a) Promptly notify the State of the is less than the allotment the State re- reasons for the rejection; ceived for fiscal year 1993 from the (b) Provide the State with a reason- Commission on National and Commu- able opportunity to revise and resub- nity Service. If the amount of funds mit the application; made available in a fiscal year is insuf- (c) Provide technical assistance, if ficient to make those allotments, the necessary; and Corporation will make additional funds (d) Promptly reconsider the resub- available from the 25 percent described mitted application and make a deci- in paragraph (b)(1) of this section for sion. that fiscal year to make those allot- ments. § 2516.520 How does a State, Indian (3) For the purpose of paragraph (b) tribe, or grantmaking entity review of this section, ‘‘State’’ means one of the merits of an application? the 50 States, the District of Columbia, In reviewing the merits of an applica- and the Commonwealth of Puerto Rico. tion for a subgrant under this part, a (c) If a State or Indian tribe does not Corporation grantee must use the cri- submit an application that meets the teria and priorities in § 2516.500. requirements for approval under this part, the Corporation (after making Subpart F—Distribution of Funds any grants to local partnerships or LEAs for activities in nonparticipating § 2516.600 How are funds for school- States) may use its allotment for based service-learning programs States and Indian tribes with approved distributed? applications, as the Corporation deter- (a) Of the amounts appropriated to mines appropriate. carry out this part for any fiscal year, (d) Notwithstanding other provisions the Corporation will reserve not more of this section, if less than $20,000,000 is
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made available in any fiscal year to (i) Limit the amount or rate of indi- carry out this part, the Corporation rect costs that may be paid with Cor- will make all grants to States and In- poration funds under a grant or dian tribes on a competitive basis. subgrant to five percent of total Cor- poration funds expended, provided Subpart G—Funding Requirements that— (A) Organizations that have an estab- § 2516.700 Are matching funds re- lished indirect cost rate for Federal quired? awards will be limited to this method; (a) Yes. The Corporation share of the and cost of carrying out a program funded (B) Unreimbursed indirect costs may under this part may not exceed— be applied to meeting operational (1) Ninety percent of the total cost matching requirements under the Cor- for the first year for which the pro- poration’s award; gram receives assistance; (2) Eighty percent of the total cost (ii) Specify that a fixed rate of five for the second year; percent or less (not subject to sup- (3) Seventy percent of the total cost porting cost documentation) of total for the third year; and Corporation funds expended may be (4) Fifty percent of the total cost for used to pay for administrative costs, the fourth year and any subsequent provided that the fixed rate is in con- year. junction with an overall 15 percent ad- (b) In providing for the remaining ministrative cost factor to be used for share of the cost of carrying out a pro- organizations that do not have estab- gram, each recipient of assistance must lished indirect cost rates; or provide for that share through a pay- (iii) Utilize such other method that ment in cash or in kind, fairly evalu- the Corporation determines in writing ated, including facilities, equipment, is consistent with OMB guidance and or services, and may provide for that other applicable requirements, helps share through State sources, local minimize the burden on grantees or sources, or Federal sources (other than subgrantees, and is beneficial to grant- funds made available under the na- ees or subgrantees and the Federal tional service laws). Government. (c) However, the Corporation may waive the requirements of paragraph (b) (1) An SEA or Indian tribe must (b) of this section in whole or in part spend between ten and 15 percent of the with respect to any program in any fis- grant to build capacity through train- cal year if the Corporation determines ing, technical assistance, curriculum that the waiver would be equitable due development, and coordination activi- to a lack of available financial re- ties. sources at the local level. (2) The Corporation may waive this requirement in order to permit an SEA § 2516.710 Are there limits on the use or a tribe to use between ten percent of funds? and 20 percent of the grant funds to Yes. The following limits apply to build capacity. To be eligible to receive funds available under this part: the waiver, the SEA or tribe must sub- (a) (1) Not more than five percent of mit an application to the Corporation. the grant funds provided under this (c) Funds made available under this part for any fiscal year may be used to part may not be used to pay any sti- pay for administrative costs, as defined pend, allowance, or other financial sup- in § 2510.20 of this chapter. port to any participant in a service- (2) The distribution of administrative learning program under this part ex- costs between the grant and any cept reimbursement for transportation, subgrant will be subject to the ap- meals, and other reasonable out-of- proval of the Corporation. pocket expenses directly related to (3) In applying the limitation on ad- participation in a program assisted ministrative costs the Corporation will under this part. approve one of the following methods in the award document: [63 FR 18137, Apr. 14, 1998]
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§ 2516.720 What is the length of each feedback and provide for quick correc- type of grant? tion of weakness. The Corporation en- (a) One year is the maximum length courages programs to use internal eval- of— uation methods, such as community (1) A planning grant under § 2516.200 advisory councils, participant advisory (a), (c) or (e); and councils, peer reviews, quality control (2) A grant to a local partnership for inspections, and service recipient and activities in a nonparticipating State participant surveys. under § 2516.200 (b)(2) and (d)(2). (b) Track progress toward pre-estab- (b) All other grants are for a period lished objectives. Objectives must be of up to three years, subject to satis- established by programs and approved factory performance and annual appro- by the Corporation. Programs must priations. submit to the Corporation (or the Cor- poration grantee as applicable) peri- § 2516.730 May an applicant submit odic performance reports. more than one application to the (c) Collect and submit to the Cor- Corporation for the same project at poration (through the Corporation the same time? grantee as applicable) the following No. The Corporation will reject an data: (1) The total number of partici- application for a project if an applica- pants in each program and basic demo- tion for funding or educational awards graphic characteristics of the partici- for the same project is already pending pants including sex, age, economic before the Corporation. background, education level, ethnic group, disability classification, and ge- ographic region. Subpart H—Evaluation (2) Other information as required by Requirements the Corporation. (d) Cooperate fully with all Corpora- § 2516.800 What are the purposes of an evaluation? tion evaluation activities. Every evaluation effort should serve § 2516.830 What types of activities are to improve program quality, examine required of Corporation grantees to benefits of service, or fulfill legislative evaluate the effectiveness of their requirements. subgrantees? A Corporation grantee that makes § 2516.810 What types of evaluations subgrants must do the following: (a) are grantees and subgrantees re- Ensure that subgrantees comply with quired to perform? the requirements of § 2516.840. All grantees and subgrantees are re- (b) Track program performance in quired to perform internal evaluations terms of progress toward pre-estab- which are ongoing efforts to assess per- lished objectives; ensure that correc- formance and improve quality. Grant- tive action is taken when necessary; ees and subgrantees may, but are not and submit to the Corporation periodic required to, arrange for independent performance reports. evaluations which are assessments of (c) Collect from programs and submit program effectiveness by individuals to the Corporation the descriptive in- who are not directly involved in the ad- formation required in § 2516.820(c)(1). ministration of the program. The cost (d) Cooperate fully with all Corpora- of independent evaluations is allow- tion evaluation activities. able. § 2516.840 By what standards will the § 2516.820 What types of internal eval- Corporation evaluate individual uation activities are required of Learn and Serve America pro- programs? grams? Programs are required to: (a) Con- The Corporation will evaluate pro- tinuously assess management effec- grams based on the following: (a) The tiveness, the quality of services pro- extent to which the program meets the vided, and the satisfaction of both par- objectives established and agreed to by ticipants and service recipients. Inter- the grantee and the Corporation before nal evaluations should seek frequent the grant award.
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(b) The extent to which the program PART 2517—COMMUNITY-BASED is cost-effective. SERVICE-LEARNING PROGRAMS (c) Other criteria as determined and published by the Corporation. Subpart A—Eligibility To Apply
§ 2516.850 What will the Corporation Sec. do to evaluate the overall success of the service-learning program? 2517.100 Who may apply for a direct grant from the Corporation? (a) The Corporation will conduct 2517.110 Who may apply for a subgrant from independent evaluations. These evalua- a Corporation grantee? tions will consider the opinions of par- ticipants and members of the commu- Subpart B—Use of Grant Funds nities where services are delivered. If appropriate, these evaluations will 2517.200 How may grant funds be used? compare participants with individuals who have not participated in service- Subpart C—Eligibility To Participate learning programs. These evaluations 2517.300 Who may participate in a commu- will— nity-based service-learning program? (1) Study the extent to which service- learning programs as a whole affect the Subpart D—Application Contents involved communities; (2) Determine the extent to which 2517.400 What must a State Commission or service-learning programs as a whole grantmaking entity include in an appli- increase academic learning of partici- cation for a grant? pants, enhance civic education, and 2517.410 What must a qualified organization foster continued community involve- include in an application for a grant or a subgrant? ment; and (3) Determine the effectiveness of dif- Subpart E—Application Review ferent program models. (b) The Corporation will also deter- 2517.500 How is an application reviewed? mine by June 30, 1995, whether out- comes of service-learning programs are Subpart F—Distribution of Funds defined and measured appropriately, and the implications of the results 2517.600 How are funds for community-based service-learning programs distributed? from such a study for authorized fund- ing levels. Subpart G—Funding Requirements
§ 2516.860 Will information on indi- 2517.700 Are matching funds required? vidual participants be kept con- 2517.710 Are there limits on the use of fidential? funds? (a) Yes. The Corporation will main- 2517.720 What is the length of a grant? tain the confidentiality of information 2517.730 May an applicant submit more than regarding individual participants that one application to the Corporation for is acquired for the purpose of the eval- the same project at the same time? uations described in § 2516.840. The Cor- poration will disclose individual partic- Subpart H—Evaluation Requirements ipant information only with the prior 2517.800 What are the evaluation require- written consent of the participant. ments for community-based programs? However, the Corporation may disclose aggregate participant information. AUTHORITY: 42 U.S.C. 12501 et seq. (b) Grantees and subgrantees under SOURCE: 59 FR 13790, Mar. 23, 1994, unless this part must comply with the provi- otherwise noted. sions of paragraph (a) of this section.
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Subpart A—Eligibility To Apply Subpart C—Eligibility To Participate § 2517.100 Who may apply for a direct grant from the Corporation? § 2517.300 Who may participate in a (a) The following entities may apply community-based service-learning for a direct grant from the Corpora- program? tion: (1) A State Commission estab- School-age youth as defined in lished under part 2550 of this chapter. § 2510.20 of this chapter may participate (2) A grantmaking entity as defined in a community-based program. in § 2510.20 of this chapter. (3) A qualified organization as de- Subpart D—Application Contents fined in § 2515.20 of this chapter. (b) The types of grants for which § 2517.400 What must a State Commis- each entity is eligible are described in sion or grantmaking entity include § 2517.200. in an application for a grant? § 2517.110 Who may apply for a (a) In order to apply for a grant from subgrant from a Corporation grant- the Corporation under this part, a ee? State Commission or a grantmaking Entities that may apply for a entity must submit the following: (1) A subgrant from a State Commission or three-year plan for promoting service- grantmaking entity are qualified orga- learning through programs under this nizations that have entered into a local part. The plan must describe the types partnership with one or more— of community-based program models (a) Local educational agencies proposed to be carried out during the (LEAs); first year. (b) Other qualified organizations; or (2) A proposal containing the specific (c) Both. program, budget, and other informa- tion specified by the Corporation in the Subpart B—Use of Grant Funds grant application package. (3) A description of how the applicant § 2517.200 How may grant funds be will coordinate its activities with the used? State Plan under part 2513 of this chap- Funds under a community-based ter and with other federally-assisted Learn and Serve grant may be used for activities, including a description of the purposes described in this section. plans to meet and consult with the (a) A State Commission or State Commission, if possible, and to grantmaking entity may use funds— provide a copy of the program applica- (1) To make subgrants to qualified tion to the State Commission. organizations described in § 2517.110 to (4) Assurances that the applicant implement, operate, expand, or rep- will— licate a community-based service pro- (i) Keep such records and provide gram that provides direct and demon- such information to the Corporation strable educational, public safety, with respect to the programs as may be human, or environmental service by required for fiscal audits and program participants, who must be school-age evaluation; youth; and (ii) Comply with the nonduplication, (2) To provide training and technical nondisplacement, and grievance proce- assistance to qualified organizations. dure requirements of part 2540 of this (b) (1) A qualified organization may chapter; and use funds under a direct grant or a (iii) Ensure that, prior to placing a subgrant to implement, operate, ex- participant in a program, the entity pand, or replicate a community-based carrying out the program will consult service program. with the appropriate local labor orga- (2) If a qualified organization re- nization, if any, representing employ- ceives a direct grant, its program must ees in the area in which the program be carried out at multiple sites or be will be carried out that are engaged in particularly innovative. the same or similar work as the work
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proposed to be carried out by the pro- (2) Such specific program, budget, gram, to prevent the displacement of and other information as the Commis- those employees. sion or entity reasonably requires. (b) In addition, a grantmaking entity must submit information dem- Subpart E—Application Review onstrating that the entity will make grants for a program— § 2517.500 How is an application re- (1) To carry out activities in two or viewed? more States, under circumstances in In reviewing an application for a which those activities can be carried grant or a subgrant, the Corporation, a out more efficiently through one pro- State Commission, or a grantmaking gram than through two or more pro- entity will apply the following criteria: grams; and (a) The quality of the program pro- (2) To carry out the same activities, posed. such as training activities or activities (b) The innovation of, and feasibility related to exchanging information on of replicating, the program. service experiences, through each of the projects assisted through the pro- (c) The sustainability of the program, gram. based on— (1) Strong and broad-based commu- § 2517.410 What must a qualified orga- nity support; nization include in an application (2) Multiple funding sources or pri- for a grant or a subgrant? vate funding; and (a) In order to apply to the Corpora- (3) Coordination with the State Plan tion for a direct grant, a qualified orga- under part 2513 of this chapter and nization must submit the following: (1) other federally-assisted activities. A plan describing the goals and activi- (d) The quality of the leadership of ties of the proposed program; the program, past performance of the (2) A proposal containing the specific program, and the extent to which the program, budget, and other informa- program builds on existing programs. tion specified by the Corporation in the (e) The applicant’s efforts— grant application package; and (1) To recruit participants from (3) Assurances that the applicant among residents of the communities in will— which projects would be conducted; (i) Keep such records and provide (2) To ensure that the projects are such information to the Corporation open to participants of different ages, with respect to the program as may be races, genders, ethnicities, abilities required for fiscal audits and program and disabilities, and economic back- evaluation; grounds; and (ii) Comply with the nonduplication, (3) To involve participants and com- nondisplacement, and grievance proce- munity residents in the design, leader- dure requirements of part 2540 of this ship, and operation of the program. chapter; and (f) The extent to which projects (iii) Prior to placing a participant in would be located in areas that are— the program, consult with the appro- (1) Empowerment zones, redevelop- priate local labor organization, if any, ment areas, or other areas with high representing employees in the area in concentrations of low-income people; which the program will be carried out who are engaged in the same or similar or work as the work proposed to be car- (2) Environmentally distressed. ried out by the program, to prevent the displacement of those employees. Subpart F—Distribution of Funds (b) In order to apply to a State Com- mission or a grantmaking entity for a § 2517.600 How are funds for commu- subgrant, a qualified organization must nity-based service-learning pro- submit the following: (1) A plan de- grams distributed? scribing the goals and activities of the All funds are distributed by the Cor- proposed program; and poration through competitive grants.
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Subpart G—Funding Requirements poration funds expended, provided that— § 2517.700 Are matching funds re- (A) Organizations that have an estab- quired? lished indirect cost rate for Federal (a) Yes. The Corporation share of the awards will be limited to this method; cost of carrying out a program funded and under this part may not exceed— (B) Unreimbursed indirect costs may be applied to meeting operational (1) Ninety percent of the total cost matching requirements under the Cor- for the first year for which the pro- poration’s award; gram receives assistance; (ii) Specify that a fixed rate of five (2) Eighty percent of the total cost percent or less (not subject to sup- for the second year; porting cost documentation) of total (3) Seventy percent of the total cost Corporation funds expended may be for the third year; and used to pay for administrative costs, (4) Fifty percent of the total cost for provided that the fixed rate is in con- the fourth year and any subsequent junction with an overall 15 percent ad- year. ministrative cost factor to be used for (b) In providing for the remaining organizations that do not have estab- share of the cost of carrying out a pro- lished indirect cost rates; or gram, each recipient of assistance must (iii) Utilize such other method that provide for that share through a pay- the Corporation determines in writing ment in cash or in kind, fairly evalu- is consistent with OMB guidance and ated, including facilities, equipment, other applicable requirements, helps or services, and may provide for that minimize the burden on grantees or share through State sources, local subgrantees, and is beneficial to grant- sources, or Federal sources (other than ees or subgrantees and the Federal funds made available under the na- Government. tional service laws). (b) (1) An SEA or Indian tribe must (c) However, the Corporation may spend between ten and 15 percent of the waive the requirements of paragraph grant to build capacity through train- (b) of this section in whole or in part ing, technical assistance, curriculum with respect to any program in any fis- development, and coordination activi- cal year if the Corporation determines ties. that the waiver would be equitable due (2) The Corporation may waive this to lack of available financial resources requirement in order to permit an SEA at the local level. or a tribe to use between ten percent and 20 percent of the grant funds to § 2517.710 Are there limits on the use build capacity. To be eligible to receive of funds? the waiver, the SEA or tribe must sub- Yes. The following limits apply to mit an application to the Corporation. funds available under this part: (c) Funds made available under this (a) (1) Not more than five percent of part may not be used to pay any sti- the grant funds provided under this pend, allowance, or other financial sup- part for any fiscal year may be used to port to any participant in a service- pay for administrative costs, as defined learning program under this part ex- in § 2510.20 of this chapter. cept reimbursement for transportation, (2) The distribution of administrative meals, and other reasonable out-of- costs between the grant and any pocket expenses directly related to subgrant will be subject to the ap- participation in a program assisted proval of the Corporation. under this part. (3) In applying the limitation on ad- [63 FR 18137, Apr. 14, 1998] ministrative costs the Corporation will approve one of the following methods § 2517.720 What is the length of a in the award document: grant? (i) Limit the amount or rate of indi- A grant under this part is for a period rect costs that may be paid with Cor- of up to three years, subject to satis- poration funds under a grant or factory performance and annual appro- subgrant to five percent of total Cor- priations.
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§ 2517.730 May an applicant submit (a) Assist entities carrying out State more than one application to the or local service-learning programs with Corporation for the same project at needs assessments and planning; the same time? (b) Conduct research and evaluations No. The Corporation will reject an concerning service-learning; application for a project if an applica- (c)(1) Provide leadership development tion for funding or educational awards and training to State and local service- for the same project is already pending learning program administrators, su- before the Corporation. pervisors, project sponsors, and partici- pants; and (2) Provide training to persons who Subpart H—Evaluation can provide the leadership development Requirements and training described in paragraph (c)(1) of this section; § 2517.800 What are the evaluation re- quirements for community-based (d) Facilitate communication among programs? entities carrying out service-learning programs and participants in such pro- The evaluation requirements for re- grams; cipients of grants and subgrants under (e) Provide information, curriculum part 2516 of this chapter, relating to materials, and technical assistance re- school-based service-learning pro- lating to planning and operation of grams, apply to recipients under this service-learning programs, to States part. and local entities eligible to receive fi- nancial assistance under this title; PART 2518—SERVICE-LEARNING (f) Provide information regarding CLEARINGHOUSE methods to make service-learning pro- grams accessible to individuals with Sec. disabilities; 2518.100 What is the purpose of a Service- (g)(1) Gather and disseminate infor- Learning Clearinghouse? mation on successful service-learning 2518.110 What are the functions of a Serv- programs, components of such success- ice-Learning Clearinghouse? ful programs, innovative youth skills AUTHORITY: 42 U.S.C. 12501 et seq. curricula related to service-learning, and service-learning projects; and § 2518.100 What is the purpose of a (2) Coordinate the activities of the Service-Learning Clearinghouse? Clearinghouse with appropriate enti- ties to avoid duplication of effort; The Corporation will provide finan- (h) Make recommendations to State cial assistance, from funds appro- and local entities on quality controls priated to carry out the activities list- to improve the quality of service-learn- ed under parts 2530 through 2533 of this ing programs; chapter, to public or private nonprofit (i) Assist organizations in recruiting, organizations that have extensive expe- screening, and placing service-learning rience with service-learning, including coordinators; and use of adult volunteers to foster serv- (j) Carry out such other activities as ice-learning, to establish a clearing- the Chief Executive Officer determines house, which will carry out activities, to be appropriate. either directly or by arrangement with another such organization, with re- [59 FR 13792, Mar. 23, 1994] spect to information about service- learning. PART 2519—HIGHER EDUCATION [59 FR 13792, Mar. 23, 1994] INNOVATIVE PROGRAMS FOR COMMUNITY SERVICE § 2518.110 What are the functions of a Service-Learning Clearinghouse? Subpart A—Purpose and Eligibility To Apply An organization that receives assist- Sec. ance from funds appropriated to carry 2519.100 What is the purpose of the Higher out the activities listed under parts Education programs? 2530 through 2533 of this chapter may— 2519.110 Who may apply for a grant?
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Subpart B—Use of Grant Funds § 2519.110 Who may apply for a grant? 2519.200 How may grant funds be used? The following entities may apply for a grant from the Corporation: (a) An Subpart C—Participant Eligibility and institution of higher education. Benefits (b) A consortium of institutions of higher education. 2519.300 Who may participate in a Higher (c) A higher education partnership, Education program? as defined in § 2510.20 of this chapter. 2519.310 Is a participant eligible to receive an AmeriCorps educational award? 2519.320 May a program provide a stipend to Subpart B—Use of Grant Funds a participant? § 2519.200 How may grant funds be Subpart D—Application Contents used? Funds under a higher education pro- 2519.400 What must an applicant include in gram grant may be used for the fol- an application for a grant? lowing activities: (a) Enabling an insti- Subpart E—Application Review tution of higher education, a higher education partnership or a consortium 2519.500 How does the Corporation review to create or expand an organized com- the merits of an application? munity service program that— (1) Engenders a sense of social re- Subpart F—Distribution of Funds sponsibility and commitment to the 2519.600 How are funds for Higher Education community in which the institution is programs distributed? located; and (2) Provides projects for the partici- Subpart G—Funding Requirements pants described in § 2519.300. (b) Supporting student-initiated and 2519.700 Are matching funds required? student-designed community service 2519.710 Are there limits on the use of projects. funds? (c) Strengthening the leadership and 2519.720 What is the length of a grant? instructional capacity of teachers at 2519.730 May an applicant submit more than the elementary, secondary, and post- one application to the Corporation for the same project at the same time? secondary levels with respect to serv- ice-learning by— Subpart H—Evaluation Requirements (1) Including service-learning as a key component of the preservice teach- 2519.800 What are the evaluation require- er education of the institution; and ments for Higher Education programs? (2) Encouraging the faculty of the in- AUTHORITY: 42 U.S.C. 12501 et seq. stitution to use service-learning meth- ods throughout the curriculum. SOURCE: 59 FR 13792, Mar. 23, 1994, unless (d) Facilitating the integration of otherwise noted. community service carried out under the grant into academic curricula, in- Subpart A—Purpose and Eligibility cluding integration of clinical pro- To Apply grams into the curriculum for students in professional schools, so that stu- § 2519.100 What is the purpose of the dents may obtain credit for their com- Higher Education programs? munity service projects. The purpose of the higher education (e) Supplementing the funds avail- innovative programs for community able to carry out work-study programs service is to expand participation in under part C of title IV of the Higher community service by supporting high- Education Act of 1965 (42 U.S.C. 2751 et quality, sustainable community serv- seq.) to support service-learning and ice programs carried out through insti- community service. tutions of higher education, acting as (f) Strengthening the service infra- civic institutions helping to meet the structure within institutions of higher educational, public safety, human, and education in the United States that environmental needs of the commu- supports service-learning and commu- nities in which the programs operate. nity service.
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(g) Providing for the training of but is not required to, provide a pro- teachers, prospective teachers, related rated living allowance to individuals education personnel, and community participating in approved AmeriCorps leaders in the skills necessary to de- positions on a part-time basis, con- velop, supervise, and organize service- sistent with the AmeriCorps program learning. requirements in § 2522.240 of this chap- ter. Subpart C—Participant Eligibility and Benefits Subpart D—Application Contents
§ 2519.300 Who may participate in a § 2519.400 What must an applicant in- Higher Education program? clude in an application for a grant? Students, faculty, administration In order to apply to the Corporation and staff of an institution, as well as for a grant, an applicant must submit residents of the community may par- the following: (a) A plan describing the ticipate. For the purpose of this part, goals and activities of the proposed the term ‘‘student’’ means an indi- program. vidual who is enrolled in an institution (b) The specific program, budget, and of higher education on a full-time or other information and assurances spec- part-time basis. ified by the Corporation in the grant § 2519.310 Is a participant eligible to application package. receive an AmeriCorps educational (c) Assurances that the applicant award? will— In general, no. However, certain posi- (1) Keep such records and provide tions in programs funded under this such information to the Corporation part may qualify as approved with respect to the program as may be AmeriCorps positions. The Corporation required for fiscal audits and program will establish eligibility requirements evaluation; for these positions as a part of the ap- (2) Comply with the nonduplication, plication package. nondisplacement, and grievance proce- dure requirements of part 2540 of this § 2519.320 May a program provide a chapter; stipend to a participant? (3) Prior to the placement of a partic- (a) A program may provide a stipend ipant in the program, consult with the for service activities for a participant appropriate local labor organization, if who is a student if the provision of sti- any, representing employees in the pends in reasonable in the context of a area who are engaged in the same or program’s design and objectives. similar work as the work proposed to (1) A program may not provide a sti- be carried out by the program, to pre- pend to a student who is receiving aca- vent the displacement and protect the demic credit for service activities un- rights of those employees; and less the service activities require a (4) Comply with any other assurances substantial time commitment beyond that the Corporation deems necessary. that expected for the credit earned. (2) A participant who is earning money for service activities under the Subpart E—Application Review work-study program described in § 2519.200(e) may not receive an addi- § 2519.500 How does the Corporation review an application? tional stipend from funds under this part. (a) The Corporation will review an (b) Consistent with the AmeriCorps application submitted under this part program requirements in § 2522.100 of on the basis of the quality, innovation, this chapter, a program with partici- replicability, and sustainability of the pants serving in approved full-time proposed program and such other cri- AmeriCorps positions must ensure the teria as the Corporation establishes in provision of a living allowance and, if an application package. necessary, health care and child care to (b) In addition, in reviewing an appli- those participants. A program may, cation submitted under this part, the
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Corporation will give a proposed pro- Subpart G—Funding Requirements gram increased priority for each char- acteristic described in paragraphs (b) § 2519.700 Are matching funds re- (1) through (7) of this section. Priority quired? programs— (a) Yes. The Corporation share of the (1) Demonstrate the commitment of cost of carrying out a program funded the institution of higher education, under this part may not exceed 50 per- other than by demonstrating the com- cent. mitment of its students, to supporting (b) In providing for the remaining the community service projects carried share of the cost of carrying out a pro- out under the program; gram, each recipient of assistance must (2) Specify how the institution will provide for that share through a pay- promote faculty, administration, and ment in cash or in kind, fairly evalu- staff participation in the community ated, including facilities, equipment, service projects; or services, and may provide for that (3) Specify the manner in which the share through State sources, local institution will provide service to the sources, of Federal sources (other than funds made available under the na- community through organized pro- tional service laws). grams, including, where appropriate, (c) However, the Corporation may clinical programs for students in pro- waive the requirements of paragraph fessional schools; (b) of this section in whole or in part (4) Describe any higher education with respect to any program in any fis- partnership that will participate in the cal year if the Corporation determines community service projects, such as a that the waiver would be equitable due higher education partnership com- to lack of available financial resources prised of the institution, a student or- at the local level. ganization, a community-based agency, a local government agency, or a non- § 2519.710 Are there limits on the use profit entity that serves or involves of funds? school-age youth or older adults; Yes. The following limits apply to (5) Demonstrate community involve- funds available under this part: ment in the development of the pro- (a) (1) Not more than five percent of posal; the grant funds provided under this (6) Specify that the institution will part for any fiscal year may be used to use funds under this part to strengthen pay for administrative costs, as defined the infrastructure in institutions of in § 2510.20 of this chapter. higher education; or (2) The distribution of administrative (7) With respect to projects involving costs between the grant and any delivery of service, specify projects subgrant will be subject to the ap- that involve leadership development of proval of the Corporation. school-age youth. (3) In applying the limitation on ad- (c) In addition, the Corporation may ministrative costs the Corporation will designate additional priorities in an approve one of the following methods application package that will be used in the award document: in selecting programs. (i) Limit the amount or rate of indi- rect costs that may be paid with Cor- poration funds under a grant or Subpart F—Distribution of Funds subgrant to five percent of total Cor- poration funds expended, provided § 2519.600 How are funds for Higher that— Education programs distributed? (A) Organizations that have an estab- All funds under this part are distrib- lished indirect cost rate for Federal uted by the Corporation through grants awards will be limited to this method; or by contract. and
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(B) Unreimbursed indirect costs may PART 2520—GENERAL PROVISIONS: be applied to meeting operational AMERICORPS PROGRAMS matching requirements under the Cor- poration’s award; Sec. (ii) Specify that a fixed rate of five 2520.10 What is the purpose of the percent or less (not subject to sup- AmeriCorps program described in parts porting cost documentation) of total 2520 through 2524 of this chapter? 2520.20 What types of service activities are Corporation funds expended may be allowable for programs supported under used to pay for administrative costs, parts 2520 through 2524 of this chapter? provided that the fixed rate is in con- 2520.30 Are there any activities that are junction with an overall 15 percent ad- prohibited? ministrative cost factor to be used for AUTHORITY: 42 U.S.C. 12501 et seq. organizations that do not have estab- SOURCE: 59 FR 13794, Mar. 23, 1994, unless lished indirect cost rates; or otherwise noted. (iii) Utilize such other method that the Corporation determines in writing § 2520.10 What is the purpose of the is consistent with OMB guidance and AmeriCorps program described in parts 2520 through 2524 of this other applicable requirements, helps chapter? minimize the burden on grantees or subgrantees, and is beneficial to grant- The purpose of the AmeriCorps grant program is to provide financial assist- ees or subgrantees and the Federal ance to support AmeriCorps programs Government. that address educational, public safety, [63 FR 18138, Apr. 14, 1998] human, or environmental needs through national and community serv- § 2519.720 What is the length of a ice to provide AmeriCorps education grant? awards to participants in such A grant under this part is for a period progams. of up to three years, subject to satis- § 2520.20 What types of service activi- factory performance and annual appro- ties are allowable for programs sup- priations. ported under parts 2520 through 2524 of this chapter? § 2519.730 May an applicant submit (a) The service must either provide a more than one application to the direct benefit to the community where Corporation for the same project at it is performed, or involve the super- the same time? vision of participants or volunteers No. The Corporation will reject an whose service provides a direct benefit application for a project if an applica- to the community where it is per- tion for funding or educational awards formed. Moreover, the approved for the same project is already pending AmeriCorps activities must result in a before the Corporation. specific identifiable service or improve- ment that otherwise would not be pro- Subpart H—Evaluation vided with existing funds or volunteers and that does not duplicate the routine Requirements functions of workers or displace paid employees. Programs must develop § 2519.800 What are the evaluation re- service opportuntities that are appro- quirements for Higher Education programs? priate to the skill levels of participants and that provide a demonstrable, iden- The monitoring and evaluation re- tifiable benefit that is valued by the quirements for recipients of grants and community. subgrants under part 2516 of this chap- (b) In certain circumstances, some ter, relating to school-based service- activities may not provide a direct ben- learning programs, apply to recipients efit to the communities in which serv- under this part. ice is performed. Such activities may
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include, but are not limited to, clerical gaging in advocacy activities under- work and research. However, a partici- taken at their own initiative; and pant may engage in such activities if (5) An organization engaged in the re- the performance of the activity is inci- ligious activities described in para- dental to the participant’s provision of graph (e) of this section, unless Cor- service that does provide a direct ben- poration assistance is not used to sup- efit to the community in which the port those religious activities; and service is performed. (h) Such other activities as the Cor- poration may prohibit. § 2520.30 Are there any activities that are prohibited? Yes. Some activities are prohibited PART 2521—ELIGIBLE AMERICORPS altogether. Although all prohibited ac- PROGRAM APPLICANTS AND tivities may be performed voluntarily TYPES OF GRANTS AVAILABLE by participants on their own time, they FOR AWARD may not be performed by participants in the course of their duties, at the re- Sec. quest of program staff, or in a manner 2521.10 Who may apply to receive an that would associate the activities AmeriCorps grant? with the AmeriCorps program or the 2521.20 What types of AmeriCorps program Corporation. These activities include: grants are available for award? (a) Any effort to influence legisla- 2521.30 How will AmeriCorps program tion, as prohibited under section 501(c) grants be awarded? of the Internal Revenue Code of 1986 (26 AUTHORITY: 42 U.S.C. 12501 et seq. U.S.C. 501(c)); (b) Organizing protests, petitions, SOURCE: 59 FR 13794, Mar. 23, 1994, unless otherwise noted. boycotts, or strikes; (c) Assisting, promoting or deterring § 2521.10 Who may apply to receive an union organizing; AmeriCorps grant? (d) Impairing existing contracts for services or collective bargaining agree- (a) States (including Territories), ments; subdivisions of States, Indian tribes, (e) Engaging in partisan political ac- public or private nonprofit organiza- tivities, or other activities designed to tions (including labor organizations), influence the outcome of an election to and institutions of higher education any public office; are eligible to apply for AmeriCorps (f) Engaging in religious instruction, grants. However, the fifty States, the conducting worship services, providing District of Columbia and Puerto Rico instruction as part of a program that must first receive Corporation author- includes mandatory religious instruc- ization for the use of a State Commis- tion or worship, constructing or oper- sion or alternative administrative or ating facilities devoted to religious in- transitional entity pursuant to part struction or worship, maintaining fa- 2550 of this chapter in order to be eligi- cilities primarily or inherently devoted ble for an AmeriCorps grant. to religious instruction or worship, or (b) The Corporation may also enter engaging in any form of religious pros- into contracts or cooperative agree- elytization; ments for AmeriCorps assistance with (g) Providing a direct benefit to— Federal agencies that are Executive (1) A business organized for profit; Branch agencies or departments. Bu- (2) A labor union; reaus, divisions, and local and regional (3) A partisan political organization; offices of such departments and agen- (4) A nonprofit organization that cies may only receive assistance pursu- fails to comply with the restrictions ant to a contract or agreement with contained in section 501(c) of the Inter- the central department or agency. The nal Revenue Code of 1986 except that requirements relating to Federal agen- nothing in this section shall be con- cies are described in part 2523 of this strued to prevent participants from en- chapter.
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§ 2521.20 What types of AmeriCorps gent upon periodic assessment of pro- program grants are available for gram quality, progress to date, and award? availability of Congressional appro- The Corporation may make the fol- priations. lowing types of grants to eligible appli- (c) AmeriCorps Educational Awards cants. The requirements of this section Only.—(1) Purpose. The purpose of these will also apply to any State or other awards is to provide AmeriCorps edu- applicant receiving assistance under cational awards to programs that are this part that proposes to conduct a not receiving or applying to the Cor- grant program using the assistance to poration for program assistance but support other national or community that meet the criteria for approved service programs. AmeriCorps positions, and desire to (a) Planning grants.—(1) Purpose. The provide an AmeriCorps educational purpose of a planning grant is to assist award to participants serving in ap- an applicant in completing the plan- proved positions. ning necessary to implement a sound (2) Eligibility. States, subdivisions of concept that has already been devel- States, Indian Tribes, Federal agen- oped. cies, public or private nonprofit organi- (2) Eligibility. (i) States may apply di- zations (including labor organizations), rectly to the Corporation for planning and institutions of higher education grants. may apply directly to the Corporation (ii) Subdivisions of States, Indian for AmeriCorps educational awards Tribes, public or private nonprofit or- only. ganizations (including labor organiza- (d) Replication Grants. The Corpora- tions), and institutions of higher edu- tion may provide assistance for the cation may apply either to a State or replication of an existing national directly to the Corporation for plan- service program to another geo- ning grants. graphical location. (3) Duration. A planning grant will be (e) Training, technical assistance and negotiated for a term not to exceed one other special grants.—(1) Purpose. The year. purpose of these grants is to ensure (b) Operational grants.—(1) Purpose. broad access to AmeriCorps programs The purpose of an operational grant is for all Americans, including those with to fund an organization that is ready to disabilities; support disaster relief ef- establish, operate, or expand an forts; assist efforts to secure private AmeriCorps program. An operational support for programs through chal- grant may include AmeriCorps edu- lenge grants; and ensure program qual- cational awards. An operational grant ity by supporting technical assistance may also include a short planning pe- and training programs. riod of up to six months, if necessary, (2) Eligibility. Eligibility varies and is to implement a program. detailed under 45 CFR part 2524, ‘‘Tech- (2) Eligibility. (i) States may apply di- nical Assistance and Other Special rectly to the Corporation for oper- Grants.’’ ational grants. (3) Duration. Grants will be nego- (ii) Subdivisions of States, Indian tiated for a renewable term of up to Tribes, public or private nonprofit or- three years. ganizations (including labor organiza- tions), and institutions of higher edu- § 2521.30 How will AmeriCorps pro- cation may apply either to a State or gram grants be awarded? directly to the Corporation for oper- In any fiscal year, the Corporation ational grants. The Corporation may will award AmeriCorps program grants limit the categories of applicants eligi- as follows: ble to apply directly to the Corporation (a) Grants to State Applicants. (1) For for assistance under this section con- the purposes of this section, the term sistent with its National priorities. ‘‘State’’ means the fifty States, Puerto (3) Duration. An operational grant Rico, and the District of Columbia. will be negotiated for a term not to ex- (2) One-third of the funds available ceed three years. Within a three-year under this part and a corresponding al- term, renewal funding will be contin- lotment of AmeriCorps educational
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awards, as specified by the Corpora- (b) Grants to Applicants other than tion, will be distributed according to a States. (1) One percent of available population-based formula to the 50 funds will be distributed to the U.S. States, Puerto Rico and the District of Territories 1 that have applications ap- Columbia if they have applications ap- proved by the Corporation according to proved by the Corporation. a population-based formula.2 (3) At least one-third of funds avail- (2) One percent of available funds will able under this part and an appropriate be reserved for distribution to Indian number of AmeriCorps awards, as de- tribes on a competitive basis. termined by the Corporation, will be (3) The Corporation will use any awarded to States on a competitive funds available under this part remain- basis. In order to receive these funds, a ing after the award of the grants de- State must receive funds under para- scribed in paragraphs (a) and (b) (1) and graphs (a)(2) or (b)(1) of this section in (2) of this section to make direct com- the same fiscal year. petitive grants to subdivisions of (4) In making subgrants with funds States, Indian tribes, public or private awarded by formula or competition nonprofit organizations (including under paragraphs (a) (2) or (3) of this labor organizations), institutions of section, a State must: (i) Provide a de- higher education, and Federal agen- scription of the process used to select cies. No more than one-third of the programs for funding including a cer- these remaining funds may be awarded tification that the State or other enti- to Federal agencies. ty used a competitive process and cri- (c) Allocation of AmeriCorps edu- teria that were consistent with the se- cational awards only. The Corporation lection criteria in § 2522.410 of this will determine on an annual basis the chapter. In making such competitive appropriate number of educational selections, the State must ensure the equitable allocation within the State awards to make available for eligible of assistance and approved AmeriCorps applicants who have not applied for positions provided under this subtitle program assistance. to the State taking into consideration (d) Effect of States’ or Territories’ fail- such factors as the location of the pro- ure to apply. If a State or U.S. Terri- grams applying to the State, popu- tory does not apply for or fails to give lation density, and economic distress; adequate notice of its intent to apply (ii) Provide a written assurance that for a formula-based grant as announced not less than 60 percent of the assist- by the Corporation and published in ap- ance provided to the State will be used plications and the Notice of Funds to make grants in support of Availability, the Corporation will use AmeriCorps programs other than the amount of that State’s allotment AmeriCorps programs carried out by to make grants to eligible entities to the State or a State agency. The Cor- carry out AmeriCorps programs in that poration may permit a State to deviate State or Territory. Any funds remain- from this percentage if the State dem- ing from that State’s allotment after onstrates that it did not receive a suffi- making such grants will be reallocated cient number of acceptable applica- to the States, Territories, and Indian tions; and tribes with approved AmeriCorps appli- (iii) Ensure that a minimum of 50 cations at the Corporation’s discretion. percent of funds going to States will be used for programs that operate in the 1 The United States Virgin Islands, Guam, areas of need or on Federal or other American Samoa, the Commonwealth of the public lands, and that place a priority Northern Mariana Islands, and Palau (until on recruiting participants who are resi- such time as the Compact of Free Associa- dents in high need areas, or on Federal tion with Palau is ratified). 2 or other public lands. The Corporation The amount allotted as a grant to each such territory or possession is equal to the may waive this requirement for an in- ratio of each such Territory’s population to dividual State if at least 50 percent of the population of all such territories the total amount of assistance to all multipled by the amount of the one percent States will be used for such programs. set-aside.
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(e) Effect of rejection of State applica- (2) The distribution of administrative tion. If a State’s application for a for- costs between the grant and any mula-based grant is ultimately re- subgrant will be subject to the ap- jected by the Corporation pursuant to proval of the Corporation. § 2522.320 of this chapter, the State’s al- (3) In applying the limitation on ad- lotment will be available for redis- ministrative costs the Corporation will tribution by the Corporation to the approve one of the following methods States, Territories, and Indian Tribes in the award document: with approved AmeriCorps applications (i) Limit the amount or rate of indi- as the Corporation deems appropriate. rect costs that may be paid with Cor- (f) The Corporation will make grants poration funds under a grant or for training, technical assistance and other special programs described in subgrant to five percent of total Cor- part 2524 of this chapter at the Cor- poration funds expended, provided poration’s discretion. that— (g) Matching funds.—(1) Requirements. (A) Organizations that have an estab- (i) The matching requirements for par- lished indirect cost rate for Federal ticipant benefits are specified in awards will be limited to this method; § 2522.240(b)(5) of this chapter. and (ii) The Corporation share of other (B) Unreimbursed indirect costs may AmeriCorps program costs may not ex- be applied to meeting operational ceed 75 percent, whether the assistance matching requirements under the Cor- is provided directly or as a subgrant poration’s award; from the original recipient of the as- (ii) Specify that a fixed rate of five sistance. percent or less (not subject to sup- (iii) These matching requirements porting cost documentation) of total apply only to programs receiving as- Corporation funds expended may be sistance under parts 2521 through 2524 used to pay for administrative costs, of this chapter. provided that the fixed rate is in con- (2) Calculation. In providing for the junction with an overall 15 percent ad- remaining share of other AmeriCorps ministrative cost factor to be used for program costs, the program— organizations that do not have estab- (i) Must provide for its share through a payment in cash or in kind, fairly lished indirect cost rates; or evaluated, including facilities, equip- (iii) Utilize such other method that ment, or services; and the Corporation determines in writing (ii) May provide for its share through is consistent with OMB guidance and State sources, local sources, or other other applicable requirements, helps Federal sources (other than funds made minimize the burden on grantees or available by the Corporation). subgrantees, and is beneficial to grant- (3) Limitation on cost of health care. A ees or subgrantees and the Federal program may not count more than 85 Government. percent of a cash payment for the cost of providing a health care policy to- [59 FR 13794, Mar. 23, 1994, as amended at 63 FR 18138, Apr. 14, 1998] ward its 15 percent remaining share under paragraph (g)(2)(i) of this sec- tion. PART 2522—AMERICORPS PARTICI- (4) Waiver. The Corporation reserves PANTS, PROGRAMS, AND APPLI- the right to waive, in whole or in part, CANTS the requirements of paragraph (g)(1) of this section if the Corporation deter- Subpart A—Minimum Requirements and mines that a waiver would be equitable Program Types due to a lack of available financial re- sources at the local level. Sec. (h)(1) Not more than five percent of 2522.100 What are the minimum require- the grant funds provided under this ments that every AmeriCorps program, part for any fiscal year may be used to regardless of type, must meet? pay for administrative costs, as defined 2522.110 What types of programs are eligible in § 2510.20 of this chapter. to compete for AmeriCorps grants?
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Subpart B—Participant Eligibility, Subpart A—Minimum Requirements, and Benefits Requirements and Program Types 2522.200 What are the eligibility require- ments for an AmeriCorps participant? § 2522.100 What are the minimum re- 2522.210 How are AmeriCorps participants quirements that every AmeriCorps recruited and selected? program, regardless of type, must 2522.220 What are the required terms of meet? service for AmeriCorps participants, and Although a wide range of programs may they serve for more than one term? may be eligible to apply for and receive 2522.230 Under what circumstances may AmeriCorps participants be released support from the Corporation, all from completing a term of service, and AmeriCorps programs must meet cer- what are the consequences? tain minimum program requirements. 2522.240 What financial benefits do These requirements apply regardless of AmeriCorps participants serving in ap- whether a program is supported di- proved AmeriCorps positions receive? rectly by the Corporation or through a 2522.250 What other benefits do AmeriCorps subgrant. All AmeriCorps programs participants serving in approved AmeriCorps positions receive? must: (a) Address educational, public safety, human, or environmental needs, Subpart C—Application Requirements and provide a direct and demonstrable benefit that is valued by the commu- 2522.300 What are the application require- nity in which the service is performed; ments for AmeriCorps program grants? 2522.310 What are the application require- (b) Perform projects that are de- ments for AmeriCorps educational signed, implemented, and evaluated awards only? with extensive and broad-based local 2522.320 May an applicant submit more than input, including consultation with rep- one application to the Corporation for resentatives from the community the same project at the same time? served, participants (or potential par- ticipants) in the program, community- Subpart D—Selection of AmeriCorps based agencies with a demonstrated Programs record of experience in providing serv- 2522.400 How will the basic selection criteria ices, and local labor organizations rep- be applied? resenting employees of project spon- 2522.410 What are the basic selection cri- sors (if such entities exist in the area teria for AmeriCorps programs? to be served by the program); 2522.420 Can a State’s application for for- mula funds be rejected? (c) Obtain, in the case of a program that also proposes to serve as the Subpart E—Evaluation Requirements project sponsor, the written concur- rence of any local labor organization 2522.500 What are the purposes of an evalua- representing employees of the project tion? sponsor who are engaged in the same or 2522.510 What types of evaluations are States, grant-making entities, and pro- substantially similar work as that pro- grams required to perform? posed to be carried out by the 2522.520 What types of internal evaluation AmeriCorps participant; activities are required of programs? (d) Establish and provide outcome ob- 2522.530 What types of activities are re- jectives, including a strategy for quired of States or grantmaking entities achieving these objectives, upon which to evaluate the effectiveness of their sub- self-assessment and Corporation-as- grantees? 2522.540 How will the Corporation evaluate sessment of progress can rest. Such as- individual AmeriCorps programs? sessment will be used to help deter- 2522.550 What will the Corporation do to mine the extent to which the program evaluate the overall success of the has had a positive impact: (1) On com- AmeriCorps programs? munities and persons served by the 2522.560 Will information on individual par- projects performed by the program; ticipants be kept confidential? (2) On participants who take part in AUTHORITY: 42 U.S.C. 12501 et seq. the projects; and SOURCE: 59 FR 13796, Mar. 23, 1994, unless (3) In such other areas as the pro- otherwise noted. gram or Corporation may specify;
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(e) Strengthen communities and en- ments established by the Corporation courage mutual respect and coopera- to assist in the selection of motivated tion among citizens of different races, participants. Finally, all programs ethnicities, socioeconomic back- must agree to select a percentage (to grounds, educational levels, both men be determined by the Corporation) of and women and individuals with dis- the participants for the program from abilities; among prospective participants re- (f) Agree to seek actively to include cruited by the Corporation or State participants and staff from the commu- Commissions under part 2532 of this nities in which projects are conducted, chapter. The Corporation may also and agree to seek program staff and specify a minimum percentage of par- participants of different races and ticipants to be selected from the na- ethnicities, socioeconomic back- tional leadership pool established grounds, educational levels, and gen- under § 2522.210(c). The Corporation ders as well as individuals with disabil- may vary either percentage for dif- ities unless a program design requires ferent types of AmeriCorps programs; emphasizing the recruitment of staff (h) Provide reasonable accommoda- and participants who share a specific tion, including auxiliary aids and serv- characteristic or background. In no ices (as defined in section 3(1) of the case may a program violate the non- Americans with Disabilities Act of 1990 discrimination, nonduplication and (42 U.S.C. 12102(1)) based on the individ- nondisplacement rules governing par- ualized need of a participant who is a ticipant selection described in part 2540 qualified individual with a disability of this chapter. In addition, programs (as defined in section 101(8) of such Act are encouraged to establish, if con- (42 U.S.C. 12111(8)). For the purpose of sistent with the purposes of the pro- complying with this provision, gram, an intergenerational component AmeriCorps programs may apply for that combines students, out-of-school additional financial assistance from youths, and older adults as partici- the Corporation pursuant to § 2524.40 of pants; this chapter; (g)(1) Determine the projects in (i) Use service experiences to help which participants will serve and es- participants achieve the skills and edu- tablish minimum qualifications that cation needed for productive, active individuals must meet to be eligible to citizenship, including the provision, if participate in the program; these quali- appropriate, of structured opportuni- fications may vary based on the spe- ties for participants to reflect on their cific tasks to be performed by partici- pants. Regardless of the educational service experiences. In addition, all level or background of participants programs must encourage every partic- sought, programs are encouraged to se- ipant who is eligible to vote to register lect individuals who posses leadership prior to completing a term of service; potential and a commitment to the (j) Provide participants in the pro- goals of the AmeriCorps program. In gram with the training, skills, and any case, programs must select partici- knowledge necessary to perform the pants in a non-partisan, non-political, tasks required in their respective non-discriminatory manner, ensuring projects, including, if appropriate, spe- fair access to participation. In addi- cific training in a particular field and tion, programs are required to ensure background information on the com- that they do not displace any existing munity, including why the service paid employees as provided in part 2540 projects are needed; of this chapter. To this end, programs (k) Provide support services— may not select any prospective partici- (1) To participants who are com- pant who is or was previously em- pleting a term of service and making ployed by a prospective project spon- the transition to other educational and sors within six months of the time of career opportunities; and enrollment in the program; (2) To those participants who are (2) In addition, all programs are re- school dropouts in order to assist them quired to comply with any pre-service in earning the equivalent of a high orientation or training period require- school diploma;
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(l) Ensure that participants serving (r) Address any other requirements in approved AmeriCorps positions re- as specified by the Corporation. ceive the living allowance and other benefits described in §§ 2522.240 through § 2522.110 What types of programs are 2522.250 of this chapter; eligible to compete for AmeriCorps (m) Describe the manner in which the grants? AmeriCorps educational awards will be Types of programs eligible to com- apportioned among individuals serving pete for AmeriCorps grants include the in the program. If a program proposes following: (a) Specialized skills programs. to provide such benefits to less than 100 (1) A service program that is targeted percent of the participants in the pro- to address specific educational, public gram, the program must provide a safety, human, or environmental needs compelling rationale for determining and that— which participants will receive the (i) Recruits individuals with special benefits and which participants will skills or provides specialized pre-serv- not. AmeriCorps programs are strongly ice training to enable participants to encouraged to offer alternative post- be placed individually or in teams in service benefits to participants who positions in which the participants can will not receive AmeriCorps edu- meet such needs; and cational awards, however AmeriCorps (ii) If consistent with the purposes of grant funds may not be used to provide the program, brings participants to- such benefits; gether for additional training and (n) Agree to identify the program, other activities designed to foster civic through the use of logos, common ap- responsibility, increase the skills of plication materials, and other means participants, and improve the quality (to be specified by the Corporation), as of the service provided. part of a larger national effort and to (2) A preprofessional training pro- participate in other activities such as gram in which students enrolled in an common opening ceremonies (including institution of higher education— the administration of a national oath (i) Receive training in specified or affirmation), service days, and con- fields, which may include classes con- ferences designed to promote a na- taining service-learning; tional identity for all AmeriCorps pro- grams and participants, including (ii) Perform service related to such those participants not receiving training outside the classroom during AmeriCorps educational awards. This the school term and during summer or provision does not preclude an other vacation periods; and AmeriCorps program from continuing (iii) Agree to provide service upon to use its own name as the primary graduation to meet educational, public identification, or from using its name, safety, human, or environmental needs logo, or other identifying materials on related to such training. uniforms or other items; (3) A professional corps program that (o) Agree to begin terms of service at recruits and places qualified partici- such times as the Corporation may rea- pants in positions— sonably require and to comply with (i) As teachers, nurses and other any restrictions the Corporation may health care providers, police officers, establish as to when the program may early childhood development staff, en- take to fill an approved AmeriCorps po- gineers, or other professionals pro- sition left vacant due to attrition; viding service to meet educational, (p) Comply with all evaluation proce- public safety, human, or environmental dures specified by the Corporation, as needs in communities with an inad- explained in §§ 2522.500 through 2522.560; equate number of such professionals; (q) In the case of a program receiving (ii) That may include a salary in ex- funding directly from the Corporation, cess of the maximum living allowance meet and consult with the State Com- authorized in § 2522.240(b)(2); and mission for the State in which the pro- (iii) That are sponsored by public or gram operates, if possible, and submit private nonprofit employers who agree a copy of the program application to to pay 100 percent of the salaries and the State Commission; and benefits (other than any AmeriCorps
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educational award from the National residents of such an area, is governed Service Trust) of the participants. by a board composed in significant part (b) Specialized service programs. (1) A of low-income individuals, and is in- community service program designed tended to provide opportunities for in- to meet the needs of rural commu- dividuals or teams of individuals to en- nities, using teams or individual place- gage in community projects in such an ments to address the development area that meet unaddressed commu- needs of rural communities and to nity and individual needs, including combat rural poverty, including health projects that would— care, education, and job training. (i) Meet the needs of low-income chil- (2) A program that seeks to eliminate dren and youth aged 18 and younger, hunger in communities and rural areas such as providing after-school ‘safe- through service in projects— places’, including schools, with oppor- (i) Involving food banks, food pan- tunities for learning and recreation; or tries, and nonprofit organizations that (ii) Be directed to other important provide food during emergencies; unaddressed needs in such an area. (ii) Involving the gleaning of pre- (d) Programs that expand service pro- pared and unprepared food that would gram capacity. (1) A program that pro- otherwise be discarded as unusable so vides specialized training to individ- that the usable portion of such food uals in service-learning and places the may be donated to food banks, food individuals after such training in posi- pantries, and other nonprofit organiza- tions, including positions as service- tions; learning coordinators, to facilitate (iii) Seeking to address the long-term service-learning in programs eligible causes of hunger through education for funding under Serve-America. and the delivery of appropriate serv- (2) An AmeriCorps entrepreneur pro- ices; or gram that identifies, recruits, and (iv) Providing training in basic trains gifted young adults of all back- health, nutrition, and life skills nec- grounds and assists them in designing essary to alleviate hunger in commu- solutions to community problems. nities and rural areas. (e) Campus-based programs. A campus- (3) A program in which economically based program that is designed to pro- disadvantaged individuals who are be- vide substantial service in a commu- tween the ages of 16 and 24 years of age, nity during the school term and during inclusive, are provided with opportuni- summer or other vacation periods ties to perform service that, while ena- through the use of— bling such individuals to obtain the (1) Students who are attending an in- education and employment skills nec- stitution of higher education, including essary to achieve economic self-suffi- students participating in a work-study ciency, will help their communities program assisted under part C of title meet— IV of the Higher Education Act of 1965 (i) The housing needs of low-income (42 U.S.C. 2751 et seq.); families and the homeless; and (2) Teams composed of such students; (ii) The need for community facilities or in low-income areas. (3) Teams composed of a combination (c) Community-development programs. of such students and community resi- (1) A community corps program that dents. meets educational, public safety, (f) Intergenerational programs. An human, or environmental needs and intergenerational program that com- promotes greater community unity bines students, out-of-school youths, through the use of organized teams of and older adults as participants to pro- participants of varied social and eco- vide needed community services, in- nomic backgrounds, skill levels, phys- cluding an intergenerational compo- ical and developmental capabilities, nent for other AmeriCorps programs ages, ethnic backgrounds, or genders. described in this subsection. (2) A program that is administered by (g) Youth development programs. A a combination of nonprofit organiza- full-time, year-round youth corps pro- tions located in a low-income area, gram or full-time summer youth corps provides a broad range of services to program, such as a conservation corps
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or youth service corps (including youth (ii) Be an out-of-school youth 16 corps programs under subtitle I, the years of age at the commencement of Public Lands Corps established under service participating in a program de- the Public Lands Corps Act of 1993, the scribed in § 2522.110(b)(3) or (g); Urban Youth Corps established under (2)(i) Have a high school diploma or section 106 of the National and Commu- its equivalent; or nity Service Trust Act of 1993, and (ii) Not have dropped out of elemen- other conservation corps or youth serv- tary or secondary school to enroll as ice corps that perform service on Fed- an AmeriCorps participant and must eral or other public lands or on Indian agree to obtain a high school diploma lands or Hawaiian home lands), that: or its equivalent prior to using the edu- (1) Undertakes meaningful service cation award; or projects with visible public benefits, (iii) Obtain a waiver from the Cor- including natural resource, urban ren- poration of the requirements in para- ovation, or human services projects; graphs (a)(2)(i) and (a)(2)(ii) of this sec- (2) Includes as participants youths tion based on an independent evalua- and young adults between the ages of tion secured by the program dem- 16 and 25, inclusive, including out-of- onstrating that the individual is not school youths and other disadvantaged capable of obtaining a high school di- youths (such as youths with limited ploma or its equivalent; or basic skills, youths in foster care who (iv) Be enrolled in an institution of are becoming too old for foster care, higher education on an ability to ben- youths of limited English proficiency, efit basis and be considered eligible for homeless youths, and youths who are funds under section 484 of the Higher individuals with disabilities) who are Education Act of 1965 (20 U.S.C. 1091); between those ages; and (3) Be a citizen, national, or lawful (3) Provides those participants who permanent resident alien of the United are youths and young adults with— States. (i) Crew-based, highly structured, and (b) Primary documentation of status as adult-supervised work experience, life a U.S. citizen or national. The following skills, education, career guidance and are acceptable forms of certifying sta- counseling, employment training, and tus as a U.S. citizen or national: support services; and (1) A birth certificate showing that (ii) The opportunity to develop citi- the individual was born in one of the 50 zenship values and skills through serv- states, the District of Columbia, Puer- ice to their community and the United to Rico, Guam, the U.S. Virgin Islands, States. American Samoa, or the Northern Mar- iana Islands; (h) Individualized placement programs. An individualized placement program (2) A United States passport; that includes regular group activities, (3) A report of birth abroad of a U.S. such as leadership training and special Citizen (FS–240) issued by the State De- service projects. partment; (4) A certificate of birth-foreign serv- (i) Other programs. Such other ice (FS 545) issued by the State Depart- AmeriCorps programs addressing edu- ment; cational, public safety, human, or envi- (5) A certification of report of birth ronmental needs as the Corporation (DS–1350) issued by the State Depart- may designate in the application. ment; (6) A certificate of naturalization Subpart B—Participant Eligibility, (Form N–550 or N–570) issued by the Im- Requirements, and Benefits migration and Naturalization Service; or § 2522.200 What are the eligibility re- (7) A certificate of citizenship (Form quirements for an AmeriCorps par- N–560 or N–561) issued by the Immigra- ticipant? tion and Naturalization Service. (a) Eligibility. An AmeriCorps partici- (c) Primary documentation of status as pant must— a lawful permanent resident alien of the (1)(i) Be at least 17 years of age at the United States. The following are accept- commencement of service; or able forms of certifying status as a
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lawful permanent resident alien of the ondary schools, institutions of higher United States: education, employment service offices, (1) Permanent Resident Card, INS community-based organizations, State Form I–551; vocational rehabilitation agencies (2) Alien Registration Receipt Card, within the meaning of the Rehabilita- INS Form I–551; tion Act of 1973 (29 U.S.C. 701 et seq.) (3) A passport indicating that the and other State agencies that pri- INS has approved it as temporary evi- marily serve qualified individuals with dence of lawful admission for perma- disabilities, and other appropriate enti- nent residence; or ties, particularly those organizations (4) A Departure Record (INS Form I– 94) indicating that the INS has ap- that provide outreach to disadvantaged proved it as temporary evidence of law- youths and youths who are qualified ful admission for permanent residence. individuals with disabilities. (d) Secondary documentation. If pri- (c) National leadership pool—(1) Selec- mary documentation is not available, tion and training. From among individ- the program must obtain written ap- uals recruited under paragraph (b) of proval from the Corporation that other this section or nominated by service documentation is sufficient to dem- programs, the Corporation may select onstrate the individual’s status as a individuals with significant leadership U.S. citizen, U.S. national, or lawful potential, as determined by the Cor- permanent resident alien. poration, to receive special training to [64 FR 37413, July 12, 1999] enhance their leadership ability. The leadership training will be provided by § 2522.210 How are AmeriCorps par- the Corporation directly or through a ticipants recruited and selected? grant, contract, or cooperative agree- (a) Local recruitment and selection. In ment as the Corporation determines. general, AmeriCorps participants will (2) Emphasis on certain individuals. In be selected locally by an approved selecting individuals to receive leader- AmeriCorps program, and the selection ship training under this provision, the criteria will vary widely among the dif- Corporation will make special efforts ferent programs. Nevertheless, to select individuals who have served— AmeriCorps programs must select their (i) In the Peace Corps; participants in a fair and non-discrimi- natory manner which complies with (ii) As VISTA volunteers; part 2540 of this chapter. In selecting (iii) As participants in AmeriCorps participants, programs must also com- programs receiving assistance under ply with the recruitment and selection parts 2520 through 2524 of this chapter; requirements specified in this section. (iv) As participants in National Serv- (b)(1) National and State recruitment ice Demonstration programs that re- and selection. The Corporation and each ceived assistance from the Commission State Commission will establish a sys- on National and Community Service; tem to recruit individuals who desire or to perform national service and to as- (v) As members of the Armed Forces sist the placement of these individuals of the United States and who were hon- in approved AmeriCorps positions, orably discharged from such service. which may include positions available (3) Assignment. At the request of a under titles I and II of the Domestic program that receives assistance, the Volunteer Service Act of 1973 (42 U.S.C. Corporation may assign an individual 4951 et seq.). The national and state re- cruitment and placement system will who receives leadership training under be designed and operated according to paragraph (c)(1) of this section to work Corporation guidelines. with the program in a leadership posi- (2) Dissemination of information. The tion and carry out assignments not Corporation and State Commissions otherwise performed by regular partici- will disseminate information regarding pants. An individual assigned to a pro- available approved AmeriCorps posi- gram will be considered to be a partici- tions through cooperation with sec- pant of the program.
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§ 2522.220 What are the required terms (d) Participant performance review. For of service for AmeriCorps partici- the purposes of determining a partici- pants, and may they serve for more pant’s eligibility for a second or addi- than one term? tional term of service and/or for an (a) Term of service. In order to be eli- AmeriCorps educational award, each gible for the educational award de- AmeriCorps program will evaluate the scribed in § 2522.240(a), participants performance of a participant mid-term serving in approved AmeriCorps posi- and upon completion of a participant’s tions must complete a term of service term of service. The end-of-term per- as defined in this section: formance evaluation will assess the fol- (1) Full-time service. 1,700 hours of lowing: (1) Whether the participant has service during a period of not less than completed the required number of nine months and not more than one hours described in paragraph (a) of this year. section; (2) Part-time service. 900 hours of serv- (2) Whether the participant has satis- ice during a period of not more than factorily completed assignments, tasks two years, or, if the individual is en- or projects; and ′ rolled in an institution of higher edu- (3) Whether the participant has met cation while performing all or a por- any other performance criteria which tion of the service, not more than three had been clearly communicated both years. orally and in writing at the beginning (3) Reduced part-time term of service. of the term of service. The Corporation may reduce the num- (e) Limitation. The Corporation may ber of hours required to be served in set a minimum or maximum percent- order to receive an educational award age of hours of a full-time, part-time, for certain part-time participants serv- or reduced term of service described in ing in approved AmeriCorps positions. paragraphs (a)(1),(a)(2), and (a)(3) of In such cases, the educational award this section that a participant may en- will be reduced in direct proportion to gage in training, education, or other the reduction in required hours of serv- similar approved activities ice. These reductions may be made for (f) Grievance procedure. Any summer programs, for categories of AmeriCorps participant wishing to con- participants in certain approved test a program’s ruling of unsatisfac- tory performance may file a grievance AmeriCorps programs and on a case-by- according to the procedures set forth in case, individual basis as determined by part 2540 of this chapter. If that griev- the Corporation. ance procedure or subsequent binding (4) Summer programs. A summer pro- arbitration procedure finds that the gram, in which less than 1700 hours of participant did in fact satisfactorily service are performed, are part-time complete a term of service, then that programs. individual will be eligible to receive an (b) Restriction on multiple terms. An educational award and/or be eligible to AmeriCorps participant may only re- serve a second term of service. ceive the benefits described in §§ 2522.240 through 2522.250 for the first § 2522.230 Under what circumstances two successfully-completed terms of may AmeriCorps participants be re- service, regardless of whether those leased from completing a term of terms were served on a full-, part-, or service, and what are the con- reduced part-time basis. sequences? (c) Eligibility for second term. A partic- An AmeriCorps program may release ipant will only be eligible to serve a a participant from completing a term second or additional term of service if of service for compelling personal cir- that individual has received satisfac- cumstances as demonstrated by the tory performance review(s) for any pre- participant, or for cause. vious term(s) of service in accordance (a) Release for compelling personal cir- with the requirements of paragraph (d) cumstances. (1) An AmeriCorps program of this section. Mere eligibility for a may release a participant upon a deter- second or further term of service in no mination by the program, consistent way guarantees a participant selection with the criteria listed in paragraphs or placement. (a)(5) through (a)(6) of this section,
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that the participant is unable to com- (iii) Because of dissatisfaction with plete the term of service because of the program. compelling personal circumstances. (7) As an alternative to releasing a (2) A participant who is released for participant, an AmeriCorps*State/Na- compelling personal circumstances and tional program may, after determining who completes at least 15 percent of that compelling personal cir- the required term of service is eligible cumstances exist, suspend the partici- for a pro-rated education award. pant’s term of service for up to two (3) The participant has the primary years (or longer if approved by the Cor- responsibility for demonstrating that poration based on extenuating cir- compelling personal circumstances pre- cumstances) to allow the participant to vent the participant from completing complete service with the same or the term of service. similar AmeriCorps program at a later (4) The program must document the time. basis for any determination that com- (b) Release for cause. (1) A release for pelling personal circumstances prevent cause encompasses any circumstances a participant from completing a term other than compelling personal cir- of service. cumstances that warrant an individ- (5) Compelling personal cir- ual’s release from completing a term of cumstances include: service. (i) Those that are beyond the partici- (2) AmeriCorps programs must re- pant’s control, such as, but not limited lease for cause any participant who is to: convicted of a felony or the sale or dis- (A) A participant’s disability or seri- tribution of a controlled substance dur- ous illness; ing a term of service. (B) Disability, serious illness, or (3) A participant who is released for death of a participant’s family member cause may not receive any portion of if this makes completing a term unrea- the AmeriCorps education award or sonably difficult or impossible; or any other payment from the National (C) Conditions attributable to the Service Trust. program or otherwise unforeseeable (4) An individual who is released for and beyond the participant’s control, cause must disclose that fact in any such as a natural disaster, a strike, re- subsequent applications to participate location of a spouse, or the nonrenewal in an AmeriCorps program. Failure to or premature closing of a project or do so disqualifies the individual for an program, that make completing a term education award, regardless of whether unreasonably difficult or impossible; the individual completes a term of (ii) Those that the Corporation, has service. for public policy reasons, determined (5) An AmeriCorps*State/National as such, including: participant released for cause may con- (A) Military service obligations; test the program’s decision by filing a (B) Acceptance by a participant of an grievance. Pending the resolution of a opportunity to make the transition grievance procedure filed by an indi- from welfare to work; or vidual to contest a determination by a (C) Acceptance of an employment op- program to release the individual for portunity by a participant serving in a cause, the individual’s service is con- program that includes in its approved sidered to be suspended. For this type objectives the promotion of employ- of grievance, a program may not— ment among its participants. while the grievance is pending or as (6) Compelling personal cir- part of its resolution—provide a partic- cumstances do not include leaving a ipant with federally-funded benefits program: (including payments from the National (i) To enroll in school; Service Trust) beyond those attrib- (ii) To obtain employment, other utable to service actually performed, than in moving from welfare to work without the program receiving written or in leaving a program that includes approval from the Corporation. in its approved objectives the pro- (c) Suspended service. (1) A program motion of employment among its par- must suspend the service of an indi- ticipants; or vidual who faces an official charge of a
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violent felony (e.g., rape, homicide) or Act of 1973 (42 U.S.C. 4955). This re- sale or distribution of a controlled sub- quirement will not apply to any pro- stance. gram that was in existence prior to (2) A program must suspend the serv- September 21, 1993 (the date of the en- ice of an individual who is convicted of actment of the National and Commu- possession of a controlled substance. nity Service Trust Act of 1993). (3) An individual may not receive a (2) Maximum living allowance. With living allowance or other benefits, and the exception of a professional corps may not accrue service hours, during a described in § 2522.110(a)(3), the period of suspension under this provi- AmeriCorps living allowances may not sion. exceed 200 percent of the average an- (d) Reinstatement. (1) A program may nual subsistence allowance provided to reinstate an individual whose service VISTA volunteers under section 105 of was suspended under paragraph (c)(1) of the Domestic Volunteer Service Act of this section if the individual is found 1973 (42 U.S.C. 4955). A professional not guilty or if the charge is dismissed. corps AmeriCorps program may pro- (2) A program may reinstate an indi- vide a stipend in excess of the max- vidual whose service was suspended imum, subject to the following condi- under paragraph (c)(2) of this section tions: (i) Corporation assistance may only if the individual demonstrates the not be used to pay for any portion of following: the allowance; and (i) For an individual who has been (ii) The program must be operated di- convicted of a first offense of the pos- rectly by the applicant, selected on a session of a controlled substance, the competitive basis by submitting an ap- individual must have enrolled in a drug plication directly to the Corporation, rehabilitation program; and may not be included in a State’s (ii) For an individual who has been application for the AmeriCorps pro- convicted for more than one offense of gram funds distributed by formula, or the possession of a controlled sub- competition described in §§ 2521.30 (a)(2) stance, the individual must have suc- and (a)(3) of this chapter. cessfully completed a drug rehabilita- (3) Living allowances for part-time par- tion program. ticipants. Programs may, but are not [64 FR 37413, July 12, 1999] required to, provide living allowances to individuals participating on a part- § 2522.240 What financial benefits do time basis (or a reduced term of part- AmeriCorps participants serving in time service authorized under approved AmeriCorps positions re- § 2522.220(a)(3). Such living allowances ceive? should be prorated to the living allow- (a) AmeriCorps educational awards. An ance authorized in paragraph (b)(1) of individual serving in an approved this section and will comply with such AmeriCorps position will receive an restrictions therein. educational award from the National (4) Waiver or reduction of living allow- Service Trust upon successful comple- ance. The Corporation may, at its dis- tion of each of up to two terms of serv- cretion, waive or reduce the living al- ice as defined in § 2522.220. lowance requirements if a program can (b) Living allowances—(1) Amount. demonstrate to the satisfaction of the Subject to the provisions of this part, Corporation that such requirements any individual who participates on a are inconsistent with the objectives of full-time basis in an AmeriCorps pro- the program, and that participants will gram carried out using assistance pro- be able to meet the necessary and rea- vided pursuant to § 2521.30 of this chap- sonable costs of living (including food, ter, including an AmeriCorps program housing, and transportation) in the that receives educational awards only area in which the program is located. pursuant to § 2521.30(c) of this chapter, (5) Limitation on Federal share. The will receive a living allowance in an Federal share, including Corporation amount equal to or greater than the and other Federal funds, of the total average annual subsistence allowance amount provided to an AmeriCorps provided to VISTA volunteers under participant for a living allowance is § 105 of the Domestic Volunteer Service limited as follows: (i) In no case may
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the Federal share exceed 85% of the ble child care providers as defined in minimum required living allowance the Child Care and Development Block enumerated in paragraph (b)(1) of this Grant Act of 1990 (42 U.S.C. 9858n(5)). section. (3) Child care allowance. The amount (ii) For professional corps described of the child care allowance will be de- in paragraph (b)(2)(i) of this section, termined by the Corporation based on Corporation and other Federal funds payment rates for the Child Care and may be used to pay for no portion of Development Block Grant Act of 1990 the living allowance. (42 U.S.C. 9858c(4)(A)). (iii) If the minimum living allowance (4) Corporation share. The Corporation requirements has been waived or re- will pay 100 percent of the child care duced pursuant to paragraph (b)(4) of allowance, or, if the program provides this section and the amount of the liv- child care through an eligible provider, ing allowance provided to a participant the actual cost of the care or the has been reduced correspondingly— amount of the allowance, whichever is (A) In general, the Federal share may less. not exceed 85% of the reduced living al- lowance; however, (b) Health care. (1) Grantees must pro- (B) If a participant is serving in a vide to all eligible participants who program that provides room or board, meet the requirements of paragraph the Corporation will consider on a (b)(2) of this section health care cov- case-by-case basis allowing the portion erage that— of that living allowance that may be (i) Provides the minimum benefits paid using Corporation and other Fed- determined by the Corporation; eral funds to be between 85% and 100%. (ii) Provides the alternative min- imum benefits determined by the Cor- § 2522.250 What other benefits do poration; or AmeriCorps participants serving in (iii) Does not provide all of either the approved AmeriCorps positions re- minimum or the alternative minimum ceive? benefits but that has a fair market (a) Child Care. Grantees must provide value equal to or greater than the fair child care through an eligible provider market value of a policy that provides or a child care allowance in an amount the minimum benefits. determined by the Corporation to those (2) Participant eligibility. A full-time full-time participants who need child participant is eligible for health care care in order to participate. benefits if he or she is not otherwise (1) Need. A participant is considered covered by a health benefits package to need child care in order to partici- providing minimum benefits estab- pate in the program if he or she: (i) Is lished by the Corporation at the time the parent or legal guardian of, or is he or she is accepted into a program. If, acting in loco parentis for, a child under 13 who resides with the partici- as a result of participation, or if, dur- pant; ing the term of service, a participant (ii) Has a family income that does demonstrates loss of coverage through not exceed 75 percent of the State’s me- no deliberate act of his or her own, dian income for a family of the same such as parental or spousal job loss or size; disqualification from Medicaid, the (iii) At the time of acceptance into participant will be eligible for health the program, is not currently receiving care benefits. child care assistance from another (3) Corporation share. (i) Except as source, including a parent or guardian, provided in paragraph (b)(3)(ii) of this which would continue to be provided section, the Corporation will pay up to while the participant serves in the pro- 85% of the cost of health care coverage gram; and that includes the minimum or alter- (iv) Certifies that he or she needs native minimum benefits and is not ex- child care in order to participate in the cessive in cost. program. (ii) The Corporation will pay no share (2) Provider eligibility. Eligible child of the cost of a policy that does not care providers are those who are eligi- provide the minimum or alternative
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minimum benefits described in para- § 2522.320 May an applicant submit graphs (b)(1)(i) and (b)(1)(ii) of this sec- more than one application to the tion. Corporation for the same project at the same time? Subpart C—Application No. The Corporation will reject an Requirements application for a project if an applica- tion for funding or educational awards § 2522.300 What are the application re- for the same project is already pending quirements for AmeriCorps pro- before the Corporation. gram grants? All eligible applicants seeking Subpart D—Selection of AmeriCorps program grants must— AmeriCorps Programs (a) Provide a description of the spe- cific program(s) being proposed, includ- § 2522.400 How will the basic selection criteria be applied? ing the type of program and of how it meets the minimum program require- From among the eligible programs ments described in § 2522.100; and that meet the minimum program re- (b) Comply with any additional re- quirements and that have submitted quirements as specified by the Corpora- applications to the Corporation, the tion in the application package. Corporation must select the best ones to receive funding. Although there is a § 2522.310 What are the application re- wide range of factors that must be quirements for AmeriCorps edu- taken into account during the selec- cational awards only? tion process, there are certain funda- mental selection criteria that apply to (a) Eligible applicants may apply for all programs in each grant competi- AmeriCorps educational awards only tion, regardless of whether they receive for one of the following eligible service funding or educational awards directly positions: (1) A position for a partici- or through subgrants. States and other pant in an AmeriCorps program that: subgranting applicants are required to (i) Is carried out by an entity eligible use these criteria during the competi- to receive support under part 2521 of tive selection of subgrantees. The Cor- this chapter; poration may adjust the relative (ii) Would be eligible to receive as- weight given to each criterion. (Addi- sistance under this part, based on cri- tional and more specific criteria will be teria established by the Corporation, published in the applications). but has not applied for such assistance; (2) A position facilitating service- § 2522.410 What are the basic selection criteria for AmeriCorps programs? learning in a program described in parts 2515 through 2519 of this chapter; The Corporation will consider how (3) A position involving service as a well the program will be able to crew leader in a youth corps program achieve the three impacts mentioned or a similar position supporting an in paragraph (a) of this section as dem- AmeriCorps program; and onstrated by the program design, the capacity of the organization to carry it (4) Such other AmeriCorps positions out and other factors relating to need. as the Corporation considers to be ap- The Corporation will also consider the propriate. extent to which the program promotes (b) Because programs applying only the Corporation’s goals; and the extent for AmeriCorps educational awards to which the program contributes to must, by definition, meet the same the overall diversity of programs de- basic requirements as other approved sired by the Corporation. These cri- AmeriCorps programs, applicants must teria are discussed in this section. Ad- comply with the same application re- ditional detail relating to these cri- quirements specified in § 2522.300. teria may be published in any notice of availability of funding. (a) Program impacts. The Corporation will consider the extent to which the
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program: (1) Achieves direct and de- to any assistance provided through a monstrable results; subgrant of such funds. (2) Strengthens communities; and (i) States must establish, and (3) Promotes citizenship and in- through the national service plan proc- creases educational opportunities for ess described in part 2513 of this chap- participants. ter, periodically alter priorities regard- (b) Program Criteria.—(1) Program de- ing the programs that will receive as- sign. The Corporation will consider four sistance (funding or approved factors relating to the program design: AmeriCorps positions) provided on a (i) The quality of the program proposed formula basis as described in to be carried out directly by the appli- § 2521.30(a)(2) of this chapter. The State cant or supported by a grant from the priorities will be subject to Corpora- applicant; tion review as part of the application (ii) The innovative aspects of the process under part 2521 of this chapter. AmeriCorps program; (ii) The Corporation will provide ad- (iii) The feasibility of replicating the vance notice to potential applicants of program; and any AmeriCorps priorities to be in ef- (iv) The sustainability of the pro- fect for a fiscal year. The notice will gram, based on evidence such as the ex- describe any alternation made in the istence of strong and broad-based com- priorities since the previous notice. If a munity support for the program and of program receives multi-year funding multiple funding sources or private based on conformance to national or funding. state priorities and such priorities are (2) Organizational capacity. The Cor- altered after the first year of funding, poration will also consider an organiza- the program will not be adversely af- tion’s capacity to carry out the pro- fected due to the change in priorities gram based on— until the term of the grant is ended. (i) The quality of the leadership of (2) Areas of need. Areas of need are: (i) the AmeriCorps program; Communities designated by the Fed- (ii) The past performance of the orga- eral government or States as empower- nization or program; and ment zones or redevelopment areas, (iii) The extent to which the program targeted for special economic incen- builds on existing programs. tives, or otherwise identifiable as hav- (c) Need criteria. In selecting pro- ing high concentrations of low-income grams, the Corporation will take into people; consideration the extent to which (ii) Areas that are environmentally projects address State-identified issue distressed; priorities (if the program will be fund- (iii) Areas adversely affected by Fed- ed out of formula funds) or national eral actions related to the management priorities (if the program will be fund- of Federal lands that result in signifi- ed out of competitive funds), and cant regional job losses and economic whether projects would be conducted in dislocation; areas of need. (iv) Areas adversely affected by re- (1) Issue priorities. In order to con- ductions in defense spending or the clo- centrate national efforts on meeting sure or realignment of military instal- certain educational, public safety, lations; and human, or environmental needs, and to (v) Areas that have an unemploy- achieve the other purposes of this Act, ment rate greater than the national the Corporation will establish, and average unemployment rate for the after review of the strategic plan ap- most recent 12 months for which satis- proved by the Board, periodically alter factory data are available. priorities regarding the AmeriCorps (d) Contribution to overall diversity of programs that will receive assistance programs funded by the Corporation. The (funding or approved AmeriCorps posi- Corporation will select programs that tions) and the purposes for which such will help to achieve participant, pro- assistance may be used. These prior- gram type, and geographic diversity ities will be applied to assistance pro- across programs. vided on a competitive basis as de- (e) Additional considerations. The Cor- scribed in § 2521.30 of this chapter, and poration may publish in any notice of
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availability of funding additional fac- required to, arrange for independent tors that it may take into consider- evaluation which are assessments of ation in selecting programs, including program effectiveness by individuals any additional priorities applicable to who are not directly involved in the ad- any or all funds. ministration of the program. The cost of independent evaluations is allow- § 2522.420 Can a State’s application for able. formula funds be rejected? Yes. Formula funds are not an enti- § 2522.520 What types of internal eval- tlement. uation activities are required of (a) Notification. If the Corporation re- programs? jects an application submitted by a Programs are required to: (a) Con- State Commission under part 2550 of tinuously assess management effec- this chapter for funds described in tiveness, the quality of services pro- § 2521.30 of this chapter, the Corpora- vided, and the satisfaction of both par- tion will promptly notify the State ticipants and persons served. Internal Commission of the reasons for the re- evaluation activities should seek fre- jection of the application. quent feedback and provide for quick (b) Revision. The Corporation will correction of weaknesses. The Corpora- provide a State Commission notified tion encourages programs to use inter- under paragraph (a) of this section nal evaluation methods such as com- with a reasonable opportunity to revise munity advisory councils, participant and resubmit the application. At the advisory councils, peer reviews, quality request of the State Commission, the control inspections, and customer and Corporation will provide technical as- participant surveys; sistance to the State Commission as (b) Track progress toward objectives. part of the resubmission process. The Objectives will be established by pro- Corporation will promptly reconsider grams and approved by the Corpora- an application resubmitted under this tion. Programs must submit to the paragraph. Corporation (or State or grantmaking (c) Redistribution. The amount of any entity as applicable) periodic perform- State’s allotment under § 2521.30(a) of ance reports and, as part of an annual this chapter for a fiscal year that the report, an annual performance report; Corporation determines will not be pro- (c) Collect and submit to the Cor- vided for that fiscal year will be avail- poration (through the State or able for redistribution by the Corpora- grantmaking entity as applicable) the tion to the States, Territories and In- following data: (1) Information on par- dian Tribes with approved AmeriCorps ticipants including the total number of applications as the Corporation deems participants in the program, and the appropriate. number of participants by race, eth- nicity, age, gender, economic back- Subpart E—Evaluation ground, education level, ethnic group, Requirements disability classification, geographic re- gion, and marital status; § 2522.500 What are the purposes of an (2) Information on services conducted evaluation? in areas classified as empowerment Every evaluation effort should serve zones (or redevelopment areas), in to improve program quality, examine areas that are targeted for special eco- benefits of service, or fulfill legislative nomic incentives or otherwise identifi- requirements. able as having high concentrations of low-income people, in areas that are § 2522.510 What types of evaluations environmentally distressed, in areas are States, grant-making entities, that are adversely affected by Federal and programs required to perform? actions related to the management of All grantees and subgrantees are re- Federal lands, in areas that are ad- quired to perform internal evaluations versely affected by reductions in de- which are ongoing efforts to assess per- fense spending, or in areas that have an formance and improve quality. Grant- unemployment rate greater than the ees and subgrantees may, but are not national average unemployment rate;
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(3) Other information as required by ice after completion of the program the Corporation; and based on career choices and participa- (d) Cooperate fully with all Corpora- tion in other service programs; tion evaluation activities. (5) Promoting an ethic of active and productive citizenship among partici- § 2522.530 What types of activities are pants; required of States or grantmaking (6) Supplying additional volunteer as- entities to evaluate the effective- ness of their subgrantees? sistance to community agencies with- out providing more volunteers than In cases where a State or can be effectively utilized; grantmaking entity is the direct grant- (7) Providing services and activities ee they will be required to: (a) Ensure that could not otherwise be performed that subgrantees comply with the re- by employed workers and that will not quirements of this subpart; supplant the hiring of, or result in the (b) Track program performance in displacement of, employed workers; terms of progress towards pre-estab- and lished objectives and ensure that cor- (8) Other criteria determined and rective action is taken when necessary. published by the Corporation. Submit periodic performance reports and, as part of an annual report, an an- § 2522.550 What will the Corporation nual performance report to the Cor- do to evaluate the overall success of poration for each subgrantee; the AmeriCorps programs? (c) Collect from programs and submit (a) The Corporation will conduct to the Corporation the descriptive in- independent evaluations of programs, formation required in this subpart; and including in-depth studies of selected (d) Cooperate fully with all Corpora- programs. These evaluations will con- tion evaluation activities. sider the opinions of participants and § 2522.540 How will the Corporation members of the community where serv- evaluate individual AmeriCorps ices are delivered. Where appropriate programs? these studies will compare participants The Corporation will evaluate pro- with individuals who have not partici- grams based on the following: (a) The pated in service programs. These eval- extent to which the program meets the uations will: (1) Study the extent to objectives established and agreed to by which the national service impacts in- the grantee and the Corporation before volved communities; the grant award; (2) Study the extent to which na- (b) The extent to which the program tional service increases positive atti- is cost-effective; and tudes among participants regarding the (c) The effectiveness of the program responsibilities of citizens and their in meeting the following legislative ob- role in solving community problems; jectives: (1) Providing direct and de- (3) Study the extent to which na- monstrable services and projects that tional service enables participants to benefit the community by addressing afford post-secondary education with educational, public safety, human, or fewer student loans; environmental needs; (4) Determine the costs and effective- (2) Recruiting and enrolling diverse ness of different program models in participants consistent with the re- meeting program objectives including quirements of part 2540 of this chapter, full- and part-time programs, programs based on economic background, race, involving different types of national ethnicity, age, gender, marital status, service, programs using different re- education levels, and disability; cruitment methods, programs offering (3) Promoting the educational alternative non-federally funded achievement of each participant based vouchers or post-service benefits, and on earning a high school diploma or its programs utilizing individual place- equivalent and future enrollment in ments and teams; and completion of increasingly higher (5) Determine the impact of programs levels of education; in each State on the ability of VISTA (4) Encouraging each participant to and National Senior Volunteer Corps, engage in public and community serv- each regular and reserve component of
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the Armed Forces, and the Peace Corps adversely affected by Federal actions to recruit individuals residing in that related to the management of Federal State; and lands, in areas that are adversely af- (6) Determine the levels of living al- fected by reductions in defense spend- lowances paid in all AmeriCorps pro- ing, or in areas that have an unemploy- grams and American Conservation and ment rate greater than the national Youth Corps, individually, by State, average unemployment rate for the and by region and determine the effects most recent 12 months for which satis- that such living allowances have had factory data are available; and on the ability of individuals to partici- (7) The implications of the results of pate in such programs. these studies as appropriate for author- (b) The Corporation will also deter- ized funding levels. mine by June 30, 1995: (1) Whether the State and national priorities designed § 2522.560 Will information on indi- vidual participants be kept con- to meet educational, public safety, fidential? human, or environmental needs are being addressed; (a) Yes. The Corporation will main- (2) Whether the outcomes of both tain the confidentiality of information stipended and nonstipended service regarding individual participants that programs are defined and measured ap- is acquired for the purpose of the eval- propriately; uations described in § 2522.540. The Cor- (3) Whether stipended service pro- poration will disclose individual partic- grams, and service programs providing ipant information only with the prior educational benefits in return for serv- written consent of the participant. ice, should focus on economically dis- However, the Corporation may disclose advantaged individuals or at risk aggregate participant information. youth, or whether such programs (b) Grantees and subgrantees that re- ceive assistance under this chapter should include a mix of individuals, in- must comply with the provisions of cluding individuals from middle and paragraph (a) of this section. upper income families; (4) The role and importance of sti- pends and educational benefits in PART 2523—AGREEMENTS WITH achieving desired outcomes in the serv- OTHER FEDERAL AGENCIES FOR ice programs; THE PROVISION OF AMERICORPS (5) The income distribution of PROGRAM ASSISTANCE AmeriCorps participants, to determine the level of participation of economi- Sec. cally disadvantaged individuals. The 2523.10 Are Federal agencies eligible to total income of participants will be de- apply for AmeriCorps program funds? termined as of the date the participant 2523.20 Which Federal agencies may apply for such funds? was first selected to participate in a 2523.30 Must Federal agencies meet the re- program and will include family total quirements imposed on grantees under income unless the evaluating entity de- parts 2521 and 2522 of this chapter? termines that the participant was inde- 2523.40 For what purposes should Federal pendent at the time of selection. Defi- agencies use AmeriCorps program funds? nitions for ‘‘independent’’ and ‘‘total 2523.50 What types of grants are Federal income’’ are those used in section agencies eligible to receive? 480(a) of the Higher Education Act of 2523.60 May Federal agencies enter into partnerships or participate in consortia? 1965; 2523.70 Will the Corporation give special (6) The amount of assistance provided consideration to Federal agency applica- under the AmeriCorps programs that tions that address certain needs? has been expended for projects con- 2523.80 Are there restrictions on the use of ducted in areas classified as empower- Corporation funds? ment zones (or redevelopment areas), 2523.90 Is there a matching requirement for in areas that are targeted for special Federal agencies? 2523.100 Are participants in programs oper- economic incentives or are otherwise ated by Federal agencies Federal em- identifiable as having high concentra- ployees? tions of low-income people, in areas 2523.110 Can Federal agencies submit mul- that are environmentally distressed or tiple applications?
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2523.120 Must Federal agencies consult with mately support new service initiatives State Commissions? out of their own budgets and appropria- AUTHORITY: 42 U.S.C. 12501 et seq. tions. SOURCE: 59 FR 13804, Mar. 23, 1994, unless otherwise noted. § 2523.50 What types of funds are Fed- eral agencies eligible to receive? § 2523.10 Are Federal agencies eligible Federal agencies may apply for plan- to apply for AmeriCorps program ning and operating funds subject to the funds? terms established by the Corporation Yes. Federal agencies may apply for in § 2521.20 of this chapter, except that and receive AmeriCorps funds under operating grants will be awarded with parts 2521 and 2522 of this chapter, and the expectation that the Federal agen- they are eligible to receive up to one- cies will support the proposed pro- third of the funds available for com- petitive distribution under grams from their own budgets once the § 2521.30(b)(3) of this chapter. The Cor- Corporation grant(s) expire. poration may enter into a grant, con- § 2523.60 May Federal agencies enter tract or cooperative agreement with into partnerships or participate in another Federal agency to support an consortia? AmeriCorps program carried out by the agency. The Corporation may transfer Yes. Such partnerships or consortia funds available to it to other Federal may consist of other Federal agencies, agencies. Indian Tribes, subdivisions of States, community based organizations, insti- § 2523.20 Which Federal agencies may tutions of higher education, or other apply for such funds? non-profit organizations. Partnerships The Corporation will consider appli- and consortia must be approved by the cations only from Executive Branch Corporation. agencies or departments. Bureaus, divi- sions, and local and regional offices of § 2523.70 Will the Corporation give such departments and agencies can special consideration to Federal only apply through the central depart- agency applications that address ment or agency; however, it is possible certain needs? for the department or agency to submit Yes. The Corporation will give spe- an application proposing more than cial consideration to those applications one program. that address the national priorities es- tablished by the Corporation. The Cor- § 2523.30 Must Federal agencies meet the requirements imposed on grant- poration may also give special consid- ees under parts 2521 and 2522 of eration to those applications that dem- this chapter? onstrate the agency’s intent to lever- Yes, except as provided in § 2523.90. age its own funds through a Corpora- Federal agency programs must meet tion-approved partnership or consor- the same requirements and serve the tium, by raising other funds from Fed- same purposes as all other applicants eral or non-Federal sources, by giving seeking support under part 2522 of this grantees incentives to build service op- chapter. portunities into their programs, by committing appropriate in-kind re- § 2523.40 For what purposes should sources, or by other means. Federal agencies use AmeriCorps program funds? § 2523.80 Are there restrictions on the AmeriCorps funds should enable Fed- use of Corporation funds? eral agencies to establish programs Yes. The supplantation and non- that leverage agencies’ existing re- displacement provisions specified in sources and grant-making powers to- ward the goal of integrating service part 2540 of this chapter apply to the more fully into agencies’ programs and Federal AmeriCorps programs sup- activities. Agencies should plan to ulti- ported with such assistance.
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§ 2523.90 Is there a matching require- 2524.30 What are the guidelines for chal- ment for Federal agencies? lenge grants? 2524.40 What are the guidelines for grants to No. A Federal agency is not required involve persons with disabilities? to match funds in programs that re- 2524.50 What are the guidelines for assist- ceive support under this chapter. How- ance with disaster relief? ever, Federal agency subgrantees are AUTHORITY: 42 U.S.C. 12501 et seq. required to match funds in accordance with the requirements of § 2521.30(g) SOURCE: 59 FR 13805, Mar. 23, 1994, unless and § 2522.240(b)(5) of this chapter. otherwise noted.
§ 2523.100 Are participants in pro- § 2524.10 For what purposes will tech- grams operated by Federal agencies nical assistance and training funds Federal employees? be made available? No. Participants in these programs (a) To the extent appropriate and have the same employee status as par- necessary, the Corporation may make ticipants in other approved AmeriCorps technical assistance available to programs, and are not considered Fed- States, Indian tribes, labor organiza- eral employees, except for the purposes tions, organizations operated by young of the Family and Medical Leave Act adults, organizations serving economi- as specified in § 2540.220(b) of this chap- cally disadvantaged individuals, and ter. other entities eligible to apply for as- sistance under parts 2521 and 2522 of § 2523.110 Can Federal agencies sub- this chapter that desire— mit multiple applications? (1) To develop AmeriCorps programs; No. The Corporation will only con- or sider one application from a Federal (2) To apply for assistance under agency for each AmeriCorps competi- parts 2521 and 2522 of this chapter or tion. The application may propose under a grant program conducted using more than one program, however, and such assistance. the Corporation may choose to fund (b) In addition, the Corporation may any or all of those programs. provide program development assist- ance and conduct, directly or by grant § 2523.120 Must Federal agencies con- or contract, appropriate training pro- sult with State Commissions? grams regarding AmeriCorps in order Yes. Federal agencies must provide a to— description of the manner in which the (1) Improve the ability of AmeriCorps proposed AmeriCorps program(s) is co- programs assisted under parts 2521 and ordinated with the application of the 2522 of this chapter to meet edu- State in which the projects will be con- cational, public safety, human, or envi- ducted. Agencies must also describe ronmental needs in communities— proposed efforts to coordinate (i) Where services are needed most; AmeriCorps activities with State Com- and missions and other funded AmeriCorps (ii) Where programs do not exist, or programs within the State in order to are too limited to meet community build upon existing programs and not needs, as of the date on which the Cor- duplicate efforts. poration makes the grant or enters into the contract; PART 2524—AMERICORPS TECH- (2) Promote leadership development NICAL ASSISTANCE AND OTHER in such programs; (3) Improve the instructional and SPECIAL GRANTS programmatic quality of such pro- grams to build an ethic of civic respon- Sec. sibility; 2524.10 For what purposes will technical as- (4) Develop the management and sistance and training funds be made available? budgetary skills of program operators; 2524.20 What are the guidelines for program (5) Provide for or improve the train- development assistance and training ing provided to the participants in such grants? programs;
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(6) Encourage AmeriCorps programs community service programs to enroll to adhere to risk management proce- additional participants or undertake dures, including the training of partici- other activities specified by the Cor- pants in appropriate risk management poration. practices; and (d) Application procedures. Eligible ap- (7) Assist in such other manner as the plicants must comply with the require- Corporation may specify. ments specified in the Corporation’s application materials. § 2524.20 What are the guidelines for (e) Limitation on use of the funds. Each program development assistance year the Corporation will establish a and training grants? maximum award that a program may (a) Eligibility. States, Federal agen- receive as a challenge grant. cies, Indian tribes, public or private (f) Allocation of funds. The Corpora- nonprofit agencies, institutions of tion will determine annually how much higher education, for-profit businesses, funding will be allocated to challenge and individuals may apply for assist- grants from funds appropriated for ance under this section. AmeriCorps programs. (b) Duration. A grant made under this section will be for a term of up to one § 2524.40 What are the guidelines for year and is renewable. grants to involve persons with dis- (c) Application requirements. Eligible abilities? applicants must comply with the re- (a) Purpose. There are two general quirements specified in the Corpora- purposes for these grants: (1) To assist tion’s application package. AmeriCorps grantees in placing appli- cants who require reasonable accom- § 2524.30 What are the guidelines for modation (as defined in section 101(9) challenge grants? of the Americans With Disabilities Act (a) Purpose. The purpose of these of 1990, 42 U.S.C. 12111(9)) or auxiliary grants is to challenge high quality aids and services (as defined in section AmeriCorps programs to diversify their 3(1) of such Act, 42 U.S.C. 12102(1)) in an funding base by matching private dol- AmeriCorps program; and lars they have raised with Corporation (2) To conduct outreach activities to support. The Corporation will provide individuals with disabilities to recruit not more than $1 for each $1 raised in them for participation in AmeriCorps cash by the program from private programs. sources in excess of amounts otherwise (b) Eligibility—(1) Placement, accommo- required to be provided by the program dation, and auxiliary services. Eligibility to satisfy the matching funds require- for assistance under this part is limited ments specified under § 2521.30(g) of this to AmeriCorps programs that: (i) Re- chapter. ceive competitive funding from the (b) Eligibility. Only Corporation Corporation under § 2521.30(a)(3) or grantees that meet all of the following 2521.30(b)(3) of this chapter; and eligibility criteria may apply for chal- (ii) Demonstrate that the program lenge grants: (1) They are funded under has received a substantial number of parts 2520 through 2523 of this chapter. applications for placement from per- (2) They are high quality programs sons who are individuals with a dis- with demonstrated experience in estab- ability and who require a reasonable lishing and implementing projects that accommodation (as defined in section provide benefits to participants and 101(9) of the Americans with Disabil- communities. ities Act of 1990), or auxiliary aids and (3) They have operated with Corpora- services (as defined in section 3(1) of tion funds for at least six months. such Act) in order to perform national (4) They have secured the minimum service; and matching funds required by (iii) Demonstrate that additional §§ 2521.30(g), 2522.240(b)(5), 2522.250(a)(4), funding would assist the program in and 2522.250(b)(2) of this chapter. placing a substantial number of such (c) Allowable program activities. Chal- individuals with a disability as partici- lenge grants are intended to provide pants in projects carried out through special opportunities for national and the program.
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(2) Outreach. Corporation grantees § 2525.10 What is the National Service and any public or private nonprofit or- Trust? ganization may apply for funds to con- The National Service Trust is an ac- duct outreach to individuals with dis- count in the Treasury of the United abilities to recruit them for participa- States from which the Corporation tion in AmeriCorps programs. Outreach makes payments of education awards, funds can also be used by any organiza- pays interest that accrues on qualified tion to assist AmeriCorps programs in student loans for AmeriCorps partici- adapting their programs to encourage pants during terms of service in ap- greater participation by individuals proved national service positions, and with disabilities. makes other payments authorized by (c) Application procedures. Eligible ap- Congress. plicants must comply with the require- [64 FR 37414, July 12, 1999] ments specified in the Corporation’s application materials. § 2525.20 Definitions. In addition to the definitions in § 2524.50 What are the guidelines for assistance with disaster relief? § 2510.20 of this chapter, the following definitions apply to terms used in parts (a) Purpose. Disaster relief funds are 2525 through 2529 of this chapter: intended to provide emergency assist- Approved school-to-work program. The ance not otherwise available to enable term approved school-to-work program national and community service pro- means a program that is involved in a grams to respond quickly and effec- federally-approved school-to-work sys- tively to a Presidentially-declared dis- tem, as certified by a State, designated aster. local partnership, or other entity that (b) Eligibility. Any AmeriCorps pro- receives a grant under the School-to- gram (including youth corps, the Na- Work Opportunities Act of 1994 (20 tional Civilian Community Corps, U.S.C. 6101 et seq.). VISTA, and other programs authorized Cost of attendance. The term cost of under the Domestic Volunteer Services attendance has the same meaning as in Act) or grant making entity (such as a title IV of the Higher Education Act of State or Federal agency) that is sup- 1965, as amended (20 U.S.C. 1070 et. ported by the Corporation may apply seq.). for disaster relief grants. Current educational expenses. The (c) Application process. Eligible appli- term current educational expenses means the cost of attendance for a period of cants must comply with the require- enrollment that begins after an indi- ments specified in the Corporation’s vidual receives an education award. application materials. Education award. The term education (d) Waivers. In appropriate cases, due award means the financial assistance to the limited nature of disaster activi- available under parts 2526 and 2528 of ties, the Corporation may waive spe- this chapter for which an individual in cific program requirements such as an approved AmeriCorps position may matching requirements and the provi- be eligible. sion of AmeriCorps educational awards Holder. The term holder means— for participants supported with dis- (1) The original lender; or aster relief funds. (2) Any other entity to whom a loan is subsequently sold, transferred, or as- PART 2525—NATIONAL SERVICE signed if such entity acquires a legally TRUST: PURPOSE AND DEFINITIONS enforceable right to receive payments from the borrower. Sec. Institution of higher education. For the 2525.10 What is the National Service Trust? purposes of parts 2525 through 2529 of 2525.20 Definitions. this chapter, the term institution of higher education has the same meaning AUTHORITY: 42 U.S.C. 12601–12604. given the term in section 481(a) of the SOURCE: 59 FR 30710, June 15, 1994, unless Higher Education Act of 1965, as otherwise noted. amended (20 U.S.C. 1088(a)).
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Qualified student loan. The term quali- PART 2526—ELIGIBILITY FOR AN fied student loan means any loan made, EDUCATION AWARD insured, or guaranteed pursuant to title IV of the Higher Education Act of Sec. 1965 (20 U.S.C. 1070 et seq.), other than a 2526.10 Who is eligible to receive an edu- loan to a parent of a student pursuant cation award from the National Service to section 428B of such Act (20 U.S.C. Trust? 1078–2), any loan made pursuant to title 2526.20 Is an AmeriCorps participant who VII or VIII of the Public Service Health does not complete an originally–ap- Act (42 U.S.C. 292a et seq.), or any other proved term of service eligible to receive loan designated as such by Congress. a pro–rated education award? This includes, but is not necessarily 2526.30 How do convictions for the posses- sion or sale of controlled substances af- limited to, the following: fect an education award recipient’s abil- (1) Federal Family Education Loans. (i) ity to use that award? Subsidized and Unsubsidized Stafford 2526.40 What is the time period during Loans. which an individual must use an edu- (ii) Supplemental Loans to Students cation award? (SLS). 2526.50 Is there a limit on the number of (iii) Federal Consolidation Loans. education awards an individual may re- (iv) Guaranteed Student Loans (pred- ceive? 2526.60 May an individual receive an edu- ecessor to Stafford Loans). cation award and related interest bene- (v) Federally Insured Student Loans fits from the National Service Trust as (FISL). well as other loan cancellation benefits (2) William D. Ford Federal Direct for the same service? Loans. (i) Direct Subsidized and Unsub- AUTHORITY: 42 U.S.C. 12601–12604. sidized Stafford Loans. (ii) Direct Subsidized and Unsub- SOURCE: 59 FR 30711, June 15, 1994, unless sidized Ford Loans. otherwise noted. (iii) Direct Consolidation Loans. § 2526.10 Who is eligible to receive an (3) Federal Perkins Loans. (i) National education award from the National Direct Student Loans. Service Trust? (ii) National Defense Student Loans. (a) General. An individual is eligible (4) Public Health Service Act Loans. (i) to receive an education award from the Health Education Assistance Loans National Service Trust if the indi- (HEAL). vidual— (ii) Health Professions Student Loans (1) Is a citizen, national, or lawful (HPSL). permanent resident alien of the United (iii) Loans for Disadvantaged Stu- States; dents (LDS). (2) Is either at least 17 years of age at (iv) Nursing Student Loans (NSL). the commencement of service or is an (v) Primary Care Loans (PCL). out-of-school youth 16 years of age at Term of service. The term term of serv- the commencement of service partici- ice means— pating in a program described in (1) For AmeriCorps participants § 2522.110(b)(3) or (g) of this chapter; other than VISTA volunteers, any of (3) Successfully completes a term of the terms of service specified in service in an approved national service § 2522.220 of this chapter; and position. (2) For VISTA volunteers, not less (b) High school diploma or equivalent. than a full year of service as a VISTA To use an education award, an indi- volunteer. vidual must— [59 FR 30711, June 15, 1994 as amended at 64 (1) Have received a high school di- FR 37414, July 12, 1999] ploma or its equivalent; or
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(2) Be enrolled at an institution of fied time period, which is determined higher education on the basis of meet- based on the type of conviction as fol- ing the standard described in para- lows: graph (1) or (2) of subsection (a) of sec- (1) For conviction of the possession of tion 484 of the Higher Education Act of a controlled substance, the ineligi- 1965 (20 U.S.C. 1091) and meet the re- bility periods are— quirements of subsection of section 484; (i) One year for a first conviction; or (ii) Two years for a second convic- (3) Have received a waiver described tion; and in § 2522.200(b) of this chapter. (iii) For a third or subsequent convic- (c) Prohibition on duplicate benefits. tion, indefinitely, as determined by the An individual who receives a post-serv- Corporation according to the following ice benefit in lieu of an education factors— award may not receive an education (A) Type of controlled substance; award for the same term of service. (B) Amount of controlled substance; (d) Penalties for false information. Any (C) Whether firearms or other dan- individual who makes a materially gerous weapons were involved in the of- false statement or representation in fense; connection with the approval or dis- (D) Nature and extent of any other bursement of an education award or criminal record; other payment from the National Serv- (E) Nature and extent of any involve- ice Trust may be liable for the recov- ment in trafficking of controlled sub- ery of funds and subject to civil and stances; criminal sanctions. (F) Length of time between offenses; [64 FR 37414, July 12, 1999] (G) Employment history; (H) Service to the community; § 2526.20 Is an AmeriCorps participant (I) Recommendations from commu- who does not complete an origi- nity members and local officials, in- nally-approved term of service eligi- cluding experts in substance abuse and ble to receive a pro-rated education treatment; and award? (J) Any other relevant aggravating (a) Compelling personal circumstances. or ameliorating circumstances. A participant who is released prior to (2) For conviction of the sale of a completing an originally-approved controlled substance, the ineligibility term of service for compelling personal periods are— circumstances and who completes at (i) Two years for a first conviction; least 15 percent of the originally-ap- and proved term of service is eligible for a (ii) Two years plus such additional pro-rated education award. time as the Corporation determines as (b) Release for cause. A participant appropriate for second and subsequent who is released prior to completing an convictions, based on the factors set originally-approved term of service for forth in paragraphs (a)(1)(iii) (A) cause is not eligible for any portion of through (J) of this section. an education award. (b) (1) If the Corporation determines [64 FR 37415, July 12, 1999] that an individual who has had his or her eligibility to use the education § 2526.30 How do convictions for the award suspended pursuant to para- possession or sale of controlled sub- graph (a) of this section has success- stances affect an education award fully completed a legitimate drug reha- recipient’s ability to use that bilitation program, or in the case of a award? first conviction that the individual has (a) Except as provided in paragraph enrolled in a legitimate drug rehabili- (b) of this section, a recipient of an tation program, the individual’s eligi- education award who is convicted bility to use the education award will under pertinent Federal or State law of be restored. the possession or sale of a controlled (2) In order for the Corporation to de- substance is not eligible to use his or termine that the requirements of para- her education award from the date of graph (b)(1) of this section have been the conviction until the end of a speci- met—
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(i) The drug rehabilitation program § 2526.50 Is there a limit on the num- must be recognized as legitimate by ap- ber of education awards an indi- propriate Federal, State or local au- vidual may receive? thorities; and (a) First and second terms of service. An (ii) The individual’s enrollment in or individual may receive an education successful completion of the legitimate award for only the first and second drug rehabilitation program must be terms of service for which an education certified by an appropriate official of award is available, regardless of the that program. length of the term. (b) Release for cause. Except as pro- [59 FR 30711, June 15, 1994. Redesignated at 64 FR 37415, July 12, 1999] vided in paragraph (c) of this section, a term of service from which an indi- § 2526.40 What is the time period dur- vidual is released for cause counts as ing which an individual must use one of the two terms of service for an education award? which an individual may receive an education award. (a) General requirement. An individual (c) Early release. If a participant is re- must use an education award within leased for reasons other than mis- seven years of the date on which the conduct prior to completing fifteen individual successfully completes a percent of a term of service, the term term of service, unless the individual will not be considered one of the two applies for and receives an extension in terms of service for which an indi- accordance with the requirements of vidual may receive an education award. paragraph (b) of this section. (b) Extensions. In order to receive an [64 FR 37415, July 12, 1999] extension of the seven-year time period § 2526.60 May an individual receive an for using an education award, an indi- education award and related inter- vidual must apply to the Corporation est benefits from the National Serv- for an extension prior to the end of ice Trust as well as other loan can- that time period. The Corporation will cellation benefits for the same serv- grant an application for an extension ice? under the following circumstances: No. An individual may not receive an (1) If the Corporation determines education award and related interest that an individual was performing an- benefits from the National Service other term of service in an approved Trust for a term of service and have AmeriCorps position during the seven- that same service credited toward re- year period, the Corporation will grant payment, discharge, or cancellation of an extension for a time period that is other student loans. equivalent to the time period during [64 FR 37415, July 12, 1999] which the individual was performing the other term of service. (2) If the Corporation determines PART 2527—DETERMINING THE that an individual was unavoidably AMOUNT OF AN EDUCATION prevented from using the education AWARD award during the seven-year period, the Corporation will grant an exten- AUTHORITY: 42 U.S.C. 12601–12604. sion for a period of time that the Cor- poration deems appropriate. An indi- SOURCE: 64 FR 37415, July 12, 1999, unless otherwise noted. vidual who is ineligible to use an edu- cation award as a result of the individ- § 2527.10 What is the amount of an ual’s conviction of the possession or AmeriCorps education award? sale of a controlled substance is not (a) Full-time term of service. The edu- considered to be unavoidably prevented cation award for a full-time term of from using the education award for the service of at least 1,700 hours is $4,725. purposes of this paragraph. (b) Part-time term of service. The edu- [59 FR 30711, June 15, 1994. Redesignated and cation award for a part-time term of amended at 64 FR 37415, July 12, 1999] service of at least 900 hours is $2,362.50.
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(c) Reduced part-time term of service. SOURCE: 64 FR 37415, July 12, 1999, unless The education award for a reduced otherwise noted. part-time term of service of fewer than 900 hours is— § 2528.10 For what purposes may an education award be used? (1) An amount equal to the product of— (a) Authorized uses. An education (i) The number of hours of service re- award may be used— quired to complete the reduced part- (1) To repay qualified student loans time term of service divided by 900; and in accordance with § 2528.20; (2) To pay all or part of the current (ii) 2,362.50; or cost of attendance at an institution of (2) An amount as determined other- higher education in accordance with wise by the Corporation. § 2528.30 through § 2528.50; (d) Release for compelling personal cir- (3) To pay expenses incurred in par- cumstances. The education award for an ticipating in an approved school-to- individual who is released from com- work program in accordance with pleting an originally-approved term of § 2528.60 through § 2528.70. service for compelling personal cir- (b) Multiple uses. An education award cumstances is equal to the product of— is divisible and may be applied to any (1) The number of hours completed combination of loans, costs, or ex- divided by the number of hours in the penses described in paragraph (a) of originally-approved term of service; this section. and (2) The amount of the education § 2528.20 What steps are necessary to award for the originally-approved term use an education award to repay a of service. qualified student loan? (a) Required information. Before dis- PART 2528—USING AN EDUCATION bursing an amount from an education AWARD award to repay a qualified student loan, the Corporation must receive— Sec. (1) An individual’s written authoriza- 2528.10 For what purposes may an education tion and request for a specific payment award be used? amount; 2528.20 What steps are necessary to use an (2) Identifying and other information education award to repay a qualified stu- from the holder of the loan as re- dent loan? quested by the Corporation and nec- 2528.30 What steps are necessary to use an essary to ensure compliance with this education award to pay all or part of the part. current cost of attendance at an institu- (b) Payment. When the Corporation tion of higher education? 2528.40 Is there a limit on the amount of an receives the information required individual’s education award that the under paragraph (a) of this section, the Corporation will disburse to an institu- Corporation will pay the holder of the tion of higher education for a given pe- loan and notify the individual of the riod of enrollment? payment. 2528.50 What happens if an individual with- (c) Aggregate payments. The Corpora- draws or fails to complete the period of tion may establish procedures to aggre- enrollment in an institution of higher gate payments to holders of loans for education for which the Corporation has more than a single individual. disbursed all or part of that individual’s education award? § 2528.30 What steps are necessary to 2528.60 What steps are necessary to use an use an education award to pay all education award to pay expenses in- or part of the current cost of at- curred in participating in an approved tendance at an institution of higher school-to-work program? education? 2528.70 What happens if an individual with- draws or fails to complete the period of (a) Required information. Before dis- enrollment in an approved school-to- bursing an amount from an education work program for which the Corporation award to pay all or part of the current has disbursed all or part of that individ- cost of attendance at an institution of ual’s education award? higher education, the Corporation AUTHORITY: 42 U.S.C. 12601–12604. must receive—
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(1) An individual’s written authoriza- stallments may not be less than one- tion and request for a specific payment half of the period of enrollment, except amount; as necessary to permit the second in- (2) Information from the institution stallment to be paid at the beginning of higher education as requested by the of the second semester, quarter, or Corporation, including verification other division of a period of enroll- that— ment. (i) It has in effect a program partici- pation agreement under section 487 of § 2528.40 Is there a limit on the the Higher Education Act of 1965 (20 amount of an individual’s education U.S.C. 1094); award that the Corporation will (ii) Its eligibility to participate in disburse to an institution of higher any of the programs under title IV of education for a given period of en- rollment? the Higher Education Act of 1965 has not been limited, suspended, or termi- Yes. The Corporation’s disbursement nated; from an individual’s education award (iii) It has in effect a fair and equi- for any period of enrollment may not table refund policy, consistent with the exceed the difference between— requirements of paragraphs (b) and (c) (a) The individual’s cost of attend- of section 484B of the Higher Education ance for that period of enrollment, de- Act of 1965 (20 U.S.C. 1091b) and 34 CFR termined by the institution of higher 668.22, and must ensure an appropriate education in accordance with section refund to the Corporation if an indi- 472 of the Higher Education Act of 1965 vidual who has used an education (20 U.S.C. 1987ll); and award withdraws or otherwise fails to (b) The sum of— complete the period of enrollment for (1) The individual’s estimated finan- which the education award was pro- cial assistance for that period under vided; part A of title IV of the Higher Edu- (iv) Individuals using education cation Act; and awards to pay for the current cost of (2) The individual’s veterans’ edu- attendance at that institution do not cation benefits as defined under section comprise more than 15 percent of the 480(c) of the Higher Education Act (20 institution’s total student population; U.S.C. 1087vv(c)). (v) The amount requested will be used to pay all or part of the individ- § 2528.50 What happens if an indi- ual’s cost of attendance; vidual withdraws or fails to com- (vi) The amount requested does not plete the period of enrollment in an exceed the difference between: institution of higher education for (A) The individual’s cost of attend- which the Corporation has dis- ance; and bursed all or part of that individ- ual’s education award? (B) The sum of the individual’s esti- mated student financial assistance for (a)(1) An institution of higher edu- that period under part A of title IV of cation that receives a disbursement of the Higher Education Act and the indi- education award funds from the Cor- vidual’s veterans’ education benefits as poration must have in effect, and must defined in section 480(c) of the Higher comply with, a fair and equitable re- Education Act (20 U.S.C. 1087vv(c)). fund policy that includes procedures (b) Payment. When the Corporation for providing a refund to the Corpora- receives the information required tion if an individual for whom the Cor- under paragraph (a) of this section, the poration has disbursed education award Corporation will pay the institution funds withdraws or otherwise fails to and notify the individual of the pay- complete a period of enrollment. ment. (2) For purposes of this part, an insti- (c) Installment payments. The Corpora- tution of higher education’s refund pol- tion will disburse the education award icy is deemed ‘‘fair and equitable’’ if it to the institution of higher education is consistent with the requirements of in at least two separate installments, paragraphs (b) and (c) of section 484B of none of which exceeds 50 percent of the the Higher Education Act of 1965 (20 total amount. The interval between in- U.S.C. 1091b) and 34 CFR 668.22.
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(b) The Corporation will credit any table refund to the Corporation if an refund received for an individual under individual for whom the Corporation paragraph (a) of this section to the in- has disbursed education award funds dividual’s education award allocation withdraws or otherwise fails to com- in the National Service Trust. plete a period of enrollment. (2) For purposes of this part, a refund § 2528.60 What steps are necessary to is deemed ‘‘fair and equitable’’ if it is use an education award to pay ex- penses incurred in participating in an amount consistent with the require- an approved school-to-work pro- ments of paragraphs (b) and (c) of sec- gram? tion 484B of the Higher Education Act of 1965 (20 U.S.C. 1091b) and 34 CFR (a) Required information. Before dis- bursing an amount from an education 668.22. award to pay expenses incurred in par- (b) The Corporation will credit any ticipating in an approved school-to- refund received for an individual under work program, the Corporation must paragraph (a) of this section to the in- receive— dividual’s education award allocation (1) An individual’s written authoriza- in the National Service Trust. tion and request for a specific payment amount; PART 2529—PAYMENT OF (2) Information from the school-to- ACCRUED INTEREST work program as requested by the Cor- poration, including verification that— Sec. (i) It is involved in a federally-ap- 2529.10 Under what circumstances will the proved school-to-work system, as cer- Corporation pay interest that accrues on tified by a State, designated local part- qualified student loans during an individ- nership, or other entity that receives a ual’s term of service in an approved grant under the School-to-Work Oppor- AmeriCorps position? tunities Act of 1994 (20 U.S.C. 6101); 2529.20 What steps are necessary to obtain (ii) The amount requested will be forbearance in the repayment of a quali- used to pay all or part of the individ- fied student loan during an individual’s term of service in an approved ual’s cost of participating in the AmeriCorps position? school-to-work program; 2529.30 What steps are necessary for using (iii) It will ensure an appropriate re- funds in the National Service Trust to fund, consistent with the requirements pay interest that has accrued on a quali- of paragraphs (b) and (c) of section 484B fied student loan during a term of service of the Higher Education Act of 1965 (20 for which the individual has obtained for- U.S.C. 1091b) and 34 CFR 668.22, to the bearance? Corporation if an individual who has AUTHORITY: 42 U.S.C. 12601–12604. used an education award withdraws or otherwise fails to complete the period SOURCE: 64 FR 37417, July 12, 1999, unless otherwise noted. of enrollment for which the education award was provided. § 2529.10 Under what circumstances (b) Payment. When the Corporation will the Corporation pay interest receives the information required that accrues on qualified student under paragraph (a) of this section, the loans during an individual’s term of Corporation will pay the program and service in an approved AmeriCorps notify the individual of the payment. position? (a) Eligibility. The Corporation will § 2528.70 What happens if an indi- pay interest that accrues on an individ- vidual withdraws or fails to com- plete the period of enrollment in an ual’s qualified student loan, subject to approved school-to-work program the limitation on amount in paragraph for which the Corporation has dis- (b) of this section, if— bursed all or part of that individ- (1) The individual successfully com- ual’s education award? pletes a term of service in an approved (a)(1) An approved school-to-work AmeriCorps position; and program that receives a disbursement (2) The holder of the loan approves of education award funds from the Cor- the individual’s request for forbearance poration must provide a fair and equi- during the term of service.
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(b) Amount. The percentage of ac- which the term of service began and crued interest that the Corporation ended; will pay is the lesser of— (2) The holder of the loan verifies the (1) The product of— amount of interest that has accrued (i) The number of hours of service during the term of service. completed divided by the number of (b) When the Corporation receives all days for which forbearance was grant- necessary information from the pro- ed; and gram and the holder of the loan, the (ii) 365 divided by 17; and (2) 100. Corporation will pay the holder of the (c) Supplemental to education award. A loan and notify the individual of the payment of accrued interest under this payment. part is supplemental to an education award received by an individual under parts 2526 through 2528 of this chapter. PART 2530—PURPOSES AND AVAIL- (d) Limitation. The Corporation is not ABILITY OF GRANTS FOR INVEST- responsible for the repayment of any MENT FOR QUALITY AND INNO- accrued interest in excess of the VATION ACTIVITIES amount determined in accordance with paragraph (b) of this section. Sec. (e) Suspended service. The Corporation 2530.10 What are the purposes of the Invest- will not pay any interest expenses that ment for Quality and Innovation activi- accrue on an individual’s qualified stu- ties? dent loan during a period of suspended 2530.20 Funding priorities. service. AUTHORITY: 42 U.S.C. 12501 et seq. § 2529.20 What steps are necessary to obtain forbearance in the repay- 2530.10 What are the purposes of the ment of a qualified student loan Investment for Quality and Innova- during an individual’s term of serv- tion activities? ice in an approved AmeriCorps po- Investment for Quality and Innova- sition? tion activities are designed to develop (a) An individual seeking forbearance service infrastructure and improve the must submit a request to the holder of overall quality of national and commu- the loan. nity service efforts. Specifically, the (b) If, before approving a request for Corporation will support innovative forbearance, the holder of the loan re- and model programs that otherwise quires verification that the individual may not be eligible for funding; and is serving in an approved AmeriCorps support other activities, such as train- position, the Corporation will provide ing and technical assistance, summer verification upon a request from the in- programs, leadership training, re- dividual or the holder of the loan. search, promotion and recruitment, and special fellowships and awards. The § 2529.30 What steps are necessary for using funds in the National Service Corporation may conduct these activi- Trust to pay interest that has ac- ties either directly or through grants crued on a qualified student loan to or contracts with qualified organiza- during a term of service for which tions. an individual has obtained forbear- ance? [59 FR 13806, Mar. 23, 1994] (a) The Corporation will make pay- § 2530.20 Funding priorities. ments from the National Service Trust for interest that has accrued on a The Corporation may choose to set qualified student loan during a term of priorities (and to periodically revise service which the individual has suc- such priorities) that limit the types of cessfully completed and for which an innovative and model programs and individual has obtained forbearance, support activities it will undertake or after the following: fund in a given fiscal year. In setting (1) The program verifies that the in- these priorities, the Corporation will dividual has successfully completed the seek to concentrate funds on those ac- term of service and the dates upon tivities that will be most effective and
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efficient in fulfilling the purposes of (A) The community in which the in- this part. stallation is located; or (B) A community located within 50 [59 FR 13806, Mar. 23, 1994] miles of the installation or such fur- ther distance as the Chief Executive PART 2531—INNOVATIVE AND SPE- Officer may deem appropriate on a CIAL DEMONSTRATION PRO- case-by-case basis. GRAMS (4) Demonstration program. The term demonstration program means a program Sec. described in paragraph (c) of this sec- 2531.10 Military Installation Conversion tion. Demonstration programs. 2531.20 Special Demonstration Project for (c) Demonstration programs. (1) the Yukon-Kuskokwim Delta of Alaska. Grants— The Corporation may make 2531.30 Other innovative and model pro- grants to communities and commu- grams. nity-based agencies to pay for the Fed- AUTHORITY: 42 U.S.C. 12501 et seq. eral share of establishing and carrying out military installation conversion SOURCE: 59 FR 13806, Mar. 23, 1994, unless demonstration programs, to assist in otherwise noted. converting to community use affected § 2531.10 Military Installation Conver- military installations located— sion Demonstration programs. (i) Within the community; or (ii) Within 50 miles of the commu- (a) Purposes. The purposes of this sec- nity. tion are to: (1) Provide direct and de- (2) In carrying out such a monstrable service opportunities for Duration. economically disadvantaged youth; demonstration program, the commu- (2) Fully utilize military installa- nity or community-based agency may tions affected by closures or realign- carry out— ments; (i) A program of not less than 6 (3) Encourage communities affected months in duration; or by such closures or realignments to (ii) A full-time summer program. convert the installations to commu- (d) Use of Funds—(1) Stipend. A com- nity use; and munity or community-based agency (4) Foster a sense of community pride that receives a grant under paragraph in the youth in the community. (c) of this section to establish and (b) Definitions. As used in this sec- carry out a project through a dem- tion: (1) Affected military installation. onstration program may use the funds The term affected military installation made available through such grant to means a military installation described pay for a portion of a stipend for the in section 325(e)(1) of the Job Training participants in the project. Partnership Act (29 U.S.C. 1662d(e)(1)). (2) Limitation on amount of stipend. (2) Community. The term community The amount of the stipend provided to includes a county. a participant under paragraph (d)(1) of (3) Convert to community use. The this section that may be paid using as- term convert to community use, used sistance provided under this section with respect to an affected military in- and using any other Federal funds may stallation, includes— not exceed the lesser of— (i) Conversion of the installation or a (i) 85 percent of the total average an- part of the installation to— nual subsistence allowance provided to (A) A park; VISTA volunteers under section 105 of (B) A community center; the Domestic Volunteer Service Act of (C) A recreational facility; or 1973 (42 U.S.C. 4955); and (D) A facility for a Head Start pro- (ii) 85 percent of the stipend estab- gram under the Head Start Act (42 lished by the demonstration program U.S.C. 9831 et seq.); and involved. (ii) Carrying out, at the installation, (e) Participants—(1) Eligibility. A per- a construction or economic develop- son will be eligible to be selected as a ment project that is of substantial ben- participant in a project carried out efit, as determined by the Chief Execu- through a demonstration program if tive Officer, to— the person is—
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(i) Economically disadvantaged and § 2531.20 Special Demonstration between the ages of 16 and 24, inclusive; Project for the Yukon-Kuskokwim (ii) In the case of a full-time summer Delta of Alaska. program, economically disadvantaged (a) Special Demonstration Project for and between the ages of 14 and 24; or the Yukon-Kuskokwim Delta of Alaska. (iii) An eligible youth as described in The President may award grants to, section 423 of the Job Training Part- and enter into contracts with, organi- nership Act (29 U.S.C. 1693). zations to carry out programs that ad- (2) Participation. Persons desiring to dress significant human needs in the participate in such a project must Yukon-Kuskokwim delta region of enter into an agreement with the spon- Alaska. sor of the project to participate— (b) Application.—(1) General require- (i) On a full-time or a part-time ments. To be eligible to receive a grant basis; and or enter into a contract under para- graph (a) of this section with respect to (ii) For the duration referred to in a program, an organization must sub- paragraph (f)(2)(iii) of this section. mit an application to the President at (f) Application—(1) In general. To be such time, in such manner, and con- eligible to receive a grant under para- taining such information as required. graph (c) of this section, a community (2) Contents. The application sub- or community-based agency must sub- mitted by the organization must, at a mit an application to the Chief Execu- minimum— tive Officer at such time, in such man- (i) Include information describing the ner, and containing such information manner in which the program will uti- as the Chief Executive Officer may re- lize VISTA volunteers, individuals who quire. have served in the Peace Corps, and (2) Contents. At a minimum, such ap- other qualified persons, in partnership plication must contain— with the local nonprofit organizations (i) A description of the demonstra- known as the Yukon-Kuskokwim tion program proposed to be conducted Health Corporation and the Alaska Vil- by the applicant; lage Council Presidents; (ii) A proposal for carrying out the (ii) Take into consideration— program that describes the manner in (A) The primarily noncash economy which the applicant will— of the region; and (A) Provide preservice and inservice (B) The needs and desires of residents training, for supervisors and partici- of the local communities in the region; pants, that will be conducted by quali- and fied individuals or qualified organiza- (iii) Include specific strategies, devel- tions; oped in cooperation with the Yupi’k (B) Conduct an appropriate evalua- speaking population that resides in tion of the program; and such communities, for comprehensive and intensive community development (C) Provide for appropriate commu- for communities in the Yukon- nity involvement in the program; Kuskokwim delta region. (iii) Information indicating the dura- tion of the program; and § 2531.30 Other innovative and model (iv) An assurance that the applicant programs. will comply with the nonduplication, (a) The Corporation may support nondisplacement and grievance proce- other innovative and model programs dure provisions of part 2540 of this such as the following: (1) Programs, in- chapter. cluding programs for rural youth, de- (g) Limitation on Grant. In making a scribed in parts 2515 through 2524 of grant under paragraph (c) of this sec- this chapter; tion with respect to a demonstration (2) Employer-based retiree programs; program to assist in converting an af- (3) Intergenerational programs; fected military installation, the Cor- (4) Programs involving individuals poration will not make a grant for with disabilities providing service; more than 25 percent of the total cost (5) Programs sponsored by Governors; of the conversion. and
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(6) Summer programs carried out be- (d) Peace Corps and VISTA training. tween May 1 and October 1 (which may The Corporation may provide training also contain a year-round component). assistance to selected individuals who (b) The Corporation will support in- volunteer to serve in the Peace Corps novative service-learning programs. or a program authorized under title I of (c) Application procedures, selection the Domestic Volunteer Service Act of criteria, timing, and other require- 1973 (42 U.S.C. 4951 et seq.). The training ments will be announced in the FED- will be provided as part of the course of ERAL REGISTER. study of the individual at an institu- tion of higher education, involve serv- PART 2532—TECHNICAL ASSIST- ice-learning, and cover appropriate skills that the individual will use in ANCE, TRAINING, AND OTHER the Peace Corps or VISTA. SERVICE INFRASTRUCTURE-BUILD- (e) Promotion and recruitment. The ING ACTIVITIES Corporation may conduct a campaign to solicit funds for the National Serv- AUTHORITY: 42 U.S.C. 12501 et seq. ice Trust and other programs and ac- tivities authorized under the national § 2532.10 Eligible activities. service laws and to promote and re- cruit participants for programs that re- The Corporation may support—either ceive assistance under the national directly or through a grant, contract service laws. or agreement—any activity designed to meet the purposes described in part (f) Training. The Corporation may 2530 of this chapter. These activities in- support national and regional partici- clude, but are not limited to, the fol- pant and supervisor training, including lowing: (a) Community-based agencies. leadership training and training in spe- The Corporation may provide training cific types of service and in building and technical assistance and other as- the ethic of civic responsibility. sistance to project sponsors and other (g) Research. The Corporation may community-based agencies that pro- support research on national service, vide volunteer placements in order to including service-learning. improve the ability of such agencies to (h) Intergenerational support. The Cor- use participants and other volunteers poration may assist programs in devel- in a manner that results in high-qual- oping a service component that com- ity service and a positive service expe- bines students, out-of-school youths, rience for the participants and volun- and older adults as participants to pro- teers. vide needed community services. (b) Improve ability to apply for assist- (i) Planning coordination. The Cor- ance. The Corporation will provide poration may coordinate community- training and technical assistance, wide planning among programs and where necessary, to individuals, pro- projects. grams, local labor organizations, State (j) Youth leadership. The Corporation educational agencies, State Commis- may support activities to enhance the sions, local educational agencies, local ability of youth and young adults to governments, community-based agen- play leadership roles in national serv- cies, and other entities to enable them ice. to apply for funding under one of the (k) National program identity. The Cor- national service laws, to conduct high- poration may support the development quality programs, to evaluate such pro- and dissemination of materials, includ- grams, and for other purposes. ing training materials, and arrange for (c) Conferences and materials. The Cor- uniforms and insignia, designed to pro- poration may organize and hold con- mote unity and shared features among ferences, and prepare and publish mate- programs that receive assistance under rials, to disseminate information and the national service laws. promote the sharing of information (l) Service-learning. The Corporation among programs for the purpose of im- will support innovative programs and proving the quality of programs and activities that promote service-learn- projects. ing.
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(m) National youth service day—(1) (vii) Coordinate the activities of the Designation. April 19, 1994, and April 18, clearinghouse with appropriate entities 1995 are each designated as ‘‘National to avoid duplication of effort; Youth Service Day’’. The President is (viii) Make recommendations to authorized and directed to issue a proc- State and local entities on quality con- lamation calling on the people of the trols to improve the delivery of com- United States to observe the day with munity service programs and on appropriate ceremonies and activities. changes in the programs under this (2) Federal activities. In order to ob- chapter; and serve National Youth Service Day at (ix) Carry out such other activities as the Federal level, the Corporation may the Chief Executive Officer determines organize and carry out appropriate to be appropriate. ceremonies and activities. (o) Assistance for Head Start. The Cor- (3) Activities. The Corporation may poration may make grants to, and make grants to public or private non- enter into contracts and cooperative profit organizations with demonstrated agreements with, public or nonprofit ability to carry out appropriate activi- private agencies and organizations that ties, in order to support such activities receive grants or contracts under the on National Youth Service Day. Foster Grandparent Program (part B of (n) Clearinghouses—(1) Authority. The title II of the Domestic Volunteer Corporation may establish clearing- Service Act of 1973 (29 U.S.C. 5011 et houses, either directly or through a seq.)), for projects of the type described grant or contract. Any service-learning in section 211(a) of such Act (29 U.S.C. clearinghouse to be established pursu- 5011) operating under memoranda of ant to part 2518 of this chapter is eligi- agreement with the ACTION Agency, ble to apply for a grant under this sec- for the purpose of increasing the num- tion. In addition, public or private non- ber of low-income individuals who pro- profit organizations are eligible to vide services under such program to apply for clearinghouse grants. children who participate in Head Start (2) Function. A Clearinghouse may programs under the Head Start Act (42 perform the following activities: (i) As- U.S.C. 9831 et seq.). sist entities carrying out State or local (p) Other assistance. The Corporation community service programs with may support other activities that are needs assessments and planning; consistent with the purposes described in part 2530 of this chapter. (ii) Conduct research and evaluations concerning community service; [59 FR 13807, Mar. 23, 1994] (iii) Provide leadership development and training to State and local commu- PART 2533—SPECIAL ACTIVITIES nity service program administrators, supervisors, and participants; and pro- Sec. vide training to persons who can pro- 2533.10 National service fellowships. vide such leadership development and 2533.20 Presidential awards for service. training; AUTHORITY: 42 U.S.C. 12501 et seq. (iv) Facilitate communication among entities carrying out community serv- § 2533.10 National service fellowships. ice programs and participants; The Corporation may award national (v) Provide information, curriculum service fellowships on a competitive materials, and technical assistance re- basis. Application procedures, selection lating to planning and operation of criteria, timing and other require- community service programs, to States ments will be announced in the FED- and local entities eligible to receive ERAL REGISTER. funds under this chapter; (vi) Gather and disseminate informa- [59 FR 13808, Mar. 23, 1994] tion on successful community service programs, components of such success- § 2533.20 Presidential awards for serv- ful programs, innovative youth skills ice. curriculum, and community service The President, acting through the projects; Corporation, may make Presidential
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awards for service to individuals pro- SOURCE: 59 FR 13808, Mar. 23, 1994, unless viding significant service, and to out- otherwise noted. standing programs. Information about recipients of such awards will be widely Subpart A—Requirements Con- disseminated. The President may pro- cerning the Distribution and vide such awards to any deserving indi- Use of Corporation Assistance vidual or program, regardless of wheth- er the individual is serving in a pro- § 2540.100 What restrictions govern gram authorized by this chapter or the use of Corporation assistance? whether the program is itself author- (a) Supplantation. Corporation assist- ized by this chapter. In no instance, ance may not be used to replace State however, may the award be a cash award. and local public funds that had been used to support programs of the type [59 FR 13808, Mar. 23, 1994] eligible to receive Corporation support. For any given program, this condition PART 2540—GENERAL will be satisfied if the aggregate non- ADMINISTRATIVE PROVISIONS Federal public expenditure for that program in the fiscal year that support Subpart A—Requirements Concerning the is to be provided is not less than the Distribution and Use of Corporation As- previous fiscal year. sistance (b) Religious use. Corporation assist- ance may not be used to provide reli- Sec. gious instruction, conduct worship 2540.100 What restrictions govern the use of services, or engage in any form of pros- Corporation assistance? 2540.110 Limitation on use of Corporation elytization. funds for administrative costs. (c) Political activity. Corporation as- sistance may not be used by program Subpart B—Requirements Directly Affecting participants or staff to assist, promote, the Selection and Treatment of Participants or deter union organizing; or finance, directly or indirectly, any activity de- 2540.200 Under what circumstances may par- ticipants be engaged? signed to influence the outcome of a 2540.210 What provisions exist to ensure Federal, State or local election to pub- that Corporation-supported programs do lic office. not discriminate in the selection of par- (d) Contracts or collective bargaining ticipants and staff? agreements. Corporation assistance may 2540.220 Under what circumstances and sub- not be used to impair existing con- ject to what conditions are participants tracts for services or collective bar- in Corporation-assisted projects eligible for family and medical leave? gaining agreements. 2540.230 What grievance procedures must re- (e) Nonduplication. Corporation as- cipients of Corporation assistance estab- sistance may not be used to duplicate lish? an activity that is already available in the locality of a program. And, unless Subpart C—Other Requirements for the requirements of paragraph (f) of Recipients of Corporation Assistance this section are met, Corporation as- 2540.300 What must be included in annual sistance will not be provided to a pri- State reports to the Corporation? vate nonprofit entity to conduct activi- 2540.310 Must programs that receive Cor- ties that are the same or substantially poration assistance establish standards equivalent to activities provided by a of conduct? State or local government agency in 2540.320 How are participant benefits treat- which such entity resides. ed? (f) Nondisplacement. (1) An employer Subpart D—Suspension and Termination of may not displace an employee or posi- Corporation Assistance tion, including partial displacement such as reduction in hours, wages, or 2540.400 Under what circumstances will the employment benefits, as a result of the Corporation suspend or terminate a use by such employer of a participant grant or contract? in a program receiving Corporation as- AUTHORITY: 42 U.S.C. 12501 et seq. sistance.
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(2) A service opportunity will not be (i) Limit the amount or rate of indi- created under this chapter that will in- rect costs that may be paid with Cor- fringe in any manner on the pro- poration funds under a grant or motional opportunity of an employed subgrant to five percent of total Cor- individual. poration funds expended, provided (3) A participant in a program receiv- that— ing Corporation assistance may not (A) Organizations that have an estab- perform any services or duties or en- lished indirect cost rate for Federal gage in activities that would otherwise awards will be limited to this method; be performed by an employee as part of and the assigned duties of such employee. (B) Unreimbursed indirect costs may (4) A participant in any program re- be applied to meeting operational ceiving assistance under this chapter matching requirements under the Cor- may not perform any services or du- ties, or engage in activities, that— poration’s award; (i) Will supplant the hiring of em- (ii) Specify that a fixed rate of five ployed workers; or percent or less (not subject to sup- (ii) Are services, duties, or activities porting cost documentation) of total with respect to which an individual has Corporation funds expended may be recall rights pursuant to a collective used to pay for administrative costs, bargaining agreement or applicable provided that the fixed rate is in con- personnel procedures. junction with an overall 15 percent ad- (5) A participant in any program re- ministrative cost factor to be used for ceiving assistance under this chapter organizations that do not have estab- may not perform services or duties lished indirect cost rates; or that have been performed by or were (iii) Utilize such other method that assigned to any— the Corporation determines in writing (i) Presently employed worker; is consistent with OMB guidance and (ii) Employee who recently resigned other applicable requirements, helps or was discharged; minimize the burden on grantees or (iii) Employee who is subject to a re- subgrantees, and is beneficial to grant- duction in force or who has recall ees or subgrantees and the Federal rights pursuant to a collective bar- Government. gaining agreement or applicable per- (b) Costs attributable to administra- sonnel procedures; tive functions as well as program func- (iv) Employee who is on leave (ter- tions should be prorated between ad- minal, temporary, vacation, emer- ministrative costs and program costs. gency, or sick); or (v) Employee who is on strike or who [63 FR 18138, Apr. 14, 1998] is being locked out.
§ 2540.110 Limitation on use of Cor- Subpart B—Requirements Directly poration funds for administrative Affecting the Selection and costs. Treatment of Participants (a)(1) Not more than five percent of the grant funds provided under 45 CFR § 2540.200 Under what circumstances 2516, 2517, 2519, and 2521 for any fiscal may participants be engaged? year may be used to pay for adminis- A State may not engage a partici- trative costs, as defined in § 2510.20 of pant to serve in any program that re- this chapter. ceives Corporation assistance unless (2) The distribution of administrative and until amounts have been appro- costs between the grant and any priated under section 501 of the Act (42 subgrant will be subject to the ap- U.S.C. 12681) for the provision of proval of the Corporation. AmeriCorps educational awards and for (3) In applying the limitation on ad- the payment of other necessary ex- ministrative costs the Corporation will penses and costs associated with such approve one of the following methods participant. in the award document:
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§ 2540.210 What provisions exist to en- the year preceding the start of the sure that Corporation-supported leave; and programs do not discriminate in the (2) The program’s project sponsors selection of participants and staff? engages in commerce or any industry (a) An individual with responsibility or activity affecting commerce, and for the operation of a project that re- employs at least 50 employees for each ceives Corporation assistance must not working day during 20 or more cal- discriminate against a participant in, endar workweeks in the current or pre- or member of the staff of, such project ceding calendar year. on the basis of race, color, national ori- (b) Participants in Federal programs. gin, sex, age, or political affiliation of Participants in Federal programs oper- such participant or member, or on the ated by the Corporation or by another basis of disability, if the participant or Federal agency will be considered Fed- member is a qualified individual with a eral employees for the purposes of the disability. Family and Medical Leave Act if the (b) Any Corporation assistance con- participants have completed 12 months stitutes Federal financial assistance of service and the project sponsor is an for purposes of title VI of the Civil employing agency as defined in 5 U.S.C Rights Act of 1964 (42 U.S.C. 2000d et 6381 et seq.; such participants therefore seq.), title IX of the Education Amend- will be eligible for the same family and ments of 1972 (20 U.S.C. 1681 et seq.), medical leave benefits afforded to such section 504 of the Rehabilitation Act of Federal employees. 1973 (29 U.S.C. 794), and the Age Dis- (c) General terms and conditions. Par- crimination Act of 1975 (42 U.S.C. 6101 ticipants that qualify as eligible em- et seq.), and constitutes Federal finan- ployees under paragraphs (a) or (b) of cial assistance to an education pro- this section are entitled to take up to gram or activity for purposes of the 12 weeks of unpaid leave during a 12 Education Amendments of 1972 (20 month period for any of the following U.S.C. 1681 et seq.). reasons (in the cases of both para- (c) An individual with responsibility graphs (c)(1) and (2) of this section the for the operation of a project that re- entitlement to leave expires 12 months ceives Corporation assistance may not after the birth or placement of such discriminate on the basis of religion child): (1) The birth of a child to a par- against a participant in such project or ticipant; a member of the staff of such project (2) The placement of a child with a who is paid with Corporation funds. participant for adoption or foster care; This provision does not apply to the employment (with Corporation assist- (3) The serious illness of a partici- ance) of any staff member of a Corpora- pant’s spouse, child or parent; or tion-supported project who was em- (4) A participants serious health con- ployed with the organization operating dition that makes that participant un- the project on the date the Corporation able to perform his or her essential grant was awarded. service duties (a serious health condi- tion is an illness or condition that re- § 2540.220 Under what circumstances quires either inpatient care or con- and subject to what conditions are tinuing treatment by a health care pro- participants in Corporation-as- vider). sisted programs eligible for family (d) Intermittent leave or reduced serv- and medical leave? ice. The program, serving as the project (a) Participants in State, local, or pri- sponsor, may allow a participant to vate nonprofits programs. A participant take intermittent leave or reduce his in a State, local, or private nonprofit or her service hours due to the birth of program receiving support from the or placement of a child for adoption or Corporation is considered an eligible foster care. The participant may also employee of the program’s project take leave to care for a seriously ill sponsor under the Family and Medical immediate family member or may take Leave Act of 1993 (29 CFR part 825) if— leave due to his or her own serious ill- (1) The participant has served for at ness whenever it is medically nec- least 12 months and 1,250 hours during essary.
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(e) Alternate placement. If a partici- dure for the filing and adjudication of pant requests intermittent leave or a grievances from participants, labor or- reduced service hours due to a serious ganizations, and other interested indi- illness or a family member’s sickness, viduals concerning programs that re- and the need for leave is foreseeable ceive assistance from the Corporation. based on planned medical treatment, A grievance procedure may include dis- the program, or project sponsor may pute resolution programs such as medi- temporarily transfer the participant to ation, facilitation, assisted negotiation an alternative service position if the and neutral evaluation. If the griev- participant: (1) Is qualified for the posi- ance alleges fraud or criminal activity, tion; and it must immediately be brought to the (2) Receives the same benefits such as attention of the Corporation’s inspec- stipend or living allowance and the po- tor general. sition better accommodates the par- (a) Alternative dispute resolution. (1) ticipants recurring periods of leave. The aggrieved party may seek resolu- (f) Certification of cause. A program, tion through alternative means of dis- or project sponsor may require that the pute resolution such as mediation or participant support a leave request facilitation. Dispute resolution pro- with a certification from the health ceedings must be initiated within 45 care provider of the participant or the calendar days from the date of the al- participant’s family member. If a pro- leged occurrence. At the initial session gram sponsor requests a certification, of the dispute resolution proceedings, the participant must provide it in a the party must be advised in writing of timely manner. his or her right to file a grievance and (g) Continuance of coverage. (1) If a right to arbitration. If the matter is re- State, local or private program pro- solved, and a written agreement is vides for health insurance for the full- reached, the party will agree to forego time participant, the sponsor must filing a grievance in the matter under continue to provide comparable health consideration. coverage at the same level and condi- (2) If mediation, facilitation, or other tions that coverage would have been dispute resolution processes are se- provided for the duration of the par- lected, the process must be aided by a ticipant’s leave. neutral party who, with respect to an (2) If the Federal program provides issue in controversy, functions specifi- health insurance coverage for the full- cally to aid the parties in resolving the time participant, the sponsor must also matter through a mutually achieved continue to provide the same health and acceptable written agreement. The care coverage for the duration of the neutral party may not compel a resolu- participant’s leave. tion. Proceedings before the neutral (h) Failure to return. If the partici- party must be informal, and the rules pant fails to return to the program at of evidence will not apply. With the ex- the end of leave for any reason other ception of a written and agreed upon than continuation, recurrence or onset dispute resolution agreement, the pro- of a serious health condition or other ceeding must be confidential. circumstances beyond his or her con- (b) Grievance procedure for unresolved trol, the program may recover the pre- complaints. If the matter is not resolved mium that he or she paid during any within 30 calendar days from the date period of unpaid leave. the informal dispute resolution process (i) Applicability to term of service. Any began, the neutral party must again in- absence, due to family and medical form the aggrieving party of his or her leave, will not be counted towards the right to file a formal grievance. In the participant’s term of service. event an aggrieving party files a griev- ance, the neutral may not participate § 2540.230 What grievance procedures in the formal complaint process. In ad- must recipients of Corporation as- dition, no communication or pro- sistance establish? ceedings of the informal dispute resolu- State and local applicants that re- tion process may be referred to or in- ceive assistance from the Corporation troduced into evidence at the grievance must establish and maintain a proce- and arbitration hearing. Any decision
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by the neutral party is advisory and is sistent with the resolution of the griev- not binding unless both parties agree. ance. (c) Time limitations. Except for a (f) Remedies. Remedies for a grievance grievance that alleges fraud or crimi- filed under a procedure established by a nal activity, a grievance must be made recipient of Corporation assistance no later than one year after the date of may include— the alleged occurrence. If a hearing is (1) Prohibition of a placement of a held on a grievance, it must be con- participant; and ducted no later than 30 calendar days (2) In grievance cases where there is after the filing of such grievance. A de- a violation of nonduplication or non- cision on any such grievance must be displacement requirements and the em- made no later than 60 calendar days ployer of the displaced employee is the after the filing of the grievance. recipient of Corporation assistance— (d) Arbitration—(1) Arbitrator—(i) Joint (i) Reinstatement of the employee to selection by parties. If there is an ad- verse decision against the party who the position he or she held prior to the filed the grievance, or 60 calendar days displacement; after the filing of a grievance no deci- (ii) Payment of lost wages and bene- sion has been reached, the filing party fits; may submit the grievance to binding (iii) Re-establishment of other rel- arbitration before a qualified arbi- evant terms, conditions and privileges trator who is jointly selected and inde- of employment; and pendent of the interested parties. (iv) Any other equitable relief that is (ii) Appointment by Corporation. If the necessary to correct any violation of parties cannot agree on an arbitrator the nonduplication or nondisplacement within 15 calendar days after receiving requirements or to make the displaced a request from one of the grievance employee whole. parties, the Corporations Chief Execu- (g) Suspension or termination of assist- tive Officer will appoint an arbitrator ance. The Corporation may suspend or from a list of qualified arbitrators. terminate payments for assistance (2) Time Limits—(i) Proceedings. An ar- under this chapter. bitration proceeding must be held no (h) Effect of noncompliance with arbi- later than 45 calendar days after the tration. A suit to enforce arbitration request for arbitration, or, if the arbi- awards may be brought in any Federal trator is appointed by the Chief Execu- district court having jurisdiction over tive Officer, the proceeding must occur the parties without regard to the no later than 30 calendar days after the amount in controversy or the parties’ arbitrator’s appointment. citizenship. (ii) Decision. A decision must be made by the arbitrator no later than 30 cal- endar days after the date the arbitra- Subpart C—Other Requirements tion proceeding begins. for Recipients of Corporation (3) The cost. The cost of the arbitra- Assistance tion proceeding must be divided evenly between the parties to the arbitration. § 2540.300 What must be included in If, however, a participant, labor organi- annual State reports to the Cor- poration? zation, or other interested individual prevails under a binding arbitration (a) In general. Each State receiving proceeding, the State or local appli- assistance under this title must pre- cant that is a party to the grievance pare and submit, to the Corporation, must pay the total cost of the pro- an annual report concerning the use of ceeding and the attorney’s fees of the assistance provided under this chapter prevailing party. and the status of the national and com- (e) Suspension of placement. If a griev- munity service programs in the State ance is filed regarding a proposed that receive assistance under this placement of a participant in a pro- chapter. A State’s annual report must gram that receives assistance under include information that demonstrates this chapter, such placement must not the State’s compliance with the re- be made unless the placement is con- quirements of this chapter.
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(b) Local grantees. Each State may re- icy in favor of advance notice and op- quire local grantees that receive assist- portunity to show cause. ance under this chapter to supply such (b) Termination of a grant or contract. information to the State as is nec- The Corporation may terminate or re- essary to enable the State to complete voke assistance for failure to comply the report required under paragraph (a) with applicable terms and conditions of of this section, including a comparison this chapter. However, the Corporation of actual accomplishments with the must provide the recipient reasonable goals established for the program, the notice and opportunity for a full and number of participants in the program, fair hearing, subject to the following the number of service hours generated, conditions: (1) The Corporation will no- and the existence of any problems, tify a recipient of assistance by letter delays or adverse conditions that have or telegram that the Corporation in- affected or will affect the attainment tends to terminate or revoke assist- of program goals. ance, either in whole or in part, unless (c) Availability of report. Reports sub- the recipient shows good cause why mitted under paragraph (a) of this sec- such assistance should not be termi- tion must be made available to the nated or revoked. In this communica- public on request. tion, the grounds and the effective date for the proposed termination or revoca- § 2540.310 Must programs that receive tion will be described. The recipient Corporation assistance establish will be given at least 7 calendar days to standards of conduct? submit written material in opposition Yes. Programs that receive assist- to the proposed action. ance under this title must establish (2) The recipient may request a hear- and stringently enforce standards of ing on a proposed termination or rev- conduct at the program site to promote ocation. Providing five days notice to proper moral and disciplinary condi- the recipient, the Corporation may au- tions. thorize the conduct of a hearing or other meetings at a location conven- § 2540.320 How are participant bene- ient to the recipient to consider the fits treated? proposed suspension or termination. A Section 142(b) of the Job Training transcript or recording must be made Partnership Act (29 U.S.C. 1552(b)) shall of a hearing conducted under this sec- apply to the programs conducted under tion and be available for inspection by this chapter as if such programs were any individual. conducted under the Job Training Partnership Act (29 U.S.C. 1501 et seq.). PART 2541—UNIFORM ADMINIS- TRATIVE REQUIREMENTS FOR Subpart D—Suspension and Termi- GRANTS AND COOPERATIVE nation of Corporation Assist- AGREEMENTS TO STATE AND ance LOCAL GOVERNMENTS § 2540.400 Under what circumstances will the Corporation suspend or ter- Subpart A—General minate a grant or contract? Sec. (a) Suspension of a grant or contract. 2541.10 Purpose and scope of this part. In emergency situations, the Corpora- 2541.20 Scope of subpart. tion may suspend a grant or contract 2541.30 Definitions. for not more than calendar 30 days. Ex- 2541.40 Applicability. amples of such situations may include, 2541.50 Effect on other issuances. but are not limited to: (1) Serious risk 2541.60 Additions and exceptions. to persons or property; (2) Violations of Federal, State or Subpart B—Pre-Award Requirements local criminal statutes; and 2541.100 Forms for applying for grants. (3) Material violation(s) of the grant 2541.110 State plans. or contract that are sufficiently seri- 2541.120 Special grant or subgrant condi- ous that they outweigh the general pol- tions for ‘‘high-risk’’ grantees.
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Subpart C—Post Award Requirements § 2541.30 Definitions. 2541.200 Standards for financial manage- The following definitions apply to ment systems. terms used in this part and part 2542 of 2541.210 Payment. this chapter. 2541.220 Allowable costs. Accrued expenditures. The term ac- 2541.230 Period of availability of funds. crued expenditures means the charges 2541.240 Matching or cost sharing. incurred by the grantee during a given 2541.250 Program income. period requiring the provision of funds 2541.260 Non-Federal audit. for: (1) Goods and other tangible property Subpart D—Changes, Property and received; Subawards (2) Services performed by employees, contractors, subgrantees, subcontrac- 2541.300 Changes. tors, and other payees; and 2541.310 Real property. (3) Other amounts becoming owed 2541.320 Equipment. under programs for which no current 2541.330 Supplies. services or performance is required, 2541.340 Copyrights. such as annuities, insurance claims, 2541.350 Subawards to debarred and sus- pended parties. and other benefit payments. 2541.360 Procurement. Accrued income. The term accrued in- 2541.370 Subgrants. come means the sum of: (1) Earnings during a given period Subpart E—Reports, Records, Retention from services performed by the grantee and Enforcement and goods and other tangible property delivered to purchasers; and 2541.400 Monitoring and reporting program (2) Amounts becoming owed to the performance. grantee for which no current services 2541.410 Financial reporting. or performance is required by the 2541.420 Retention and access requirements grantee. for records. Acquisition cost. The term acquisition 2541.430 Enforcement. cost of an item of purchased equipment 2541.440 Termination for convenience. means the net invoice unit price of the Subpart F—After the Grant Requirements property including the cost of modi- fications, attachments, accessories, or 2541.500 Closeout. auxiliary apparatus necessary to make 2541.510 Later disallowances and adjust- the property usable for the purpose for ments. which it was acquired. Other charges 2541.520 Collection of amounts due. such as the cost of installation, trans- AUTHORITY: 42 U.S.C. 4950 et seq. and 12501 portation, taxes, duty or protective in- et seq. transit insurance, shall be included or excluded from the unit acquisition cost SOURCE: 59 FR 41598, Aug. 12, 1994, unless otherwise noted. in accordance with the grantee’s reg- ular accounting practices. Administrative requirements. The term Subpart A—General administrative requirements means those matters common to grants in general, § 2541.10 Purpose and scope of this part. such as financial management, kinds and frequency of reports, and retention This part establishes uniform admin- of records. These are distinguished istrative rules for Federal grants and from ‘‘programmatic’’ requirements, cooperative agreements and subawards which concern matters that can be to State, local and Indian tribal gov- treated only on a program-by-program ernments. or grant-by-grant basis, such as kinds of activities that can be supported by § 2541.20 Scope of subpart. grants under a particular program. This subpart contains general rules Awarding agency. The term awarding pertaining to this part and procedures agency means: for control of exceptions from this (1) With respect to a grant, the Fed- part. eral agency; and
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(2) With respect to a subgrant, the fined in section 3 of the Alaska Native party that awarded the subgrant. Claims Settlement Act, 85 Stat. 688) Cash contributions. The term cash con- certified by the Secretary of the Inte- tributions means the grantee’s cash out- rior as eligible for the special programs lay, including the outlay of money con- and services provided by him through tributed to the grantee or subgrantee the Bureau of Indian Affairs. by other public agencies and institu- Government. The term government tions, and private organizations and in- means a State or local government or a dividuals. When authorized by Federal federally recognized Indian tribal gov- legislation, Federal funds received ernment. from other assistance agreements may Grant. The term grant means an be considered as grantee or subgrantee award of financial assistance, including cash contributions. cooperative agreements, in the form of Contract. The term contract means money, or property in lieu of money, (except as used in the definitions for by the Federal Government to an eligi- ‘‘grant’’ and ‘‘subgrant’’ in this section ble grantee. The term does not include and except where qualified by ‘‘Fed- technical assistance which provides eral’’) a procurement contract under a services instead of money, or other as- grant or subgrant, and means a pro- sistance in the form of revenue shar- curement subcontract under a con- ing, loans, loan guarantees, interest tract. subsidies, insurance, or direct appro- Cost sharing (or matching). The term priations. Also, the term does not in- cost sharing (or matching) means the clude assistance, such as a fellowship value of the third party in-kind con- or other lump sum award, which the tributions and the portion of the costs grantee is not required to account for. of a federally assisted project or pro- Grantee. The term grantee means the gram not borne by the Federal Govern- government to which a grant is award- ment. ed and which is accountable for the use Cost-type contract. The term cost-type of the funds provided. The grantee is contract means a contract or sub- contract under a grant in which the the entire legal entity even if only a contractor or subcontractor is paid on particular component of the entity is the basis of the costs it incurs, with or designated in the grant award docu- without a fee. ment. Equipment. The term equipment means Local government. The term local gov- tangible, nonexpendable, personal ernment means a county, municipality, property having a useful life of more city, town, township, local public au- than one year and an acquisition cost thority (including any public and In- of $5,000 or more per unit. A grantee dian housing agency under the United may use its own definition of equip- States Housing Act of 1937 (42 U.S.C. ment provided that such definition 1401 et seq.) school district, special dis- would at least include all equipment trict, intrastate district, council of mentioned in this definition. governments (whether or not incor- Expenditure report. The term expendi- porated as a nonprofit corporation ture report means: under state law), any other regional or (1) For nonconstruction grants, the interstate government entity, or any SF–269 ‘‘Financial Status Report’’ (or agency or instrumentality of a local other equivalent report); government. (2) for construction grants, the SF– Obligations. The term obligations 271 ‘‘Outlay Report and Request for Re- means the amounts of orders placed, imbursement’’ (or other equivalent re- contracts and subgrants awarded, port). goods and services received, and simi- Federally recognized Indian tribal gov- lar transactions during a given period ernment. The term federally recognized that will require payment by the Indian tribal government means the gov- grantee during the same or a future pe- erning body or a governmental agency riod. of any Indian tribe, band, nation, or OMB. The term OMB means the other organized group or community United States Office of Management (including any Native village as de- and Budget.
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Outlays (expenditures). The term out- possession of the United States, or any lays (expenditures) means charges agency or instrumentality of a State made to the project or program. They exclusive of local governments. The may be reported on a cash or accrual term does not include any public and basis. For reports prepared on a cash Indian housing agency under the basis, outlays are the sum of actual United States Housing Act of 1937. cash disbursement for direct charges Subgrant. The term subgrant means for goods and services, the amount of an award of financial assistance in the indirect expense incurred, the value of form of money, or property in lieu of in-kind contributions applied, and the money, made under a grant by a grant- amount of cash advances and payments ee to an eligible subgrantee. The term made to contractors and subgrantees. includes financial assistance when pro- For reports prepared on an accrued ex- vided by contractual legal agreement, penditure basis, outlays are the sum of but does not include procurement pur- actual cash disbursements, the amount chases, nor does it include any form of of indirect expense incurred, the value of in-kind contributions applied, and assistance which is excluded from the the new increase (or decrease) in the definition of ‘‘grant’’ in this part. amounts owed by the grantee for goods Subgrantee. The term subgrantee and other property received, for serv- means the government or other legal ices performed by employees, contrac- entity to which a subgrant is awarded tors, subgrantees, subcontractors, and and which is accountable to the grant- other payees, and other amounts be- ee for the use of the funds provided. coming owed under programs for which Supplies. The term supplies means all no current services or performance are tangible personal property other than required, such as annuities, insurance ‘‘equipment’’ as defined in this part. claims, and other benefit payments. Suspension. The term suspension Percentage of completion method. The means, depending on the context, ei- term percentage of completion method re- ther— fers to a system under which payments (1) Temporary withdrawal of the au- are made for construction work accord- thority to obligate grant funds pending ing to the percentage of completion of corrective action by the grantee or the work, rather than to the grantee’s subgrantee or a decision to terminate cost incurred. the grant; or Prior approval. The term prior ap- (2) An action taken by a suspending proval means documentation evidenc- official in accordance with agency reg- ing consent prior to incurring specific ulations implementing E.O. 12549 (3 cost. CFR, 1986 Comp., p. 189) to immediately Real property. The term real property exclude a person from participating in means land, including land improve- grant transactions for a period, pend- ments, structures and appurtenances ing completion of an investigation and thereto, excluding movable machinery such legal or debarment proceedings as and equipment. may ensue. Share. The term share, when referring to the awarding agency’s portion of Termination. The term termination real property, equipment or supplies, means permanent withdrawal of the means the same percentage as the authority to obligate previously- awarding agency’s portion of the ac- awarded grant funds before that au- quiring party’s total costs under the thority would otherwise expire. It also grant to which the acquisition costs means the voluntary relinquishment of under the grant to which the acquisi- that authority by the grantee or sub- tion cost of the property was charged. grantee. Termination does not in- Only costs are to be counted—not the clude— value of third-party in-kind contribu- (1) Withdrawal of funds awarded on tions. the basis of the grantee’s underesti- State. The term State means any of mate of the unobligated balance in a the several States of the United States, prior period; the District of Columbia, the Common- (2) Withdrawal of the unobligated wealth of Puerto Rico, any territory or balance as of the expiration of a grant;
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(3) Refusal to extend a grant or gram of Community Development award additional funds, to make a com- Block Grants for Small Cities; and Ele- peting or noncompeting continuation, mentary and Secondary Education renewal, extension, or supplemental other than programs administered by award; or the Secretary of Education under title (4) Voiding of a grant upon deter- V, subtitle D, chapter 2, section 583— mination that the award was obtained the Secretary’s discretionary grant fraudulently, or was otherwise illegal program) and titles I–III of the Job or invalid from inception. Training Partnership Act of 1982 (29 Terms of a grant or subgrant mean all U.S.C. 1501 et seq.) and under the Pub- requirements of the grant or subgrant, lic Health Services Act (42 U.S.C. 201 et whether in statute, regulations, or the seq.), Alcohol and Drug Abuse Treat- award document. ment and Rehabilitation Block Grant Third party in-kind contributions. The and part C of title V, Mental Health term third party in-kind contributions Service for the Homeless Block Grant). means property or services which ben- (3) Entitlement grants to carry out efit a federally assisted project or pro- the following programs of the Social gram and which are contributed by Security Act (42 U.S.C. 301 et seq.): non-Federal third parties without charge to the grantee, or a cost-type (i) Aid to Needy Families with De- contractor under the grant agreement. pendent Children (title IV–A of the Unliquidated obligations for reports pre- Act, not including the Work Incentive pared on a cash basis. The term unliqui- Program (WIN) authorized by section dated obligations for reports prepared on 402(a)19(G); HHS grants for WIN are a cash basis means the amount of obli- subject to this part); gations incurred by the grantee that (ii) Child Support Enforcement and has not been paid. For reports prepared Establishment of Paternity (title IV–D on an accrued expenditure basis, they of the Act); represent the amount of obligations in- (iii) Foster Care and Adoption Assist- curred by the grantee for which an out- ance (title IV–E of the Act); lay has not been recorded. (iv) Aid to the Aged, Blind, and Dis- Unobligated balance. The term unobli- abled (titles I, X, XIV, and XVI–AABD gated balance means the portion of the of the Act); and funds authorized by the Federal agency (v) Medical Assistance (Medicaid) that has not been obligated by the (title XIX of the Act) not including the grantee and is determined by deducting State Medicaid Fraud Control program the cumulative obligations from the authorized by section 1903(a)(6)(B). cumulative funds authorized. (4) Entitlement grants under the fol- lowing programs of The National § 2541.40 Applicability. School Lunch Act (42 U.S.C. 1751 et (a) General. Subparts A through D of seq.): this part apply to all grants and sub- (i) School Lunch (section 4 of the grants to governments, except where Act); inconsistent with Federal statutes or (ii) Commodity Assistance (section 6 with regulations authorized in accord- of the Act); ance with the exception provision of (iii) Special Meal Assistance (section § 2541.60, or: 11 of the Act); (1) Grants and subgrants to State and local institutions of higher education (iv) Summer Food Service for Chil- or State and local hospitals. dren (section 13 of the Act); and (2) The block grants authorized by (v) Child Care Food Program (section the Omnibus Budget Reconciliation 17 of the Act). Act of 1981 (Pub. L. 97–35, 95 Stat. 357) (5) Entitlement grants under the fol- (Community Services; Preventive lowing programs of The Child Nutri- Health and Health Services; Alcohol, tion Act of 1966: Drug Abuse, and Mental Health Serv- (i) Special Milk (section 3 of the Act); ices; Maternal and Child Health Serv- and ices; Social Services; Low-Income (ii) School Breakfast (section 4 of the Home Energy Assistance; States’ Pro- Act).
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(6) Entitlement grants for State Ad- Subpart B—Pre-Award ministrative expenses under The Food Requirements Stamp Act of 1977 (7 U.S.C. 2011 et seq.). (7) A grant for an experimental, pilot, § 2541.100 Forms for applying for or demonstration project that is also grants. supported by a grant listed in para- (a) Scope. (1) This section prescribes graph (a)(3) of this section. forms and instructions to be used by (8) Grant funds awarded under sub- governmental organizations (except section 412(e) of the Immigration and hospitals and institutions of higher Nationality Act (8 U.S.C. 1522(e)) and education operated by a government) subsection 501(a) of the Refugee Edu- in applying for grants. This section is cation Assistance Act of 1980 (Pub. L. not applicable, however, to formula 96–422, 94 Stat. 1809), for cash assist- grant programs which do not require ance, medical assistance, and supple- applicants to apply for funds on a mental security income benefits to ref- project basis. ugees and entrants and the administra- (2) This section applies only to appli- tive costs of providing the assistance cations to Federal agencies for grants, and benefits. and is not required to be applied by (9) Grants to local education agencies grantees in dealing with applicants for under 20 U.S.C. 236 through 241–1(a), subgrants. However, grantees are en- and 242 through 244 (portions of the Im- couraged to avoid more detailed or bur- pact Aid program), except for 20 U.S.C. densome application requirements for subgrants. 238(d)(2)(c) and 240(f) (Entitlement In- crease for Handicapped Children). (b) Authorized forms and instructions for governmental organizations. (1) In ap- (10) Payments under the Veterans plying for grants, applicants shall only Administration’s State Home Per Diem use standard application forms or those Program (38 U.S.C. 641(a)). prescribed by the granting agency with (b) Entitlement programs. Entitlement the approval of OMB under the Paper- programs enumerated in § 2541.40(a) (3) work Reduction Act of 1980 (44 U.S.C. through (8) are subject to subpart E of 3501 et seq.). this part. (2) Applicants are not required to submit more than the original and two § 2541.50 Effect on other issuances. copies of preapplications or applica- All other grants administration pro- tions. visions of codified program regula- (3) Applicants must follow all appli- tions, program manuals, handbooks cable instructions that bear OMB and other nonregulatory materials clearance numbers. Federal agencies which are inconsistent with this part may specify and describe the programs, are superseded, except to the extent functions, or activities that will be they are required by statute, or au- used to plan, budget, and evaluate the thorized in accordance with the excep- work under a grant. Other supple- tion provision in § 2541.60. mentary instructions may be issued only with the approval of OMB to the § 2541.60 Additions and exceptions. extent required under the Paperwork Reduction Act of 1980. For any stand- (a) For classes of grants and grantees ard form, except the SF–424 facesheet, subject to this part, Federal agencies Federal agencies may shade out or in- may not impose additional administra- struct the applicant to disregard any tive requirements except in codified line item that is not needed. regulations published in the FEDERAL (4) When a grantee applies for addi- REGISTER. tional funding (such as a continuation (b) Exceptions for classes of grants or or supplemental award) or amends a grantees may be authorized only by previously submitted application, only OMB. the affected pages need be submitted. (c) Exceptions on a case-by-case basis Previously submitted pages with infor- and for subgrantees may be authorized mation that is still current need not be by the affected Federal agencies. resubmitted.
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§ 2541.110 State plans. (4) Has not conformed to terms and conditions of previous awards; or (a) Scope. The statutes for some pro- (5) Is otherwise not responsible; and grams require States to submit plans if the awarding agency determines that before receiving grants. Under regula- an award will be made, special condi- tions implementing Executive Order tions and/or restrictions shall cor- 12372 (3 CFR, 1982 Comp., p. 197), ‘‘Inter- respond to the high risk condition and governmental Review of Federal Pro- shall be included in the award. grams,’’ States are allowed to simplify, (b) Special conditions or restrictions consolidate and substitute plans. This may include: section contains additional provisions (1) Payment on a reimbursement for plans that are subject to regula- basis; tions implementing the Executive (2) Withholding authority to proceed order. to the next phase until receipt of evi- (b) Requirements. A State need meet dence of acceptable performance within only Federal administrative or pro- a given funding period; grammatic requirements for a plan (3) Requiring additional, more de- that are in statutes or codified regula- tailed financial reports; tions. (4) Additional project monitoring; (c) Assurances. In each plan the State (5) Requiring the grantee or sub- will include an assurance that the grantee to obtain technical or manage- State shall comply with all applicable ment assistance; or Federal statutes and regulations in ef- (6) Establishing additional prior ap- fect with respect to the periods for provals. which it receives grant funding. For (c) If an awarding agency decides to this assurance and other assurances re- impose such conditions, the awarding quired in the plan, the State may: official will notify the grantee or sub- (1) Cite by number the statutory or grantee as early as possible, in writing, regulatory provisions requiring the as- of: surances and affirm that it gives the (1) The nature of the special condi- assurances required by those provi- tions/restrictions; sions; (2) The reason(s) for imposing them; (2) Repeat the assurance language in (3) The corrective actions which must the statutes or regulations; or be taken before they will be removed (3) Develop its own language to the and the time allowed for completing extent permitted by law. the corrective actions; and (d) Amendments. A State will amend a (4) The method of requesting recon- plan whenever necessary to reflect: sideration of the conditions/restric- New or revised Federal statutes or reg- tions imposed. ulations; or a material change in any State law, organization, policy, or Subpart C—Post-Award State agency operation. The State will Requirements obtain approval for the amendment and its effective date but need submit for § 2541.200 Standards for financial approval only the amended portions of management systems. the plan. (a) A State must expand and account for grant funds in accordance with § 2541.120 Special grant or subgrant State laws and procedures for expend- conditions for ‘‘high-risk’’ grantees. ing and accounting for its own funds. (a) A grantee or subgrantee may be Fiscal control and accounting proce- considered ‘‘high risk’’ if an awarding dures of the State, as well as its sub- agency determines that a grantee or grantees and cost-type contractors, subgrantee: must be sufficient to— (1) Has a history of unsatisfactory (1) Permit preparation of reports re- performance; or quired by this part and the statutes au- (2) Is not financially stable; or thorizing the grant; and (3) Has a management system which (2) Permit the tracing of funds to a does not meet the management stand- level of expenditures adequate to es- ards set forth in this part; or tablish that such funds have not been
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used in violation of the restrictions whenever advance payment procedures and prohibitions of applicable statutes. are used. Grantees must establish rea- (b) The financial management sys- sonable procedures to ensure the re- tems of other grantees and subgrantees ceipt of reports on subgrantees’ cash must meet the following standards: balances and cash disbursements in (1) Financial reporting. Accurate, cur- sufficient time to enable them to pre- rent, and complete disclosure of the fi- pare complete and accurate cash trans- nancial results of financially assisted actions reports to the awarding agen- activities must be made in accordance cy. When advances are made by letter- with the financial reporting require- of-credit or electronic transfer of funds ments of the grant or subgrant. methods, the grantee must make (2) Accounting records. Grantees and drawdowns as close as possible to the subgrantees must maintain records time of making disbursements. Grant- which adequately identify the source ees must monitor cash drawdowns by and application of funds provided for fi- their subgrantees to assure that they nancially-assisted activities. These conform substantially to the same records must contain information per- standards of timing and amount as taining to grant or subgrant awards apply to advances to the grantees. and authorizations, obligations, unobli- (c) An awarding agency may review gated balances, assets, liabilities, out- the adequacy of the financial manage- lays or expenditures, and income. ment system of any applicant for fi- (3) Internal control. Effective control nancial assistance as part of a and accountability must be maintained preaward review or at any time subse- for all grant and subgrant cash, real quent to award. and personal property, and other as- sets. Grantees and subgrantees must § 2541.210 Payment. adequately safeguard all such property (a) Scope. This section prescribes the and must assure that it is used solely basic standard and the methods under for authorized purposes. which a Federal agency will make pay- (4) Budget control. Actual expendi- ments to grantees, and grantees will tures or outlays must be compared make payments to subgrantees and with budgeted amounts for each grant contractors. or subgrant. Financial information (b) Basic standard. Methods and pro- must be related to performance or pro- cedures for payment shall minimize ductivity data, including the develop- the time elapsing between the transfer ment of unit cost information when- of funds and disbursement by the ever appropriate or specifically re- grantee or subgrantee, in accordance quired in the grant or subgrant agree- with Treasury regulations at 31 CFR ment. If unit cost data are required, es- part 205. timates based on available documenta- (c) Advances. Grantees and sub- tion will be accepted whenever pos- grantees shall be paid in advance, pro- sible. vided they maintain or demonstrate (5) Allowable cost. Applicable OMB the willingness and ability to maintain cost principles, agency program regula- procedures to minimize the time elaps- tions, and the terms of grant and ing between the transfer of the funds subgrant agreements will be followed and their disbursement by the grantee in determining the reasonableness, al- or subgrantee. lowability, and allocability of costs. (d) Reimbursement. Reimbursement (6) Source documentation. Accounting shall be the preferred method when the records must be supported by such requirements in paragraph (c) of this source documentation as canceled section are not met. Grantees and sub- checks, paid bills, payrolls, time and grantees may also be paid by reim- attendance records, contract and bursement for any construction grant. subgrant award documents, etc. Except as otherwise specified in regula- (7) Cash management. Procedures for tion, Federal agencies shall not use the minimizing the time elapsing between percentage of completion method to the transfer of funds from the U.S. pay construction grants. The grantee Treasury and disbursement by grantees or subgrantee may use that method to and subgrantees must be followed pay its construction contractor, and if
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it does, the awarding agency’s pay- pended, payment adjustments will be ments to the grantee or subgrantee made in accordance with § 2541.410(c). will be based on the grantee’s or sub- (3) A Federal agency shall not make grantee’s actual rate of disbursement. payment to grantees for amounts that (e) Working capital advances. If a are withheld by grantees or sub- grantee cannot meet the criteria for grantees from payment to contractors advance payments described in para- to assure satisfactory completion of graph (c) of this section, and the Fed- work. Payments shall be made by the eral agency has determined that reim- Federal agency when the grantees or bursement is not feasible because the subgrantees actually disburse the with- grantee lacks sufficient working cap- held funds to the contractors or to es- ital, the awarding agency may provide crow accounts established to assure cash on a working capital advance satisfactory completion of work. basis. Under this procedure the award- (h) Cash depositories. (1) Consistent ing agency shall advance cash to the with the national goal of expanding the grantee to cover its estimated dis- opportunities for minority business en- bursement needs for an initial period terprises, grantees and subgrantees are generally geared to the grantee’s dis- encouraged to use minority banks (a bursing cycle. Thereafter, the awarding bank which is owned at least 50 percent agency shall reimburse the grantee for by minority group members). A list of its actual cash disbursements. The minority owned banks can be obtained working capital advance method of from the Minority Business Develop- payment shall not be used by grantees ment Agency, Department of Com- or subgrantees if the reason for using merce, Washington, DC 20230. such method is the unwillingness or in- (2) A grantee or subgrantee shall ability of the grantee to provide timely maintain a separate bank account only advances to the subgrantee to meet the when required by Federal-State agree- subgrantee’s actual cash disburse- ment. ments. (i) Interest earned on advances. Except for interest earned on advances of (f) Effect of program income, refunds, funds exempt under the Intergovern- and audit recoveries on payment. (1) mental Cooperation Act (31 U.S.C. 6501 Grantees and subgrantees shall dis- et seq.) and the Indian Self-Determina- burse repayments to and interest tion Act (23 U.S.C. 450), grantees and earned on a revolving fund before re- subgrantees shall promptly, but at questing additional cash payments for least quarterly, remit interest earned the same activity. on advances to the Federal agency. The (2) Except as provided in paragraph grantee or subgrantee may keep inter- (f)(1) of this section, grantees and sub- est amounts up to $100 per year for ad- grantees shall disburse program in- ministrative expenses. come, rebates, refunds, contract settle- ments, audit recoveries and interest § 2541.220 Allowable costs. earned on such funds before requesting (a) Limitation on use of funds. Grant additional cash payments. funds may be used only for— (g) Withholding payments. (1) Unless (1) The allowable costs of the grant- otherwise required by Federal statute, ees, subgrantees and cost-type contrac- awarding agencies shall not withhold tors, including allowable costs in the payments for proper charges incurred form of payments to fixed-price con- by grantees or subgrantees unless— tractors; and (i) The grantee or subgrantee has (2) Reasonable fees or profit to cost- failed to comply with grant award con- type contractors but not any fee or ditions; or profit (or other increment above allow- (ii) The grantee or subgrantee is in- able costs) to the grantee or sub- debted to the United States. grantee. (2) Cash withheld for failure to com- (b) Applicable cost principles. For each ply with grant award condition, but kind of organization, there is a set of without suspension of the grant, shall Federal principles for determining al- be released to the grantee upon subse- lowable costs. Allowable costs will be quent compliance. When a grant is sus- determined in accordance with the cost
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principles applicable to the organiza- to which the cost sharing or matching tion incurring the costs. The following requirements applies. chart lists the kinds of organizations (b) Qualifications and exceptions—(1) and the applicable cost principles: Costs borne by other Federal grant agree- ments. Except as provided by Federal For the costs of a Use the principles inÐ statute, a cost sharing or matching re- State, local or Indian tribal OMB Circular A±87. quirement may not be met by costs government borne by another Federal grant. This Private nonprofit organization OMB Circular A±122. prohibition does not apply to income other than an (1) institution of higher education, (2) earned by a grantee or subgrantee from hospital, or (3) organization a contract awarded under another Fed- named in OMB Circular A± eral grant. 122 as not subject to that circular (2) General revenue sharing. For the Educational institutions OMB Circular A±21. purpose of this section, general revenue For-profit organization other 48 CFR Part 31. Contract sharing funds distributed under 31 than a hospital and an or- Cost Principles and Proce- ganization named in OMB dures, or uniform cost ac- U.S.C. 6702 are not considered Federal Circular A±122 as not sub- counting standards that grant funds. ject to that circular comply with cost principles (3) Cost or contributions counted to- acceptable to the Federal wards other Federal costs-sharing require- agency. ments. Neither costs nor the values of third party in-kind contributions may § 2541.230 Period of availability of count towards satisfying a cost sharing funds. or matching requirement of a grant (a) General. Where a funding period is agreement if they have been or will be specified, a grantee may charge to the counted towards satisfying a cost shar- award only costs resulting from obliga- ing or matching requirement of an- tions of the funding period unless car- other Federal grant agreement, a Fed- ryover of unobligated balances is per- eral procurement contract, or any mitted, in which case the carryover other award of Federal funds. balances may be charged for costs re- (4) Costs financed by program income. sulting from obligations of the subse- Costs financed by program income, as quent funding period. defined in § 2541.250, shall not count to- (b) Liquidation of obligations. A grant- wards satisfying a cost sharing or ee must liquidate all obligations in- matching requirement unless they are curred under the award not later than expressly permitted in the terms of the 90 days after the end of the funding pe- assistance agreement. (This use of gen- riod (or as specified in a program regu- eral program income is described in lation) to coincide with the submission § 2541.250(g).) of the annual Financial Status Report (5) Services or property financed by in- (SF–269). The Federal agency may ex- come earned by contractors. Contractors tend this deadline at the request of the under a grant may earn income from grantee. the activities carried out under the contract in addition to the amounts § 2541.240 Matching or cost sharing. earned from the party awarding the (a) Basic rule; costs and contributions contract. No costs of services or prop- acceptable. With the qualifications and erty supported by this income may exceptions listed in paragraph (b) of count toward satisfying a cost sharing this section, a matching or cost shar- or matching requirement unless other ing requirement may be satisfied by ei- provisions of the grant agreement ex- ther or both of the following: pressly permit this kind of income to (1) Allowable costs incurred by the be used to meet the requirement. grantee, subgrantee or a cost-type con- (6) Records. Costs and third party in- tractor under the assistance agree- kind contributions counting towards ment. This includes allowable costs satisfying a cost sharing or matching borne by non-Federal grants or by requirement must be verifiable from other cash donations from non-Federal the records of grantees and subgrantee third parties. or cost-type contractors. These records (2) The value of third party in-kind must show how the value placed on contributions applicable to the period third party in-kind contributions was
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derived. To the extent feasible, volun- fringe benefits may be included in the teer services will be supported by the valuation. same methods that the organization (2) Employees of other organizations. uses to support the allocability of reg- When an employer other than a grant- ular personnel costs. ee, subgrantee, or cost-type contractor (7) Special standards for third party in- furnishes free of charge the services of kind contributions. (i) Third party in- an employee in the employee’s normal kind contributions count towards sat- line of work, the services will be valued isfying a cost sharing or matching re- at the employee’s regular rate of pay quirement only where, if the party re- exclusive of the employee’s fringe ben- ceiving the contributions were to pay efits and overhead costs. If the services for them, the payments would be allow- are in a different line of work, para- able costs. graph (c)(1) of this section applies. (ii) Some third party in-kind con- (d) Valuation of third party donated tributions are goods and services that, supplies and loaned equipment or space. if the grantee, subgrantee, or con- (1) If a third party donates supplies, tractor receiving the contribution had the contribution will be valued at the to pay for them, the payments would market value of the supplies at the have been an indirect costs. Costs shar- time of donation. ing or matching credit for such con- (2) If a third party donates the use of tributions shall be given only if the equipment or space in a building but grantee, subgrantee, or contractor has retains title, the contribution will be established, along with its regular indi- valued at the fair rental rate of the rect cost rate, a special rate for allo- equipment or space. cating to individual projects or pro- (e) Valuation of third party donated grams the value of the contributions. equipment, buildings, and land. If a third party donates equipment, buildings, or (iii) A third party in-kind contribu- land, and title passes to a grantee or tion to a fixed-price contract may subgrantee, the treatment of the do- count towards satisfying a cost sharing nated property will depend upon the or matching requirement only if it re- purpose of the grant or subgrant, as sults in: follows: (A) An increase in the services or (1) Awards for capital expenditures. If property provided under the contract the purpose of the grant or subgrant is (without additional cost to the grantee to assist the grantee or subgrantee in or subgrantee); or the acquisition of property, the market (B) A cost savings to the grantee or value of that property at the time of subgrantee. donation may be counted as cost shar- (iv) The values placed on third party ing or matching. in-kind contributions for cost sharing (2) Other awards. If assisting in the or matching purposes will conform to acquisition of property is not the pur- the rules in the succeeding sections of pose of the grant or subgrant, para- this part. If a third party in-kind con- graphs (e)(2) (i) and (ii) of this section tribution is a type not treated in those apply: sections, the value placed upon it shall (i) If approval is obtained from the be fair and reasonable. awarding agency, the market value at (c) Valuation of donated services—(1) the time of donation of the donated Volunteer services. Unpaid services pro- equipment or buildings and the fair vided to a grantee or subgrantee by in- rental rate of the donated land may be dividuals will be valued at rates con- counted as cost sharing or matching. sistent with those ordinarily paid for In the case of a subgrant, the terms of similar work in the grantee’s or sub- the grant agreement may require that grantee’s organization. If the grantee the approval be obtained from the Fed- or subgrantee does not have employees eral agency as well as the grantee. In performing similar work, the rates will all cases, the approval may be given be consistent with those ordinarily only if a purchase of the equipment or paid by other employers for similar rental of the land would be approved as work in the same labor market. In ei- an allowable direct cost. If any part of ther case, a reasonable amount for the donated property was acquired
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with Federal funds, only the non-fed- terest on loans made with grant funds. eral share of the property may be Except as otherwise provided in regula- counted as cost-sharing or matching. tions of the Federal agency, program (ii) If approval is not obtained under income does not include interest on paragraph (e)(2)(i) of this section, no grant funds, rebates, credits, discounts, amount may be counted for donated refunds, etc. and interest earned on land, and only depreciation or use al- any of them. lowances may be counted for donated (b) Definition of program income. Pro- equipment and buildings. The deprecia- gram income means gross income re- tion or use allowances for this property ceived by the grantee or subgrantee di- are not treated as third party in-kind rectly generated by a grant supported contributions. Instead, they are treat- activity, or earned only as a result of ed as costs incurred by the grantee or the grant agreement during the grant subgrantee. They are computed and al- period. ‘‘During the grant period’’ is located (usually as indirect costs) in the time between the effective date of accordance with the cost principles the award and the ending date of the specified in § 2541.220, in the same way award reflected in the final financial as depreciation or use allowances for report. purchased equipment and buildings. (c) Cost of generating program income. The amount of depreciation or use al- If authorized by Federal regulations or lowances for donated equipment and the grant agreement, costs incident to buildings is based on the property’s the generation of program income may market value at the time it was do- be deducted from gross income to de- nated. termine program income. (f) Valuation of grantee or subgrantee (d) Governmental revenues. Taxes, spe- donated real property for construction/ac- cial assessments, levies, fines, and quisition. If a grantee or subgrantee do- other such revenues raised by a grantee nates real property for a construction or subgrantee are not program income or facilities acquisition project, the unless the revenues are specifically current market value of that property identified in the grant agreement or may be counted as cost sharing or Federal agency regulations as program matching. If any part of the donated income. property was acquired with Federal (e) Royalties. Income from royalties funds, only the non-federal share of the and license fees for copyrighted mate- property may be counted as cost shar- rial, patents, and inventions developed ing or matching. by a grantee or subgrantee is program (g) Appraisal of real property. In some income only if the revenues are specifi- cases under paragraphs (d), (e) and (f) cally identified in the grant agreement of this section, it will be necessary to or Federal agency regulations as pro- establish the market value of land or a gram income. (See § 2541.340) building or the fair rental rate of land (f) Property. Proceeds from the sale of or of space in a building. In these cases, real property or equipment will be han- the Federal agency may require the dled in accordance with the require- market value or fair rental value be set ments of §§ 2541.310 and 2541.320. by an independent appraiser, and that (g) Use of program income. Program the value or rate be certified by the income shall be deducted from outlays grantee. This requirement will also be which may be both Federal and non- imposed by the grantee on subgrantees. Federal as described in paragraphs (g)(1) and (2) of this section, unless the § 2541.250 Program income. Federal agency regulations or the (a) General. Grantees are encouraged grant agreement specify another alter- to earn income to defray program native (or a combination of the alter- costs. Program income includes income natives). In specifying alternatives, the from fees for services performed, from Federal agency may distinguish be- the use or rental of real or personal tween income earned by the grantee property acquired with grant funds, and income earned by subgrantees and from the sale of commodities or items between the sources, kinds, or amounts fabricated under a grant agreement, of income. When Federal agencies au- and from payments of principal and in- thorize the alternatives in paragraphs
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(g) (2) and (3) of this section, program amount as specified by OMB) in Fed- income in excess of any limits stipu- eral awards in a fiscal year, shall: lated shall also be deducted from out- (1) Determine whether State or local lays. subgrantees have met the audit re- (1) Deduction. Ordinarily program in- quirements of the Act and whether sub- come shall be deducted from total al- grantees covered by OMB Circular A– lowable costs to determine the net al- 110, ‘‘Uniform Administrative Require- lowable costs. Program income shall be ments for Grants and Agreements with used for current costs unless the Fed- Institutions of Higher Education, Hos- eral agency authorizes otherwise. Pro- pitals, and Other Non-Profit Organiza- gram income which the grantee did not tions,’’ have met the audit require- anticipate at the time of the award ments of the Act. Commercial contrac- shall be used to reduce the Federal tors (private for-profit and private and agency and grantee contributions rath- governmental organizations) providing er than to increase the funds com- goods and services to State and local mitted to the project. governments are not required to have a (2) Addition. When authorized, pro- single audit performed. State and local gram income may be added to the governments should use their own pro- funds committed to the grant agree- cedures to ensure that the contractor ment by the Federal agency and the has complied with laws and regulations grantee. The program income shall be affecting the expenditure of Federal used for the purposes and under the funds; conditions of the grant agreement. (2) Determine whether the sub- grantee spent Federal assistance funds (3) Cost sharing or matching. When au- provided in accordance with applicable thorized, program income may be used laws and regulations. This may be ac- to meet the cost sharing or matching complished by reviewing an audit of requirement of the grant agreement. the subgrantee made in accordance The amount of the Federal grant award with the Act, Circular A–110, or remains the same. through other means (e.g., program re- (h) Income after the award period. views) if the subgrantee has not had There are no Federal requirements gov- such an audit; erning the disposition of program in- (3) Ensure that appropriate correc- come earned after the end of the award tive action is taken within six months period (i.e., until the ending date of the after receipt of the audit report in in- final financial report, see paragraph (a) stance of noncompliance with Federal of this section), unless the terms of the laws and regulations; agreement or the Federal agency regu- (4) Consider whether subgrantee au- lations provide otherwise. dits necessitate adjustment of the grantee’s own records; and § 2541.260 Non-Federal audit. (5) Require each subgrantee to permit (a) Basic rule. Grantees and sub- independent auditors to have access to grantees are responsible for obtaining the records and financial statements. audits in accordance with the Single (c) Auditor selection. In arranging for Audit Act Amendments of 1996 (31 audit services, § 2541.360 shall be fol- U.S.C. 7501–7507) and revised OMB Cir- lowed. cular A–133, ‘‘Audits of States, Local Governments, and Non-Profit Organi- [59 FR 41598, Aug. 12, 1994, as amended at 62 zations.’’ The audits shall be made by FR 45939, 45947, Aug. 29, 1997] an independent auditor in accordance with generally accepted government Subpart D—Changes, Property auditing standards covering financial and Subawards audits. (b) Subgrantees. State or local govern- § 2541.300 Changes. ments, as those terms are defined for (a) General. Grantees and subgrantees purposes of the Single Audit Act are permitted to re budget within the Amendments of 1996, that provide Fed- approved direct cost budget to meet eral awards to a subgrantee, which ex- unanticipated requirements and may pends $300,000 or more (or other make limited program changes to the
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approved project. However, unless whether there is an associated budget waived by the awarding agency, certain revision requiring prior approval). types of post-award changes in budgets (2) Need to extend the period of avail- and projects shall require the prior ability of funds. written approval of the awarding agen- (3) Changes in key persons in cases cy. where specified in an application or a (b) Relation to cost principles. The ap- grant award. In research projects, a plicable cost principles (see § 2541.220) change in the project director or prin- contain requirements for prior ap- cipal investigator shall always require proval of certain types of costs. Except approval unless waived by the award- where waived, those requirements ing agency. apply to all grants and subgrants even (4) Under nonconstruction projects, if paragraphs (c) through (f) of this sec- contracting out, subgranting (if au- tion do not. thorized by law) or otherwise obtaining (c) Budget changes.—(1) Nonconstruc- the services of a third party to perform tion projects. Except as stated in other activities which are central to the pur- regulations or an award document, poses of the award. This approval re- grantees or subgrantees shall obtain quirement is in addition to the ap- the prior approval of the awarding proval requirements of § 2541.360 but agency whenever any of the following does not apply to the procurement of changes is anticipated under a non- equipment, supplies, and general sup- construction award: port services. (i) Any revision which would result (e) Additional prior approval require- in the need for additional funding. ments. The awarding agency may not (ii) Unless waived by the awarding require prior approval for any budget agency, cumulative transfers among di- revision which is not described in para- rect cost categories, or, if applicable, graph (c) of this section. among separately budgeted programs, (f) Requesting prior approval. (1) A re- projects, functions, or activities which quest for prior approval of any budget exceed or are expected to exceed ten revision will be in the same budget for- percent of the current total approved mal the grantee used in its application budget, whenever the awarding agen- and shall be accompanied by a nar- cy’s share exceeds $100,000. rative justification for the proposed re- (iii) Transfer of funds allotted for vision. training allowances (i.e., from direct (2) A request for a prior approval payments to trainees to other expense under the applicable Federal cost prin- categories). ciples (see § 2541.220) may be made by (2) Construction projects. Grantees and letter. subgrantees shall obtain prior written (3) A request by a subgrantee for approval for any budget revision which prior approval will be addressed in would result in the need for additional writing to the grantee. The grantee funds. will promptly review such request and (3) Combined construction and non- shall approve or disapprove the request construction projects. When a grant or in writing. A grantee will not approve subgrant provides funding for both con- any budget or project revision which is struction and nonconstruction activi- inconsistent with the purpose or terms ties, the grantee or subgrantee must and conditions of the Federal grant to obtain prior written approval from the the grantee. If the revision, requested awarding agency before making any by the subgrantee would result in a fund or budget transfer from non- change to the grantee’s approved construction to construction or vice project which requires Federal prior versa. approval, the grantee will obtain the (d) Programmatic changes. Grantees or Federal agency’s approval before ap- subgrantees must obtain the prior ap- proving the subgrantee’s request. proval of the awarding agency when- ever any of the following actions is an- § 2541.310 Real property. ticipated: (a) Title. Subject to the obligations (1) Any revision of the scope or objec- and conditions set forth in this section, tives of the project (regardless of title to real property acquired under a
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grant or subgrant will vest upon acqui- § 2541.320 Equipment. sition in the grantee or subgrantee re- (a) Title. Subject to the obligations spectively. and conditions set forth in this section, (b) Use. Except as otherwise provided title to equipment acquired under a by Federal statutes, real property will grant or subgrant will vest upon acqui- be used for the originally authorized sition in the grantee or subgrantee re- purposes as long as needed for that pur- spectively. poses, and the grantee or subgrantee shall not dispose of or encumber its (b) States. A State will use, manage, title or other interests. and dispose of equipment acquired (c) Disposition. When real property is under a grant by the State in accord- no longer needed for the originally au- ance with State laws and procedures. thorized purpose, the grantee or sub- Other grantees and subgrantees will grantee will request disposition in- follow paragraphs (c) through (e) of structions from the awarding agency. this section. The instructions will provide for one of (c) Use. (1) Equipment shall be used the following alternatives: by the grantee or subgrantee in the (1) Retention of title. Retain title after program or project for which it was ac- compensating the awarding agency. quired as long as needed, whether or The amount paid to the awarding agen- not the project or program continues cy will be computed by applying the to be supported by Federal funds. When awarding agency’s percentage of par- no longer needed for the original pro- ticipation in the cost of the original gram or project, the equipment may be purchase to the fair market value of used in other activities currently or the property. However, in those situa- previously supported by a Federal tions where a grantee or subgrantee is agency. disposing of real property acquired (2) The grantee or subgrantee shall with grant funds and acquiring replace- also make equipment available for use ment real property under the same pro- on other projects or programs cur- gram, the net proceeds from the dis- rently or previously supported by the position may be used as an offset to the Federal Government, providing such cost of the replacement property. use will not interfere with the work on (2) Sale of property. Sell the property the projects or program for which it and compensate the awarding agency. was originally acquired. First pref- The amount due to the awarding agen- erence for other use shall be given to cy will be calculated by applying the other programs or projects supported awarding agency’s percentage of par- by the awarding agency. User fees ticipation in the cost of the original should be considered if appropriate. purchase to the proceeds of the sale (3) Notwithstanding the encourage- after deduction of any actual and rea- ment in § 2541.250(a) to earn program sonable selling and fixing-up expenses. income, the grantee or subgrantee If the grant is still active, the net pro- must not use equipment acquired with ceeds from sale may be offset against grant funds to provide services for a fee the original cost of the property. When to compete unfairly with private com- a grantee or subgrantee is directed to panies that provide equivalent services, sell property, sales procedures shall be unless specifically permitted or con- followed that provide for competition templated by Federal statute. to the extent practicable and result in (4) When acquiring replacement the highest possible return. equipment, the grantee or subgrantee (3) Transfer of title. Transfer title to may use the equipment to be replaced the awarding agency or to a third- as a trade-in or sell the property and party designated/approved by the use the proceeds to offset the cost of awarding agency. The grantee or sub- the replacement property, subject to grantee shall be paid an amount cal- the approval of the awarding agency. culated by applying the grantee or sub- (d) Management requirements. Proce- grantee’s percentage of participation dures for managing equipment (includ- in the purchase of the real property to ing replacement equipment), whether the current fair market value of the acquired in whole or in part with grant property. funds, until disposition takes place
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will, as a minimum, meet the following (f) Federal equipment. In the event a requirements: grantee or subgrantee is provided fed- (1) Property records must be main- erally-owned equipment: tained that include a description of the (1) Title will remain vested in the property, a serial number or other Federal Government. identification number, the source of (2) Grantees or subgrantees will man- property, who holds title, the acquisi- age the equipment in accordance with tion date, and cost of the property, per- Federal agency rules and procedures, centage of Federal participation in the and submit an annual inventory list- cost of the property, the location, use ing. and condition of the property, and any (3) When the equipment is no longer ultimate disposition data including the needed, the grantee or subgrantee will date of disposal and sale price of the request disposition instructions from property. the Federal agency. (2) A physical inventory of the prop- (g) Right to transfer title. The Federal erty must be taken and the results rec- awarding agency may reserve the right onciled with the property records at to transfer title to the Federal Govern- least once every two years. ment or a third part named by the (3) A control system must be devel- awarding agency when such a third oped to ensure adequate safeguards to party is otherwise eligible under exist- prevent loss, damage, or theft of the ing statutes. Such transfers shall be property. Any loss, damage, or theft subject to the following standards: shall be investigated. (1) The property shall be identified in (4) Adequate maintenance procedures the grant or otherwise made known to must be developed to keep the property the grantee in writing. in good condition. (2) The Federal awarding agency (5) If the grantee or subgrantee is au- shall issue disposition instruction thorized or required to sell the prop- within 120 calendar days after the end erty, proper sales procedures must be of the Federal support of the project established to ensure the highest pos- for which it was acquired. If the Fed- sible return. eral awarding agency fails to issue dis- (e) Disposition. When original or re- position instructions within the 120 placement equipment acquired under a calendar-day period the grantee shall grant or subgrant is no longer needed follow paragraph (e) of this section. for the original project or program or (3) When title to equipment is trans- for other activities currently or pre- ferred, the grantee shall be paid an viously supported by a Federal agency, amount calculated by applying the per- disposition of the equipment will be centage of participation in the pur- made as follows: chase to the current fair market value (1) Items of equipment with a current of the property. per-unit fair market value of less than $5,000 may be retained, sold or other- § 2541.330 Supplies. wise disposed of with no further obliga- tion to the awarding agency. (a) Title. Title to supplies acquired (2) Items of equipment with a current under a grant or subgrant will vest, per unit fair market value in excess of upon acquisition, in the grantee or sub- $5,000 may be retained or sold and the grantee respectively. awarding agency shall have a right to (b) Disposition. If there is a residual an amount calculated by multiplying inventory of unused supplies exceeding the current market value or proceeds $5,000 in total aggregate fair market from sale by the awarding agency’s value upon termination or completion share of the equipment. of the award, and if the supplies are (3) In cases where a grantee or sub- not needed for any other federally grantee fails to take appropriate dis- sponsored programs or projects, the position actions, the awarding agency grantee or subgrantee shall com- may direct the grantee or subgrantee pensate the awarding agency for its to take excess and disposition actions. share.
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§ 2541.340 Copyrights. employee, officer or agent of the grant- The Federal awarding agency re- ee or subgrantee shall participate in se- serves a royalty-free, non-exclusive, lection, or in the award or administra- and irrevocable license to reproduce, tion of a contract supported by Federal publish or otherwise use, and to au- funds if a conflict of interest, real or thorize others to use, for Federal Gov- apparent, would be involved. Such a ernment purposes: conflict would arise when— (a) The copyright in any work devel- (i) The employee, officer or agent; oped under a grant, subgrant, or con- (ii) Any member of his immediate tract under a grant or subgrant; and family; (b) Any rights of copyright to which (iii) His or her partner; or a grantee, subgrantee or a contractor (iv) An organization which employs, purchases ownership with grant sup- or is about to employ, any of the port. above, has a financial or other interest in the firm selected for award. The § 2541.350 Subawards to debarred and grantee’s or subgrantee’s officers, em- suspended parties. ployees or agents will neither solicit Grantees and subgrantees must not nor accept gratuities, favors or any- make any award or permit any award thing of monetary value from contrac- (subgrant or contract) at any tier to tors, potential contractors, or parties any party which is debarred or sus- to subagreements. Grantee and sub- pended or is otherwise excluded from or grantees may set minimum rules where ineligible for participation in Federal the financial interest is not substantial assistance programs under Executive or the gift is an unsolicited item of Order 12549, ‘‘Debarment and Suspen- nominal intrinsic value. To the extent sion.’’ permitted by State or local law or reg- § 2541.360 Procurement. ulations, such standards or conduct will provide for penalties, sanctions, or (a) States. When procuring property other disciplinary actions for viola- and services under a grant, a State will tions of such standards by the grant- follow the same policies and procedures ee’s and subgrantee’s officers, employ- it uses for procurements from its non- ees, or agents, or by contractors or Federal funds. The State will ensure their agents. The awarding agency may that every purchase order or other con- tract includes any clauses required by in regulation provide additional prohi- Federal statutes and executive orders bitions relative to real, apparent, or and their implementing regulations. potential conflicts of interest. Other grantees and subgrantees will (4) Grantee and subgrantee proce- follow paragraphs (b) through (i) of this dures will provide for a review of pro- section. posed procurements to avoid purchase (b) Procurement standards. (1) Grant- of unnecessary or duplicative items. ees and subgrantees will use their own Consideration should be given to con- procurement procedures which reflect solidating or breaking out procure- applicable State and local laws and ments to obtain a more economical regulations, provided that the procure- purchase. Where appropriate, an anal- ments conform to applicable Federal ysis will be made of lease versus pur- law and the standards identified in this chase alternatives, and any other ap- section. propriate analysis to determine the (2) Grantees and subgrantees will most economical approach. maintain a contract administration (5) To foster greater economy and ef- system which ensures that contractors ficiency, grantees and subgrantees are perform in accordance with the terms, encouraged to enter into State and conditions, and specifications of their local intergovernmental agreements contracts or purchase orders. for procurement or use of common (3) Grantees and subgrantees will goods and services. maintain a written code of standards of (6) Grantees and subgrantees are en- conduct governing the performance of couraged to use Federal excess and sur- their employees engaged in the award plus property in lieu of purchasing new and administration of contracts. No equipment and property whenever such
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use is feasible and reduces project resolve disputes relating to their pro- costs. curements and shall in all instances (7) Grantees and subgrantees are en- disclose information regarding the pro- couraged to use value engineering test to the awarding agency. A pro- clauses in contracts for construction tester must exhaust all administrative projects of sufficient size to offer rea- remedies with the grantee and sub- sonable opportunities for cost reduc- grantee before pursuing a protest with tions. Value engineering is a system- the Federal agency. Reviews of pro- atic and creative analysis of each con- tests by the Federal agency will be lim- tract item or task to ensure that its es- ited to: sential function is provided at the (i) Violations of Federal law or regu- overall lower cost. lations and the standards of this sec- (8) Grantees and subgrantees will tion (violations of State or local law make awards only to responsible con- will be under the jurisdiction of State tractors possessing the ability to per- or local authorities); and form successfully under the terms and (ii) Violations of the grantee’s or sub- conditions of a proposed procurement. grantee’s protest procedures for failure Consideration will be given to such to review a complaint or protest. Pro- matters as contractor integrity, com- tests received by the Federal agency pliance with public policy, record of other than those specified in this para- past performance, and financial and graph (b)(12)(ii) will be referred to the technical resources. grantee or subgrantee. (9) Grantees and subgrantees will (c) Competition. (1) All procurement maintain records sufficient to detail transactions will be conducted in a the significant history of a procure- manner providing full and open com- ment. These records will include, but petition consistent with the standards are not necessarily limited to the fol- of this section. Some of the situations lowing: Rationale for the method of considered to be restrictive of competi- procurement, selection of contract tion include but are not limited to: type, contractor selection or rejection, (i) Placing unreasonable require- and the basis for the contract price. ments on firms in order for them to (10) Grantees and subgrantees will qualify to do business; use time and material type contracts (ii) Requiring unnecessary experience only— and excessive bonding; (i) After a determination that no other contract is suitable; and (iii) Noncompetitive pricing practices (ii) If the contract includes a ceiling between firms or between affiliated price that the contractor exceeds at its companies; own risk. (iv) Noncompetitive awards to con- (11) Grantees and subgrantees alone sultants that are on retainer contracts; will be responsible, in accordance with (v) Organizational conflicts of inter- good administrative practice and sound est; business judgment, for the settlement (vi) Specifying only a ‘‘brand name’’ of all contractual and administrative product instead of allowing ‘‘an equal’’ issues arising out of procurements. product to be offered and describing These issues include, but are not lim- the performance of other relevant re- ited to source evaluation, protests, dis- quirements of the procurement; and putes, and claims. These standards do (vii) Any arbitrary action in the pro- not relieve the grantee or subgrantee curement process. of any contractual responsibilities (2) Grantees and subgrantees will under its contracts. Federal agencies conduct procurements in a manner will not substitute their judgment for that prohibits the use of statutory or that of the grantee or subgrantee un- administratively imposed in-State or less the matter is primarily a Federal local geographical preferences in the concern. Violations of law will be re- evaluation of bids or proposals, except ferred to the local, State, or Federal in those cases where applicable Federal authority having proper jurisdiction. statutes expressly mandate or encour- (12) Grantees and subgrantees will age geographic preference. Nothing in have protest procedures to handle and this section preempts State licensing
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laws. When contracting for architec- If small purchase procedures are used, tural and engineering (A/E) services, price or rate quotations shall be ob- geographic location may be a selection tained from an adequate number of criteria provided its application leaves qualified sources. an appropriate number of qualified (2) Procurement by sealed bids (for- firms, given the nature and size of the mal advertising). Bids are publicly so- project, to compete for the contract. licited and a firm-fixed-price contract (3) Grantees will have written selec- (lump sum or unit price) is awarded to tion procedures for procurement trans- the responsible bidder whose bid, con- actions. These procedures will ensure forming with all the material terms that all solicitations: and conditions of the invitation for (i) Incorporate a clear and accurate bids, is the lowest in price. The sealed description of the technical require- bid method is the preferred method for ments for the material, product, or procuring construction, if the condi- service to be procured. Such descrip- tions in § 2541.36(d)(2)(i) apply. tion shall not, in competitive procure- (i) In order for sealed bidding to be ments, contain features which unduly feasible, the following conditions restrict competition. The description should be present: may include a statement of the quali- (A) A complete, adequate, and real- tative nature of the material, product istic specification or purchase descrip- or service to be procured, and when tion is available; necessary, shall set forth those min- (B) Two or more responsible bidders imum essential characteristics and are willing and able to compete effec- standards to which it must conform if tively and for the business; and it is to satisfy its intended use. De- (C) The procurement lends itself to a tailed product specifications should be firm fixed price contract and the selec- avoided if at all possible. When it is tion of the successful bidder can be impractical or uneconomical to make a made principally on the basis of price. clear and accurate description of the technical requirements, a ‘‘brand name (ii) If sealed bids are used, the fol- or equal’’ description may be used as a lowing requirements apply: means to define the performance or (A) The invitation for bids will be other salient requirements of a pro- publicly advertised and bids shall be curement. The specific features of the solicited from an adequate number of named brand which must be met by known suppliers, providing them suffi- offerors shall be clearly stated; and cient time prior to the date set for (ii) Identify all requirements which opening the bids; the offerors must fulfill and all other (B) The invitation for bids, which factors to be used in evaluating bids or will include any specifications and per- proposals. tinent attachments, shall define the (4) Grantees and subgrantees will en- items or services in order for the bidder sure that all prequalified lists of per- to properly respond; sons, firms, or products which are used (C) All bids will be publicly opened at in acquiring goods and services are cur- the time and place prescribed in the in- rent and include enough qualified vitation for bids; sources to ensure maximum open and (D) A firm fixed-price contract award free competition. Also, grantees and will be made in writing to the lowest subgrantees will not preclude potential responsive and responsible bidder. bidders from qualifying during the so- Where specified in bidding documents, licitation period. factors such as discounts, transpor- (d) Methods of procurement to be fol- tation cost, and life cycle costs shall be lowed—(1) Procurement by small purchase considered in determining which bid is procedures. Small purchase procedures lowest. Payment discounts will only be are those relatively simple and infor- used to determine the low bid when mal procurement methods for securing prior experience indicates that such services, supplies, or other property discounts are usually taken advantage that do not cost more than the sim- of; and plified acquisition threshold fixed at 41 (E) Any or all bids may be rejected if U.S.C. 403(11) (currently set at $100,000). there is a sound documented reason.
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(3) Procurement by competitive pro- delay resulting from competitive solic- posals. The technique of competitive itation; proposals is normally conducted with (C) The awarding agency authorizes more than one source submitting an noncompetitive proposals; or offer, and either a fixed-price or cost- (D) After solicitation of a number of reimbursement type contract is award- sources, competition is determined in- ed. It is generally used when conditions adequate. are not appropriate for the use of (ii) Cost analysis, i.e., verifying the sealed bids. If this method is used, the proposed cost data, the projections of following requirements apply: the data, and the evaluation of the spe- (i) Requests for proposals will be pub- cific elements of costs and profits, is licized and identify all evaluation fac- required. tors and their relative importance. Any (iii) Grantees and subgrantees may response to publicized requests for pro- be required to submit the proposed pro- posals shall be honored to the max- imum extent practical; curement to the awarding agency for (ii) Proposals will be solicited from pre-award review in accordance with an adequate number of qualified paragraph (g) of this section. sources; (e) Contracting with small and minority (iii) Grantees and subgrantees will firms, women’s business enterprise and have a method for conducting tech- labor surplus area firms. (1) The grantee nical evaluations of the proposals re- and subgrantee will take all necessary ceived and for selecting awardees; affirmative steps to assure that minor- (iv) Awards will be made to the re- ity firms, women’s business enter- sponsible firm whose proposal is most prises, and labor surplus area firms are advantageous to the program, with used when possible. price and other factors considered; and (2) Affirmative steps shall include: (v) Grantees and subgrantees may (i) Placing qualified small and minor- use competitive proposal procedures ity businesses and women’s business for qualifications-based procurement of enterprises on solicitation lists; architectural/engineering (A/E) profes- (ii) Assuring that small and minority sional services whereby competitors’ businesses, and women’s business en- qualifications are evaluated and the terprises are solicited whenever they most qualified competitor is selected, are potential sources; subject to negotiation of fair and rea- (iii) Dividing total requirements, sonable compensation. The method, when economically feasible, into small- where price is not used as a selection er tasks or quantities to permit max- factor, can only be used in procure- imum participation by small and mi- ment of A/E professional services. It nority business, and women’s business cannot be used to purchase other types enterprises; of services though A/E firms are a po- (iv) Establishing delivery schedules, tential source to perform the proposed where the requirement permits, which effort. (4) Procurement by noncompetitive encourage participation by small and proposals is procurement through solic- minority business, and women’s busi- itation of a proposal from only one ness enterprises; source, or after solicitation of a num- (v) Using the services and assistance ber of sources, competition is deter- of the Small Business Administration, mined inadequate. and the Minority Business Develop- (i) Procurement by noncompetitive ment Agency of the Department of proposals may be used only when the Commerce; and award of a contract is infeasible under (vi) Requiring the prime contractor, small purchase procedures, sealed bids if subcontracts are to be let, to take or competitive proposals and one of the the affirmative steps listed in para- following circumstances applies: graphs (e)(2) (i) through (v) of this sec- (A) The item is available only from a tion. single source; (f) Contract cost and price. (1) Grant- (B) The public exigency or emergency ees and subgrantees must perform a for the requirement will not permit a cost or price analysis in connection
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with every procurement action includ- ing agency believes such review is ing contract modifications. The meth- needed to ensure that the item and/or od and degree of analysis is dependent service specified is the one being pro- on the facts surrounding the particular posed for purchase. This review gen- procurement situation, but as a start- erally will take place prior to the time ing point, grantees must make inde- the specification is incorporated into a pendent estimates before receiving bids solicitation document. However, if the or proposals. A cost analysis must be grantee or subgrantee desires to have performed when the offeror is required the review accomplished after a solici- to submit the elements of his esti- tation has been developed, the award- mated cost, e.g., under professional, ing agency may still review the speci- consulting, and architectural engineer- fications, with such review usually lim- ing services contracts. A cost analysis ited to the technical aspects of the pro- will be necessary when adequate price posed purchase. competition is lacking, and for sole (2) Grantees and subgrantees must on source procurements, including con- request make available for awarding tract modifications or change orders, agency pre-award review procurement unless price reasonableness can be es- documents, such as requests for pro- tablished on the basis of a catalog or posals or invitations for bids, inde- market price of a commercial product pendent cost estimates, etc. when: sold in substantial quantities to the (i) A grantee’s or subgrantee’s pro- general public or based on prices set by curement procedures or operation fails law or regulation. A price analysis will to comply with the procurement stand- be used in all other instances to deter- ards in this section; or mine the reasonableness of the pro- (ii) The procurement is expected to posed contract price. exceed the simplified acquisition (2) Grantees and subgrantees will ne- threshold and is to be awarded without gotiate profit as a separate element of competition or only one bid or offer is the price for each contract in which received in response to a solicitation; there is no price competition and in all cases where cost analysis is performed. or To establish a fair and reasonable prof- (iii) The procurement, which is ex- it, consideration will be given to the pected to exceed the simplified acquisi- complexity of the work to be per- tion threshold, specifies a ‘‘brand formed, the risk borne by the con- name’’ product; or tractor, the contractor’s investment, (iv) The proposed award is more than the amount of subcontracting, the the simplified acquisition threshold quality of its record of past perform- and is to be awarded to other than the ance, and industry profit rates in the apparent low bidder under a sealed bid surrounding geographical area for procurement; or similar work. (v) A proposed contract modification (3) Costs or prices based on estimated changes the scope of a contract or in- costs for contracts under grants will be creases the contract amount by more allowable only to the extent that costs than the simplified acquisition thresh- incurred or cost estimates included in old. negotiated prices are consistent with (3) A grantee or subgrantee will be Federal cost principles (see § 2541.220). exempt from the pre-award review in Grantees may reference their own cost paragraph (g)(2) of this section if the principles that comply with the appli- awarding agency determines that its cable Federal cost principles. procurement systems comply with the (4) The cost plus a percentage of cost standards of this section. and percentage of construction cost (i) A grantee or subgrantee may re- methods of contracting shall not be quest that its procurement system be used. reviewed by the awarding agency to de- (g) Awarding agency review. (1) Grant- termine whether its system meets ees and subgrantees must make avail- these standards in order for its system able, upon request of the awarding to be certified. Generally, these re- agency, technical specifications on pro- views shall occur where there is a con- posed procurements where the award- tinuous high-dollar funding, and third-
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party contracts are awarded on a reg- conditions, access and records reten- ular basis. tion, suspension of work, and other (ii) A grantee or subgrantee may self- clauses approved by the Office of Fed- certify its procurement system. Such eral Procurement Policy. self-certification shall not limit the (1) Administrative, contractual, or awarding agency’s right to survey the legal remedies in instances where con- system. Under a self-certification pro- tractors violate or breach contract cedure, awarding agencies may wish to terms, and provide for such sanctions rely on written assurances from the and penalties as may be appropriate. grantee or subgrantee that it is com- (Contracts more than the simplified ac- plying with these standards. A grantee quisition threshold) or subgrantee will cite specific proce- (2) Termination for cause and for dures, regulations, standards, etc., as convenience by the grantee or sub- being in compliance with these require- grantee including the manner by which ments and have its system available it will be effected and the basis for set- for review. tlement. (All contracts in excess of (h) Bonding requirements. For con- $10,000) struction or facility improvement con- (3) Compliance with Executive Order tracts or subcontracts exceeding the 11246 of September 24, 1965, entitled simplified acquisition threshold, the ‘‘Equal Employment Opportunity,’’ as awarding agency may accept the bond- amended by Executive Order 11375 of ing policy and requirements of the October 13, 1967, and as supplemented grantee or subgrantee provided the in Department of Labor regulations (41 awarding agency has made a deter- CFR chapter 60). (All construction con- mination that the awarding agency’s tracts awarded in excess of $10,000 by interest is adequately protected. If grantees and their contractors or sub- such a determination has not been grantees) made, the minimum requirements shall be as follows: (4) Compliance with the Copeland (1) A bid guarantee from each bidder ‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as equivalent to five percent of the bid price. supplemented in Department of Labor The ‘‘bid guarantee’’ shall consist of a regulations (29 CFR Part 3). (All con- firm commitment such as a bid bond, tracts and subgrants for construction certified check, or other negotiable in- or repair) strument accompanying a bid as assur- (5) Compliance with the Davis-Bacon ance that the bidder will, upon accept- Act (40 U.S.C. 276a to 276a–7) as supple- ance of his bid, execute such contrac- mented by Department of Labor regu- tual documents as may be required lations (29 CFR Part 5). (Construction within the time specified. contracts in excess of $2000 awarded by (2) A performance bond on the part of grantees and subgrantees when re- the contractor for 100 percent of the con- quired by Federal grant program legis- tract price. A ‘‘performance bond’’ is lation) one executed in connection with a con- (6) Compliance with Sections 103 and tract to secure fulfillment of all the 107 of the Contract Work Hours and contractor’s obligations under such Safety Standards Act (40 U.S.C. 327–330) contract. as supplemented by Department of (3) A payment bond on the part of the Labor regulations (29 CFR Part 5). contractor for 100 percent of the contract (Construction contracts awarded by price. A ‘‘payment bond’’ is one exe- grantees and subgrantees in excess of cuted in connection with a contract to $2000, and in excess of $2500 for other assure payment as required by law of contracts which involve the employ- all persons supplying labor and mate- ment of mechanics or laborers) rial in the execution of the work pro- (7) Notice of awarding agency re- vided for in the contract. quirements and regulations pertaining (i) Contract provisions. A grantee’s to reporting. and subgrantee’s contracts must con- (8) Notice of awarding agency re- tain provisions in paragraph (i) of this quirements and regulations pertaining section. Federal agencies are permitted to patent rights with respect to any to require changes, remedies, changed discovery or invention which arises or
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is developed in the course of or under the same standards of timing and such contract. amount that apply to cash advances by (9) Awarding agency requirements Federal agencies. and regulations pertaining to copy- (b) All other grantees. All other grant- rights and rights in data. ees shall follow the provisions of this (10) Access by the grantee, the sub- part which are applicable to awarding grantee, the Federal grantor agency, agencies when awarding and admin- the Comptroller General of the United istering subgrants (whether on a cost States, or any of their duly authorized reimbursement or fixed amount basis) representatives to any books, docu- of financial assistance to local and In- ments, papers, and records of the con- dian tribal governments. Grantees tractor which are directly pertinent to shall: that specific contract for the purpose (1) Ensure that every subgrant in- of making audit, examination, ex- cludes a provision for compliance with cerpts, and transcriptions. this part; (11) Retention of all required records (2) Ensure that every subgrant in- for three years after grantees or sub- cludes any clauses required by Federal grantees make final payments and all statute and executive orders and their other pending matters are closed. implementing regulations; and (12) Compliance with all applicable (3) Ensure that subgrantees are standards, orders, or requirements aware of requirements imposed upon issued under section 306 of the Clean them by Federal statutes and regula- Air Act (42 U.S.C. 1857(h)), section 508 tions. of the Clean Water Act (33 U.S.C. 1368), (c) Exceptions. By their own terms, Executive Order 11738, and Environ- certain provisions of this part do not mental Protection Agency regulations apply to the award and administration (40 CFR part 15). (Contracts, sub- of subgrants: contracts, and subgrants of amounts in (1) § 2541.100; excess of $100,000) (2) § 2541.110; (13) Mandatory standards and policies (3) The letter-of-credit procedures relating to energy efficiency which are specified in Treasury Regulations at 31 contained in the state energy conserva- CFR part 205, cited in § 2541.210; and tion plan issued in compliance with the (4) § 2541.500. Energy Policy and Conservation Act (Pub. L. 94–163, 89 Stat. 871). Subpart E—Reports, Records, [59 FR 41598, Aug. 12, 1994, as amended at 60 Retention and Enforcement FR 19639, 19646, Apr. 19, 1995] § 2541.400 Monitoring and reporting § 2541.370 Subgrants. program performance. (a) States. States shall follow State (a) Monitoring by grantees. Grantees law and procedures when awarding and are responsible for managing the day- administering subgrants (whether on a to-day operations of grant and cost reimbursement or fixed amount subgrant supported activities. Grantees basis) of financial assistance to local must monitor grant and subgrant sup- and Indian tribal governments. States ported activities to assure compliance shall: with applicable Federal requirements (1) Ensure that every subgrant in- and that performance goals are being cludes any clauses required by Federal achieved. Grantee monitoring must statute and executive orders and their cover each program, function or activ- implementing regulations; ity. (2) Ensure that subgrantees are (b) Nonconstruction performance re- aware of requirements imposed upon ports. The Federal agency may, if it de- them by Federal statute and regula- cides that performance information tion; available from subsequent applications (3) Ensure that a provision for com- contains sufficient information to pliance with § 2541.400 is placed in every meet its programmatic needs, require cost reimbursement subgrant; and the grantee to submit a performance (4) Conform any advances of grant report only upon expiration or termi- funds to subgrantees substantially to nation of grant support. Unless waived
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by the Federal agency this report will subgrant supported activity. In such be due on the same date as the final Fi- cases, the grantee must inform the nancial Status Report. Federal agency as soon as the following (1) Grantees shall submit annual per- types of conditions become known: formance reports unless the awarding (1) Problems, delays, or adverse con- agency requires quarterly or semi-an- ditions which will materially impair nual reports. However, performance re- the ability to meet the objective of the ports will not be required more fre- award. This disclosure must include a quently than quarterly. Annual reports statement of the action taken, or con- shall be due 90 days after the grant templated, and any assistance needed year, quarterly or semi-annual reports to resolve the situation. shall be due 30 days after the reporting (2) Favorable developments which en- period. The final performance report able meeting time schedules and objec- will be due 90 days after the expiration tives sooner or at less cost than antici- or termination of grant support. If a pated or producing more beneficial re- justified request is submitted by a sults than originally planned. grantee, the Federal agency may ex- (e) Federal agencies may tend the due date for any performance Site visits. report. Additionally, requirements for make site visits as warranted by pro- unnecessary performance reports may gram needs. be waived by the Federal agency. (f) Waivers, extensions. (1) Federal (2) Performance reports will contain, agencies may waive any performance for each grant, brief information on the report required by this part if not need- following: ed. (i) A comparison of actual accom- (2) The grantee may waive any per- plishments to the objectives estab- formance report from a subgrantee lished for the period. Where the output when not needed. The grantee may ex- of the project can be quantified, a com- tend the due date for any performance putation of the cost per unit of output report from a subgrantee if the grantee may be required if that information will still be able to meet its perform- will be useful. ance reporting obligations to the Fed- (ii) The reasons for slippage if estab- eral agency. lished objectives were not met. (iii) Additional pertinent information § 2541.410 Financial reporting. including, when appropriate, analysis (a) General.—(1) Except as provided in and explanation of cost overruns or paragraphs (a) (2) and (5) of this sec- high unit costs. tion, grantees will use only the forms (3) Grantees will not be required to specified in paragraphs (a) through (e) submit more than the original and two of this section, and such supple- copies of performance reports. mentary or other forms as may from (4) Grantees will adhere to the stand- time to time be authorized by OMB, ards in this section in prescribing per- for: formance reporting requirements for (i) Submitting financial reports to subgrantees. Federal agencies; or (c) Construction performance reports. For the most part, on-site technical in- (ii) Requesting advances or reim- spections and certified percentage-of- bursements when letters of credit are completion data are relied on heavily not used. by Federal agencies to monitor (2) Grantees need not apply the forms progress under construction grants and prescribed in this section in dealing subgrants. The Federal agency will re- with their subgrantees. However, quire additional formal performance grantees shall not impose more burden- reports only when considered nec- some requirements on subgrantees. essary, and never more frequently than (3) Grantees shall follow all applica- quarterly. ble standard and supplemental Federal (d) Significant developments. Events agency instructions approved by OMB may occur between the scheduled per- to the extent required under the Paper- formance reporting dates which have work Reduction Act of 1980 for use in significant impact upon the grant or connection with forms specified in
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paragraphs (b) through (e) of this sec- reporting period. When required on an tion. Federal agencies may issue sub- annual basis, they will be due 90 days stantive supplementary instructions after the grant year. Final reports will only with the approval of OMB. Federal be due 90 days after the expiration or agencies may shade out or instruct the termination of grant support. grantee to disregard any line item that (c) Federal Cash Transactions Report.— the Federal agency finds unnecessary (1) Form. (i) For grants paid by letter or for its decision making purposes. credit, Treasury check advances or (4) Grantees will not be required to electronic transfer of funds, the grant- submit more than the original and two ee will submit the Standard Form 272, copies of forms required under this Federal Cash Transactions Report, and part. when necessary, its continuation sheet, (5) Federal agencies may provide Standard Form 272a, unless the terms computer outputs to grantees to expe- of the award exempt the grantee from dite or contribute to the accuracy of this requirement. reporting. Federal agencies may accept (ii) These reports will be used by the the required information from grantees Federal agency to monitor cash ad- in machine usable format or computer vanced to grantees and to obtain dis- printouts instead of prescribed forms. bursement or outlay information for (6) Federal agencies may waive any each grant from grantees. The format report required by this section if not of the report may be adapted as appro- needed. priate when reporting is to be accom- (7) Federal agencies may extend the plished with the assistance of auto- due date of any financial report upon matic data processing equipment pro- receiving a justified request from a vided that the information to be sub- grantee. mitted is not changed in substance. (b) Financial Status Report.—(1) Form. (2) Forecasts of Federal cash require- Grantees will use Standard Form 269 or ments. Forecasts of Federal cash re- 269A, Financial Status Report, to re- quirements may be required in the port the status of funds for all non- ‘‘Remarks’’ section of the report. construction grants and for construc- (3) Cash in hands of subgrantees. When tion grants when required in accord- considered necessary and feasible by ance with paragraph (e)(2)(iii) of this the Federal agency, grantees may be section. required to report the amount of cash (2) Accounting basis. Each grantee will advances in excess of three days’ needs report program outlays and program in the hands of their subgrantees or income on a cash or accrual basis as contractors and to provide short nar- prescribed by the awarding agency. If rative explanations of actions taken by the Federal agency requires accrual in- the grantee to reduce the excess bal- formation and the grantee’s accounting ances. records are not normally kept on the (4) Frequency and due date. Grantees accrual basis, the grantee shall not be must submit the report no later than 15 required to convert its accounting sys- working days following the end of each tem but shall develop such accrual in- quarter. However, where an advance ei- formation through an analysis of the ther by letter of credit or electronic documentation on hand. transfer of funds is authorized at an (3) Frequency. The Federal agency annualized rate of one million dollars may prescribe the frequency of the re- or more, the Federal agency may re- port for each project or program. How- quire the report to be submitted within ever, the report will not be required 15 working days following the end of more frequently than quarterly. If the each month. Federal agency does not specify the (d) Request for advance or reimburse- frequency of the report, it will be sub- ment.—(1) Advance payments. Requests mitted annually. A final report will be for Treasury check advance payments required upon expiration or termi- will be submitted on Standard Form nation of grant support. 270, Request for Advance or Reimburse- (4) Due date. When reports are re- ment. (This form will not be used for quired on a quarterly or semiannual drawdowns under a letter of credit, basis, they will be due 30 days after the electronic funds transfer or when
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Treasury check advance payments are tion Programs shall be governed by made to the grantee automatically on paragraph (b)(2) of this section. a predetermined basis.) (2) Reimbursements. Requests for reim- § 2541.420 Retention and access re- bursement under nonconstruction quirements for records. grants will also be submitted on Stand- (a) Applicability. (1) This section ap- ard Form 270. (For reimbursement re- plies to all financial and programmatic quests under construction grants, see records, supporting documents, statis- paragraph (e)(1) of this section.) tical records, and other records of (3) The frequency for submitting pay- grantees or subgrantees which are: ment requests is treated in paragraph (i) Required to be maintained by the (b)(3) of this section. terms of this part, program regulations (e) Outlay report and request for reim- or the grant agreement; or bursement for construction programs.—(1) (ii) Otherwise reasonably considered Grants that support construction activi- as pertinent to program regulations or ties paid by reimbursement method. (i) the grant agreement. Requests for reimbursement under con- (2) This section does not apply to struction grants will be submitted on records maintained by contractors or Standard Form 271, Outlay Report and subcontractors. For a requirement to Request for Reimbursement for Con- struction Programs. Federal agencies place a provision concerning records in may, however, prescribe the Request certain kinds of contracts, see for Advance or Reimbursement form, § 2541.360(i)(10). specified in paragraph (d) of this sec- (b) Length of retention period. (1) Ex- tion, instead of this form. cept as otherwise provided, records (ii) The frequency for submitting re- must be retained for three years from imbursement requests is treated in the starting date specified in paragraph paragraph (b)(3) of this section. (c) of this section. (2) Grants that support construction ac- (2) If any litigation, claim, negotia- tivities paid by letter of credit, electronic tion, audit or other action involving funds transfer or Treasury check ad- the records has been started before the vance. (i) When a construction grant is expiration of the 3-year period, the paid by letter of credit, electronic records must be retained until comple- funds transfer or Treasury check ad- tion of the action and resolution of all vances, the grantee will report its out- issues which arise from it, or until the lays to the Federal agency using end of the regular 3-year period, which- Standard Form 271, Outlay Report and ever is later. Request for Reimbursement for Con- (3) To avoid duplicate recordkeeping, struction Programs. The Federal agen- awarding agencies may make special cy will provide any necessary special arrangements with grantees and sub- instruction. However, frequency and grantees to retain any records which due date shall be governed by para- are continuously needed for joint use. graphs (b) (3) and (4) of this section. The awarding agency will request (ii) When a construction grant is paid transfer of records to its custody when by Treasury check advances based on it determines that the records possess periodic requests from the grantee, the long-term retention value. When the advances will be requested on the form records are transferred to or main- specified in paragraph (d) of this sec- tained by the Federal agency, the 3- tion. year retention requirement is not ap- (iii) The Federal agency may sub- plicable to the grantee or subgrantee. stitute the Financial Status Report specified in paragraph (b) of this sec- (c) Starting date of retention period.— tion for the Outlay Report and Request (1) General. When grant support is con- for Reimbursement for Construction tinued or renewed at annual or other Programs. intervals, the retention period for the (3) Accounting basis. The accounting records of each funding period starts on basis for the Outlay Report and Re- the day the grantee or subgrantee sub- quest for Reimbursement for Construc- mits to the awarding agency its single
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or last expenditure report for that pe- (d) Substitution of microfilm. Copies riod. However, if grant support is con- made by microfilming, photocopying, tinued or renewed quarterly, the reten- or similar methods may be substituted tion period for each year’s records for the original records. starts on the day the grantee submits (e) Access to records.—(1) Records of its expenditure report for the last quar- grantees and subgrantees. The awarding ter of the Federal fiscal year. In all agency and the Comptroller General of other cases, the retention period starts the United States, or any of their au- on the day the grantee submits its thorized representatives, shall have the final expenditure report. If an expendi- right of access to any pertinent books, ture report has been waived, the reten- documents, papers, or other records of tion period starts on the day the report grantees and subgrantees which are would have been due. pertinent to the grant, in order to (2) Real property and equipment make audits, examinations, excerpts, records. The retention period for real and transcripts. property and equipment records starts (2) Expiration of right of access. The from the date of the disposition or re- rights of access in this section must placement or transfer at the direction not be limited to the required reten- of the awarding agency. tion period but shall last as long as the (3) Records for income transactions records are retained. after grant or subgrant support. In some (f) Restrictions on public access. The cases grantees must report income Federal Freedom of Information Act (5 after the period of grant support. U.S.C. 552) does not apply to records. Where there is such a requirement, the Unless required by Federal, State, or retention period for the records per- local law, grantees and subgrantees are taining to the earning of the income not required to permit public access to starts from the end of the grantee’s fis- their records. cal year in which the income is earned. (4) Indirect cost rate proposals, cost al- § 2541.430 Enforcement. locations plans, etc. This paragraph ap- (a) Remedies for noncompliance. If a plies to the following types of docu- grantee or subgrantee materially fails ments, and their supporting records: to comply with any term of an award, indirect cost rate computations or pro- whether stated in a Federal statute or posals, cost allocation plans, and any regulation, an assurance, in a State similar accounting computations of plan or application, a notice of award, the rate at which a particular group of or elsewhere, the awarding agency may costs is chargeable (such as computer take one or more of the following ac- usage charge back rates or composite tions, as appropriate in the cir- fringe benefit rates). cumstances: (i) If submitted for negotiation. If the (1) Temporarily withhold cash pay- proposal, plan, or other computation is ments pending correction of the defi- required to be submitted to the Federal ciency by the grantee or subgrantee or Government (or to the grantee) to form more severe enforcement action by the the basis for negotiation of the rate, awarding agency; then the 3-year retention period for its (2) Disallow (that is, deny both use of supporting records starts from the date funds and matching credit for) all or of such submission. part of the cost of the activity or ac- (ii) If not submitted for negotiation. If tion not in compliance; the proposal, plan, or other computa- (3) Wholly or partly suspend or ter- tion is not required to be submitted to minate the current award for the the Federal Government (or to the grantee’s or subgrantee’s program; grantee) for negotiation purposes, then (4) Withhold further awards for the the 3-year retention period for the pro- program; or posal plan, or computation and its sup- (5) Take other remedies that may be porting records starts from end of the legally available. fiscal year (or other accounting period) (b) Hearings, appeals. In taking an en- covered by the proposal, plan, or other forcement action, the awarding agency computation. will provide the grantee or subgrantee
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an opportunity for such hearing, ap- mination, the awarding agency deter- peal, or other administrative pro- mines that the remaining portion of ceeding to which the grantee or sub- the award will not accomplish the pur- grantee is entitled under any statute poses for which the award was made, or regulation applicable to the action the awarding agency may terminate involved. the award in its entirety under either (c) Effects of suspension and termi- § 2541.430 or paragraph (a) of this sec- nation. Costs of grantee or subgrantee tion. resulting from obligations incurred by the grantee or subgrantee during a sus- Subpart F—After the Grant pension or after termination of an Requirement award are not allowable unless the awarding agency expressly authorizes § 2541.500 Closeout. them in the notice of suspension or ter- (a) General. The Federal agency will mination or subsequently. Other grant- close out the award when it determines ee or subgrantee costs during suspen- that all applicable administrative ac- sion or after termination which are tions and all required work of the necessary and not reasonably avoidable grant has been completed. are allowable if: (b) Reports. Within 90 days after the (1) The costs result from obligations expiration or termination of the grant, which were properly incurred by the the grantee must submit all financial, grantee or subgrantee before the effec- performance, and other reports re- tive date of suspension or termination, quired as a condition of the grant. are not in anticipation of it, and, in the Upon request by the grantee, Federal case of a termination, are agencies may extend this time frame. noncancellable; and These may include but are not limited (2) The costs would be allowable if to: the award were not suspended or ex- (1) Final performance or progress re- pired normally at the end of the fund- port; ing period in which the termination (2) Financial Status Report (SF 269) takes effect. or Outlay Report and Request for Re- (d) Relationship to debarment and sus- imbursement for Construction Pro- pension. The enforcement remedies grams (SF–271) (as applicable); identified in this section, including (3) Final request for payment (SF– suspension and termination, do not 270) (if applicable); preclude grantee or subgrantee from (4) Invention disclosure (if applica- being subject to ‘‘Debarment and Sus- ble); pension’’ under E.O. 12549 (see (5) Federally-owned property report. § 2541.350). In accordance with § 2541.320(f), a grant- ee must submit an inventory of all fed- § 2541.440 Termination for conven- erally owned property (as distinct from ience. property acquired with grant funds) for Except as provided in § 2541.430 which it is accountable and request dis- awards may be terminated in whole or position instructions from the Federal in part only as follows: agency of property no longer needed. (a) By the awarding agency with the (c) Cost adjustment. The Federal agen- consent of the grantee or subgrantee in cy will, within 90 days after receipt of which case the two parties shall agree reports in paragraph (b) of this section, upon the termination conditions, in- make upward or downward adjust- cluding the effective date and in the ments to the allowable costs. case of partial termination, the portion (d) Cash adjustments. (1) The Federal to be terminated; or agency will make prompt payment to (b) By the grantee or subgrantee the grantee for allowable reimbursable upon written notification to the award- costs. ing agency, setting forth the reasons (2) The grantee must immediately re- for such termination, the effective fund to the Federal agency any balance date, and in the case of partial termi- of unobligated (unencumbered) cash nation, the portion to be terminated. advanced that is not authorized to be However, if, in the case of a partial ter- retained for use on other grants.
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§ 2541.510 Later disallowances and ad- 2542.110 Ineligible persons. justments. 2542.120 Voluntary exclusion. 2542.130 Exception provision. The closeout of a grant does not af- 2542.140 Continuation of covered trans- fect: actions. (a) The Federal agency’s right to dis- 2542.150 Failure to adhere to restrictions. allow costs and recover funds on the basis of a later audit or other review; Subpart C—Debarment (b) The grantee’s obligation to return 2542.200 General. any funds due as a result of later re- 2542.210 Causes for debarment. funds, corrections, or other trans- 2542.220 Procedures. actions; 2542.230 Investigation and referral. (c) Records retention as required in 2542.240 Notice of proposed debarment. § 2541.420; 2542.250 Opportunity to contest proposed de- (d) Property management require- barment. ments in §§ 2541.3120 and 2541.320; and 2542.260 Debarring official’s decision. (e) Audit requirements in § 2541.410. 2542.270 Settlement and voluntary exclu- sion. § 2541.520 Collection of amounts due. 2542.280 Period of debarment. 2542.290 Scope of debarment. (a) Any funds paid to a grantee in ex- cess of the amount to which the grant- Subpart D—Suspension ee is finally determined to be entitled under the terms of the award con- 2542.300 General. 2542.310 Causes for suspension. stitute a debt to the Federal Govern- 2542.320 Procedures. ment. If not paid within a reasonable 2542.330 Notice of suspension. period after demand, the Federal agen- 2542.340 Opportuntiy to contest suspension. cy may reduce the debt by: 2542.350 Suspending official’s decision. (1) Making an administrative offset 2542.360 Period of suspension. against other requests for reimburse- 2542.370 Scope of suspension. ments; (2) Withholding advance payments Subpart E—Responsibilities of GSA, Agency otherwise due to the grantee; or and Participants (3) Other action permitted by law. 2542.400 GSA responsibilities. (b) Except where otherwise provided 2542.410 Corporation responsibilities. by statutes or regulations, the Federal 2542.420 Participants’ responsibilities. agency will charge interest on an over- due debt in accordance with the Fed- Subpart F—Drug-Free Workplace eral Claims Collection Standards (4 Requirements (Grants) CFR Ch. II). The date from which inter- 2542.500 Purpose. est is computed is not extended by liti- 2542.510 Definitions. gation or the filing of any form of ap- 2542.520 Coverage. peal. 2542.530 Grounds for suspension of pay- ments, suspension or termination of PART 2542—GOVERNMENTWIDE grants, or suspension or debarment. 2542.540 Effect of violation. DEBARMENT AND SUSPENSION 2542.550 Exception provision. (NONPROCUREMENT) AND GOV- 2542.560 Certification requirements and pro- ERNMENTWIDE REQUIREMENTS cedures. FOR DRUG-FREE WORKPLACE 2542.570 Reporting of and employee sanc- tions for convictions of criminal drug of- (GRANTS) fenses. APPENDIX A TO PART 2542—CERTIFICATION RE- Subpart A—General GARDING DEBARMENT, SUSPENSION, AND Sec. OTHER RESPONSIBILITY MATTERS—PRI- 2542.10 Purpose. MARY COVERED TRANSACTIONS 2542.20 Definitions. APPENDIX B TO PART 2542—CERTIFICATION RE- 2542.30 Coverage. GARDING DEBARMENT, SUSPENSION, INELI- 2542.40 Policy. GIBILITY AND VOLUNTARY EXCLUSION— LOWER TIER COVERED TRANSACTIONS Subpart B—Effect of Action APPENDIX C TO PART 2542—CERTIFICATION RE- GARDING DRUG-FREE WORKPLACE RE- 2542.100 Debarment or suspension. QUIREMENTS
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AUTHORITY: 42 U.S.C. 4951 et seq., 5060 and (1) Providing for the inclusion in the 12644; E.O. 12549, 51 FR 6370, February 21, 1986 List of Parties Excluded from Federal Pro- (3 CFR, 1986 Comp., p. 189). curement and Nonprocurement Programs SOURCE: 59 FR 41614, Aug. 12, 1994, unless all persons proposed for debarment, otherwise noted. debarred or suspended under the Fed- CROSS REFERENCE: See also Office of Man- eral Acquisition Regulation, 48 CFR agement and Budget notice published at 55 Part 9, subpart 9.4; persons against FR 21679, May 25, 1990, and the government- which governmentwide exclusions have wide common rule published at 53 FR 19161, been entered under this part; and per- May 26, 1988, and 60 FR 33036, June 26, 1995. sons determined to be ineligible; and (2) Setting forth the consequences of Subpart A—General a debarment, suspension, determina- tion of ineligibility, or voluntary ex- § 2542.10 Purpose. clusion. (a) Executive Order (E.O.) 12549 pro- (d) Although these regulations cover vides that, to the extent permitted by the listing of ineligible participants law, Executive departments and agen- and the effect of such listing, they do cies shall participate in a government- not prescribe policies and procedures wide system for nonprocurement debar- governing declarations of ineligibility. ment and suspension. A person who is [60 FR 33040, 33063, June 26, 1995] debarred or suspended shall be excluded from Federal financial and non- § 2542.20 Definitions. financial assistance and benefits under The following definitions apply to Federal programs and activities. De- this part: barment or suspension of a participant Adequate evidence. The term adequate in a program by one agency shall have evidence means information sufficient governmentwide effect. to support the reasonable belief that a (b) These regulations implement sec- particular act or omission has oc- tion 3 of E.O. 12549 and the guidelines curred. promulgated by the Office of Manage- Affiliate. Persons are affiliates of ment and Budget under section 6 of the each other if, directly or indirectly, ei- E.O. by: ther one controls or has the power to (1) Prescribing the programs and ac- control the other, or, a third person tivities that are covered by the govern- controls or has the power to control mentwide system; both. Indicia of control include, but are (2) Prescribing the governmentwide not limited to: interlocking manage- criteria and governmentwide minimum ment or ownership, identity of inter- due process procedures that each agen- ests among family members, shared fa- cy shall use; cilities and equipment, common use of (3) Providing for the listing of employees, or a business entity orga- debarred and suspended participants, nized following the suspension or de- participants declared ineligible (see barment of a person which has the definition of ‘‘ineligible’’ in § 2542.20), same or similar management, owner- and participants who have voluntarily ship, or principal employees as the sus- excluded themselves from participation pended, debarred, ineligible, or volun- in covered transactions; tarily excluded person. (4) Setting forth the consequences of Agency. The term agency means any a debarment, suspension, determina- executive department, military depart- tion of ineligibility, or voluntary ex- ment or defense agency or other agen- clusion; and cy of the executive branch, excluding (5) Offering such other guidance as the independent regulatory agencies. necessary for the effective implementa- Civil judgment. The term civil judg- tion and administration of the govern- ment means the disposition of a civil mentwide system. action by any court of competent juris- (c) These regulations also implement diction, whether entered by verdict, de- Executive Order 12689 (3 CFR, 1989 cision, settlement, stipulation, or oth- Comp., p. 235) and 31 U.S.C. 6101 note erwise creating a civil liability for the (Public Law 103–355, sec. 2455, 108 Stat. wrongful acts complained of; or a final 3327) by— determination of liability under the
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Program Fraud Civil Remedies Act of these regulations or 48 CFR part 9, sub- 1988 (31 U.S.C. 3801–12). part 9.4, persons who have been pro- Conviction. A judgment or conviction posed for debarment under 48 CFR part of a criminal offense by any court of 9, subpart 9.4, and those persons who competent jurisdiction, whether en- have been determined to be ineligible. tered upon a verdict or a plea, includ- Notice. The term notice means a writ- ing a plea of nolo contendere. ten communication served in person or Debarment. The term debarment sent by certified mail, return receipt means an action taken by a debarring requested, or its equivalent, to the last official in accordance with these regu- known address of a party, its identified lations to exclude a person from par- counsel, its agent for service of proc- ticipating in covered transactions. A ess, or any partner, officer, director, person so excluded is ‘‘debarred.’’ owner, or joint venturer of the party. Debarring official. The term debarring Notice, if undeliverable, shall be con- official means an official authorized to sidered to have been received by the impose debarment. The debarring offi- addressee five days after being properly cial is either: sent to the last address known by the (1) The agency head; or agency. (2) An official designated by the Participant. The term participant agency head. means any person who submits a pro- Indictment. Indictment for a criminal posal for, enters into, or reasonably offense. An information or other filing may be expected to enter into a cov- by competent authority charging a ered transaction. This term also in- criminal offense shall be given the cludes any person who acts on behalf of same effect as an indictment. or is authorized to commit a partici- Ineligible. The term ineligible means pant in a covered transaction as an excluded from participation in Federal agent or representative of another par- nonprocurement programs pursuant to ticipant. a determination of ineligibility under Person. The term person means any statutory, executive order, or regu- latory authority, other than Executive individual, corporation, partnership, Order 12549 and its agency imple- association, unit of government or menting regulations; for example, ex- legal entity, however organized, ex- cluded pursuant to the Davis-Bacon cept: Foreign governments or foreign Act and its implementing regulations, governmental entities, public inter- the equal employment opportunity national organizations, foreign govern- acts and executive orders, or the envi- ment owned (in whole or in part) or ronmental protection acts and execu- controlled entities, and entities con- tive orders. A person is ineligible where sisting wholly or partially of foreign the determination of ineligibility af- governments or foreign governmental fects such person’s eligibility to par- entities. ticipate in more than one covered Preponderance of the evidence. The transaction. term preponderance of the evidence Legal proceedings. Any criminal pro- means proof by information that, com- ceeding or any civil judicial proceeding pared with that opposing it, leads to to which the Federal Government or a the conclusion that the fact at issue is State or local government or quasi- more probably true than not. governmental authority is a party. The Principal. The term principal means term includes appeals from such pro- an officer, director, owner, partner, ceedings. key employee, or other person within a List of Parties Excluded from Federal participant with primary management Procurement and Nonprocurement Pro- or supervisory responsibilities; or a grams. A list compiled, maintained and person who has a critical influence on distributed by the General Services Ad- or substantive control over a covered ministration (GSA) containing the transaction, whether or not employed names and other information about by the participant. Persons who have a persons who have been debarred, sus- critical influence on or substantive pended, or voluntarily excluded under control over a covered transaction are Executive Orders 12549 and 12689 and principal investigators.
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Proposal. The term proposal means a procurement programs. For purposes of solicited or unsolicited bid, applica- the regulations in this part such trans- tion, request, invitation to consider or actions will be referred to as ‘‘covered similar communication by or on behalf transactions.’’ of a person seeking to participate or to (1) Covered transaction. For purposes receive a benefit, directly or indirectly, of the regulations in this part, a cov- in or under a covered transaction. ered transaction is a primary covered Respondent. The term respondent transaction or a lower tier covered means a person against whom a debar- transaction. Covered transactions at ment or suspension action has been ini- any tier need not involve the transfer tiated. of Federal funds. State. The term state means any of (i) Primary covered transaction. Except the States of the United States, the as noted in paragraph (a)(2) of this sec- District of Columbia, the Common- tion, a primary covered transaction is wealth of Puerto Rico, any territory or any nonprocurement transaction be- possession of the United States, or any tween an agency and a person, regard- agency of a State, exclusive of institu- less of type, including: Grants, cooper- tions of higher education, hospitals, and units of local government. A State ative agreements, scholarships, fellow- instrumentality will be considered part ships, contracts of assistance, loans, of the State government if it has a loan guarantees, subsidies, insurance, written determination from a State payments for specified use, donation government that such State considers agreements and any other nonprocure- that instrumentality to be an agency ment transactions between a Federal of the State government. agency and a person. Primary covered Suspending official. The term sus- transactions also include those trans- pending official means an official au- actions specially designated by the thorized to impose suspension. The sus- U.S. Department of Housing and Urban pending official is either: Development in such agency’s regula- (1) The agency head; or tions governing debarment and suspen- (2) An official designated by the sion. agency head. (ii) Lower tier covered transaction. A Suspension. The term suspension lower tier covered transaction is: means an action taken by a suspending (A) Any transaction between a par- official in accordance with these regu- ticipant and a person other than a pro- lations that immediately excludes a curement contract for goods or serv- person from participating in covered ices, regardless of type, under a pri- transactions for a temporary period, mary covered transaction. pending completion of an investigation (B) Any procurement contract for and such legal, debarment, or Program goods or services between a participant Fraud Civil Remedies Act proceedings and a person, regardless of type, ex- as may ensue. A person so excluded is pected to equal or exceed the Federal ‘‘suspended.’’ procurement small purchase threshold Voluntary exclusion (or) voluntarily ex- fixed at 10 U.S.C. 2304(g) and 41 U.S.C. cluded. The term voluntary exclusion 253(g) (currently $25,000) under a pri- (or) voluntarily excluded means a status mary covered transaction. of nonparticipation or limited partici- (C) Any procurement contract for pation in covered transactions assumed goods or services between a participant by a person pursuant to the terms of a and a person under a covered trans- settlement. action, regardless of amount, under [59 FR 41614, Aug. 12, 1994, as amended at 60 which that person will have a critical FR 33041, 33063, June 26, 1995] influence on or substantive control over that covered transaction. Such § 2542.30 Coverage. persons are: (a) The regulations in this part apply (1) Principal investigators. to all persons who have participated, (2) Providers of federally-required are currently participating or may rea- audit services. sonably be expected to participate in (3) Exceptions. The following trans- transactions under Federal non- actions are not covered:
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(i) Statutory entitlements or manda- nized by and effective for Executive tory awards (but not subtier awards Branch agencies and participants as an thereunder which are not themselves exclusion under this regulation. Simi- mandatory), including deposited funds larly, any debarment, suspension or insured by the Federal Government; other governmentwide exclusion initi- (ii) Direct awards to foreign govern- ated under this regulation on or after ments or public international organiza- August 25, 1995 shall be recognized by tions, or transactions with foreign gov- and effective for those agencies as a de- ernments or foreign governmental en- barment or suspension under the FAR. tities, public international organiza- [59 FR 41614, Aug. 12, 1994, as amended at 60 tions, foreign government owned (in FR 33041, 33063, June 26, 1995] whole or in part) or controlled entities, entities consisting wholly or partially § 2542.40 Policy. of foreign governments or foreign gov- (a) In order to protect the public in- ernmental entities; terest, it is the policy of the Federal (iii) Benefits to an individual as a Government to conduct business only personal entitlement without regard to with responsible persons. Debarment the individual’s present responsibility and suspension are discretionary ac- (but benefits received in an individual’s tions that, taken in accordance with business capacity are not excepted); Executive Order 12549 and this part, are (iv) Federal employment; appropriate means to implement this (v) Transactions pursuant to national policy. or agency-recognized emergencies or disasters; (b) Debarment and suspension are se- (vi) Incidental benefits derived from rious actions which shall be used only ordinary governmental operations; and in the public interest and for the Fed- (vii) Other transactions where the ap- eral Government’s protection and not plication of these regulations would be for purposes of punishment. Agencies prohibited by law. may impose debarment or suspension (b) Relationship to other sections. This for the causes and in accordance with section describes the types of trans- the procedures set forth in this part. actions to which a debarment or sus- (c) When more than one agency has pension under this part will apply. Sub- an interest in the proposed debarment part B, ‘‘Effect of Action,’’ § 2542.50, or suspension of a person, consider- ‘‘Debarment or suspension,’’ sets forth ation shall be given to designating one the consequences of a debarment or agency as the lead agency for making suspension. Those consequences would the decision. Agencies are encouraged obtain only with respect to partici- to establish methods and procedures pants and principals in the covered for coordinating their debarment or transactions and activities described in suspension actions. § 2542.30(a). Sections 2542.200 ‘‘Scope of debarment,’’ and 2542.280, ‘‘Scope of Subpart B—Effect of Action suspension,’’ govern the extent to which a specific participant or organi- § 2542.100 Debarment or suspension. zational elements of a participant (a) Primary covered transactions. Ex- would be automatically included with- cept to the extent prohibited by law, in a debarment or suspension action, persons who are debarred or suspended and the conditions under which affili- shall be excluded from primary covered ates or persons associated with a par- transactions as either participants or ticipant may also be brought within principals throughout the Executive the scope of the action. Branch of the Federal Government for (c) Relationship to Federal procurement the period of their debarment, suspen- activities. In accordance with E.O. 12689 sion, or the period they are proposed and section 2455 of Public Law 103–355, for debarment under 48 CFR part 9, any debarment, suspension, proposed subpart 9.4. Accordingly, no agency debarment or other governmentwide shall enter into primary covered trans- exclusion initiated under the Federal actions with such excluded persons Acquisition Regulation (FAR) on or during such period, except as permitted after August 25, 1995 shall be recog- pursuant to § 2542.130.
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(b) Lower tier covered transactions. Ex- § 2542.130 Exception provision. cept to the extent prohibited by law, The Corporation may grant an excep- persons who have been proposed for de- tion permitting a debarred, suspended, barment under 48 CFR part 9, subpart or voluntarily excluded person, or a 9.4, debarred or suspended shall be ex- person proposed for debarment under 48 cluded from participating as either CFR part 9, subpart 9.4, to participate participants or principals in all lower in a particular covered transaction tier covered transactions (see upon a written determination by the § 2542.30(a)(1)(ii)) for the period of their agency head or an authorized designee exclusion. stating the reason(s) for deviating from (c) Exceptions. Debarment or suspen- the Presidential policy established by sion does not affect a person’s eligi- Executive Order 12549 and § 2542.100. bility for— However, in accordance with the Presi- (1) Statutory entitlements or manda- dent’s stated intention in the Execu- tory awards (but not subtier awards tive Order, exceptions shall be granted thereunder which are not themselves only infrequently. Exceptions shall be mandatory), including deposited funds reported in accordance with insured by the Federal Government; § 2542.410(a). (2) Direct awards to foreign govern- ments or public international organiza- [60 FR 33041, 33063, June 26, 1995] tions, or transactions with foreign gov- § 2542.140 Continuation of covered ernments or foreign governmental en- transactions. tities, public international organiza- tions, foreign government owned (in (a) Notwithstanding the debarment, whole or in part) or controlled entities, suspension, proposed debarment under and entities consisting wholly or par- 48 CFR part 9, subpart 9.4, determina- tially of foreign governments or for- tion of ineligibility, or voluntary ex- eign governmental entities; clusion of any person by an agency, agencies and participants may con- (3) Benefits to an individual as a per- tinue covered transactions in existence sonal entitlement without regard to at the time the person was debarred, the individual’s present responsibility suspended, proposed for debarment (but benefits received in an individual’s under 48 CFR part 9, subpart 9.4, de- business capacity are not excepted); clared ineligible, or voluntarily ex- (4) Federal employment; cluded. A decision as to the type of ter- (5) Transactions pursuant to national mination action, if any, to be taken or agency-recognized emergencies or should be made only after thorough re- disasters; view to ensure the propriety of the pro- (6) Incidental benefits derived from posed action. ordinary governmental operations; and (b) Agencies and participants shall (7) Other transactions where the ap- not renew or extend covered trans- plication of these regulations would be actions (other than no-cost time exten- prohibited by law. sions) with any person who is debarred, [60 FR 33041, 33063, June 26, 1995] suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineli- § 2542.110 Ineligible persons. gible or voluntary excluded, except as Persons who are ineligible, as defined provided in § 2542.130. in § 2542.20, are excluded in accordance [60 FR 33041, 33063, June 26, 1995] with the applicable statutory, execu- tive order, or regulatory authority. § 2542.150 Failure to adhere to restric- tions. § 2542.120 Voluntary exclusion. (a) Except as permitted under Persons who accept voluntary exclu- § 2542.130 or § 2542.140, a participant sions under § 2542.270 are excluded in shall not knowingly do business under accordance with the terms of their set- a covered transaction with a person tlements. Corporation shall, and par- who is— ticipants may, contact the original ac- (1) Debarred or suspended; tion agency to ascertain the extent of (2) Proposed for debarment under 48 the exclusion. CFR part 9, subpart 9.4; or
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(3) Ineligible for or voluntarily ex- destruction of records, making false cluded from the covered transaction. statements, receiving stolen property, (b) Violation of the restriction under making false claims, or obstruction of paragraph (a) of this section may re- justice; or sult in disallowance of costs, annul- (4) Commission of any other offense ment or termination of award, issuance indicating a lack of business integrity of a stop work order, debarment or sus- or business honesty that seriously and pension, or other remedies as appro- directly affects the present responsi- priate. bility of a person. (c) A participant may rely upon the (b) Violation of the terms of a public certification of a prospective partici- agreement or transaction so serious as pant in a lower tier covered trans- to affect the integrity of an agency action that it and its principals are not program, such as: debarred, suspended, proposed for de- (1) A willful failure to perform in ac- barment under 48 CFR part 9, subpart cordance with the terms of one or more 9.4, ineligible, or voluntarily excluded public agreements or transactions; from the covered transaction (See Ap- (2) A history of failure to perform or pendix B of these regulations), unless it of unsatisfactory performance of one or knows that the certification is erro- more public agreements or trans- neous. An agency has the burden of actions; or proof that a participant did knowingly (3) A willful violation of a statutory do business with a person that filed an or regulatory provision or requirement erroneous certification. applicable to a public agreement or [60 FR 33041, 33063, June 26, 1995] transaction. (c) Any of the following causes: Subpart C—Debarment (1) A nonprocurement debarment by any Federal agency taken before Octo- § 2542.200 General. ber 1, 1988, the effective date of the The debarring official may debar a Governmentwide debarment and sus- person for any of the causes in pension (nonprocurement) regulations, § 2542.210, using procedures established or a procurement debarment by any in §§ 2542.220 through 2542.260. The exist- Federal agency taken pursuant to 48 ence of a cause for debarment, how- CFR part 9, subpart 9.4; ever, does not necessarily require that (2) Knowingly doing business with a the person be debarred; the seriousness debarred, suspended, ineligible, or vol- of the person’s acts or omissions and untarily excluded person, in connection any mitigating factors shall be consid- with a covered transaction, except as ered in making any debarment deci- permitted in § 2542.130 or § 2542.140; sion. (3) Failure to pay a single substantial debt, or a number of outstanding debts § 2542.210 Causes for debarment. (including disallowed costs and over- Debarment may be imposed in ac- payments, but not including sums owed cordance with the provisions of the Federal Government under the In- §§ 2542.200 through 2542.260 for: ternal Revenue Code) owed to any Fed- (a) Conviction of or civil judgment eral agency or instrumentality, pro- for: vided the debt is uncontested by the (1) Commission of fraud or a criminal debtor or, if contested, provided that offense in connection with obtaining, the debtor’s legal and administrative attempting to obtain, or performing a remedies have been exhausted; public or private agreement or trans- (4) Violation of a material provision action; of a voluntary exclusion agreement en- (2) Violation of Federal or State anti- tered into under § 2542.270 or of any set- trust statutes, including those pro- tlement of a debarment or suspension scribing price fixing between competi- action; or tors, allocation of customers between (5) Violation of any requirement of competitors, and bid rigging; subpart F of this part, relating to pro- (3) Commission of embezzlement, viding a drug-free workplace, as set theft, forgery, bribery, falsification or forth in § 2542.530 of this part.
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(d) Any other cause of so serious or an opportunity to appear with a rep- compelling a nature that it affects the resentative, submit documentary evi- present responsibility of a person. dence, present witnesses, and confront any witness the agency presents. § 2542.220 Procedures. (2) A transcribed record of any addi- The Corporation shall process debar- tional proceedings shall be made avail- ment actions as informally as prac- able at cost to the respondent, upon re- ticable, consistent with the principles quest, unless the respondent and the of fundamental fairness, using the pro- agency, by mutual agreement, waive cedures in §§ 2542.230 through 2542.260. the requirement for a transcript.
§ 2542.230 Investigation and referral. § 2542.260 Debarring official’s decision. Information concerning the existence (a) No additional proceedings necessary. of a cause for debarment from any In actions based upon a conviction or source shall be promptly reported, in- civil judgment, or in which there is no vestigated, and referred, when appro- genuine dispute over material facts, priate, to the debarring official for con- the debarring official shall make a de- sideration. After consideration, the de- cision on the basis of all the informa- barring official may issue a notice of tion in the administrative record, in- proposed debarment. cluding any submission made by the re- § 2542.240 Notice of proposed debar- spondent. The decision shall be made ment. within 45 days after receipt of any in- formation and argument submitted by A debarment proceeding shall be ini- the respondent, unless the debarring tiated by notice to the respondent ad- official extends this period for good vising: cause. (a) That debarment is being consid- ered; (b) Additional proceedings necessary. (b) Of the reasons for the proposed (1) In actions in which additional pro- debarment in terms sufficient to put ceedings are necessary to determine the respondent on notice of the con- disputed material facts, written find- duct or transaction(s) upon which it is ings of fact shall be prepared. The de- based; barring official shall base the decision (c) Of the cause(s) relied upon under on the facts as found, together with § 2452.210 for proposing debarment; any information and argument sub- (d) Of the provisions of §§ 2542.230 mitted by the respondent and any through 2542.260, and any other Cor- other information in the administra- poration procedures, if applicable, gov- tive record. erning debarment decision making; and (2) The debarring official may refer (e) Of the potential effect of a debar- disputed material facts to another offi- ment. cial for findings of fact. The debarring official may reject any such findings, § 2542.250 Opportunity to contest pro- in whole or in part, only after specifi- posed debarment. cally determining them to be arbitrary (a) Submission in opposition. Within 30 and capricious or clearly erroneous. days after receipt of the notice of pro- (3) The debarring official’s decision posed debarment, the respondent may shall be made after the conclusion of submit, in person, in writing, or the proceedings with respect to dis- through a representative, information puted facts. and argument in opposition to the pro- (c) (1) Standard of proof. In any debar- posed debarment. ment action, the cause for debarment (b) Additional proceedings as to dis- must be established by a preponderance puted material facts. (1) In actions not of the evidence. Where the proposed de- based upon a conviction or civil judg- barment is based upon a conviction or ment, if the debarring official finds civil judgment, the standard shall be that the respondent’s submission in op- deemed to have been met. position raises a genuine dispute over (2) Burden of proof. The burden of facts material to the proposed debar- proof is on the agency proposing debar- ment, respondent(s) shall be afforded ment.
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(d) Notice of debarring official’s deci- mines that an extension is necessary to sion. (1) If the debarring official decides protect the public interest. However, a to impose debarment, the respondent debarment may not be extended solely shall be given prompt notice: on the basis of the facts and cir- (i) Referring to the notice of proposed cumstances upon which the initial de- debarment; barment action was based. If debar- (ii) Specifying the reasons for debar- ment for an additional period is deter- ment; mined to be necessary, the procedures (iii) Stating the period of debarment, of §§ 2542.230 through 2542.260 shall be including effective dates; and followed to extend the debarment. (iv) Advising that the debarment is (c) The respondent may request the effective for covered transactions debarring official to reverse the debar- throughout the executive branch of the ment decision or to reduce the period Federal Government unless an agency or scope of debarment. Such a request head or an authorized designee makes shall be in writing and supported by the determination referred to in documentation. The debarring official § 2542.130. may grant such a request for reasons (2) If the debarring official decides including, but not limited to: not to impose debarment, the respond- (1) Newly discovered material evi- ent shall be given prompt notice of dence; that decision. A decision not to impose (2) Reversal of the conviction or civil debarment shall be without prejudice judgment upon which the debarment to a subsequent imposition of debar- was based; ment by any other agency. (3) Bona fide change in ownership or management; § 2542.270 Settlement and voluntary (4) Elimination of other causes for exclusion. which the debarment was imposed; or (a) When in the best interest of the (5) Other reasons the debarring offi- Government, the Corporation may, at cial deems appropriate. any time, settle a debarment or sus- pension action. § 2542.290 Scope of debarment. (b) If a participant and the agency (a) Scope in general. (1) Debarment of agree to a voluntary exclusion of the a person under this part constitutes de- participant, such voluntary exclusion barment of all its divisions and other shall be entered on the Nonprocure- organizational elements from all cov- ment List (see subpart E of this part). ered transactions, unless the debar- ment decision is limited by its terms to § 2542.280 Period of debarment. one or more specifically identified indi- (a) Debarment shall be for a period viduals, divisions or other organiza- commensurate with the seriousness of tional elements or to specific types of the cause(s). If a suspension precedes a transactions. debarment, the suspension period shall (2) The debarment action may in- be considered in determining the de- clude any affiliate of the participant barment period. that is specifically named and given (1) Debarment for causes other than notice of the proposed debarment and those related to a violation of the re- an opportunity to respond (see quirements of subpart F of this part §§ 2542.230 through 2542.260). generally should not exceed three (b) Imputing conduct. For purposes of years. Where circumstances warrant, a determining the scope of debarment, longer period of debarment may be im- conduct may be imputed as follows: posed. (1) Conduct imputed to participant. The (2) In the case of a debarment for a fraudulent, criminal or other seriously violation of the requirements of sub- improper conduct of any officer, direc- part F of this part (see § 2542.210(c)(5)), tor, shareholder, partner, employee, or the period of debarment shall not ex- other individual associated with a par- ceed five years. ticipant may be imputed to the partici- (b) The debarring official may extend pant when the conduct occurred in con- an existing debarment for an addi- nection with the individual’s perform- tional period, if that official deter- ance of duties for or on behalf of the
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participant, or with the participant’s § 2542.310 Causes for suspension. knowledge, approval, or acquiescence. (a) Suspension may be imposed in ac- The participant’s acceptance of the cordance with the provisions of benefits derived from the conduct shall §§ 2542.300 through 2542.350 upon ade- be evidence of such knowledge, ap- quate evidence: proval, or acquiescence. (2) Conduct imputed to individuals asso- (1) To suspect the commission of an ciated with participant. The fraudulent, offense listed in § 2542.300(a); or criminal, or other seriously improper (2) That a cause for debarment under conduct of a participant may be im- § 2542.300 may exist. puted to any officer, director, share- (b) Indictment shall constitute ade- holder, partner, employee, or other in- quate evidence for purposes of suspen- dividual associated with the partici- sion actions. pant who participated in, knew of, or § 2542.320 Procedures. had reason to know of the participant’s conduct. (a) Investigation and referral. Informa- (3) Conduct of one participant imputed tion concerning the existence of a to other participants in a joint venture. cause for suspension from any source The fraudulent, criminal, or other seri- shall be promptly reported, inves- ously improper conduct of one partici- tigated, and referred, when appro- pant in a joint venture, grant pursuant priate, to the suspending official for to a joint application, or similar ar- consideration. After consideration, the rangement may be imputed to other suspending official may issue a notice participants if the conduct occurred for of suspension. or on behalf of the joint venture, grant (b) Decisionmaking process. The Cor- pursuant to a joint application, or poration shall process suspension ac- similar arrangement or with the tions as informally as practicable, con- knowledge, approval, or acquiescence sistent with principles of fundamental of these participants. Acceptance of fairness, using the procedures in the benefits derived from the conduct §§ 2541.330 through 2542.350. shall be evidence of such knowledge, approval, or acquiescence. § 2542.330 Notice of suspension. When a respondent is suspended, no- Subpart D—Suspension tice shall immediately be given: (a) That suspension has been im- § 2542.300 General. posed; (a) The suspending official may sus- (b) That the suspension is based on pend a person for any of the causes in an indictment, conviction, or other § 2542.310 using procedures established adequate evidence that the respondent in §§ 2542.320 through 2542.350. has committed irregularities seriously (b) Suspension is a serious action to reflecting on the propriety of further be imposed only when: Federal Government dealings with the (1) There exists adequate evidence of respondent; one or more of the causes set out in (c) Describing any such irregularities § 2542.320; and in terms sufficient to put the respond- (2) Immediate action is necessary to ent on notice without disclosing the protect the public interest. Federal Government’s evidence; (c) In assessing the adequacy of the (d) Of the cause(s) relied upon under evidence, the agency should consider § 2542.310 for imposing suspension; how much information is available, (e) That the suspension is for a tem- how credible it is given the cir- porary period pending the completion cumstances, whether or not important of an investigation or ensuing legal, de- allegations are corroborated, and what barment, or Program Fraud Civil Rem- inferences can reasonably be drawn as edies Act proceedings; a result. This assessment should in- (f) Of the provisions of §§ 2542.330 clude an examination of basic docu- through 2542.350 and any other Corpora- ments such as grants, cooperative tion procedures, if applicable, gov- agreements, loan authorizations, and erning suspension decisionmaking; and contracts. (g) Of the effect of the suspension.
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§ 2542.340 Opportunity to contest sus- in the administrative record, including pension. any submission made by the respond- (a) Submission in opposition. Within 30 ent. The decision shall be made within days after receipt of the notice of sus- 45 days after receipt of any information pension, the respondent may submit, in and argument submitted by the re- person, in writing, or through a rep- spondent, unless the suspending official resentative, information and argument extends this period for good cause. in opposition to the suspension. (b) Additional proceedings necessary. (b) Additional proceedings as to dis- (1) In actions in which additional pro- puted material facts. (1) If the sus- ceedings are necessary to determine pending official finds that the respond- disputed material facts, written find- ent’s submission in opposition raises a ings of fact shall be prepared. The sus- genuine dispute over facts material to pending official shall base the decision the suspension, respondent(s) shall be on the facts as found, together with afforded an opportunity to appear with any information and argument sub- a representative, submit documentary mitted by the respondent and any evidence, present witnesses, and con- other information in the administra- front any witness the agency presents, tive record. unless: (2) The suspending official may refer (i) The action is based on an indict- matters involving disputed material ment, conviction or civil judgment; or facts to another official for findings of (ii) A determination is made, on the fact. The suspending official may re- basis of Department of Justice advice, ject any such findings, in whole or in that the substantial interests of the part, only after specifically deter- Federal Government in pending or con- mining them to be arbitrary or capri- templated legal proceedings based on cious or clearly erroneous. the same facts as the suspension would (c) Notice of suspending official’s deci- be prejudiced. sion. Prompt written notice of the sus- (2) A transcribed record of any addi- pending official’s decision shall be sent tional proceedings shall be prepared to the respondent. and made available at cost to the re- spondent, upon request, unless the re- § 2542.360 Period of suspension. spondent and the agency, by mutual (a) Suspension shall be for a tem- agreement, waive the requirement for a porary period pending the completion transcript. of an investigation or ensuing legal, de- barment, or Program Fraud Civil Rem- § 2542.350 Suspending official’s deci- edies Act proceedings, unless termi- sion. nated sooner by the suspending official The suspending official may modify or as provided in paragraph (b) of this or terminate the suspension (for exam- section. ple, see § 2542.280(c) for reasons for re- (b) If legal or administrative pro- ducing the period or scope of ceedings are not initiated within 12 debatement or may leave it in force. months after the date of the suspension However, a decision to modify or ter- notice, the suspension shall be termi- minate the suspension shall be without nated unless an Assistant Attorney prejudice to the subsequent imposition General or United States Attorney re- of suspension by any agency. The deci- quests its extension in writing, in sion shall be rendered in accordance which case it may be extended for an with the following provisions. additional six months. In no event may (a) No additional proceedings necessary. a suspension extend beyond 18 months, In actions: Based on an indictment, unless such proceedings have been ini- conviction, or civil judgment; in which tiated within that period. there is no genuine dispute over mate- (c) The suspending official shall no- rial facts; or in which additional pro- tify the Department of Justice of an ceedings to determine disputed mate- impending termination of a suspension, rial facts have been denied on the basis at least 30 days before the 12-month pe- of Department of Justice advice, the riod expires, to give that Department suspending official shall make a deci- an opportunity to request an exten- sion on the basis of all the information sion.
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§ 2542.370 Scope of suspension. (c) The agency shall direct inquiries concerning listed persons to the agency The scope of a suspension is the same that took the action. as the scope of a debarment (see (d) Agency officials shall check the § 2542.290) except that the procedures of Nonprocurement List before entering §§ 2542.320 through 2542.350 shall be used covered transactions to determine in imposing a suspension. whether a participant in a primary transaction is debarred, suspended, in- Subpart E—Responsibilities of GSA, eligible, or voluntarily excluded. Agency and Participants (e) Agency officials shall check the Nonprocurement List before approving § 2542.400 GSA responsibilities. principals or lower tier participants (a) In accordance with the OMB where agency approval of the principal guidelines, GSA shall compile, main- or lower tier participant is required tain, and distribute a list of all persons under the terms of the transaction, to who have been debarred, suspended, or determine whether such principals or voluntarily excluded by agencies under participants are debarred, suspended, Executive Order 12549 and this part, ineligible, or voluntarily excluded. and those who have been determined to be ineligible. § 2542.420 Participants’ responsibil- ities. (b) At a minimum, this list shall in- dicate: (a) Certification by participants in pri- (1) The names and addresses of all mary covered transactions. Each partici- debarred, suspended, ineligible, and pant shall submit the certification in voluntarily excluded persons, in alpha- Appendix A of this part for it and its betical order, with cross-references principals at the time the participant when more than one name is involved submits its proposal in connection with in a single action; a primary covered transaction, except that States need only complete such (2) The type of action; certification as to their principals. (3) The cause for the action; Participants may decide the method (4) The scope of the action; and frequency by which they determine (5) Any termination date for each the eligibility of their principals. In listing; and addition, each participant may, but is (6) The agency and name and tele- not required to, check the Nonprocure- phone number of the agency point of ment List for its principals. Adverse contact for the action. information on the certification will not necessarily result in denial of par- § 2542.410 Corporation responsibil- ticipation. However, the certification, ities. and any additional information per- (a) The agency shall provide GSA taining to the certification submitted with current information concerning by the participant, shall be considered debarments, suspension, determina- in the administration of covered trans- tions of ineligibility, and voluntary ex- actions. clusions it has taken. Until February (b) Certification by participants in 18, 1989, the agency shall also provide lower tier covered transactions. (1) Each GSA and OMB with information con- participant shall require participants cerning all transactions in which the in lower tier covered transactions to Corporation has granted exceptions include the certification in Appendix B under § 2542.130 permitting participa- of this part for it and its principals in tion by debarred, suspended, or volun- any proposal submitted in connection tarily excluded persons. with such lower tier covered trans- (b) Unless an alternative schedule is actions. agreed to by GSA, the agency shall ad- (2) A participant may rely upon the vise GSA of the information set forth certification of a prospective partici- in § 2542.400(b) and of the exceptions pant in a lower tier covered trans- granted under § 2542.130 within five action that it and its principals are not working days after taking such ac- debarred, suspended, ineligible, or vol- tions. untarily excluded from the covered
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transaction by any Federal agency, un- (2) Conviction. The term conviction less it knows that the certification is means a finding of guilt (including a erroneous. Participants may decide the plea of nolo contendere) or imposition method and frequency by which they of sentence, or both, by any judicial determine the eligibility of their prin- body charged with the responsibility to cipals. In addition, a participant may, determine violations of the Federal or but is not required to, check the Non- State criminal drug statutes; procurement List for its principals and (3) Criminal drug statute. The term for participants. criminal drug statute means a Federal or (c) Changed circumstances regarding non-Federal criminal statute involving certification. A participant shall provide the manufacture, distribution, dis- immediate written notice to Corpora- pensing, use, or possession of any con- tion if at any time the participant trolled substance; learns that its certification was erro- (4) Drug-free workplace. The term neous when submitted or has become drug-free workplace means a site for the erroneous by reason of changed cir- performance of work done in connec- cumstances. Participants in lower tier tion with a specific grant at which em- covered transactions shall provide the ployees of the grantee are prohibited same updated notice to the participant from engaging in the unlawful manu- to which it submitted its proposals. facture, distribution, dispensing, pos- session, or use of a controlled sub- Subpart F—Drug-Free Workplace stance; Requirements (Grants) (5) Employee. (i) The term employee means the employee of a grantee di- § 2542.500 Purpose. rectly engaged in the performance of work under the grant, including: (a) The purpose of this subpart is to (A) All direct charge employees; carry out the Drug-Free Workplace Act (B) All indirect charge employees, of 1988 (41 U.S.C. 701 et seq.) by requir- unless their impact or involvement is ing that— insignificant to the performance of the (1) A grantee, other than an indi- grant; and vidual, shall certify to the agency that (C) Temporary personnel and consult- it will provide a drug-free workplace; ants who are directly engaged in the (2) A grantee who is an individual performance of work under the grant shall certify to the agency that, as a and who are on the grantee’s payroll. condition of the grant, he or she will (ii) This definition does not include not engage in the unlawful manufac- workers not on the payroll of the ture, distribution, dispensing, posses- grantee (e.g., volunteers, even if used sion or use of a controlled substance in to meet a matching requirement; con- conducting any activity with the sultants or independent contractors grant. not on the payroll; or employees of (b) Requirements implementing the subrecipients or subcontractors in cov- Drug-Free Workplace Act of 1988 for ered workplaces); contractors with the agency are found (6) Federal agency (or agency). The at 48 CFR part 9, subpart 9.4, part 23, term federal agency (or agency) means subpart 23.5, and part 52, subpart 52.2. any United States executive depart- ment, military department, govern- § 2542.510 Definitions. ment corporation, government con- (a) Except as amended in this sec- trolled corporation, any other estab- tion, the definitions of § 2542.20 apply to lishment in the executive branch (in- this subpart. cluding the Executive Office of the (b) For purposes of this subpart— President), or any independent regu- (1) Controlled substance. The term con- latory agency; trolled substance means a controlled (7) Grant. The term grant means an substance in schedules I through V of award of financial assistance, including the Controlled Substances Act (21 a cooperative agreement, in the form U.S.C. 812), and as further defined by of money, or property in lieu of money, regulation at 21 CFR 1308.11 through by a Federal agency directly to a 1308.15; grantee. The term grant includes block
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grant and entitlement grant programs, drug-free workplace requirements con- whether or not exempted from cov- cerning grants. erage under the grants management government-wide common rule on uni- § 2542.530 Grounds for suspension of form administrative requirements for payments, suspension or termi- grants and cooperative agreements. nation of grants, or suspension or debarment. The term does not include technical as- sistance that provides services instead A grantee shall be deemed in viola- of money, or other assistance in the tion of the requirements of this sub- form of loans, loan guarantees, interest part if the agency head or his or her of- subsidies, insurance, or direct appro- ficial designee determines, in writing, priations; or any veterans’ benefits to that— individuals, i.e., any benefit to vet- (a) The grantee has made a false cer- erans, their families, or survivors by tification under § 2542.560; virtue of the service of a veteran in the (b) With respect to a grantee other Armed Forces of the United States; than an individual— (8) Grantee. The term grantee means a (1) The grantee has violated the cer- person who applies for or receives a tification by failing to carry out the grant directly from a Federal agency requirements of paragraphs (A) (a)–(g) and/or (B) of the certification (Alter- (except another Federal agency); nate I in Appendix C of this part); or (9) Individual. The term individual (2) Such a number of employees of means a natural person; the grantee have been convicted of vio- (10) State. The term State means any lations of criminal drug statutes for of the States of the United States, the violations occurring in the workplace District of Columbia, the Common- as to indicate that the grantee has wealth of Puerto Rico, any territory or failed to make a good faith effort to possession of the United States, or any provide a drug-free workplace; or agency of a State, exclusive of institu- (c) With respect to a grantee who is tions of higher education, hospitals, an individual— and units of local government. A State (1) The grantee has violated the cer- instrumentality will be considered part tification by failing to carry out its re- of the State government if it has a quirements (Alternate II of Appendix C written determination from a State of this part); or government that such State considers (2) The grantee is convicted of a the instrumentality to be an agency of criminal drug offense resulting from a the State government. violation occurring during the conduct of any grant activity. § 2542.520 Coverage. (a) This subpart applies to any grant- § 2542.540 Effect of violation. ee of the agency. (a) In the event of a violation of this (b) This subpart applies to any grant, subpart as provided in § 2542.520, and in except where application of this sub- accordance with applicable law, the part would be inconsistent with the grantee shall be subject to one or more international obligations of the United of the following actions: States or the laws or regulations of a (1) Suspension of payments under the foreign government. A determination grant; of such inconsistency may be made (2) Suspension or termination of the only by the agency head or his/her des- grant; and ignee. (3) Suspension or debarment of the (c) The provisions of subparts A, B, C, grantee under the provisions of this D and E of this part apply to matters part. covered by this subpart, except where (b) Upon issuance of any final deci- specifically modified by this subpart. sion under this part requiring debar- In the event of any conflict between ment of a grantee, the debarred grant- provisions of this subpart and other ee shall be ineligible for award of any provisions of this part, the provisions grant from any Federal agency for a of this subpart are deemed to control period specified in the decision, not to with respect to the implementation of exceed five years (see § 2542.280(a)(2)).
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§ 2542.550 Exception provision. ize these agencies to submit their own The agency head may waive with re- certifications to Federal agencies. The spect to a particular grant, in writing, statewide certification shall name any a suspension of payments under a State agencies so excluded. grant, suspension or termination of a (2) A State agency to which the grant, or suspension or debarment of a statewide certification does not apply, grantee if the agency head determines or a State agency in a State that does that such a waiver would be in the pub- not have a statewide certification, may lic interest. This exception authority elect to make one certification in each cannot be delegated to any other offi- Federal fiscal year. State agencies that cial. previously submitted a State agency certification are not required to make § 2542.560 Certification requirements a certification for Fiscal Year 1990 and procedures. until June 30, 1990. The State agency (a) (1) As a prior condition of being shall retain the original of this State awarded a grant, each grantee shall agency-wide certification in its central make the appropriate certification to office and, prior to grant award, shall the Federal agency providing the ensure that a copy is submitted indi- grant, as provided in Appendix C of this vidually with respect to each grant, part. unless the Federal agency designates a (2) Grantees are not required to make central location for submission. a certification in order to continue re- (3) When the work of a grant is done ceiving funds under a grant awarded by more than one State agency, the before March 18, 1989, or under a no- certification of the State agency di- cost time extension of such a grant. rectly receiving the grant shall be However, the grantee shall make a one- deemed to certify compliance for all time drug-free workplace certification workplaces, including those located in for a non-automatic continuation of other State agencies. such a grant made on or after March (e) (1) For a grant of less than 30 days 18, 1989. performance duration, grantees shall (b) Except as provided in this section, have this policy statement and pro- all grantees shall make the required gram in place as soon as possible, but certification for each grant. For man- in any case by a date prior to the date datory formula grants and entitle- on which performance is expected to be ments that have no application proc- completed. ess, grantees shall submit a one-time (2) For a grant of 30 days or more per- certification in order to continue re- formance duration, grantees shall have ceiving awards. this policy statement and program in (c) A grantee that is a State may place within 30 days after award. elect to make one certification in each (3) Where extraordinary cir- Federal fiscal year. States that pre- cumstances warrant for a specific viously submitted an annual certifi- grant, the grant officer may determine cation are not required to make a cer- a different date on which the policy tification for Fiscal Year 1990 until statement and program shall be in June 30, 1990. Except as provided in place. paragraph (d) of this section, this cer- tification shall cover all grants to all § 2542.570 Reporting of and employee State agencies from any Federal agen- sanctions for convictions of crimi- cy. The State shall retain the original nal drug offenses. of this statewide certification in its (a) When a grantee other than an in- Governor’s office and, prior to grant dividual is notified that an employee award, shall ensure that a copy is sub- has been convicted for a violation of a mitted individually with respect to criminal drug statute occurring in the each grant, unless the Federal agency workplace, it shall take the following has designated a central location for actions: submission. (1) Within 10 calendar days of receiv- (d) (1) The Governor of a State may ing notice of the conviction, the grant- exclude certain State agencies from ee shall provide written notice, includ- the statewide certification and author- ing the convicted employee’s position
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title, to every grant officer, or other shall disqualify such person from participa- designee on whose grant activity the tion in this transaction. convicted employee was working, un- 3. The certification in this clause is a ma- less a Federal agency has designated a terial representation of fact upon which reli- ance was placed when the department or central point for the receipt of such no- agency determined to enter into this trans- tifications. Notification shall include action. If it is later determined that the pro- the identification number(s) for each of spective primary participant knowingly ren- the Federal agency’s affected grants. dered an erroneous certification, in addition (2) Within 30 calendar days of receiv- to other remedies available to the Federal ing notice of the conviction, the grant- Government, the department or agency may ee shall do the following with respect terminate this transaction for cause or de- to the employee who was convicted: fault. 4. The prospective primary participant (i) Take appropriate personnel action shall provide immediate written notice to against the employee, up to and includ- the department or agency to which this pro- ing termination, consistent with re- posal is submitted if at any time the pro- quirements of the Rehabilitation Act spective primary participant learns that its of 1973, as amended; or certification was erroneous when submitted (ii) Require the employee to partici- or has become erroneous by reason of pate satisfactorily in a drug abuse as- changed circumstances. sistance or rehabilitation program ap- 5. The terms covered transaction, debarred, suspended, ineligible, lower tier covered trans- proved for such purposes by a Federal, action, participant, person, primary covered State, or local health law enforcement, transaction, principal, proposal, and volun- or other appropriate agency. tarily excluded, as used in this clause, have (b) A grantee who is an individual the meanings set out in the Definitions and who is convicted for a violation of a Coverage sections of the rules implementing criminal drug statute occurring during Executive Order 12549. You may contact the the conduct of any grant activity shall department or agency to which this proposal is being submitted for assistance in obtain- report the conviction, in writing, with- ing a copy of those regulations. in 10 calendar days, to his or her Fed- 6. The prospective primary participant eral agency grant officer, or other des- agrees by submitting this proposal that, ignee, unless the Federal agency has should the proposed covered transaction be designated a central point for the re- entered into, it shall not knowingly enter ceipt of such notices. Notification shall into any lower tier covered transaction with include the identification number(s) a person who is proposed for debarment for each of the Federal agency’s af- under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily fected grants. excluded from participation in this covered (Approved by the Office of Management and transaction, unless authorized by the depart- Budget under control number 0991–0002) ment or agency entering into this trans- action. APPENDIX A TO PART 2542—CERTIFI- 7. The prospective primary participant fur- ther agrees by submitting this proposal that CATION REGARDING DEBARMENT, it will include the clause titled ‘‘Certifi- SUSPENSION, AND OTHER RESPONSI- cation Regarding Debarment, Suspension, BILITY MATTERS—PRIMARY COVERED Ineligibility and Voluntary Exclusion-Lower TRANSACTIONS Tier Covered Transaction,’’ provided by the department or agency entering into this cov- Instructions for Certification ered transaction, without modification, in 1. By signing and submitting this proposal, all lower tier covered transactions and in all the prospective primary participant is pro- solicitations for lower tier covered trans- viding the certification set out below. actions. 2. The inability of a person to provide the 8. A participant in a covered transaction certification required below will not nec- may rely upon a certification of a prospec- essarily result in denial of participation in tive participant in a lower tier covered this covered transaction. The prospective transaction that it is not proposed for debar- participant shall submit an explanation of ment under 48 CFR part 9, subpart 9.4, why it cannot provide the certification set debarred, suspended, ineligible, or volun- out below. The certification or explanation tarily excluded from the covered trans- will be considered in connection with the de- action, unless it knows that the certification partment or agency’s determination whether is erroneous. A participant may decide the to enter into this transaction. However, fail- method and frequency by which it deter- ure of the prospective primary participant to mines the eligibility of its principals. Each furnish a certification or an explanation participant may, but is not required to,
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check the List of Parties Excluded from Fed- APPENDIX B TO PART 2542—CERTIFI- eral Procurement and Nonprocurement Pro- CATION REGARDING DEBARMENT, grams. SUSPENSION, INELIGIBILITY AND VOL- 9. Nothing contained in the foregoing shall UNTARY EXCLUSION—LOWER TIER be construed to require establishment of a COVERED TRANSACTIONS system of records in order to render in good faith the certification required by this Instructions for Certification clause. The knowledge and information of a participant is not required to exceed that 1. By signing and submitting this proposal, which is normally possessed by a prudent the prospective lower tier participant is pro- viding the certification set out below. person in the ordinary course of business 2. The certification in this clause is a ma- dealings. terial representation of fact upon which reli- 10. Except for transactions authorized ance was placed when this transaction was under paragraph 6 of these instructions, if a entered into. If it is later determined that participant in a covered transaction know- the prospective lower tier participant know- ingly enters into a lower tier covered trans- ingly rendered an erroneous certification, in action with a person who is proposed for de- addition to other remedies available to the barment under 48 CFR part 9, subpart 9.4, Federal Government the department or suspended, debarred, ineligible, or volun- agency with which this transaction origi- tarily excluded from participation in this nated may pursue available remedies, includ- transaction, in addition to other remedies ing suspension and/or debarment. available to the Federal Government, the de- 3. The prospective lower tier participant partment or agency may terminate this shall provide immediate written notice to transaction for cause or default. the person to which this proposal is sub- mitted if at any time the prospective lower Certification Regarding Debarment, Suspension, tier participant learns that its certification and Other Responsibility Matters—Primary was erroneous when submitted or had be- Covered Transactions come erroneous by reason of changed cir- cumstances. (1) The prospective primary participant 4. The terms covered transaction, debarred, certifies to the best of its knowledge and be- suspended, ineligible, lower tier covered trans- lief, that it and its principals: action, participant, person, primary covered (a) Are not presently debarred, suspended, transaction, principal, proposal, and volun- proposed for debarment, declared ineligible, tarily excluded, as used in this clause, have or voluntarily excluded by any Federal de- the meaning set out in the Definitions and partment or agency; Coverage sections of rules implementing Ex- (b) Have not within a three-year period ecutive Order 12549. You may contact the preceding this proposal been convicted of or person to which this proposal is submitted had a civil judgment rendered against them for assistance in obtaining a copy of those for commission of fraud or a criminal offense regulations. in connection with obtaining, attempting to 5. The prospective lower tier participant obtain, or performing a public (Federal, agrees by submitting this proposal that, State or local) transaction or contract under should the proposed covered transaction be a public transaction; violation of Federal or entered into, it shall not knowingly enter State antitrust statutes or commission of into any lower tier covered transaction with embezzlement, theft, forgery, bribery, fal- a person who is proposed for debarment sification or destruction of records, making under 48 CFR part 9, subpart 9.4, debarred, false statements, or receiving stolen prop- suspended, declared ineligible, or voluntarily erty; excluded from participation in this covered (c) Are not presently indicted for or other- transaction, unless authorized by the depart- wise criminally or civilly charged by a gov- ment or agency with which this transaction ernmental entity (Federal, State or local) originated. with commission of any of the offenses enu- 6. The prospective lower tier participant merated in paragraph (1)(b) of this certifi- further agrees by submitting this proposal cation; and that it will include this clause titled ‘‘Cer- (d) Have not within a three-year period tification Regarding Debarment, Suspension, preceding this application/proposal had one Ineligibility and Voluntary Exclusion-Lower or more public transactions (Federal, State Tier Covered Transaction,’’ without modi- or local) terminated for cause or default. fication, in all lower tier covered trans- (2) Where the prospective primary partici- actions and in all solicitations for lower tier pant is unable to certify to any of the state- covered transactions. ments in this certification, such prospective 7. A participant in a covered transaction participant shall attach an explanation to may rely upon a certification of a prospec- this proposal. tive participant in a lower tier covered transaction that it is not proposed for debar- [60 FR 33042, 33063, June 26, 1995] ment under 48 CFR part 9, subpart 9.4,
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debarred, suspended, ineligible, or volun- take action authorized under the Drug-Free tarily excluded from covered transactions, Workplace Act. unless it knows that the certification is erro- 3. For grantees other than individuals, Al- neous. A participant may decide the method ternate I applies. and frequency by which it determines the 4. For grantees who are individuals, Alter- eligibility of its principals. Each participant nate II applies. may, but is not required to, check the List of 5. Workplaces under grants, for grantees Parties Excluded from Federal Procurement other than individuals, need not be identified and Nonprocurement Programs. on the certification. If known, they may be 8. Nothing contained in the foregoing shall identified in the grant application. If the be construed to require establishment of a grantee does not identify the workplaces at system of records in order to render in good the time of application, or upon award, if faith the certification required by this there is no application, the grantee must clause. The knowledge and information of a keep the identity of the workplace(s) on file participant is not required to exceed that in its office and make the information avail- which is normally possessed by a prudent able for Federal inspection. Failure to iden- person in the ordinary course of business tify all known workplaces constitutes a vio- dealings. lation of the grantee’s drug-free workplace 9. Except for transactions authorized under requirements. paragraph 5 of these instructions, if a partic- 6. Workplace identifications must include ipant in a covered transaction knowingly en- the actual address of buildings (or parts of ters into a lower tier covered transaction buildings) or other sites where work under with a person who is proposed for debarment the grant takes place. Categorical descrip- under 48 CFR part 9, subpart 9.4, suspended, tions may be used (e.g., all vehicles of a mass debarred, ineligible, or voluntarily excluded transit authority or State highway depart- from participation in this transaction, in ad- ment while in operation, State employees in dition to other remedies available to the each local unemployment office, performers Federal Government, the department or in concert halls or radio studios). agency with which this transaction origi- nated may pursue available remedies, includ- 7. If the workplace identified to the agency ing suspension and/or debarment. changes during the performance of the grant, the grantee shall inform the agency of the Certification Regarding Debarment, Suspension, change(s), if it previously identified the Ineligibility an Voluntary Exclusion—Lower workplaces in question (see paragraph five). Tier Covered Transactions 8. Definitions of terms in the Nonprocure- ment Suspension and Debarment common (1) The prospective lower tier participant rule and Drug-Free Workplace common rule certifies, by submission of this proposal, that apply to this certification. Grantees’ atten- neither it nor its principals is presently tion is called, in particular, to the following debarred, suspended, proposed for debarment, definitions from these rules: declared ineligible, or voluntarily excluded Controlled substance means a controlled from participation in this transaction by any Federal department or agency. substance in Schedules I through V of the (2) Where the prospective lower tier partic- Controlled Substances Act (21 U.S.C. § 812) ipant is unable to certify to any of the state- and as further defined by regulation (21 CFR ments in this certification, such prospective 1308.11 through 1308.15); participant shall attach an explanation to Conviction means a finding of guilt (in- this proposal. cluding a plea of nolo contendere) or imposi- tion of sentence, or both, by any judicial [60 FR 33042, 33063, June 26, 1995] body charged with the responsibility to de- termine violations of the Federal or State APPENDIX C TO PART 2542—CERTIFI- criminal drug statutes; CATION REGARDING DRUG-FREE Criminal drug statute means a Federal or WORKPLACE REQUIREMENTS non-Federal criminal statute involving the manufacture, distribution, dispensing, use, Instructions for Certification or possession of any controlled substance; 1. By signing and/or submitting this appli- Employee means the employee of a grantee cation or grant agreement, the grantee is directly engaged in the performance of work providing the certification set out below. under a grant, including: (i) All direct charge 2. The certification set out below is a ma- employees; (ii) All indirect charge employees terial representation of fact upon which reli- unless their impact or involvement is insig- ance is placed when the agency awards the nificant to the performance of the grant; grant. If it is later determined that the and, (iii) Temporary personnel and consult- grantee knowingly rendered a false certifi- ants who are directly engaged in the per- cation, or otherwise violates the require- formance of work under the grant and who ments of the Drug-Free Workplace Act, the are on the grantee’s payroll. This definition agency, in addition to any other remedies does not include workers not on the payroll available to the Federal Government, may of the grantee (e.g., volunteers, even if used
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to meet a matching requirement; consult- ing termination, consistent with the require- ants or independent contractors not on the ments of the Rehabilitation Act of 1973, as grantee’s payroll; or employees of sub recipi- amended; or ents or subcontractors in covered work- (2) Requiring such employee to participate places). satisfactorily in a drug abuse assistance or rehabilitation program approved for such Certification Regarding Drug-Free Workplace purposes by a Federal, State, or local health, Requirements law enforcement, or other appropriate agen- Alternate I. (Grantees Other Than Individ- cy; uals) (g) Making a good faith effort to continue A. The grantee certifies that it will or will to maintain a drug-free workplace through continue to provide a drug-free workplace implementation of paragraphs (a), (b), (c), by: (d), (e) and (f). (a) Publishing a statement notifying em- B. The grantee may insert in the space pro- ployees that the unlawful manufacture, dis- vided below the site(s) for the performance of tribution, dispensing, possession, or use of a work done in connection with the specific controlled substance is prohibited in the grant: Place of Performance (Street address, grantee’s workplace and specifying the ac- city, county, state, zip code) tions that will be taken against employees llllllllllllllllllllllll for violation of such prohibition; llllllllllllllllllllllll (b) Establishing an ongoing drug-free llllllllllllllllllllllll awareness program to inform employees Check [ ] if there are workplaces on file about— that are not identified here. (1) The dangers of drug abuse in the work- place; Alternate II. (Grantees Who Are Individuals) (2) The grantee’s policy of maintaining a drug-free workplace; (a) The grantee certifies that, as a condi- (3) Any available drug counseling, rehabili- tion of the grant, he or she will not engage tation, and employee assistance programs; in the unlawful manufacture, distribution, and dispensing, possession, or use of a controlled (4) The penalties that may be imposed substance in conducting any activity with upon employees for drug abuse violations oc- the grant; curring in the workplace; (b) If convicted of a criminal drug offense (c) Making it a requirement that each em- resulting from a violation occurring during ployee to be engaged in the performance of the conduct of any grant activity, he or she the grant be given a copy of the statement will report the conviction, in writing, within required by paragraph (a); 10 calendar days of the conviction, to every (d) Notifying the employee in the state- grant officer or other designee, unless the ment required by paragraph (a) that, as a Federal agency designates a central point for condition of employment under the grant, the receipt of such notices. When notice is the employee will— made to such a central point, it shall include (1) Abide by the terms of the statement; the identification number(s) of each affected and grant. (2) Notify the employer in writing of his or her conviction for a violation of a criminal PART 2543—GRANTS AND AGREE- drug statute occurring in the workplace no later than five calendar days after such con- MENTS WITH INSTITUTIONS OF viction; HIGHER EDUCATION, HOSPITALS, (e) Notifying the agency in writing, within AND OTHER NON-PROFIT ORGA- ten calendar days after receiving notice NIZATIONS under paragraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employ- Subpart A—General ees must provide notice, including position Sec. title, to every grant officer or other designee 2543.1 Purpose. on whose grant activity the convicted em- 2543.2 Definitions. ployee was working, unless the Federal agen- 2543.3 Effect on other issuances. cy has designated a central point for the re- 2543.4 Deviations. ceipt of such notices. Notice shall include 2543.5 Subawards. the identification number(s) of each affected grant; Subpart B—Pre-Award Requirements (f) Taking one of the following actions, within 30 calendar days of receiving notice 2543.10 Purpose. under paragraph (d)(2), with respect to any 2543.11 Pre-award policies. employee who is so convicted— 2543.12 Forms for applying for Federal as- (1) Taking appropriate personnel action sistance. against such an employee, up to and includ- 2543.13 Debarment and suspension.
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2543.14 Special award conditions. Subpart E—Statutory Compliance 2543.15 Metric system of measurement. 2543.16 Resource Conservation and Recovery 2543.80 Contract provisions. Act. 2543.81 Equal employment opportunity. 2543.17 Certifications and representations. 2543.82 Copeland ‘‘Anti-Kickback’’ Act. 2543.83 Davis-Bacon Act. Subpart C—Post-Award Requirements 2543.84 Contract Work Hours and Safety Standards Act. FINANCIAL AND PROGRAM MANAGEMENT 2543.85 Rights to inventions made under 2543.20 Purpose of financial and program contract or agreement. management. 2543.86 Clean Air Act and the Federal Water 2543.21 Standards for financial management Pollution Control Act. systems. 2543.87 Byrd anti-lobbying amendment. 2543.22 Payment. 2543.88 Debarment and suspension. 2543.23 Cost sharing or matching. AUTHORITY: 42 U.S.C. 12501 et seq. 2543.24 Program income. 2543.25 Revision of budget and program SOURCE: 60 FR 13055, Mar. 10, 1995, unless plans. otherwise noted. 2543.26 Non-Federal audits. 2543.27 Allowable costs. Subpart A—General 2543.28 Period of availability of funds. § 2543.1 Purpose. PROPERTY STANDARDS This Circular establishes uniform ad- 2543.30 Purpose of property standards. ministrative requirements for Federal 2543.31 Insurance coverage. 2543.32 Real property. grants and agreements awarded to in- 2543.33 Federally-owned and exempt prop- stitutions of higher education, hos- erty. pitals, and other non-profit organiza- 2543.34 Equipment. tions. Federal awarding agencies shall 2543.35 Supplies and other expendable prop- not impose additional or inconsistent erty. requirements, except as provided in 2543.36 Intangible property. Sections 2543.4, and 2543.14 or unless 2543.37 Property trust relationship. specifically required by Federal statute PROCUREMENT STANDARDS or executive order. Non-profit organi- 2543.40 Purpose of procurement standards. zations that implement Federal pro- 2543.41 Recipient responsibilities. grams for the States are also subject to 2543.42 Codes of conduct. State requirements. 2543.43 Competition. 2543.44 Procurement procedures. § 2543.2 Definitions. 2543.45 Cost and price analysis. (a) Accrued expenditures means the 2543.46 Procurement records. charges incurred by the recipient dur- 2543.47 Contract administration. 2543.48 Contract provisions. ing a given period requiring the provi- sion of funds for: REPORTS AND RECORDS (1) Goods and other tangible property 2543.50 Purpose of reports and records. received; 2543.51 Monitoring and reporting program (2) Services performed by employees, performance. contractors, subrecipients, and other 2543.52 Financial reporting. payees; and, 2543.53 Retention and access requirements (3) Other amounts becoming owed for records. under programs for which no current TERMINATION AND ENFORCEMENT services or performance is required. (b) Accrued income means the sum of: 2543.60 Purpose of termination and enforce- ment. (1) Earnings during a given period 2543.61 Termination. from 2543.62 Enforcement. (i) Services performed by the recipi- ent, and Subpart D—After-the-Award Requirements (ii) Goods and other tangible prop- erty delivered to purchasers, and 2543.70 Purpose. 2543.71 Closeout procedures. (2) Amounts becoming owed to the 2543.72 Subsequent adjustments and con- recipient for which no current services tinuing responsibilities. or performance is required by the re- 2543.73 Collection of amounts due. cipient.
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(c) Acquisition cost of equipment means amendment thereto, on which Federal the net invoice price of the equipment, sponsorship ends. including the cost of modifications, at- (k) Disallowed costs means those tachments, accessories, or auxiliary charges to an award that the Federal apparatus necessary to make the prop- awarding agency determines to be un- erty usable for the purpose for which it allowable, in accordance with the ap- was acquired. Other charges, such as plicable Federal cost principles or the cost of installation, transportation, other terms and conditions contained taxes, duty or protective in-transit in- in the award. surance, shall be included or excluded (l) Equipment means tangible non- from the unit acquisition cost in ac- expendable personal property including cordance with the recipient’s regular exempt property charged directly to accounting practices. the award having a useful life of more (d) Advance means a payment made than one year and an acquisition cost by Treasury check or other appropriate of $5,000 or more per unit. However, payment mechanism to a recipient consistent with recipient policy, lower upon its request either before outlays limits may be established. are made by the recipient or through (m) Excess property means property the use of predetermined payment under the control of any Federal schedules. awarding agency that, as determined (e) Award means financial assistance by the head thereof, is no longer re- that provides support or stimulation to quired for its needs or the discharge of accomplish a public purpose. Awards its responsibilities. include grants and other agreements in (n) Exempt property means tangible the form of money or property in lieu personal property acquired in whole or of money, by the Federal Government in part with Federal funds, where the to an eligible recipient. The term does Federal awarding agency has statutory authority to vest title in the recipient not include: technical assistance, without further obligation to the Fed- which provides services instead of eral Government. An example of ex- money; other assistance in the form of empt property authority is contained loans, loan guarantees, interest sub- in the Federal Grant and Cooperative sidies, or insurance; direct payments of Agreement Act (31 U.S.C. 6306), for any kind to individuals; and, contracts property acquired under an award to which are required to be entered into conduct basic or applied research by a and administered under procurement non-profit institution of higher edu- laws and regulations. cation or non-profit organization (f) Cash contributions means the re- whose principal purpose is conducting cipient’s cash outlay, including the scientific research. outlay of money contributed to the re- (o) Federal awarding agency means cipient by third parties. the Federal agency that provides an (g) Closeout means the process by award to the recipient. which a Federal awarding agency de- (p) Federal funds authorized means the termines that all applicable adminis- total amount of Federal funds obli- trative actions and all required work of gated by the Federal Government for the award have been completed by the use by the recipient. This amount may recipient and Federal awarding agency. include any authorized carryover of un- (h) Contract means a procurement obligated funds from prior funding pe- contract under an award or subaward, riods when permitted by agency regula- and a procurement subcontract under a tions or agency implementing instruc- recipient’s or subrecipient’s contract. tions. (i) Cost sharing or matching means (q) Federal share of real property, that portion of project or program equipment, or supplies means that per- costs not borne by the Federal Govern- centage of the property’s acquisition ment. costs and any improvement expendi- (j) Date of completion means the date tures paid with Federal funds. on which all work under an award is (r) Funding period means the period of completed or the date on the award time when Federal funding is available document, or any supplement or for obligation by the recipient.
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(s) Intangible property and debt instru- sale of commodities or items fabricated ments means, but is not limited to, under an award, license fees and royal- trademarks, copyrights, patents and ties on patents and copyrights, and in- patent applications and such property terest on loans made with award funds. as loans, notes and other debt instru- Interest earned on advances of Federal ments, lease agreements, stock and funds is not program income. Except as other instruments of property owner- otherwise provided in Federal awarding ship, whether considered tangible or in- agency regulations or the terms and tangible. conditions of the award, program in- (t) Obligations means the amounts of come does not include the receipt of orders placed, contracts and grants principal on loans, rebates, credits, dis- awarded, services received and similar counts, etc., or interest earned on any transactions during a given period that of them. require payment by the recipient dur- (y) Project costs means all allowable ing the same or a future period. costs, as set forth in the applicable (u) Outlays or expenditures means Federal cost principles, incurred by a charges made to the project or pro- recipient and the value of the contribu- gram. They may be reported on a cash tions made by third parties in accom- or accrual basis. For reports prepared plishing the objectives of the award on a cash basis, outlays are the sum of during the project period. cash disbursements for direct charges (z) Project period means the period es- for goods and services, the amount of tablished in the award document dur- indirect expense charged, the value of ing which Federal sponsorship begins third party in-kind contributions ap- and ends. plied and the amount of cash advances (aa) Property means, unless otherwise and payments made to subrecipients. stated, real property, equipment, in- For reports prepared on an accrual tangible property and debt instru- basis, outlays are the sum of cash dis- ments. bursements for direct charges for goods (bb) Real property means land, includ- and services, the amount of indirect ex- ing land improvements, structures and pense incurred, the value of in-kind appurtenances thereto, but excludes contributions applied, and the net in- movable machinery and equipment. crease (or decrease) in the amounts (cc) Recipient means an organization owed by the recipient for goods and receiving financial assistance directly other property received, for services from Federal awarding agencies to performed by employees, contractors, carry out a project or program. The subrecipients and other payees and term includes public and private insti- other amounts becoming owed under tutions of higher education, public and programs for which no current services private hospitals, and other quasi-pub- or performance are required. lic and private non-profit organizations (v) Personal property means property such as, but not limited to, community of any kind except real property. It action agencies, research institutes, may be tangible, having physical exist- educational associations, and health ence, or intangible, having no physical centers. The term may include com- existence, such as copyrights, patents, mercial organizations, foreign or inter- or securities. national organizations (such as agen- (w) Prior approval means written ap- cies of the United Nations) which are proval by an authorized official evi- recipients, subrecipients, or contrac- dencing prior consent. tors or subcontractors of recipients or (x) Program income means gross in- subrecipients at the discretion of the come earned by the recipient that is di- Federal awarding agency. The term rectly generated by a supported activ- does not include government-owned ity or earned as a result of the award contractor-operated facilities or re- (see exclusions in paragraphs § 2543.24 search centers providing continued (e) and (h)). Program income includes, support for mission-oriented, large- but is not limited to, income from fees scale programs that are government- for services performed, the use or rent- owned or controlled, or are designated al of real or personal property acquired as federally-funded research and devel- under federally-funded projects, the opment centers.
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(dd) Research and development means Small Business Firms Under Govern- all research activities, both basic and ment Grants, Contracts, and Coopera- applied, and all development activities tive Agreements.’’ that are supported at universities, col- (ii) Suspension means an action by a leges, and other non-profit institu- Federal awarding agency that tempo- tions. ‘‘Research’’ is defined as a sys- rarily withdraws Federal sponsorship tematic study directed toward fuller under an award, pending corrective ac- scientific knowledge or understanding tion by the recipient or pending a deci- of the subject studied. ‘‘Development’’ sion to terminate the award by the is the systematic use of knowledge and Federal awarding agency. Suspension understanding gained from research di- of an award is a separate action from rected toward the production of useful suspension under Federal agency regu- materials, devices, systems, or meth- lations implementing E.O.s 12549 and ods, including design and development 12689, ‘‘Debarment and Suspension.’’ of prototypes and processes. The term (jj) Termination means the cancella- research also includes activities in- tion of Federal sponsorship, in whole or volving the training of individuals in in part, under an agreement at any research techniques where such activi- time prior to the date of completion. ties utilize the same facilities as other (kk) Third party in-kind contributions research and development activities means the value of non-cash contribu- and where such activities are not in- tions provided by non-Federal third cluded in the instruction function. parties. Third party in-kind contribu- (ee) Small awards means a grant or tions may be in the form of real prop- cooperative agreement not exceeding erty, equipment, supplies and other ex- the small purchase threshold fixed at pendable property, and the value of 41 U.S.C. 403(11) (currently $25,000). goods and services directly benefiting (ff) Subaward means an award of fi- and specifically identifiable to the nancial assistance in the form of project or program. money, or property in lieu of money, (ll) Unliquidated obligations, for finan- made under an award by a recipient to cial reports prepared on a cash basis, an eligible subrecipient or by a sub- means the amount of obligations in- recipient to a lower tier subrecipient. curred by the recipient that have not The term includes financial assistance been paid. For reports prepared on an when provided by any legal agreement, accrued expenditure basis, they rep- even if the agreement is called a con- resent the amount of obligations in- tract, but does not include procure- curred by the recipient for which an ment of goods and services nor does it outlay has not been recorded. include any form of assistance which is (mm) Unobligated balance means the excluded from the definition of portion of the funds authorized by the ‘‘award’’ in paragraph (e). Federal awarding agency that has not (gg) Subrecipient means the legal enti- been obligated by the recipient and is ty to which a subaward is made and determined by deducting the cumu- which is accountable to the recipient lative obligations from the cumulative for the use of the funds provided. The funds authorized. term may include foreign or inter- (nn) Unrecovered indirect cost means national organizations (such as agen- the difference between the amount cies of the United Nations) at the dis- awarded and the amount which could cretion of the Federal awarding agen- have been awarded under the recipi- cy. ent’s approved negotiated indirect cost (hh) Supplies means all personal prop- rate. erty excluding equipment, intangible (oo) Working capital advance means a property, and debt instruments as de- procedure where by funds are advanced fined in this section, and inventions of to the recipient to cover its estimated a contractor conceived or first actually disbursement needs for a given initial reduced to practice in the performance period. of work under a funding agreement (‘‘subject inventions’’), as defined in 37 § 2543.3 Effect on other issuances. CFR part 401, ‘‘Rights to Inventions For awards subject to this Circular, Made by Nonprofit Organizations and all administrative requirements of
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codified program regulations, program § 2543.11 Pre-award policies. manuals, handbooks and other non- (a) Use of Grants and Cooperative regulatory materials which are incon- Agreements, and Contracts. In each in- sistent with the requirements of this stance, the Federal awarding agency Circular shall be superseded, except to shall decide on the appropriate award the extent they are required by stat- instrument (i.e., grant, cooperative ute, or authorized in accordance with agreement, or contract). The Federal the deviations provision in Section Grant and Cooperative Agreement Act § 2543.4. (31 U.S.C. 6301–08) governs the use of grants, cooperative agreements and § 2543.4 Deviations. contracts. A grant or cooperative The Office of Management and Budg- agreement shall be used only when the et (OMB) may grant exceptions for principal purpose of a transaction is to classes of grants or recipients subject accomplish a public purpose of support or stimulation authorized by Federal to the requirements of this Circular statute. The statutory criterion for when exceptions are not prohibited by choosing between grants and coopera- statute. However, in the interest of tive agreements is that for the latter, maximum uniformity, exceptions from ‘‘substantial involvement is expected the requirements of this Circular shall between the executive agency and the be permitted only in unusual cir- State, local government, or other re- cumstances. Federal awarding agencies cipient when carrying out the activity may apply more restrictive require- contemplated in the agreement.’’ Con- ments to a class of recipients when ap- tracts shall be used when the principal proved by OMB. Federal awarding purpose is acquisition of property or agencies may apply less restrictive re- services for the direct benefit or use of quirements when awarding small the Federal Government. awards, except for those requirements (b) Public Notice and Priority Set- which are statutory. Exceptions on a ting. Federal awarding agencies shall case-by-case basis may also be made by notify the public of its intended fund- Federal awarding agencies. ing priorities for discretionary grant programs, unless funding priorities are § 2543.5 Subawards. established by Federal statute. Unless sections of this Circular spe- § 2543.12 Forms for applying for Fed- cifically exclude subrecipients from eral assistance. coverage, the provisions of this Cir- (a) Federal awarding agencies shall cular shall be applied to subrecipients comply with the applicable report performing work under awards if such clearance requirements of 5 CFR part subrecipients are institutions of higher 1320, ‘‘Controlling Paperwork Burdens education, hospitals or other non-profit on the Public,’’ with regard to all organizations. State and local govern- forms used by the Federal awarding ment subrecipients are subject to the agency in place of or as a supplement provisions of regulations implementing to the Standard Form 424 (SF–424) se- the grants management common rule, ries. ‘‘Uniform Administrative Require- (b) Applicants shall use the SF–424 ments for Grants and Cooperative series or those forms and instructions Agreements to State and Local Gov- prescribed by the Federal awarding ernments,’’ published at 53 FR 8034. agency. (c) For Federal programs covered by Subpart B—Pre-Award E.O. 12372, ‘‘Intergovernmental Review of Federal Programs,’’ the applicant Requirements shall complete the appropriate sections of the SF–424 (Application for Federal § 2543.10 Purpose. Assistance) indicating whether the ap- Sections § 2543.11 through § 2543.17 plication was subject to review by the prescribes forms and instructions and State Single Point of Contact (SPOC). other pre-award matters to be used in The name and address of the SPOC for applying for Federal awards. a particular State can be obtained from
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the Federal awarding agency or the each Federal agency to establish a date Catalog of Federal Domestic Assistance. or dates in consultation with the Sec- The SPOC shall advise the applicant retary of Commerce, when the metric whether the program for which applica- system of measurement will be used in tion is made has been selected by that the agency’s procurements, grants, and State for review. other business-related activities. Met- (d) Federal awarding agencies that do ric implementation may take longer not use the SF–424 form should indi- where the use of the system is initially cate whether the application is subject impractical or likely to cause signifi- to review by the State under E.O. 12372. cant inefficiencies in the accomplish- § 2543.13 Debarment and suspension. ment of federally-funded activities. Federal awarding agencies shall follow Federal awarding agencies and re- the provisions of E.O. 12770, ‘‘Metric cipients shall comply with the non- Usage in Federal Government Pro- procurement debarment and suspension common rule implementing E.O.s 12549 grams.’’ and 12689, ‘‘Debarment and Suspen- § 2543.16 Resource Conservation and sion.’’ This common rule restricts sub- Recovery Act. awards and contracts with certain par- ties that are debarred, suspended or Under the Act Resource Conservation otherwise excluded from or ineligible and Recovery Act (42 U.S.C. 6962), any for participation in Federal assistance State agency or agency of a political programs or activities. subdivision of a State which is using appropriated Federal funds must com- § 2543.14 Special award conditions. ply with Section 6002. Section 6002 re- If an applicant or recipient: quires that preference be given in pro- (a) Has a history of poor perform- curement programs to the purchase of ance, specific products containing recycled (b) Is not financially stable, materials identified in guidelines de- (c) Has a management system that veloped by the Environmental Protec- does not meet the standards prescribed tion Agency (EPA) (40 CFR parts 247– in this Circular, 254). (d) Has not conformed to the terms and conditions of a previous award, or Accordingly, State and local institu- (e) is not otherwise responsible, Fed- tions of higher education, hospitals, eral awarding agencies may impose ad- and non-profit organizations that re- ditional requirements as needed, pro- ceive direct Federal awards or other vided that such applicant or recipient Federal funds shall give preference in is notified in writing as to: the nature their procurement programs funded of the additional requirements, the rea- with Federal funds to the purchase of son why the additional requirements recycled products pursuant to the EPA are being imposed, the nature of the guidelines. corrective action needed, the time al- lowed for completing the corrective ac- § 2543.17 Certifications and represen- tions, and the method for requesting tations. reconsideration of the additional re- Unless prohibited by statute or codi- quirements imposed. Any special con- fied regulation, each Federal awarding ditions shall be promptly removed once agency is authorized and encouraged to the conditions that prompted them allow recipients to submit certifi- have been corrected. cations and representations required § 2543.15 Metric system of measure- by statute, executive order, or regula- ment. tion on an annual basis, if the recipi- The Metric Conversion Act, as ents have ongoing and continuing rela- amended by the Omnibus Trade and tionships with the agency. Annual cer- Competitiveness Act (15 U.S.C. 205) de- tifications and representations shall be clares that the metric system is the signed by responsible officials with the preferred measurement system for U.S. authority to ensure recipients’ compli- trade and commerce. The Act requires ance with the pertinent requirements.
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Subpart C—Post-Award (5) Written procedures to minimize Requirements the time elapsing between the transfer of funds to the recipient from the U.S. FINANCIAL AND PROGRAM MANAGEMENT Treasury and the issuance or redemp- tion of checks, warrants or payments § 2543.20 Purpose of financial and pro- by other means for program purposes gram management. by the recipient. To the extent that the Sections 2543.21 through 2543.25 pre- provisions of the Cash Management Im- scribe standards for financial manage- provement Act (CMIA) (Pub. L. 101–453) ment systems, methods for making govern, payment methods of State payments and rules for: satisfying cost agencies, instrumentalities, and fiscal sharing and matching requirements, agents shall be consistent with CMIA accounting for program income, budget Treasury-State Agreements or the revision approvals, making audits, de- CMIA default procedures codified at 31 termining allowability of cost, and es- CFR part 205, ‘‘Withdrawal of Cash tablishing fund availability. from the Treasury for Advances under Federal Grant and Other Programs.’’ § 2543.21 Standards for financial man- (6) Written procedures for deter- agement systems. mining the reasonableness, allocability (a) Federal awarding agencies shall and allowability of costs in accordance require recipients to relate financial with the provisions of the applicable data to performance data and develop Federal cost principles and the terms unit cost information whenever prac- and conditions of the award. tical. (7) Accounting records including cost (b) Recipients’ financial management accounting records that are supported systems shall provide for the following: by source documentation. (1) Accurate, current and complete (c) Where the Federal Government disclosure of the financial results of guarantees or insures the repayment of each federally-sponsored project or money borrowed by the recipient, the program in accordance with the report- Federal awarding agency, at its discre- ing requirements set forth in § 2543.51. tion, may require adequate bonding If a Federal awarding agency requires and insurance if the bonding and insur- reporting on an accrual basis from a re- ance requirements of the recipient are cipient that maintains its records on not deemed adequate to protect the in- other than an accrual basis, the recipi- terest of the Federal Government. ent shall not be required to establish an accrual accounting system. These (d) The Federal awarding agency may recipients may develop such accrual require adequate fidelity bond coverage data for its reports on the basis of an where the recipient lacks sufficient analysis of the documentation on hand. coverage to protect the Federal Gov- (2) Records that identify adequately ernment’s interest. the source and application of funds for (e) Where bonds are required in the federally-sponsored activities. These situations described above, the bonds records shall contain information per- shall be obtained from companies hold- taining to Federal awards, authoriza- ing certificates of authority as accept- tions, obligations, unobligated bal- able sureties, as prescribed in 31 CFR ances, assets, outlays, income and in- part 223, ‘‘Surety Companies Doing terest. Business With the United States.’’ (3) Effective control over and ac- countability for all funds, property and § 2543.22 Payment. other assets. Recipients shall ade- (a) Payment methods shall minimize quately safeguard all such assets and the time elapsing between the transfer assure they are used solely for author- of funds from the United States Treas- ized purposes. ury and the issuance or redemption of (4) Comparison of outlays with budg- checks, warrants, or payment by other et amounts for each award. Whenever means by the recipients. Payment appropriate, financial information methods of State agencies or instru- should be related to performance and mentalities shall be consistent with unit cost data. Treasury-State CMIA agreements or
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default procedures codified at 31 CFR through private market financing or part 205. Federal loans, and the Federal assist- (b) Recipients are to be paid in ad- ance constitutes a minor portion of the vance, provided they maintain or dem- project. onstrate the willingness to maintain: (1) When the reimbursement method (1) Written procedures that minimize is used, the Federal awarding agency the time elapsing between the transfer shall make payment within 30 days of funds and disbursement by the re- after receipt of the billing, unless the cipient, and billing is improper. (2) Financial management systems (2) Recipients shall be authorized to that meet the standards for fund con- submit request for reimbursement at trol and accountability as established least monthly when electronic funds in § 2543.21. Cash advances to a recipi- transfers are not used. ent organization shall be limited to the (f) If a recipient cannot meet the cri- minimum amounts needed and be teria for advance payments and the timed to be in accordance with the ac- Federal awarding agency has deter- tual, immediate cash requirements of mined that reimbursement is not fea- the recipient organization in carrying sible because the recipient lacks suffi- out the purpose of the approved pro- cient working capital, the Federal gram or project. The timing and awarding agency may provide cash on a amount of cash advances shall be as working capital advance basis. Under close as is administratively feasible to this procedure, the Federal awarding the actual disbursements by the recipi- agency shall advance cash to the re- ent organization for direct program or cipient to cover its estimated disburse- project costs and the proportionate ment needs for an initial period gen- share of any allowable indirect costs. erally geared to the awardee’s dis- (c) Whenever possible, advances shall bursing cycle. Thereafter, the Federal be consolidated to cover anticipated awarding agency shall reimburse the cash needs for all awards made by the recipient for its actual cash disburse- Federal awarding agency to the recipi- ments. The working capital advance ent. method of payment shall not be used (1) Advance payment mechanisms in- for recipients unwilling or unable to clude, but are not limited to, Treasury provide timely advances to their sub- check and electronic funds transfer. recipient to meet the subrecipient’s ac- (2) Advance payment mechanisms are tual cash disbursements. subject to 31 CFR part 205. (g) To the extent available, recipi- (3) Recipients shall be authorized to ents shall disburse funds available from submit requests for advances and reim- repayments to and interest earned on a bursements at least monthly when revolving fund, program income, re- electronic fund transfers are not used. bates, refunds, contract settlements, (d) Requests for Treasury check ad- audit recoveries and interest earned on vance payment shall be submitted on such funds before requesting additional SF–270, ‘‘Request for Advance or Reim- cash payments. bursement,’’ or other forms as may be (h) Unless otherwise required by stat- authorized by OMB. This form is not to ute, Federal awarding agencies shall be used when Treasury check advance not withhold payments for proper payments are made to the recipient charges made by recipients at any time automatically through the use of a pre- during the project period unless: determined payment schedule or if pre- (1) A recipient has failed to comply cluded by special Federal awarding with the project objectives, the terms agency instructions for electronic and conditions of the award, or Federal funds transfer. reporting requirements, or (e) Reimbursement is the preferred (2) The recipient or subrecipient is method when the requirements in para- delinquent in a debt to the United graph (b) cannot be met. Federal States as defined in OMB Circular A– awarding agencies may also use this 129, ‘‘Managing Federal Credit Pro- method on any construction agree- grams.’’ Under such conditions, the ment, or if the major portion of the Federal awarding agency may, upon construction project is accomplished reasonable notice, inform the recipient
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that payments shall not be made for awards without prior written approval obligations incurred after a specified from the Federal awarding agency, it date until the conditions are corrected waives its right to recover the interest or the indebtedness to the Federal Gov- under CMIA. ernment is liquidated. (m) Except as noted elsewhere in this (i) Standards governing the use of Circular, only the following forms shall banks and other institutions as deposi- be authorized for the recipients in re- tories of funds advanced under awards questing advances and reimburse- are as follows: ments. Federal agencies shall not re- (1) Except for situations described in quire more than an original and two paragraph (i)(2), Federal awarding copies of these forms. agencies shall not require separate de- (1) SF–270, Request for Advance or pository accounts for funds provided to Reimbursement. Each Federal award- a recipient or establish any eligibility ing agency shall adopt the SF–270 as a requirements for depositories for funds standard form for all nonconstruction provided to a recipient. However, re- programs when electronic funds trans- cipients must be able to account for fer or predetermined advance methods the receipt, obligation and expenditure are not used. Federal awarding agen- of funds. cies, however, have the option of using (2) Advances of Federal funds shall be this form for construction programs in deposited and maintained in insured lieu of the SF–271, ‘‘Outlay Report and accounts whenever possible. Request for Reimbursement for Con- (j) Consistent with the national goal struction Programs.’’ of expanding the opportunities for (2) SF–271, Outlay Report and Re- women-owned and minority-owned quest for Reimbursement for Construc- business enterprises, recipients shall be tion Programs. Each Federal awarding encouraged to use women-owned and agency shall adopt the SF–271 as the minority-owned banks (a bank which is standard form to be used for requesting owned at least 50 percent by women or reimbursement for construction pro- minority group members). grams. However, a Federal awarding (k) Recipients shall maintain ad- agency may substitute the SF–270 vances of Federal funds in interest when the Federal awarding agency de- bearing accounts, unless: termines that it provides adequate in- (1) The recipient receives less than formation to meet Federal needs. $120,000 in Federal awards per year. (2) The best reasonably available in- § 2543.23 Cost sharing or matching. terest bearing account would not be ex- (a) All contributions, including cash pected to earn interest in excess of $250 and third party in-kind, shall be ac- per year on Federal cash balances. cepted as part of the recipient’s cost (3) The depository would require an sharing or matching when such con- average or minimum balance so high tributions meet all of the following cri- that it would not be feasible within the teria. expected Federal and non-Federal cash (1) Are verifiable from the recipient’s resources. records. (l) For those entities where CMIA (2) Are not included as contributions and its implementing regulations do for any other federally-assisted project not apply, interest earned on Federal or program. advances deposited in interest bearing (3) Are necessary and reasonable for accounts shall be remitted annually to proper and efficient accomplishment of Department of Health and Human project or program objectives. Services, Payment Management Sys- (4) Are allowable under the applica- tem, Rockville, MD 20852. Interest ble cost principles. amounts up to $250 per year may be re- (5) Are not paid by the Federal Gov- tained by the recipient for administra- ernment under another award, except tive expense. State universities and where authorized by Federal statute to hospitals shall comply with CMIA, as it be used for cost sharing or matching. pertains to interest. If an entity sub- (6) Are provided for in the approved ject to CMIA uses its own funds to pay budget when required by the Federal pre-award costs for discretionary awarding agency.
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(7) Conform to other provisions of office supplies, laboratory supplies or this Circular, as applicable. workshop and classroom supplies. (b) Unrecovered indirect costs may be Value assessed to donated supplies in- included as part of cost sharing or cluded in the cost sharing or matching matching only with the prior approval share shall be reasonable and shall not of the Federal awarding agency. exceed the fair market value of the (c) Values for recipient contributions property at the time of the donation. of services and property shall be estab- (g) The method used for determining lished in accordance with the applica- cost sharing or matching for donated ble cost principles. If a Federal award- equipment, buildings and land for ing agency authorizes recipients to do- which title passes to the recipient may nate buildings or land for construction/ differ according to the purpose of the facilities acquisition projects or long- award: term use, the value of the donated (1) If the purpose of the award is to property for cost sharing or matching assist the recipient in the acquisition shall be the lesser of: of equipment, buildings or land, the (1) The certified value of the remain- total value of the donated property ing life of the property recorded in the may be claimed as cost sharing or recipient’s accounting records at the matching, or. time of donation, or. (2) If the purpose of the award is to (2) The current fair market value. support activities that require the use However, when there is sufficient jus- of equipment, buildings or land, nor- tification, the Federal awarding agen- mally only depreciation or use charges cy may approve the use of the current for equipment and buildings may be fair market value of the donated prop- made. However, the full value of equip- erty, even if it exceeds the certified ment or other capital assets and fair value at the time of donation to the rental charges for land may be allowed, project. provided that the Federal awarding (d) Volunteer services furnished by agency has approved the charges. professional and technical personnel, (h) The value of donated property consultants, and other skilled and un- shall be determined in accordance with skilled labor may be counted as cost the usual accounting policies of the re- sharing or matching if the service is an cipient, with the following qualifica- integral and necessary part of an ap- tions. proved project or program. Rates for (1) The value of donated land and volunteer services shall be consistent buildings shall not exceed its fair mar- with those paid for similar work in the ket value at the time of donation to recipient’s organization. In those in- the recipient as established by an inde- stances in which the required skills are pendent appraiser (e.g., certified real not found in the recipient organization, property appraiser or General Services rates shall be consistent with those Administration representative) and paid for similar work in the labor mar- certified by a responsible official of the ket in which the recipient competes for recipient. the kind of services involved. In either (2) The value of donated equipment case, paid fringe benefits that are rea- shall not exceed the fair market value sonable, allowable, and allocable may of equipment of the same age and con- be included in the valuation. dition at the time of donation. (e) When an employer other than the (3) The value of donated space shall recipient furnishes the services of an not exceed the fair rental value of com- employee, these services shall be val- parable space as established by an inde- ued at the employee’s regular rate of pendent appraisal of comparable space pay (plus an amount of fringe benefits and facilities in a privately-owned that are reasonable, allowable, and al- building in the same locality. locable, but exclusive of overhead (4) The value of loaned equipment costs), provided these services are in shall not exceed its fair rental value. the same skill for which the employee (5) The following requirements per- is normally paid. tain to the recipient’s supporting (f) Donated supplies may include records for in-kind contributions from such items as expendable equipment, third parties.
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(i) Volunteer services shall be docu- gram income earned after the end of mented and, to the extent feasible, sup- the project period. ported by the same methods used by (f) If authorized by Federal awarding the recipient for its own employees. agency regulations or the terms and (ii) The basis for determining the conditions of the award, costs incident valuation for personal service, mate- to the generation of program income rial, equipment, buildings and land may be deducted from gross income to shall be documented. determine program income, provided these costs have not been charged to § 2543.24 Program income. the award. (a) Federal awarding agencies shall (g) Proceeds from the sale of property apply the standards set forth in this shall be handled in accordance with the section in requiring recipient organiza- requirements of the Property Stand- tions to account for program income ards. (See § 2543.28 through § 2543.36.) related to projects financed in whole or (h) Unless Federal awarding agency in part with Federal funds. regulations or the terms and condition (b) Except as provided in paragraph of the award provide otherwise, recipi- (h) below, program income earned dur- ents shall have no obligation to the ing the project period shall be retained Federal Government with respect to by the recipient and, in accordance program income earned from license with Federal awarding agency regula- fees and royalties for copyrighted ma- tions or the terms and conditions of terial, patents, patent applications, the award, shall be used in one or more trademarks, and inventions produced of the ways listed in the following: under an award. However, Patent and (1) Added to funds committed to the Trademark Amendments (35 U.S.C. 18) project by the Federal awarding agency apply to inventions made under an ex- and recipient and used to further eligi- perimental, developmental, or research ble project or program objectives. award. (2) Used to finance the non-Federal share of the project or program. § 2543.25 Revision of budget and pro- (3) Deducted from the total project or gram plans. program allowable cost in determining (a) The budget plan is the financial the net allowable costs on which the expression of the project or program as Federal share of costs is based. approved during the award process. It (c) When an agency authorizes the may include either the Federal and disposition of program income as de- non-Federal share, or only the Federal scribed in paragraph (b)(1) or (b)(2), share, depending upon Federal award- program income in excess of any limits ing agency requirements. It shall be re- stipulated shall be used in accordance lated to performance for program eval- with paragraph (b)(3). uation purposes whenever appropriate. (d) In the event that the Federal awarding agency does not specify in its (b) Recipients are required to report regulations or the terms and condi- deviations from budget and program tions of the award how program income plans, and request prior approvals for is to be used, paragraph (b)(3) shall budget and program plan revisions, in apply automatically to all projects or accordance with this section. programs except research. For awards (c) For nonconstruction awards, re- that support research, paragraph (b)(1) cipients shall request prior approvals shall apply automatically unless the from Federal awarding agencies for one awarding agency indicates in the terms or more of the following program or and conditions another alternative on budget related reasons: the award or the recipient is subject to (1) Change in the scope or the objec- special award conditions, as indicated tive of the project or program (even if in § 2543.14. there is no associated budget revision (e) Unless Federal awarding agency requiring prior written approval). regulations or the terms and condi- (2) Change in a key person specified tions of the award provide otherwise, in the application or award document. recipients shall have no obligation to (3) The absence for more than three the Federal Government regarding pro- months, or a 25 percent reduction in
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time devoted to the project, by the ap- or if the award is less than anticipated proved project director or principal in- and inadequate to cover such costs). vestigator. (2) Initiate a one-time extension of (4) The need for additional Federal the expiration date of the award of up funding. to 12 months unless one or more of the (5) The transfer of amounts budgeted following conditions apply. For one- for indirect costs to absorb increases in time extensions, the recipient must no- direct costs, or vice versa, if approval tify the Federal awarding agency in is required by the Federal awarding writing with the supporting reasons agency. and revised expiration date at least 10 (6) The inclusion, unless waived by days before the expiration date speci- the Federal awarding agency, of costs fied in the award. This one-time exten- that require prior approval in accord- sion may not be exercised merely for ance with OMB Circular A–21, ‘‘Cost the purpose of using unobligated bal- Principles for Institutions of Higher ances. Education,’’ OMB Circular A–122, ‘‘Cost (i) The terms and conditions of award Principles for Non-Profit Organiza- prohibit the extension. tions,’’ or 45 CFR part 74 Appendix E, (ii) The extension requires additional ‘‘Principles for Determining Costs Ap- Federal funds. plicable to Research and Development (iii) The extension involves any change in the approved objectives or Under Grants and Contracts With Hos- scope of the project. pitals,’’ or 48 CFR part 31, ‘‘Contract (3) Carry forward unobligated bal- Cost Principles and Procedures,’’ as ap- ances to subsequent funding periods. plicable. (4) For awards that support research, (7) The transfer of funds allotted for unless the Federal awarding agency training allowances (direct payment to provides otherwise in the award or in trainees) to other categories of ex- the agency’s regulations, the prior ap- pense. proval requirements described in para- (8) Unless described in the applica- graph (e) are automatically waived tion and funded in the approved (i.e., recipients need not obtain such awards, the subaward, transfer or con- prior approvals) unless one of the con- tracting out of any work under an ditions included in paragraph (e)(2) ap- award. This provision does not apply to plies. the purchase of supplies, material, (f) The Federal awarding agency equipment or general support services. may, at its option, restrict the transfer (d) No other prior approval require- of funds among direct cost categories ments for specific items may be im- or programs, functions and activities posed unless a deviation has been ap- for awards in which the Federal share proved by OMB. of the project exceeds $100,000 and the (e) Except for requirements listed in cumulative amount of such transfers paragraphs (c)(1) and (c)(4) of this sec- exceeds or is expected to exceed 10 per- tion, Federal awarding agencies are au- cent of the total budget as last ap- thorized, at their option, to waive cost- proved by the Federal awarding agen- related and administrative prior writ- cy. No Federal awarding agency shall ten approvals required by this Circular permit a transfer that would cause any and OMB Circulars A–21 and A–122. Federal appropriation or part thereof Such waivers may include authorizing to be used for purposes other than recipients to do any one or more of the those consistent with the original in- following: tent of the appropriation. (1) Incur pre-award costs 90 calendar (g) All other changes to nonconstruc- days prior to award or more than 90 tion budgets, except for the changes de- calendar days with the prior approval scribed in paragraph (j), do not require of the Federal awarding agency. All prior approval. pre-award costs are incurred at the re- (h) For construction awards, recipi- cipient’s risk (i.e., the Federal award- ents shall request prior written ap- ing agency is under no obligation to re- proval promptly from Federal awarding imburse such costs if for any reason agencies for budget revisions whenever the recipient does not receive an award (1), (2) or (3) apply.
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(1) The revision results from changes ing hospitals) shall be subject to the in the scope or the objective of the audit requirements contained in the project or program. Single Audit Act Amendments of 1996 (2) The need arises for additional (31 U.S.C. 7501–7507) and revised OMB Federal funds to complete the project. Circular A–133, ‘‘Audits of States, (3) A revision is desired which in- Local Governments, and Non-Profit Or- volves specific costs for which prior ganizations.’’ written approval requirements may be (b) State and local governments shall imposed consistent with applicable be subject to the audit requirements OMB cost principles listed in Section contained in the Single Audit Act § 2543.27. Amendments of 1996 (31 U.S.C. 7501– (i) No other prior approval require- 7507) and revised OMB Circular A–133, ments for specific items may be im- ‘‘Audits of States, Local Governments, posed unless a deviation has been ap- and Non-Profit Organizations.’’ proved by OMB. (c) For-profit hospitals not covered (j) When a Federal awarding agency by the audit provisions of revised OMB makes an award that provides support Circular A–133 shall be subject to the for both construction and nonconstruc- audit requirements of the Federal tion work, the Federal awarding agen- awarding agencies. cy may require the recipient to request (d) Commercial organizations shall prior approval from the Federal award- be subject to the audit requirements of ing agency before making any fund or the Federal awarding agency or the budget transfers between the two types prime recipient as incorporated into of work supported. the award document. (k) For both construction and non- construction awards, Federal awarding [60 FR 13055, Mar. 10, 1995, as amended at 62 agencies shall require recipients to no- FR 45939, 45947, Aug. 29, 1997] tify the Federal awarding agency in writing promptly whenever the amount § 2543.27 Allowable costs. of Federal authorized funds is expected For each kind of recipient, there is a to exceed the needs of the recipient for set of Federal principles for deter- the project period by more than $5,000 mining allowable costs. Allowability of or five percent of the Federal award, costs shall be determined in accord- whichever is greater. This notification ance with the cost principles applicable shall not be required if an application to the entity incurring the costs. Thus, for additional funding is submitted for allowability of costs incurred by State, a continuation award. local or federally-recognized Indian (l) When requesting approval for tribal governments is determined in budget revisions, recipients shall use accordance with the provisions of OMB the budget forms that were used in the Circular A–87, ‘‘Cost Principles for application unless the Federal award- State and Local Governments.’’ The al- ing agency indicates a letter of request lowability of costs incurred by non- suffices. profit organizations is determined in (m) Within 30 calendar days from the accordance with the provisions of OMB date of receipt of the request for budg- Circular A–122, ‘‘Cost Principles for et revisions, Federal awarding agencies Non-Profit Organizations.’’ The allow- shall review the request and notify the ability of costs incurred by institutions recipient whether the budget revisions of higher education is determined in have been approved. If the revision is accordance with the provisions of OMB still under consideration at the end of Circular A–21, ‘‘Cost Principles for 30 calendar days, the Federal awarding Educational Institutions.’’ The allow- agency shall inform the recipient in ability of costs incurred by hospitals is writing of the date when the recipient determined in accordance with the pro- may expect the decision. visions of Appendix E of 45 CFR part 74, ‘‘Principles for Determining Costs Ap- § 2543.26 Non-Federal audits. plicable to Research and Development (a) Recipients and subrecipients that Under Grants and Contracts with Hos- are institutions of higher education or pitals.’’ The allowability of costs in- other non-profit organizations (includ- curred by commercial organizations
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and those non-profit organizations list- shall not encumber the property with- ed in Attachment C to Circular A–122 is out approval of the Federal awarding determined in accordance with the pro- agency. visions of the Federal Acquisition Reg- (b) The recipient shall obtain written ulation (FAR) at 48 CFR part 31. approval by the Federal awarding agen- cy for the use of real property in other § 2543.28 Period of availability of federally-sponsored projects when the funds. recipient determines that the property Where a funding period is specified, a is no longer needed for the purpose of recipient may charge to the grant only the original project. Use in other allowable costs resulting from obliga- projects shall be limited to those under tions incurred during the funding pe- federally-sponsored projects (i.e., riod and any pre-award costs author- awards) or programs that have pur- ized by the Federal awarding agency. poses consistent with those authorized PROPERTY STANDARDS for support by the Federal awarding agency. § 2543.30 Purpose of property stand- (c) When the real property is no ards. longer needed as provided in para- Sections 2543.31 through 2543.37 set graphs (a) and (b), the recipient shall forth uniform standards governing request disposition instructions from management and disposition of prop- the Federal awarding agency or its suc- erty furnished by the Federal Govern- cessor Federal awarding agency. The ment whose cost was charged to a Federal awarding agency shall observe project supported by a Federal award. one or more of the following disposi- Federal awarding agencies shall re- tion instructions. quire recipients to observe these stand- (1) The recipient may be permitted to ards under awards and shall not impose retain title without further obligation additional requirements, unless specifi- to the Federal Government after it cally required by Federal statute. The compensates the Federal Government recipient may use its own property for that percentage of the current fair management standards and procedures market value of the property attrib- provided it observes the provisions of utable to the Federal participation in § 2543.31 through § 2543.37. the project. § 2543.31 Insurance coverage. (2) The recipient may be directed to sell the property under guidelines pro- Recipients shall, at a minimum, pro- vided by the Federal awarding agency vide the equivalent insurance coverage and pay the Federal Government for for real property and equipment ac- quired with Federal funds as provided that percentage of the current fair to property owned by the recipient. market value of the property attrib- Federally-owned property need not be utable to the Federal participation in insured unless required by the terms the project (after deducting actual and and conditions of the award. reasonable selling and fix-up expenses, if any, from the sales proceeds). When § 2543.32 Real property. the recipient is authorized or required Each Federal awarding agency shall to sell the property, proper sales proce- prescribe requirements for recipients dures shall be established that provide concerning the use and disposition of for competition to the extent prac- real property acquired in whole or in ticable and result in the highest pos- part under awards. Unless otherwise sible return. provided by statute, such require- (3) The recipient may be directed to ments, at a minimum, shall contain transfer title to the property to the the following: Federal Government or to an eligible (a) Title to real property shall vest in third party provided that, in such the recipient subject to the condition cases, the recipient shall be entitled to that the recipient shall use the real compensation for its attributable per- property for the authorized purpose of centage of the current fair market the project as long as it is needed and value of the property.
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§ 2543.33 Federally-owned and exempt as the Federal Government retains an property. interest in the equipment. (a) Federally-owned property. (c) The recipient shall use the equip- (1) Title to federally-owned property ment in the project or program for remains vested in the Federal Govern- which it was acquired as long as need- ment. Recipients shall submit annually ed, whether or not the project or pro- an inventory listing of federally-owned gram continues to be supported by Fed- property in their custody to the Fed- eral funds and shall not encumber the eral awarding agency. Upon completion property without approval of the Fed- of the award or when the property is no eral awarding agency. When no longer longer needed, the recipient shall re- needed for the original project or pro- port the property to the Federal award- gram, the recipient shall use the equip- ing agency for further Federal agency ment in connection with its other fed- utilization. erally-sponsored activities, in the fol- (2) If the Federal awarding agency lowing order of priority: has no further need for the property, it (1) Activities sponsored by the Fed- shall be declared excess and reported to eral awarding agency which funded the the General Services Administration, original project; then unless the Federal awarding agency (2) activities sponsored by other Fed- has statutory authority to dispose of eral awarding agencies. the property by alternative methods (d) During the time that equipment (e.g., the authority provided by the is used on the project or program for Federal Technology Transfer Act (15 which it was acquired, the recipient U.S.C. 3710(I)) to donate research equip- shall make it available for use on other ment to educational and non-profit or- ganizations in accordance with E.O. projects or programs if such other use 12821, ‘‘Improving Mathematics and will not interfere with the work on the Science Education in Support of the project or program for which the equip- National Education Goals’’). Appro- ment was originally acquired. First priate instructions shall be issued to preference for such other use shall be the recipient by the Federal awarding given to other projects or programs agency. sponsored by the Federal awarding (b) Exempt property. When statutory agency that financed the equipment; authority exists, the Federal awarding second preference shall be given to agency has the option to vest title to projects or programs sponsored by property acquired with Federal funds other Federal awarding agencies. If the in the recipient without further obliga- equipment is owned by the Federal tion to the Federal Government and Government, use on other activities under conditions the Federal awarding not sponsored by the Federal Govern- agency considers appropriate. Such ment shall be permissible if authorized property is ‘‘exempt property.’’ Should by the Federal awarding agency. User a Federal awarding agency not estab- charges shall be treated as program in- lish conditions, title to exempt prop- come. erty upon acquisition shall vest in the (e) When acquiring replacement recipient without further obligation to equipment, the recipient may use the the Federal Government. equipment to be replaced as trade-in or sell the equipment and use the pro- § 2543.34 Equipment. ceeds to offset the costs of the replace- (a) Title to equipment acquired by a ment equipment subject to the ap- recipient with Federal funds shall vest proval of the Federal awarding agency. in the recipient, subject to conditions (f) The recipient’s property manage- of this section. ment standards for equipment acquired (b) The recipient shall not use equip- with Federal funds and federally-owned ment acquired with Federal funds to equipment shall include all of the fol- provide services to non-Federal outside lowing: organizations for a fee that is less than (1) Equipment records shall be main- private companies charge for equiva- tained accurately and shall include the lent services, unless specifically au- following information. thorized by Federal statute, for as long (i) A description of the equipment.
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(ii) Manufacturer’s serial number, extent practicable and result in the model number, Federal stock number, highest possible return. national stock number, or other identi- (g) When the recipient no longer fication number. needs the equipment, the equipment (iii) Source of the equipment, includ- may be used for other activities in ac- ing the award number. cordance with the following standards. (iv) Whether title vests in the recipi- For equipment with a current per unit ent or the Federal Government. fair market value of $5,000 or more, the (v) Acquisition date (or date re- recipient may retain the equipment for ceived, if the equipment was furnished other uses provided that compensation by the Federal Government) and cost. is made to the original Federal award- (vi) Information from which one can ing agency or its successor. The calculate the percentage of Federal amount of compensation shall be com- participation in the cost of the equip- puted by applying the percentage of ment (not applicable to equipment fur- Federal participation in the cost of the nished by the Federal Government). original project or program to the cur- rent fair market value of the equip- (vii) Location and condition of the ment. If the recipient has no need for equipment and the date the informa- the equipment, the recipient shall re- tion was reported. quest disposition instructions from the (viii) Unit acquisition cost. Federal awarding agency. The Federal (ix) Ultimate disposition data, in- awarding agency shall determine cluding date of disposal and sales price whether the equipment can be used to or the method used to determine cur- meet the agency’s requirements. If no rent fair market value where a recipi- requirement exists within that agency, ent compensates the Federal awarding the availability of the equipment shall agency for its share. be reported to the General Services Ad- (2) Equipment owned by the Federal ministration by the Federal awarding Government shall be identified to indi- agency to determine whether a require- cate Federal ownership. ment for the equipment exists in other (3) A physical inventory of equipment Federal agencies. The Federal award- shall be taken and the results rec- ing agency shall issue instructions to onciled with the equipment records at the recipient no later than 120 calendar least once every two years. Any dif- days after the recipient’s request and ferences between quantities deter- the following procedures shall govern. mined by the physical inspection and (1) If so instructed or if disposition those shown in the accounting records instructions are not issued within 120 shall be investigated to determine the calendar days after the recipient’s re- causes of the difference. The recipient quest, the recipient shall sell the shall, in connection with the inven- equipment and reimburse the Federal tory, verify the existence, current uti- awarding agency an amount computed lization, and continued need for the by applying to the sales proceeds the equipment. percentage of Federal participation in (4) A control system shall be in effect the cost of the original project or pro- to insure adequate safeguards to pre- gram. However, the recipient shall be vent loss, damage, or theft of the permitted to deduct and retain from equipment. Any loss, damage, or theft the Federal share $500 or ten percent of of equipment shall be investigated and the proceeds, whichever is less, for the fully documented; if the equipment was recipient’s selling and handling ex- owned by the Federal Government, the penses. recipient shall promptly notify the (2) If the recipient is instructed to Federal awarding agency. ship the equipment elsewhere, the re- (5) Adequate maintenance procedures cipient shall be reimbursed by the Fed- shall be implemented to keep the eral Government by an amount which equipment in good condition. is computed by applying the percent- (6) Where the recipient is authorized age of the recipient’s participation in or required to sell the equipment, prop- the cost of the original project or pro- er sales procedures shall be established gram to the current fair market value which provide for competition to the of the equipment, plus any reasonable
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shipping or interim storage costs in- private companies charge for equiva- curred. lent services, unless specifically au- (3) If the recipient is instructed to thorized by Federal statute as long as otherwise dispose of the equipment, the the Federal Government retains an in- recipient shall be reimbursed by the terest in the supplies. Federal awarding agency for such costs incurred in its disposition. § 2543.36 Intangible property. (4) The Federal awarding agency may (a) The recipient may copyright any reserve the right to transfer the title work that is subject to copyright and to the Federal Government or to a was developed, or for which ownership third party named by the Federal Gov- was purchased, under an award. The ernment when such third party is oth- Federal awarding agency(ies) reserve a erwise eligible under existing statutes. royalty-free, nonexclusive and irrev- Such transfer shall be subject to the ocable right to reproduce, publish, or following standards. otherwise use the work for Federal pur- (i) The equipment shall be appro- poses, and to authorize others to do so. priately identified in the award or oth- (b) Recipients are subject to applica- erwise made known to the recipient in ble regulations governing patents and writing. inventions, including government-wide (ii) The Federal awarding agency regulations issued by the Department shall issue disposition instructions within 120 calendar days after receipt of Commerce at 37 CFR part 401, of a final inventory. The final inven- ‘‘Rights to Inventions Made by Non- tory shall list all equipment acquired profit Organizations and Small Busi- with grant funds and federally-owned ness Firms Under Government Grants, equipment. If the Federal awarding Contracts and Cooperative Agree- agency fails to issue disposition in- ments.’’ structions within the 120 calendar day (c) The Federal Government has the period, the recipient shall apply the right to: standards of this section, as appro- (1) Obtain, reproduce, publish or oth- priate. erwise use the data first produced (iii) When the Federal awarding under an award; and agency exercises its right to take title, (2) Authorize others to receive, repro- the equipment shall be subject to the duce, publish, or otherwise use such provisions for federally-owned equip- data for Federal purposes. ment. (d)(1) In addition, in response to a Freedom of Information Act (FOIA) re- § 2543.35 Supplies and other expend- quest for research data relating to pub- able property. lished research findings produced under (a) Title to supplies and other ex- an award that were used by the Federal pendable property shall vest in the re- Government in developing an agency cipient upon acquisition. If there is a action that has the force and effect of residual inventory of unused supplies law, the Federal awarding agency shall exceeding $5,000 in total aggregate request, and the recipient shall pro- value upon termination or completion vide, within a reasonable time, the re- of the project or program and the sup- search data so that they can be made plies are not needed for any other fed- available to the public through the pro- erally-sponsored project or program, cedures established under the FOIA. If the recipient shall retain the supplies the Federal awarding agency obtains for use on non-Federal sponsored ac- the research data solely in response to tivities or sell them, but shall, in ei- a FOIA request, the agency may charge ther case, compensate the Federal Gov- the requester a reasonable fee equaling ernment for its share. The amount of the full incremental cost of obtaining compensation shall be computed in the the research data. This fee should re- same manner as for equipment. flect costs incurred by the agency, the (b) The recipient shall not use sup- recipient, and applicable subrecipients. plies acquired with Federal funds to This fee is in addition to any fees the provide services to non-Federal outside agency may assess under the FOIA (5 organizations for a fee that is less than U.S.C. 552(a)(4)(A)).
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(2) The following definitions apply erty shall occur in accordance with the for purposes of this paragraph (d): provisions of paragraph § 2543.34 (g). (i) Research data is defined as the re- [60 FR 13055, Mar. 10, 1995, as amended at 65 corded factual material commonly ac- FR 53609, Sept. 5, 2000] cepted in the scientific community as EFFECTIVE DATE NOTE: At 65 FR 53609, necessary to validate research findings, Sept. 5, 2000, § 2543.36 was amended by revis- but not any of the following: prelimi- ing paragraph (c), by redesignating para- nary analyses, drafts of scientific pa- graph (d) as paragraph (e), and by adding a pers, plans for future research, peer re- new paragraph (d), effective October 5, 2000. views, or communications with col- For the convenience of the user, the super- seded text is set forth as follows. leagues. This ‘‘recorded’’ material ex- cludes physical objects (e.g., laboratory § 2543.36 Intangible property. samples). Research data also do not in- clude: * * * * * (A) Trade secrets, commercial infor- (c) Unless waived by the Federal awarding mation, materials necessary to be held agency, the Federal Government has the confidential by a researcher until they right to: are published, or similar information (1) Obtain, reproduce, publish or otherwise which is protected under law; and use the data first produced under an award, and (B) Personnel and medical informa- (2) Authorize others to receive, reproduce, tion and similar information the dis- publish, or otherwise use such data for Fed- closure of which would constitute a eral purposes. clearly unwarranted invasion of per- sonal privacy, such as information that * * * * * could be used to identify a particular person in a research study. § 2543.37 Property trust relationship. (ii) Published is defined as either Real property, equipment, intangible when: property and debt instruments that are (A) Research findings are published acquired or improved with Federal in a peer-reviewed scientific or tech- funds shall be held in trust by the re- nical journal; or cipient as trustee for the beneficiaries (B) A Federal agency publicly and of- of the project or program under which ficially cites the research findings in the property was acquired or improved. support of an agency action that has Agencies may require recipients to record liens or other appropriate no- the force and effect of law. tices of record to indicate that per- (iii) Used by the Federal Government in sonal or real property has been ac- developing an agency action that has the quired or improved with Federal funds force and effect of law is defined as when and that use and disposition conditions an agency publicly and officially cites apply to the property. the research findings in support of an agency action that has the force and PROCUREMENT STANDARDS effect of law. (3) The requirements set forth in § 2543.40 Purpose of procurement standards. paragraph (d)(1) of this section do not apply to commercial organizations. Sections § 2543.41 through § 2543.48 set (e) Title to intangible property and forth standards for use by recipients in debt instruments acquired under an establishing procedures for the pro- curement of supplies and other expend- award or subaward vests upon acquisi- able property, equipment, real property tion in the recipient. The recipient and other services with Federal funds. shall use that property for the origi- These standards are furnished to en- nally-authorized purpose, and the re- sure that such materials and services cipient shall not encumber the prop- are obtained in an effective manner erty without approval of the Federal and in compliance with the provisions awarding agency. When no longer need- of applicable Federal statutes and ex- ed for the originally authorized pur- ecutive orders. No additional procure- pose, disposition of the intangible prop- ment standards or requirements shall
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be imposed by the Federal awarding § 2543.43 Competition. agencies upon recipients, unless spe- All procurement transactions shall cifically required by Federal statute or be conducted in a manner to provide, executive order or approved by OMB. to the maximum extent practical, open and free competition. The recipient § 2543.41 Recipient responsibilities. shall be alert to organizational con- The standards contained in this sec- flicts of interest as well as noncompeti- tion do not relieve the recipient of the tive practices among contractors that contractual responsibilities arising may restrict or eliminate competition under its contract(s). The recipient is or otherwise restrain trade. In order to the responsible authority, without re- ensure objective contractor perform- course to the Federal awarding agency, ance and eliminate unfair competitive regarding the settlement and satisfac- advantage, contractors that develop or draft specifications, requirements, tion of all contractual and administra- statements of work, invitations for tive issues arising out of procurements bids and/or requests for proposals shall entered into in support of an award or be excluded from competing for such other agreement. This includes dis- procurements. Awards shall be made to putes, claims, protests of award, source the bidder or offeror whose bid or offer evaluation or other matters of a con- is responsive to the solicitation and is tractual nature. Matters concerning most advantageous to the recipient, violation of statute are to be referred price, quality and other factors consid- to such Federal, State or local author- ered. Solicitations shall clearly set ity as may have proper jurisdiction. forth all requirements that the bidder or offeror shall fulfill in order for the § 2543.42 Codes of conduct. bid or offer to be evaluated by the re- The recipient shall maintain written cipient. Any and all bids or offers may standards of conduct governing the be rejected when it is in the recipient’s performance of its employees engaged interest to do so. in the award and administration of § 2543.44 Procurement procedures. contracts. No employee, officer, or (a) All recipients shall establish writ- agent shall participate in the selection, ten procurement procedures. These award, or administration of a contract procedures shall provide for, at a min- supported by Federal funds if a real or imum, that: apparent conflict of interest would be (1) Recipients avoid purchasing un- involved. Such a conflict would arise necessary items, when the employee, officer, or agent, (2) Where appropriate, an analysis is any member of his or her immediate made of lease and purchase alter- family, his or her partner, or an orga- natives to determine which would be nization which employs or is about to the most economical and practical pro- employ any of the parties indicated curement for the Federal Government, herein, has a financial or other interest and in the firm selected for an award. The (3) Solicitations for goods and serv- officers, employees, and agents of the ices provide for all of the following: recipient shall neither solicit nor ac- (i) A clear and accurate description cept gratuities, favors, or anything of of the technical requirements for the monetary value from contractors, or material, product or service to be pro- parties to subagreements. However, re- cured. In competitive procurements, cipients may set standards for situa- such a description shall not contain tions in which the financial interest is features which unduly restrict com- petition. not substantial or the gift is an unso- (ii) Requirements which the bidder/ licited item of nominal value. The offeror must fulfill and all other fac- standards of conduct shall provide for tors to be used in evaluating bids or disciplinary actions to be applied for proposals. violations of such standards by offi- (iii) A description, whenever prac- cers, employees, or agents of the re- ticable, of technical requirements in cipient. terms of functions to be performed or
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performance required, including the be appropriate for the particular pro- range of acceptable characteristics or curement and for promoting the best minimum acceptable standards. interest of the program or project in- (iv) The specific features of ‘‘brand volved. The ‘‘cost-plus-a-percentage-of- name or equal’’ descriptions that bid- cost’’ or ‘‘percentage of construction ders are required to meet when such cost’’ methods of contracting shall not items are included in the solicitation. be used. (v) The acceptance, to the extent (d) Contracts shall be made only with practicable and economically feasible, responsible contractors who possess of products and services dimensioned in the potential ability to perform suc- the metric system of measurement. cessfully under the terms and condi- (vi) Preference, to the extent prac- tions of the proposed procurement. ticable and economically feasible, for Consideration shall be given to such products and services that conserve matters as contractor integrity, record natural resources and protect the envi- of past performance, financial and ronment and are energy efficient. technical resources or accessibility to (b) Positive efforts shall be made by other necessary resources. In certain recipients to utilize small businesses, circumstances, contracts with certain minority-owned firms, and women’s parties are restricted by agencies’ im- business enterprises, whenever pos- plementation of E.O.s 12549 and 12689, sible. Recipients of Federal awards ‘‘Debarment and Suspension.’’ shall take all of the following steps to (e) Recipients shall, on request, make further this goal. available for the Federal awarding (1) Ensure that small businesses, mi- agency, pre-award review and procure- nority-owned firms, and women’s busi- ment documents, such as request for ness enterprises are used to the fullest proposals or invitations for bids, inde- extent practicable. pendent cost estimates, etc., when any (2) Make information on forthcoming of the following conditions apply. opportunities available and arrange (1) A recipient’s procurement proce- time frames for purchases and con- dures or operation fails to comply with tracts to encourage and facilitate par- the procurement standards in the Fed- ticipation by small businesses, minor- eral awarding agency’s implementation ity-owned firms, and women’s business of this Circular. enterprises. (2) The procurement is expected to (3) Consider in the contract process exceed the small purchase threshold whether firms competing for larger fixed at 41 U.S.C. 403 (11) (currently contracts intend to subcontract with $25,000) and is to be awarded without small businesses, minority-owned competition or only one bid or offer is firms, and women’s business enter- received in response to a solicitation. prises. (3) The procurement, which is ex- (4) Encourage contracting with con- pected to exceed the small purchase sortiums of small businesses, minority- threshold, specifies a ‘‘brand name’’ owned firms and women’s business en- product. terprises when a contract is too large for one of these firms to handle individ- (4) The proposed award over the ually. small purchase threshold is to be (5) Use the services and assistance, as awarded to other than the apparent appropriate, of such organizations as low bidder under a sealed bid procure- the Small Business Administration and ment. the Department of Commerce’s Minor- (5) A proposed contract modification ity Business Development Agency in changes the scope of a contract or in- the solicitation and utilization of creases the contract amount by more small businesses, minority-owned firms than the amount of the small purchase and women’s business enterprises. threshold. (c) The type of procuring instruments used (e.g., fixed price contracts, cost § 2543.45 Cost and price analysis. reimbursable contracts, purchase or- Some form of cost or price analysis ders, and incentive contracts) shall be shall be made and documented in the determined by the recipient but shall procurement files in connection with
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every procurement action. Price anal- conditions where the contract may be ysis may be accomplished in various terminated because of circumstances ways, including the comparison of beyond the control of the contractor. price quotations submitted, market (c) Except as otherwise required by prices and similar indicia, together statute, an award that requires the with discounts. Cost analysis is the re- contracting (or subcontracting) for view and evaluation of each element of construction or facility improvements cost to determine reasonableness, shall provide for the recipient to follow allocability and allowability. its own requirements relating to bid guarantees, performance bonds, and § 2543.46 Procurement records. payment bonds unless the construction Procurement records and files for contract or subcontract exceeds purchases in excess of the small pur- $100,000. For those contracts or sub- chase threshold shall include the fol- contracts exceeding $100,000, the Fed- lowing at a minimum: eral awarding agency may accept the (a) Basis for contractor selection; bonding policy and requirements of the (b) Justification for lack of competi- recipient, provided the Federal award- tion when competitive bids or offers ing agency has made a determination are not obtained; and that the Federal Government’s interest (c) Basis for award cost or price. is adequately protected. If such a de- termination has not been made, the § 2543.47 Contract administration. minimum requirements shall be as fol- A system for contract administration lows. shall be maintained to ensure con- (1) A bid guarantee from each bidder tractor conformance with the terms, equivalent to five percent of the bid conditions and specifications of the price. The ‘‘bid guarantee’’ shall con- contract and to ensure adequate and sist of a firm commitment such as a timely follow up of all purchases. Re- bid bond, certified check, or other ne- cipients shall evaluate contractor per- gotiable instrument accompanying a formance and document, as appro- bid as assurance that the bidder shall, priate, whether contractors have met upon acceptance of his bid, execute the terms, conditions and specifica- such contractual documents as may be tions of the contract. required within the time specified. (2) A performance bond on the part of § 2543.48 Contract provisions. the contractor for 100 percent of the The recipient shall include, in addi- contract price. A ‘‘performance bond’’ tion to provisions to define a sound and is one executed in connection with a complete agreement, the following pro- contract to secure fulfillment of all the visions in all contracts. The following contractor’s obligations under such provisions shall also be applied to sub- contract. contracts. (3) A payment bond on the part of the (a) Contracts in excess of the small contractor for 100 percent of the con- purchase threshold shall contain con- tract price. A ‘‘payment bond’’ is one tractual provisions or conditions that executed in connection with a contract allow for administrative, contractual, to assure payment as required by stat- or legal remedies in instances in which ute of all persons supplying labor and a contractor violates or breaches the material in the execution of the work contract terms, and provide for such provided for in the contract. remedial actions as may be appro- (4) Where bonds are required in the priate. situations described herein, the bonds (b) All contracts in excess of the shall be obtained from companies hold- small purchase threshold shall contain ing certificates of authority as accept- suitable provisions for termination by able sureties pursuant to 31 CFR part the recipient, including the manner by 223, ‘‘Surety Companies Doing Business which termination shall be effected with the United States.’’ and the basis for settlement. In addi- (d) All negotiated contracts (except tion, such contracts shall describe con- those for less than the small purchase ditions under which the contract may threshold) awarded by recipients shall be terminated for default as well as include a provision to the effect that
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the recipient, the Federal awarding (d) When required, performance re- agency, the Comptroller General of the ports shall generally contain, for each United States, or any of their duly au- award, brief information on each of the thorized representatives, shall have ac- following. cess to any books, documents, papers (1) A comparison of actual accom- and records of the contractor which are plishments with the goals and objec- directly pertinent to a specific pro- tives established for the period, the gram for the purpose of making audits, findings of the investigator, or both. examinations, excerpts and tran- Whenever appropriate and the output scriptions. of programs or projects can be readily (e) All contracts, including small quantified, such quantitative data purchases, awarded by recipients and should be related to cost data for com- their contractors shall contain the pro- putation of unit costs. curement provisions of Appendix A to (2) Reasons why established goals this Circular, as applicable. were not met, if appropriate. (3) Other pertinent information in- REPORTS AND RECORDS cluding, when appropriate, analysis and explanation of cost overruns or § 2543.50 Purpose of reports and high unit costs. records. (e) Recipients shall not be required to Sections § 2543.51 through § 2543.53 set submit more than the original and two forth the procedures for monitoring copies of performance reports. and reporting on the recipient’s finan- (f) Recipients shall immediately no- cial and program performance and the tify the Federal awarding agency of de- necessary standard reporting forms. velopments that have a significant im- They also set forth record retention re- pact on the award-supported activities. quirements. Also, notification shall be given in the case of problems, delays, or adverse § 2543.51 Monitoring and reporting conditions which materially impair the program performance. ability to meet the objectives of the award. This notification shall include a (a) Recipients are responsible for statement of the action taken or con- managing and monitoring each project, templated, and any assistance needed program, subaward, function or activ- to resolve the situation. ity supported by the award. Recipients (g) Federal awarding agencies may shall monitor subawards to ensure sub- make site visits, as needed. recipients have met the audit require- (h) Federal awarding agencies shall ments as delineated in Section § 2543.26. comply with clearance requirements of (b) The Federal awarding agency 5 CFR part 1320 when requesting per- shall prescribe the frequency with formance data from recipients. which the performance reports shall be submitted. Except as provided in para- § 2543.52 Financial reporting. graph § 2543.51(f), performance reports (a) The following forms or such other shall not be required more frequently forms as may be approved by OMB are than quarterly or, less frequently than authorized for obtaining financial in- annually. Annual reports shall be due formation from recipients. 90 calendar days after the grant year; (1) SF–269 or SF–269A, Financial Sta- quarterly or semi-annual reports shall tus Report. be due 30 days after the reporting pe- (i) Each Federal awarding agency riod. The Federal awarding agency may shall require recipients to use the SF– require annual reports before the anni- 269 or SF–269A to report the status of versary dates of multiple year awards funds for all nonconstruction projects in lieu of these requirements. The final or programs. A Federal awarding agen- performance reports are due 90 cal- cy may, however, have the option of endar days after the expiration or ter- not requiring the SF–269 or SF–269A mination of the award. when the SF–270, Request for Advance (c) If inappropriate, a final technical or Reimbursement, or SF–272, Report or performance report shall not be re- of Federal Cash Transactions, is deter- quired after completion of the project. mined to provide adequate information
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to meet its needs, except that a final Recipients shall provide short nar- SF–269 or SF–269A shall be required at rative explanations of actions taken to the completion of the project when the reduce the excess balances. SF–270 is used only for advances. (iv) Recipients shall be required to (ii) The Federal awarding agency submit not more than the original and shall prescribe whether the report shall two copies of the SF–272 15 calendar be on a cash or accrual basis. If the days following the end of each quarter. Federal awarding agency requires ac- The Federal awarding agencies may re- crual information and the recipient’s quire a monthly report from those re- accounting records are not normally cipients receiving advances totaling $1 kept on the accrual basis, the recipient million or more per year. shall not be required to convert its ac- (v) Federal awarding agencies may counting system, but shall develop waive the requirement for submission such accrual information through best of the SF–272 for any one of the fol- estimates based on an analysis of the lowing reasons: documentation on hand. (A) When monthly advances do not (iii) The Federal awarding agency exceed $25,000 per recipient, provided shall determine the frequency of the that such advances are monitored Financial Status Report for each through other forms contained in this project or program, considering the section; size and complexity of the particular (B) If, in the Federal awarding agen- project or program. However, the re- cy’s opinion, the recipient’s accounting port shall not be required more fre- controls are adequate to minimize ex- quently than quarterly or less fre- cessive Federal advances; or, quently than annually. A final report shall be required at the completion of (C) When the electronic payment the agreement. mechanisms provide adequate data. (iv) The Federal awarding agency (b) When the Federal awarding agen- shall require recipients to submit the cy needs additional information or SF–269 or SF–269A (an original and no more frequent reports, the following more than two copies) no later than 30 shall be observed. days after the end of each specified re- (1) When additional information is porting period for quarterly and semi- needed to comply with legislative re- annual reports, and 90 calendar days quirements, Federal awarding agencies for annual and final reports. Exten- shall issue instructions to require re- sions of reporting due dates may be ap- cipients to submit such information proved by the Federal awarding agency under the ‘‘Remarks’’ section of the re- upon request of the recipient. ports. (2) SF–272, Report of Federal Cash (2) When a Federal awarding agency Transactions. determines that a recipient’s account- (i) When funds are advanced to re- ing system does not meet the standards cipients the Federal awarding agency in Section § 2543.21, additional perti- shall require each recipient to submit nent information to further monitor the SF–272 and, when necessary, its awards may be obtained upon written continuation sheet, SF–272a. The Fed- notice to the recipient until such time eral awarding agency shall use this re- as the system is brought up to stand- port to monitor cash advanced to re- ard. The Federal awarding agency, in cipients and to obtain disbursement in- obtaining this information, shall com- formation for each agreement with the ply with report clearance requirements recipients. of 5 CFR part 1320. (ii) Federal awarding agencies may (3) Federal awarding agencies are en- require forecasts of Federal cash re- couraged to shade out any line item on quirements in the ‘‘Remarks’’ section any report if not necessary. of the report. (4) Federal awarding agencies may (iii) When practical and deemed nec- accept the identical information from essary, Federal awarding agencies may the recipients in machine readable for- require recipients to report in the ‘‘Re- mat or computer printouts or elec- marks’’ section the amount of cash ad- tronic outputs in lieu of prescribed for- vances received in excess of three days. mats.
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(5) Federal awarding agencies may (e) The Federal awarding agency, the provide computer or electronic outputs Inspector General, Comptroller Gen- to recipients when such expedites or eral of the United States, or any of contributes to the accuracy of report- their duly authorized representatives, ing. have the right of timely and unre- stricted access to any books, docu- § 2543.53 Retention and access re- ments, papers, or other records of re- quirements for records. cipients that are pertinent to the (a) This section sets forth require- awards, in order to make audits, ex- ments for record retention and access aminations, excerpts, transcripts and to records for awards to recipients. copies of such documents. This right Federal awarding agencies shall not also includes timely and reasonable ac- impose any other record retention or cess to a recipient’s personnel for the access requirements upon recipients. purpose of interview and discussion re- (b) Financial records, supporting doc- lated to such documents. The rights of uments, statistical records, and all access in this paragraph are not lim- other records pertinent to an award ited to the required retention period, shall be retained for a period of three but shall last as long as records are re- years from the date of submission of tained. the final expenditure report or, for (f) Unless required by statute, no awards that are renewed quarterly or Federal awarding agency shall place restrictions on recipients that limit annually, from the date of the submis- public access to the records of recipi- sion of the quarterly or annual finan- ents that are pertinent to an award, ex- cial report, as authorized by the Fed- cept when the Federal awarding agency eral awarding agency. The only excep- can demonstrate that such records tions are the following: shall be kept confidential and would (1) If any litigation, claim, or audit is have been exempted from disclosure started before the expiration of the 3- pursuant to the Freedom of Informa- year period, the records shall be re- tion Act (5 U.S.C. 552) if the records tained until all litigation, claims or had belonged to the Federal awarding audit findings involving the records agency. have been resolved and final action (g) Indirect cost rate proposals, cost taken. allocations plans, etc. Paragraphs (g)(1) (2) Records for real property and and (g)(2) apply to the following types equipment acquired with Federal funds of documents, and their supporting shall be retained for 3 years after final records: indirect cost rate computa- disposition. tions or proposals, cost allocation (3) When records are transferred to or plans, and any similar accounting com- maintained by the Federal awarding putations of the rate at which a par- agency, the 3-year retention require- ticular group of costs is chargeable ment is not applicable to the recipient. (such as computer usage chargeback (4) Indirect cost rate proposals, cost rates or composite fringe benefit allocations plans, etc. as specified in rates). paragraph (g) of this section. (1) If submitted for negotiation. If (c) Copies of original records may be the recipient submits to the Federal substituted for the original records if awarding agency or the subrecipient authorized by the Federal awarding submits to the recipient the proposal, agency. plan, or other computation to form the (d) The Federal awarding agency basis for negotiation of the rate, then shall request transfer of certain the 3-year retention period for its sup- records to its custody from recipients porting records starts on the date of when it determines that the records such submission. possess long term retention value. (2) If not submitted for negotiation. However, in order to avoid duplicate If the recipient is not required to sub- record keeping, a Federal awarding mit to the Federal awarding agency or agency may make arrangements for re- the subrecipient is not required to sub- cipients to retain any records that are mit to the recipient the proposal, plan, continuously needed for joint use. or other computation for negotiation
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purposes, then the 3-year retention pe- award, whether stated in a Federal riod for the proposal, plan, or other statute, regulation, assurance, applica- computation and its supporting records tion, or notice of award, the Federal starts at the end of the fiscal year (or awarding agency may, in addition to other accounting period) covered by imposing any of the special conditions the proposal, plan, or other computa- outlined in Section § 2543.14, take one tion. or more of the following actions, as ap- propriate in the circumstances. TERMINATION AND EVALUATION (1) Temporarily withhold cash pay- ments pending correction of the defi- § 2543.60 Purpose of termination and ciency by the recipient or more severe enforcement. enforcement action by the Federal Sections § 2543.61 and § 2543.62 set awarding agency. forth uniform suspension, termination (2) Disallow (that is, deny both use of and enforcement procedures. funds and any applicable matching credit for) all or part of the cost of the § 2543.61 Termination. activity or action not in compliance. (a) Awards may be terminated in (3) Wholly or partly suspend or ter- whole or in part only if: minate the current award. (1) By the Federal awarding agency, (4) Withhold further awards for the if a recipient materially fails to com- project or program. ply with the terms and conditions of an (5) Take other remedies that may be award, legally available. (2) By the Federal awarding agency (b) Hearings and appeals. In taking with the consent of the recipient, in an enforcement action, the awarding which case the two parties shall agree agency shall provide the recipient an upon the termination conditions, in- opportunity for hearing, appeal, or cluding the effective date and, in the other administrative proceeding to case of partial termination, the portion which the recipient is entitled under to be terminated, or any statute or regulation applicable to (3) By the recipient upon sending to the action involved. the Federal awarding agency written (c) Effects of suspension and termi- notification setting forth the reasons nation. Costs of a recipient resulting for such termination, the effective from obligations incurred by the re- date, and, in the case of partial termi- cipient during a suspension or after nation, the portion to be terminated. termination of an award are not allow- However, if the Federal awarding agen- able unless the awarding agency ex- cy determines in the case of partial pressly authorizes them in the notice termination that the reduced or modi- of suspension or termination or subse- fied portion of the grant will not ac- quently. Other recipient costs during complish the purposes for which the suspension or after termination which grant was made, it may terminate the are necessary and not reasonably grant in its entirety under either para- avoidable are allowable if: graphs (a) (1) or (2) of this section. (1) The costs result from obligations (b) If costs are allowed under an which were properly incurred by the re- award, the responsibilities of the re- cipient before the effective date of sus- cipient referred to in paragraph pension or termination, are not in an- § 2543.71(a), including those for property ticipation of it, and in the case of a ter- management as applicable, shall be mination, are noncancellable, and considered in the termination of the (2) The costs would be allowable if award, and provision shall be made for the award were not suspended or ex- continuing responsibilities of the re- pired normally at the end of the fund- cipient after termination, as appro- ing period in which the termination priate. takes effect. (d) Relationship to debarment and § 2543.62 Enforcement. suspension. The enforcement remedies (a) Remedies for noncompliance. If a identified in this section, including recipient materially fails to comply suspension and termination, do not with the terms and conditions of an preclude a recipient from being subject
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to debarment and suspension under shall retain the right to recover an ap- E.O.s 12549 and 12689 and the Federal propriate amount after fully consid- awarding agency implementing regula- ering the recommendations on dis- tions (see Section § 2543.13). allowed costs resulting from the final audit. Subpart D—After-the-Award § 2543.72 Subsequent adjustments and Requirements continuing responsibilities. § 2543.70 Purpose. (a) The closeout of an award does not Sections § 2543.71 through § 2543.73 affect any of the following: contain closeout procedures and other (1) The right of the Federal awarding procedures for subsequent disallow- agency to disallow costs and recover ances and adjustments. funds on the basis of a later audit or other review. § 2543.71 Closeout procedures. (2) The obligation of the recipient to (a) Recipients shall submit, within 90 return any funds due as a result of calendar days after the date of comple- later refunds, corrections, or other tion of the award, all financial, per- transactions. formance, and other reports as required (3) Audit requirements in Section by the terms and conditions of the § 2543.26. award. The Federal awarding agency (4) Property management require- may approve extensions when re- ments in Sections § 2543.31 through quested by the recipient. § 2543.37. (b) Unless the Federal awarding agen- (5) Records retention as required in cy authorizes an extension, a recipient Section § 2543.53. shall liquidate all obligations incurred (b) After closeout of an award, a rela- under the award not later than 90 cal- tionship created under an award may endar days after the funding period or be modified or ended in whole or in the date of completion as specified in part with the consent of the Federal the terms and conditions of the award awarding agency and the recipient, or in agency implementing instruc- provided the responsibilities of the re- tions. cipient referred to in paragraph (c) The Federal awarding agency § 2543.73(a), including those for property shall make prompt payments to a re- management as applicable, are consid- cipient for allowable reimbursable ered and provisions made for con- costs under the award being closed out. tinuing responsibilities of the recipi- (d) The recipient shall promptly re- ent, as appropriate. fund any balances of unobligated cash that the Federal awarding agency has § 2543.73 Collection of amounts due. advanced or paid and that is not au- (a) Any funds paid to a recipient in thorized to be retained by the recipient excess of the amount to which the re- for use in other projects. OMB Circular cipient is finally determined to be enti- A–129 governs unreturned amounts that tled under the terms and conditions of become delinquent debts. the award constitute a debt to the Fed- (e) When authorized by the terms and eral Government. If not paid within a conditions of the award, the Federal reasonable period after the demand for awarding agency shall make a settle- payment, the Federal awarding agency ment for any upward or downward ad- may reduce the debt by: justments to the Federal share of costs (1) Making an administrative offset after closeout reports are received. against other requests for reimburse- (f) The recipient shall account for ments, any real and personal property ac- (2) Withholding advance payments quired with Federal funds or received otherwise due to the recipient, from the Federal Government in ac- (3) Taking other action permitted by cordance with Sections § 2543.31 statute, or through § 2543.37. (b) Except as otherwise provided by (g) In the event a final audit has not law, the Federal awarding agency shall been performed prior to the closeout of charge interest on an overdue debt in an award, the Federal awarding agency accordance with 4 CFR Chapter II,
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‘‘Federal Claims Collection Stand- cable to Contracts Governing Federally ards.’’ Financed and Assisted Construction’’). Under this Act, contractors shall be re- Subpart E—Statutory Compliance quired to pay wages to laborers and mechanics at a rate not less than the § 2543.80 Contract provisions. minimum wages specified in a wage de- All contracts, awarded by a recipient termination made by the Secretary of including small purchases, shall con- Labor. In addition, contractors shall be tain the following provisions as appli- required to pay wages not less than cable: once a week. The recipient shall place a copy of the current prevailing wage § 2543.81 Equal employment oppor- determination issued by the Depart- tunity. ment of Labor in each solicitation and All contracts shall contain a provi- the award of a contract shall be condi- sion requiring compliance with E.O. tioned upon the acceptance of the wage 11246, ‘‘Equal Employment Oppor- determination. The recipient shall re- tunity,’’ as amended by E.O. 11375, port all suspected or reported viola- ‘‘Amending Executive Order 11246 Re- tions to the Federal awarding agency. lating to Equal Employment Oppor- tunity,’’ and as supplemented by regu- § 2543.84 Contract Work Hours and lations at 41 CFR part 60, ‘‘Office of Safety Standards Act. Federal Contract Compliance Pro- Where applicable, all contracts grams, Equal Employment Oppor- awarded by recipients in excess of $2000 tunity, Department of Labor.’’ for construction contracts and in ex- cess of $2500 for other contracts that § 2543.82 Copeland ‘‘Anti-Kickback’’ involve the employment of mechanics Act. or laborers shall include a provision for All contracts and subgrants in excess compliance with Sections 102 and 107 of of $2000 for construction or repair the Contract Work Hours and Safety awarded by recipients and subrecipi- Standards Act (40 U.S.C. 327–333), as ents shall include a provision for com- supplemented by Department of Labor pliance with the Copeland ‘‘Anti-Kick- regulations (29 CFR part 5). Under Sec- back’’ Act (18 U.S.C. 874), as supple- tion 102 of the Act, each contractor mented by Department of Labor regu- shall be required to compute the wages lations (29 CFR part 3, ‘‘Contractors of every mechanic and laborer on the and Subcontractors on Public Building basis of a standard work week of 40 or Public Work Financed in Whole or hours. Work in excess of the standard in Part by Loans or Grants from the work week is permissible provided that United States’’). The Act provides that the worker is compensated at a rate of each contractor or subrecipient shall not less than 11⁄2 times the basic rate of be prohibited from inducing, by any pay for all hours worked in excess of 40 means, any person employed in the hours in the work week. Section 107 of construction, completion, or repair of the Act is applicable to construction public work, to give up any part of the work and provides that no laborer or compensation to which he is otherwise mechanic shall be required to work in entitled. The recipient shall report all surroundings or under working condi- suspected or reported violations to the tions which are unsanitary, hazardous Federal awarding agency. or dangerous. These requirements do not apply to the purchases of supplies § 2543.83 Davis-Bacon Act. or materials or articles ordinarily When required by Federal program available on the open market, or con- legislation, all construction contracts tracts for transportation or trans- awarded by the recipients and sub- mission of intelligence. recipients of more than $2000 shall in- clude a provision for compliance with § 2543.85 Rights to inventions made the Davis-Bacon Act (40 U.S.C. 276a to under a contract or agreement. a–7) and as supplemented by Depart- Contracts or agreements for the per- ment of Labor regulations (29 CFR part formance of experimental, develop- 5, ‘‘Labor Standards Provisions Appli- mental, or research work shall provide
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for the rights of the Federal Govern- contractors declared ineligible under ment and the recipient in any resulting statutory or regulatory authority invention in accordance with 37 CFR other than E.O. 12549. Contractors with part 401, ‘‘Rights to Inventions Made awards that exceed the small purchase by Nonprofit Organizations and Small threshold shall provide the required Business Firms Under Government certification regarding its exclusion Grants, Contracts and Cooperative status and that of its principal employ- Agreements,’’ and any implementing ees. regulations issued by the awarding agency. PART 2544—SOLICITATION AND § 2543.86 Clean Air Act and the Fed- ACCEPTANCE OF DONATIONS eral Water Pollution Control Act. Sec. Contracts and subgrants of amounts 2544.100 What is the purpose of this part? in excess of $100,000 shall contain a pro- 2544.105 What is the legal authority for so- vision that requires the recipient to liciting and accepting donations to the agree to comply with all applicable Corporation? standards, orders or regulations issued 2544.110 What definitions apply to terms pursuant to the Clean Air Act (42 used in this part? 2544.115 Who may offer a donation? U.S.C. 7401 et seq.) and the Federal 2544.120 What personal services from a vol- Water Pollution Control Act as amend- unteer may be solicited and accepted? ed (33 U.S.C. 1251 et seq.). Violations 2544.125 Who has the authority to solicit shall be reported to the Federal award- and accept or reject a donation? ing agency and the Regional Office of 2544.130 How will the Corporation determine the Environmental Protection Agency whether to solicit or accept a donation? (EPA). 2544.135 How should an offer of a donation be made? § 2543.87 Byrd anti-lobbying amend- 2544.140 How will the Corporation accept or ment. reject an offer? 2544.145 What will be done with property Contractors who apply or bid for an that is not accepted? award of $100,000 or more shall file the 2544.150 How will accepted donations be re- required certification. Each tier cer- corded and used? tifies to the tier above that it will not AUTHORITY: 42 U.S.C. 12501 et seq. and has not used Federal appropriated SOURCE: 60 FR 28355, May 31, 1995, unless funds to pay any person or organiza- otherwise noted. tion for influencing or attempting to influence an officer or employee of any § 2544.100 What is the purpose of this agency, a member of Congress, officer part? or employee of Congress, or an em- This part establishes rules to ensure ployee of a member of Congress in con- that the solicitation, acceptance, hold- nection with obtaining any Federal ing, administration, and use of prop- contract, grant or any other award erty and services donated to the Cor- covered by 31 U.S.C. 1352. Each tier poration: shall also disclose any lobbying with (a) Will not reflect unfavorably upon non-Federal funds that takes place in the ability of the Corporation or its of- connection with obtaining any Federal ficers and employees, to carry out their award. Such disclosures are forwarded official duties and responsibilities in a from tier to tier up to the recipient. fair and objective manner; and (b) Will not compromise the integrity § 2543.88 Debarment and suspension. of the Corporation’s programs or its of- No contract shall be made to parties ficers and employees involved in such listed on the General Services Admin- programs. istration’s List of Parties Excluded from Federal Procurement or Non- § 2544.105 What is the legal authority procurement Programs in accordance for soliciting and accepting dona- with E.O.s 12549 and 12689, ‘‘Debarment tions to the Corporation? and Suspension.’’ This list contains the Section 196(a) of the National and names of parties debarred, suspended, Community Service Act of 1990, as or otherwise excluded by agencies, and amended (42 U.S.C. 12651g(a)).
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§ 2544.110 What definitions apply to § 2544.120 What personal services from terms used in this part? a volunteer may be solicited and ac- cepted? (a) Donation means a transfer of money, property, or services to or for A donation in the form of personal the use of the Corporation by gift, de- services from a volunteer may be solic- vise, bequest, or other means. ited and accepted to assist the Corpora- (b) Solicitation means a request for a tion in carrying out its duties. How- donation. ever, volunteers may not perform an (c) Volunteer means an individual who inherently governmental function. donates his/her personal service to the § 2544.125 Who has the authority to so- Corporation to assist the Corporation licit and accept or reject a dona- in carrying out its duties under the na- tion? tional service laws, but who is not a participant in a program funded or The Chief Executive Officer (CEO) of sponsored by the Corporation under the the Corporation has the authority to National and Community Service Act solicit, accept, or reject a donation of- of 1990, as amended. Such individual is fered to the Corporation and to make not subject to provisions of law related the determinations described in to Federal employment, including § 2544.130 (c) and (d). The CEO may dele- those relating to hours of work, rates gate this authority in writing to other of compensation, leave, unemployment officials of the Corporation. compensation and Federal employee § 2544.130 How will the Corporation benefits, except that— determine whether to solicit or ac- (1) Volunteers will be considered Fed- cept a donation? eral employees for the purpose of the (a) The Corporation will solicit and tort claims provisions of 28 U.S.C. accept a donation only for the purpose chapter 171; of furthering the mission and goals of (2) Volunteers will be considered Fed- the Corporation. eral employees for the purposes of 5 (b) In order to be accepted, the dona- U.S.C. chapter 81, subchapter I, relat- tion must be economically advan- ing to compensation to Federal em- tageous to the Corporation, consid- ployees for work injuries; and ering foreseeable expenditures for mat- (3) Volunteers will be considered spe- ters such as storage, transportation, cial Government employees for the maintenance, and distribution. purpose of ethics and public integrity (c) An official or employee of the under the provisions of 18 U.S.C. chap- Corporation will not solicit or accept a ter 11, part I, and 5 CFR chapter XVI, donation if the solicitation or accept- subchapter B. ance would present a real or apparent (d) Inherently governmental function conflict of interest. An apparent con- means any activity that is so inti- flict of interest is presented if the so- mately related to the public interest as licitation or acceptance would raise a to mandate performance by an officer question in the mind of a reasonable or employee of the Federal Govern- person, with knowledge of the relevant ment, including an activity that re- facts, about the integrity of the Cor- quires either the exercise of discretion poration’s programs or operations. in applying the authority of the Gov- (d) The Corporation will determine ernment or the use of value judgment whether a conflict of interest exists by in making a decision for the Govern- considering any business relationship, ment. financial interest, litigation, or other factors that may indicate such a con- § 2544.115 Who may offer a donation? flict. Donations of property or vol- Anyone, including an individual, untary services may not be solicited or group of individuals, organization, cor- accepted from a source which: poration, or association may offer a do- (1) Is a party to a grant or contract nation to the Corporation. with the Corporation or is seeking to do business with the Corporation;
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(2) Has pecuniary interests that may dorses the donor’s products or services be substantially affected by perform- or appears to benefit the financial in- ance or nonperformance of the Cor- terests or business goals of the donor. poration; or (b) If a purpose or condition for the (3) Is an organization a majority of use of the donation specified by the of- whose members are described in para- feror can not be accommodated, the graphs (d)(1) and (2) of this section. Corporation may request the offeror to (e) Any solicitation or offer of a do- modify the terms of the donation. nation that raises a question or con- cern of a potential, real, or apparent § 2544.145 What will be done with conflict of interest will be forwarded to property that is not accepted? the Corporation’s Designated Ethics In general, property offered to the Official for an opinion. Corporation but not accepted will be returned to the offeror. If the offeror is § 2544.135 How should an offer of a do- unknown or the donation would spoil if nation be made? returned, the property will either be (a) In general, an offer of donation disposed of in accordance with Federal should be made by providing a letter of Property Management regulations (41 tender that offers a donation. The let- CFR chapter 101) or given to local char- ter should be directed to an official au- ities determined by the Corporation. thorized to accept donations, describe the property or service offered, and § 2544.150 How will accepted dona- specify any purpose for, or condition tions be recorded and used? on, the use of the donation. (a) All accepted donations of money (b) If an offer is made orally, the Cor- and other property will be reported to poration will send a letter of acknowl- the Chief Financial Officer (CFO) of the edgment to the offeror. If the donor is Corporation for recording and appro- anonymous, the Corporation will pre- priate disposition. pare a memorandum to the file ac- (b) All donations of personal services knowledging receipt of a tendered do- of a volunteer will be reported to the nation and describing the donation in- CFO and to the Personnel Division of cluding any special terms or condi- the Corporation for processing and doc- tions. umentation. (c) Only those employees or officials (c) Donations not designated for a with expressed notice of authority may particular purpose will be used for an accept donations on behalf of the Cor- authorized purpose described in poration. If an offer is directed to an § 2544.125. unauthorized employee or official of (d) Property will be used as nearly as the Corporation, that person must im- possible in accordance with the terms mediately forward the offer to an ap- of the donation. If no terms are speci- propriate official for disposition. fied, or the property can no longer be used for its original purpose, the prop- § 2544.140 How will the Corporation erty will be converted to another au- accept or reject an offer? thorized use or sold in accordance with (a) In general, the Corporation will Federal regulations. The proceeds of respond to an offer of a donation in the sale will be used for an authorized writing and include in the response: purpose described in § 2544.125. (1) An acknowledgment of receipt of the offer; PART 2550—REQUIREMENTS AND (2) A brief description of the offer and GENERAL PROVISION FOR STATE any purpose or condition that the of- COMMISSIONS, ALTERNATIVE feror specified for the use of the dona- ADMINISTRATIVE ENTITIES AND tion; (3) A statement either accepting or TRANSITIONAL ENTITIES rejecting the donation; and Sec. (4) A statement informing the donor 2550.10 What is the purpose of this part? that any acceptance of services or 2550.20 Definitions. property can not be used in any man- 2550.30 How does a State decide which of the ner, directly or indirectly, that en- three entities to establish?
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2550.40 How does a State get Corporation the purposes of this part, a State agen- authorization and approval for the entity cy which has been authorized by the it has chosen? Corporation to perform State Commis- 2550.50 What are the composition require- ments and other requirements, restric- sion duties is called a ‘‘Transitional tions or guidelines for State Commis- Entity’’.) sions? (c) The Corporation recognizes that 2550.60 From which of the State Commis- establishing and operating State Com- sion requirements is an Alternative Ad- missions involves significant effort and ministrative Entity exempt? cost. Therefore, grants of between 2550.70 What are the composition or other $125,000 and $750,000 will be distributed requirements for Transitional Entities? 2550.80 What are the duties of the State en- to the States to cover the Federal tities? share of operating the State Commis- 2550.90 Are there any restrictions on the ac- sions, AAEs, or Transitional Entities. tivities of the members of State Commis- (For the purposes of this part, notwith- sions or Alternative Administrative En- standing the definition of ‘‘State’’ that tities? appears in the National and Commu- 2550.100 Do State entities or their members nity Service Act of 1990, as amended incur any risk of liability? 2550.110 What money will be available from (the Act), ‘‘State’’ means the 50 States, the Corporation to assist in establishing the District of Columbia, and Puerto and operating a State Commission, Al- Rico.) In order to receive any Corpora- ternative Administrative Entity, or tion grant, however, a State must com- Transitional Entity? mit to establishing a State Commis- AUTHORITY: 42 U.S.C. 12501 et seq. sion or AAE as soon as possible. (d) The purpose of this part is to pro- SOURCE: 58 FR 60981, Nov. 18, 1993, unless vide States with the basic information otherwise noted. essential to participate in the subtitle § 2550.10 What is the purpose of this C programs. Of equal importance, this part? part gives an explanation of the pre- (a) The Corporation for National and liminary steps States must take in Community Service (the Corporation) order to receive money from the Cor- seeks to meet the Nation’s pressing poration. This part also offers guidance human, educational, environmental on which of the three State entities and public safety needs through service States should seek to establish, and it and to reinvigorate the ethic of civic explains the composition requirements, responsibility across the Nation. If the duties, responsibilities, restrictions, Corporation is to meet these goals, it is and other relevant information regard- critical for each of the States to be ac- ing State Commissions, AAEs, and ap- tively involved. proved Transitional Entities. (b) The Corporation will distribute nearly $200 million in grants under sub- § 2550.20 Definitions. title C of the Act (hereinafter, ‘‘sub- (a) AAE. Alternative Administrative title C’’) to help establish, operate and Entity. expand national service programs. At (b) Administrative costs. As used in least two-thirds of these funds will go this part, those costs incurred by a to the States, which will then subgrant State in the establishing and operating to State agencies or local programs. a State entity; the specific administra- However, in order to be eligible to tive costs for which a Corporation ad- apply for program funding and/or ap- ministrative grant may be used as de- proved national service positions with fined in the Uniform Administrative an educational award, each State is re- Requirements for Grants and Agree- quired to establish a State Commission ments to State and Local Govern- on National and Community Service to ments. administer the State program (c) Alternative Administrative Entity grantmaking process and to develop a (AAE). A State entity approved by the State plan. The Corporation may, in Corporation to perform the duties of a some instances approve Alternative State Commission, including devel- Administrative Entities (AAEs) or oping a three-year comprehensive na- allow a State agency to perform the tional service plan, preparing applica- duties of the State Commission. (For tions to the Corporation for funding
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and approved national service posi- (i) Service-learning. A method under tions, and administering service pro- which students or participants learn gram grants; in general, an AAE must and develop through active participa- meet the same composition and other tion in thoughtfully organized service requirements as a State Commission, that is conducted in and meets the but may receive waivers from the Cor- needs of a community and that is co- poration to accommodate State laws ordinated with an elementary school, that prohibit inquiring as to the polit- secondary school, institution of higher ical affiliation of members, to have education, or community service pro- more than 25 voting members (the gram, and with the community; serv- maximum for a State Commission), ice-learning is integrated into and en- and/or to select members in a manner hances the academic curriculum of the other than selection by the chief execu- students, or the educational compo- tive officer of the State. nents of the community service pro- (d) Approved National Service Position. gram in which the participants are en- A national service program position for rolled, and it provides time for the stu- which the Corporation has approved dents or participants to reflect on the the provision of a national service edu- service experience. cational award as one of the benefits to (j) Service learning programs. The to- be provided for successful completion tality of the service learning programs of a term of service. receiving assistance from the Corpora- (e) Corporation. As used in this part, tion under subtitle B of the Act, either the Corporation for National and Com- directly or through a grant-making en- munity Service established pursuant to tity; this includes school-based, com- the National and Community Service munity-based, and higher education- Trust Act of 1993 (42 U.S.C. 12651). based service-learning programs. (f) Corporation representative. Each of (k) State. As used in this part, the the individuals employed by the Cor- term State refers to each of the 50 poration for National and Community States, the District of Columbia, and Service to assist the States in carrying the Commonwealth of Puerto Rico. out national and community service (l) State Commission. A bipartisan or activities; the Corporation representa- nonpartisan State entity, approved by tive must be included as a member of the Corporation, consisting of 15–25 the State Commission or AAE. members (appointed by the chief execu- (g) Indian tribe. (1) An Indian tribe, tive officer of the State), that is re- band, nation, or other organized group sponsible for developing a comprehen- or community, including— sive national service plan, assembling (i) Any Native village, as defined in applications for funding and approved section 3(c) of the Alaska Native national service positions, and admin- Claims Settlement Act (43 U.S.C. istering national and community serv- 1602(c)), whether organized tradition- ice programs in the State. ally or pursuant to the Act of June 18, (m) State Educational Agency. The 1934 (commonly known as the ‘‘Indian same meaning given to such term in Reorganization Act’’; 48 Stat. 984, section 1471(23) of the Elementary and chapter 576; 25 U.S.C. 461 et seq.); and Secondary Education Act of 1965 (20 (ii) Any Regional Corporation or Vil- U.S.C. 2891(23)). lage Corporation as defined in the Alas- (n) State entity. A State Commission, ka Native Claims Settlement Act (43 AAE, or Transitional Entity that has U.S.C. 1602 (g) or (j)), that is recognized been authorized by the Corporation to as eligible for the special programs and perform the duties of a State Commis- services provided by the United States sion. under Federal law to Indians because of (o) Transitional Entity. An existing their status as Indians; and State agency which has been author- (2) Any tribal organization con- ized by the Corporation to perform the trolled, sanctioned, or chartered by an duties of a State Commission; the Cor- entity described in paragraph (g)(1) of poration will not authorize the use of a this section. Transitional Entity unless a State is (h) Older adult. An individual 55 years demonstrably unable to establish a of age or older. State Commission or AAE.
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§ 2550.30 How does a State decide § 2550.40 How does a State obtain Cor- which of the three entities to estab- poration authorization and ap- lish? proval for the entity it has chosen? (a) Although each State’s chief exec- (a) To receive approval of a State utive officer has the authority to select Commission or AAE, a State must for- an administrative option, the Corpora- mally establish an entity that meets tion strongly encourages States to es- the corresponding composition, mem- bership, authority, and duty require- tablish State Commissions which meet ments of this part. (For the AAE, a the requirements in this part as quick- State must demonstrate why it is im- ly as possible. The requirements for possible or unreasonable to estalbish a State Commissions were established to State Commission; an approved AAE, try to create informed and effective en- however, has the same rights and re- tities. sponsibilities as a State Commission.) (b) The Corporation recognizes that Once the entity is established, the some States, for legal or other legiti- State must provide written notice—in mate reasons, may not be able to meet a format to be prescribed by the Cor- all of the requirements of the State poration—to the chief executive officer Commissions. The AAE is essentially of the Corporation of the composition, the same as a State Commission; how- membership, and authorities of the ever, it may be exempt from some of State Commission or AAE and explain the State Commission requirements. A how the entity will perform its duties State that cannot meet one of the and functions. Further, the State must waivable requirements of the State agree to, first, request approval from Commission (as explained in § 2550.60), the Corporation for any subsequent changes in the composition or duties of and which can demonstrate this to the a State Commission or AAE the State Corporation, should seek to establish may wish to make, and, second, to an AAE. comply with any future changes in Cor- (c) Over the long term, States that poration requirements with regard to wish to participate in the Corpora- the composition or duties of a State tion’s grant programs must have either Commission or AAE. If a State meets a State Commission or an AAE ap- the applicable requirements, the Cor- proved by the Corporation. Some poration will approve the State Com- States, due to legal or other procedural mission or AAE. requirements, may be unable to estab- (b) If the Corporation rejects a State lish one of these two entities in time to application for approval of a State participate in fiscal years 1994 or 1995. Commission or AAE because that ap- Therefore, during the 27-month period plication does not meet one or more of beginning on September 21, 1993 and the requirements of §§ 2250.50 or 2550.60, ending on December 21, 1995, a State it will notify the State of the reasons may apply to the Corporation for au- for rejection and offer assistance to thorization to use a Transitional Enti- make any necessary changes. The Cor- ty. poration will reconsider revised appli- cations within 14 working days of re- (d) A State should consider applying submission. to have a Transitional Entity approved (c) To receive approval to use an ex- only if it can demonstrate that it is isting State agency as a Transitional impossible, for legal or procedural rea- Entity, a State must, first, satisfac- sons, to establish a State Commission torily demonstrate why it is unable to or AAE in time to participate in the establish a State Commission or AAE, national service programs. and, second, explain how it will carry (e) Regardless of which entity a State out the duties of the State Commission employs, each State is required to so- and conduct a broad-based, open and licit broad-based, local input in an inclusive planning process in a non-po- open, inclusive, non-political planning litical manner. In addition, in order to process. receive any administrative funds from
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the Corporation, a State must commit (8) An individual with expertise in to establish a State Commission or the educational, training, and develop- AAE as soon as possible, and prior to ment needs of youth, particularly dis- the expiration of the 27-month transi- advantaged youth; and tion period ending on December 21, (9) An individual with experience in 1995. Administrative grants will only promoting the involvement of older be given for up to 12-month periods. If adults (age 55 and older) in service and a Transitional Entity wishes to receive volunteerism. an additional administrative grant sub- (c) Appointment of other voting mem- sequent to the expiration of an initial 12-month administrative grant, that bers of a State Commission. Any remain- State entity must demonstrate satis- ing voting members of a State Com- factory progress toward establishment mission are appointed at the discretion of a State Commission or AAE. of the chief executive officer of the State; however, although this list § 2550.50 What are the composition re- should not be construed as exhaustive, quirements and other require- the Corporation suggests the following ments, restrictions or guidelines for types of individuals: State Commissions? (1) Educators, including representa- The following provisions apply to tives from institutions of higher edu- both State Commissions and AAEs, ex- cation and local education agencies; cept that AAEs may obtain waivers (2) Experts in the delivery of human, from certain provisions as explained in educational, environmental, or public § 2550.60. (a) Size of the State Commission and safety services to communities and terms of State Commission members. The persons; chief executive officer of a State must (3) Representatives of Indian tribes; appoint 15–25 voting members to the (4) Out-of-school or at-risk youth; State Commission (in addition to any and non-voting members he or she may ap- (5) Representatives of programs that point). Voting members of a State are administered or receive assistance Commission must be appointed to re- under the Domestic Volunteer Service newable three-year terms, except that Act of 1973, as amended (DVSA) (42 initially a chief executive officer must U.S.C. 4950 et seq.). appoint a third of the members to one- (d) Appointment of ex officio, non-vot- year terms and another third of the ing members of a State Commission. The members to two-year terms. chief executive officer of a State may (b) Required voting members on a State appoint as ex officio, non-voting mem- Commission. A member may represent bers of the State Commission officers none, one, or more than one category, or employees of State agencies oper- but each of the following categories ating community service, youth serv- must be represented: (1) A representative of a community- ice, education, social service, senior based agency or organization in the service, or job training programs. State; (e) Other composition requirements. To (2) The head of the State education the extent possible, the chief executive agency or his or her designee; officer of a State shall ensure that the (3) A representative of local govern- membership of the State Commission ment in the State; is balanced with respect to race, eth- (4) A representative of local labor or- nicity, age, gender, and disability char- ganizations in the State; acteristics. Not more than 50% plus (5) A representative of business; one of the members of a State Commis- (6) An individual between the ages of sion may be from the same political 16 and 25, inclusive, who is a partici- party. In addition, the number of vot- pant or supervisor of a service program ing members of a State Commission for school-age youth, or of a campus- who are officers or employees of the based or national service program; State may not exceed 25% of the total (7) A representative of a national membership of that State Commission. service program;
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(f) Selection of Chairperson. The chair- The three criteria which may be person is elected by the voting mem- waived for an AAE are as follows: bers of a State Commission. To be eli- (1) The requirement that a State’s chief gible to serve as chairperson, an indi- executive officer appoint the members of a vidual must be an appointed, voting State Commission. If a State can offer a member of a State Commission. compelling reason why some or all of (g) Vacancies. If a vacancy occurs on the State Commission members should a State Commission, a new member be appointed by the State legislature must be appointed by the chief execu- or by some other appropriate means, tive officer of the State to serve for the the Corporation may grant a waiver. remainder of the term for which the (2) The requirement that a State Com- predecessor of such member was ap- mission have 15–25 members. If a State pointed. The vacancy will not affect compellingly demonstrates why its the power of the remaining members to commission should have a larger num- execute the duties of the Commission. ber of members, the Corporation may (h) Compensation of State Commission grant a waiver. members. A member of a State Commis- (3) The requirement that not more than 50% plus one of the State Commission’s sion may not receive compensation for voting members be from the same political his or her services, but may be reim- party. This requirement was estab- bursed (at the discretion of the State) lished to prevent State Commissions for travel and daily expenses in the from being politically motivated or same manner as employees intermit- controlled; however, in some States it tently serving the State. is illegal to require prospective mem- (i) The role of the Corporation rep- bers to provide information about po- resentative. The Corporation will des- litical party affiliation. For this or an- ignate one of its employees to serve as other compelling reason, the Corpora- a representative to each State or group tion may grant a waiver. of States. This individual must be in- (b) Again, any time the Corporation cluded as an ex officio member on the grants one or more of these waivers for State Commission, and may be des- a State entity, that entity becomes an ignated as a voting member by the AAE; in all other respects an AAE is chief executive officer of a State. How- the same as a State Commission, hav- ever, because the Corporation wishes to ing the same requirements, rights, du- encourage State autonomy in the de- ties and responsibilities. sign and development of the State plan and in State national service programs, § 2550.70 What are the composition or States are discouraged from allowing other requirements for Transitional the Corporation representative to vote. Entities? In general, the Corporation representa- Because a Transitional Entity is by tive will be responsible for assisting definition contained within a State States in carrying out national service agency, there are no membership or activities. composition requirements. If a State takes the necessary steps to obtain ap- § 2550.60 From which of the State proval for a Transitional Entity (listed Commission requirements is an Al- in § 2550.40(c)), it meets the require- ternative Administrative Entity ex- ments of a Transitional Entity. empt? (a) An AAE is not automatically ex- § 2250.80 What are the duties of the empt from any of the requirements State entities? that govern State Commissions. How- The duties of each of the three eligi- ever, there are three specific State ble State entities—States Commis- Commission requirements which the sions, AAEs and Transitional Enti- Corporation may waive if a State can ties—are precisely the same. The du- demonstrate that one or more of them ties listed in this section apply to all is impossible or unreasonable to meet. three, and they are jointly referred to If the Corporation waives a State Com- as ‘‘State entities.’’ Functions de- mission requirement for a State entity, scribed in paragraphs (a) through (d) of that State entity is, de facto, an AAE. this section require policymaking and
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may not be delegated to another State subtitle B school-based service learn- agency or nonprofit organization. ing programs. Functions described in paragraphs (e) (2) The State entity may apply to the through (j) of this section are non-pol- Corporation to receive funding for icymaking and may be delegated to an- community-based subtitle programs other State agency or nonprofit organi- after coordination with the State Edu- zation. The duties are as follows: cational Agency. (a) Development of a three-year com- (d) Administration of the grants pro- prehensive national and community serv- gram. After subtitle C and community- ice plan and establishment of State prior- based subtitle B funds are awarded, ities. The State entity must develop States entities will be responsible for and annually update a Statewide plan administering the grants and over- for national service that is consistent seeing and monitoring the performance with the Corporation’s broad goals of and progress of funded programs. meeting human, educational, environ- (e) Evaluation and monitoring. State mental and public safety needs and entities, in concert with the Corpora- that meets the following minimum re- tion, shall be responsible for imple- quirements: menting comprehensive, non-duplica- (1) The plan must be developed tive evaluation and monitoring sys- through an open and public process tems. (such as through regional forums or (f) Technical assistance. The State en- hearings) that provides for maximum tity will be responsible for providing participation and input from national technical assistance to local nonprofit service programs within the State, and organizations and other entities in from other interested members of the planning programs, applying for funds, public. and in implementing and operating (2) The outreach process must, to the high quality programs. States should maximum extent practicable, include encourage proposals from underserved input from representatives of estab- communities. lished State service programs, rep- (g) Program development assistance and resentatives of diverse, broad-based training. The State entity must assist community organizations that serve in the development of subtitle C pro- underserved populations, and other in- grams; such development might in- terested individuals, including young clude staff training, curriculum mate- people; the State entity should do so rials, and other relevant materials and by creating State networks and reg- activities. A description of such pro- istries or by utilizing existing ones. posed assistance must be included in (3) The plan may contain such other the State comprehensive plan referred information as the State Commission to in paragraph (a) of this section. A considers appropriate and must contain State may apply for additional subtitle such other information as the Corpora- C programs training and technical as- tion may require. sistance funds to perform these func- (b) Pre-selection of subtitle C programs tions. The Corporation will issue no- and preparation of application to the Cor- tices of availability of funds with re- poration. Each State must: spect to training and technical assist- (1) Administer a competitive process ance. to select national service programs to (h) Recruitment and placement. The be included in any application to the State entity, as well as the Corpora- Corporation for funding; and tion, will develop mechanisms for re- (2) Prepare an application to the Cor- cruitment and placement of people in- poration to receive funding and/or edu- terested in participating in national cational awards for the programs se- service programs. lected pursuant to paragraph (b)(1) of (i) Benefits. The State entity shall as- this section. sist in the provision of health and child (c) Preparation of Service Learning ap- care benefits to subtitle C program par- plications. (1) The State entity is re- ticipants, as will be specified in the quired to assist the State education regulations implementing the subtitle agency in preparing the application for C programs.
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(j) Activity ineligible for assistance. A for any grant application submitted by State Commission or AAE may not di- an organization for which they are cur- rectly operate or run any national rently, or were within one year of the service program receiving financial as- submission of the application, officers, sistance, in any form, from the Cor- directors, trustees, full-time volun- poration. teers or employees. The restrictions for (k) Make recommendations to the Cor- such individuals are as follows: poration with respect to priorities with- (1) They cannot assist the applying in the State for programs receiving as- organization in preparing the grant ap- sistance under DVSA. plication; (l) Coordination. (1) Coordination with (2) They must recuse themselves other State agencies.—A State entity from the discussions or decisions re- must coordinate its activities with the garding the grant application and any activities of other State agencies that other grant applications submitted to administer Federal financial assistance the Commission or AAE under the programs under the Community Serv- same program (e.g., subtitle B pro- ices Block Grant Act (42 U.S.C. 9901 et grams or subtitle C programs); and seq.) or other appropriate Federal fi- (3) They cannot participate in the nancial assistance programs. oversight, evaluation, continuation, (2) Coordination with volunteer serv- suspension or termination of the grant ice programs.—In general, the State award. entity shall coordinate its functions (b) Exception to achieve a quorum. If (including recruitment, public aware- this general restriction creates a situa- ness, and training activities) with such tion in which a Commission or AAE functions of any division of ACTION, or does not have enough eligible voting the Corporation, that carries out vol- members to achieve a quorum, the unteer service programs in the State. Commission or AAE may involve some Specifically, the State entity may normally-excluded members subject to enter into an agreement with a divi- the following conditions: sion of ACTION or the Corporation to (1) A Commission or AAE may ran- carry out its functions jointly, to per- domly and in a non-discretionary man- form its functions itself, or to assign ner select the number of refused mem- responsibility for its functions to AC- bers necessary to achieve a quorum; TION or the Corporation. (2) Notwithstanding paragraph (b)(1) (3) In carrying out the activities of this section, no Commission or AAE under paragraphs (l) (1) and (2) of this member may, under any cir- section, the parties involved must ex- cumstances, participate in any discus- change information about the pro- sions or decisions regarding a grant ap- grams carried out in the State by the plication submitted by an organization State entity, a division of ACTION or with which he or she is or was affili- the Corporation, as well as information ated according to the definitions in about opportunities to coordinate ac- paragraph (a) of this section; and tivities. (3) If recused members are included so as to achieve quorum, the State § 2550.90 Are there any restrictions on Commission or AAE must document the activities of the members of the event and report to the Corpora- State Commissions or Alternative tion within 30 days of the vote. Administrative Entities? (c) Rule of construction. Paragraph (a) To avoid a conflict of interest (or the of this section shall not be construed appearance of a conflict of interest) re- to limit the authority of any voting garding the provision of assistance or member of the State Commission or approved national service positions, AAE to participate in— members of a State Commission or (1) Discussion of, and hearings and fo- AAE must adhere to the following pro- rums on, the general duties, policies visions: and operations of the Commission or (a) General restriction. Members of AAE, or general program administra- State Commissions and AAEs are re- tion; or stricted in several ways from the grant (2) Similar general matters relating approval and administration process to the Commission or AAE.
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§ 2550.100 Do State entities or their the State Commission or AAE for the members incur any risk of liability? first year for which the State Commis- (a) State liability. Except as provided sion or AAE receives an administrative 1 in paragraph (b) of this section, a State grant under this section. In subse- must agree to assume liability with re- quent years, the Corporation will es- spect to any claim arising out of or re- tablish larger matching requirements sulting from any act or omission by a for States so that by the fifth and sub- member of the State Commission or sequent years of assistance, the Fed- AAE, within the scope of the service of eral share does not exceed 50 percent. that member. (b) Individual liability. A member of PART 2551—SENIOR COMPANION the State Commission or AAE shall PROGRAM have no personal liability with respect to any claim arising out of or resulting Subpart A—General from any act or omission by that mem- Sec. ber, within the scope of the service of 2551.11 What is the Senior Companion Pro- that member. This does not, however, gram? limit personal liability for criminal 2551.12 Definitions. acts or omissions, willful or malicious misconduct, acts or omissions for pri- Subpart B—Eligibility and Responsibilities of vate gain, or any other act or omission a Sponsor outside the scope of the service of that 2551.21 Who is eligible to serve as a sponsor? member. Similarly, this part does not 2551.22 What are the responsibilities of a limit or alter in any way any other im- sponsor? munities that are available under ap- 2551.23 What are a sponsor’s program re- plicable law for State officials and em- sponsibilities? ployees not described in this section; 2551.24 What are a sponsor’s responsibilities nor does this part affect any other for securing community participation? 2551.25 What are a sponsor’s administrative right or remedy against the State or responsibilities? any person other than a member of a 2551.26 May a sponsor administer more than State Commission or AAE. one program grant from the Corporation?
§ 2550.110 What money will be avail- Subpart C—Suspension and Termination of able from the Corporation to assist Corporation Assistance in establishing and operating a State Commission, Alternative Ad- 2551.31 What are the rules on suspension, ministrative Entity, or Transitional termination, and denial of refunding of Entity? grants? (a) Range of grants. The Corporation Subpart D—Senior Companion Eligibility, may make administrative grants to Status, and Cost Reimbursements States of between $125,000 and $750,000 (inclusive) for the purpose of estab- 2551.41 Who is eligible to be a Senior Com- lishing or operating a State Commis- panion? sion or AAE; these grants will be avail- 2551.42 What income guidelines govern eligi- bility to serve as a stipended Senior able to States which have Corporation- Companion? approved Transitional Entities only if 2551.43 What is considered income for deter- those States commit to establishing a mining volunteer eligibility? Corporation-approved State Commis- 2551.44 Is a Senior Companion a federal em- sion or AAE prior to the expiration of ployee, an employee of the sponsor or of the transitional period. the volunteer station? (b) Limitation on Federal share. 2551.45 What cost reimbursements are pro- vided to Senior Companions? Notywithstanding the amounts speci- 2551.46 May the cost reimbursements of a fied in this section, the amount of a Senior Companion be subject to any tax grant that may be provided to a State under this subsection, together with 1 See OMB Circulars A–102 and A–122. Cop- other Federal funds available to estab- ies of the circulars may be obtained from the lish or operate the State Commission Office of Administration, EOP Publications, or AAE, may not exceed 85 percent of 725 17th Street, NW., Room 2200, New EOB, the total cost to establish or operate Washington, DC 20503.
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or charge, be treated as wages or com- panion project without Corporation fund- pensation, or affect eligibility to receive ing? assistance from other programs? 2551.112 What benefits are a non-Corpora- tion funded project entitled to? Subpart E—Senior Companion Terms of 2551.113 What financial obligation does the Service Corporation incur for non-Corporation funded projects? 2551.51 What are the terms of service of a 2551.114 What happens if a non-Corporation Senior Companion? funded sponsor does not comply with the 2551.52 What factors are considered in deter- Memorandum of Agreement? mining a Senior Companion’s service schedule? Subpart L—Restrictions and Legal 2551.53 Under what circumstances may a Representation Senior Companion’s service be termi- nated? 2551.121 What legal limitations apply to the operation of the Senior Companion Pro- Subpart F—Responsibilities of a Volunteer gram and to the expenditure of grant Station funds? 2551.122 What legal coverage does the Cor- 2551.61 When may a sponsor serve as a vol- poration make available to Senior Com- unteer station? panions? 2551.62 What are the responsibilities of a volunteer station? AUTHORITY: 42 U.S.C. 4950 et seq. SOURCE: 64 FR 14115, Mar. 24, 1999, unless Subpart G—Senior Companion Placements otherwise noted. and Assignments 2551.71 What requirements govern the as- Subpart A—General signment of Senior Companions? 2551.72 Is a written volunteer assignment § 2551.11 What is the Senior Com- plan required for each volunteer? panion Program? The Senior Companion Program pro- Subpart H—Clients Served vides grants to qualified agencies and 2551.81 What type of clients are eligible to organizations for the dual purpose of: be served? engaging persons 60 and older, particu- larly those with limited incomes, in Subpart I—Application and Fiscal volunteer service to meet critical com- Requirements munity needs; and to provide a high 2551.91 What is the process for application quality experience that will enrich the and award of a grant? lives of the volunteers. Program funds 2551.92 What are project funding require- are used to support Senior Companions ments? in providing supportive, individualized 2551.93 What are grants management re- services to help adults with special quirements? needs maintain their dignity and inde- pendence. Subpart J—Non-Stipended Senior Companions § 2551.12 Definitions. 2551.101 What rule governs the recruitment (a) Act. The Domestic Volunteer and enrollment of persons who do not Service Act of 1973, as amended, Pub. meet the income eligibility guidelines to L. 93–113, Oct. 1, 1973, 87 Stat. 396, 42 serve as Senior Companions without sti- U.S.C. 4950 et seq. pends? 2551.102 What are the conditions of service (b) Adult with special needs. Any indi- of non-stipended Senior Companions? vidual over 21 years of age who has one 2551.103 Must a sponsor be required to enroll or more physical, emotional, or mental non-stipended Senior Companions? health limitations and is in need of as- 2551.104 May Corporation funds be used for sistance to achieve and maintain their non-stipended Senior Companions? highest level of independent living. (c) Adequate staffing level. The num- Subpart K—Non-Corporation Funded SCP ber of project staff or full-time equiva- Projects lent needed by a sponsor to manage 2551.111 Under what conditions can an agen- NSSC project operations considering cy or organization sponsor a Senior Com- such factors as: number of budgeted
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Volunteer Service Years (VSY), num- is also referred to as the ‘‘Senior ber of volunteer stations, and the size Corps’’. of the service area. (l) Non-Corporation support (required). (d) Annual income. Total cash and in- The percentage share of non-Federal kind receipts from all sources over the cash and in-kind contributions, re- preceding 12 months including: the ap- quired to be raised by the sponsor in plicant or enrollee’s income and, the support of the grant. applicant or enrollee’s spouse’s income, (m) Non-Corporation support (excess). if the spouse lives in the same resi- The amount of non-Federal cash and dence. The value of shelter, food, and in-kind contributions generated by a clothing, shall be counted if provided sponsor in excess of the required per- at no cost by persons related to the ap- centage. plicant/enrollee, or spouse. (n) Project. The locally planned and (e) Chief Executive Officer. The Chief implemented Senior Companion Pro- Executive Officer of the Corporation gram activity or set of activities as appointed under the National and Com- agreed upon between a sponsor and the munity Service Act of 1990, as amend- Corporation. ed, (NCSA), 42 U.S.C. 12501 et seq. (o) Qualified individual with a dis- (f) Corporation. The Corporation for ability. An individual with a disability National and Community Service es- (as defined in the Rehabilitation Act, tablished under the Trust Act. The 29 U.S.C. 705 (20)) who, with or without Corporation is also sometimes referred reasonable accommodation, can per- to as CNCS. form the essential functions of a volun- (g) Cost reimbursements. Reimburse- teer position that such individual holds ments provided to volunteers such as or desires. If a sponsor has prepared a stipends to cover incidental costs, written description before advertising meals, and transportation, to enable or interviewing applicants for the posi- them to serve without cost to them- tion, the written description may be selves. Also included are the costs of considered evidence of the essential annual physical examinations, volun- functions of the volunteer position. teer insurance and recognition which (p) Service area. The geographically are budgeted as Volunteer Expenses. defined area in which Senior Compan- (h) In-home. The non-institutional as- ions are recruited, enrolled, and placed signment of a Senior Companion in a on assignments. private residence. (q) Service schedule. A written delin- (i) Letter of Agreement. A written eation of the days and times a Senior agreement between a volunteer sta- Companion serves each week. tion, the sponsor and the adult served (r) Sponsor. A public agency or pri- or the persons legally responsible for vate non-profit organization that is re- that adult. It authorizes the assign- sponsible for the operation of a Senior ment of a Senior Companion in the cli- Companion project. ents home, defines the Senior Compan- (s) Stipend. A payment to Senior ion’s activities and delineates specific Companions to enable them to serve arrangements for supervision. without cost to themselves. The (j) Memorandum of Understanding. A amount of the stipend is determined by written statement prepared and signed the Corporation and is payable in reg- by the Senior Companion project spon- ular installments. The minimum sor and the volunteer station that amount of the stipend is set by law and identifies project requirements, work- shall be adjusted by the CEO from time ing relationships and mutual respon- to time. sibilities. (t) Trust Act. The National and Com- (k) National Senior Service Corps munity Service Trust Act of 1993, Pub. (NSSC). The collective name for the L. 103–82, Sept. 21, 1993, 107 Stat. 785. Foster Grandparent Program (FGP), (u) United States and States. Each of the Retired and Senior Volunteer Pro- the several States, the District of Co- gram (RSVP), the Senior Companion lumbia, the U.S. Virgin Islands, the Program (SCP), and Demonstration Commonwealth of Puerto Rico, Guam Programs established under Title II and American Samoa, and Trust Terri- Parts A, B, C, and E, of the Act. NSSC tories of the Pacific Islands.
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(v) Volunteer assignment plan. A writ- and develop strategies to respond to ten description of a Senior Compan- those needs using the resources of Sen- ion’s assignment with a client. The ior Companions. plan identifies specific outcomes for (c) Develop and manage a system of the client served and the activities of volunteer stations by: the Senior Companion. (1) Insuring that a volunteer station (w) Volunteer station. A public agency, is a public or non-profit private organi- private non-profit organization or pro- zation, or an eligible proprietary prietary health care agency or organi- health care agency, capable of serving zation that accepts the responsibility as a volunteer station for the place- for assignment and supervision of Sen- ment of Senior Companions; ior Companions in health, social serv- (2) Ensuring that the placement of ice or related settings such as multi- Senior Companions is governed by a purpose centers, home health care Memorandum of Understanding: agencies or similar establishments. (i) That is negotiated prior to place- Each volunteer station must be li- ment; censed or otherwise certified, when re- (ii) That specifies the mutual respon- quired, by the appropriate state or sibilities of the station and sponsor; local government. Private homes are (iii) That is renegotiated at least not volunteer stations. every three years; and (iv) That states the station assures it Subpart B—Eligibility and will not discriminate against Senior Responsibilities of a Sponsor Companions or in the operation of its program on the basis of race, color, na- § 2551.21 Who is eligible to serve as a tional origin, sex, age, political affili- sponsor? ation, religion, or on the basis of dis- The Corporation awards grants to ability, if the participant or member is public agencies, including Indian tribes a qualified individual with a disability; and non-profit private organizations, in and the United States that have the au- (3) Reviewing volunteer placements thority to accept and the capability to regularly to ensure that clients are eli- administer a Senior Companion gible to be served. project. (d) Develop service opportunities that consider the skills and experiences § 2551.22 What are the responsibilities of the Senior Companion. of a sponsor? (e) Consider the demographic make- A sponsor is responsible for fulfilling up of the project service area in the en- all project management requirements rollment of Senior Companions, taking necessary to accomplish the purposes special efforts to recruit eligible indi- of the Senior Companion Program as viduals from minority groups, persons specified in the Act. A sponsor shall with disabilities, and under-rep- not delegate or contract these respon- resented groups. sibilities to another entity. The spon- (f) Provide Senior Companions with sor shall comply with all program reg- assignments that show direct and de- ulations and policies, and grant provi- monstrable benefits to the adults and sions prescribed by the Corporation. the community served, the Senior Companions, and the volunteer station; § 2551.23 What are a sponsor’s pro- with required cost reimbursements gram responsibilities? specified in § 2551.45; with not less than A sponsor shall: 40 hours of orientation of which 20 (a) Focus Senior Companion re- hours must be pre-service, and an aver- sources on critical problems affecting age of 4 hours of monthly in-service the frail elderly and other adults with training. special needs within the project’s serv- (g) Encourage the most efficient and ice area. effective use of Senior Companions by (b) Assess in collaboration with other coordinating project services and ac- community organizations or utilize ex- tivities with related national, state isting assessment of the needs of the and local programs, including other client population in the community Corporation programs.
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(h) Conduct an annual appraisal of (c) Employ a full-time project direc- volunteers’ performance and annual re- tor to accomplish program objectives view of their income eligibility. and manage the functions and activi- (i) Develop, and annually update, a ties delegated to project staff for NSSC plan for promoting senior service with- program(s) within its control. A full- in the project’s service area. time project director shall not serve (j) Annually assess the accomplish- concurrently in another capacity, paid ments and impact of the project on the or unpaid, during established working identified needs and problems of the hours. The project director may par- client population in the community. ticipate in activities to coordinate pro- (k) Establish written service policies gram resources with those of related for Senior Companions that include but local agencies, boards or organizations. are not limited to annual and sick A sponsor may negotiate the employ- leave, holidays, service schedules, ter- ment of a part-time project director mination, appeal procedures, meal and with the Corporation when it can be transportation reimbursements. demonstrated that such an arrange- § 2551.24 What are a sponsor’s respon- ment will not adversely affect the size, sibilities for securing community scope, and quality of project oper- participation? ations. (a) A sponsor shall secure community (d) Consider all project staff as spon- participation in local project operation sor employees subject to its personnel by establishing an Advisory Council or policies and procedures. a similar organizational structure with (e) Compensate project staff at a a membership that includes people: level that is comparable with other (1) Knowledgeable of human and so- similar staff positions in the sponsor cial needs of the community; organization and/or project service (2) Competent in the field of commu- area. nity service and volunteerism; (f) Establish risk management poli- (3) Capable of helping the sponsor cies and procedures covering project meet its administrative and program and Senior Companion activities. This responsibilities including fund-raising, includes provision of appropriate insur- publicity and impact programming; ance coverage for Senior Companions, (4) With interest in and knowledge of vehicles and other properties used in the capability of older adults; and the project. (5) Of a diverse composition that re- (g) Establish record keeping/report- flects the demographics of the service ing systems in compliance with Cor- area. poration requirements that ensure (b) The sponsor determines how such quality of program and fiscal oper- participation shall be secured, con- sistent with the provisions of para- ations, facilitate timely and accurate graphs (a)(1) through (a)(5) of this sec- submission of required reports and co- tion. operate with Corporation evaluation and data collection efforts. § 2551.25 What are a sponsor’s admin- (h) Comply with and ensure that all istrative responsibilities? volunteer stations comply with all ap- A sponsor shall: plicable civil rights laws and regula- (a) Assume full responsibility for se- tions, including providing reasonable curing maximum and continuing com- accommodation to qualified individ- munity financial and in-kind support uals with disabilities. to operate the project successfully. (b) Provide levels of staffing and re- § 2551.26 May a sponsor administer sources appropriate to accomplish the more than one program grant from purposes of the project and carry out the Corporation? its project management responsibil- A sponsor may administer more than ities. one Corporation program.
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Subpart C—Suspension and Termi- Subpart D—Senior Companion Eli- nation of Corporation Assist- gibility, Status, and Cost Reim- ance bursements
§ 2551.31 What are the rules on suspen- § 2551.41 Who is eligible to be a Senior sion, termination, and denial of re- Companion? funding of grants? (a) To be a Senior Companion, an in- (a) The Chief Executive Officer or dividual must: designee is authorized to suspend fur- (1) Be 60 years of age or older; (2) Be determined by a physical ex- ther payments or to terminate pay- amination to be capable, with or with- ments under any grant providing as- out reasonable accommodation, of sistance under the Act whenever he/she serving adults with special needs with- determines there is a material failure out detriment to either himself/herself to comply with applicable terms and or the adults served; conditions of the grant. The Chief Ex- (3) Agree to abide by all requirements ecutive Officer shall prescribe proce- as set forth in this part; and dures to insure that: (4) In order to receive a stipend, have (1) Assistance under the Act shall not an income that is within the income be suspended for failure to comply with eligibility guidelines specified in this applicable terms and conditions, except subpart D. in emergency situations for thirty (b) Eligibility to be a Senior Com- days; panion shall not be restricted on the (2) An application for refunding basis of formal education, experience, under the Act may not be denied unless race, religion, color, national origin, the recipient has been given: sex, age, handicap, or political affili- (i) Notice at least 75 days before the ation. denial of such application of the possi- § 2551.42 What income guidelines gov- bility of such denial and the grounds ern eligibility to serve as a for any such denial; and stipended Senior Companion? (ii) Opportunity to show cause why (a) To be enrolled and receive a sti- such action should not be taken; pend, a Senior Companion cannot have (3) In any case where an application an annual income from all sources, for refunding is denied for failure to after deducting allowable medical ex- comply with the terms and conditions penses, which exceeds the program’s in- of the grant, the recipient shall be af- come eligibility guideline for the state forded and opportunity for an informal in which he or she resides. The income hearing before an impartial hearing of- eligibility guideline for each state is ficer, who has been agreed to by the re- the higher amount of either: cipient and the Corporation; and (1) 125 percent of the poverty line as (4) Assistance under the Act shall not set forth in 42 U.S.C. 9902 (2); or be terminated for failure to comply (2) 135 percent of the poverty line, in with applicable terms and conditions those primary metropolitan statistical unless the recipient has been afforded areas (PMSA), metropolitan statistical areas (MSA) and non-metropolitan reasonable notice and opportunity for a counties identified by the Corporation full and fair hearing. as being higher in cost of living, as de- (b) In order to assure equal access to termined by application of the Volun- all recipients, such hearings or other teers in Service to America (VISTA) meetings as may be necessary to fulfill subsistence rates. In Alaska the guide- the requirements of this section shall line may be waived by the Corporation be held in locations convenient to the State Director if a project dem- recipient agency. onstrates that low-income individuals (c) The procedures for suspension, in that location are participating in termination, and denial of refunding, the project. that apply to the Senior Companion (b) Annual income is counted for the Program are specified in 45 CFR Part past 12 months and includes the appli- 1206. cant or enrollee’s income and that of
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his/her spouse, if the spouse lives in the house or car, tax refunds, gifts, one- same residence. Sponsors shall count time insurance payments or compensa- the value of shelter, food, and clothing, tion from injury; if provided at no cost by persons re- (2) Non-cash income, such as the lated to the applicant, enrollee, or bonus value of food and fuel produced spouse. and consumed on farms and the im- (c) Allowable medical expenses are puted value of rent from owner-occu- annual out-of-pocket medical expenses pied farm or non-farm housing. for health insurance premiums, health care services, and medications provided § 2551.44 Is a Senior Companion a fed- to the applicant, enrollee, or spouse eral employee, an employee of the which were not and will not be paid by sponsor or of the volunteer station? Medicare, Medicaid, other insurance, Senior Companions are volunteers, or other third party payor, and which and are not employees of the sponsor, do not exceed 15 percent of the applica- the volunteer station, the Corporation, ble income guideline. or the Federal Government. (d) Applicants whose income is not more than 100 percent of the poverty § 2551.45 What cost reimbursements line shall be given special consider- are provided to Senior Compan- ation for enrollment. ions? (e) Once enrolled, a Senior Com- Cost reimbursements include: panion shall remain eligible to serve (a) Stipend. Senior Companions who and to receive a stipend so long as his are income eligible will receive a sti- or her income, does not exceed the ap- pend in an amount determined by the plicable income eligibility guideline by Corporation and payable in regular in- 20 percent. stallments, to enable them to serve without cost to themselves. The sti- § 2551.43 What is considered income pend is paid for the time Senior Com- for determining volunteer eligi- panions spend with their assigned cli- bility? ents, for earned leave, and for attend- (a) For determining eligibility, ‘‘in- ance at official project events. come’’ refers to total cash or in-kind (b) Insurance. A Senior Companion is receipts before taxes from all sources provided with the Corporation-speci- including: fied minimum levels of insurance as (1) Money, wages, and salaries before follows: any deduction, but not including food (1) Accident insurance. Accident insur- or rent in lieu of wages; ance covers Senior Companions for per- (2) Receipts from self-employment or sonal injury during travel between from a farm or business after deduc- their homes and places of assignment, tions for business or farm expenses; during their volunteer service, during (3) Regular payments for public as- meal periods while serving as a volun- sistance, Social Security, Unemploy- teer, and while attending project-spon- ment or Workers Compensation, strike sored activities. Protection shall be benefits, training stipends, alimony, provided against claims in excess of child support, and military family al- any benefits or services for medical lotments, or other regular support care or treatment available to the vol- from an absent family member or unteer from other sources. someone not living in the household; (2) Personal liability insurance. Protec- (4) Government employee pensions, tion is provided against claims in ex- private pensions, and regular insurance cess of protection provided by other in- or annuity payments; and surance. It does not include profes- (5) Income from dividends, interest, sional liability coverage. net rents, royalties, or income from es- (3) Excess automobile liability insur- tates and trusts. ance. (i) For Senior Companions who (b) For eligibility purposes, income drive in connection with their service, does not refer to the following money protection is provided against claims receipts: in excess of the greater of either: (1) Any assets drawn down as with- (A) Liability insurance volunteers drawals from a bank, sale of property, carry on their own automobiles; or
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(B) The limits of applicable state fi- Subpart E—Senior Companion nancial responsibility law, or in its ab- Terms of Service sence, levels of protection to be deter- mined by the Corporation for each per- § 2551.51 What are the terms of service son, each accident, and for property of a Senior Companion? damage. A Senior Companion shall serve a (ii) Senior Companions who drive minimum of nine months a year for an their personal vehicles to or on assign- average of 20 hours of service a week. A ments or project-related activities Senior Companion shall not serve more must maintain personal automobile li- than 1044 hours per year. ability insurance equal to or exceeding the levels established by the Corpora- § 2551.52 What factors are considered tion. in determining a Senior Compan- ion’s service schedule? (c) Transportation. Senior Compan- ions shall receive assistance with the (a) Travel time between the Senior cost of transportation to and from vol- Companion’s home and place of assign- unteer assignments and official project ment is not part of the service schedule activities, including orientation, train- and is not stipended. ing, and recognition events. (b) Travel time between individual (d) Physical examination. Senior Com- assignments is a part of the service schedule and is stipended. panions are provided a physical exam- (c) Meal time may be part of the ination prior to assignment and annu- service schedule and is stipended only ally thereafter to ensure that they will if it is specified in the goal statement be able to provide supportive service as part of the service activity. without injury to themselves or the clients served. § 2551.53 Under what circumstances (e) Meals and recognition. Senior Com- may a Senior Companion’s service panions shall be provided the following be terminated? within limits of the project’s available (a) A sponsor may remove a Senior resources: Companion from service for cause. (1) Assistance with the cost of meals Grounds for removal include but are taken while on assignment; and not limited to: extensive and unauthor- (2) Recognition for their service. ized absences; misconduct; inability to perform assignments; and failure to ac- § 2551.46 May the cost reimbursements cept supervision. A Senior Companion of a Senior Companion be subject to may also be removed from service for any tax or charge, be treated as having income in excess of the eligi- wages or compensation, or affect bility level. eligibility to receive assistance from (b) The sponsor shall establish appro- other programs? priate policies on service termination No. Senior Companion’s cost reim- as well as procedures for appeal from bursements are not subject to any tax such adverse action. or charge or treated as wages or com- pensation for the purposes of unem- Subpart F—Responsibilities of a ployment insurance, worker’s com- Volunteer Station pensation, temporary disability, retire- ment, public assistance, or similar ben- § 2551.61 When may a sponsor serve as efit payments or minimum wage laws. a volunteer station? Cost reimbursements are not subject to (a) A sponsor may function as a vol- garnishment and do not reduce or unteer station if it is: eliminate the level of, or eligibility for, (1) A State organization admin- assistance or services a Senior Com- istering a statewide Senior Companion panion may be receiving under any project where the volunteer station is governmental program. part of the State organization; or
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(2) A Federal or State-recognized In- to in the Memorandum of Under- dian tribal government. standing. (b) Other sponsors not included in the categories specified in paragraphs (a)(1) Subpart G—Senior Companion and (a)(2) of this section, can serve as a volunteer station provided that no Placements and Assignments more than 20 percent of its budgeted § 2551.71 What requirements govern VSYs can be placed in programs admin- the assignment of Senior Compan- istered by such sponsors. In special cir- ions? cumstances, the Corporation may grant a waiver to increase this percent- Senior Companion assignments shall: age. (a) Provide for Senior Companions to give direct services to one or more eli- § 2551.62 What are the responsibilities gible adults. Senior Companions can- of a volunteer station? not provide services such as those per- A volunteer station shall undertake formed by medical personnel, services the following responsibilities in sup- to large numbers of clients, custodial port of Senior Companion volunteers: services, administrative support serv- (a) Develop volunteer assignments ices or other services that would de- that meet the requirements specified tract from the person-to-person rela- in §§ 2551.71 through 2551.72, and regu- tionship. larly assess those assignments for con- (b) Result in person-to-person sup- tinued appropriateness. portive relationships with each client (b) Select eligible clients for assigned served. volunteers. (c) Support the achievement and (c) Develop a written volunteer as- maintenance of the highest level of signment plan for each client that independent living for their clients. identifies the role and activities of the Senior Companion and expected out- (d) Be meaningful to the Senior Com- comes for the client served. panion. (d) Obtain a Letter of Agreement for (e) Be supported by appropriate ori- Senior Companions assigned in-home. entation, training and supervision. This letter must comply with all Fed- eral, State and local regulations. § 2551.72 Is a written volunteer assign- (e) Provide Senior Companions serv- ment plan required for each volun- ing the station with: teer? (1) Orientation to the station and any (a) All Senior Companions shall re- in-service training necessary to en- ceive a written volunteer assignment hance performance of assignments; plan developed by the volunteer station (2) Resources required for perform- that: ance of assignments including reason- (1) Is approved by the sponsor and ac- able accommodation; and cepted by the Senior Companion; (3) Appropriate recognition. (2) Identifies the individual client to (f) Designate a staff member to over- be served; see fulfillment of station responsibil- (3) Identifies the role and activities ities and supervision of Senior Com- of the Senior Companion and expected panions while on assignment. outcomes for the client; (g) Keep records and prepare reports (4) Addresses the period of time each required by the sponsor. (h) Provide for the safety of Senior client should receive such services; and Companions assigned to it. (5) Is used to review the status of the (i) Comply with all applicable civil Senior Companion’s services in work- rights laws and regulations including ing with the assigned client, as well as reasonable accommodation for Senior the impact of the assignment on the Companions with disabilities. client. (j) Undertake such other responsibil- (b) If there is an existing plan that ities as may be necessary to the suc- incorporates paragraphs (a)(2), (3), and cessful performance of Senior Compan- (4) of this section, that plan shall meet ions in their assignments or as agreed the requirement.
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Subpart H—Clients Served cific programmatic objectives and fi- nancial obligations. It will document § 2551.81 What type of clients are eligi- the extent of the Corporation’s obliga- ble to be served? tion to provide financial support to the Senior Companions serve only adults, sponsor. primarily older adults, who have one or (d) What happens if the Corporation re- more physical, emotional, or mental jects an application? The Corporation health limitations and are in need of will return to the applicant an applica- assistance to achieve and maintain tion that is not approved for funding, their highest level of independent liv- with an explanation of the Corpora- ing. tion’s decision. (e) For what period of time does the Subpart I—Application and Fiscal Corporation award a Senior Companion Requirements grant? The Corporation awards a Senior Companion grant for a specified period § 2551.91 What is the process for appli- that is usually 12 months in duration. cation and award of a grant? (a) How and when may an eligible orga- § 2551.92 What are project funding re- nization apply for a grant? quirements? (1) An eligible organization may file (a) Is non-Corporation support re- an application for a grant at any time. quired? A Corporation grant may be (2) Before submitting an application awarded to fund up to 90 percent of the an applicant shall determine the avail- cost of development and operation of a ability of funds from the Corporation. Senior Companion project. The sponsor (3) The Corporation may also solicit is required to contribute at least 10 grant applicants. Applicants solicited percent of the total project cost from under this provision are not assured of non-Federal sources or authorized Fed- selection or approval and may have to eral sources. compete with other solicited or unso- (b) Under what circumstances does the licited applications. Corporation allow less than the 10 percent (b) What must an eligible organization non-Corporation support? The Corpora- include in a grant application? tion may allow exceptions to the 10 (1) An applicant shall complete percent local support requirement in standard forms prescribed by the Cor- cases of demonstrated need such as: poration. (2) The applicant shall comply with (1) Initial difficulties in the develop- the provisions of Executive Order 12372, ment of local funding sources during ‘‘Intergovernmental Review of Federal the first three years of operations; or Programs,’’ (3 CFR, 1982 Comp., p. 197) (2) An economic downturn, the occur- in 45 CFR part 1233 and any other appli- rence of a natural disaster, or similar cable requirements. events in the service area that severely (c) Who reviews the merits of an appli- restrict or reduce sources of local fund- cation and how is a grant awarded? ing support; or (1) The Corporation reviews and de- (3) The unexpected discontinuation of termines the merit of an application by local support from one or more sources its responsiveness to published guide- that a project has relied on for a period lines and to the overall purpose and ob- of years. jectives of the program. When funds (c) May the Corporation restrict how a are available, the Corporation awards a sponsor uses locally generated contribu- grant in writing to each applicant tions in excess of the 10 percent non-Cor- whose grant proposal provides the best poration support required? Whenever lo- potential for serving the purpose of the cally generated contributions to Senior program. The award will be docu- Companion projects are in excess of the mented by Notice of Grant Award minimum 10 percent non-Corporation (NGA). support required, the Corporation may (2) The Corporation and the spon- not restrict the manner in which such soring organization are the parties to contributions are expended provided the NGA. The NGA will document the such expenditures are consistent with sponsor’s commitment to fulfill spe- the provisions of the Act.
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(d) Are program expenditures subject to the lowest possible cost consistent audit? All expenditures by the grantee with the effective operation of the of Federal and non-Federal funds, in- project. cluding expenditures from excess lo- (c) Project costs for which Corpora- cally generated contributions in sup- tion funds are budgeted must be justi- port of the grant are subject to audit fied as being necessary and essential to by the Corporation, its Inspector Gen- project operation. eral, or their authorized agents. (d) Other than reimbursement for (e) How are Senior Companion cost re- meals during a normal meal period, imbursements budgeted? The total of cost project funds shall not be used to reim- reimbursements for Senior Compan- burse volunteers for expenses, includ- ions, including stipends, insurance, ing transportation costs, incurred transportation, meals, physical exami- while performing their volunteer as- nations, and recognition, shall be a signments. Equipment or supplies for sum equal to at least 80 percent of the volunteers on assignment are not al- amount of the federal share of the lowable costs. Assignment-related grant award. Federal, required non- costs of transportation, equipment, Federal, and excess non-federal re- supplies, etc. are the responsibility of sources can be used to make up the the volunteer station or a third party, amount allotted for cost reimburse- and are not an allowable grant cost. ments. (e) Volunteer expense items, includ- (f) May a sponsor pay stipends at a rate ing transportation, meals, recognition different than the rate established by the activities and items purchased at the Corporation? A sponsor shall pay sti- volunteers’ own expense and which are pends at the same rate as that estab- not reimbursed, are not allowable as lished by the Corporation. contributions to the non-Federal share of the budget. § 2551.93 What are grants management requirements? (f) Costs of other insurance not re- quired by program policy, but main- What rules govern a sponsor’s man- tained by a sponsor for the general con- agement of grants? duct of its activities are allowable with (a) A sponsor shall manage a grant in the following limitations: accordance with: (1) The Act; (1) Types and extent of and cost of (2) Regulations in this part; coverage are according to sound insti- (3) 45 CFR Part 2541, ‘‘Uniform Ad- tutional and business practices; ministrative Requirements for Grants (2) Costs of insurance or a contribu- and Cooperative Agreements to State tion to any reserve covering the risk of and Local Governments’’, or 45 CFR loss of or damage to Government- Part 2543, ‘‘Grants and Agreements owned property are unallowable unless with Institutions of Higher Education, the government specifically requires Hospitals, and Other Non-Profit Orga- and approves such costs; and nizations’; (3) The cost of insurance on the lives (4) The following OMB Circulars, as of officers, trustees or staff is unallow- appropriate A–21, ‘‘Cost Principles for able except where such insurance is Educational Institution’’, A–87, ‘‘Cost part of an employee plan which is not Principles for State, Local and Indian unduly restricted. Tribal Governments’’, A–122, ‘‘Cost (g) Costs to bring a sponsor into basic Principles for Non-Profit Organiza- compliance with accessibility require- tions’’, and A–133, ‘‘Audits of States, ments for individuals with disabilities Local Governments, and Other Non- are not allowable costs. Profit Organizations’’ (OMB circulars (h) Payments to settle discrimina- are available electronically at the OMB tion allegations, either informally homepage www.whitehouse.gov/WH/ through a settlement agreement or for- EOP/omb); and mally as a result of a decision finding (5) Other applicable Corporation re- discrimination, are not allowable costs. quirements. (i) Written Corporation approval/con- (b) Project support provided under a currence is required for the following Corporation grant shall be furnished at changes in the approved grant:
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(1) Reduction in budgeted volunteer signed special needs clients on a reg- service years. ular basis. (2) Change in the service area. (g) Non-stipended Senior Companions (3) Transfer of budgeted line items may contribute the costs they incur in from Volunteer Expenses to Support connection with their participation in Expenses. This requirement does not the program. Such contributions are apply if the 80 percent volunteer cost not counted as part of the required reimbursement ratio is maintained. non-federal share of the grant but may be reflected in the budget column for Subpart J—Non-Stipended Senior excess non-federal resources. Companions. § 2551.103 Must a sponsor be required § 2551.101 What rule governs the re- to enroll non-stipended Senior Com- cruitment and enrollment of per- panions? sons who do not meet the income Enrollment of non-stipended Senior eligibility guidelines to serve as Companions is not a factor in the Senior Companions without sti- award of new or continuation grants. pends? Over-income persons, age 60 or over, § 2551.104 May Corporation funds be may be enrolled in SCP projects as used for non-stipended Senior Com- non-stipended volunteers in commu- panions? nities where there is no RSVP project Federally appropriated funds for SCP or where agreement is reached with the shall not be used to pay any cost, in- RSVP project that allows for the en- cluding any administrative cost, in- rollment of non-stipended volunteers in curred in implementing the regulations the SCP project. in this part for non-stipended Senior Companions. § 2551.102 What are the conditions of service of non-stipended Senior Companions? Subpart K—Non-Corporation Non-stipended Senior Companions Funded SCP Projects serve under the following conditions: (a) They must not displace or prevent § 2551.111 Under what conditions can an agency or organization sponsor eligible low-income individuals from a Senior Companion project with- becoming Senior Companions. out Corporation funding? (b) No special privilege or status is granted or created among Senior Com- An eligible agency or organization panions, stipended or non-stipended, who wishes to sponsor a Senior Com- and equal treatment is required. panion project without Corporation (c) Training, supervision, and other funding, must sign a Memorandum of support services and cost reimburse- Agreement with the Corporation that: ments, other than the stipend, are (a) Certifies its intent to comply with available equally to all Senior Com- all Corporation requirements for the panions. Senior Companion Program; and (d) All regulations and requirements (b) Identifies responsibilities to be applicable to the program, with the ex- carried out by each party. ception listed in paragraph (f) of this section, apply to all Senior Compan- § 2551.112 What benefits are a non- ions. Corporation funded project entitled to? (e) Non-stipended Senior Companions may be placed in separate volunteer The Memorandum of Agreement enti- stations where warranted. tles the sponsor of a non-Corporation (f) Non-stipended Senior Companions funded project to: will be encouraged but not required to (a) All technical assistance and ma- serve an average of 20 hours per week terials provided to Corporation-funded and nine months per year. Senior Com- Senior Companion projects; and panions will maintain a close person- (b) The application of the provisions to-person relationship with their as- of 42 U.S.C. 5044 and 5058.
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§ 2551.113 What financial obligation voter registration information avail- does the Corporation incur for non- able, employees of the sponsor shall Corporation funded projects? not express preferences or seek to in- Entry into a Memorandum of Agree- fluence decisions concerning any can- ment with, or issuance of an NGA to a didate, political party, election issue, sponsor of a non-Corporation funded or voting decision. project, does not create a financial ob- (3) The sponsor shall not use grant ligation on the part of the Corporation funds in any activity for the purpose of for any costs associated with the influencing the passage or defeat of project, including increases in required legislation or proposals by initiative payments to Senior Companion’s that petition, except: may result from changes in the Act or (i) In any case in which a legislative in program regulations. body, a committee of a legislative body, or a member of a legislative body § 2551.114 What happens if a non-Cor- requests any volunteer in, or employee poration funded sponsor does not of such a program to draft, review or comply with the Memorandum of testify regarding measures or to make Agreement? representation to such legislative body, A non-Corporation funded project committee or member; or sponsor’s noncompliance with the (ii) In connection with an authoriza- Memorandum of Agreement may result tion or appropriations measure directly in suspension or termination of the affecting the operation of the Senior Corporation’s agreement and all bene- Companion Program. fits specified in § 2551.112. (b) Non-displacement of employed work- ers. A Senior Companion shall not per- Subpart L—Restrictions and Legal form any service or duty or engage in Representation any activity which would otherwise be performed by an employed worker or § 2551.121 What legal limitations apply which would supplant the hiring of or to the operation of the Senior Com- result in the displacement of employed panion Program and to the expend- workers, or impair existing contracts iture of grant funds? for service. (a) Political activities. (1) No part of (c) Compensation for service. (1) An any grant shall be used to finance, di- agency or organization to which NSSC rectly or indirectly, any activity to in- volunteers are assigned or which oper- fluence the outcome of any election to ates or supervises any NSSC program public office, or any voter registration shall not request or receive any com- activity. pensation from NSSC volunteers or (2) No project shall be conducted in a from beneficiaries for services of NSSC manner involving the use of funds, the volunteers. provision of services, or the employ- (2) This section does not prohibit a ment or assignment of personnel in a sponsor from soliciting and accepting matter supporting or resulting in the voluntary contributions from the com- identification of such project with: munity at large to meet its local sup- (i) Any partisan or nonpartisan polit- port obligations under the grant or ical activity associated with a can- from entering into agreements with didate, or contending faction or group, parties other than beneficiaries to sup- in an election; or port additional volunteers beyond (ii) Any activity to provide voters or those supported by the Corporation prospective voters with transportation grant. to the polls or similar assistance in (3) A Senior Companion volunteer connection with any such election; or station may contribute to the financial (iii) Any voter registration activity, support of the Senior Companion Pro- except that voter registration applica- gram. However, this support shall not tions and nonpartisan voter registra- be a required precondition for a poten- tion information may be made avail- tial station to obtain Senior Com- able to the public at the premises of panion service. the sponsor. But in making registra- (4) If a volunteer station agrees to tion applications and nonpartisan provide funds to support additional
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Senior Companions or pay for other § 2551.122 What legal coverage does Senior Companion support costs, the the Corporation make available to agreement shall be stated in a written Senior Companions? Memorandum of Understanding. The It is within the Corporation’s discre- sponsor shall withdraw services if the tion to determine if Counsel is em- station’s inability to provide monetary ployed and counsel fees, court costs, or in-kind support to the project under bail and other expenses incidental to the Memorandum of Understanding di- the defense of a Senior Companion are minishes or jeopardizes the project’s fi- paid in a criminal, civil or administra- nancial capabilities to fulfill its obliga- tive proceeding, when such a pro- tions. ceeding arises directly out of perform- (5) Under no circumstances shall a ance of the Senior Companion’s activi- Senior Companion receive a fee for ties. The circumstances under which service from service recipients, their the Corporation shall pay such ex- legal guardian, members of their fam- penses are specified in 45 CFR part 1220. ily, or friends. (d) Labor and anti-labor activity. The PART 2552—FOSTER GRANDPARENT sponsor shall not use grant funds di- PROGRAM rectly or indirectly to finance labor or anti-labor organization or related ac- Subpart A—General tivity. Sec. (e) Fair labor standards. A sponsor 2552.11 What is the Foster Grandparent Pro- that employs laborers and mechanics gram? for construction, alteration, or repair 2552.12 Definitions. of facilities shall pay wages at pre- Subpart B—Eligibility and Responsibilities of vailing rates as determined by the Sec- a Sponsor retary of Labor in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. 2552.21 Who is eligible to serve as a sponsor? 276a. 2552.22 What are the responsibilities of a (f) Nondiscrimination. A sponsor or sponsor? 2552.23 What are a sponsor’s program re- sponsor employee shall not discrimi- sponsibilities? nate against a Senior Companion on 2552.24 What are a sponsor’s responsibilities the basis of race, color, national origin, for securing community participation? sex, age, religion, or political affili- 2552.25 What are a sponsor’s administrative ation, or on the basis of disability, if responsibilities? the Senior Companion with a disability 2552.26 May a sponsor administer more than one program grant from the Corporation? is qualified to serve. (g) Religious activities. A Senior Com- Subpart C—Suspension and Termination of panion or a member of the project staff Corporation Assistance funded by the Corporation shall not 2552.31 What are the rules on suspension, give religious instruction, conduct wor- termination, and denial of refunding of ship services or engage in any form of grants? proselytization as part of his or her du- ties. Subpart D—Foster Grandparent Eligibility, (h) Nepotism. Persons selected for Status and Cost Reimbursements project staff positions shall not be re- 2552.41 Who is eligible to be a Foster Grand- lated by blood or marriage to other parent? project staff, sponsor staff or officers, 2552.42 What income guidelines govern eligi- or members of the sponsor Board of Di- bility to serve as a stipended Foster rectors, unless there is written concur- Grandparent? rence from the community group es- 2552.43 What is considered income for deter- mining volunteer eligibility? tablished by the sponsor under Subpart 2552.44 Is a Foster Grandparent a federal B of this part and with notification to employee, an employee of the sponsor or the Corporation. of the volunteer station?
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2552.45 What cost reimbursements are pro- 2552.104 May Corporation funds be used for vided to Foster Grandparents? non-stipended Foster Grandparents? 2552.46 May the cost reimbursements of a Foster Grandparent be subject to any tax Subpart K—Non-Corporation Funded Foster or charge, be treated as wages or com- Grandparent Program Projects pensation, or affect eligibility to receive assistance from other programs? 2552.111 Under what conditions can an agen- cy or organization sponsor a Foster Subpart E—Foster Grandparent Terms of Grandparent project without Corporation Service funding? 2552.112 What benefits are a non-Corpora- 2552.51 What are the terms of service of a tion funded project entitled to? Foster Grandparent? 2552.113 What financial obligation does the 2552.52 What factors are considered in deter- Corporation incur for non-Corporation mining a Foster Grandparent’s service funded projects? schedule? 2552.114 What happens if a non-Corporation 2552.53 Under what circumstances may a funded sponsor does not comply with the Foster Grandparent’s service be termi- Memorandum of Agreement? nated? Subpart L—Restrictions and Legal Subpart F—Responsibilities of a Volunteer Representation Station 2552.121 What legal limitations apply to the 2552.61 When may a sponsor serve as a vol- operation of the Foster Grandparent Pro- unteer station? gram and to the expenditure of grant 2552.62 What are the responsibilities of a funds? volunteer station? 2552.122 What legal coverage does the Cor- poration make available to Foster Subpart G—Foster Grandparent Grandparents? Placements and Assignments AUTHORITY: 42 U.S.C. 4950 et seq. 2552.71 What requirements govern the as- SOURCE: 64 FR 14126, Mar. 24, 1999, unless signment of Foster Grandparents? otherwise noted. 2552.72 Is a written volunteer assignment plan required for each volunteer? Subpart A—General Subpart H—Children Served § 2552.11 What is the Foster Grand- parent Program? 2552.81 What type of children are eligible to be served? The Foster Grandparent Program 2552.82 Under what circumstances may a provides grants to qualified agencies Foster Grandparent continue to serve an and organizations for the dual purpose individual beyond his or her 21st birth- of: engaging persons 60 and older, par- day? ticularly those with limited incomes, in volunteer service to meet critical Subpart I—Application and Fiscal community needs; and to provide a Requirements high quality experience that will en- 2552.91 What is the process for application rich the lives of the volunteers. Pro- and award of a grant? gram funds are used to support Foster 2552.92 What are project funding require- Grandparents in providing supportive, ments? person to person service to children 2552.93 What are grants management re- with exceptional or special needs. quirements? § 2552.12 Definitions. Subpart J—Non-Stipended Foster Grandparents (a) Act. The Domestic Volunteer Service Act of 1973, as amended, Pub. 2552.101 What rule governs the recruitment L. 93–113, Oct. 1, 1973, 87 Stat. 396, 42 and enrollment of persons who do not U.S.C. 4950 et seq. meet the income eligibility guidelines to (b) Adequate staffing level. The num- serve as Foster Grandparents without ber of project staff or full-time equiva- stipends? 2552.102 What are the conditions of service lent needed by a sponsor to manage of non-stipended Foster Grandparents? NSSC project operations considering 2552.103 Must a sponsor be required to enroll such factors as: number of budgeted non-stipended Foster Grandparents? volunteers/Volunteer Service Years
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(VSYs), number of volunteer stations, teer insurance and recognition which and the size of the service area. are budgeted as Volunteer Expenses. (c) Annual income. Total cash and in- (j) In-home. The non-institutional as- kind receipts from all sources over the signment of a Foster Grandparent in a preceding 12 months including: the ap- private residence or a foster home. plicant or enrollee’s income and, the (k) Letter of Agreement. A written applicant or enrollee’s spouse’s income, agreement between a volunteer sta- if the spouse lives in the same resi- tion, the sponsor and the parent or per- dence. The value of shelter, food, and sons legally responsible for the child clothing, shall be counted if provided served by the Foster Grandparent. It at no cost by persons related to the ap- authorizes the assignment of a Foster plicant/enrollee, or spouse. Grandparent in the child’s home, de- (d) Chief Executive Officer. The Chief fines the Foster Grandparent’s activi- Executive Officer of the Corporation ties and delineates specific arrange- appointed under the National and Com- ments for supervision. munity Service Act of 1990, as amend- (l) Memorandum of Understanding. A ed, (NCSA), 42 U.S.C. 12501 et seq. written statement prepared and signed (e) Child. Any individual who is less by the Foster Grandparent project than 21 years of age. sponsor and the volunteer station that (f) Children having exceptional needs. identifies project requirements, work- Children who are developmentally dis- ing relationships and mutual respon- abled, such as those who are autistic, sibilities. have cerebral palsy or epilepsy, are vis- (m) National Senior Service Corps ually impaired, speech impaired, hear- (NSSC). The collective name for the ing impaired, orthopedically impaired, Foster Grandparent Program (FGP), are emotionally disturbed or have a the Retired and Senior Volunteer Pro- language disorder, specific learning gram (RSVP), the Senior Companion disability, have multiple disabilities, Program (SCP), and Demonstration other significant health impairment or Programs established under Title II have literacy needs. Existence of a Parts A, B, C, and E, of the Act. NSSC child’s exceptional need shall be is also referred to as the ‘‘Senior verified by an appropriate professional, Corps’’. such as a physician, psychiatrist, psy- (n) Non-Corporation support (required). chologist, registered nurse or licensed The percentage share of non-Federal practical nurse, speech therapist or ed- cash and in-kind contributions, re- ucator before a Foster Grandparent is quired to be raised by the sponsor in assigned to the child. support of the grant. (g) Children with special needs. Chil- (o) Non-Corporation support (excess). dren who are abused or neglected; in The amount of non-Federal cash and need of foster care; adjudicated youth; in-kind contributions generated by a homeless youths; teen-age parents; and sponsor in excess of the required per- children in need of protective interven- centage. tion in their homes. Existence of a (p) Parent. A natural parent or a per- child’s special need shall be verified by son acting in place of a natural parent, an appropriate professional before a such as a guardian, a child’s natural Foster Grandparent is assigned to the grandparent, or a step-parent with child. whom the child lives. The term also in- (h) Corporation. The Corporation for cludes otherwise unrelated individuals National and Community Service es- who are legally responsible for a child’s tablished under the NCSA. The Cor- welfare. poration is also sometimes referred to (q) Project. The locally planned and as CNCS. implemented Foster Grandparent Pro- (i) Cost reimbursements. Reimburse- gram activity or set of activities as ments provided to volunteers such as agreed upon between a sponsor and the stipends to cover incidental costs, Corporation. meals, and transportation, to enable (r) Qualified individual with a dis- them to serve without cost to them- ability. An individual with a disability selves. Also included are the costs of (as defined in the Rehabilitation Act, annual physical examinations, volun- 29 U.S.C. 705 (20)) who, with or without
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reasonable accommodation, can per- Subpart B—Eligibility and form the essential functions of a volun- Responsibilities of a Sponsor teer position that such individual holds or desires. If a sponsor has prepared a § 2552.21 Who is eligible to serve as a written description before advertising sponsor? or interviewing applicants for the posi- The Corporation awards grants to tion, the written description may be public agencies, including Indian tribes considered evidence of the essential and non-profit private organizations, in functions of the volunteer position. the United States that have the au- (s) Service area. The geographically thority to accept and the capability to defined area in which Foster Grand- administer a Foster Grandparent parents are recruited, enrolled, and project. placed on assignments. (t) Service schedule. A written delinea- § 2552.22 What are the responsibilities tion of the days and times a Foster of a sponsor? Grandparent serves each week. A sponsor is responsible for fulfilling (u) Sponsor. A public agency or pri- all project management requirements vate non-profit organization that is re- necessary to accomplish the purposes sponsible for the operation of a Foster of the Foster Grandparent Program as Grandparent project. specified in the Act. A sponsor shall (v) Stipend. A payment to Foster not delegate or contract these respon- Grandparents to enable them to serve sibilities to another entity. A sponsor without cost to themselves. The shall comply with all program regula- amount of the stipend is determined by tions and policies, and grant provisions the Corporation and is payable in reg- prescribed by the Corporation. ular installments. The minimum § 2552.23 What are a sponsor’s pro- amount of the stipend is set by law and gram responsibilities? shall be adjusted by the CEO from time to time. A sponsor shall: (a) Focus Foster Grandparent re- (w) Trust Act. The National and Com- sources on critical problems affecting munity Service Trust Act of 1993, Pub. children with special and exceptional L. 103–82, Sept. 21, 1993, 107 Stat. 785. needs within the project’s service area. (x) United States and States. Each of (b) Assess in collaboration with other the several States, the District of Co- community organizations or utilize ex- lumbia, the U.S. Virgin Islands, the isting assessment of the needs of the Commonwealth of Puerto Rico, Guam client population in the community and American Samoa, and Trust Terri- and develop strategies to respond to tories of the Pacific Islands. those needs using the resources of Fos- (y) Volunteer assignment plan. A writ- ter Grandparents. ten description of a Foster Grand- (c) Develop and manage a system of parent’s assignment with a child. The volunteer stations by: plan identifies specific outcomes for (1) Ensuring that a volunteer station the child served and the activities of is a public or non-profit private organi- the Foster Grandparent. zation, or an eligible proprietary (z) Volunteer station. A public agency, health care agency, capable of serving private non-profit organization or pro- as a volunteer station for the place- prietary health care agency or organi- ment of Foster Grandparents; zation that accepts the responsibility (2) Ensuring that the placement of for assignment and supervision of Fos- Foster Grandparents will be governed ter Grandparents in health, education, by a Memorandum of Understanding: social service or related settings such (i) That is negotiated prior to place- as hospitals, homes for dependent and ment; neglected children, or similar estab- (ii) That specifies the mutual respon- lishments. Each volunteer station sibilities of the station and sponsor; must be licensed or otherwise certified, (iii) That is renegotiated at least when required, by the appropriate state every three years; and or local government. Private homes are (iv) That states the station assures it not volunteer stations. will not discriminate against Foster
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Grandparents or in the operation of its § 2552.24 What are a sponsor’s respon- program on the basis of race, color, na- sibilities for securing community tional origin, sex, age, political affili- participation? ation, religion, or on the basis of dis- (a) A sponsor shall secure community ability, if the participant or member is participation in local project operation a qualified individual with a disability; by establishing an Advisory Council or and a similar organizational structure with (3) Reviewing volunteer placements a membership that includes people: regularly to ensure that clients are eli- (1) Knowledgeable of human and so- gible to be served. cial needs of the community; (d) Develop Foster Grandparent serv- (2) Competent in the field of commu- ice opportunities to support locally- nity service, volunteerism and chil- identified needs of eligible children in a dren’s issues; way that considers the skills and expe- (3) Capable of helping the sponsor riences of Foster Grandparents. meet its administrative and program (e) Consider the demographic make- responsibilities including fund-raising, up of the project service area in the en- publicity and programming for impact; rollment of Foster Grandparents, tak- (4) With interest in and knowledge of the capability of older adults; and ing special efforts to recruit eligible in- (5) Of a diverse composition that re- dividuals from minority groups, per- flects the demographics of the service sons with disabilities, and under-rep- area. resented groups. (b) The sponsor determines how such (f) Provide Foster Grandparents with participation shall be secured con- assignments that show direct and de- sistent with the provisions of para- monstrable benefits to the children and graphs (a)(1) through (a)(5) of this sec- the community served, the Foster tion. Grandparents, and the volunteer sta- tion; with required cost reimburse- § 2552.25 What are a sponsor’s admin- ments specified in § 2552.45; with not istrative responsibilities? less than 40 hours of orientation of A sponsor shall: which 20 hours must be pre-service, and (a) Assume full responsibility for se- an average of 4 hours of monthly in- curing maximum and continuing com- service training. munity financial and in-kind support (g) Encourage the most efficient and to operate the project successfully. effective use of Foster Grandparents by (b) Provide levels of staffing and re- coordinating project services and ac- sources appropriate to accomplish the tivities with related national, state purposes of the project and carry out and local programs, including other its project management responsibil- Corporation programs. ities. (h) Conduct an annual appraisal of (c) Employ a full-time project direc- volunteers’ performance and annual re- tor to accomplish program objectives view of their income eligibility. and manage the functions and activi- (i) Develop, and annually update, a ties delegated to project staff for NSSC plan for promoting senior service with- program(s) within its control. A full- time project director shall not serve in the project’s service area. concurrently in another capacity, paid (j) Annually assess the accomplish- or unpaid, during established working ments and impact of the project on the hours. The project director may par- identified needs and problems of the ticipate in activities to coordinate pro- client population in the community. gram resources with those of related (k) Establish written service policies local agencies, boards or organizations. for Foster Grandparents that include A sponsor may negotiate the employ- but are not limited to annual and sick ment of a part-time project director leave, holidays, service schedules, ter- with the Corporation when it can be mination, appeal procedures, meal and demonstrated that such an arrange- transportation reimbursements. ment will not adversely affect the size,
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scope, and quality of project oper- in emergency situations for thirty ations. days; (d) Consider all project staff as spon- (2) An application for refunding sor employees subject to its personnel under the Act may not be denied unless policies and procedures. the recipient has been given: (e) Compensate project staff at a (i) Notice at least 75 days before the level that is comparable with other denial of such application of the possi- similar staff positions in the sponsor bility of such denial and the grounds organization and/or project service for any such denial; and area. (ii) Opportunity to show cause why (f) Establish risk management poli- such action should not be taken; cies and procedures covering project (3) In any case where an application and Foster Grandparent activities. for refunding is denied for failure to This includes provision of appropriate comply with the terms and conditions insurance coverage for Foster Grand- of the grant, the recipient shall be af- forded an opportunity for an informal parents, vehicles and other properties hearing before an impartial hearing of- used in the project. ficer, who has been agreed to by the re- (g) Establish record keeping/report- cipient and the Corporation; and ing systems in compliance with Cor- (4) Assistance under the Act shall not poration requirements that ensure be terminated for failure to comply quality of program and fiscal oper- with applicable terms and conditions ations, facilitate timely and accurate unless the recipient has been afforded submission of required reports and co- reasonable notice and opportunity for a operate with Corporation evaluation full and fair hearing. and data collection efforts. (b) In order to assure equal access to (h) Comply with and ensure that all all recipients, such hearings or other volunteer stations comply with all ap- meetings as may be necessary to fulfill plicable civil rights laws and regula- the requirements of this section shall tions, including providing reasonable be held in locations convenient to the accommodation to qualified individ- recipient agency. uals with disabilities. (c) The procedures for suspension, termination, and denial of refunding, § 2552.26 May a sponsor administer that apply to the Foster Grandparent more than one program grant from the Corporation? Program are specified in 45 CFR part 1206. A sponsor may administer more than one Corporation program grant. Subpart D—Foster Grandparent Eligibility, Status and Cost Re- Subpart C—Suspension and Termi- imbursements nation of Corporation Assist- ance § 2552.41 Who is eligible to be a Foster Grandparent? § 2552.31 What are the rules on suspen- (a) To be a Foster Grandparent an in- sion, termination, and denial of re- dividual must: funding of grants? (1) Be 60 years of age or older; (a) The Chief Executive Officer or (2) Be determined by a physical ex- designee is authorized to suspend fur- amination to be capable, with or with- ther payments or to terminate pay- out reasonable accommodation, of ments under any grant providing as- serving children with exceptional or sistance under the Act whenever he/she special needs without detriment to ei- determines there is a material failure ther himself/herself or the children to comply with applicable terms and served; conditions of the grant. The Chief Ex- (3) Agree to abide by all requirements ecutive Officer shall prescribe proce- as set forth in this part; and dures to ensure that: (4) In order to receive a stipend, have (1) Assistance under the Act shall not an income that is within the income be suspended for failure to comply with eligibility guidelines specified in this applicable terms and conditions, except subpart D.
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(b) Eligibility to be a Foster Grand- (e) Once enrolled, a Foster Grand- parent shall not be restricted on the parent shall remain eligible to serve basis of formal education, experience, and to receive a stipend so long as his race, religion, color, national origin, or her income, does not exceed the ap- sex, age, handicap, or political affili- plicable income eligibility guideline by ation. 20 percent.
§ 2552.42 What income guidelines gov- § 2552.43 What is considered income ern eligibility to serve as a for determining volunteer eligi- stipended Foster Grandparent? bility? (a) To be enrolled and receive a sti- (a) For determining eligibility, ‘‘in- pend, a Foster Grandparent cannot come’’ refers to total cash and in-kind have an annual income from all receipts before taxes from all sources sources, after deducting allowable med- ical expenses, which exceeds the pro- including: gram’s income eligibility guideline for (1) Money, wages, and salaries before the state in which he or she resides. any deduction, but not including food The income eligibility guideline for or rent in lieu of wages; each state is the higher amount of ei- (2) Receipts from self-employment or ther: from a farm or business after deduc- (1) 125 percent of the poverty line as tions for business or farm expenses; set forth in 42 U.S.C. 9902 (2); or (3) Regular payments for public as- (2) 135 percent of the poverty line, in sistance, Social Security, Unemploy- those primary metropolitan statistical ment or Workers Compensation, strike areas (PMSA), metropolitan statistical benefits, training stipends, alimony, areas (MSA) and non-metropolitan child support, and military family al- counties identified by the Corporation lotments, or other regular support as being higher in cost of living, as de- from an absent family member or termined by application of the Volun- someone not living in the household; teers in Service to America (VISTA) (4) Government employee pensions, subsistence rates. In Alaska the guide- private pensions, and regular insurance line may be waived by the Corporation or annuity payments; and State Director if a project dem- onstrates that low-income individuals (5) Income from dividends, interest, in that location are participating in net rents, royalties, or income from es- the project. tates and trusts. (b) Annual income is counted for the (b) For eligibility purposes, income past 12 months and includes the appli- does not refer to the following money cant or enrollee’s income and that of receipts: his/her spouse, if the spouse lives in the (1) Any assets drawn down as with- same residence. Sponsors shall count drawals from a bank, sale of property, the value of shelter, food, and clothing, house or car, tax refunds, gifts, one- if provided at no cost by persons re- time insurance payments or compensa- lated to the applicant, enrollee, or tion from injury. spouse. (2) Non-cash income, such as the (c) Allowable medical expenses are bonus value of food and fuel produced annual out-of-pocket medical expenses and consumed on farms and the im- for health insurance premiums, health puted value of rent from owner-occu- care services, and medications provided pied farm or non-farm housing. to the applicant, enrollee, or spouse which were not and will not be paid by § 2552.44 Is a Foster Grandparent a Medicare, Medicaid, other insurance, federal employee, an employee of or other third party pay or, and which the sponsor or of the volunteer sta- do not exceed 15 percent of the applica- tion? ble income guideline. Foster Grandparents are volunteers, (d) Applicants whose income is not and are not employees of the sponsor, more than 100 percent of the poverty the volunteer station, the Corporation, line shall be given special consider- or the Federal Government. ation for enrollment.
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§ 2552.45 What cost reimbursements project activities, including orienta- are provided to Foster Grand- tion, training, and recognition events. parents? (d) Physical examination. Foster Cost reimbursements include: Grandparents are provided a physical (a) Stipend. Foster Grandparents who examination prior to assignment and are income eligible will receive a sti- annually thereafter to ensure that they pend in an amount determined by the will be able to provide supportive serv- Corporation and payable in regular in- ice without injury to themselves or the stallments, to enable them to serve children served. without cost to themselves. The sti- (e) Meals and recognition. Foster pend is paid for the time Foster Grand- Grandparents shall be provided the fol- parents spend with their assigned chil- lowing within limits of the project’s dren, for earned leave, and for attend- available resources: ance at official project events. (1) Assistance with the cost of meals (b) Insurance. A Foster Grandparent taken while on assignment; and is provided with the Corporation-speci- (2) Recognition for their service. fied minimum levels of insurance as follows: § 2552.46 May the cost reimbursements (1) Accident insurance. Accident insur- of a Foster Grandparent be subject ance covers Foster Grandparents for to any tax or charge, be treated as wages or compensation, or affect personal injury during travel between eligibility to receive assistance from their homes and places of assignment, other programs? during their volunteer service, during meal periods while serving as a volun- No. Foster Grandparent’s cost reim- teer, and while attending project-spon- bursements are not subject to any tax sored activities. Protection shall be or charge or treated as wages or com- provided against claims in excess of pensation for the purposes of unem- any benefits or services for medical ployment insurance, worker’s com- care or treatment available to the vol- pensation, temporary disability, retire- unteer from other sources. ment, public assistance, or similar ben- (2) Personal liability insurance. Protec- efit payments or minimum wage laws. tion is provided against claims in ex- Cost reimbursements are not subject to cess of protection provided by other in- garnishment, and do not reduce or surance. It does not include profes- eliminate the level of, or eligibility for, sional liability coverage. assistance or services a Foster Grand- (3) Excess automobile liability insur- parent may be receiving under any gov- ance. (i) For Foster Grandparents who ernmental program. drive in connection with their service, protection is provided against claims Subpart E—Foster Grandparent in excess of the greater of either: Terms of Service (A) Liability insurance volunteers carry on their own automobiles; or § 2552.51 What are the terms of service (B) The limits of applicable state fi- of a Foster Grandparent? nancial responsibility law, or in its ab- A Foster Grandparent shall serve a sence, levels of protection to be deter- minimum of nine months a year for an mined by the Corporation for each per- average of 20 hours of service per week. son, each accident, and for property A Foster Grandparent shall not serve damage. more than 1044 hours per year. (ii) Foster Grandparents who drive their personal vehicles to or on assign- § 2552.52 What factors are considered ments or project-related activities in determining a Foster Grand- shall maintain personal automobile li- parent’s service schedule? ability insurance equal to or exceeding (a) Travel time between the Foster the levels established by the Corpora- Grandparent’s home and place of as- tion. signment is not part of the service (c) Transportation. Foster Grand- schedule and is not stipended. parents shall receive assistance with (b) Travel time between individual the cost of transportation to and from assignments is a part of the service volunteer assignments and official schedule and is stipended.
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(c) Meal time may be part of the (b) Select eligible children for as- service schedule and is stipended only signed volunteers. if it is specified in the goal statement (c) Develop a written volunteer as- as part of the service activity. signment plan for each child that iden- tifies the role and activities of the Fos- § 2552.53 Under what circumstances ter Grandparent and expected out- may a Foster Grandparent’s service comes for the child served. be terminated? (d) Obtain a Letter of Agreement for (a) A sponsor may remove a Foster Foster Grandparents assigned in-home. Grandparent from service for cause. This letter must comply with all Fed- Grounds for removal include but are eral, State and local regulations. not limited to: extensive and unauthor- (e) Provide Foster Grandparents serv- ized absences; misconduct; inability to ing the station with: perform assignments; and failure to ac- (1) Orientation to the station and any cept supervision. A Foster Grandparent in-service training necessary to en- may also be removed from service for hance performance of assignments; having income in excess of the eligi- (2) Resources required for perform- bility level. ance of assignments including reason- (b) The sponsor shall establish appro- able accommodation; and priate policies on service termination (3) Appropriate recognition. as well as procedures for appeal from (f) Designate a staff member to over- such adverse action. see fulfillment of station responsibil- ities and supervision of Foster Grand- parents while on assignment. Subpart F—Responsibilities of a (g) Keep records and prepare reports Volunteer Station required by the sponsor. (h) Provide for the safety of Foster § 2552.61 When may a sponsor serve as a volunteer station? Grandparents assigned to it. (i) Comply with all applicable civil (a) A sponsor may function as a vol- rights laws and regulations including unteer station if it is: reasonable accommodation for Foster (1) A State organization admin- Grandparents with disabilities. istering a statewide Foster Grand- (j) Undertake such other responsibil- parent project where the volunteer sta- ities as may be necessary to the suc- tion is part of the State organization; cessful performance of Foster Grand- or parents in their assignments or as (2) A Federal or State-recognized In- agreed to in the Memorandum of Un- dian tribal government. derstanding. (b) Other sponsors not included in the categories specified in paragraphs (a)(1) Subpart G—Foster Grandparent and (a)(2) of this section, can serve as a Placements and Assignments volunteer station provided that no more than 20 percent of its budgeted § 2552.71 What requirements govern VSYs can be placed in programs admin- the assignment of Foster Grand- istered by such sponsors. In special cir- parents? cumstances, the Corporation may Foster Grandparent assignments grant a waiver to increase this percent- shall: age. (a) Provide for Foster Grandparents to give direct services to one or more § 2552.62 What are the responsibilities eligible children. Foster Grandparents of a volunteer station? cannot be assigned to roles such as A volunteer station shall undertake teacher’s aides, group leaders or other the following responsibilities in sup- similar positions that would detract port of Foster Grandparent volunteers: from the person-to-person relationship. (a) Develop volunteer assignments (b) Result in person-to-person sup- that meet the requirements specified portive relationships with each child in §§ 2552.71 through 2552.72 and regu- served. larly assess those assignments for con- (c) Support the development and tinued appropriateness. growth of each child served.
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(d) Be meaningful to the Foster mination will be made through mutual Grandparent. agreement by all parties involved in (e) Be supported by appropriate ori- the provision of services to the indi- entation, training and supervision. vidual served. (b) In cases where the assigned Fos- § 2552.72 Is a written volunteer assign- ter Grandparent becomes unavailable ment plan required for each volun- to serve a particular individual, the teer? sponsor may select another Foster (a) All Foster Grandparents shall re- Grandparent to continue the service. ceive a written volunteer assignment (c) The sponsor may terminate serv- plan developed by the volunteer station ice to a mentally retarded individual that: over age 21, if it determines that such (1) Is approved by the sponsor and ac- service is no longer in the best interest cepted by the Foster Grandparent; of either the Foster Grandparent or the (2) Identifies the individual child(ren) individual served. to be served; (3) Identifies the role and activities Subpart I—Application and Fiscal of the Foster Grandparent and ex- pected outcomes for the child; Requirements (4) Addresses the period of time each § 2552.91 What is the process for appli- child should receive such services; and cation and award of a grant? (5) Is used to review the status of the Foster Grandparent’s services in work- (a) How and when may an eligible orga- ing with the assigned child, as well as nization apply for a grant? (1) An eligi- the impact of the assignment on the ble organization may file an applica- child’s development. tion for a grant at any time. (b) If there is an existing plan that (2) Before submitting an application incorporates paragraphs (a)(2), (3), and an applicant shall determine the avail- (4) of this section, that plan shall meet ability of funds from the Corporation. the requirement. (3) The Corporation may also solicit grants. Applicants solicited under this Subpart H—Children Served provision are not assured of selection or approval and may have to compete § 2552.81 What type of children are eli- with other solicited or unsolicited ap- gible to be served? plications. Foster Grandparents serve only chil- (b) What must an eligible organization dren and youth with special and excep- include in a grant application? (1) An ap- tional needs who are less than 21 years plicant shall complete standard forms of age. prescribed by the Corporation. (2) The applicant shall comply with § 2552.82 Under what circumstances the provisions of Executive Order 12372 may a Foster Grandparent continue ‘‘Intergovernmental Review of Federal to serve an individual beyond his or Programs,’’ (3 CFR, 1982 Comp., p.197) her 21st birthday? in 45 CFR Part 1233, and any other ap- (a) Only when a Foster Grandparent plicable requirements. has been assigned to, and has developed (c) Who reviews the merits of an appli- a relationship with, a mentally re- cation and how is a grant awarded? (1) tarded child, that assignment may con- The Corporation reviews and deter- tinue beyond the individual’s 21st mines the merit of an application by birthday, provided that: its responsiveness to published guide- (1) Such individual was receiving lines and to the overall purpose and ob- such services prior to attaining the jectives of the program. When funds chronological age of 21, and the con- are available, the Corporation awards a tinuation of service is in the best inter- grant in writing to each applicant est of the individual; and whose grant proposal provides the best (2) The sponsor determines that it is potential for serving the purpose of the in the best interest of both the Foster program. The award will be docu- Grandparent and the individual for the mented by Notice of Grant Award assignment to continue. Such a deter- (NGA).
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(2) The Corporation and the spon- such contributions are expended pro- soring organization are the parties to vided such expenditures are consistent the NGA. The NGA will document the with the provisions of the Act. sponsor’s commitment to fulfill spe- (d) Are program expenditures subject to cific programmatic objectives and fi- audit? All expenditures by the grantee nancial obligations. It will document of Federal and non-Federal funds, in- the extent of the Corporation’s obliga- cluding expenditures from excess lo- tion to provide financial support to the cally generated contributions in sup- sponsor. port of the grant, are subject to audit (d) What happens if the Corporation re- by the Corporation, its Inspector Gen- jects an application? The Corporation eral or their authorized agents. will return an application that is not (e) How are Foster Grandparent cost re- approved for funding to the applicant imbursements budgeted? The total of cost with an explanation of the Corpora- reimbursements for Foster Grand- tion’s decision. parents, including stipends, insurance, (e) For what period of time does the transportation, meals, physical exami- Corporation award a grant? The Cor- nations, and recognition, shall be a poration awards a Foster Grandparent sum equal to at least 80 percent of the grant for a specified period that is usu- amount of the federal share of the ally 12 months in duration. grant award. Federal, required and ex- cess non-Corporation resources can be § 2552.92 What are project funding re- used to make up the amount allotted quirements? for cost reimbursements. (a) Is non-Corporation support re- (f) May a sponsor pay stipends at a rate quired? A Corporation grant may be different than the rate established by the awarded to fund up to 90 percent of the Corporation? A sponsor shall pay sti- cost of development and operation of a pends at the same rate as that estab- Foster Grandparent project. The spon- lished by the Corporation. sor is required to contribute at least 10 percent of the total project cost from § 2552.93 What are grants management non-Federal sources or authorized Fed- requirements? eral sources. What rules govern a sponsor’s man- (b) Under what circumstances does the agement of grants? Corporation allow less than the 10 percent (a) A sponsor shall manage a grant non-Corporation support? The Corpora- awarded in accordance with: tion may allow exceptions to the 10 (1) The Act; percent local support requirement in (2) Regulations in this part; cases of demonstrated need such as: (3) 45 CFR Part 2541, ‘‘Uniform Ad- (1) Initial difficulties in the develop- ministrative Requirements for Grants ment of local funding sources during and Cooperative Agreements to State the first three years of operations; or and Local Governments’’, or 45 CFR (2) An economic downturn, the occur- Part 2543, ‘‘Grants and Agreements rence of a natural disaster, or similar with Institutions of Higher Education, events in the service area that severely Hospitals, and Other Non-Profit Orga- restrict or reduce sources of local fund- nizations’’; ing support; or (4) The following OMB Circulars, as (3) The unexpected discontinuation of appropriate A–21, ‘‘Cost Principles for local support from one or more sources Educational Institutions’’, A–87, ‘‘Cost that a project has relied on for a period Principles for State, Local and Indian of years. Tribal Governments’’, A–122, ‘‘Cost (c) May the Corporation restrict how a Principles for Non-Profit Organiza- sponsor uses locally generated contribu- tions’’, and A–133, ‘‘Audits of States, tions in excess of the 10 percent non-Cor- Local Governments, and Other Non- poration support required? Whenever lo- Profit Organizations’’ (OMB circulars cally generated contributions to Foster are available electronically at the OMB Grandparent projects are in excess of homepage www.whitehouse.gov/WH/ the minimum 10 percent non-Corpora- EOP/omb); and tion support required, the Corporation (5) Other applicable Corporation re- may not restrict the manner in which quirements.
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(b) Project support provided under a (i) Written Corporation approval/con- Corporation grant shall be furnished at currence is required for the following the lowest possible cost consistent changes in the approved grant: with the effective operation of the (1) Reduction in budgeted volunteer project. service years. (c) Project costs for which Corpora- (2) Change in the service area. tion funds are budgeted must be justi- (3) Transfer of budgeted line items fied as being necessary and essential to from Volunteer Expenses to Support Expenses. This requirement does not project operation. apply if the 80 percent volunteer cost (d) Other than reimbursement for reimbursement ratio is maintained. meals during a normal meal period, project funds shall not be used to reim- burse volunteers for expenses, includ- Subpart J—Non-Stipended Foster ing transportation costs, incurred Grandparents while performing their volunteer as- § 2552.101 What rule governs the re- signments. Equipment or supplies for cruitment and enrollment of per- volunteers on assignment are not al- sons who do not meet the income lowable costs. Assignment-related eligibility guidelines to serve as costs of transportation, equipment, Foster Grandparents without sti- supplies, etc. are the responsibility of pends? the volunteer station or a third party, Over-income persons, age 60 or over, and are not an allowable grant cost. may be enrolled in FGP projects as (e) Volunteer expense items, includ- non-stipended volunteers in commu- ing transportation, meals, recognition nities where there is no RSVP project activities and items purchased at the or where agreement is reached with the volunteers’ own expense and which are RSVP project that allows for the en- not reimbursed, are not allowable as rollment of non-stipended volunteers in contributions to the non-Federal share the FGP project. of the budget. § 2552.102 What are the conditions of (f) Costs of other insurance not re- service of non-stipended Foster quired by program policy, but main- Grandparents? tained by a sponsor for the general con- Non-stipended Foster Grandparents duct of its activities are allowable with serve under the following conditions: the following limitations: (a) They must not displace or prevent (1) Types and extent of and cost of eligible low-income individuals from coverage are according to sound insti- becoming Foster Grandparents. tutional and business practices; (b) No special privilege or status is (2) Costs of insurance or a contribu- granted or created among Foster tion to any reserve covering the risk of Grandparents, stipended or non- loss of or damage to Government- stipended, and equal treatment is re- owned property are unallowable unless quired. the government specifically requires (c) Training, supervision, and other and approves such costs; and support services and cost reimburse- (3) The cost of insurance on the lives ments, other than the stipend, are of officers, trustees or staff is unallow- available equally to all Foster Grand- parents. able except where such insurance is (d) All regulations and requirements part of an employee plan which is not applicable to the program, with the ex- unduly restricted. ception listed in paragraph (f) of this (g) Costs to bring a sponsor into basic section, apply to all Foster Grand- compliance with accessibility require- parents. ments for individuals with disabilities (e) Non-stipended Foster Grand- are not allowable costs. parents may be placed in separate vol- (h) Payments to settle discrimina- unteer stations where warranted. tion allegations, either informally (f) Non-stipended Foster Grand- through a settlement agreement or for- parents will be encouraged but not re- mally as a result of a decision finding quired to serve an average of 20 hours discrimination, are not allowable costs. per week and nine months per year.
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Foster Grandparents will maintain a (b) The application of the provisions close person-to-person relationship of 42 U.S.C. 5044 and 5058. with their assigned children on a reg- ular basis. § 2552.113 What financial obligation (g) Non-stipended Foster Grand- does the Corporation incur for non- parents may contribute the costs they Corporation funded projects? incur in connection with their partici- Entry into a Memorandum of Agree- pation in the program. Such contribu- ment with, or issuance of an NGA to a tions are not counted as part of the re- sponsor of a non-Corporation funded quired non-federal share of the grant project, does not create a financial ob- but may be reflected in the budget col- ligation on the part of the Corporation umn for excess non-federal resources. for any costs associated with the § 2552.103 Must a sponsor be required project, including increases in required to enroll non-stipended Foster payments to Foster Grandparents that Grandparents? may result from changes in the Act or Enrollment of non-stipended Foster in program regulations. Grandparents is not a factor in the § 2552.114 What happens if a non-Cor- award of new or continuation grants. poration funded sponsor does not comply with the Memorandum of § 2552.104 May Corporation funds be used for non-stipended Foster Agreement? Grandparents? A non-Corporation funded project Federally appropriated funds for FGP sponsor’s noncompliance with the shall not be used to pay any cost, in- Memorandum of Agreement may result cluding any administrative cost, in- in suspension or termination of the curred in implementing the regulations Corporation’s agreement and all bene- in this part for non-stipended Foster fits specified in § 2552.112. Grandparents. Subpart L—Restrictions and Legal Subpart K—Non-Corporation Representation Funded Foster Grandparent Program Projects § 2552.121 What legal limitations apply to the operation of the Foster § 2552.111 Under what conditions can Grandparent Program and to the an agency or organization sponsor expenditure of grant funds? a Foster Grandparent project with- out Corporation funding? (a) Political activities. (1) No part of any grant shall be used to finance, di- An eligible agency or organization rectly or indirectly, any activity to in- who wishes to sponsor a Foster Grand- fluence the outcome of any election to parent project without Corporation public office, or any voter registration funding, must sign a Memorandum of activity. Agreement with the Corporation that: (2) No project shall be conducted in a (a) Certifies its intent to comply with all Corporation requirements for the manner involving the use of funds, the Foster Grandparent Program; and provision of services, or the employ- (b) Identifies responsibilities to be ment or assignment of personnel in a carried out by each party. matter supporting or resulting in the identification of such project with: § 2552.112 What benefits are a non- (i) Any partisan or nonpartisan polit- Corporation funded project entitled ical activity associated with a can- to? didate, or contending faction or group, The Memorandum of Agreement enti- in an election; or tles the sponsor of a non-Corporation (ii) Any activity to provide voters or funded project to: prospective voters with transportation (a) All technical assistance and ma- to the polls or similar assistance in terials provided to Corporation-funded connection with any such election; or Foster Grandparent projects; and
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(iii) Any voter registration activity, port shall not be a required pre- except that voter registration applica- condition for a potential station to ob- tions and nonpartisan voter registra- tain Foster Grandparent service. tion information may be made avail- (4) If a volunteer station agrees to able to the public at the premises of provide funds to support additional the sponsor. But in making registra- Foster Grandparents or pay for other tion applications and nonpartisan Foster Grandparent support costs, the voter registration information avail- agreement shall be stated in a written able, employees of the sponsor shall Memorandum of Understanding. The not express preferences or seek to in- sponsor shall withdraw services if the fluence decisions concerning any can- station’s inability to provide monetary didate, political party, election issue, or in-kind support to the project under or voting decision. the Memorandum of Understanding di- (3) The sponsor shall not use grant minishes or jeopardizes the project’s fi- funds in any activity for the purpose of nancial capabilities to fulfill its obliga- influencing the passage or defeat of tions. legislation or proposals by initiative (5) Under no circumstances shall a petition, except: Foster Grandparent receive a fee for (i) In any case in which a legislative service from service recipients, their body, a committee of a legislative legal guardian, members of their fam- body, or a member of a legislative body ily, or friends. requests any volunteer in, or employee (d) Labor and anti-labor activity. The of such a program to draft, review or sponsor shall not use grant funds di- testify regarding measures or to make rectly or indirectly to finance labor or representation to such legislative body, anti-labor organization or related ac- committee or member; or tivity. (ii) In connection with an authoriza- (e) Fair labor standards. A sponsor tion or appropriations measure directly that employs laborers and mechanics affecting the operation of the FGP. for construction, alteration, or repair (b) Non-displacement of employed work- of facilities shall pay wages at pre- ers. A Foster Grandparent shall not vailing rates as determined by the Sec- perform any service or duty or engage retary of Labor in accordance with the in any activity which would otherwise Davis-Bacon Act, as amended, 40 U.S.C. be performed by an employed worker or 276a. which would supplant the hiring of or (f) Nondiscrimination. A sponsor or result in the displacement of employed sponsor employee shall not discrimi- workers, or impair existing contracts nate against a Foster Grandparent on for service. the basis of race, color, national origin, (c) Compensation for service. (1) An sex, age, religion, or political affili- agency or organization to which NSSC ation, or on the basis of disability, if volunteers are assigned, or which oper- the Foster Grandparent with a dis- ates or supervises any NSSC program ability is qualified to serve. shall not request or receive any com- (g) Religious activities. A Foster pensation from NSSC volunteers or Grandparent or a member of the from beneficiaries for services of NSSC project staff funded by the Corporation volunteers. shall not give religious instruction, (2) This section does not prohibit a conduct worship services or engage in sponsor from soliciting and accepting any form of proselytization as part of voluntary contributions from the com- his or her duties. munity at large to meet its local sup- (h) Nepotism. Persons selected for port obligations under the grant or project staff positions shall not be re- from entering into agreements with lated by blood or marriage to other parties other than beneficiaries to sup- project staff, sponsor staff or officers, port additional volunteers beyond or members of the sponsor Board of Di- those supported by the Corporation rectors, unless there is written concur- grant. rence from the community group es- (3) A Foster Grandparent volunteer tablished by the sponsor under Subpart station may contribute to the financial B of this part and with notification to support of the FGP. However, this sup- the Corporation.
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§ 2552.122 What legal coverage does Subpart E—Volunteer Terms of Service the Corporation make available to Foster Grandparents? 2553.51 What are the terms of service of a RSVP volunteer? It is within the Corporation’s discre- 2553.52 Under what circumstances may a tion to determine if Counsel is em- RSVP volunteer’s service be terminated? ployed and counsel fees, court costs, bail and other expenses incidental to Subpart F—Responsibilities of a Volunteer the defense of a Foster Grandparent Station are paid in a criminal, civil or adminis- 2553.61 When may a sponsor serve as a vol- trative proceeding, when such a pro- unteer station? ceeding arises directly out of perform- 2553.62 What are the responsibilities of a ance of the Foster Grandparent’s ac- volunteer station? tivities pursuant to the Act. The cir- cumstances under which the Corpora- Subpart G—Application and Fiscal tion may pay such expenses are speci- Requirements fied in 45 CFR part 1220. 2553.71 What is the process for application and award of a grant? PART 2553—THE RETIRED AND 2553.72 What are project funding require- ments? SENIOR VOLUNTEER PROGRAM 2553.73 What are grants management re- quirements? Subpart A—General Subpart H—Non-Corporation Funded Sec. Projects 2553.11 What is the Retired and Senior Vol- unteer Program? 2553.81 Under what conditions may an agen- 2553.12 Definitions. cy or organization sponsor a RSVP project without Corporation funding? Subpart B—Eligibility and Responsibilities of 2553.82 What benefits are a non-Corporation a Sponsor funded project entitled to? 2553.83 What financial obligation does the 2553.21 Who is eligible to serve as a sponsor? Corporation incur for non-Corporation 2553.22 What are the responsibilities of a funded projects? sponsor? 2553.84 What happens if a non-Corporation 2553.23 What are a sponsor’s program re- funded sponsor does not comply with the sponsibilities? Memorandum of Agreement? 2553.24 What are a sponsor’s responsibilities for securing community participation? Subpart I—Restrictions and Legal 2553.25 What are a sponsor’s administrative Representation responsibilities? 2553.26 May a sponsor administer more than 2553.91 What legal limitations apply to the one program grant from the Corporation? operation of the RSVP Program and to the expenditure of grant funds? Subpart C—Suspension, Termination and 2553.92 What legal coverage does the Cor- Denial of Refunding poration make available to RSVP volun- teers. 2553.31 What are the rules on suspension, termination and denial of refunding of AUTHORITY: 42 U.S.C. 4950 et seq. grants? SOURCE: 64 FR 14135, Mar. 24, 1999, unless otherwise noted. Subpart D—Eligibility, Cost Reimbursements and Volunteer Assignments Subpart A—General 2553.41 Who is eligible to be a RSVP volun- teer? § 2553.11 What is the Retired and Sen- 2553.42 Is a RSVP volunteer a federal em- ior Volunteer Program? ployee, an employee of the sponsor or of The Retired and Senior Volunteer the volunteer station? Program (RSVP) provides grants to 2553.43 What cost reimbursements are pro- qualified agencies and organizations vided to RSVP volunteers? for the dual purpose of: engaging per- 2553.44 May cost reimbursements received by a RSVP volunteer be subject to any sons 55 and older in volunteer service tax or charge, treated as wages or com- to meet critical community needs; and pensation, or affect eligibility to receive to provide a high quality experience assistance from other programs? that will enrich the lives of volunteers.
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§ 2553.12 Definitions. (j) Non-Corporation support (required). The percentage share of non-Federal (a) Act. The Domestic Volunteer cash and in-kind contributions re- Service Act of 1973, as amended, Pub. quired to be raised by the sponsor in L. 93–113, Oct. 1, 1973, 87 Stat. 396, 42 support of the grant, including non- U.S.C. 4950 et seq. Corporation federal, state and local (b) Adequate staffing level. The num- governments and privately raised con- ber of project staff or full-time equiva- tributions. lent needed by a sponsor to manage NSSC project operations considering (k) Non-Corporation support (excess). such factors as: number of budgeted The amount of non-Federal cash and volunteers, number of volunteer sta- in-kind contributions generated by a tions, and the size of the service area. sponsor in excess of the required per- (c) Assignment. The activities, func- centage. tions or responsibilities to be per- (l) Project. The locally planned and formed by volunteers identified in a implemented RSVP activity or set of written outline or description. activities in a service area as agreed (d) Chief Executive Officer. The Chief upon between a sponsor and the Cor- Executive Officer of the Corporation poration. appointed under the National and Com- (m) Qualified individual with a dis- munity Service Act of 1990, as amend- ability. An individual with a disability ed, (NCSA), 42 U.S.C. 12501 et seq. (as defined in the Rehabilitation Act, (e) Corporation. The Corporation for 29 U.S.C. 705 (20)) who, with or without National and Community Service es- reasonable accommodation, can per- tablished under the NCSA. The Cor- form the essential functions of a volun- poration is also sometimes referred to teer position that such individual holds as CNCS. or desires. If a sponsor has prepared a (f) Cost reimbursements. Reimburse- written description before advertising ments budgeted as Volunteer Expenses or interviewing applicants for the posi- and provided to volunteers to cover in- tion, the written description may be cidental costs, meals, transportation, considered evidence of the essential volunteer insurance, and recognition to functions of the volunteer position. enable them to serve without cost to (n) Service area. The geographically themselves. defined area approved in the grant ap- (g) Letter of Agreement. A written plication, in which RSVP volunteers agreement between a volunteer sta- are recruited, enrolled, and placed on tion, the sponsor, and person(s) served assignments. or the person legally responsible for (o) Sponsor. A public agency or pri- that person. It authorizes the assign- vate non-profit organization that is re- ment of a RSVP volunteer in the home sponsible for the operation of a RSVP of a client, defines RSVP volunteer ac- project. tivities, and specifies supervision ar- (p) Trust Act. The National and Com- rangements. munity Service Trust Act of 1993, as (h) Memorandum of Understanding. A amended, Public Law 103–82, Sept. 21, written statement prepared and signed 1993, 107 Stat. 785. by the RSVP project sponsor and the (q) United States and States. Each of volunteer station that identifies the several States, the District of Co- project requirements, working rela- lumbia, the U.S. Virgin Islands, the tionships and mutual responsibilities. Commonwealth of Puerto Rico, Guam (i) National Senior Service Corps and American Samoa, and Trust Terri- (NSSC). The collective name for the tories of the Pacific Islands. Foster Grandparent Program (FGP), (r) Volunteer station. A public agency, the Retired and Senior Volunteer Pro- private non-profit organization or pro- gram (RSVP), and the Senior Com- prietary health care agency or organi- panion Program (SCP), and Demonstra- zation that accepts responsibility for tion Programs established under Parts assignment, supervision and training of A, B, C, and E, Title II of the Act. RSVP volunteers. Each volunteer sta- NSSC is also referred to as the ‘‘Senior tion must be licensed or otherwise cer- Corps’’. tified, when required, by appropriate
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state or local government. Private (ii) That specifies the mutual respon- homes are not volunteer stations. sibilities of the station and sponsor; (iii) That is renegotiated at least Subpart B—Eligibility and every three years; and Responsibilities of a Sponsor (iv) That states the station assures it will not discriminate against RSVP § 2553.21 Who is eligible to serve as a volunteers or in the operation of its sponsor? program on the basis of race, color, na- The Corporation awards grants to tional origin, sex, age, political affili- public agencies, including Indian tribes ation, religion, or on the basis of dis- and non-profit private organizations, in ability, if the participant or member is the United States that have the au- a qualified individual with a disability; thority to accept and the capability to and administer a RSVP project. (3) Annually assessing the placement of RSVP volunteers to ensure the safe- § 2553.22 What are the responsibilities ty of volunteers and their impact on of a sponsor? meeting the needs of the community. A sponsor is responsible for fulfilling (d) Consider the demographic make- all project management requirements up of the project service area in the en- necessary to accomplish the purposes rollment of RSVP volunteers, taking of the RSVP program as specified in special efforts to recruit eligible indi- the Act. A sponsor shall not delegate viduals from minority groups, persons or contract these responsibilities to an- with disabilities and under represented other entity. A sponsor shall comply groups. with all regulations contained in this (e) Encourage the most efficient and part, policies, and grant provisions pre- effective use of RSVP volunteers by co- scribed by the Corporation. ordinating project services and activi- ties with related national, state and § 2553.23 What are a sponsor’s pro- local programs, including other Cor- gram responsibilities? poration programs. A sponsor shall: (f) Develop, and annually update, a (a) Focus RSVP resources to have a plan for promoting service by older positive impact on critical human and adults within the project service area. social needs within the project service (g) Conduct an annual assessment of area. the accomplishments and impact of the (b) Assess in collaboration with other project and how they meet the identi- community organizations or utilize ex- fied needs and problems of the commu- isting assessments of the needs of the nity. community or service area and develop (h) Provide RSVP volunteers with strategies to respond to those needs cost reimbursements specified in using the resources of RSVP volun- § 2553.43. teers. (c) Develop and manage a system of § 2553.24 What are a sponsor’s respon- volunteer stations to provide a wide sibilities for securing community participation? range of placement opportunities that appeal to persons age 55 and over by: (a) A sponsor shall secure community (1) Ensuring that a volunteer station participation in local project operation is a public or non-profit private organi- by establishing an Advisory Council or zation or an eligible proprietary health a similar organizational structure with care agency capable of serving as a vol- a membership that includes people: unteer station for the placement of (1) Knowledgeable about human and RSVP volunteers to meet locally iden- social needs of the community; tified needs; (2) Competent in the field of commu- (2) Ensuring the placement of RSVP nity service and volunteerism; volunteers is governed by a Memo- (3) Capable of helping the sponsor randum of Understanding: meet its administrative and program (i) That is negotiated prior to place- responsibilities including fund-raising, ment; publicity and programming for impact;
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(4) With an interest in and knowledge ations, facilitate timely and accurate of the capability of older adults; and submission of required reports and co- (5) Of a diverse composition that re- operate with Corporation evaluation flects the demographics of the service and data collection efforts. area. (h) Comply with and ensure that all (b) The sponsor determines how this volunteer stations comply with all ap- participation shall be secured, con- plicable civil rights laws and regula- sistent with the provisions of para- tions, including providing reasonable graphs (a)(1) through (a)(5) of this sec- accommodation to qualified individ- tion. uals with disabilities.
§ 2553.25 What are a sponsor’s admin- § 2553.26 May a sponsor administer istrative responsibilities? more than one program grant from A sponsor shall: the Corporation? (a) Assume full responsibility for se- A sponsor may administer more than curing maximum and continuing com- one Corporation program grant. munity financial and in-kind support to operate the project successfully. Subpart C—Suspension, Termi- (b) Provide levels of staffing and re- nation and Denial of Refund- sources appropriate to accomplish the ing purposes of the project and carry out its project management responsibil- § 2553.31 What are the rules on suspen- ities. sion, termination and denial of re- (c) Employ a full-time project direc- funding of grants? tor to accomplish program objectives (a) The Chief Executive Officer or and manage the functions and activi- designee is authorized to suspend fur- ties delegated to project staff for NSSC ther payments or to terminate pay- program(s) within its control. A full- ments under any grant providing as- time project director shall not serve sistance under the Act whenever he or concurrently in another capacity, paid she determines there is a material fail- or unpaid, during established working ure to comply with applicable terms hours. The project director may par- and conditions of the grant. The Chief ticipate in activities to coordinate pro- Executive Officer shall prescribe proce- gram resources with those of related dures to insure that: local agencies, boards or organizations. (1) Assistance under the Act shall not A sponsor may negotiate the employ- be suspended for failure to comply with ment of a part-time project director applicable terms and conditions, except with the Corporation when it can be in emergency situations for thirty demonstrated that such an arrange- days; ment will not adversely affect the size, (2) An application for refunding scope and quality of project operations. under the Act may not be denied unless (d) Consider all project staff as spon- the recipient has been given: sor employees subject to its personnel (i) Notice at least 75 days before the policies and procedures. denial of such application of the possi- (e) Compensate project staff at a bility of such denial and the grounds level that is comparable with similar for any such denial; and staff positions in the sponsor organiza- (ii) Opportunity to show cause why tion and/or project service area. such action should not be taken; (f) Establish risk management poli- (3) In any case where an application cies and procedures covering project for refunding is denied for failure to and RSVP activities. This includes pro- comply with the terms and conditions vision of appropriate insurance cov- of the grant, the recipient shall be af- erage for RSVP volunteers, vehicles forded an opportunity for an informal and other properties used in the hearing before an impartial hearing of- project. ficer, who has been agreed to by the re- (g) Establish record keeping and re- cipient and the Corporation; and porting systems in compliance with (4) Assistance under the Act shall not Corporation requirements that ensure be terminated for failure to comply quality of program and fiscal oper- with applicable terms and conditions
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unless the recipient has been afforded costs are the responsibility of the vol- reasonable notice and opportunity for a unteer station or a third party. full and fair hearing. (b) Meals. RSVP volunteers shall re- (b) In order to assure equal access to ceive assistance with the cost of meals all recipients, such hearings or other taken while on assignment. meetings as may be necessary to fulfill (c) Recognition. RSVP volunteers the requirements of this section shall shall be provided recognition for their be held in locations convenient to the service. recipient agency. (d) Insurance. A RSVP volunteer is (c) The procedures for suspension, provided with the Corporation-speci- termination, and denial of refunding, fied minimum levels of insurance as that apply to the Retired and Senior follows: Volunteer Program are specified in 45 (1) Accident insurance. Accident insur- CFR Part 1206. ance covers RSVP volunteers for per- sonal injury during travel between Subpart D—Eligibility, Cost Reim- their homes and places of assignment, bursements and Volunteer As- during their volunteer service, during signments meal periods while serving as a volun- teer, and while attending project spon- § 2553.41 Who is eligible to be a RSVP sored activities. Protection shall be volunteer? provided against claims in excess of any benefits or services for medical (a) To be an RSVP volunteer, an indi- care or treatment available to the vol- vidual must: unteer from other sources. (1) Be 55 years of age or older; (2) Personal liability insurance. Protec- (2) Agree to serve without compensa- tion is provided against claims in ex- tion; cess of protection provided by other in- (3) Reside in or nearby the commu- surance. It does not include profes- nity served by RSVP; sional liability coverage. (4) Agree to abide by all requirements (3) Excess automobile liability insur- as set forth in this part. ance. (i) For RSVP volunteers who (b) Eligibility to serve as a RSVP drive in connection with their service, volunteer shall not be restricted on the protection is provided against claims basis of formal education, experience, in excess of the greater of either: race, religion, color, national origin, (A) Liability insurance the volun- sex, age, handicap or political affili- teers carry on their own automobiles; ation. or § 2553.42 Is a RSVP volunteer a federal (B) The limits of applicable state fi- employee, an employee of the spon- nancial responsibility law, or in its ab- sor or of the volunteer station? sence, levels of protection to be deter- mined by the Corporation for each per- RSVP volunteers are not employees son, each accident, and for property of the sponsor, the volunteer station, damage. the Corporation, or the Federal Gov- (ii) RSVP volunteers who drive their ernment. personal vehicles to or on assignments § 2553.43 What cost reimbursements or project-related activities shall are provided to RSVP volunteers? maintain personal automobile liability insurance equal to or exceeding the RSVP volunteers are provided the levels established by the Corporation. following cost reimbursements within the limits of the project’s available re- § 2553.44 May cost reimbursements re- sources: ceived by a RSVP volunteer be sub- (a) Transportation. RSVP volunteers ject to any tax or charge, treated as shall receive assistance with the cost wages or compensation, or affect of transportation to and from volun- eligibility to receive assistance from teer assignments and official project other programs? activities, including orientation, train- No. RSVP volunteers’ cost reim- ing, and recognition events. On-the-job bursements are not subject to any tax or assignment related transportation or charge and are not treated as wages
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or compensation for the purposes of un- § 2553.62 What are the responsibilities employment insurance, worker’s com- of a volunteer station? pensation, temporary disability, retire- A volunteer station shall undertake ment, public assistance, or similar ben- the following responsibilities in sup- efit payments or minimum wage laws. port of RSVP volunteers: Cost reimbursements are not subject to (a) Develop volunteer assignments garnishment, do not reduce or elimi- that impact critical human and social nate the level of or eligibility for as- needs, and regularly assess those as- sistance or services a volunteer may be signments for continued appropriate- receiving under any governmental pro- ness; gram. (b) Assign staff member responsible for day to day oversight of the place- Subpart E—Volunteer Terms of ment of RSVP volunteers within the Service volunteer station and for assessing the impact of volunteers in addressing § 2553.51 What are the terms of service community needs; of a RSVP volunteer? (c) Obtain a Letter of Agreement for A RSVP volunteer shall serve weekly an RSVP volunteer assigned in-home. on a regular basis, or intensively on The Letter of Agreement shall comply short-term assignments consistent with all Federal, State and local regu- with the assignment description. lations; (d) Keep records and prepare reports § 2553.52 Under what circumstances as required; may a RSVP volunteer’s service be (e) Comply with all applicable civil terminated? rights laws and regulations including (a) A sponsor may remove a RSVP reasonable accommodation for RSVP volunteer from service for cause. volunteers with disabilities; and Grounds for removal include but are (f) Provide assigned RSVP volunteers not limited to: extensive and unauthor- the following support: ized absences; misconduct; inability to (1) Orientation to station and appro- perform assignments; and failure to ac- priate in-service training to enhance cept supervision. performance of assignments; (b) The sponsor shall establish appro- (2) Resources required for perform- priate policies on service termination ance of assignments including reason- as well as procedures for appeal from able accommodation; such adverse action. (3) Supervision while on assignment; (4) Appropriate recognition; and Subpart F—Responsibilities of a (5) Provide for the safety of RSVP Volunteer Station volunteers assigned to it. (g) Undertake such other responsibil- § 2553.61 When may a sponsor serve as ities as may be necessary to the suc- a volunteer station? cessful performance of RSVP volun- The sponsor may function as a volun- teers in their assignments or as agreed teer station, provided that no more to in the Memorandum of Under- than 5% of the total number of volun- standing. teers budgeted for the project are as- signed to it in administrative or sup- Subpart G—Application and Fiscal port positions. This limitation does not Requirements apply to the assignment of volunteers to other programs administered by the § 2553.71 What is the process for appli- sponsor or special volunteer activities cation and award of a grant? of the project. The RSVP project itself (a) How and when may an eligible orga- may function as a volunteer station or nization apply for a grant? (1) An eligi- may initiate special volunteer activi- ble organization may file an applica- ties provided the Corporation agrees tion for a RSVP grant at any time. that these activities are in accord with (2) Before submitting an application, program objectives and will not hinder an applicant shall determine the avail- overall project operations. ability of funds.
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(3) The Corporation may also solicit (2) A sponsor is responsible for identi- grant applicants. Applicants solicited fying non-Corporation funds which by the Corporation are not assured of may include in-kind contributions. selection or approval and may have to (b) Under what circumstances does the compete with other solicited or unso- Corporation allow less than the percent- licited applicants. age identified in paragraph (a) of this sec- (b) What must an eligible organization tion? The Corporation may allow excep- include in a grant application? (1) An ap- tions to the local support requirement plicant shall complete standard forms identified in paragraph (a) of this sec- prescribed by the Corporation. tion in cases of demonstrated need (2) The applicant shall comply with such as: the provisions of Executive Order 12372, the ‘‘Intergovernmental Review of Fed- (1) Initial difficulties in the develop- eral Programs,’’ (3 CFR, 1982 Comp., p. ment of local funding sources during 197) in 45 CFR part 1233, and any other the first three years of operations; or applicable requirements. (2) An economic downturn, the occur- (c) Who reviews the merits of a RSVP rence of a natural disaster, or similar application and how is a grant awarded? events in the service area that severely (1) The Corporation reviews and deter- restrict or reduce sources of local fund- mines the merit of an application by ing support; or its responsiveness to published guide- (3) The unexpected discontinuation of lines and to the overall purpose and ob- local support from one or more sources jectives of the program. When funds that a project has relied on for a period are available, the Corporation awards a of years. grant in writing to each applicant (c) May the Corporation restrict how a whose grant proposal provides the best sponsor uses locally generated contribu- potential for serving the purpose of the tions in excess of the non-Corporation program. The award will be docu- support required? Whenever locally gen- mented by a Notice of Grant Award erated contributions to RSVP projects (NGA). are in excess of the non-Corporation (2) The Corporation and the spon- funds required (10 percent of the total soring organization are parties to the cost in the first year, 20 percent in the NGA. The NGA will document the sponsor’s commitment to fulfill spe- second year and 30 percent in the third cific programmatic objectives and fi- and succeeding years), the Corporation nancial obligations. It will document may not restrict the manner in which the extent of the Corporation’s obliga- such contributions are expended pro- tion to provide financial support to the vided such expenditures are consistent sponsor. with the provisions of the Act. (d) What happens if the Corporation re- (d) Are program expenditures subject to jects an application? The Corporation audit? All expenditures by the grantee will return to the applicant an applica- of Federal and Non-Federal funds, in- tion that is not approved for funding, cluding expenditures from excess lo- with an explanation of the Corpora- cally generated contributions, are sub- tion’s decision. ject to audit by the Corporation, its In- (e) For what period of time does the spector General, or their authorized Corporation award a grant? The Cor- agents. poration awards a RSVP grant for a (e) How much of the grant must be specified period that is usually 12 budgeted to pay volunteer expenses or cost months in duration. reimbursements? The total volunteer ex- § 2553.72 What are project funding re- penses and cost reimbursements for quirements? RSVP volunteers, including transpor- tation, meals, recognition and insur- (a) Is non-Corporation support re- quired? (1) A Corporation grant may be ance shall be an amount equal to at awarded to fund up to 90 percent of the least 25 percent of the Corporation total project cost in the first year, 80 funds in the grant award. Corporation percent in the second year, and 70 per- and non-Corporation resources may be cent in the third and succeeding years. used to make up this sum.
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§ 2553.73 What are grants management (f) Costs of other insurance not re- requirements? quired by program policy, but main- What rules govern a sponsor’s man- tained by a sponsor for the general con- agement of grants? duct of its activities are allowable with (a) A sponsor shall manage a grant the following limitations: awarded in accordance with: (1) Types and extent of and cost of (1) The Act; coverage are according to sound insti- (2) Regulations in this part; tutional and business practices; (3) 45 CFR Part 2541, ‘‘Uniform Ad- (2) Costs of insurance or a contribu- ministrative Requirements for Grants tion to any reserve covering the risk of and Cooperative Agreements to State loss of or damage to Government- and Local Governments’’, or 45 CFR owned property are unallowable unless Part 2543, ‘‘Grants and Agreements the government specifically requires with Institutions of Higher Education, and approves such costs; and Hospitals, and Other Non-Profit Orga- (3) The cost of insurance on the lives nizations’’; of officers, trustees or staff is unallow- (4) The following OMB Circulars, as able except where such insurance is appropriate A–21, ‘‘Cost Principles for part of an employee plan which is not Educational Institutions’’, A–87, ‘‘Cost unduly restricted. Principles for State, Local and Indian (g) Costs to bring a sponsor into basic Tribal Governments’’, A–122, ‘‘Cost compliance with accessibility require- Principles for Non-Profit Organiza- ments for individuals with disabilities tions’’, and A–133, ‘‘Audits of States, are not allowable costs. Local Governments, and Other Non- (h) Payments to settle discrimina- Profit Organizations’’ (OMB circulars tion allegations, either informally are available electronically at the OMB through a settlement agreement or for- homepage www.whitehouse.gov/WH/ mally as a result of a decision finding EOP/omb); and discrimination, are not allowable costs. (5) Other applicable Corporation re- (i) Written Corporation State Office quirements. approval/concurrence is required for (b) Project support provided under a the following changes in the approved Corporation grant shall be furnished at grant: the lowest possible cost consistent (1) Change in the approved service with the effective operation of the area. project. (2) Transfer of budgeted line items (c) Project costs for which Corpora- from Volunteer Expenses to Support tion funds are budgeted must be justi- Expenses. This requirement does not fied as being essential to project oper- apply if the 25 percent cost reimburse- ation. ment ratio is maintained. (d) Project funds shall not be used to reimburse volunteers for expenses, in- cluding transportation costs, incurred Subpart H—Non-Corporation while performing their volunteer as- Funded Projects signments. Volunteers on assignment during a normal meal period may be re- § 2553.81 Under what conditions may imbursed for the meal cost. Equipment an agency or organization sponsor or supplies for volunteers on assign- a RSVP project without Corpora- tion funding? ment are not allowable costs. Assign- ment related costs of transportation, An eligible agency or organization equipment, supplies, etc. are the re- who wishes to sponsor a RSVP project sponsibility of the volunteer station or without Corporation funding, must a third party. sign a Memorandum of Agreement with (e) Volunteer expense items, includ- the Corporation that: ing transportation, meals, recognition (a) Certifies its intent to comply with activities and items purchased at the all Corporation requirements for the volunteers own expense that are not re- Retired and Senior Volunteer Program; imbursed, are not allowable as con- and tributions to the non-Federal share of (b) Identifies responsibilities to be the budget. carried out by each party.
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§ 2553.82 What benefits are a non-Cor- tions and nonpartisan voter registra- poration funded project entitled to? tion information may be made avail- (a) All technical assistance and ma- able to the public at the premises of terials provided to Corporation-funded the sponsor. But in making registra- RSVP projects; and tion applications and nonpartisan (b) The application of the provisions voter registration information avail- of 42 U.S.C. 5044 and 5058. able, employees of the sponsor shall not express preferences or seek to in- § 2553.83 What financial obligation fluence decisions concerning any can- does the Corporation incur for non- didate, political party, election issue, Corporation funded projects? or voting decision. Entry into a Memorandum of Agree- (3) The sponsor shall not use grant ment with, or issuance of an NGA to a funds in any activity for the purpose of sponsor of a non-Corporation funded influencing the passage or defeat of project does not create a financial obli- legislation or proposals by initiative gation on the part of the Corporation petition, except: for any costs associated with the (i) In any case in which a legislative project. body, a committee of a legislative § 2553.84 What happens if a non-Cor- body, or a member of a legislative body poration funded sponsor does not requests any volunteer in, or employee comply with the Memorandum of of such a program to draft, review or Agreement? testify regarding measures or to make A non-Corporation funded project representation to such legislative body, sponsor’s noncompliance with the committee or member; or Memorandum of Agreement may result (ii) In connection with an authoriza- in suspension or termination of the tion or appropriations measure directly Corporation’s agreement and all bene- affecting the operation of the RSVP fits specified in § 2553.82. Program. (b) Nondisplacement of employed work- Subpart I—Restrictions and Legal ers. A RSVP volunteer shall not per- Representation form any service or duty or engage in any activity which would otherwise be § 2553.91 What legal limitations apply performed by an employed worker or to the operation of the RSVP Pro- which would supplant the hiring of or gram and to the expenditure of grant funds? result in the displacement of employed workers, or impair existing contracts (a) Political activities. (1) No part of for service. any grant shall be used to finance, di- (c) Compensation for service. (1) An rectly or indirectly, any activity to in- agency or organization to which NSSC fluence the outcome of any election to volunteers are assigned, or which oper- public office, or any voter registration ates or supervises any NSSC program, activity. shall not request or receive any com- (2) No project shall be conducted in a manner involving the use of funds, the pensation from NSSC volunteers or provision of services, or the employ- from beneficiaries for services of NSSC ment or assignment of personnel in a volunteers. matter supporting or resulting in the (2) This section does not prohibit a identification of such project with: sponsor from soliciting and accepting (i) Any partisan or nonpartisan polit- voluntary contributions from the com- ical activity associated with a can- munity at large to meet its local sup- didate, or contending faction or group, port obligations under the grant; or, in an election; or from entering into agreements with (ii) Any activity to provide voters or parties other than beneficiaries to sup- prospective voters with transportation port additional volunteers beyond to the polls or similar assistance in those supported by the Corporation connection with any such election; or grant. (iii) Any voter registration activity, (3) A RSVP volunteer station may except that voter registration applica- contribute to the financial support of
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the RSVP Program. However, this sup- and with notification to the Corpora- port shall not be a required pre- tion. condition for a potential station to ob- tain RSVP volunteers. § 2553.92 What legal coverage does the (4) If a volunteer station agrees to Corporation make available to RSVP volunteers? provide funds to support additional vol- unteers or pay for other volunteer sup- It is within the Corporation’s discre- port costs, the agreement shall be stat- tion to determine if Counsel is em- ed in a written Memorandum of Under- ployed and counsel fees, court costs, standing. The sponsor shall withdraw bail and other expenses incidental to services if the station’s inability to the defense of a RSVP volunteer are provide monetary or in-kind support to paid in a criminal, civil or administra- the project under the Memorandum of tive proceeding, when such a pro- Understanding diminishes or jeopard- ceeding arises directly out of perform- izes the project’s financial capabilities ance of the volunteer’s activities. The to fulfill its obligations. circumstances under which the Cor- (5) Under no circumstances shall a poration may pay such expenses are specified in 45 CFR part 1220. RSVP volunteer receive a fee for serv- ice from service recipients, their legal guardian, members of their family, or PART 2555—NONDISCRIMINATION friends. ON THE BASIS OF SEX IN EDU- (d) Labor and anti-labor activity. The CATION PROGRAMS OR ACTIVI- sponsor shall not use grant funds di- TIES RECEIVING FEDERAL FINAN- rectly or indirectly to finance labor or CIAL ASSISTANCE anti-labor organization or related ac- tivity. Subpart A—Introduction (e) Fair labor standards. A sponsor Sec. that employs laborers and mechanics 2555.100 Purpose and effective date. for construction, alteration, or repair 2555.105 Definitions. of facilities shall pay wages at pre- 2555.110 Remedial and affirmative action vailing rates as determined by the Sec- and self-evaluation. retary of Labor in accordance with the 2555.115 Assurance required. Davis-Bacon Act, as amended, 40 U.S.C. 2555.120 Transfers of property. 276a. 2555.125 Effect of other requirements. 2555.130 Effect of employment opportuni- (f) Nondiscrimination. A sponsor or ties. sponsor employee shall not discrimi- 2555.135 Designation of responsible em- nate against a RSVP volunteer on the ployee and adoption of grievance proce- basis of race, color, national origin, dures. sex, age, religion, or political affili- 2555.140 Dissemination of policy. ation, or on the basis of disability, if the volunteer with a disability is quali- Subpart B—Coverage fied to serve. 2555.200 Application. (g) Religious activities. A RSVP volun- 2555.205 Educational institutions and other teer or a member of the project staff entities controlled by religious organiza- funded by the Corporation shall not tions. give religious instruction, conduct wor- 2555.210 Military and merchant marine edu- ship services or engage in any form of cational institutions. 2555.215 Membership practices of certain or- proselytization as part of his/her du- ganizations. ties. 2555.220 Admission. (h) Nepotism. Persons selected for 2555.225 Educational institutions eligible to project staff positions shall not be re- submit transition plans. lated by blood or marriage to other 2555.230 Transition plans. project staff, sponsor staff or officers, 2555.235 Statutory amendments. or members of the sponsor Board of Di- Subpart C—Discrimination on the Basis of rectors, unless there is written concur- Sex in Admission and Recruitment Pro- rence from the Advisory Council or hibited community group established by the sponsor under subpart B of this part, 2555.300 Admission.
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2555.305 Preference in admission. ance, whether or not such program or 2555.310 Recruitment. activity is offered or sponsored by an educational institution as defined in Subpart D—Discrimination on the Basis of these Title IX regulations. The effec- Sex in Education Programs or Activities tive date of these Title IX regulations Prohibited shall be September 29, 2000. 2555.400 Education programs or activities. 2555.405 Housing. § 2555.105 Definitions. 2555.410 Comparable facilities. 2555.415 Access to course offerings. As used in these Title IX regulations, 2555.420 Access to schools operated by the term: LEAs. Administratively separate unit means a 2555.425 Counseling and use of appraisal and school, department, or college of an counseling materials. educational institution (other than a 2555.430 Financial assistance. local educational agency) admission to 2555.435 Employment assistance to stu- which is independent of admission to dents. 2555.440 Health and insurance benefits and any other component of such institu- services. tion. 2555.445 Marital or parental status. Admission means selection for part- 2555.450 Athletics. time, full-time, special, associate, 2555.455 Textbooks and curricular material. transfer, exchange, or any other enroll- ment, membership, or matriculation in Subpart E—Discrimination on the Basis of or at an education program or activity Sex in Employment in Education Pro- operated by a recipient. grams or Activities Prohibited Applicant means one who submits an 2555.500 Employment. application, request, or plan required 2555.505 Employment criteria. to be approved by an official of the 2555.510 Recruitment. Federal agency that awards Federal fi- 2555.515 Compensation. nancial assistance, or by a recipient, as 2555.520 Job classification and structure. 2555.525 Fringe benefits. a condition to becoming a recipient. 2555.530 Marital or parental status. Designated agency official means ‘‘Di- 2555.535 Effect of state or local law or other rector, Equal Opportunity’’. requirements. Educational institution means a local 2555.540 Advertising. educational agency (LEA) as defined by 2555.545 Pre-employment inquiries. 20 U.S.C. 8801(18), a preschool, a private 2555.550 Sex as a bona fide occupational qualification. elementary or secondary school, or an applicant or recipient that is an insti- Subpart F—Procedures tution of graduate higher education, an institution of undergraduate higher 2555.600 Notice of covered programs. education, an institution of profes- 2555.605 Enforcement procedures. sional education, or an institution of AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685, vocational education, as defined in this 1686, 1687, 1688. section. SOURCE: 65 FR 52865, 52893, Aug. 30, 2000, un- Federal financial assistance means any less otherwise noted. of the following, when authorized or extended under a law administered by Subpart A—Introduction the Federal agency that awards such assistance: § 2555.100 Purpose and effective date. (1) A grant or loan of Federal finan- The purpose of these Title IX regula- cial assistance, including funds made tions is to effectuate Title IX of the available for: Education Amendments of 1972, as (i) The acquisition, construction, ren- amended (except sections 904 and 906 of ovation, restoration, or repair of a those Amendments) (20 U.S.C. 1681, building or facility or any portion 1682, 1683, 1685, 1686, 1687, 1688), which is thereof; and designed to eliminate (with certain ex- (ii) Scholarships, loans, grants, ceptions) discrimination on the basis of wages, or other funds extended to any sex in any education program or activ- entity for payment to or on behalf of ity receiving Federal financial assist- students admitted to that entity, or
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extended directly to such students for level study beyond the high school payment to that entity. level, leading to a diploma or an asso- (2) A grant of Federal real or per- ciate degree, or wholly or principally sonal property or any interest therein, creditable toward a baccalaureate de- including surplus property, and the gree; or proceeds of the sale or transfer of such (2) An institution offering academic property, if the Federal share of the study leading to a baccalaureate de- fair market value of the property is gree; or not, upon such sale or transfer, prop- (3) An agency or body that certifies erly accounted for to the Federal Gov- credentials or offers degrees, but that ernment. may or may not offer academic study. (3) Provision of the services of Fed- eral personnel. Institution of vocational education (4) Sale or lease of Federal property means a school or institution (except or any interest therein at nominal con- an institution of professional or grad- sideration, or at consideration reduced uate or undergraduate higher edu- for the purpose of assisting the recipi- cation) that has as its primary purpose ent or in recognition of public interest preparation of students to pursue a to be served thereby, or permission to technical, skilled, or semiskilled occu- use Federal property or any interest pation or trade, or to pursue study in a therein without consideration. technical field, whether or not the (5) Any other contract, agreement, or school or institution offers certificates, arrangement that has as one of its pur- diplomas, or degrees and whether or poses the provision of assistance to any not it offers full-time study. education program or activity, except Recipient means any State or polit- a contract of insurance or guaranty. ical subdivision thereof, or any instru- Institution of graduate higher edu- mentality of a State or political sub- cation means an institution that: division thereof, any public or private (1) Offers academic study beyond the agency, institution, or organization, or bachelor of arts or bachelor of science other entity, or any person, to whom degree, whether or not leading to a cer- Federal financial assistance is ex- tificate of any higher degree in the lib- tended directly or through another re- eral arts and sciences; cipient and that operates an education (2) Awards any degree in a profes- sional field beyond the first profes- program or activity that receives such sional degree (regardless of whether assistance, including any subunit, suc- the first professional degree in such cessor, assignee, or transferee thereof. field is awarded by an institution of Student means a person who has undergraduate higher education or pro- gained admission. fessional education); or Title IX means Title IX of the Edu- (3) Awards no degree and offers no cation Amendments of 1972, Public Law further academic study, but operates 92–318, 86 Stat. 235, 373 (codified as ordinarily for the purpose of facili- amended at 20 U.S.C. 1681–1688) (except tating research by persons who have sections 904 and 906 thereof), as amend- received the highest graduate degree in ed by section 3 of Public Law 93–568, 88 any field of study. Stat. 1855, by section 412 of the Edu- Institution of professional education cation Amendments of 1976, Public Law means an institution (except any insti- 94–482, 90 Stat. 2234, and by Section 3 of tution of undergraduate higher edu- Public Law 100–259, 102 Stat. 28, 28–29 cation) that offers a program of aca- (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, demic study that leads to a first profes- 1688). sional degree in a field for which there Title IX regulations means the provi- is a national specialized accrediting sions set forth at §§ 2555.100 through agency recognized by the Secretary of Education. 2555.605. Institution of undergraduate higher Transition plan means a plan subject education means: to the approval of the Secretary of (1) An institution offering at least Education pursuant to section 901(a)(2) two but less than four years of college- of the Education Amendments of 1972,
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20 U.S.C. 1681(a)(2), under which an edu- crimination that resulted or may have cational institution operates in mak- resulted from adherence to these poli- ing the transition from being an edu- cies and practices. cational institution that admits only (d) Availability of self-evaluation and students of one sex to being one that related materials. Recipients shall main- admits students of both sexes without tain on file for at least three years fol- discrimination. lowing completion of the evaluation re- [65 FR 52865, 52893, Aug. 30, 2000, as amended quired under paragraph (c) of this sec- at 65 FR 52894, Aug. 30, 2000] tion, and shall provide to the des- ignated agency official upon request, a § 2555.110 Remedial and affirmative description of any modifications made action and self-evaluation. pursuant to paragraph (c)(2) of this sec- (a) Remedial action. If the designated tion and of any remedial steps taken agency official finds that a recipient pursuant to paragraph (c)(3) of this sec- has discriminated against persons on tion. the basis of sex in an education pro- gram or activity, such recipient shall § 2555.115 Assurance required. take such remedial action as the des- (a) General. Either at the application ignated agency official deems nec- stage or the award stage, Federal agen- essary to overcome the effects of such cies must ensure that applications for discrimination. Federal financial assistance or awards (b) Affirmative action. In the absence of Federal financial assistance contain, of a finding of discrimination on the be accompanied by, or be covered by a basis of sex in an education program or specifically identified assurance from 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; § 2555.110(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
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which it retains ownership or posses- (29 U.S.C. 206); and any other Act of sion of the property. Congress or Federal regulation. (3) In all other cases such assurance (b) Effect of State or local law or other shall obligate the recipient for the pe- requirements. The obligation to comply riod during which Federal financial as- with these Title IX regulations is not sistance is extended. obviated or alleviated by any State or (c) Form. (1) The assurances required local law or other requirement that by paragraph (a) of this section, which would render any applicant or student may be included as part of a document ineligible, or limit the eligibility of that addresses other assurances or obli- any applicant or student, on the basis gations, shall include that the appli- of sex, to practice any occupation or cant or recipient will comply with all profession. applicable Federal statutes relating to (c) Effect of rules or regulations of pri- nondiscrimination. These include but vate organizations. The obligation to are not limited to: Title IX of the Edu- comply with these Title IX regulations cation Amendments of 1972, as amend- is not obviated or alleviated by any ed (20 U.S.C. 1681–1683, 1685–1688). rule or regulation of any organization, (2) The designated agency official club, athletic or other league, or asso- will specify the extent to which such ciation that would render any appli- assurances will be required of the ap- cant or student ineligible to partici- plicant’s or recipient’s subgrantees, pate or limit the eligibility or partici- contractors, subcontractors, trans- pation of any applicant or student, on ferees, or successors in interest. the basis of sex, in any education pro- gram or activity operated by a recipi- § 2555.120 Transfers of property. ent and that receives Federal financial If a recipient sells or otherwise trans- assistance. fers property financed in whole or in part with Federal financial assistance § 2555.130 Effect of employment oppor- to a transferee that operates any edu- tunities. cation program or activity, and the The obligation to comply with these Federal share of the fair market value Title IX regulations is not obviated or of the property is not upon such sale or alleviated because employment oppor- transfer properly accounted for to the tunities in any occupation or profes- Federal Government, both the trans- sion are or may be more limited for feror and the transferee shall be members of one sex than for members deemed to be recipients, subject to the of the other sex. provisions of §§ 2555.205 through 2555.235(a). § 2555.135 Designation of responsible employee and adoption of grievance § 2555.125 Effect of other require- procedures. ments. (a) Designation of responsible employee. (a) Effect of other Federal provisions. Each recipient shall designate at least The obligations imposed by these Title one employee to coordinate its efforts IX regulations are independent of, and to comply with and carry out its re- do not alter, obligations not to dis- sponsibilities under these Title IX reg- criminate on the basis of sex imposed ulations, including any investigation of by Executive Order 11246, 3 CFR, 1964– any complaint communicated to such 1965 Comp., p. 339; as amended by Exec- recipient alleging its noncompliance utive Order 11375, 3 CFR, 1966–1970 with these Title IX regulations or al- Comp., p. 684; as amended by Executive leging any actions that would be pro- Order 11478, 3 CFR, 1966–1970 Comp., p. hibited by these Title IX regulations. 803; as amended by Executive Order The recipient shall notify all its stu- 12087, 3 CFR, 1978 Comp., p. 230; as dents and employees of the name, of- amended by Executive Order 12107, 3 fice address, and telephone number of CFR, 1978 Comp., p. 264; sections 704 the employee or employees appointed and 855 of the Public Health Service pursuant to this paragraph. Act (42 U.S.C. 295m, 298b-2); Title VII of (b) Complaint procedure of recipient. A the Civil Rights Act of 1964 (42 U.S.C. recipient shall adopt and publish griev- 2000e et seq.); the Equal Pay Act of 1963 ance procedures providing for prompt
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and equitable resolution of student and of the policy described in paragraph (a) employee complaints alleging any ac- of this section in each announcement, tion that would be prohibited by these bulletin, catalog, or application form Title IX regulations. that it makes available to any person of a type, described in paragraph (a) of § 2555.140 Dissemination of policy. this section, or which is otherwise used (a) Notification of policy. (1) Each re- in connection with the recruitment of cipient shall implement specific and students or employees. continuing steps to notify applicants (2) A recipient shall not use or dis- for admission and employment, stu- tribute a publication of the type de- dents and parents of elementary and scribed in paragraph (b)(1) of this sec- secondary school students, employees, tion that suggests, by text or illustra- sources of referral of applicants for ad- tion, that such recipient treats appli- mission and employment, and all cants, students, or employees dif- unions or professional organizations ferently on the basis of sex except as holding collective bargaining or profes- such treatment is permitted by these sional agreements with the recipient, Title IX regulations. that it does not discriminate on the (c) Distribution. Each recipient shall basis of sex in the educational pro- distribute without discrimination on grams or activities that it operates, the basis of sex each publication de- and that it is required by Title IX and scribed in paragraph (b)(1) of this sec- these Title IX regulations not to dis- tion, and shall apprise each of its ad- criminate in such a manner. Such noti- mission and employment recruitment fication shall contain such informa- representatives of the policy of non- tion, and be made in such manner, as discrimination described in paragraph the designated agency official finds (a) of this section, and shall require necessary to apprise such persons of such representatives to adhere to such the protections against discrimination policy. assured them by Title IX and these Title IX regulations, but shall state at Subpart B—Coverage least that the requirement not to dis- criminate in education programs or ac- § 2555.200 Application. tivities extends to employment there- Except as provided in §§ 2555.205 in, and to admission thereto unless through 2555.235(a), these Title IX regu- §§ 2555.300 through 2555.310 do not apply lations apply to every recipient and to to the recipient, and that inquiries each education program or activity op- concerning the application of Title IX erated by such recipient that receives and these Title IX regulations to such Federal financial assistance. recipient may be referred to the em- ployee designated pursuant to § 2555.205 Educational institutions and § 2555.135, or to the designated agency other entities controlled by reli- 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
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with a specific tenet of the religious or- §§ 2555.300 through 2555.310 apply shall ganization. not discriminate on the basis of sex in admission or recruitment in violation § 2555.210 Military and merchant ma- of §§ 2555.300 through 2555.310. rine educational institutions. (d) Educational institutions. Except as These Title IX regulations do not provided in paragraph (e) of this sec- apply to an educational institution tion as to recipients that are edu- whose primary purpose is the training cational institutions, §§ 2555.300 of individuals for a military service of through 2555.310 apply only to institu- the United States or for the merchant tions of vocational education, profes- marine. sional education, graduate higher edu- cation, and public institutions of un- § 2555.215 Membership practices of dergraduate higher education. certain organizations. (e) Public institutions of undergraduate (a) Social fraternities and sororities. higher education. §§ 2555.300 through These Title IX regulations do not apply 2555.310 do not apply to any public in- to the membership practices of social stitution of undergraduate higher edu- fraternities and sororities that are ex- cation that traditionally and contin- empt from taxation under section ually from its establishment has had a 501(a) of the Internal Revenue Code of policy of admitting students of only 1954, 26 U.S.C. 501(a), the active mem- one sex. bership of which consists primarily of students in attendance at institutions § 2555.225 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 §§ 2555.300 through 2555.310 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 §§ 2555.300 and principally to persons of less than through 2555.310. nineteen years of age. § 2555.230 Transition plans. § 2555.220 Admissions. (a) Submission of plans. An institution (a) Admissions to educational insti- to which § 2555.225 applies and that is tutions prior to June 24, 1973, are not composed of more than one administra- covered by these Title IX regulations. tively separate unit may submit either (b) Administratively separate units. For a single transition plan applicable to the purposes only of this section, all such units, or a separate transition §§ 2555.225 and 2555.230, and §§ 2555.300 plan applicable to each such unit. through 2555.310, each administratively (b) Content of plans. In order to be ap- separate unit shall be deemed to be an proved by the Secretary of Education, educational institution. a transition plan shall: (c) Application of §§ 2555.300 through (1) State the name, address, and Fed- 2555.310. Except as provided in para- eral Interagency Committee on Edu- graphs (d) and (e) of this section, cation Code of the educational institu- §§ 2555.300 through 2555.310 apply to tion submitting such plan, the admin- each recipient. A recipient to which istratively separate units to which the
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plan is applicable, and the name, ad- tions, addresses statutory amendments dress, and telephone number of the per- to Title IX. son to whom questions concerning the (b) These Title IX regulations shall plan may be addressed. The person who not apply to or preclude: submits the plan shall be the chief ad- (1) Any program or activity of the ministrator or president of the institu- American Legion undertaken in con- tion, or another individual legally au- nection with the organization or oper- thorized to bind the institution to all ation of any Boys State conference, actions set forth in the plan. Boys Nation conference, Girls State (2) State whether the educational in- conference, or Girls Nation conference; stitution or administratively separate (2) Any program or activity of a sec- unit admits students of both sexes as ondary school or educational institu- regular students and, if so, when it tion specifically for: began to do so. (3) Identify and describe with respect (i) The promotion of any Boys State to the educational institution or ad- conference, Boys Nation conference, ministratively separate unit any obsta- Girls State conference, or Girls Nation cles to admitting students without dis- conference; or crimination on the basis of sex. (ii) The selection of students to at- (4) Describe in detail the steps nec- tend any such conference; essary to eliminate as soon as prac- (3) Father-son or mother-daughter ticable each obstacle so identified and activities at an educational institution indicate the schedule for taking these or in an education program or activity, steps and the individual directly re- but if such activities are provided for sponsible for their implementation. students of one sex, opportunities for (5) Include estimates of the number reasonably comparable activities shall of students, by sex, expected to apply be provided to students of the other for, be admitted to, and enter each sex; class during the period covered by the (4) Any scholarship or other financial plan. assistance awarded by an institution of (c) Nondiscrimination. No policy or higher education to an individual be- practice of a recipient to which cause such individual has received such § 2555.225 applies shall result in treat- award in a single-sex pageant based ment of applicants to or students of upon a combination of factors related such recipient in violation of §§ 2555.300 to the individual’s personal appear- through 2555.310 unless such treatment ance, poise, and talent. The pageant, is necessitated by an obstacle identi- however, must comply with other non- fied in paragraph (b)(3) of this section discrimination provisions of Federal and a schedule for eliminating that ob- law. stacle has been provided as required by (c) Program or activity or program paragraph (b)(4) of this section. means: (d) Effects of past exclusion. To over- come the effects of past exclusion of (1) All of the operations of any entity students on the basis of sex, each edu- described in paragraphs (c)(1)(i) cational institution to which § 2555.225 through (iv) of this section, any part of applies shall include in its transition which is extended Federal financial as- plan, and shall implement, specific sistance: steps designed to encourage individuals (i)(A) A department, agency, special of the previously excluded sex to apply purpose district, or other instrumen- for admission to such institution. Such tality of a State or of a local govern- steps shall include instituting recruit- ment; or ment programs that emphasize the in- (B) The entity of such State or local stitution’s commitment to enrolling government that distributes such as- students of the sex previously ex- sistance and each such department or cluded. agency (and each other State or local government entity) to which the as- § 2555.235 Statutory amendments. sistance is extended, in the case of as- (a) This section, which applies to all sistance to a State or local govern- provisions of these Title IX regula- ment;
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(ii)(A) A college, university, or other (2) Nothing in this section shall be postsecondary institution, or a public construed to permit a penalty to be im- system of higher education; or posed on any person or individual be- (B) A local educational agency (as de- cause such person or individual is seek- fined in section 8801 of title 20), system ing or has received any benefit or serv- of vocational education, or other ice related to a legal abortion. Accord- school system; ingly, subject to paragraph (d)(1) of (iii)(A) An entire corporation, part- this section, no person shall be ex- nership, or other private organization, cluded from participation in, be denied or an entire sole proprietorship— the benefits of, or be subjected to dis- (1) If assistance is extended to such crimination under any academic, ex- corporation, partnership, private orga- tracurricular, research, occupational nization, or sole proprietorship as a training, employment, or other edu- whole; or cational program or activity operated (2) Which is principally engaged in by a recipient that receives Federal fi- the business of providing education, nancial assistance because such indi- health care, housing, social services, or vidual has sought or received, or is parks and recreation; or seeking, a legal abortion, or any ben- (B) The entire plant or other com- efit or service related to a legal abor- parable, geographically separate facil- tion. ity to which Federal financial assist- ance is extended, in the case of any other corporation, partnership, private Subpart C—Discrimination on the organization, or sole proprietorship; or Basis of Sex in Admission and (iv) Any other entity that is estab- Recruitment Prohibited lished by two or more of the entities described in paragraphs (c)(1)(i), (ii), or § 2555.300 Admission. (iii) of this section. (a) General. No person shall, on the (2)(i) Program or activity does not in- basis of sex, be denied admission, or be clude any operation of an entity that is subjected to discrimination in admis- controlled by a religious organization sion, by any recipient to which if the application of 20 U.S.C. 1681 to §§ 2555.300 through 2555.310 apply, except such operation would not be consistent as provided in §§ 2555.225 and 2555.230. with the religious tenets of such orga- (b) Specific prohibitions. (1) In deter- nization. mining whether a person satisfies any (ii) For example, all of the operations policy or criterion for admission, or in of a college, university, or other post- making any offer of admission, a re- secondary institution, including but cipient to which §§ 2555.300 through not limited to traditional educational 2555.310 apply shall not: operations, faculty and student hous- (i) Give preference to one person over ing, campus shuttle bus service, cam- another on the basis of sex, by ranking pus restaurants, the bookstore, and applicants separately on such basis, or other commercial activities are part of otherwise; a ‘‘program or activity’’ subject to (ii) Apply numerical limitations upon these Title IX regulations if the col- 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 ac- tion are not subject to this section. tivity in question and alternative tests
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or criteria that do not have such a dis- be required to undertake additional re- proportionately adverse effect are cruitment efforts for one sex as reme- shown to be unavailable. dial action pursuant to § 2555.110(a), and (c) Prohibitions relating to marital or may choose to undertake such efforts parental status. In determining whether as affirmative action pursuant to a person satisfies any policy or cri- § 2555.110(b). terion for admission, or in making any (b) Recruitment at certain institutions. offer of admission, a recipient to which A recipient to which §§ 2555.300 through §§ 2555.300 through 2555.310 apply: 2555.310 apply shall not recruit pri- (1) Shall not apply any rule con- marily or exclusively at educational cerning the actual or potential paren- institutions, schools, or entities that tal, family, or marital status of a stu- admit as students only or predomi- dent or applicant that treats persons nantly members of one sex, if such ac- differently on the basis of sex; tions have the effect of discriminating (2) Shall not discriminate against or on the basis of sex in violation of exclude any person on the basis of §§ 2555.300 through 2555.310. pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice Subpart D—Discrimination on the that so discriminates or excludes; Basis of Sex in Education Pro- (3) Subject to § 2555.235(d), shall treat grams or Activities Prohibited disabilities related to pregnancy, child- birth, termination of pregnancy, or re- § 2555.400 Education programs or ac- covery therefrom in the same manner tivities. and under the same policies as any (a) General. Except as provided else- other temporary disability or physical where in these Title IX regulations, no condition; and person shall, on the basis of sex, be ex- (4) Shall not make pre-admission in- cluded from participation in, be denied quiry as to the marital status of an ap- the benefits of, or be subjected to dis- plicant for admission, including wheth- crimination under any academic, ex- er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ tracurricular, research, occupational A recipient may make pre-admission training, or other education program inquiry as to the sex of an applicant for or activity operated by a recipient that admission, but only if such inquiry is receives Federal financial assistance. made equally of such applicants of both Sections 2555.400 through 2555.455 do sexes and if the results of such inquiry not apply to actions of a recipient in are not used in connection with dis- crimination prohibited by these Title connection with admission of its stu- IX regulations. dents to an education program or ac- tivity of a recipient to which §§ 2555.300 § 2555.305 Preference in admission. through 2555.310 do not apply, or an en- A recipient to which §§ 2555.300 tity, not a recipient, to which §§ 2555.300 through 2555.310 apply shall not give through 2555.310 would not apply if the preference to applicants for admission, entity were a recipient. on the basis of attendance at any edu- (b) Specific prohibitions. Except as pro- cational institution or other school or vided in §§ 2555.400 through 2555.455, in entity that admits as students only or providing any aid, benefit, or service to predominantly members of one sex, if a student, a recipient shall not, on the the giving of such preference has the basis of sex: effect of discriminating on the basis of (1) Treat one person differently from sex in violation of §§ 2555.300 through another in determining whether such 2555.310. person satisfies any requirement or condition for the provision of such aid, § 2555.310 Recruitment. benefit, or service; (a) Nondiscriminatory recruitment. A (2) Provide different aid, benefits, or recipient to which §§ 2555.300 through services or provide aid, benefits, or 2555.310 apply shall not discriminate on services in a different manner; the basis of sex in the recruitment and (3) Deny any person any such aid, admission of students. A recipient may benefit, or service;
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(4) Subject any person to separate or (i) Shall develop and implement a different rules of behavior, sanctions, procedure designed to assure itself that or other treatment; the operator or sponsor of such other (5) Apply any rule concerning the education program or activity takes no domicile or residence of a student or action affecting any applicant, student, applicant, including eligibility for in- or employee of such recipient that state fees and tuition; these Title IX regulations would pro- (6) Aid or perpetuate discrimination hibit such recipient from taking; and against any person by providing sig- (ii) Shall not facilitate, require, per- nificant assistance to any agency, or- mit, or consider such participation if ganization, or person that discrimi- such action occurs. nates on the basis of sex in providing any aid, benefit, or service to students § 2555.405 Housing. or employees; (a) Generally. A recipient shall not, (7) Otherwise limit any person in the on the basis of sex, apply different enjoyment of any right, privilege, ad- rules or regulations, impose different vantage, or opportunity. fees or requirements, or offer different (c) Assistance administered by a recipi- services or benefits related to housing, ent educational institution to study at a except as provided in this section (in- 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 (d) Aids, benefits or services not pro- available to any of its students, shall vided by recipient. (1) This paragraph (d) take such reasonable action as may be applies to any recipient that requires necessary to assure itself that such participation by any applicant, stu- housing as is provided to students of dent, or employee in any education one sex, when compared to that pro- program or activity not operated whol- vided to students of the other sex, is as ly by such recipient, or that facilitates, a whole: permits, or considers such participa- (A) Proportionate in quantity; and tion as part of or equivalent to an edu- (B) Comparable in quality and cost to cation program or activity operated by the student. such recipient, including participation (ii) A recipient may render such as- in educational consortia and coopera- sistance to any agency, organization, tive employment and student-teaching or person that provides all or part of assignments. such housing to students of only one (2) Such recipient: sex.
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§ 2555.410 Comparable facilities. (6) Recipients may make require- ments based on vocal range or quality A recipient may provide separate toi- that may result in a chorus or choruses let, locker room, and shower facilities of one or predominantly one sex. on the basis of sex, but such facilities provided for students of one sex shall § 2555.420 Access to schools operated be comparable to such facilities pro- by LEAs. vided for students of the other sex. A recipient that is a local edu- § 2555.415 Access to course offerings. cational agency shall not, on the basis of sex, exclude any person from admis- (a) A recipient shall not provide any sion to: course or otherwise carry out any of its (a) Any institution of vocational edu- education program or activity sepa- cation operated by such recipient; or rately on the basis of sex, or require or (b) Any other school or educational refuse participation therein by any of unit operated by such recipient, unless its students on such basis, including such recipient otherwise makes avail- health, physical education, industrial, able to such person, pursuant to the business, vocational, technical, home same policies and criteria of admission, economics, music, and adult education courses, services, and facilities com- courses. parable to each course, service, and fa- (b)(1) With respect to classes and ac- cility offered in or through such tivities in physical education at the el- schools. ementary school level, the recipient shall comply fully with this section as § 2555.425 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
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sex, the recipient shall take such ac- of financial assistance is allocated to tion as is necessary to assure itself each student selected under paragraph that such disproportion is not the re- (b)(2)(i) of this section; and sult of discrimination on the basis of (iii) No student is denied the award sex in counseling or appraisal mate- for which he or she was selected under rials or by counselors. paragraph (b)(2)(i) of this section be- cause of the absence of a scholarship, § 2555.430 Financial assistance. fellowship, or other form of financial (a) General. Except as provided in assistance designated for a member of paragraphs (b) and (c) of this section, that student’s sex. in providing financial assistance to any (c) Athletic scholarships. (1) To the ex- of its students, a recipient shall not: tent that a recipient awards athletic (1) On the basis of sex, provide dif- scholarships or grants-in-aid, it must ferent amounts or types of such assist- ance, limit eligibility for such assist- provide reasonable opportunities for ance that is of any particular type or such awards for members of each sex in source, apply different criteria, or oth- proportion to the number of students erwise discriminate; of each sex participating in inter- (2) Through solicitation, listing, ap- scholastic or intercollegiate athletics. proval, provision of facilities, or other (2) A recipient may provide separate services, assist any foundation, trust, athletic scholarships or grants-in-aid agency, organization, or person that for members of each sex as part of sep- provides assistance to any of such re- arate athletic teams for members of cipient’s students in a manner that dis- each sex to the extent consistent with criminates on the basis of sex; or this paragraph (c) and § 2555.450. (3) Apply any rule or assist in appli- cation of any rule concerning eligi- § 2555.435 Employment assistance to bility for such assistance that treats students. persons of one sex differently from per- (a) Assistance by recipient in making sons of the other sex with regard to available outside employment. A recipi- marital or parental status. ent that assists any agency, organiza- (b) Financial aid established by certain tion, or person in making employment legal instruments. (1) A recipient may available to any of its students: administer or assist in the administra- tion of scholarships, fellowships, or (1) Shall assure itself that such em- other forms of financial assistance es- ployment is made available without tablished pursuant to domestic or for- discrimination on the basis of sex; and eign wills, trusts, bequests, or similar (2) Shall not render such services to legal instruments or by acts of a for- any agency, organization, or person eign government that require that that discriminates on the basis of sex awards be made to members of a par- in its employment practices. ticular sex specified therein; Provided, (b) Employment of students by recipi- that the overall effect of the award of ents. A recipient that employs any of such sex-restricted scholarships, fel- its students shall not do so in a manner lowships, and other forms of financial that violates §§ 2555.500 through assistance does not discriminate on the 2555.550. basis of sex. (2) To ensure nondiscriminatory § 2555.440 Health and insurance bene- awards of assistance as required in fits and services. paragraph (b)(1) of this section, recipi- Subject to § 2555.235(d), in providing a ents shall develop and use procedures medical, hospital, accident, or life in- under which: surance benefit, service, policy, or plan (i) Students are selected for award of financial assistance on the basis of to any of its students, a recipient shall nondiscriminatory criteria and not on not discriminate on the basis of sex, or the basis of availability of funds re- provide such benefit, service, policy, or stricted to members of a particular sex; plan in a manner that would violate (ii) An appropriate sex-restricted §§ 2555.500 through 2555.550 if it were scholarship, fellowship, or other form provided to employees of the recipient.
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This section shall not prohibit a recipi- does not otherwise qualify for leave ent from providing any benefit or serv- under such a policy, a recipient shall ice that may be used by a different pro- treat pregnancy, childbirth, false preg- portion of students of one sex than of nancy, termination of pregnancy, and the other, including family planning recovery therefrom as a justification services. However, any recipient that for a leave of absence for as long a pe- provides full coverage health service riod of time as is deemed medically shall provide gynecological care. necessary by the student’s physician, at the conclusion of which the student § 2555.445 Marital or parental status. shall be reinstated to the status that (a) Status generally. A recipient shall she held when the leave began. not apply any rule concerning a stu- dent’s actual or potential parental, § 2555.450 Athletics. family, or marital status that treats (a) General. No person shall, on the students differently on the basis of sex. basis of sex, be excluded from partici- (b) Pregnancy and related conditions. pation in, be denied the benefits of, be (1) A recipient shall not discriminate treated differently from another per- against any student, or exclude any son, or otherwise be discriminated student from its education program or against in any interscholastic, inter- activity, including any class or extra- collegiate, club, or intramural ath- curricular activity, on the basis of such letics offered by a recipient, and no re- student’s pregnancy, childbirth, false cipient shall provide any such athletics pregnancy, termination of pregnancy, separately on such basis. or recovery therefrom, unless the stu- (b) Separate teams. Notwithstanding dent requests voluntarily to partici- the requirements of paragraph (a) of pate in a separate portion of the pro- this section, a recipient may operate or gram or activity of the recipient. sponsor separate teams for members of (2) A recipient may require such a each sex where selection for such student to obtain the certification of a teams is based upon competitive skill physician that the student is phys- or the activity involved is a contact ically and emotionally able to continue sport. However, where a recipient oper- participation as long as such a certifi- ates or sponsors a team in a particular cation is required of all students for sport for members of one sex but oper- other physical or emotional conditions ates or sponsors no such team for mem- requiring the attention of a physician. bers of the other sex, and athletic op- (3) A recipient that operates a por- portunities for members of that sex tion of its education program or activ- have previously been limited, members ity separately for pregnant students, of the excluded sex must be allowed to admittance to which is completely vol- try out for the team offered unless the untary on the part of the student as sport involved is a contact sport. For provided in paragraph (b)(1) of this sec- the purposes of these Title IX regula- tion, shall ensure that the separate tions, contact sports include boxing, portion is comparable to that offered wrestling, rugby, ice hockey, football, to non-pregnant students. basketball, and other sports the pur- (4) Subject to § 2555.235(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;
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(ii) The provision of equipment and Subpart E—Discrimination on the supplies; Basis of Sex in Employment in (iii) Scheduling of games and prac- Education Programs or Activi- tice time; ties Prohibited (iv) Travel and per diem allowance; (v) Opportunity to receive coaching § 2555.500 Employment. and academic tutoring; (a) General. (1) No person shall, on (vi) Assignment and compensation of the basis of sex, be excluded from par- coaches and tutors; ticipation in, be denied the benefits of, (vii) Provision of locker rooms, prac- or be subjected to discrimination in tice, and competitive facilities; employment, or recruitment, consider- (viii) Provision of medical and train- ation, or selection therefor, whether ing facilities and services; full-time or part-time, under any edu- (ix) Provision of housing and dining cation program or activity operated by facilities and services; a recipient that receives Federal finan- (x) Publicity. cial assistance. (2) For purposes of paragraph (c)(1) of (2) A recipient shall make all em- this section, unequal aggregate expend- ployment decisions in any education itures for members of each sex or un- program or activity operated by such equal expenditures for male and female recipient in a nondiscriminatory man- teams if a recipient operates or spon- ner and shall not limit, segregate, or sors separate teams will not constitute classify applicants or employees in any noncompliance with this section, but way that could adversely affect any ap- the designated agency official may plicant’s or employee’s employment consider the failure to provide nec- opportunities or status because of sex. essary funds for teams for one sex in (3) A recipient shall not enter into assessing equality of opportunity for any contractual or other relationship members of each sex. which directly or indirectly has the ef- (d) Adjustment period. A recipient that fect of subjecting employees or stu- operates or sponsors interscholastic, dents to discrimination prohibited by intercollegiate, club, or intramural §§ 2555.500 through 2555.550, including athletics at the elementary school relationships with employment and re- level shall comply fully with this sec- ferral agencies, with labor unions, and tion as expeditiously as possible but in with organizations providing or admin- no event later than one year from Sep- istering fringe benefits to employees of tember 29, 2000. A recipient that oper- the recipient. ates or sponsors interscholastic, inter- (4) A recipient shall not grant pref- collegiate, club, or intramural ath- erences to applicants for employment letics at the secondary or postsec- on the basis of attendance at any edu- ondary school level shall comply fully cational institution or entity that ad- with this section as expeditiously as mits as students only or predominantly possible but in no event later than members of one sex, if the giving of three years from September 29, 2000. such preferences has the effect of dis- criminating on the basis of sex in vio- § 2555.455 Textbooks and curricular lation of these Title IX regulations. material. (b) Application. The provisions of Nothing in these Title IX regulations §§ 2555.500 through 2555.550 apply to: shall be interpreted as requiring or pro- (1) Recruitment, advertising, and the hibiting or abridging in any way the process of application for employment; use of particular textbooks or cur- (2) Hiring, upgrading, promotion, ricular materials. consideration for and award of tenure,
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demotion, transfer, layoff, termi- criminated in the past, the recipient nation, application of nepotism poli- shall recruit members of the sex so dis- cies, right of return from layoff, and criminated against so as to overcome rehiring; the effects of such past or present dis- (3) Rates of pay or any other form of crimination. compensation, and changes in com- (b) Recruitment patterns. A recipient pensation; shall not recruit primarily or exclu- (4) Job assignments, classifications, sively at entities that furnish as appli- and structure, including position de- cants only or predominantly members scriptions, lines of progression, and se- of one sex if such actions have the ef- niority lists; fect of discriminating on the basis of (5) The terms of any collective bar- sex in violation of §§ 2555.500 through gaining agreement; 2555.550. (6) Granting and return from leaves of absence, leave for pregnancy, child- § 2555.515 Compensation. birth, false pregnancy, termination of A recipient shall not make or enforce pregnancy, leave for persons of either any policy or practice that, on the sex to care for children or dependents, basis of sex: or any other leave; (a) Makes distinctions in rates of pay (7) Fringe benefits available by vir- or other compensation; tue of employment, whether or not ad- (b) Results in the payment of wages ministered by the recipient; to employees of one sex at a rate less (8) Selection and financial support than that paid to employees of the op- for training, including apprenticeship, posite sex for equal work on jobs the professional meetings, conferences, and performance of which requires equal other related activities, selection for skill, effort, and responsibility, and tuition assistance, selection for that are performed under similar work- sabbaticals and leaves of absence to ing conditions. pursue training; (9) Employer-sponsored activities, in- § 2555.520 Job classification and struc- cluding social or recreational pro- ture. grams; and A recipient shall not: (10) Any other term, condition, or (a) Classify a job as being for males privilege of employment. or for females; (b) Maintain or establish separate § 2555.505 Employment criteria. lines of progression, seniority lists, ca- A recipient shall not administer or reer ladders, or tenure systems based operate any test or other criterion for on sex; or any employment opportunity that has (c) Maintain or establish separate a disproportionately adverse effect on lines of progression, seniority systems, persons on the basis of sex unless: career ladders, or tenure systems for (a) Use of such test or other criterion similar jobs, position descriptions, or is shown to predict validly successful job requirements that classify persons performance in the position in ques- on the basis of sex, unless sex is a bona tion; and fide occupational qualification for the (b) Alternative tests or criteria for positions in question as set forth in such purpose, which do not have such § 2555.550. disproportionately adverse effect, are shown to be unavailable. § 2555.525 Fringe benefits. (a) ‘‘Fringe benefits’’ defined. For pur- § 2555.510 Recruitment. poses 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 pres- leave, and any other benefit or service ently discriminating on the basis of sex of employment not subject to the pro- in the recruitment or hiring of employ- vision of § 2555.515. ees, or has been found to have so dis- (b) Prohibitions. A recipient shall not:
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(1) Discriminate on the basis of sex qualify for leave under such a policy, a with regard to making fringe benefits recipient shall treat pregnancy, child- available to employees or make fringe birth, false pregnancy, termination of benefits available to spouses, families, pregnancy, and recovery therefrom as a or dependents of employees differently justification for a leave of absence upon the basis of the employee’s sex; without pay for a reasonable period of (2) Administer, operate, offer, or par- time, at the conclusion of which the ticipate in a fringe benefit plan that employee shall be reinstated to the sta- does not provide for equal periodic ben- tus that she held when the leave began efits for members of each sex and for or to a comparable position, without equal contributions to the plan by such decrease in rate of compensation or recipient for members of each sex; or loss of promotional opportunities, or (3) Administer, operate, offer, or par- ticipate in a pension or retirement plan any other right or privilege of employ- that establishes different optional or ment. compulsory retirement ages based on § 2555.535 Effect of state or local law sex or that otherwise discriminates in or other requirements. benefits on the basis of sex. (a) Prohibitory requirements. The obli- § 2555.530 Marital or parental status. gation to comply with §§ 2555.500 (a) General. A recipient shall not through 2555.550 is not obviated or alle- apply any policy or take any employ- viated by the existence of any State or ment action: local law or other requirement that im- (1) Concerning the potential marital, poses prohibitions or limits upon em- parental, or family status of an em- ployment of members of one sex that ployee or applicant for employment are not imposed upon members of the that treats persons differently on the other sex. basis of sex; or (b) Benefits. A recipient that provides (2) Which is based upon whether an any compensation, service, or benefit employee or applicant for employment to members of one sex pursuant to a is the head of household or principal State or local law or other requirement wage earner in such employee’s or ap- shall provide the same compensation, plicant’s family unit. service, or benefit to members of the (b) Pregnancy. A recipient shall not other sex. discriminate against or exclude from employment any employee or applicant § 2555.540 Advertising. for employment on the basis of preg- 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 § 2555.235(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, re- covery therefrom, and any temporary § 2555.545 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- efit or service, and reinstatement, and (b) Sex. A recipient may make pre- under any fringe benefit offered to em- employment inquiry as to the sex of an ployees by virtue of employment. applicant for employment, but only if (d) Pregnancy leave. In the case of a such inquiry is made equally of such recipient that does not maintain a applicants of both sexes and if the re- leave policy for its employees, or in the sults of such inquiry are not used in case of an employee with insufficient connection with discrimination prohib- leave or accrued employment time to ited by these Title IX regulations.
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§ 2555.550 Sex as a bona fide occupa- Subpart F—Procedures tional qualification. A recipient may take action other- §2555.600 Notice of covered programs. wise prohibited by §§ 2555.500 through Within 60 days of September 29, 2000, 2555.550 provided it is shown that sex is each Federal agency that awards Fed- a bona fide occupational qualification eral financial assistance shall publish for that action, such that consider- in the FEDERAL REGISTER a notice of ation of sex with regard to such action the programs covered by these Title IX is essential to successful operation of regulations. Each such Federal agency the employment function concerned. A shall periodically republish the notice of covered programs to reflect changes recipient shall not take action pursu- in covered programs. Copies of this no- ant to this section that is based upon tice also shall be made available upon alleged comparative employment char- request to the Federal agency’s office acteristics or stereotyped characteriza- that enforces Title IX. tions of one or the other sex, or upon preference based on sex of the recipi- § 2555.605 Enforcement procedures. ent, employees, students, or other per- The investigative, compliance, and sons, but nothing contained in this sec- enforcement procedural provisions of tion shall prevent a recipient from con- Title VI of the Civil Rights Act of 1964 sidering an employee’s sex in relation (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby to employment in a locker room or toi- adopted and applied to these Title IX let facility used only by members of regulations. These procedures may be one sex. found at 45 CFR 1203.6 through 1203.12. [65 FR 52894, Aug. 30, 2000]
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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet- ical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published sepa- rately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR Redesignation Table List of CFR Sections Affected
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Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)
Title 2—[Reserved]
Title 3—The President
I Executive Office of the President (Parts 100—199)
Title 4—Accounts
I General Accounting Office (Parts 1—99) II Federal Claims Collection Standards (General Accounting Of- fice—Department of Justice) (Parts 100—299)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VII Advisory Commission on Intergovernmental Relations (Parts 1700—1799) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201)
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XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)
Title 6—[Reserved]
Title 7—Agriculture
SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE
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I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIII Northeast Dairy Compact Commission (Parts 1300—1399) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299)
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XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)
Title 8—Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice (Parts 1—599)
Title 9—Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)
Title 10—Energy
I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
Title 12—Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1—199)
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II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)
Title 13—Business Credit and Assistance
I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)
Title 14—Aeronautics and Space
I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299)
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)
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IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Export Administration, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—Regulations Relating to Foreign Trade Agreements XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—Regulations Relating to Telecommunications and Information XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)
Title 16—Commercial Practices
I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)
Title 17—Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)
Title 18—Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)
Title 19—Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399)
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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 Employment Standards Administration, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training, Department of Labor (Parts 1000—1099)
Title 21—Food and Drugs
I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)
Title 22—Foreign Relations
I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board Regulations (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Board for International Broadcasting (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 Devel- opment I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—999) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)
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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—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Part 1001) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1— 799)
Title 27—Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (Parts 1—299)
Title 28—Judicial Administration
I Department of Justice (Parts 0—199) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799)
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) 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)
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XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Pension and Welfare Benefits Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)
Title 30—Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VI Bureau of Mines, Department of the Interior (Parts 600—699) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)
Title 31—Money and Finance: Treasury
SUBTITLE A—Office of the Secretary of the Treasury (Parts 0— 50) SUBTITLE B—Regulations Relating to Money and Finance I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899)
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)
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VII Department of the Air Force (Parts 800—1099) SUBTITLE B—Other Regulations Relating to National Defense XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)
Title 33—Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)
Title 34—Education
SUBTITLE A—Office of the Secretary, Department of Education (Parts 1—99) SUBTITLE B—Regulations of the Offices of the Department of Education I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—Regulations Relating to Education XII National Council on Disability (Parts 1200—1299)
Title 35—Panama Canal
I Panama Canal Regulations (Parts 1—299)
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I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Part 1501)
Title 37—Patents, Trademarks, and Copyrights
I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
Title 39—Postal Service
I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099)
Title 40—Protection of Environment
I Environmental Protection Agency (Parts 1—799) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)
Title 41—Public Contracts and Property Management
SUBTITLE B—Other Provisions Relating to Public Contracts 50 Public Contracts, Department of Labor (Parts 50–1—50–999)
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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, Department of Labor (Parts 61–1—61–999) SUBTITLE C—Federal Property Management Regulations System 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—Other Provisions Relating to Property Manage- ment [Reserved] SUBTITLE E—Federal Information Resources Management Regu- lations System 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—Federal Travel Regulation System 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–70) 304 Payment from a Non-Federal Source for Travel Expenses (Parts 304–1—304–99)
Title 42—Public Health
I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Health Care Financing Administration, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)
Title 43—Public Lands: Interior
SUBTITLE A—Office of the Secretary of the Interior (Parts 1—199) SUBTITLE B—Regulations Relating to Public Lands I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999)
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III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10005)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)
Title 45—Public Welfare
SUBTITLE A—Department of Health and Human Services (Parts 1—199) SUBTITLE B—Regulations Relating to Public Welfare II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)
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I Coast Guard, Department of Transportation (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Transpor- tation (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)
Title 47—Telecommunication
I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management Federal Employees Health Ben- efits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999)
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34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) 54 Defense Logistics Agency, Department of Defense (Part 5452) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)
Title 49—Transportation
SUBTITLE A—Office of the Secretary of Transportation (Parts 1— 99) SUBTITLE B—Other Regulations Relating to Transportation I Research and Special Programs Administration, Department of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Transportation (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Bureau of Transportation Statistics, Department of Transpor- tation (Parts 1400—1499)
Title 50—Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199)
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II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)
CFR Index and Finding Aids
Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR
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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Commission on Intergovernmental Relations 5, VII Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 5, LXXIII Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Cooperative State Research, Education, and Extension 7, XXXIV Service Economic Research Service 7, XXXVII Energy, Office of 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Alcohol, Tobacco and Firearms, Bureau of 27, I AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX Architectural and Transportation Barriers Compliance Board 36, XI
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At 51 FR 23056, June 25, 1986, regulations formerly appearing in 36 CFR chapter X, were transferred to 45 CFR chapter XXI. For the convenience of the user, the following table shows the relationship of the former part numbers under 36 CFR chapter X and the new part numbers in 45 CFR chapter XXI.
Old Part New Part
1000 ...... 2105 1002 ...... 2106
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1986 1987 45 CFR 51 FR 45 CFR 52 FR Page Page Chapter XVI Chapter XII 1600 Authority citation re- 1204 Authority citation re- vised...... 24827 vised...... 20714 1600.1 Amended...... 24827 1204.1 Revised ...... 20714 1611 Appendix A revised ...... 24151 1204.2 Revised ...... 20714 1612 Revised ...... 27548 1207 Authority citation re- Request for comments...... 40422 vised...... 32133 1207.3–7 Added; eff. 10–13–87 ...... 32133 1614.1 (d) amended; (e) added ...... 21559 1208 Authority citation re- 1625 Revised ...... 15899 vised...... 32134 1630 Added ...... 29081 1208.3–8 Added; eff. 10–13–87 ...... 32134 1631 Added ...... 24827 Chapter XIII Chapter XVII 1340 Authority citation re- 1706 Added ...... 4578, 4579 vised ...... 3994 1706.103 Corrected ...... 7543 1340.1 (c) revised...... 3994 1706.150 (c) corrected ...... 7543 1340.2 (d) revised...... 3994 1706.170 (c) revised...... 4578 1340.3 (b) revised...... 3995 Chapter XX 1340.13 (a) revised; (c) added ...... 3995 Chapter XX Chapter estab- 1340.14 (i)(1) and (2) introductory lished...... 3174, 7220, 8300 text republished; (i)(2)(viii) 2000 Added ...... 7220 amended; (i)(3) and (4) redesig- 2001 Added; interim...... 8300 nated as (i)(4) and (5); new (i)(3) Revised...... 36786 added ...... 3995 2002 Added; interim...... 3174 1340.15 OMB number ...... 3995 Confirmed...... 28384 1385 Heading and authority cita- 2010 Added ...... 47164 tion revised ...... 44845 1385.1 Revised ...... 44845 Chapter XXI 1385.3 Introductory text repub- 2104 Added ...... 22895, 22896 lished; section amended ...... 44845 2104.170 (c) revised ...... 22895 1385.4 Revised ...... 44845 2105 Redesignated from 36 Part 1385.5 Added ...... 44846 1000 and nomenclature 1385.6 Revised ...... 44846 change...... 23056 1385.7 Introductory text re- 2106 Redesignated from 36 Part vised...... 44846 1002 and nomenclature 1385.9 (a) introductory text re- change...... 23056 vised...... 44846
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45 CFR—Continued 52 FR 45 CFR—Continued 53 FR Page Page Chapter XIII—Continued Chapter XII—Continued 1386 Authority citation re- 1234 Added ...... 8084, 8087 vised...... 44846 Chapter XIII 1386.20 (d) and (e) added ...... 44846 1386.21 (a) revised...... 44846 1301 Authority citation re- 1386.22 Removed ...... 44846 vised ...... 5979 1386.23 Revised ...... 44846 1301.31 Revised ...... 5979 1386.24 Revised ...... 44847 1321 Revised ...... 33766 1386.30 (a), (b), (e) (2) and (3) re- 1326 Redesignated from 1328 and vised; OMB number...... 44847 revised ...... 33774 1386.32 Revised; OMB number...... 44847 1328 Redesignated as 1326 and re- 1386.33 (a) revised; OMB num- vised...... 33774 ber...... 44847 Added ...... 33777 1386.34 Removed ...... 44847 1336 Authority citation re- 1386.35 (b)(1) revised...... 44847 vised...... 23968 1386.81 (a) revised...... 44847 1336.30 (c) added; interim ...... 23968 1386.111 (c) introductory text re- (c) interim addition eff. 7–25–88 published; (c)(1) revised ...... 44847 ...... 28223 1387 Heading revised ...... 44847 1336.60—1336.77 (Subpart F) 1388 Revised ...... 44847 Added; interim ...... 23968 Chapter XVI Interim addition eff. 7–25–88 ...... 28223 1611 Appendix A revised ...... 18914 1356.40 (b) introductory text, (1), 1612 Revised ...... 28436 (3), and (4) revised; (c) removed; 1612.5 (h)(1) corrected; first (h)(2) (d), (e), (f), and (g) redesignated correctly removed ...... 28777 as (c), (d), (e), and (f) ...... 50220 1612.6 (b) corrected...... 28777 1356.41 Added ...... 50220 Chapter XX 1356.60 (c)(4) removed; (c)(5) re- 2001 Authority citation re- designated as (c)(4) ...... 50221 vised ...... 2384 Chapter XVI 2001.20—2001.29 (Subpart B) Re- 1602.1 Amended ...... 6153 vised ...... 2384 1602.2 Revised ...... 6153 2001.38 Added; interim ...... 22647 1602.4 Amended ...... 6153 2001.39 Added; interim ...... 22648 2001 Appendix A revised...... 2386 Corrected ...... 9726 Appendix D added...... 2387 1602.5 (a) amended ...... 6153 Appendix E added ...... 22650 1602.6 Removed ...... 6153 2002 Authority citation re- 1602.7 (a) amended ...... 6153 vised...... 28705 1602.9 (a)(6) revised...... 6153 2002.21 (a) introductory text, (1) 1602.10 Amended...... 6154 and (2) amended ...... 28705 1602.13 (b), (c) and (d), (e)(1) intro- 2002.22 (b) amended ...... 28705 ductory text and (i) through 2005 Added; interim...... 5543 (iii) and (f) through (h) revised; 2010 Revised ...... 30582 (e) introductory text repub- Chapter XXII lished; (e)(1)(iv), (6) and (7) and Chapter XXII Chapter estab- (i) through (k) added...... 6154 lished; interim...... 10870 (e)(7) and (h)(1) corrected ...... 9726 2201 Added; interim (effective 1607 Authority citation re- date pending in part)...... 10870 vised...... 30679 1607.6 Revised ...... 30679 1988 Technical correction ...... 32322 1611 Appendix A revised ...... 12018 45 CFR 53 FR Page Chapter XVIII Chapter XII 1801 Revised ...... 23239 1229 Added; eff. 10–1–88 ...... 19202, 19204 Chapter XX Nomenclature change; eff. 10–1– 2001.34 (a) amended ...... 27519 88 ...... 19203 2015 Added ...... 8084, 8087
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45 CFR—Continued 53 FR 45 CFR—Continued 54 FR Page Page Chapter XXII Chapter XII—Continued 2201 Authority citation revised; 1229 Appendix C added; in- nomenclature change...... 3320 terim ...... 4965 2201.4 Added; interim ...... 3320 Chapter XIII 2201.11 (Subpart B) Redesignated 1336.30 Regulation at 53 FR 23969 as 2201.21 (Subpart C); new confirmed ...... 3452 2201.11—2201.13 (Subpart B) 1336.60—1336.77 (Subpart F) Regu- added; interim...... 3321 lation at 53 FR 23969 con- 2201.21—2201.23 (Subpart C) Re- firmed...... 3452 designated as 2201.31—2201.33 1351 (Subchapter F) Subchapter (Subpart D); interim ...... 3321 heading and authority citation 2201.21 (Subpart C) Redesignated revised; nomenclature from 2201.11 (Subpart B); in- change...... 20854 terim ...... 3321 1351.1 (c) and (j) amended; (k) 2201.31—2201.33 (Subpart D) Re- through (p) redesignated as (j) designated as 2201.41—2201.43 through (o) ...... 20854 (Subpart E); new 2201.31— 1351.11 Revised ...... 20855 2201.33 (Subpart D) redesig- 1351.13 Revised ...... 20855 nated from 2201.21—2201.23 1385 Authority citation re- (Subpart C); interim...... 3321 vised...... 47984 1385.1 (b), (c), and (d) revised...... 47984 2201.32 (c) introductory text re- 1385.3 Introductory text repub- vised; interim (effective date lished; amended...... 47984 pending)...... 3321 1385.4 (b) and (c) revised ...... 47984 2201.41—2201.44 (Subpart E) Re- 1385.5 (b) revised ...... 47984 designated as 2201.51—2201.54 1385.9 (a) amended ...... 47984 (Subpart F); interim...... 3320 1386 Authority citation re- 2201.41—2201.43 (Subpart E) Re- vised...... 47985 designated from 2201.31— 1386.2 (a) revised ...... 47985 2201.33 (Subpart D); interim ...... 3321 1386.23 (c) revised; OMB num- 2201.51—2201.55 (Subpart F) Re- ber...... 47985 designated as 2201.61—2201.65 1386.30 (e)(4) revised ...... 47985 (Subpart G); interim ...... 3320 1386.32 (a) revised; OMB num- 2201.51—2201.54 (Subpart F) Re- ber...... 47985 designated from 2201.41— 1386.33 (a) revised...... 47985 2201.44 (Subpart E); interim ...... 3320 1386.35 (c) added ...... 47985 2201.52 OMB number ...... 3321 1387 Revised ...... 47985 2201.53 Revised; interim ...... 3320 1388 Heading revised ...... 47985 2201.61—2201.65 (Subpart G) Re- 1388.5 (f)(3) revised ...... 47985 designated from (Subpart F) 1388.9 Added ...... 47985 2201.51—2201.55; interim...... 3320 Chapter XVI 2202 Added; interim (effective 1611 Appendix A revised ...... 15945 date pending in part) ...... 3322 1626 Authority citation re- vised...... 18111 1989 1626.1 Revised ...... 18111 1626.2 (b) revised ...... 18111 45 CFR 54 FR 1626.3 Revised ...... 18111 Page 1626.4 (a) introductory text, (1), Chapter XII and (b) revised...... 18111 1229 Heading and authority cita- 1626.5 (a)(5), (b)(1), (c), and (f) re- tion revised ...... 4965 vised; (a)(6) removed; (b)(5) Technical correction...... 6363 added...... 18111 1229.305 (c) (3) and (4) amended; 1626.6 (a) introductory text, (3), (c)(5) added; interim ...... 4965 and (b)(1) revised...... 18112 1229.320 (a) revised; interim ...... 4965 1626.7 (a) introductory text and 1229.600—1229.630 (Subpart F) (b) revised...... 18112 Added; interim...... 4965 1626.10 (a) revised; (c) added...... 18112
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45 CFR—Continued 54 FR 45 CFR—Continued 55 FR Page Page Chapter XVI—Continued Chapter XIII—Continued 1626.11 Added ...... 18112 1351 Regulation at 54 FR 20854 1626.12 Added ...... 18112 confirmed; technical correc- 1632 Added ...... 31959 tion...... 5601 Chapter XVIII Effective date corrected...... 7967 1351.1 Regulation at 54 FR 20854 1803 Added ...... 4795 confirmed ...... 5601 Chapter XX 1351.11 Regulation at 54 FR 20855 2016 Added; nomenclature confirmed ...... 5601 change ...... 4735 1351.13 Regulation at 54 FR 20855 Heading and authority citation confirmed ...... 5601 revised ...... 4965 Chapter XVI Technical correction...... 6363 1611 Appendix A revised ...... 12353 2016.105 (w) added ...... 4735 2016.305 (c) (3) and (4) amended; ChapterXVIII (c)(5) added; interim ...... 4965 1801 Revised ...... 25940 2016.320 (a) revised; interim ...... 4966 ChapterXX 2016.600—2016.630 (Subpart F) Re- 2016 Regulation at 54 FR 4950, 4965 vised; interim...... 4966 confirmed...... 21704 2016 Appendix C added; in- 2016.305 Regulation at 54 FR 4950, terim ...... 4966 4965 confirmed ...... 21704 2016.320 Regulation at 54 FR 4950, 1990 4966 confirmed ...... 21704 2016.600—2016.635 (Subpart F) Re- 45 CFR 55 FR vised...... 21688, 21704 Page 2016 Appendix C revised ...... 21690, 21704 Chapter XII 1214 Added ...... 47761 1215 Revised ...... 20153 1991 Authority citation revised ...... 50330 45 CFR 56 FR 1215.10 Added ...... 50330 Page 1229 Regulation at 54 FR 4950, 4965 Chapter XII confirmed...... 21704 1228 Removed ...... 47157 1229.305 Regulation at 54 FR 4950, 1235 Added ...... 4732 4965 confirmed ...... 21704 Chapter XVI 1229.320 Regulation at 54 FR 4950, 1611 Appendix A revised...... 9634 4965 confirmed ...... 21704 1801 Revised ...... 48076 1229.600—1229.635 (Subpart F) Re- vised...... 21688, 21704 1229 Appendix C revised ...... 21690, 21704 1992 1230 Added; interim ...... 6737, 6755 45 CFR 57 FR 1232 Authority citation re- Page vised...... 52142 Chapter XII 1232.15 (a) amended ...... 52142 1224.1–19 Added ...... 45326 (b) revised ...... 52143, 52138 Chapter XIII Chapter XIII 1301.2 Amended; eff. 10–14–92 ...... 41884 1340 Authority citation revised ...... 27639 1301.20 (c) added; eff. 10–14–92 ...... 41884 1340.1 (a) revised ...... 27639 1301.32 Revised; eff. 10–14–92 ...... 41885 1340.2 (h) revised ...... 27639 1302 Authority citation re- 1340.10 Revised ...... 27639 vised...... 41887 1340.13 (a) introductory text re- 1302.10 Revised; eff. 10–14–92 ...... 41887 published; (a)(2) revised; (c) re- 1303 Revised ...... 59264 moved ...... 27639 1303.10—1303.23 (OMB number 1340.14 (a) revised...... 27639 pending) ...... 59264 1340.15 (a), (b)(1), (c)(1),(4), and 1304 Appendix A removed ...... 58092 (d)(1) revised...... 27639 1305 Revised ...... 46725 1340 Appendix amended ...... 27640 1306 Added ...... 58092
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45 CFR—Continued 57 FR 45 CFR—Continued 58 FR Page Page Chapter XIII—Continued Chapter XIII—Continued 1355 Authority citation re- 1356.60 (c)(2)(x) and (d) added ...... 67938 vised...... 30429 (e) added; interim ...... 67947 1355.20 Amended ...... 30429 1357 Authority citation re- Chapter XVI vised...... 67938 1611 Appendix A revised...... 8578 1357.15 (h) added...... 67938 Chapter XX Chapter XVI Chapter XX Removed ...... 29041 1602 Authority citation re- Chapter XXIV vised...... 52919 Chapter XXIV Established...... 7322 1602.2 Revised ...... 52919 2400 Added ...... 7322 Regulation at 58 FR 52919 eff. date delayed to 10–2–94...... 65292 Chapter XXV 1602.4 Revised ...... 52919 Chapter XXV Established ...... 5299 Regulation at 58 FR 52919 eff. 2500 Added ...... 5299 date delayed to 10–2–94...... 65292 2501 Added ...... 5302 2502 Added ...... 5306 1602.5 Revised ...... 52920 2503 Added ...... 5307 Regulation at 58 FR 52920 eff. 2504 Added ...... 5311 date delayed to 10–2–94...... 65292 2505 Added ...... 5314 1602.6 Added ...... 52920 Regulation at 58 FR 52920 eff. date delayed to 10–2–94...... 65292 1993 1602.7 Revised ...... 52920 45 CFR 58 FR Regulation at 58 FR 52920 eff. Page date delayed to 10–2–94...... 65292 Chapter XIII 1602.8 (a), (b)(3), (4), (5), (c) intro- 1301.32 OMB number ...... 26918 ductory text and (d) revised...... 52920 1303.24 Added; (OMB numbers) ...... 13019 Regulation at 58 FR 52920 eff. 1304 Authority citation re- date delayed to 10–2–94...... 65292 vised ...... 5518 1602.9 (a)(2) and (6)(iv) revised ...... 52921 Nomenclature change ...... 5518 Regulation at 58 FR 52921 eff. 1304.1–2 (a), (c) and (i) revised...... 5518 date delayed to 10–2–94...... 65292 1304.3–3 (b) introductory text re- 1602.10 Revised ...... 52921 vised ...... 5518 Regulation at 58 FR 52921 eff. 1305 Authority citation re- date delayed to 10–2–94...... 65292 vised ...... 5518 1602.12 Revised ...... 52921 1305.2 (a) revised...... 5518 Regulation at 58 FR 52921 eff. 1308 Added ...... 5501 date delayed to 10–2–94...... 65292 1355 Authority citation re- 1602.13 Revised ...... 52921 vised...... 67924 Regulation at 58 FR 52921 eff. 1355.20 Amended ...... 67924 date delayed to 10–2–94...... 65292 1355.30 (e) revised...... 67924 1611 Appendix A revised ...... 12336 1355.40 Added ...... 67924 1612 Authority citation re- 1355.50 Added; interim ...... 67945 vised...... 21405 1355.52 Added; interim ...... 67945 1612.2 Revised; eff. 10–2–93 ...... 21405 1355.53 Added; interim ...... 67945 1612.3 (a) amended; (b), (e) and (f) 1355.54 Added; interim ...... 67946 revised; eff. 10–2–93...... 21405 1355.55 Added; interim ...... 67946 1612.6 (a) revised; eff. 10–2–93...... 21405 1355.56 Added; interim ...... 67946 1612.13 (b) and (d) revised; (e) and 1355.57 Added; interim ...... 67946 (f) added; eff. 10–2–93 ...... 21405 1355 Appendixes A through F added...... 67926 1626.4 (a) introductory text and 1356 Authority citation re- (1) revised...... 6608 vised...... 67938 Chapter XXIII 1356.20 (b), (c) and (d) redesig- Chapter XXIII Established...... 57698 nated as (d), (e) and (f); new (b) 2301 Added ...... 57698, 57699 and new (c) added ...... 67938 2301.170 (c) revised ...... 57699
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45 CFR—Continued 58 FR 45 CFR—Continued 59 FR Page Page Chapter XXIV Chapter XXV 2490 Added ...... 57699 2510 Added ...... 13783 2490.170 (c) revised ...... 57699 2513 Added ...... 13785 Chapter XXV 2515 Added ...... 13786 2516 Added ...... 13786 Chapter XXV Heading revised; in- 2517 Added ...... 13790 terim...... 60981 2518 Added ...... 13792 2550 Added; interim ...... 60981 2519 Added ...... 13792 2520 Added ...... 13794 1994 2521 Added ...... 13794 45 CFR 59 FR 2522 Added ...... 13796 Page 2523 Added ...... 13804 Chapter XII 2524 Added ...... 13805 1207.1–2 Amended...... 15122 2525 Added; interim ...... 30710 1207.3–1 (v) added ...... 15122 2526 Added; interim ...... 30711 1207.3–5 (a)(3), (4) and (c)(5) re- 2527 Added; interim ...... 30712 2528 Added; interim ...... 30713 vised...... 15122 2529 Added; interim ...... 20714 1208.1–2 Amended...... 15122 2530 Added ...... 13806 1208.3–1 (v) added ...... 15122 2531 Added ...... 13806 1208.3–5 (a)(3), (4) and (c)(5) re- 2532 Added ...... 13807 vised...... 15122 2533 Added ...... 13808 Chapter XIII 2540 Added ...... 13808 1355 Appendixes A, D and E cor- 2541 Added ...... 41598 rected...... 13535 2542 Added ...... 41614 Appendixes A through D cor- rected ...... 42520 1995 1357.15 (h) corrected...... 13535 45 CFR 60 FR Chapter XVI Page 1601 Removed ...... 21666 Chapter XIII 1602.2 Regulation at 58 FR 52919 1355.40 OMB number ...... 40507 withdrawn...... 49584 1355.50 Regulation at 58 FR 67945 1602.4 Regulation at 58 FR 52919 confirmed...... 26839 withdrawn...... 49584 1355.52 Regulation at 58 FR 67945 1602.5 Regulation at 58 FR 52920 confirmed...... 26839 withdrawn...... 49584 1355.53 Regulation at 58 FR 67945 1602.6 Regulation at 58 FR 52920 confirmed; (b)(3) amended...... 26839 withdrawn...... 49584 1355.54 Regulation at 58 FR 67946 1602.7 Regulation at 58 FR 52920 confirmed...... 26839 withdrawn...... 49584 1355.55 Regulation at 58 FR 67946 1602.8 Regulation at 58 FR 52920 confirmed...... 26839 withdrawn...... 49584 1355.56 Regulation at 58 FR 67946 1602.9 Regulation at 58 FR 52921 confirmed...... 26839 withdrawn...... 49584 1355.57 Regulation at 58 FR 67946 1602.10 Regulation at 58 FR 52921 confirmed...... 26839 withdrawn...... 49584 1355.60 Regulation at 58 FR 67947 1602.12 Regulation at 58 FR 52921 confirmed...... 26839 withdrawn...... 49584 1355 Appendixes A, C and D 1602.13 Regulation at 58 FR 52921 amended...... 40507 withdrawn...... 49584 appendix E amended ...... 40508 1607 Revised ...... 65254 appendix A corrected...... 46887 1611 Appendix A revised ...... 12550 1357.40 Heading and (a) revised; Chapter XVIII (g)(6) added ...... 28737 1801 Revised ...... 43058 1397 (Subchapter K) Removed ...... 26000 Chapter XXIV Chapter XVI Chapter XXIV Revised...... 27490 1607.5 (b) correctly revised...... 2330
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45 CFR—Continued 60 FR 45 CFR—Continued 61 FR Page Page Chapter XVI—Continued Chapter XIII—Continued 1611 appendix A revised...... 10809 1336.35 Added ...... 42822 Chapter XXV 1355—1357 (Subchapter G) Head- 2541.360 (d), (g), (h) and (i) re- ing revised ...... 58653 vised...... 19639, 19646 1355.10 Revised ...... 58653 2542.10 Revised ...... 33040 1355.20 (a) amended ...... 58653 Revised; (b)(3) amended ...... 33063 1355.21 (c) revised...... 58654 2542.20 Amended ...... 33041, 33063 1355.25 Added ...... 58654 2542.30 (c) revised...... 33041, 33063 1355.30 Revised ...... 58654 2542.100 Revised ...... 33041 1356.10 Revised ...... 58655 Revised; (a) and (c) amended...... 33063 1356.80 Added ...... 58655 2542.130 Revised ...... 33041 1357.10 Revised ...... 58655 Revised; amended ...... 33063 1357.15 Revised (OMB number 2542.140 Revised ...... 33041 pending) ...... 58656 Revised; (b) amended ...... 33063 1357.16 Added (OMB number pend- 2542.150 Revised ...... 33041 ing) ...... 58659 Revised; (a) amended ...... 33063 1357.20 Revised ...... 58660 2542 Appendixes A and B re- 1357.30 Revised ...... 58660 vised...... 33042, 33063 1357.32 Added ...... 58661 2543 Added ...... 13055 1357.40 Revised ...... 58661 2544 Added ...... 28355 1357.50 Added ...... 58662 1370 (Subchapter H) Added ...... 6793 1996 1385.1 (a) and (b) revised; eff 10–30– 96...... 51153 45 CFR 61 FR Page 1385.3 Amended; eff. 10–30–96 ...... 51153 Chapter XIII 1385.4 Revised; eff. 10–30–96...... 51154 1301 Authority citation re- 1385.5 Removed; eff. 10–30–96...... 51154 vised...... 57225 1385.6 Revised; eff. 10–30–96...... 51154 1301.31 Revised; eff. 1–1–98 ...... 57225 1385.7 Removed; eff. 10–30–96...... 51154 1303.14 (b)(4) revised; eff. 1–1–98...... 57226 1385.8 Introductory text revised; 1304 Revised; eff. 1–1–98 ...... 57210 eff. 10–30–96 ...... 51154 1304.20 OMB number pending ...... 57212 1385.9 (a) amended; (b), (c) and (d) 1304.22 OMB number pending ...... 57214 revised; (e) added; eff. 10–30– 1304.23 OMB number pending ...... 57215 96...... 51154 1304.40 OMB number pending ...... 57216 1386.1 Revised; eff. 10–30–96...... 51155 1304.50 OMB number pending ...... 57219 1386.2 (b)(1) and (c) revised; eff. 10– 1304.51 OMB number pending ...... 57222 30–96 ...... 51155 1304.60 OMB number pending ...... 57225 1386.4 Removed; eff. 10–30–96...... 51155 1305.1 Amended; eff. 1–1–98...... 57226 1386.19 Added; eff. 10–30–96 ...... 51155 1305.3 Heading, (b) introductory 1386.20—1386.24 (Subpart B) Head- text, (c) introductory text, (d) ing revised; eff. 10–30–96...... 51155 and (f)(1) revised; eff. 1–1–98 ...... 57226 1386.20 Heading, (a), (d) and (e) re- 1306 Authority citation re- vised; (f) added; eff. 10–30–96 ...... 51156 vised...... 57226 1386.21 Revised; eff. 10–30–96 ...... 51157 1306.1 Revised; eff. 1–1–98...... 57226 1386.22 Added; eff. 10–30–96 ...... 51158 1306.20 (a) through (e) redesig- 1386.23 Revised (OMB number nated as (b) through (f); new (a) pending); eff. 10–30–96 ...... 51159 added; eff. 1–1–98...... 57226 1386.24 Introductory text, (a) and 1306.21 Revised; eff. 1–1–98 ...... 57226 (b) redesignated as (a) intro- 1306.30 (c) revised; eff. 1–1–98...... 57226 ductory text, (1) and (2); new (a) 1306.33 (c)(3) revised; eff. 1–1–98 ...... 57227 introductory text and new (1) 1308.6 (b)(1) revised; eff. 1–1–98 ...... 57227 revised; new (b) added; eff. 10– 1336.30 Heading revised; (a), (b) 30–96 ...... 51159 designation and (c) removed...... 42820 1386.25 Added; eff. 10–30–96 ...... 51159 1336.33 Added ...... 42820 1386.30—1386.36 (Subpart C) Head- 1336.34 Added ...... 42821 ing revised; eff. 10–30–96...... 51159
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45 CFR—Continued 61 FR 45 CFR—Continued 61 FR Page Page Chapter XIII—Continued Chapter XVI—Continued 1386.30 (e) redesignated as (f); (a), 1633 Added ...... 14252 (c)(1), new (f)(2) and (3) revised; Revised; interim ...... 41966 (c)(3) and new (e) added; (OMB 1633 Revised ...... 63758 number pending); eff. 10–30– 1634 Added ...... 14258 96...... 51159 1635 Added ...... 14263 1386.30 (f)(4) correctly designated 1636 Added; interim ...... 45741 and revised ...... 51751 1637 Added; interim ...... 45755 1386.31 Heading revised; (a) 1638 Added; interim ...... 45756 through (d) redesignated as (b) 1639 Added; interim ...... 45759 through (e); new (a) added; eff. 1640 Added; interim ...... 45761 10–30–96...... 51160 1642 Added; interim ...... 45763 1386.32 Revised (OMB number Chapter XXIV pending); eff. 10–30–96 ...... 51160 2400 Revised ...... 46734 1386.33 (a) revised; eff. 10–30–96...... 51160 1386.34 Added; eff. 10–30–96 ...... 51160 1386.35 Heading and (b)(1) revised; 1997 (d) and (e) added; eff. 10–30– 45 CFR 62 FR 96...... 51161 Page 1386.36 Heading and (e) revised; Chapter XIII eff. 10–30–96 ...... 51161 1311 Added ...... 1400 1386.80 Revised; eff. 10–30–96 ...... 51161 Chapter XVI 1386.85 (a) revised; eff. 10–30–96...... 51161 1602 Authority citation re- 1386.90 Revised; eff. 10–30–96 ...... 51161 vised...... 45754 1386.92 Revised; eff. 10–30–96 ...... 51162 1602.4 Revised ...... 45754 1386.93 (c)(2) and (d) revised; eff. 1602.5 (a) revised ...... 45755 10–30–96...... 51162 1602.7 Heading and (b) revised...... 45755 1386.94 (a), (b)(2) and (c) revised; 1602.8 (a), (b)(4) and (5) revised ...... 45755 eff. 10–30–96 ...... 51162 1602.12 (a) revised...... 45755 1386.101 (a)(11) and (c) revised; eff. 1609 Revised ...... 19399 10–30–96...... 51162 1610 Revised; interim...... 12102 1386.111 (c) and (d) revised; eff. 10– Revised...... 27698 30–96 ...... 51162 1611 Appendix A revised ...... 12752 1386.112 (a) and (b) revised; eff. 10– 1612 Revised ...... 19404 30–96 ...... 51162 1612.2 (b)(2) corrected...... 22895 1387.1 (a), (b) and (d) revised; eff. 1620 Revised ...... 19408 10–30–96...... 51163 1626 Revised ...... 19414 1388 Revised; eff. 10–30–96 ...... 51163 Technical correction ...... 24054 Chapter XVI Appendix corrected...... 24159 1610 Revised; interim...... 41962 1626.2 (f) and (g) revised; in- 1610 Revised ...... 63752 terim...... 19414 1610.2 (b)(4), (9), (11), (12) and (14) (f) revised ...... 45757 added; interim ...... 45741 1626.4 Revised; interim ...... 19414 1611 Appendix A revised ...... 12041 1626.10 (e) corrected ...... 22895 1612 Revised; interim...... 45745 1627 Heading and authority cita- 1617 Revised; interim...... 41964 tion revised ...... 19418 1617 Revised ...... 63755 1627.2 (c) revised ...... 19418 1620 Revised; interim...... 45749 1627.4 Revised ...... 19418 1626 Revised; interim...... 45751 1627.7 Revised ...... 19418 1627 Heading revised; interim ...... 45754 1627.8 Revised ...... 19418 Authority citation revised ...... 45754 1630 Revised ...... 68224 1627.2 (c) revised; interim...... 45754 1636 Revised ...... 19420 1627.4 Revised; interim ...... 45754 Heading corrected ...... 22895 1627.7 Revised; interim ...... 45754 1637 Revised ...... 19422 1627.8 Revised; interim ...... 45754 1638 Revised ...... 19424 1632 Revised; interim...... 41965 1639 Revised ...... 30766 1632 Revised ...... 63756 1640 Revised ...... 19426
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45 CFR—Continued 62 FR 45 CFR—Continued 63 FR Page Page Chapter XVI—Continued Chapter XIII—Continued 1642 Revised ...... 25864 1305.4 (a) amended; (b) revised ...... 12657 1643 Added ...... 67749 1305.6 (b) revised; (c) amended ...... 12658 Chapter XXI 1305.7 (c) revised ...... 12658 2101 Revised ...... 4646 1306.30 (c) amended...... 2314 2102 Revised ...... 4647 Chapter XVI 2103 Revised ...... 4649 1602 Revised ...... 41196 Chapter XXV 1606 Revised ...... 64643 2541.260 (a), (b) introductory text 1611 Appendix A revised ...... 11376 and (1) revised...... 45939, 45947 1623 Revised ...... 64648 2543.26 (a), (b) and (c) revised ...... 45939, 1625 Removed ...... 64646 45947 1630 Authority citation cor- rected ...... 1532 1630.2 (e) and (f) corrected ...... 1532 1998 1630.3 (c) introductory text cor- 45 CFR 63 FR rected ...... 1532 Page 1630.12 (b) corrected...... 1532 Chapter XII 1643 Technical correction...... 9310 Chapter XII Heading revised ...... 4598 1644 Added ...... 33254 1201 Revised ...... 4598 Chapter XVII Authority citation revised ...... 64199 1700 Revised ...... 51533 1201.2 (b) and (c) added...... 64199 Chapter XXV 1215 Redesignated as Part 2507 ...... 26489 2500 Removed ...... 66063 Chapter XIII 2501 Removed ...... 66063 1301.31 OMB number ...... 2313 2502 Removed ...... 66063 1302.2 Amended...... 34329 2503 Removed ...... 66063 1302.30—1302.32 (Subpart D) 2504 Removed ...... 66063 Added ...... 34329 2505 Removed ...... 66063 1304.20 (b) heading, (1), (c)(4) and 2506 Removed ...... 66063 (f)(1) amended; OMB num- 2507 Redesignated from Part 1215 ber ...... 2313 and revised ...... 26489 1304.21 (b)(1) amended...... 2313 2510.20 Amended; interim ...... 18137 1304.22 OMB number ...... 2313 Regulation at 63 FR 18137 con- 1304.23 OMB number ...... 2313 firmed...... 39034 1304.40 (a)(2) and (3) amended; 2516.710 Revised; interim ...... 18137 OMB number ...... 2313 Regulation at 63 FR 18137 con- 1304.41 (b) amended; OMB num- firmed...... 39034 ber ...... 2314 2517.710 Revised; interim ...... 18137 1304.50 (b)(3), (d)(1)(iii), (e)(3) and Regulation at 63 FR 18137 con- Appendix A amended; (d)(1)(ix) firmed...... 39034 removed; (d)(1)(x), (xi) and (xii) 2519.710 Revised; interim ...... 18138 redesignated as (d)(1)(ix), (x) Regulation at 63 FR 18138 con- and (xi); OMB number...... 2314 firmed...... 39034 1304.51 (a)(1)(iii) amended; OMB 2521.30 (h) revised; interim ...... 18138 number ...... 2314 Regulation at 63 FR 18138 con- 1304.52 (j)(1) amended; OMB num- firmed...... 39034 ber ...... 2314 2540.110 Revised; interim ...... 18138 1304.60 OMB number ...... 2314 Regulation at 63 FR 18138 con- 1305.2 (k) through (r) redesig- firmed...... 39034 nated as (l) through (s); (g), (i) and new (m) revised; new (k) added...... 12657 1999 1305.3 (b) and (d) amended; OMB 45 CFR 64 FR number ...... 2314 Page (a) revised; (b) through (f) redes- Chapter XII ignated as (c) through (g); new 1207 Redesignated as Part 2551 ...... 14115 (b) added ...... 12657 1208 Redesignated as Part 2552 ...... 14126
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45 CFR—Continued 64 FR 45 CFR—Continued 64 FR Page Page Chapter XII—Continued Chapter XXV—Continued 1209 Redesignated as Part 2553 ...... 14135 2553 Redesignated from Part 1209 1224 Redesignated as part 2508 ...... 19294 and revised ...... 14135 Chapter XIII 1302 Authority citation re- 2000 vised...... 69925 1302.12 Removed ...... 69926 (Regulations published from January 1, 1309 Added ...... 5945 2000, through October 1, 2000) 1309.10 OMB number pending ...... 5946 45 CFR 65 FR 1309.40 OMB number pending ...... 5949 Page 1309.41 OMB number pending ...... 5949 Chapter XIII Chapter XVI 1303.14 (c)(1), (2), (5) and new (h) 1611 Appendix A revised ...... 17108 revised; (e) removed; (d) and (f) Appendix A corrected ...... 18372 through (j) redesignated as (f) 1641 Added ...... 67507 through (k); (c)(6), new (d) and Chapter XXII new (e) added...... 4768 Chapter XXII Removed ...... 49409 1303.15 (b)(2), (d)(1) and (3) revised; Chapter XXV (d)(4), (f), (g) and (h) added...... 4769 2505 Added ...... 66403 1303.16 (d) through (g) redesig- 2506 Added; interim...... 4316 nated as (e) through (h); new (d) 2508 Redesignated from part 1224 added; new (f) revised...... 4769 and revised ...... 19294 1303.17 Added ...... 4770 2522.200 Revised ...... 37413 1351.14 (a) revised...... 50141 2522.230 Revised ...... 37413 1355.20 Amended...... 4075 2525.10 Revised ...... 37414 1355.31 Added ...... 4076 2525.20 Amended ...... 37414 1355.32 Added ...... 4076 2526 Heading revised ...... 37414 1355.33 Added ...... 4077 2526.10 Revised ...... 37414 1355.34 Added ...... 4078 2526.20 Revised ...... 37415 1355.35 Added ...... 4080 2526.30 Removed; new 2526.30 re- 1355.36 Added ...... 4081 designated from 2526.60 ...... 37415 1355.37 Added ...... 4082 2526.40 Removed; new 2526.40 re- 1355.38 Added ...... 4082 designated from 2526.70; (b)(2) 1355.39 Added ...... 4083 amended...... 37415 1355.40 (a)(2) amended...... 4084 2526.50 Removed; new 2526.50 re- 1355 Appendixes A and B amend- designated from 2526.80 and re- ed...... 4084 vised...... 37415 Appendix D amended...... 4085 2526.60 Redesignated as 2526.30; Appendix E amended...... 4087 new 2526.60 redesignated from 1356.20 (e)(4) amended...... 4088 2526.90 and revised...... 37415 2526.70 Redesignated as 2526.40 ...... 37415 1356.21 Revised ...... 4088 2526.80 Redesignated as 2526.50 ...... 37415 1356.30 Redesignated as 1356.22; 2526.90 Redesignated as 2526.60 ...... 37415 new 1356.30 added ...... 4090 2526.100 Removed...... 37415 1356.22 Redesignated from 1356.30 2527 Heading revised ...... 37415 and revised...... 4090 2527.10 Revised ...... 37415 1356.50 (a) and (b) revised ...... 4091 2528 Revised ...... 37415 1356.60 (b)(1) revised; (c)(4) re- 2529 Revised ...... 37417 moved ...... 4091 2551 Redesignated from Part 1207 1356.65 Removed...... 4091 and revised ...... 14115 1356.70 Removed...... 4091 2552 Redesignated from Part 1208 1356.71 Added ...... 4091 and revised ...... 14126 1357.40 (d)(6) added...... 4093
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45 CFR—Continued 65 FR 45 CFR—Continued 65 FR Page Page Chapter XVI Chapter XXV 1611 Appendix A revised ...... 10718 2543.36 (c) revised; (d) redesig- 1635 Revised ...... 41882 nated as (e); new (d) added; in- terim; eff. 10–5–00 ...... 53609 2555 Added ...... 52865, 52893 2555.105 Amended...... 52894 2555.605 Added ...... 52894 Æ
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